The judgment ofthe court was pronounced by
Eustis, C, J.
In 1843, the defendants, in the city of New Orleans, sold to the plaintiff a tract of land situated at the bay of St. Louis,. in the State of Mississippi, including the establishment called the St. Louis Hotel, in consideration of the sum of $4,180, and delivered to him possession The sale was by authentic act, but in the form denominated, by the common law, a deed of. bargain and sale, and contains a full warranty of title on the part of the vendor. The plaintiff alleges that, since he has taken possession of said land, a suit has been instituted against him in the Circuit Court of Hancock county, Mississippi, for the recovery of the possession, and that judgment was rendered against him for its possessio'n. The suit it appeal's was an action of ejectment in the name of John Doe, on the demise of John Henderson, against Richard Roe, i. e. Michael Kling, and the plaintiff alleges that he was ejected and evicted from said land by said judgment. It is also stated that the defendant Sejour was cited in warranty, and actually defended the suit by his counsel. The action is based upon this judgment and eviction as a breach of the warranty, for the recovery of the purchase money, etc. The judgment of the District Court was against the plaintiff, and he has taken an appeal.
The judgment in ejectment against Kling was rendered, in April, 1845, and it appears that, on the 26th of September, the day before the delivery of possession by the sheriff to the plaintiff in ejectment, Kling bought out the title of Henderson under a general warranty. The district judge considered thiscon-tract between Kling and Henderson as inconsistent with Kling's recourse against his warrantors, Séjour and wife,which is sought to be established in this suit, and accordingly gave judgment for the defendants. We do not concur with the view taken of the rights of Kling as affected by purchasing Henderson's title. The land was in the State of Mississippi, the action of which complaint is made was brought there, and the .rights of Kling must be determined by the laws of that State in- which we assume the common law to prevail.
It was not necessary for Kling to contest the validity of Henderson’s claim in the court of the last resort, in order to entitle him to his action on the covenants of the vendor. The judgment of the court of competent jurisdiction is presumed correct, -whenever introduced collaterally in a court of the same State or another State. This is not affirming that it is proof against other parties, on a question of the right adjudged. That depends on facts which may or may not be in the record, the determination of which can only bind parties and privies, or quasi parties, who had. opportunities to contest or avoid the facts alleged. It was equally unnecessary for him to suffer an actual eviction from the premises by the execution of- the writ of habere facias possessio- - [130]*130n'triC. tie might have well attorned' to the plaintiff after the judgment. Th'e submission to the judgment by an attornment was no waiver of the right to prosecute a writ of error. The rule that the voluntary performance of a judgment or decree is a waiver or bar to- an appeal- or writ of error, has no place ih the common law. i
The purchase by Kling of the land from HendersoA, the plaintiff, falls equally short of a release at law of the errors in the judgment. It could notbe pleaded in bar of a writ of error, even a writ prosecuted for the exclusive benefit of Kling; and whatever effect this transaction might have against Kling in any contest between Henderson1 himself, it is very clear it could not effect the-rights of Sijour. If the judment is not now reversable, another ejectment,- or a writ of right may be maintained, if the right be good. One judgment inejectment is no bar to another, and not being a decision on the mere light does not prejudice the proprietor in his- assertion of it in the higher grade of action.
This case then-depends-on the question, whether the defendants have kept or broken their covenants in the actof sale to the plaintiff,-which- are of seizin,good title and warranty. The covenants of good title and seizin of the premises are affirmation covenants of present existing facts, and in this case' were broken the instant the act of sale was delivered, or they have been ever since kept and will ever remain unbroken.
