
    Wood, appellant, v. Forncrook.
    
      Deed—breach of covenant in.
    
    Defendant executed to plaintiff a deed of uninclosed and uncultivated lands containing a covenant for quiet and peaceable possession. At the time the deed was executed there was a mortgage upon the premises, and subsequently the mortgage was foreclosed and the premises sold; but the purchaser did nothing to evict the plaintiff. Held, that the plaintiff could not maintain an action against defendant for breach of the covenant in the deed.
    Appeal from a judgment at circuit in defendant’s favor. The action was brought by FFoah Wood against Betsey 0. Forncrook to recover for an alleged breach of warranty ip a deed of land. The land conveyed by the deed was uninclosed and uncultivated; but at the time of conveyance there was an outstanding mortgage which was subsequently foreclosed, and the premises sold; but the purchaser did nothing to disturb the possession of the plaintiff. The deed to plaintiff contained a covenant for quiet and peaceable enjoyment of the possession of the premises conveyed. The purchaser of the premises at the sale under foreclosure was the husband of defendant, and he told plaintiff his rights would be sacred. At the trial the plaintiff was nonsuited, and judgment was rendered for defendant. Plaintiff appealed to this court.
    
      William Roe, for appellant,
    cited Cowdrey v. Coit, 44 N. Y. 383; Rome Life Ins. Co. v. Sherman, 46 id. 370.
    
      J. H. Camp, for respondent.
   Mullin, P. J.

The plaintiff was rightly nonsuited as no eviction was proved.

The owner of the legal title to uninelosed and uncultivated land is presumed to be in possession, as possession in law follows the title.

To entitle a plaintiff to recover damages for the breach of the covenant for quiet enjoyment an eviction must be proved, or he may, in the event of his title being divested by a superior title, surrender possession to the owner of the superior title, or notify his grantor that he relinquishes all claim to said premises, or he may show that the owner of the superior title has offered them for sale. St. John v. Palmer, 5 Hill, 599; Greenvault v. Davis, 4 id. 643; Cowdrey v. Coit, 44 N. Y. 382; Home Life Ins. Co. v. Sherman, 46 id. 370.

Although the title of plaintiff was divested by the foreclosure of the mortgage and sale of the premises thereunder, the plaintiff’s possession has never been disturbed, nor has he surrendered possession, nor has the purchaser at the sale sold or offered, or even threatened to sell the premises; but on the contrary, has recognized plaintiff’s title as still valid. The judgment must be affirmed.

Judgment affirmed.  