Paul against Witman, 3 Watts & Serg. 407

The opinion of the Court was delivered by Rogers, J. — An eviction by a paramount title is prim&. facie evidence in favour of the warrantee in a suit on the warranty. And if the warrantee takes the precaution to vouch or call in the warrantor to warrant and defend the title, the recovery in ejectment is conclusive. It was on the principle that the warrantor had been vouched, that the court excluded evidence of title in the warrantor at the time of the conveyance. The only doubt is as to the application of the principle.

Mr Alricks says, he drew the forms of the notices to Mr Paul before the cause was tried; that Paul came to him and talked about the cause, and said he had an agreement that would defeat the plaintiffs in ejectment: that he was uneasy about it, and that he notified him of the trial. The notices were not produced, nor are their contents proved, nor is there any proof that they were served. The evidence amounts to nothing more than that the warrantor knew of the ejectment, and that he had notice of the trial. But it nowhere appears, that he was vouched or required to defend the title.

To have the effect of depriving the warrantor of the right to show title, the notice should be unequivocal, certain, and explicit. A knowledge of the action and a notice to attend the trial will not do, unless it is attended with express notice that he will be required to defend the title. When the warrantor is properly vouched, he becomes in effect the real party in interest to the ejectment. Whether the plaintiffs can sustain a joint suit, is a point not without difficulty.

The contract was made with the testator; and it would be unreasonable that he should be at liberty, by devising the land in separate parcels, to subject the warrantor to as many actions as there were devisees. Suppose the warrantor, on eviction of the warrantee, is ready and willing to pay, how is he to ascertain the proportion to which each of the devisees is entitled, when the portions of the real estate devised are of unequal value? Is the warrantor to be liable to as many suits as there are heirs ?

Although as between themselves their interests are several, yet as respects the warrantor they hold a joint interest, and as such may sue jointly. Of this, as it is for his benefit, the warrantor cannot complain. When a joint interest is created, either by the parties or by act of law, the covenantees cannot sever in the action. And the reason assigned is, that if several were permitted to bring distinct actions for one and the same cause, when the interest is joint, the court would be in doubt for which of them to give judgment. Slingsby’s Case, (5 Co. 19); 1 East 500.

That all the heirs should join in the suit, is but justice to them as well as the covenantor, for they are equally entitled to the money. Devisees may apportion the money between themselves, and why compel them to bring separate suits, when it is to their advantage, as well as the warrantor’s, that the suit should be joint ? Whether separate suits will not lie, may perhaps be doubtful, since the decision of Twynam v. Pickard, (2 Barn. & Ald. 105). In that case, it is ruled that covenant will lie by the assignee of the reversion of part of the demised premises, against the lessor, for not repairing.

That the plaintiff must aver an eviction in his declaration, is too clear for argument. 3 Saund. P. 178, note; 3 Serg. fy Rawle 364, 372. In this particular, the narr. is bad. The averment of an eviction is one thing, the evidence of an eviction is another. We have here no difficulty in saying that a judgment in ejectment without more, is not an eviction which will sustain an action on the covenant of warranty. There must be a change of possession. But is the defect cured by verdict1? We are of opinion it is not, because the defect is in the plaintiff’s title, and not in the manner of stating it.

Judgment reversed, and venire de novo awarded.