Opinion by
Morrison, J.,
This is a joint action in assumpsit against the two personal [273]*273representatives of the estates of Michael J. Moore, deceased, and Thomas P. Moore, deceased, and Emma D. Moore, and resulted in a judgment against the personal representatives, and in favor of Emma D. Moore non obstante veredicto.
The plaintiff, Cunningham, alleged an eviction from the one undivided sixth of a house and lot which he held under a deed of general warranty, dated August 9, 1886, from Michael J. Moore and Thomas P. Moore to Lizzie Chambers, and deed dated August 5, 1895, from Lizzie Chambers and her husband to plaintiff. It is conceded that Lizzie Chambers and Cunningham have had peaceable possession of the whole of the sa.id house and lot, conveyed as above stated, from August, 1886 till the bringing of this suit. Michael J. Moore died testate March 18, 1908, and Eli S. Reinhold duly qualified as administrator c. t. a. of his estate. Thomas P. Moore died testate on March 18, 1898, and his widow, Emma D. Moore, qualified as executrix of his last will and testament.
On May 4, 1903, the orphans’ court of Schuylkill county, upon petition of Mrs. Mary Sandman, awarded an inquest in partition of a tract of land in Mahanoy City consisting of four contiguous residence properties, one of which was the premises in possession of and claimed by Cunningham as grantee of Lizzie Chambers and husband, under the deed above mentioned. Said petition alleged that Mary Sandman, Thomas Groody, John Groody and Margaret Groody were together entitled to an undivided one-sixth in said four properties, as the grandchildren of Margaret Curry, deceased, a former owner of said premises.
Exceptions to the return made to the inquest were filed by counsel for Cunningham et al., and on August 10, 1903, the exceptions were dismissed by the court and the return confirmed, and on October 12, 1903, said confirmation was made absolute and a rule granted upon parties interested to come into court and accept or refuse to take at the values returned. On January 4, 1904, an attorney for Mary Sandman filed an offer to take all of the property described in the writ of partition for $5,000, a price greater than the value returned. On April 4,1904, the attorney for Mary Sandman made and signed a written transfer and assignment of the above offer and all right, title and interest of Mary Sandman to said real estate to [274]*274John F. Whelan, who was not an heir of Margaret Curry, deceased, nor an owner of any interest in the premises involved in the partition proceedings. This assignment was not under seal, not acknowledged, not signed by the husband of Mary Sandman nor by anyone for him. It was signed by Charles N. Brumm, attorney for Mary Sandman. There is no evidence in the orphans’ court record that Brumm had any written authority to sell and convey Mary Sandman’s interest in the land. On January 19, 1904, the orphans’ court adjudged unto John F. Whelan, his heirs and assigns, as of April 4, 1904, all of said real estate. On December 17,1904, John F. Whelan executed and delivered to John J. Cunningham a deed for all of Whelan’s right, title and interest in and to the premises in possession of and claimed by Cunningham.
The defendants and their counsel had personal knowledge of the pendency of the partition proceedings, but they were not legally made parties thereto and they did' not participate therein.
Based upon the above facts the present suit was brought to recover jointly against the several parties named as defendants for the money which Cunningham claimed to have expended in acquiring the title to the said one-sixth interest in the said house and lot.
The first question natural^ arising is, can this joint action be maintained against the personal representatives of Michael J. Moore and Thomas P. Moore, deceased? This question would seem to be adversely settled, as to the plaintiff, at common law. One of the Moores died several years prior to the death of the other one. It seems at common law that the first decedent was released and the right of action on the warranty remained against the survivor and he became liable for a breach of the warranty in their joint deed. In the case of joint contractors, if one of the parties die his executor or administrator is at law discharged from liability and the survivor alone can be sued: Chitty on Pleading, vol. 1, star p. 50, and notes; Weaver and another v. Shrycock, exr., 6 S. & R. 262; Githers et al. v. Clarke et al., 158 Pa. 616. It seems that death severed the joinder and we have been referred to no statute or authority in Pennsylvania to warrant suing the personal representatives of the deceased warrantors jointly. The learned court below [275]*275granted judgment in favor of Emma D. Moore personally, nonobstante veredicto.
The learned counsel for the plaintiff, at the close of the evidence, presented to the court six written points, each of which was answered as follows: “ These requests are affirmed but the court reserves the question whether there is any evidence which entitles the plaintiff to recover.” These six points give rise to the second, third, fourth, fifth, sixth and seventh assignments of error. By granting judgment upon the verdict the court, in effect, affirmed each of these points unqualifiedly. In our opinion, these assignments of error must be sustained for reasons that will be given in discussing the ninth assignment.