It is plain that what constitutes the title and what the seizin, or, in the Ian-guage of our law, the possession as owner of immovable property, is deter-mined by the law of- the place where it is situated ; and, in as much as the' breach of the undertaking or falsehood of the affirmation that the seller had-just tide, is the absence in-him of what constitutes it, the law in force over the property is the only law which can be appealed to for the purpose of ascertaining whether the covenant has been broken or not. It is then by the law-of Mississippi, that wo must determine whether these covenants of good title and seizin have been kept or broken by the defendant. The covenant to defend the title or of a warranty, is an undertaking on the part- of the grantor tliab he will defend the properly agaiust all--lawful actions. This could only be done in the courts of Mississippi, and therefore this covenant:is a contract to be pen* formed in that State, and, by the express provisions of our Code as well as by the jus gentium, what amounts to its fulfillment-or its breach must also be de- ■ termined by the law of that State.
It has long been settled in this court that we will take judicial notice of thecommou law of Mississippi, and as we have found nothing in the statutes the parties have by their consent admitted might be read here, nor in- the depositions or admissions of the parties in the District Court, which varies the rule of that law applicable te this case, we proceed upon our own knowledge of the law, which governs the whole case, without adverting to any evidence or admission of it in the record.
We have acted on the supposition that the plaintiff has in his proceedings sufficiently assigned breaches in all the covenants. This certainly would not be the case were this an action of covenant broken in a common law court, butth® forms of proceedings in courts are governed by the law of the forum, and this petition must be tested by our Code of Practice. This petition is certainly not very clear, and it is not very certain of what the plaintiff intended to complain, but according to the best construction of its language it amounts only to an allegation that the property when purchased by him was encumbered by what [131]*131sve would denominate a mortgage; and, an action of ejectment having been brought upon such claim and a judgment recovered,.he had been thereby evicted. Jt is not alleged that the defendant was not seized of the land, nor in possession of it as owner, nor that he had no title to it, nor that his title was defective, otherwise than that his estate in it was burihened
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The judgment ofthe court was pronounced by
Eustis, C, J.
In 1843, the defendants, in the city of New Orleans, sold to the plaintiff a tract of land situated at the bay of St. Louis,. in the State of Mississippi, including the establishment called the St. Louis Hotel, in consideration of the sum of $4,180, and delivered to him possession The sale was by authentic act, but in the form denominated, by the common law, a deed of. bargain and sale, and contains a full warranty of title on the part of the vendor. The plaintiff alleges that, since he has taken possession of said land, a suit has been instituted against him in the Circuit Court of Hancock county, Mississippi, for the recovery of the possession, and that judgment was rendered against him for its possessio'n. The suit it appeal's was an action of ejectment in the name of John Doe, on the demise of John Henderson, against Richard Roe, i. e. Michael Kling, and the plaintiff alleges that he was ejected and evicted from said land by said judgment. It is also stated that the defendant Sejour was cited in warranty, and actually defended the suit by his counsel. The action is based upon this judgment and eviction as a breach of the warranty, for the recovery of the purchase money, etc. The judgment of the District Court was against the plaintiff, and he has taken an appeal.
The judgment in ejectment against Kling was rendered, in April, 1845, and it appears that, on the 26th of September, the day before the delivery of possession by the sheriff to the plaintiff in ejectment, Kling bought out the title of Henderson under a general warranty. The district judge considered thiscon-tract between Kling and Henderson as inconsistent with Kling's recourse against his warrantors, Séjour and wife,which is sought to be established in this suit, and accordingly gave judgment for the defendants. We do not concur with the view taken of the rights of Kling as affected by purchasing Henderson's title. The land was in the State of Mississippi, the action of which complaint is made was brought there, and the .rights of Kling must be determined by the laws of that State in- which we assume the common law to prevail.
