COLLIER, C. J.
The legal sufficiency of the entire declaration was brought to the view of the Circuit Court by the demurrer to the first count, taken in connection with plaintiff’s demurrer to the pleas, and we propose to consider the law, as applicable to every part of it. ' It may be premised, that the express covenant contained in the bill of sale of defendant, is nothing more than a warranty of title, and consequently confers the same rights and imposes the same obligation, and nothing more. To entitle the vendee to recover for a breach of such a contract, he must show that he has been deprived of the thing sold, by title paramount, though it is not necessary that he should alledge a deprivation of the property in these precise terms. - It is enough if the breach be stated in words of equivalent import. Thus in Day et al v. Chism, [10 Wheat. Rep. 449,] it appears the defendant covenanted and agreed by indenture with the plaintiff, his heirs and assigns, to warrant and defend the title to the premises described, against the claim of all and every person whatsoever, as his own proper right in fee simple. The plaintiff averred that the defendant “ had not a good and sufficient title to the said tract of land; and by rea[706]*706son thereof, the said plaintiffs were ousted and^dispossessed of the said premises by due course of law.” The Court say, “ This averment, we think, contains all the facts which constitute an eviction by title paramount. The person who, from want of title is dispossessed and ousted by due course of law, must, we think, be evicted by title paramount.” In Abbott v. Allen, [14 Johns. Rep. 253,] it is said, “ The marked distinction between a covenant of seisin, and those for quiet enjoyment and general warranty, consists in this, that the covenant of seisin, if broken at all, must be so at the veryjnstant it is made; whereas,in the latter covenants, the breach depends upon the subsequent disturbance and eviction, which must be affirmatively alleged, and proved by the party complaining of the breach.” And in Vibbard et al. v. Johnson, [19 Johnson. Rep. 77,] it was held, if a purchaser voluntarily pays the price of the goods purchased, to a third person, who claims them, he cannot afterwards in a suit brought by the vendor against him for the price, set up the want of title in the vendor, and that he had paid the price to the true owner as a defence. The Court saying, “The plaintiffs below being in possession of the tea, sold it as his property to the defendants. [Kennedy v. Strong, 14 Johns. Rep. 128.] They cannot in this way draw the plaintiff’s title in question by their own voluntary act of payment. It is not competent to them to dispute the title of their vendor, unless they have been charged at the suit of another person, who has after contestation shown a better title. The principle is analagous to a demise of a house by A. who is in possession claiming title, to B. The latter receives the possession, and enjoys the premises by the permission and on the letting of A. In an action for the rent, B. cannot set up that A. has nothing in the premises, and that he has paid the rent to C. voluntarily. If C. had recovered the rent and substantiated his title, then it would be a good defence; otherwise not.” See also Livingston v. Bain, 10 Wend. Rep. 384.
