
    America Purcell v. Thomas Heeny and Wife.
    In an action to recover- purchase money of real estate against tlie vendee, wlio is in peaceable and undisturbed possession thereof, under a conveyance from the vendor, with covenants of general warranty, and who seeks to defeat a recovery by alleging an outstanding title in fee in a third person, to an undivided interest — Held:
    1. That independent of the remedial provisions of section 557 of the civil code, as amended ^G7 Ohio L. 116), such defense, to be sufficient, must show an eviction or something equivalent thereto.
    2. Under the provisions of said amended section, such third person is a necessary party, in the absence of such eviction, and the validity of his title must first be established before the vendee can have recourse to the plaintiff, or before such defense becomes available to defeat recovery.
    Error to District Court of Muskingum county.
    Purcell, as the assignee of a non-negotiable note, payable to one Romine, and secured by a mortgage on real estate, brought an action against Heeny and wife, makers of the mortgage, to recover a judgment on the note and for a foreclosure. The defenses were: 1. That plaintiff did not own the note; 2. That'the note was part of $2,700 purchase money of the mortgaged premises bought of Romine, who had conveyed by a deed of general warranty, and that one Catharine Moore was the owner in fee of one undivided one-seventh of the premises covered by the warranty; 3. That at the time of the delivery of this note to Romine by Heeny, he had agreed to get in this outstanding title, which Catharine Moore owned, or claimed to own, which he had failed to do; that its value was equal to the note sued on, and that Romine was insolvent, and unless defendant was allowed to withhold payment, he would be without a substantial remedy.
    Catharine Moore was thereupon made a defendant, and ■with her husband joining, filed an answer, setting up title in fee to this one-seventh.
    At January term', 1871, on motion of Iieeny’s counsel, as we infer from subsequent proceedings, Catharine Moore and her husband were dismissed from the case, and their answer was stricken out, the court finding they were improperly made parties, and that no rights of theirs were or should be affected by the action.
    February term, 1872, the plaintiff moved to restore their answer, and that he be allowed to reply to the same, which was overruled, and exceptions noted by plaintiff; trial had, and judgment for defendant, with motion for new trial, and bill of exceptions taken to the rulings of the court in that behalf.
    
      F. A. Seborn, for plaintiff in error.
    
      Fall ¡¡¡¡ O'Neil, for defendant in error.
   By the Court.

Independent of the provisions of section 557 of the Civil Code, as amended (67 Ohio L. 116), a vendee of real estate in peaceable and undisturbed possession, with covenants of general warranty, can not defeat a recovery by the vendor of the unpaid purchase-money, by merely showing that there is an outstanding title to an undivided part of the premises. In such case, to constitute

good defense to such'an action, the vendee must show an eviction or something equivalent thereto.

Under the remedial provisions of said amended section, the holder of such outstanding title, in the absence of such an eviction, is a necessary party to the action in order to make such a defense available, and the validity of such title must first be established before the vendee can have recourse on the vendor for the purchase-money, or before such defense becomes available to defeat its recovery.

The judgment of the common pleas and district court is reversed, and the cause remanded.  