It was not necessary for Kling to contest the validity of Henderson’s claim in the court of the last resort, in order to entitle him to his action on the covenants of the vendor. The judgment of the court of competent jurisdiction is presumed correct, -whenever introduced collaterally in a court of the same State or another State. This is not affirming that it is proof against other parties, on a question of the right adjudged. That depends on facts which may or may not be in the record, the determination of which can only bind parties and privies, or quasi parties, who had. opportunities to contest or avoid the facts alleged. It was equally unnecessary for him to suffer an actual eviction from the premises by the execution of- the writ of habere facias possessio- - [130]*130n'triC. tie might have well attorned' to the plaintiff after the judgment. Th'e submission to the judgment by an attornment was no waiver of the right to prosecute a writ of error. The rule that the voluntary performance of a judgment or decree is a waiver or bar to- an appeal- or writ of error, has no place ih the common law. i
The purchase by Kling of the land from HendersoA, the plaintiff, falls equally short of a release at law of the errors in the judgment. It could notbe pleaded in bar of a writ of error, even a writ prosecuted for the exclusive benefit of Kling; and whatever effect this transaction might have against Kling in any contest between Henderson1 himself, it is very clear it could not effect the-rights of Sijour. If the judment is not now reversable, another ejectment,- or a writ of right may be maintained, if the right be good. One judgment inejectment is no bar to another, and not being a decision on the mere light does not prejudice the proprietor in his- assertion of it in the higher grade of action.
This case then-depends-on the question, whether the defendants have kept or broken their covenants in the actof sale to the plaintiff,-which- are of seizin,good title and warranty. The covenants of good title and seizin of the premises are affirmation covenants of present existing facts, and in this case' were broken the instant the act of sale was delivered, or they have been ever since kept and will ever remain unbroken.
It is plain that what constitutes the title and what the seizin, or, in the Ian-guage of our law, the possession as owner of immovable property, is deter-mined by the law of- the place where it is situated ; and, in as much as the' breach of the undertaking or falsehood of the affirmation that the seller had-just tide, is the absence in-him of what constitutes it, the law in force over the property is the only law which can be appealed to for the purpose of ascertaining whether the covenant has been broken or not. It is then by the law-of Mississippi, that wo must determine whether these covenants of good title and seizin have been kept or broken by the defendant. The covenant to defend the title or of a warranty, is an undertaking on the part- of the grantor tliab he will defend the properly agaiust all--lawful actions. This could only be done in the courts of Mississippi, and therefore this covenant:is a contract to be pen* formed in that State, and, by the express provisions of our Code as well as by the jus gentium, what amounts to its fulfillment-or its breach must also be de- ■ termined by the law of that State.
It has long been settled in this court that we will take judicial notice of thecommou law of Mississippi, and as we have found nothing in the statutes the parties have by their consent admitted might be read here, nor in- the depositions or admissions of the parties in the District Court, which varies the rule of that law applicable te this case, we proceed upon our own knowledge of the law, which governs the whole case, without adverting to any evidence or admission of it in the record.
We have acted on the supposition that the plaintiff has in his proceedings sufficiently assigned breaches in all the covenants. This certainly would not be the case were this an action of covenant broken in a common law court, butth® forms of proceedings in courts are governed by the law of the forum, and this petition must be tested by our Code of Practice. This petition is certainly not very clear, and it is not very certain of what the plaintiff intended to complain, but according to the best construction of its language it amounts only to an allegation that the property when purchased by him was encumbered by what [131]*131sve would denominate a mortgage; and, an action of ejectment having been brought upon such claim and a judgment recovered,.he had been thereby evicted. Jt is not alleged that the defendant was not seized of the land, nor in possession of it as owner, nor that he had no title to it, nor that his title was defective, otherwise than that his estate in it was burihened by the payment of .some debt; and .when the documents which he exhibits and his evidence are .examined, it .is found that he only proposed to esiablisb that the property had been encumbered by a debt owing by the former owner of it from whom the .defendant purchased it, and that by certain judicial proceedings which had .been had subsequent to his purchase of the property it had