Adm'r of John T. Chambers v. Ohio Life Ins. and Trust Co. several instructions which were predicated on what is termed a want of accordance between the specifications and the drawings. It was the right and duty of the court to construe the contract between the defendant and Graveson. With this view, the whole contract, and all parts of it, were to be taken together, and its meaning as to any particular matter ascertained. When that meaning is ascertained, it must govern and control the rights and liabilities of the parties. Upon this subject it has been well said, that, in every case it is always matter of construction to discover what is the sense and meaning of the words employed by the parties in the deed. In some cases that meaning is more clearly expressed, and therefore more easily discovered; in others it is expressed with more obscurity, and discovered with greater difficulty. In some cases it is discovered from one single clause; in others it is only to be made out by the comparison of different, and perhaps distant parts of the same instrument. But after the intention and meaning of the parties is once ascertained, after the agreement is once inferred from the words employed in the instrument, all difficulty which has been encountered in arriving at such meaning, is to be entirely disregarded; the legal effect and operation of the covenant, whether framed in express terms, that is, whether it be an express covenant, or whether the covenant be a matter of inference and argument, is precisely the same; and an implied covenant, in this sense of the term, differs nothing in its operation or legal consequences from an express covenant. 1 C. B. 50 E. C. L. 402-430, Williams v. Burrell; 5 Q. B. 48 E. C. L. 671, Aspdin v. Austin; 6 M. & G. 46 E. C. L. 851, Courtney, et al. v. Taylor. Upon the principal point in controversy in this case, the language of the specifications was explicit and clear. We think there was nothing in the drawings which the court could properly have permitted to alter the plain meaning of that language. It was the duty of the court so to instruct the jury, and a failure to do so would have been an error Andrew McAlpin, et al. v. Edward Woodruff, et al. to the prejudice of the defendant. Upon this point the question of negligence, and responsibility for it, really depended, and having been correctly decided, in our judgment, there is no ground to disturb the verdict; and the motion for a new trial should be overruled. Remanded to overrule the motion for a new trial. ANDREW MCALPIN v. EDWARD WOODRUFF AND JOHN B. PURCELL.JOHN GEYER V. THE SAME. 1. A covenant for peaceable occupation and enjoyment, contained in a lease for ninety-nine years, renewable forever, reserving an annual rent, is broken by the assignment of dower in the premises to the widow of the lessor, specially of a certain portion of the rents, and charged upon the premises. 2. Such an assignment operates as an apportionment of the rents, and is equivalent to an eviction, sufficient to sustain an action by the lessee against the assignee of the reversion, to recover damages for this breach of the covenant; but in such action, the actual recovery will not be measured by the value of the dower charge as an incumbrance, but will be nominal, except so far as may be necessary to compensate the lessee for defending against the dower action, including reasonable counsel fees. 3. The charge of the dower on the premises operates as a release to the lessee of that proportion of rents otherwise payable to the owner of the reversion, and the lessee is thus indemnified for the breach of the covenant for peaceable occupation and enjoyment: but he is entitled to an injunction against the owner of the fee, to prevent the recovery of more than his share of the rent, after deducting the proportion assigned as dower. GENERAL TERM.-These two cases were reserved from special term upon a question as to the measure of damages to be awarded to the plaintiffs, as lessees under a perpetual lease, with warranty, incurred by reason of dower having been recovered, and assigned in rent, in favor of the widow of the lessor. Ketchum & Headington and James & Jackson, for plaintiffs. Edward Woodruff and Edmund Pendleton, for defendants. Andrew McAlpin et al. v. Edward Woodruff, et al. SPENCER, J., delivered the opinion of the court. These two cases have been reserved from special term for the purpose of deciding by what measure of damages the plaintiffs are entitled to recover. As the petitions are precisely alike, it will be sufficient to recite the contents of one only. In the case of Geyer it is averred that Michael P. Cassilly, in his lifetime, by indenture of lease, dated the first of April, 1835, demised to the plaintiff and William Ross, for the term of ninety-nine years, renewable forever, a certain lot, described in the petition, at an annual rent of $230, payable quarterly, besides taxes; and by a certain covenant in said deed contained, did agree with said lessees, "that they should peaceably occupy and enjoy the said premises, during said term, without any lawful interruption of or by the said Cassilly, his heirs or assigns, or any other person lawfully claiming by, from, or under him, them, or any of them, or by, from, or under any other person or persons whomsoever;" and did also further agree, in case of payment by said lessees, or their assigns, of $3,833.33 at any time during