The first assignment raises the question of the power of the court to give a binding instruction in favor of the plaintiff and to direct the amount of the verdict. We think this assignment must be sustained as the charge of the court does not give the correct rule of damages for a breach of warranty, and, second, because we will endeavor to show further along that the plaintiff was not entitled to recover at all. But, the correct measure of damages would be one-sixth of the purchase money paid by Cunningham, with interest thereon, provided the property was unimproved and he received no benefit from the possession and use thereof. In the present case, the property was improved and the plaintiff had been in the peaceable possession of it all the time, and the court could not give a binding instruction to the jury to take the one-sixth of the purchase money and add interest thereto regardless of possession, use, improvements and the liability of the plaintiff for mesne profits : Tyson v. Eyrick, 141 Pa. 296. Moreover, it appears that the court actually instructed the jury to find for the plaintiff the amount of money expended by Cunningham in the partition proceedings and in securing the conveyance from Whelan. This was not the correct measure of damages : Bender v. Fromberger, 4 Dallas, 436; Brown v. Dickerson, 12 Pa. 372; Terry v. Drabenstadt, 68 Pa. 400 ; Doyle v. Brundred, 189 Pa. 113, and Tyson v. Eyrick, 141 Pa. 296. It should be noted that there was no allegation of fraud to change the measure of damages from the purchase money and interest. What we have said in regard to the measure of damages is not very important in this case because we will attempt to show further along that [276]*276the plaintiff was not entitled to go to the jury at all, as he failed to show that he had ever been evicted.
The eighth assignment: “ The court erred in answering defendant’s point, which point and answer were as follows : Under all the evidence the verdict of the jury must be for the defendants. Ans:
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Opinion by
Morrison, J.,
This is a joint action in assumpsit against the two personal [273]*273representatives of the estates of Michael J. Moore, deceased, and Thomas P. Moore, deceased, and Emma D. Moore, and resulted in a judgment against the personal representatives, and in favor of Emma D. Moore non obstante veredicto.
The plaintiff, Cunningham, alleged an eviction from the one undivided sixth of a house and lot which he held under a deed of general warranty, dated August 9, 1886, from Michael J. Moore and Thomas P. Moore to Lizzie Chambers, and deed dated August 5, 1895, from Lizzie Chambers and her husband to plaintiff. It is conceded that Lizzie Chambers and Cunningham have had peaceable possession of the whole of the sa.id house and lot, conveyed as above stated, from August, 1886 till the bringing of this suit. Michael J. Moore died testate March 18, 1908, and Eli S. Reinhold duly qualified as administrator c. t. a. of his estate. Thomas P. Moore died testate on March 18, 1898, and his widow, Emma D. Moore, qualified as executrix of his last will and testament.
On May 4, 1903, the orphans’ court of Schuylkill county, upon petition of Mrs. Mary Sandman, awarded an inquest in partition of a tract of land in Mahanoy City consisting of four contiguous residence properties, one of which was the premises in possession of and claimed by Cunningham as grantee of Lizzie Chambers and husband, under the deed above mentioned. Said petition alleged that Mary Sandman, Thomas Groody, John Groody and Margaret Groody were together entitled to an undivided one-sixth in said four properties, as the grandchildren of Margaret Curry, deceased, a former owner of said premises.
Exceptions to the return made to the inquest were filed by counsel for Cunningham et al., and on August 10, 1903, the exceptions were dismissed by the court and the return confirmed, and on October 12, 1903, said confirmation was made absolute and a rule granted upon parties interested to come into court and accept or refuse to take at the values returned. On January 4, 1904, an attorney for Mary Sandman filed an offer to take all of the property described in the writ of partition for $5,000, a price greater than the value returned. On April 4,1904, the attorney for Mary Sandman made and signed a written transfer and assignment of the above offer and all right, title and interest of Mary Sandman to said real estate to [274]*274John F. Whelan, who was not an heir of Margaret Curry, deceased, nor an owner of any interest in the premises involved in the partition proceedings. This assignment was not under seal, not acknowledged, not signed by the husband of Mary Sandman nor by anyone for him. It was signed by Charles N. Brumm, attorney for Mary Sandman. There is no evidence in the orphans’ court record that Brumm had any written authority to sell and convey Mary Sandman’s interest in the land. On January 19, 1904, the orphans’ court adjudged unto John F. Whelan, his heirs and assigns, as of April 4, 1904, all of said real estate. On December 17,1904, John F. Whelan executed and delivered to John J. Cunningham a deed for all of Whelan’s right, title and interest in and to the premises in possession of and claimed by Cunningham.
