
    Ferrell vs. Alder, adm'r.
    
    An action of covenant for breach of warranty of title to real estate. In this case it is held, that a verdict and judgment against the vendee of a tract of land, in an action of ejectment by him instituted against a third person in possession, with notice to the vendor, to appear and prosecute the action, is no evidence of a better outstanding title.
    Ferrell sued McClain in covenant on a warranty, in a deed of conveyance for fifteen acres of land, in the circuit court of Claiborne county. The defendant pleaded: — 1st. That he bad performed the covenant — and 2d. That the deed of warranty executed to Ferrell was champertous and void, because at the date of execution thereof the land sold was adversely held. Issues were made involving the truth of these pleas. The ( plaintiff introduced a verdict and judgment against himself in an action of ejectment which he had instituted against Owen, who was in possession of the land, and a notice given by him to McClain, during the pendency of the suit, to appear and prosecute the action.
    This evidence was objected to by the defendant, McClain, but the court overruled the objection, and it was read to the jury with instructions, that it was evidence of a better outstanding title at the time of the sale to Ferrell, and cast upon the defendant to show that he had good title ■ at the time of the sale. The jury returned a verdict, that the defendant had not performed his covenant, and that there was no champerty in the deed of warranty, and gave damages to the amount of five hundred and eleven dollars.
    On this verdict the presiding judge, R. M. Anderson, gave judgment for the plaintiff, and defendant appealed. McClain died, and Alder was‘appointed his administrator, and the suit was revived against him.
    
      R. J. McKinney, for plaintiff in error.
    
      Sneed, for defendant in error.
    He cited Martin & Yerger, 58; 6 Mass. 369; 2 Greenleaf, sec. 244.
   Turley, J.

delivered the opinion of the court.

This is an action of covenant upon a warranty in a deed of conveyance for fifteen acres of land sold by McClain to Ferrell.

Upon the trial it appeared, that at the date of the sale McClain was not in the actual possession of the land; and that Ferrell had brought suit to get the possession against one Wm. Owen; that he gave McClain notice to appear and prosecute the suit, which McClain neglected to do; that Ferrell lost the suit against Owen, and then commenced an action upon the covenant of warranty against McClain, and introduced the record of the verdict and judgment in the case against Owen as evidence of a better outstanding title against McClain.

Upon the trial the circuit judge charged the jury, that the verdict and judgment proved a better outstanding title, and cast the onus upon the defendant to show that he had the better title, to support the plea of covenant performed, and that as the defendant had not shown such title, the plaintiff was entitled to recover.

This is an anomalous case; none like it has been produced, and to sustain the position assumed by the circuit judge, would, as we think, be to engraft a new principle upon the law, unwarranted by authority. Where the vendee has been sued, he may notify his vendor to appear and defend the suit, and provision is made by law for making him defendant; but there is no principle by which he'can be substituted , as a plaintiff in the action of ejectment, and we therefore can think of no reason for notifying him in such a case to appear; and hold that the charge of the judge, upon the effect of the record relied upon, was erroneous. For which Cause the judgment will be reversed, and the cause remanded for a new trial.  