delivered the opinion of the court.
Robert S. Todd sold, in his lifetime, a tract of land in Fayette county, which belonged to his wife, who joined with him in executing the deed. As however the clerk’s certificate of its acknowledgment by her was defective, her title to the land did not pass to the purchasers, but upon her death descended .to her children and heirs at law. They, after the death of their father, brought an action for it against the purchasers, but failed to recover it on the ground that they had received assets by descent fromtheir father to the full value of the land which he had sold and conveyed, and the title to which he had warranted to the purchasers. (1 stvol. Stat. law, 110.)
Robert S. Todd had been twice married, and had children by each marriage. He died intestate. The land referred to belonged to- his first wife, and her children having, as mentioned, failed to recover it from the purchasers, brought this action against the the personal representative and the other heirs of their father, and insist, that as they have lost the land by the warranty of their ancestor they should be indemnified out of his estate for the loss they have sustained, being the full value of the land, whereby the loss would devolve upon all, instead of a part of his heirs.
*164Their right to recover is denied upon the ground that they have been already indemnified out of the estate of their warranting ancestor for any loss they have sustained; and upon the further ground that the sale of the land was made at the instance and with the approbation of their mother, and the proceeds appropriated to the improvement of some ground in the city of Lexington, that belonged to her, of which they have received the exclusive benefit since their father’s death.
The court beiow decided that the plaintiffs were entitled to the full value of the land thus sold and conveyed by their father, and rendered a judgment against his personal representative for that amount, after deducting therefrom the enhanced value of the ground in the city of Lexington, produced by the improvements which had been placed upon it by him in his lifetime. From that judgment the defendants have appealed to this court.
It is difficult to discover the precise principle upon which the plaintiffs’ cause of action is based. If itbe saidthatthe plaintiffs, by the act of their father, have been deprived of a tract of land, to which they were entitled by descent from their mother, and therefore have a right to be remunerated out of his estate, to the extent of the loss they have thus sustained, the obvious answer is, that they have already received remuneration from his estate, and it was upon that ground alone that his warranty was available against them, and they were precluded from recovering the land which had been sold by him in his lifetime.
But it may be said that their ancestor’s covenant of warranty has been satisfied exclusively out of their part of the estate, and as it was a general charge upon the whole estate, they have a right, in equity, to have it thus applied, and thereby distribute the loss ratably among all the heirs.
In answer to this view, it has been urged that the covenant of warranty has not been broken, conse*165quently no charge upon the estate has been created; and that there is no example in any of the books of an action like the present, although an occasion for it must frequently have arisen, especially’1 between the heir and the executor, and therefore the inference is strong that there is no solid foundation for such an action to rest upon.
it is true that there has been no actual breach of the warranty, because it has been satisfied, and a breach prevented by operation of law, by the application of the assets in the hands of the heirs, in satisfaction of the covenant of their ancestor. This effect is produced by way of rebutter, and the principle upon which it is founded is the desire to prevent the circuity of action which would arise if the heirs, having assets by descent, were allowed to regain possession of the land, as they would immediately be obliged, by means of the covenant of warranty, to recompense the purchaser for the injury he had sustained by the eviction.
Looking then to the reason of the law, and the object it was designed to accomplish, it is evident that this defense allowed the purchaser, and which operated by way of rebutter, should in equity be regarded as a substantial breach of the warranty, and as a satisfaction thereof made by the plaintiffs. And as they have discharged a liability which by law was a charge upon the whole estate, they have a right to have it thus applied, so that the loss will devolve equally upon all the heirs. With respect to the argument drawn, from the absence in the books of any analogous cases, it is only necessary to remark, that the doctrine of the common law on the subject of warranty and of descents vims of such a character as to prevent cases like the present from arising; and in nearly all of the other states in the union the ancestor’s warranty, in cases like this one, does not have the effect of precluding a recovery of the land by the heirs of his wife, and consequently no such *166question as the one here presented can- arise in those states.
1. The ancestor sold land the inheritance of the wife, she uniting in the deed, bus her acknowledgment being_ineffectual to pass the inheritance, after her death the children of the wife sued for the land, but failing to recover,on the ground that they had received estate of the father by descent equal to the value of the land, this suit is brought against the administrator of the father and his children by a second wife to recover the value of the land. Held, that the plaintiffs had a right to recover the value of the land sold, at the time it was conveyed by their father,out of his entire estate, with interest from the death of the father. 2. But if the value of the land sold, or part thereof,was used by the father increasing the value of other lands which had descended to the plaintiffs, whereby they received the benefit of the proceeds of the land sold by the father, such outlay should be credited on the demand.*166The extent of the plaintiff’s right, however, under their ancestor’s covenant of warranty, cannot exceed the amount of the liability which was imposed on his estate by a breach of it. The value of the land at the time of the sale, and not at the time of the eviction, is the amount of that liability. That value, with interest thereon from the death of their father, is all that the plaintiffs have a right to, as they were not entitled to the possession of the land until that time. Their right of action is founded1 alone upon the warranty of their ancestor; it cannot be maintained upon any other ground, and consequently the right of recovery upon a breach of the warranty regulates and determines the extent of the relief to which they are- entitled.
It is not necessary to decide, in this action, what amount of assets is required by the statute to bar a recovery by the heir; it may however be remarked, that by the common law the value of the land at the time it was conveyed was the criterion of the damages to which the vendee was entitled for a breach of the warranty; our law fixes the same criterion; and as the statute does n-ot specify the value of the heritage that must descend to the demandant, in order to create the bar, it would seem that it would h-ave to be determined by reference to the law regulating-the liability of the warrantor.
The proof shows that the land in question was sold with the assent of the plaintiffs’ mother, for the purpose of improving the lot of ground which she owned in the city of Lexington; that a sum exceeding the proceeds of the sale was thus applied by her husband, and that the plaintiffs have received the benefit of this expenditure. So far, therefore, as the value of the lot was enhanced by these improvements, they were properly charged with such enhanced value, as an advancement, or if it cannot be regarded as an advancement, they should in equity account for it in *167the adjustment of their present demand against the estate.
The objections made to the decisions of the court below, on the subject of the advancements made to some of the plaintiffs by the intestate, cannot be sustained. The gift of the land to the grand daughter was not an advancement to her mother. The answer of Levi Todd denies the reception of the rents of the house and lot in Lexington, otherwise than as the agent of his father, and states that they were all paid to him. He also denies that his father made any advances to him in money, although he admits that he loaned him money, which he alledges he after-wards repaid him. On this answer he should not, in our opinion, be charged either with the rents or the money loaned. He denies that he received either the rents or the money as advancements. The other matters stated by him were merely explanatory, and all his statements in relation to them should be taken together. There was no attempt to charge him with these sums as debts, or otherwise than as advancements, and he is not chargeable with them as such upon the statements in his answer.
But as the court below allowed the plaintiffs a larger sum than they were entitled to, the judgment is erroneous, and must for this reason be reversed.
Wherefore, the judgment is reversed, and cause remanded for further proceedings and judgment in conformity with this opinion.