Bartou, J.,
delivered the opinion of this Court.
This suit was instituted hy the appellees. The declaration contains the common money counts, and issues were joined on the pleas “that the defendant was never indebted as alleged” and “never promised as alleged.’ [108]*108In the course of the trial helow, the appellant took nine bills of exceptions, seven of them to the ruling of the Circuit Court on questions of evidence; the eighth to the granting of two prayers of the appellees and the rejection of one offered by the appellant; and the ninth to the rejection of seventeen prayers offered by the appellant.
In disposing of this appeal it will not be .necessary to pass upon the several exceptions, and the prayers separately, as many of them present the same questions of law.
The proof shows that in May, 1864, the appellant sold to the appellees Ms interest in a crop of wheat then growing upon the farm of Col. Kunkel. The appellant had heen. tenant of Kunkel, and claimed to be entitled to the growing crop, subject to the claim of the landlord for rent, which we infer was payable in kind, though the terms of the tenancy are not distinctly proved.
The whole price agreed on for the appellants’ interest or share was $840, of which $420 was paid in cash, and for the residue the following note or contract was given :
“$420.00. Frederick County, May 81st, 1864.
“Ninety days after date, we or either of us promise to pay to Charles E. Myers, four hundred and twenty dollars, being the balance due on the crop of wheat purchased by us from said Myers, with this express understanding and agreement, that should loss or difficulties occur from any cause whatever, by any person or persons claiming an interest or portion of the share of said Myers’ interest in the wheat crop aforesaid, on the farm of Col. Jacob M. Kunkel, on which Myers 'lately resided, then and in that event, such loss or deduction to be taken from the amount to be paid by this note.
“John Smith, of M.
“John W. B arrice.”
In July, 1864, after the wheat had been reaped by the appellees, and while it remained in the field, the appellees [109]*109allege that it was seized and sold hy the bailiff of Kunkel under a distress for rent in arrear, due by the appellant. Exception was taken to the character of the evidence offered to prove the distress and the proceedings thereunder, which will be noticed hereafter; assuming, however, for the present, that the seizure and sale under the distress were proved by competent evidence, we shall first consider whether the two prayers of the appellees ought to have been granted.
The plaintiffs state the ground of their action to be a breach of the implied warranty of title of the vendor, and the consequent failure of consideration for which the money was paid, and they seek to recover back the purchase money so paid. Accordingly, the hypothesis of their first prayer is that if they purchased in May, 1864, from the defendant, his interest in the crop of wheat, and paid him $420 as part of the purchase money; and after-wards, in July, 1864, the interest of the defendant in the crop was seized hy the landlord for rent in arrear due by the defendant; that this constitutes a breach of the implied warranty of title, and shows a failure of the consideration for which the money was paid, which entitles the plaintiffs to recover.
By the second prayer the measure of damages is declared to be the sum of money originally paid, in part of the price, with interest from the time of payment. It is perfectly manifest that this theory of the case cannot be supported consistently with well established rules of law.
It by no means follows that because the property sold in May, was afterwards, in July, seized and sold under a distress for rent due by the defendant, the implied warranty of title was broken. The breach of that warranty depends upon the title of the vendor at the time of sale, and not upon matters arising subsequently. The prayer does not state, nor is there any evidence to show that the [110]*110rent, or any part of it, for which the distress was levied, was due and' in arrear at the time of the sale. If it became due afterwards, then there existed at the time of the sale nothing to impair the right of the defendant to sell his interest; and a seizure and sale by the landlord afterwards for rent in arrear subsequently becoming due, does not in any sense constitute a breach of the implied warranty of title, for which the vendees could recover in an action on the warranty. See Giese vs. Thomas, 7 H. & J., 459 ; Buckey vs. Snouffer, 10 Md. Rep., 149. The ground of such action is always an eviction by one having a superior title to the vendor, or some lien existing at the time of the sale.
