
    John Weight Olmstead, Respondent, v. Edmund G. Rawson, Appellant.
    Third Department,
    January 8, 1906.
    Warranty deed — action for. breach of warranty — when grantor liable for costs of action for dower defended by grantee — duty of grantor to accept offer of doweress to take gross sum—evidence of damage.
    When a grantor has made warranty of title he cannot, on the failure of title to a portion of the premises, demand a reconveyance on tendering the amount paid, as the grantee has a right to retain that portion of the land to'which the title is good and hold the grantor on his warranty as to that portion to which the title fails.
    When the grantee holding under a warranty deed has been served with the summons and complaint in an action for dower brought by the widow of a former owner and has given his grantor notice of such action and asked him to defend, such grantor, in the absence of bad faith by the grantee, is bound by the judgment against the grantee in such action, because the grantee would have settled the action at his peril, and hence is justified in defending the same.
    Although such claimant to dower has offered to accept a gross sum, the duty to accept such offer is upon the grantor who warranted title, and hence he is chargeable with the costs of the grantee in defending the action for dower.
    When in an action for breach of warranty the defendant is chargeable with the full value of the premises, it is not reversible error to admit evidence as to the value of the portion on which the dower is claimed, when such evidence did not affect the judgment of.the court.
    Appeal by the defendant, Edmund G. Eawson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 4th day of May, 1905, upon the decision of the court rendered after atrial before the court without a jury at the Saratoga Trial Term.
    On the 15th day of May, 1904, at a sheriff’s sale held by virtue of an execution issued against one Stephen E. Ehodes in an action in which the defendant in this action was the plaintiff, the defendant in this action purchased all the right, title and interest which said Stephen E- Ehodes had in lot 70, the east half of lot 71, and lots 108 and 109 in Benson township in the county of Hamilton, and on the 10th day of February, 1896, took a deed from the sheriff therefor.
    On the ,13th day of January, 1902, the defendant and his wife conveyed said lands so described in the deed from the sheriff to the plaintiff John W. Olmstead, and said defendant ■ by said deed covenanted that the grantor should quietly enjoy the said premises and that he would forever warrant the title thereto. The plaintiff, soon after taking said deed, ascertained that the State of New York claimed to be the owner of lot 109, and he demanded of the defendant the- repayment of $400, which was his estimate of the value of lot 109. The defendant offered to return to the plaintiff $1,100 if he would reconvey to him all the lots, as described in said deed, within ten. days. No reply was made to such offer. The plaintiff was not then aware that there was an outstanding dower interest in said lots. On the. 26th day of Hay, 1903, one Sarah E. Rhodes, alleging that she was the widow of one Thomas J. Rhodes, the grantor of said judgment debtor Stephen E, Rhodes, brought an action against the plaintiff in this action, claiming dower in said lots and demanding that her said dower be admeasured.
    On the 2d, day of June, .1903, the .plaintiff served upon the' defendant a copy of the summons and complaint received from said Rhodes, with a notice, in which he said: “I hereby-request you to defend said action at your own expense and cost, for if I am liable at all it is only secondarily, you being primarily liable, and that I claim to be indemnified and held harmless by you.” No response was made to this notice, and issue was joined in the action brought by' Rhodes by the service of an answer on behalf of the plaintiff in this action. The plaintiff Rhodes in her action duly filed a consent to accept a gross sum in full settlement and discharge of her right of dower in said lots, but no application for leave to pay the same was made, and a trial of the issues was had, and the court found that the plaintiff was entitled to dower in said lot 70, the east half of lot 71, and in said lot 108, but that said lot 109 was not owned by said Thomas J. Rhodes in his lifetime, and that the plaintiff in that action was not entitled to dower therein. The court found "that a distinct parcel of the real property could not be admeasured and laid off, and directed a sale of the ^eal property. A sale was had under the interlocutory judgment and the lots were purchased by one HcCuen. From the proceeds of sale, which was confirmed by the court, the costs, fees and gross sum in satisfaction of plaintiff’s dower were paid, and there remained $14.09, which was paid over to the plaintiff in this action. The present action was commenced to recover damages for said breach of the covenants contained in the defendant’s deed, and the court has found that the plaintiff is entitled to recover the full amount of the purchase price of said lots, together with interest and costs, amounting in all to $1,549.84, less $14.09 received by the defendant on the sale of said lots. It is from the judgment entered upon such findings that this appeal is taken.
    