The defendants and their counsel had personal knowledge of the pendency of the partition proceedings, but they were not legally made parties thereto and they did' not participate therein.
Based upon the above facts the present suit was brought to recover jointly against the several parties named as defendants for the money which Cunningham claimed to have expended in acquiring the title to the said one-sixth interest in the said house and lot.
The first question natural^ arising is, can this joint action be maintained against the personal representatives of Michael J. Moore and Thomas P. Moore, deceased? This question would seem to be adversely settled, as to the plaintiff, at common law. One of the Moores died several years prior to the death of the other one. It seems at common law that the first decedent was released and the right of action on the warranty remained against the survivor and he became liable for a breach of the warranty in their joint deed. In the case of joint contractors, if one of the parties die his executor or administrator is at law discharged from liability and the survivor alone can be sued: Chitty on Pleading, vol. 1, star p. 50, and notes; Weaver and another v. Shrycock, exr., 6 S. & R. 262; Githers et al. v. Clarke et al., 158 Pa. 616. It seems that death severed the joinder and we have been referred to no statute or authority in Pennsylvania to warrant suing the personal representatives of the deceased warrantors jointly. The learned court below [275]*275granted judgment in favor of Emma D. Moore personally, nonobstante veredicto.
The learned counsel for the plaintiff, at the close of the evidence, presented to the court six written points, each of which was answered as follows: “ These requests are affirmed but the court reserves the question whether there is any evidence which entitles the plaintiff to recover.” These six points give rise to the second, third, fourth, fifth, sixth and seventh assignments of error. By granting judgment upon the verdict the court, in effect, affirmed each of these points unqualifiedly. In our opinion, these assignments of error must be sustained for reasons that will be given in discussing the ninth assignment.
The first assignment raises the question of the power of the court to give a binding instruction in favor of the plaintiff and to direct the amount of the verdict. We think this assignment must be sustained as the charge of the court does not give the correct rule of damages for a breach of warranty, and, second, because we will endeavor to show further along that the plaintiff was not entitled to recover at all. But, the correct measure of damages would be one-sixth of the purchase money paid by Cunningham, with interest thereon, provided the property was unimproved and he received no benefit from the possession and use thereof. In the present case, the property was improved and the plaintiff had been in the peaceable possession of it all the time, and the court could not give a binding instruction to the jury to take the one-sixth of the purchase money and add interest thereto regardless of possession, use, improvements and the liability of the plaintiff for mesne profits : Tyson v. Eyrick, 141 Pa. 296. Moreover, it appears that the court actually instructed the jury to find for the plaintiff the amount of money expended by Cunningham in the partition proceedings and in securing the conveyance from Whelan. This was not the correct measure of damages : Bender v. Fromberger, 4 Dallas, 436; Brown v. Dickerson, 12 Pa. 372; Terry v. Drabenstadt, 68 Pa. 400 ; Doyle v. Brundred, 189 Pa. 113, and Tyson v. Eyrick, 141 Pa. 296. It should be noted that there was no allegation of fraud to change the measure of damages from the purchase money and interest. What we have said in regard to the measure of damages is not very important in this case because we will attempt to show further along that [276]*276the plaintiff was not entitled to go to the jury at all, as he failed to show that he had ever been evicted.
The eighth assignment: “ The court erred in answering defendant’s point, which point and answer were as follows : Under all the evidence the verdict of the jury must be for the defendants. Ans: This requestis refused, but the court reserves the question whether there is any evidence under which plaintiff is entitled to recover.” By subsequently granting judgment against the defendants the court, in effect, unqualifiedly refused this point. In this we think there was error. In our opinion, this point ought to have been affirmed, because there was no binding judgment or decree sufficient to amount to an eviction of the plaintiff, either actual or constructive. He and his grantor had been in the quiet and peaceable possession of the land in question, under a deed purporting to convey it all, from August 9, 1886, and he was not evicted and there was no valid decree of the orphans’ court upon which he could have been evicted, because there is not found in the record of that court any evidence of a paramount title in Mrs. Mary Sandman, except her ex parte averment in the petition for partition of tbe land where she alleged it had belonged to her grandmother. Moreover, as has already been said, if she had shown title to one-sixth of the lot in question, the plaintiff did not acquire that title by the assignment of April 4, 1904, by C. N. Brumm. as her attorney, and, therefore, the plaintiff was not warranted in paying the money claimed in this suit for the conveyance to him by Whelan, under the Brumm assignment. If Mary Sandman had a paramount title to that of the plaintiff, she has it yet so far as the orphans’ court record- shows, unless she is estopped from setting it up. There is nothing in the record to take Brumm’s assignment out of the statute of frauds: Act of March 21, 1772, 1 Sm. Laws, 389; Right v. Mifflin, 2 Yeates, 38; Lewis v. Bradford, 10 Watts, 67.
