This action was upon a covenant of warranty in a deed made by plaintiff in error, to ¥m. A. Whiting and Joel P. Whitney, plaintiffs, in the court below. At the time the deed was made, the premises were in possession of one Goodfellow, a tenant, who subsequently attorned to the grantees in the deed. This tenant admitted Mrs. Dougherty to the possession of the premises, and she held them at the time this suit was brought, as the widow of Michael J. Dougherty from whom Tierney also derived title under a sale made by an administrator. Whether the entry thus made by permission of the tenant, Good fellow, may be regarded as an eviction under the statute of 1861 (1st Sess. 65), which will support the action of covenant broken, is the first question to be determined. That section provides that no right of action shall exist upon a covenant of warranty against a warrantor until party menacing the possession of the grantee, his heirs, personal representatives or assigns shall have commenced legal proceedings to obtain possession of tbe premises in question, and the grantor, after notice, shall have refused to defend, at his own cost, the premises in such action. This is opposed to the general rule recognized by the courts, which allows the covenantee to surrender the premises to the holder of the paramount title before suit brought. Rawle on Cov. 246; Kelly v. Platte, 33 N. J. Law, 328. It will be observed, however, that the act does not apply, when possession is not obtained under the deed, for in such case the adverse possession of *623another is regarded as an eviction at the date of the grant. Noonan v. Lee, 2 Black. 500. In the Revised Statutes of 1868 (R. S. 108), this section was restricted in its operation to cases in which possession of the premises conveyed, is obtained by the warrantee, a change of phraseology which is without effect upon the meaning of the section as originally adopted, for if the grantee has not the possession of the premises conveyed, he cannot be menanced in the possession, nor can legal proceedings be instituted against him in respect thereto.
The case is not different when the holder of the adverse title has, by any means, obtained possession of the premises, although subsequently to the date of the deed on which the action is brought. So long as the premises are held adversely, and the covenantee has not possession, no action can be brought against him, and, therefore, he is not within the terms of the statute. Where the grantee holds possession of the premises conveyed, he cannot voluntarily yield to the paramount title, but if he is actually evicted, although under circumstances which would enable him to regain possession, no reason is perceived for denying his right of action upon the covenant of warranty. To hold that in such case, he must resort to his action, and having recovered possession, wait until suit shall be brought against him upon the paramount title, is not demanded by the statute, or sanctioned by reason. Probably the plaintiffs below might have recovered the possession of the premises from Mrs. Dougherty in an action of unlawful detainer, for as she obtained possession from Goodfellow, she was estopped to deny the title by which he held. 2 Smith’s L. C. 694-778, Dutchess of Kingston’s Case. Nevertheless, the plaintiffs below, having lost the possession of the premises, without fault or negligence, may be regarded as actually evicted therefrom, and therefore not within the terms of the statute. It is not, however, enough that they were ejected from the premises if Mrs. Dougherty’s title is not superior to theirs, for the warrantor is not bound to defend against all trespassers, but such only as are protected by title paramount.
*624In argument it is assumed that she claimed a dower interest in the premises, or that she had a right to occupy them until her dower should be assigned under section 23 of the act of 1861, concerning dower (1st Sess. 367); but of this we cannot be quite certain, for by another act (1st Sess. 153) she was entitled to the whole of her deceased husband’s estate if there were no children of the marriage and the husband died intestate; or, if there were children, she was entitled to one-half his estate. Whether she had elected to take what would come to her under this statute after paying the debts of the estate, or to have dower under the other act (1 Sess. 363), we are not informed by the record, nor is it necessary to determine as the controversy now stands. Plaintiffs below assumed the burden of showing that Mrs. Dougherty’s title was better than their own (Pawle on Covenants, 248), and as real estate might be sold for the purpose of paying debts of the decedent (1 Sess. 427; 2d Sess. 97), upon the showing here made we will presume that the administrator’s proceedings were regular, and regard his deed as sufficient to vest title to the property in plaintiff in error. This, upon the assumption that the widow claimed under the act relating to married women (1 Sess. 153), would extinguish her right, but if counsel are correct in supposing that she had a dower interest, the case is somewhat different. It is very doubtful whether a possession lawfully assumed in virtue of the right of temporary occupancy given to the widow (1 Sess. 367) can affect the title to the estate so as to enable the party ousted to call upon his warrantor to defend it; but, however this may be, it was not shown upon the trial that the house and lot in controversy was the usual dwelling place of Dougherty next before his death. Dougherty was not living in the house at the time of his death, nor had he lived there at any time within nine months previous to his death, and his widow did not claim the possession until more than nine months after his death, a period long enough to obtain an assignment of dower if that had been desired. Upon these facts it is manifest that the claim to occupy temporarily, until dower should be *625assigned, is an after-thought, invented to justify and support the unlawful possession of the widow.
As to the claim of dower, conceding that it existed, no right of entry could be based thereon until assignment made. 1 Washb. Real Prop. 255. So that, in any view we may take of the evidence, it is impossible to say that Mrs. Dougherty had title to the premises conveyed in the deed paramount to that of the plaintiffs below, or indeed any title whatever; and, of course, the judgment must for that reason be reversed.
Even if dower had been assigned in the premises, and the plaintiffs below had established the widow’s right, the correct rule as to the measure of damages was not applied. In such case it is not the entire consideration mentioned in the deed, but only the value of the widow’s life interest in the estate, estimated by the purchase-money, that can be properly allowed. Terry v. Drabenstadt, 68 Penn. St. 400.
The judgment of the district court is reversed with costs, and the cause is remanded for further proceedings.
Reversed.