In respect to the effect of the recovery by Beale against Lazarus, it may be laid down generally, that in an action by the vendee of personal property against the vendor, upon a warranty of title, a judgment for the property against the vendee by a third person claiming to be the rightful owner, in a suit of : which the vendor had no notice, cannot be given in evidence [707]*707.to prove that the latter had no title. [Sanders v. Hamilton, 2 Hayw. Rep. 226 ; Stevens v. Jack. 3 Yerg. Rep. 403; Jacob v. Pierce, 2 Rawle’s Rep. 204; Blasdale v. Babcock, 1 Johns. Rep. 517; Burrill v. West, 2 N. Hamp. Rep. 190; Coventry v. Barton, 17 Johns. Rep. 142; Stone v. Hooker, 9 Cow. Rep. 154; Copp v. McDugall, 9 Mass. Rep. 1; Bond v. Ward, 1 Nott & McC. Rep. 201. See also Leather v. Poultney, 4 Binn. Rep. 356; Maupin v. Compton, 3 Bibb. Rep. 214; Booker v. Bell, id. 175; Prewit v. Kenton, id. 280; Radcliff v. Ship, Hardin’s Rep. 292; Somerville’s Ex’ors. v. Hamilton, 4 Wheat. Rep. 230; Green v. The New River Company,4 T. Rep. 590.] But it has been held, that although a judgment recovered under such circumstances, will not be evidence of a want of title in the vendor, yet it is admissible to show the amount of damages assessed. [Tyler v. Ulmer, 12 Mass. Rep. 166; Carmack v. Commonwealth, 5 Binn. Rep. 184; Lewis v. Knox, 2 Bibb. Rep. 453; Johnson v. Thompson, 4 id. 294; Key v. Walker, 7 Louis. Rep. 297; Boorman v. Johnston, 12 Wend. Rep. 567. See also 3 Phil. Ev., C. & H’s. ed. 821-2. J And it has been repeatedly adjudged where a party has a right of recovery over, either by operation of law, or in virtue of an express contract, he may give notice to the person so reponsible, of the penden-cy of a suit against him, and if a judgment be obtained without fraud or collusion, it will be conclusive evidence for him against such person upon every fact established by it. The latter, then, cannot be viewed in the light of a mere stranger, but has the same means of controverting the adverse claim, as though he were the nominal and real party on the record. — [Bender v. Frombeyer, 4 Dall. Rep. 436 ; Hamilton v. Cutts, 4 Mass. Rep. 349; Leather v. Poultney, 4 Binn. Rep. 352; Witmer v. Schlatter, 2 Rawle’s Rep. 204; Jacob v. Pierce, id.; Kip v. Bingham, 6 Johns. Rep. 158; Waldo v. Long, 7 id. 173; Barney v. Dewey, 13 id. 226; Bond v. Ward, 1 Nott & McC. Rep. 201; Clark’s Ex’ors. v. Carrington, 7 Cranch’s Rep. 322; Pinney v. Gleason, 5 Wend. Rep. 535 ; Tarlton v. Tarlton, 4 M. & S. Rep. 20; Curtis v. Cisua’s Adm’rs., 1 Ohio Rep. 436; Walker v. Ferrin, 4 Verm. Rep. 523; Belden v. Seymour, 8 Conn. Rep. 304; Collingwood v. Irwin, 3 Watts. Rep. 306; Brewster v. Countryman, 12 Wend. Rep. 446.]
We have stated these principles as tests by which to deter[708]*708mine the sufficiency of the declaration. The first count alleges that the slave Ned, sold by the defendant to the plaintiff’s testator, and by the latter to Lazarus, had been adjudged to be the property of Beale, in an action of detinue prosecuted by him against Lazarus. Now this may be true, and yet the title which the defendant conveyed to the testator, be superior to Beale’s. It should, at least, not only be averred that Lazarus was dispossessed by due course of law, but that the recovery against him was under title paramount to that of the defendant. Such an allegation is the more especially necessary, as it cannot be intended from any thing stated, that the judgment in that action concluded the rights of any one else, than the parties to it. It may be assumed that it did not, and in a suit by Lazarus against the plaintiffs, the question whether the defendant’s or Beale’s title was the best, would be open, and could only be adjusted by proof extrinsic of the judgment in favor of the latter.
The second count is also defective. It deduces the liability of the defendant from the recovery of Beale against Lazarus, the satisfaction of that judgment by the latter, his reimbursement by the plaintiffs, and the notice of these facts by the defendant. If the plaintiffs had notice of the pendency of the action by Beale, and opportunity afforded to defend it, so that the judgment would have been conclusive of their want of title, then they might have discharged the judgment and sued the defendant.
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COLLIER, C. J.