said term, to convey said premises to them in fee simple, free and clear of all incumbrances whatsoever; that said Ross has assigned his interest, under the lease, to the plaintiff; that afterward, to wit: on February 28, 1851, said Cassilly, in consideration of $5,000, conveyed his interest in said lot, with other property, to John B. Purcell, covenanting with him that the title so conveyed was free and unincumbered, and to warrant and defend the same against all claims whatsoever; that before, and at the time of the making of said lease, said Cassilly was married to Sophia B. Cassilly, with whom he lived as his wife until and up to the time of his death; that since his death said wife, now his widow, filed her petition in this court for dower in said premises, against the plaintiffs and said Purcell, upon which such proceedings were had as that dower was assigned her in due form of law, specially in said premises, as of the one-third part of the annual rents and profits, Andrew McAlpin, et al. v. Edward Woodruff, et al. valued and assessed at $278, payable on the 23d of May in each year, and chargeable upon the entire premises; and it was further decreed that there was due said Sophia $167.22 for sum accrued between the time of filing the petition and the assignment of dower, which was likewise charged upon the premises. The petition avers that the plaintiff was put to considerable cost in defending against said suit; that he has fully paid the rent due under the lease, up to the time of the commencement of said dower suit, and that he has paid the first two installments of dower assessed against him; that Mrs. Cassilly's age is sixty-six years, and the value of her dower interest in the premises is $2,800; wherefore petitioner claims a judgment for the amount of his costs and charges, and payments, and for the further sum of $2,800, being the alleged value of the incumbrance created upon the property by the assignment of dower therein. The simple question presented for our decision is, to what damages is the plaintiff entitled, under the case above set forth. The only covenant in this lease alleged to be broken is, for quiet enjoyment; that is, that the lessees should peaceably occupy and enjoy said premises, without the lawful interruption of any person or persons, during the term. This covenant relates to an interruption of the possession, and does not regard the title. Hence it is not broken unless there be an eviction from, or some actual disturbance in the possession. 3 Johns. 471, Waldron v. McCarty; 5 Ib. 120, Kortz v. Carpenter; 13 Ib. 105, Hall v. Dean; 13 Ib. 236, Kerr v. Shaw. In the first of these cases, the land, when sold and conveyed, was incumbered with a mortgage, which was afterward foreclosed in chancery and sold, and purchased in by the grantee in the deed: held, to be no breach of the covenant for quiet enjoyment, because no actual ouster. In the second case, it was held to be no breach that the premises were held adversely at the time of the deed executed, because as possession had never been taken under the deed, there could be no eviction. In the third, there was a covenant also against incumbrances, and it was held no breach of the former Andrew McAlpin, et al. v. Edward Woodruff, et al. covenant that plaintiff was compelled to pay off a judgment against the property, though it was a breach of the latter covenant. In the fourth, it was held that a recovery in ejectment, without a writ of possession, was not a breach of the covenant. What amounts to an eviction sufficient to support the action, has been the subject of some uncertainty; but it must undoubtedly be such an interruption to the possession as substantially to deprive the grantee of a portion of its benefits. Our Supreme Court has furnished a rule in the analogous covenant of general warranty, a breach of which, it is said, is only rendered complete by an eviction, which is a sufficient guide for our present decision. In Tuite v. Miller, an action was brought on a covenant of warranty, to recover as for an eviction upon an assignment of dower, precisely similar to that made in the present case. The court say, "there is no doubt but that the claim of dower is covered by a covenant of general warranty. The doubt in the case is, whether the facts show a sufficient eviction. There must be an eviction, or something equivalent. The regular mode of assigning dower is by metes and bounds, and putting the widow into possession of the part so assigned. Had that been done, it would, without doubt, have been an actual eviction. The statute provides, that when dower can not be conveniently assigned by metes and bounds, it shall be assigned in a special manner, as of a third part of the rents, issues and profits. The manner of assignment then, was in the discretion of the court, and any special mode adopted by the court should be considered as equivalent to the regular mode, and substantially an eviction;" 5 Western Law Jour. 414. And yet, in 17 Ohio, 70, Johnson v. Nyce's Ex'rs, where this rule was approved, it was held that an assignment of dower, under a decree of court, not charged specifically upon the land itself, but made a personal charge upon the defendant in respect of the land, to be enforced by execution and paid by him, was not an eviction so as to charge the vendor upon his covenant of warranty, but an incumbrance upon the land, so as to charge him upon |