In the excellent treatise of the late Professor Bell “ on the Contract óf Sale of Goods and Merchandise,” 50 Law Lib. 50, (95 marg.) the law is clearly and concisely stated thus:
“The seller is hound to protect the buyer from all evictions arising from circumstances anterior to the sale, of which the cause or the germ existed at the time of the sale; as debts chargeable on the thing sold, revenue duties to which the goods are liable, or such defects in the seller’s title as form a labes realis.”
If rent were actually due and in arrear at the time of the sale in this case, and the property sold was afterwards lawfully seized and taken by the landlord to pay such rent, then the appellant would be liable on his implied warranty of title'; this was decided in Dunlop vs. Earl of Dalhousie, in Scotland, in 1828, affirmed by the House of Lords, 4 W. & S. 420. Though that decision was under the Scottish Law, we are of opinion that the same principle must be recognized in Maryland, as it is within the general rule above cited. - The rights of the landlord to distrain existing at the time of the sale, would constitute a liability in the nature of a lien upon the property, although as settled in Buckey vs. Snouffer, not an actual [111]*111or consummate lien, yet an inchoate claim or right which might afterwards he enforced; and therefore a labes realis against which the purchasers would be entitled to protection under the implied warranty, and in this aspect of the case the measure of damages would be as stated in the appellees’ second prayer. But as we have said, the appellees’ first prayer does not state that the rent for which the property was seized was due and in arrear at the time of the sale, and was therefore erroneously If it became due afterwards, the seizure and sale by the landlord did not constitute a breach of warranty for which the appellees would be entitled to recover upon the warranty ; although if these facts were established by legal and competent evidence, the present suit might be, maintained on other grounds; not for a breach of the implied warranty of title, but for money paid, laid out and expended by the plaintiffs for the use of the defendant.
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Bartou, J.,
delivered the opinion of this Court.
This suit was instituted hy the appellees. The declaration contains the common money counts, and issues were joined on the pleas “that the defendant was never indebted as alleged” and “never promised as alleged.’ [108]*108In the course of the trial helow, the appellant took nine bills of exceptions, seven of them to the ruling of the Circuit Court on questions of evidence; the eighth to the granting of two prayers of the appellees and the rejection of one offered by the appellant; and the ninth to the rejection of seventeen prayers offered by the appellant.
In disposing of this appeal it will not be .necessary to pass upon the several exceptions, and the prayers separately, as many of them present the same questions of law.
The proof shows that in May, 1864, the appellant sold to the appellees Ms interest in a crop of wheat then growing upon the farm of Col. Kunkel. The appellant had heen. tenant of Kunkel, and claimed to be entitled to the growing crop, subject to the claim of the landlord for rent, which we infer was payable in kind, though the terms of the tenancy are not distinctly proved.
The whole price agreed on for the appellants’ interest or share was $840, of which $420 was paid in cash, and for the residue the following note or contract was given :
“$420.00. Frederick County, May 81st, 1864.
“Ninety days after date, we or either of us promise to pay to Charles E. Myers, four hundred and twenty dollars, being the balance due on the crop of wheat purchased by us from said Myers, with this express understanding and agreement, that should loss or difficulties occur from any cause whatever, by any person or persons claiming an interest or portion of the share of said Myers’ interest in the wheat crop aforesaid, on the farm of Col. Jacob M. Kunkel, on which Myers 'lately resided, then and in that event, such loss or deduction to be taken from the amount to be paid by this note.
“John Smith, of M.
“John W. B arrice.”
In July, 1864, after the wheat had been reaped by the appellees, and while it remained in the field, the appellees [109]*109allege that it was seized and sold hy the bailiff of Kunkel under a distress for rent in arrear, due by the appellant. Exception was taken to the character of the evidence offered to prove the distress and the proceedings thereunder, which will be noticed hereafter; assuming, however, for the present, that the seizure and sale under the distress were proved by competent evidence, we shall first consider whether the two prayers of the appellees ought to have been granted.
