The opinion of the Court was delivered by
Wright, A. J.The clause of general warranty usually inserted in conveyances of real estate in this State, following the form prescribed by the Act of 1795, (5 Stat., 255,) among other covenants, includes one for quiet enjoyment by the vendee, his heirs and assigns.—Jeter vs. Glenn, 9 Rich., 374.
Such is the deed of Cunningham to Welsh. It is not disputed,, on the part of the appellant, that it was broken, but it is insisted that the claim of dower worked a breach of the covenant of seizin, which became absolute on the death of Massey, the husband, and the action of the respondent is, therefore, barred by the Statute of Limitations.
The appellant further insists that, even conceding that there was a breach of the covenant for quiet-enjoyment, the statute commenced to run on the 29th June, 1867, when the writ for the admeasurement of dower was ordered by the Court. A general warranty of title has the effect of a special warranty of seizin, and, therefore, an action may be maintained before eviction, if the vendor has no title at the time of sale. But where the warranty constitutes a covenant for quiet enjoyment only, then the statute will not commence to run until eviction.—Johnson vs. Veal, 3 McC., 449.
In Jeter vs. Glenn, 9 Rich., 374, it was held that the general warranty, in the form of conveyance prescribed by the Act of 1795, includes a contingent right of dower. In Lewis vs. Lewis, 5 Rich., 12, it was held that where dower is claimed and assigned, or the value thereof assessed, the covenant for quiet enjoyment contained in the deed of conveyance is broken.
It is true, in general, that to constitute a breach of covenant for quiet enjoyment there must be an actual entry and ouster; where, as in this State, however, there is a claim of dower, it may be satisfied without an allotment by metes and bounds of one third of the land for the life-time of the widow, and, therefore, actual entry or ouster is not required before such covenant may be said to be broken. In fact, the demandant in dower does not rest on an adverse and independant title for its recovery, but founds her right on the assumption that the defendant is in possession by and through the seizin of the husband, during his coverture with her. The order, as in this case, confirming the right of the widow, and decreeing for her a certain amount of money, in compensation for *408and in lieu of her dower in the premises, established in her behalf a money decree, which, while it gave no right of entry, could be enforced against all the property of defendant. It is in vain to contend that the allowance of the writ, under order of January 29th, 1867, “ was fully equivalent to eviction, and that the Statute of Limitations then commenced to run.” So far from an assignment of her one third being conferred by the order, it did no more than to require the Commissioner, to whom it was directed, to allow by metes and bounds one third of the land, and in the event that could not be done, without manifest disadvantage, then to assess one sixth of the whole value of the land, to be paid the widow, in lieu of her dower.
Until the return was confirmed, it gave no right to the demandant which she could enforce, and, in point of fact, exception was taken to the return, and sustained. The final order of confirmation was made June 27th, 1868, and the summons in this action was served on April 29th, 1872.
We do not propose to decide whether the statute only commenced to run from the day of the payment of the amount decreed in favor of the widow, for, whether it commenced to run from the date of the decree or day of its payment,- in neither event was the lapse of time sufficient to bar the action.
The third exception, too, cannot be sustained. The damages to which the respondent here was entitled for the breach of the warranty was the amount of the full recovery of the widow against him. That included the sum found to be due, as well for rents and profits and the costs as for the sum assessed in lieu of the dower.
This was all-recovered by the widow in her suit against him, and this he is entitled to reclaim from the appellant on his breach of warranty.
The motion is dismissed.
Moses, G. J., and Willard, A. J., concurred.