
    Patrick Roper v. J. H. Rowlett.
    Warranty of Title. Vendor. Vendee. Judgment. In action by a ven-dee of personal property against bis vendor upon tlie implied warranty of title, a judgment for a recovery of the property in a suit brought by a third party against the vendee, of which the vendor had no notice, is not prima faeie evidence of the vendor’s want of title, so as to'throw the onus ux>on him of proving his title.
    FROM SHELBY.
    Appeal in error from the Circuit Court of Shelby county. J. O. Pierce, J.
    
      Herbert Rhett for Roper.
    Johnson & Ford for Rowlett.
   McFarland, J.,

delivered the opinion of the court.

Rowlett brought this action against Roper to recover the value of four bales of cotton, the title to which he alleges was at the time not in Roper but •in one Wilson. The only direct evidence on the question of the title to the cotton introduced by the plaintiff, was the record of an action of replevin brought against him by Wilson, in which there was judgment in Wilson’s favor for a recovery of the cotton. Roper had no notice of the bringing of this suit or opportunity to defend. The circuit judge held that the judgment was prima facie evidence in the plaintiff’s favor, and threw upon the defendant the onus of proving that a good title passed by the sale to the plaintiff.

We do not find this holding sustained by the authorities. The case of Stephens v. Jack, 3 Yer., 403, holds the contrary, where, in a similar action, a similar record was offered and rejected, upon the ground that no one ought to be bound by a judgment or verdict to which he was not a party, where he could make no defense, from which he could not, appeal, and which may have resulted from the negligence of another .or may have been obtained by fraud and collusion. And so the rule is laid down in Freeman on Judgments, sec. 186. Where notice has been given to the vendor, the rule is different. We do not find any case in this State maintaining a different rule from the one laid down in Stephens v. Jack.

There was also a strong controversy as to whether the plaintiff in fact purchased the cotton from Roper ■or from one Halsey, who claimed to own it, or whether Roper was so connected with the sale as to be held a warranter of the title. As the judgment must be reversed and a new trial granted upon the first ground, we express no opinion upon this latter question, as the proof may be different on another trial.

The cause was tried by the judge without a jury, and in such cases we sometimes, in reversing, render a final judgment in this court, but in the present case we deem it proper to remand for a new trial.

The judgment will be reversed and a new trial .awarded.  