
    Cahill v. Smith.
    
    
      (Court of Appeals,
    
    
      Filed February 2, 1886.)
    
    Sale—Agreement—Breach of warranty—When actual eviction not NECESSARY TO ENTITLE PARTY TO RECOVER.
    Where defendant sold store fixtures to plaintiff, giving a hill of sale containing a covenant to “ warrant and defend the sale,” etc., and also agreeing to satisfy a certain chattel mortgage for $700, but did not do so, and the mortgage was foreclosed and the fixtures sold to one N., to whom, on his claiming the property, plaintiff paid $1,000 to get it hack, though the fixtures were not disturbed. I-Ield, that plaintiff was entitled to recover $700, the amount of the mortgage, although no actual eviction had been proven, as his submission, though peaceable, was not voluntary.
    
      JY. C. MoaTc, for appellant.
    
      W. JY. JMJcGuldricJc, for respondent.
    
      
       Affirming 31 Hun, 172, mem.
      
    
   Danforth, J.

On the 6th of January, 1882, a mortgage was executed to one McElroy upon certain store fixtures. Afterwards the defendant sold them to the plaintiff at the price of $1,800, giving a written bill of sale, dated June 23, 1882, with a covenant “to warrant and defend the sale” thereof “against all and any person or persons,” and a writing dated June 24, 1882, acknowledging payment of “the sum of $1,800, the consideration named in the bill of sale,” and also certifying that the chattel mortgage above referred to “will hereafter be satisfied by me.” These papers were signed by the defendant. In December, 1883, the debt being unpaid, the mortgage was foreclosed by its then owner, and sold to one Norton for $700, the amount ■ due on the mortgage. He claimed the property, and the plaintiff paid him $1,000 to get it back. It appeared that Norton chd not in fact remove the fixtures, and that the plaintiff’s business, in which they were used, was not interrupted. This action was for damages by reason of the breach of defendant’s agreement. The facts were not disputed, and the trial court held the plaintiff entitled to recover, but only $700, the amount due on the mortgage, and directed a verdict in his favor. Upon the trial the defendant claimed, among other things, that no actual eviction had been proven, and the necessity for this presents the only point made in support of this appeal.

We think it is without merit. The title to which the plaintiff yielded was paramount to that acquired by him from the defendant, and he was not required to forcibly retain possession, or by violence resist the lawful demand of the purchaser. He could not withhold the property without becoming a wrong-doer, and his submission, therefore, although peaceable, was not voluntary. Under such circumstances the right of a purchaser for redress for breach of a warranty of title is well settled. Bordwell v. Collie, 45 N. Y., 494; McGiffin v. Baird, 62 id., 329. In the present case, however, the plaintiff was not only deprived of his title by enforcement of a valid prior mortgage and sale under it, but regained a right to its possession only by paying money upon an obligation which the defendant had expressly agreed to satisfy, but did not. There was a breach of both agreements, and the plaintiff justly entitled, to recover.

The judgment should be affirmed.

All concur.  