The legal sufficiency of the entire declaration was brought to the view of the Circuit Court by the demurrer to the first count, taken in connection with plaintiff’s demurrer to the pleas, and we propose to consider the law, as applicable to every part of it. ' It may be premised, that the express covenant contained in the bill of sale of defendant, is nothing more than a warranty of title, and consequently confers the same rights and imposes the same obligation, and nothing more. To entitle the vendee to recover for a breach of such a contract, he must show that he has been deprived of the thing sold, by title paramount, though it is not necessary that he should alledge a deprivation of the property in these precise terms. - It is enough if the breach be stated in words of equivalent import. Thus in Day et al v. Chism, [10 Wheat. Rep. 449,] it appears the defendant covenanted and agreed by indenture with the plaintiff, his heirs and assigns, to warrant and defend the title to the premises described, against the claim of all and every person whatsoever, as his own proper right in fee simple. The plaintiff averred that the defendant “ had not a good and sufficient title to the said tract of land; and by rea[706]*706son thereof, the said plaintiffs were ousted and^dispossessed of the said premises by due course of law.” The Court say, “ This averment, we think, contains all the facts which constitute an eviction by title paramount. The person who, from want of title is dispossessed and ousted by due course of law, must, we think, be evicted by title paramount.” In Abbott v. Allen, [14 Johns. Rep. 253,] it is said, “ The marked distinction between a covenant of seisin, and those for quiet enjoyment and general warranty, consists in this, that the covenant of seisin, if broken at all, must be so at the veryjnstant it is made; whereas,in the latter covenants, the breach depends upon the subsequent disturbance and eviction, which must be affirmatively alleged, and proved by the party complaining of the breach.” And in Vibbard et al. v. Johnson, [19 Johnson. Rep. 77,] it was held, if a purchaser voluntarily pays the price of the goods purchased, to a third person, who claims them, he cannot afterwards in a suit brought by the vendor against him for the price, set up the want of title in the vendor, and that he had paid the price to the true owner as a defence. The Court saying, “The plaintiffs below being in possession of the tea, sold it as his property to the defendants. [Kennedy v. Strong, 14 Johns. Rep. 128.] They cannot in this way draw the plaintiff’s title in question by their own voluntary act of payment. It is not competent to them to dispute the title of their vendor, unless they have been charged at the suit of another person, who has after contestation shown a better title. The principle is analagous to a demise of a house by A. who is in possession claiming title, to B. The latter receives the possession, and enjoys the premises by the permission and on the letting of A. In an action for the rent, B. cannot set up that A. has nothing in the premises, and that he has paid the rent to C. voluntarily. If C. had recovered the rent and substantiated his title, then it would be a good defence; otherwise not.” See also Livingston v. Bain, 10 Wend. Rep. 384.
In respect to the effect of the recovery by Beale against Lazarus, it may be laid down generally, that in an action by the vendee of personal property against the vendor, upon a warranty of title, a judgment for the property against the vendee by a third person claiming to be the rightful owner, in a suit of : which the vendor had no notice, cannot be given in evidence [707]*707.to prove that the latter had no title. [Sanders v. Hamilton, 2 Hayw. Rep. 226 ; Stevens v. Jack. 3 Yerg. Rep. 403; Jacob v. Pierce, 2 Rawle’s Rep. 204; Blasdale v. Babcock, 1 Johns. Rep. 517; Burrill v. West, 2 N. Hamp. Rep. 190; Coventry v. Barton, 17 Johns. Rep. 142; Stone v. Hooker, 9 Cow. Rep. 154; Copp v. McDugall, 9 Mass. Rep. 1; Bond v. Ward, 1 Nott & McC. Rep. 201. See also Leather v. Poultney, 4 Binn. Rep. 356; Maupin v. Compton, 3 Bibb. Rep. 214; Booker v. Bell, id. 175; Prewit v. Kenton, id. 280; Radcliff v. Ship, Hardin’s Rep. 292; Somerville’s Ex’ors. v. Hamilton, 4 Wheat. Rep. 230; Green v. The New River Company,4 T. Rep. 590.] But it has been held, that although a judgment recovered under such circumstances, will not be evidence of a want of title in the vendor, yet it is admissible to show the amount of damages assessed. [Tyler v. Ulmer, 12 Mass. Rep. 166; Carmack v. Commonwealth, 5 Binn. Rep. 184; Lewis v. Knox, 2 Bibb. Rep. 453; Johnson v. Thompson, 4 id. 294; Key v. Walker, 7 Louis. Rep. 297; Boorman v. Johnston, 12 Wend. Rep. 567. See also 3 Phil. Ev., C. & H’s. ed. 821-2. J And it has been repeatedly adjudged where a party has a right of recovery over, either by operation of law, or in virtue of an express contract, he may give notice to the person so reponsible, of the penden-cy of a suit against him, and if a judgment be obtained without fraud or collusion, it will be conclusive evidence for him against such person upon every fact established by it. The latter, then, cannot be viewed in the light of a mere stranger, but has the same means of controverting the adverse claim, as though he were the nominal and real party on the record. — [Bender v. Frombeyer, 4 Dall. Rep. 436 ; Hamilton v. Cutts, 4 Mass. Rep. 349; Leather v. Poultney, 4 Binn. Rep. 352; Witmer v. Schlatter, 2 Rawle’s Rep. 204; Jacob v. Pierce, id.; Kip v. Bingham, 6 Johns. Rep. 158; Waldo v. Long, 7 id. 173; Barney v. Dewey, 13 id. 226; Bond v. Ward, 1 Nott & McC. Rep. 201; Clark’s Ex’ors. v. Carrington, 7 Cranch’s Rep. 322; Pinney v. Gleason, 5 Wend. Rep. 535 ; Tarlton v. Tarlton, 4 M. & S. Rep. 20; Curtis v. Cisua’s Adm’rs., 1 Ohio Rep. 436; Walker v. Ferrin, 4 Verm. Rep. 523; Belden v. Seymour, 8 Conn. Rep. 304; Collingwood v. Irwin, 3 Watts. Rep. 306; Brewster v. Countryman, 12 Wend. Rep. 446.]