The plaintiffs state the ground of their action to be a breach of the implied warranty of title of the vendor, and the consequent failure of consideration for which the money was paid, and they seek to recover back the purchase money so paid. Accordingly, the hypothesis of their first prayer is that if they purchased in May, 1864, from the defendant, his interest in the crop of wheat, and paid him $420 as part of the purchase money; and after-wards, in July, 1864, the interest of the defendant in the crop was seized hy the landlord for rent in arrear due by the defendant; that this constitutes a breach of the implied warranty of title, and shows a failure of the consideration for which the money was paid, which entitles the plaintiffs to recover.
By the second prayer the measure of damages is declared to be the sum of money originally paid, in part of the price, with interest from the time of payment. It is perfectly manifest that this theory of the case cannot be supported consistently with well established rules of law.
It by no means follows that because the property sold in May, was afterwards, in July, seized and sold under a distress for rent due by the defendant, the implied warranty of title was broken. The breach of that warranty depends upon the title of the vendor at the time of sale, and not upon matters arising subsequently. The prayer does not state, nor is there any evidence to show that the [110]*110rent, or any part of it, for which the distress was levied, was due and' in arrear at the time of the sale. If it became due afterwards, then there existed at the time of the sale nothing to impair the right of the defendant to sell his interest; and a seizure and sale by the landlord afterwards for rent in arrear subsequently becoming due, does not in any sense constitute a breach of the implied warranty of title, for which the vendees could recover in an action on the warranty. See Giese vs. Thomas, 7 H. & J., 459 ; Buckey vs. Snouffer, 10 Md. Rep., 149. The ground of such action is always an eviction by one having a superior title to the vendor, or some lien existing at the time of the sale.
In the excellent treatise of the late Professor Bell “ on the Contract óf Sale of Goods and Merchandise,” 50 Law Lib. 50, (95 marg.) the law is clearly and concisely stated thus:
“The seller is hound to protect the buyer from all evictions arising from circumstances anterior to the sale, of which the cause or the germ existed at the time of the sale; as debts chargeable on the thing sold, revenue duties to which the goods are liable, or such defects in the seller’s title as form a labes realis.”
If rent were actually due and in arrear at the time of the sale in this case, and the property sold was afterwards lawfully seized and taken by the landlord to pay such rent, then the appellant would be liable on his implied warranty of title'; this was decided in Dunlop vs. Earl of Dalhousie, in Scotland, in 1828, affirmed by the House of Lords, 4 W. & S. 420. Though that decision was under the Scottish Law, we are of opinion that the same principle must be recognized in Maryland, as it is within the general rule above cited. - The rights of the landlord to distrain existing at the time of the sale, would constitute a liability in the nature of a lien upon the property, although as settled in Buckey vs. Snouffer, not an actual [111]*111or consummate lien, yet an inchoate claim or right which might afterwards he enforced; and therefore a labes realis against which the purchasers would be entitled to protection under the implied warranty, and in this aspect of the case the measure of damages would be as stated in the appellees’ second prayer. But as we have said, the appellees’ first prayer does not state that the rent for which the property was seized was due and in arrear at the time of the sale, and was therefore erroneously If it became due afterwards, the seizure and sale by the landlord did not constitute a breach of warranty for which the appellees would be entitled to recover upon the warranty ; although if these facts were established by legal and competent evidence, the present suit might be, maintained on other grounds; not for a breach of the implied warranty of title, but for money paid, laid out and expended by the plaintiffs for the use of the defendant. It is very clear that if the property of the appellees were lawfully seized and taken to pay the appellant’s debt, they would be entitled to maintain this' action, without reference to the fact whether the property had been purchased from the appellant or not; and in such case the measure of damages would be the value of the property so taken, with interest thereon, or the amount which they were compelled to pay in order to emancipate it from the lawful claim of the landlord, with interest from the time of payment. In this case, however, the damages to be recovered, whether brought within the warranty or otherwise, would be diminishéd by first deducting the sum or balance of the purchase money secured by the note, if the same remain unpaid, which by the terms of the contract is first to be applied to such a demand. The law is well settled that a party may maintain an action for money paid for another who is a stranger to him, provided such payment be compulsory; that is, when it is paid for the purpose of “ emancipating [112]*112the person or property from an actual and existing duress imposed upon it.” In Mayor, &c., of Baltimore vs. Lefferman, 4 Gill, 425, the doctrine on this subject is fully considered and the cases collected. See also Dorsey vs. Smith, 7 H. & J., 366 ; Turner vs. Egerton, 1 G. & J., 430. Under the rulings in those cases we are of opinion that the appellees would be entitled to recover in this action upon the facts stated in their first prayer, if established by legal and competent evidence; and that the measure of damages would be as we have before stated.