been subjected to .the payment of this .debt, and for this purpose had been sold, and that the pur.chaser had recovered it of him, the plaintiff. These are not such allegations as amount to an assignment of a breach of the covenant of seizin and good title, .whereby the covenantor would have been required in his defence to prove his .seizin by su.ro and indefensibie title ; and the case must be considered ns the .plaintiff has presented it. In this view of the case-it appears that the plaintiff proposed to establish that one St. Martin, being in the possession of .the land, •was, at the time of his sale of it, indebted to the Commercial Bank .of Natchez, and that this debt, or the judgment afterwards recovered on it, was a lien upon the property, and on this judgment an execution having issued the property -was sold, and' John Henderson having become the purchaser .brought his .action,of ejoctment, and having recovered, he, the plaintiff was compelled to purchase off the encumbrance from him. In this state of the case it is obvi.ous that the plaintiff did not propose to question the validity .of the title of St. Martin, he only propo-sod to show that his estate in the hind was burthened with tho debt, and in such a manner .that tho creditor had .the right to subject it to sale for the purpose of having the money made, notwithstanding his sale to the defendant. The plaintiff endeavored to establish that it was sold as the property of St. Martin, the sheriff having conveyed the .title of St. Martin to Henderson, and, on this title so acquired, the plaintiff insisted that Henderson had recovered in.tlie action of ejectment. In this state of the case it is very plain that the defendant was not called upon to prove title in St. Martin-, itwa3 sufficient for h.im to deduce title from St. Martin. This he did by giving in evidence the deed of conveyance of St. Martin to himself. The burthen of the proof that Henderson had acquired a superior title from St. Martin, was thereby cast upon the plaintiff, and, unless he has established it, the issue on this supposed breach of these covenants of seizin and good title must be found for the defendant.
In order to deduce title from St. Marlin to Henderson, and thereby prove the defendant had not title from him, the judgment of the bank against St. Martin, the execution and sheriff’s return, and the deed of conveyance to Henderson, ought to have been all produced in evidence on this.trial. On these documents, had they been given in evidence, the statute of Mississippi may have established a lien or priority which might have proved Henderson's the better title; but no such proofs were offered, nor any other which deserve to be even stated. But it is not necessary to pursue further this matter. The case does not appear in fact to have been prepared with a .view to the recoveiy for a breach of either of these covenants.
The plaintiff mainly relied on the alleged breach of the covenant of warranty, and insisted that this has been broken by the judgment recovered against him in the action of ejectment by Henderson. If he prevail on this groan 1, he [132]*132must show ope or the other of these two facts : 1st. That the recovery was by title paramount to that which was conveyed him by the defendant; or, 2dly, That the defendant had notice of that action giyen to him, or his agent having the faculty of representing the defendant in the matter.
The first ground has already been disposed of, ip the decision that it is not shown in. this cause that Henderson had any title. It is not necessary to stop to proye that tljis is indispensable to a recovery, in the absence pf notice of the former suit, The common law is unquestionable in this respect, and the deposition read by the plaintiff to proye what was the Ipw in Mississippi, shows that the rule has not been altered in that State. The deponent says, a party evicted by a superior title of any sort from the possession of real estate which has been previously purchased with covenants of warranty, has a right to recover against his vendor, etc.
In respect to fh.e second ground, we infer it to be the settled litw in Mississippi that, if the defendant did defend the aption by himself, or agent with sufficient authority to represent him in the matter, or if he had sufficient notice of the institution of the action, so that he might have defended the land by resisting its recovery, h¡s coyenant to warrant, or in other words to defend the land, was broken.
T.he question then is, did the defendant appear in the action of ejectment, or had he notice of its commencement in time to enable him to defend the land according to his covenant ? It will not be necessary to separate these questions, for it wifi be found that if it appear that he had notice of the action it may be fairly inferred that he did appear by his authorized attorney and defend it, and if he did defend there is no occasion to make any enquiry in respect to t}ie notice he had received pf the institution of the action.
It Js necessary, in the investigation of this matter, to recur to the evidence, and attend particularly to dates, and observe what existed and what does not appear to have occurred, at each stage of the history of the affair.
