Epitomized Opinion

This was an action brought by the executor of Susan Cross to recover the balance due on certain notes In 1915 one Hamilton Cross died intestate, leaving his undivided one-ha.f interest in 102 acres of lana to his wile, Susan. The one-quarter interest came to him by devise and the other one-quarter came to him by purchase, hence his widow fell heir to the lee simple estate m the undivided one-quarter interest and' a life estate in the other one-quarter interest. Later the wiaow sold the fee simple of the entire undivided one-half interest to one Wolpert lor $5,000. A portion of the purchase price was paid by note, secured by mortgage, m i9xY the executor of Susan Cross brought this action on a note for the remaining $2,000 of the purchase price. Wolpert’s executor set up a breach of warranty. The trial court rendered judgment lor each party. In 1916 one of the brothers of Hamilton Cross brought a partition suit, claiming to be the owner of an undivided one-ouarter interest of his deceased brother’s estate. The trial court found in favor of the brother. After this decree, the “-rantee of Susan Cross joined with the other tenants in common, in a conveyance to a stranger. In sustaining the judgment of the lower court in regard to defendant’s right to recover the judgment given her by the trial court lor breach of warranty, the Court of Appeals held:

1. As the partition suit was equivalent to an eviction, the defendant was entitled to, damages for the breach of the covenant in the deed from Susan Cross to defendant.