The ninth assignment is based on the admission of the partition record in the orphans’ court, on the petition of Mary Sandman. This whole record was offered, and objected to by defendants’ counsel as incompetent, irrelevant and immaterial. The court overruled the objection, admitted the offer, granted an exception and sealed a bill for defendants. This assignment really raises the most important as well as the controlling ques[277]*277tion in the case. In onr opinion it must be sustained, and it requires a reversal of the judgment without a new venire. If Cunningham intended to look to the warranty in the deed from the Moores it was, clearly his duty, in any action looking to an eviction as to the whole or any interest in the land described in the Moore deed,, to set up his deed, purporting to convey the whole of the property, and the possession of his grantors and himself ever since 1886, and deny the right of Mary Sandman to have partition made of this land, on the ground that she had no possession and no title. If this defense had been interposed, at the proper time, in the partition case, the .orphans’ court could lawfully have gone no further in the partition proceedings until Mary Sandman went into the common pleas and in an action of ejectment established her title to an interest in the land claimed by Cunningham. But Cunningham did not do this, and he cannot now be heard to say that the decree of the orphans’ court was equivalent to,an eviction, and that he can sue the personal representatives of the deceased Moores, jointly or otherwise, and recover the money that he foolishly invested on- the strength of the decree of the orphans’ court.
The effect of a deed of partition is not to alter the titles of the parties, but to designate the boundaries : Goundie v. Water Co., 7 Pa. 233. A judgment in partition does not decide title, or create new title: McClure et al. v. McClure, 14 Pa. 134; Perrine v. Kohr, 205 , Pa. 602. A covenant of warranty is a covenant against rightful eviction. To maintain an action for breach of it, an eviction must be laid and proved. There must be proof, at the least, of an involuntary loss of the possession: Wilson v. Cochran, 46 Pa. 229; Sager v. Patterson, 15 Pa. Superior Ct. 147. To entitle a grantee to recover for a breach of warranty, there must be an eviction by title paramount: McGrew v. Harmon, 164 Pa. 115.
That the orphans’ court could not have gone to a final decree in partition if Cunningham had set up his title and possession and denied Mary Sandman’s title, until she had established a paramount title in ejectment in the common pleas, is established by numerous cases. See Trickett on Law of Partition in Penna., pp.. 31, 32.; McMasters v. Carothers, 1 Pa. 324; Mehaffy v. Dobbs., 9 Watts, 363.
[278]*278The tenth assignment is, in substance, that the court erred in directing judgment in favor of the plaintiff on the point reserved, quoting it. It follows from what has been already said that this assignment must be sustained.
Counsel for plaintiff contends, that this action could be maintained without showing that plaintiff had been evicted from this one-sixth interest, for the reason that plaintiff had a good title to five-sixths of the land and he could not be put out of possession. The answer to this is twofold : First, the plaintiff cannot recover for a breach of the warranty without showing that there had been a recovery against him on a paramount title. This is not shown by the orphans’ court record or otherwise. Second, if Mary Sandman had recovered a final judgment in ejectment, in the common pleas, for the one-sixth of plaintiff’s land, she could have been put into legal possession of that interest, with the plaintiff, on a writ of habere facias possessionem. And this would undoubtedly be a sufficient loss of possession by a paramount title to permit plaintiff to recover on the warranty.
It is contended that the defendants are concluded by their failure to appear and defend in the partition case. How could they do this? The grantors, the Moores, were both dead. Their representatives claim no interest in the land in question. They were not parties to the partition proceeding, and they had a right to assume that the orphans’ court would not undertake to try and settle disputed titles and rights of possession of real estate in a partition proceeding.
Judgment reversed.