The defendant Séjour was a resident qf'New Orleans in 1841, and up to 1843, and it does not appear he ever resided elsewhere in the United States. On the 8th pf April, 1841, he purchased this property on the bay of St. Louis of Cliq/rles St. Martin, at the price of $6080—:a debt owing him by St. Martin, and received hjs absolute dped of conveyance therefor, with covenants of seizin, good title and warranty, against all claim whatsoever, and having accordingly received possession he continued to hold it until his sale tq the plaintiff. This possession was by his tenants, fpr it is admitted that he never resided at the bay of Sf. Louis, It does not appear that Séjour was in anywise disturbed in his possession, or had any reaspn to doubt the sufficiency of his title, or to apprehend that the property was subject to any encumbrance whatever.
On the 4th of February, 1843, Séjour sold and conveyed the property to the plaintiff, Kling. It was th,en a hotel, and, haying been leased by Séjour to a tenant in possession, tl;e sale was made subject to the term, yihiph continued until the first day of the succeeding June. Kling was by the conveyance substituted to all tho rights of Séjour as lessor, apd obtained the seizin. On the 1st of May, 1843, justthrpe months after his sale to the plaintiff, Séjour left the United States (for Franpe, it is understood, for it appears he returned from France,) and did not return until 1847, which was after the judgment in ejectment had been recovered against Kling, and indeed after this suit had been commenced. There is no reason to suppose tljat Séjour, at that time, did apprehend that this property was subject to any encumbrance, or that thero was [133]*133any defect in the title, and therefore it cannot lie presumed that he appointed any agent to receive notice from Kling of the institution of any suit against him in respect to the property. It is admitted that 1?- S. Séjour, a son of the defendant, attended to the collection of his rents, and it may be inferred that he had been appointed by thp defendant for this office; but it cannot be inferred from this fact that the son had been appointed agent to receive notice of the institution .of a suit against Kling for the re.covery of property in respect to which it vyas not expected any controversy would arise, and there is no evidence that the spn had any general commission to represent or personate his father in all things, and certainly such a.n universal commission cannot be inferred from the mere relation ¡of father and son-
It does not appear that there was any ground to apprehend that any adverse .claim existed or would be brought up against the property, until October, 1843. The.sheriff, about this time, it is said, levied an execution upon it, and R. S. Séjour, the son, visited, from New Orleans it is understood, the bay of St. Louis, and employed counsel in conjunction with the counsel of Kling to assist in the defence of the suit, which it .wqs .expected would be instituted by whoever might become the purchaser of the property; and the counsel so employed did assist in the defence of the suit in consequence of this employment. Now, was this employment by the authority of the defendant? or, shall it be .taken prima facie that it was by his authority, so that the defendant must prove the negative ? It has already appeared that it .capnotbe presumed that the defendant had left with his son a commission to represent him in any such unexpected affair, and there is no evidence whatever of any notice or information given him of any such seizure or sale, or action of ejectment by the purchaser. The plaintiff called upon the defendant to produce and file the letters it was alleged he had written to the defendant, giving such notice- Defendant qnswered on oath in open court that he had neyer received any such letters, and had no knowledge of his son’s having received any, and the plaintiff offered no-proof of any such. Qur own views on this subject haye been recently given in the case .of Fuselier v. Robin, ante p. 61.
It only remains to ascertain whether the appearing in court .of the lawyer who was employed by the son made the father a party to the proceedings, or in any otherwise has the effect of rendering the judgment which was recovered either conclusive, or priirpa facie, evidence against the defendant, that the recovery was had on superior tille. „
The employment of Mr. Lanppkin, by the son of Séjour, as the assistant of the counsel of Kling, flip defendant to the a.ction, did not make Séjour a party on the record. Kling .only was admitted defendant to the suit in the place of the casual ejector. If Séjour had been also admitted defendant then he would have been a party, and the question would have occurred whether the judgment would have been effectual against L. Séjgur—whether the attorney had authority tp represent him in epurt or not. There are cases in which it has been determined that the judgment in such cases does constitute res judicata, and that the party so represented cannot show that the attorney had no authority, but those are cases in whi.ch the persops resisting the effect of such proceedings yyere made a party on the record- This is not such a case. Séjour, the father, was not made a party, there was no judgment against him, and ihe effect of the counsel employed by the son appearing in the cause and arguing it, depends entirely upon the authority by whi.ch he appeared. It is impossible to hold the defendant b.oqnd by either the notice of the action of ejectment to his [134]*134son, or bis employment of the counsel to represent defendant, without assuming and establishing the broad proposition that any son may act for his father in any matter whatsoever in his absence, which may unexpectedly arise; and, unless the authority of the son is so established, the authority of the attorney cannot be maintained, without establishing the proposition that any attorney may appear in any cause without our authority and without making us even a party on the record, and bind us by all the proceedings lpvd in the cause.
