
    Jonathan Hamilton versus Ann Cutts and Others, Executors of Samuel Cutts
    In an action upon a covenant of warranty of lands, the Court will receive pinol evidence of an ouster.
    And the plaintiff will recover in such action, though he may have voluntarily yi-dded to a dispossession; provided the title to which he yielded he good and paramount to that of his warrantor.
    
      But in such case the burden of proof will be on the plaintiif. If the eviction be by a judgment at law, such judgment will be plenary evidence, unless it was obtained by fraud.
    This was an action of covenant broken, grounded on a deed made and executed by Samuel Cutís, the testator, in the year 1774, conveying to the plaintiff, in fee simple, one hundred acres [ * 350 J of land in Berwick, and containing a covenant *to warrant and defend the granted premises to the plaintiff, his heirs and assigns forever, against the lawful claims of all people. The plaintiff alleges that, before and at the time of the execution of the said deed, one David Moore was the owner in fee of sixty acres, part of said granted premises; and that, in the year 1792, one Daniel M’ Crealis, who then held all the right and estate of said Moore, entered into possession of the said sixty acres, evicted the plaintiff therefrom, and has ever since held and possessed the same.
    The defendants, in their plea, traverse the alleged eviction, and issue being joined on the traverse, the cause was tried before Thatcher J., at the last October term in this county.
    Upon the trial, the defendants admitted the title of the sixty acres to be in Moore, as alleged in the plaintiff’s declaration. They also admitted that M’Crealis, at the time of the alleged eviction, had all the estate of Moore.
    
    The plaintiff called sundry witnesses to prove the eviction. The counsel for the defendants objected to their testimony being received as legal proof of an eviction, contending that an eviction could only take place by means of a recovery at law of the lands from the grantee, and that the only proper evidence, in such case, was the record of the judgment on which such recovery and eviction were had. The judge overruled the objection, and admitted the evidence.
    Upon the examination of those and other witnesses, it appeared that, a short time before the alleged eviction, M Crealis called on the plaintiff, who till then had exercised all the acts of ownership usual in the case of uncultivated lands, and inquired if the plaintiff had a deed of the said hundred acres. The plaintiff said that he had such a deed, and that Cutís supposed, at.the time of making the deed, that he had a title to the whole lot; but the plaintiff acknowledged that he, in fact, was entitled to but forty acres. Upon M Crealis’ expressing his desire to have his sixty acres set off to him in severalty, the plaintiff gave him liberty to take his share in any part of the lot he might choose, confessing to him that Cutts, the grantor, had repaid him part of the consideration money paid for the land, and at the same time expressing his inten tian of commencing an action against him, unless he repaid * the whole money for these sixty acres. MCrealis, [*351. ] accordingly, in the year 1792, did, with the plaintiff’s consent, as above stated, enter and take possession of sixty acres, part of the granted premises, and has quietly held the same until the time of the trial.
    Upon these facts, the counsel for the defendants contended to the Court and jury that there was no legal evidence of an eviction of the plaintiff from the said sixty acres, and that the action was not maintained.
    The judge instructed the jury, that, upon the foregoing facts, the plaintiff was entitled to a verdict; and they found their verdict accordingly. The counsel for the defendants .filed their exceptions to the said opinions and direction of the judge, and the action was continued to this term upon the defendants’ motion for a new trial on the ground of those exceptions.
    And now Mellen, in support of the motion, contended that an eviction, in order to give the party evicted a remedy against his warrantor, must be shown to be by force of a judgment at law; or if a judgment should not be held necessary, still he insisted that the eviction should be against the will of the party upon whom it was done, and not, as in the present case, by his voluntary consent. 
    
    
      Emery, for the plaintiff,
    insisted that the knowledge which the case finds that Cutts, the grantor, liad of the defect in his title, was at least a balance for the plaintiff’s yielding quietly to a claim, which, it is agreed, must have been successful, if it had been prosecuted at law.
    Eviction is defined in the civil law to be the loss which the buyer suffers, either of the whole thing that is sold, or of a part of it, by reason of a right which a third person has to it. And by the ancient common law, if it appeared that the lord had invested his vassal with a fief that did not belong to him, he was bound to give him another fief of equal value, or the price of it in money, as soon as it clearly appeared that the vassal would be evicted of the fief;  so that actual ouster was not necessary to entitle the party to his remedy on the warranty.
    * There could be no reason that the plaintiff should [ *352 ] resist the claim of M Crealis, which not only he himself, but Mr. Cutts, his warrantor, also, was well satisfied must prevail To have insisted on a judgment at law would have been adding the expense and vexation of a suit at law to the damages he must finall) recover against Cutts on his warranty.
    
      
      
        Jacob’s Dict., Eviction
      
    
    
      
      
        Hargrave and Butler's Notes on 1 Inst. lib. 3, note 315.
    
   The opinion of the Court was afterwards delivered as follows by

Parsons, C. J.

This is an action of covenant broTten, on a deed oi the defendant’s testator, conveying one hundred acres of uncultivated land, with general warranty. The plaintiff assigns, as a breach of this covenant, that, at the time of the conveyance, one Moore was lawfully seised in fee of sixty acres, parcel of the said one hundred acres, and that afterwards one M Crealis, holding Moore’s title, had entered into possession of, and evicted the plaintiff from, the said sixty acres. The defendants traverse the eviction, and issue being joined thereon, a verdict is found for the plaintiff. The cause now comes before the Court upon a motion for a new trial by the defendants for a supposed misdirection of the judge at the trial.

The first objection is, that the judge admitted paroi evidence to prove the eviction, which the counsel for the defendants contend can only be proved by the record of a judgment at law. And we are all of opinion that, to prove an eviction, according to its strict and technical meaning, a judgment of court is necessary. But we are inclined to give to the term a more extended signification, and to understand it in that case as synonymous with ouster.

But, secondly, it is contended that here was no legal evidence of an ouster; because the dispossession took place with the consent of the tenant in possession.

It is true that, if the tenant consents to an unlawful ouster, he cannot afterwards be entitled to a remedy for such ouster. But an ouster may be lawful; and in that case the tenant may yield to a dispossession, without losing his remedy on the covenant of warranty, which in this state is a personal action of covenant broken. There is no necessity for him to involve himself in a lawsuit to defend himself against a title which he is satisfied must ultimately prevail.

[ * 353 ] * But he consents at his own peril. If the title, to which he has yielded, be not good, he must abide the loss; and in a suit against his warrantor, the burden of proof will be on the plaintiff; although it would be otherwise in case of an eviction by force of a judgment at law, with notice of the suit to the warrantor. For in such case, unless it be obtained by fraud, the judgment itself will be plenary evidence.

In the case at bar, it appears that M Crealis had a good title to the sixty acres, paramount to the title of Cutts. And the plaintiff, by consenting to his taking possession, did not lose his remedy for this lawful ouster against his warrantor.

Judgment according to the verdict  