Having made these general observations on the law governing this action, we shall proceed to notice the questions presented by the bills of exceptions so far as they are material to the decision of this appeal.
The first and second exceptions are not material, as the written paper therein referred to was afterwards produced, and contains nothing to show that the evidence of the witness Harding was inadmissible. The ruling of the Circuit Court as stated in these exceptions is affirmed.
The 3d, 4th, 5th and 6th exceptions all relate to the .evidence offered by the appellees to prove the seizure and sale under the distress, and the objection is taken that the same could not be proved by parol.
In the opinion of this Court, this objection .to the evidence is well' taken. Whether the appellees claim.under the implied warranty, or seek to recover for money paid. in satisfaction of the appellant’s debt, it is essential for them to establish the fact of a lawful seizure under the distress; and the only legal evidence of this are the. papers showing the proceedings in conformity with the requirements of the Code: parol testimony is inadmissible for this purpose, without laying a proper foundation to justify the introduction of secondary proof. See Giese vs. Thomas, 7 H. & J., 459 ; Sanderson’s Ex’rs vs. Marks, 1 H. & G., 252; McKee’s Adm’rs vs. McKee’s Adm’rs. 16 Md., 516.
[113]*113Here the ground of the action is that the appellees were deprived of the property purchased, hy a party having a lawful right to seize it, upon a claim or lien existing at the time of the purchase; or that they were compelled, in order to emancipate their property from a legal claim thereon against the appellant, to pay a sum of money to such claimant; in either case the onus is on them to show that such claim existed and was enforced according to law. The mere fact of the seizure and sale by the landlord is not sufficient; being made under color of a distress for rent in arrear, in which the proceedings are required to be in writing, and in conformity with law; it cannot be proved by parol.
For the same reason the proof offered by the appellant in the 7th exception, that there was no rent in arrear at the time of the alleged distress, was competent and ought to have been admitted.
The same question is presented by the appellant’s prayer in the eighth exception, and his 1st, 2d, 3d, 4th, 5th, 6th, 7th, 8th, 3th and 10th prayers in the ninth exception, and the Court below erred in rejecting them.
The eleventh prayer raises the question of the power of the deputy sheriff, acting under the sheriff’s authority, to make sale of property seized by the sheriff under a distress warrant to him directed. On this point we think the appellant’s counsel are in error. Though a distress for rent is a remedy by the act of the party, and' a landlord may constitute any person as his bailiff to make it ; yet where he causes the warrant to be directed to the sheriff, that officer may execute the warrant by his deputy, whose acts must be regarded as those of the sheriff himself.
The general observations we have already made with regard to the principles governing this action, renders it unnecessary to express an opinion upon the other prayers of the appellant.
[114]*114(Decided 24th May, 1867.)
We have said that the appellees failed to adduce competent and sufficient proof to entitle them to recover in either aspect of the case; but as that proof may be supplied upon a new trial, and thus the other questions raised by these prayers may become material-, we deem it proper to state the opinion of this Court thereon.
1st. It would not be necessary for the plaintiffs to rescind or offer to rescind the contract, in order to enable them to recover, provided there existed no other objection to their suit.
2d. The existence of the contract, evidenced by the note given-by, the appellees to secure the balance of the purchase money, whereby they are expressly entitled to retain, out of such balance, any loss they may incur by reason of any person claiming the property purchased, constitutes in itself no defence to this action, except so far as the question of damages is concerned. The said balance, if it remain unpaid, being first applicable in reduction of the plaintiffs' demand.
Judgment reversed and procedendo ordered.