There is nothing then i.n the fact that Mr. Lampkin did appear in the defence of the action.of ejectment; the defendant was not Séjour the defendant In the present action, but Kling the plaintiff here, and according to the record he appeared for Kling only. It is established that he appeared on the employment of R. It- Séjour and was paid by him, but there is n,o evidence that R. (j. Séjour employed him in the name of his father, L. Séjour, and much less that he had any authority so to employ him ; and, in the absence pf all pro.of that Jj. Séjour had notice of such a suit, pr eyeti an apprehension that such a one, or any oth.er i.n respect to the land, would ever be instituted, it cannot be presumed he had authority.
Thus fiir we have spoken of the supposed notice to L- Séjour, without inquiring what notice would have been sufficient, and have treated the matter as if any information that such a suit existed would have be,ep sufficient. But we understand the law of Mississippi to require much more to bind a party by a judgment.
It is true there is enough in the circumstances of the case to raise a plausible conjecture that the defendant had this notice, and that the employment of the counsel was by his authority, but conjecture is far from being sufficient in such a matter. The notice, it must be observed, if given, is in the nature of a judicial process, and has the effect, if established, to constitute the judgment res judicata, and would preclude the defendant in this action from controverting that the plaintiff in that had good title, and surely no such efiect'could be given to a judgment against one who is no party to the record by any such conjecture. It is not necessary to shew that in common jaw proceedings the seryice on the person in such cases is required, or that it must be by some rpeans shown that the notice came to the party. Those courts peveracton such conjectures as would be necessary to be resorted to in this case for the purpose of binding .a party by a judgment: .and the notice to have effect in this suit must be such as the laws of Mississippi for such purposes required, and not such as we might require had the land and suit been in this State.
Ther.e is no competent evidence that the defendant in this suit had any notice whatever pf the action of ejectment—no proof that it was defended by bis authority ; .and there being no evidence that the judgment was recovered by a superior title, or that the plaintiff in that action had any title to the property, the plaintiff cannot recover in this action.
It is to be observed lliat, we have considered the rights of the parties in this suit ns existing under a jurisprudence foreign to our own.
The provision of the Code, arts. 2493, 2494, which binds -the vendor by a judgment of eviction against the purchaser even in the absence of a notification of the suit, unless the vendor shows that he possessed proofs which would have maintained his title, and which, for want of notification of the suit to him, have not been made available, has no application to this case. The judgment referred t.o is a judgment in a petitory action, which is conclusive as to the rights of the parties. An action of ejectment is for the recovery of land, but a judg[135]*135ment in it is not conclusive as to the right. The action may be renewed by either partj'-, or the right may be again tested in an action of another form'. At all events, any inquiry as to the application of our laws to this case would be entirely superfluous.
It only remains for us to state that the cause of the' delay in the preparation of this opinion and also of its unusual length, is to be found-in- the fact that the case has been submitted to us ex parte, without any argument or note on behalf of the defendants, notwithstanding the elaborate briefs-presented by the counsel for the plaintiff, in addition to the full argument at bar. We have been compelled to examine all the points which the case presents, instead of confining ourselves to those to which an argument on the part of the defendant might have limited us.
The judgment of the District Court is, therefore, annulled, and judgment rendered against the plaintiff as in case of non-suit, with costs in the District Court; the defendant paying-the costs of this appeal.