
    Hunt against Lewis.
    No evidencs ted to ^ shew ^Panels/exaction of ejectment, un less on a covenant that sel-lei* was ljtw-i fully seised,
    C-ASE to recover back money paid for land, for which she defendant had no titles when sold, as alleged by plaintiff. In December, 1787, plaintiff and defendant entered into an agreement for the sale and purchase of a tract of land on the Wateree river, by which, the defendant engaged to make J „ titles to the land in question, and to warrant it against all the world, except Mr. Michie and his heirs ; and the plaintiff, on his part, agreed to pay the consideration money. The plaintiff, agreeable to contract, paid the purchase money thirty guineas; but soon after discovered (as he alleged) that the land belonged to another person, and that Lewis had no right whatever to it. This was, therefore, an action to recover back the sura of thirty guineas, with interest» The plaintiff proved the agreement, and payment of the money to Lewis s and on calling a witness to prove (as he stated) that Lewis had no right to the land he sold him, the testimony was objected to fay
    Ford, as having a tendency, collaterally, to try title to a freehold., which could be regularly done only in an action of ejectment or trespass.
   Bat, J.

who presided, declared, that this kind of evidence was inadmissible, unless there had been an express covenant on the part of Lewis, that he was at the time of sale the lawful owner ; in which case, a defect of title might be given in evidence. But, in the present instance, the Covenant was, that he, Lewis, would warrant and defend it against all others, but Mr. Michie and his heirs ; under which latter covenant no cause of action accrues until a recovery over and eviction by some other person, having a title paramount. Besides, the 3d clause of the limitation act, passed in 1712, expressly declares, that the judges shall allow no other claim to lands but by action at law. Indeed, the party himself seems to have been aware of Michié’s claim, and until some other person appeared and maintained his title by due course of law, the plaintiff, in the present case, could have no cause of action.

Let the plaintiff be nonsuited.

N. B.

The principles of the above case have been since overruled at the constitutional court of appeals, on the ground of a failure of consideration which the defendant may give in evidence, before an eviction, either by parol testimony, or by elder grants or deeds, &c. &c.  