      Nash Rockwood, for the appellant.
    
      Fred Linus Carroll, for the respondent.
   Chase, J.:

Where the title to a divided part of real property conveyed with covenants of warranty and quiet enjoyment fails and the grantee is evicted therefrom, the covenantor is liable on the covenants of warranty and quiet enjoyment to the extent only of that proportion of the whole purchase price that the value of the part to which the title has failed bears to the value- of all the property sold. (Sweet v. Howell, 96 App. Div. 45.) The covenantor on the failure of the title of a divided part of the premises sold cannot as matter of right demand the reconveyance of the real property on tendering back the amount paid therefor. The payment for said lots was $1,100 and interest thereon from a time prior thereto, when the contract for the conveyance of said lots was first made, making the total payment $1,183.30, while the offer of the defendant to repay to the plaintiff the purchase price of said lots was limited to $1,100, without including therein the interest added thereto from a time prior to the conveyance by him or interest thereon subsequent to the conveyance. The offer, was insufficient, even if the plaintiff was willing to reconvey the lands so as to leave each of the parties to the conveyance in the same position that he was in before the sale ; but the plaintiff may have preferred to keep the lots other than lot 109,- and if the failure of title did not apply to all of said lots, he had a right to retain the lots to which title was found to be good and ask the defendant to repay him under the covenant of warranty and quiet enjoyment that part of the purchase price applicable to lot 109 as stated. ■ Ho bad faith is shown in the conduct of the action, by said.Rhodes to recover her dower or in the sale'pursuant to the interlocutory judgment in that'.action ; and in the absence of bad faith the defendant is bound by the proceedings and judgment in that action so far as he had'notice thereof by the complaint, a copy of which was served upon him by the plaintiff in this action. It'was necessary in the action for'dower to>determine to what extent the plaintiff therein was entitled to dower in the property, if at-allj and the'plaintiff in this action was justified in defending said action and in submitting to the court every’question relating 'to the allegations of her complaint, particularly in view of the fact, that the defendant’s attorney herein had served upon-the plaintiff a notice saying, among 'other things, that the defendant felt “ compelled to say that he will be reluctantly compelled to defend himself against any action you may bring against-him.”

Plaintiff could not have settled with Rhodes, before judgment in ' -her action without being' compelled to establish at his peril the ■ necessity therefor in any action that he might bring against the • defendant upon the covenants ■ in said deed, • After the .notice served by plaintiff on the defendant to defend the Rhodes action, it was as much the duty of the defendant as of the plaintiff to take «advantage of the offer made by her to accept a gross" sum in payment of her dower and have the same ascertained and paid in advance of the interlocutory judgment-apd the sale in that action. On the-trial the plaintiff did not rely upon the finding in the Rhodes action that the defendant did not have title to lot. 109 when he conveyed it to the plaintiff, but he gave other evidence from which the court-could and did find that the State of blew York had paramount « « legal title -thereto and possession thereof. The plaintiff having been-evicted from said lot 70, the- east half- of lot 71, and lot 108, and the State of blew York being in', possession- of lot 109 under -paramount title to that of the plaintiff, the judgment against the defendant for,the purchase price paid by ■ him for said lots,, with , interest and certain costs in the action for dower, must be affirmed unless some error was committed on-the trial,

Defendant claims that it was error for 'the court to allow testiVmóny as to the value of lot 10.9 and that the testimony .should have been confined to--questions relating to the proportion which the value of that lot bears to the value of all the lots conveyed, Defendant’s objections to the questions relating to the value of such lots were so general that we do not think the trial court was fairly apprised of the defendant’s claim as to such evidence. As we have seen, judgment was rendered for the full amount of the purchase price of all the lots less the fourteen dollars and nine cents; consequently the evidence relating to the value of lot 109 did not affect the conclusions of the court except in the computation of interest. The judgment herein should not be reversed by reason of the rulings relating to such evidence.

The defendant insists that McCuen' in purchasing-the lots at the sale in the Bhodes action acted for the plaintiff and that the plaintiff is the equitable owner thereof. The action was tried before the court without a jury and it was found against the defendant’s contention, and -we do not think that the findings of the trial court relating thereto are against the weight of evidence or that there are any errors in the admission or rejection of testimony relating to plaintiff’s alleged equitable ownership in said lots of sufficient importance to reverse the judgment.

The judgment should be affirmed, with costs.

Judgment unanimously affirmed* with costs. '  