We have stated these principles as tests by which to deter[708]*708mine the sufficiency of the declaration. The first count alleges that the slave Ned, sold by the defendant to the plaintiff’s testator, and by the latter to Lazarus, had been adjudged to be the property of Beale, in an action of detinue prosecuted by him against Lazarus. Now this may be true, and yet the title which the defendant conveyed to the testator, be superior to Beale’s. It should, at least, not only be averred that Lazarus was dispossessed by due course of law, but that the recovery against him was under title paramount to that of the defendant. Such an allegation is the more especially necessary, as it cannot be intended from any thing stated, that the judgment in that action concluded the rights of any one else, than the parties to it. It may be assumed that it did not, and in a suit by Lazarus against the plaintiffs, the question whether the defendant’s or Beale’s title was the best, would be open, and could only be adjusted by proof extrinsic of the judgment in favor of the latter.
The second count is also defective. It deduces the liability of the defendant from the recovery of Beale against Lazarus, the satisfaction of that judgment by the latter, his reimbursement by the plaintiffs, and the notice of these facts by the defendant. If the plaintiffs had notice of the pendency of the action by Beale, and opportunity afforded to defend it, so that the judgment would have been conclusive of their want of title, then they might have discharged the judgment and sued the defendant. Such a state of things would have been equivalent to a payment under legal coercion. But even then, the question of title as between the plaintiffs and defendant, would be subject to the fullest examination.
It is perfectly clear, that the defendant’s covenant with the plaintiff, was a matter not assignable under any statute of ours, and did not enure so as to give a right of action to any one who might subsequently become the purchaser of the slave. Whether the plaintiffs, upon being vouched by Lazarus to defend his title, could have called the defendant to their aid, and thus have made the judgment in favor of Beale conclusive of their right to recover of him, after they had satisfied Beale, is a question which does not arise upon the record; and will not, consequently, be mooted. In addition to the grounds on which this Count places the liability of the defendant,it should [709]*709be alledged, that the plaintiffs were informed of the pendency of the suit against Lazarus, that they might defend the same; and further, that the title under which Beale claimed, was superior to that of the defendants.
From what we have said it will be seen that the third count is palbably bad. It merely affirms, that the defendaht, at the time he made the bill of sale, had no interest in the slave, Ned, “ but the true property was in one James A. Beale.” This may all be true, and yet the defendants covenant be unbroken. There is no allegation of fraud on the part of the defendant to the plaintiff’s injury, nor is it even averred that Beale has at-te'mpted to enforce his title. It is difficult to conceive of a right to recover damages, so long as the enjoyment of the property . is unmolested. If the fact alledged be true, the plaintiff’s tes -I tator might have dissolved the contract by an offer to return) the slave to the defendant, and recovered the purchase money by suit, but it is not pretended such an offer was made, nor indeed can it be successfully.
It is unnecessary, after what has been said, to consider the effect of the arrangement between Lazarus and Mrs. Light, as evidenced by the writing. This will be discovered by an application of the principles stated. It may, however, be proper to remark, that if the plaintiffs can make out a right of action against the defendant, the release contained in that paper will not so inure to him as to defeat a recovery; but the measure of damages will not be the amount of Beale’s judgment — it cannot exceed the injury sustained by the breach of the covenant.
We will not undertake to examine the defendant’s pleas with particularity, as the pleadings will doubtless all be remo-delled, if the case progresses farther. The pleas, with few exceptions, cannot abide the test of legal criticism, and most of them were apparently intended to meet the form of allegation adopted in the declaration.
Our conclusion is, that the judgment must be reversed and the cause remanded.