
    *Charles H. Picket’s Administrator v. Albert L. Picket’s Administrator.
    1. A purchaser of land, who has received a deed, containing a covenant of warranty, can not plead in bar to an action on a note given for the purchase money, defect of title, unless he has been evicted by title paramount.
    2. Therefore, in an action brought by A against B, on a note given by B for the purchase money of land, B plead in bar that A executed to him a deed for the land, with covenants of general warranty; that, at the time the deed was made, there was a lien on the land by a judgment against A, upon which the land was sold, and sale confirmed; and that he (B) had yielded up possession to the superior title of the purchaser under the execution. On demurrer, held, that the plea was defective, in not averring that a deed had been executed to the purchaser under the execution.
    Assumpsit. Eeserved in the district court of Delaware eouu'ty.
    The plaintiff brought suit on a note of hand. The defendant plead specialty, that the note was given for land conveyed by ’Charles TI. Picket to Albert D. Picket, with covenants of general- ; warranty; that at the time of the conveyance there was a judgment ' lien on the land ; that the land was sold as the property of Charles H. Picket, to the judgment creditor, under execution issued on the judgment; that some seven months after the date of said conveyance, the sale made by the sheriff was confirmed by the court and' a deed ordered to be executed to the purchaser; that by moans "thereof the said Albert L. Picket lost all right and title to the land; that the purchaser took possession thereof, and by his superior title evicted the said Albert therefrom.
    To this plea the plaintiff demurred; and the court of common pleas sustained the demurrer, and rendered final judgment for the plaintiff.
    The defendant appealed the cause to the district court, *and that court reserved the questions raised on demurrer to the plea, for decision in this court. .
    
      Finch & Critchfield, for the plaintiff.
    
      James A. Barnes and T. W. Powell, for the defendant.
   J. R. Swan, J.

The facts set forth in the plea, do not constitute a bar. To entitle the defendant holding a deed with covenants for title, to set up a defense to the payment of -purchase money on account of defect of title, the plea must show clearly a breach of the covenants. In this ease the defendant claims that there has been a breach of the covenant of warranty. The plea should therefore aver .an eviction, actual or constructive,.by paramount title. The case of Frisbee v. Hoffnagle, 11 Johns. 50, has been repeatedly overruled. Hibbard v. Johnson, 19 Johns. 77; Lattin v. Vail, 17 Wend. 188; Hoy v. Taliaferro, 8 Smed. & Marsh. 739; Tallmadge v. Wallis, 25 Wend. 116; Whitney v. Lewis, 21 Id. 131; Lamerson v. Marvin, 8 Barb. S. C. 11.

In the case before us, the premises were sold on an execution, ■and the sale confirmed. No deed has been made by the sheriff; at least none is averred; so that the legal title is still in the defendant. This is fatal to the plea. If no deed has been made by the •sheriff to the purchaser on the execution, the covenants of warranty run with the land to the heirs of Albert L. Picket; but the effect of this, if any, it is not necessary to determine. The effect, too, of Albert L. Picket receiving the rents and profits for about seven months, it is also unnecessary to' consider.

Pemurrer sustained.

Brinkerhoee, Bowen, and Scott, JJ., concurred.

Bartley, C.. J., dissented as to the first proposition of the syllabus, and concurred as to the second.  