
    Jane W. Buckels, Administratrix, v. James L. Mouzon, et al., Executors of Samuel Mouzon.
    The record of a judgment, obtained against the purchaser, in an action of trespass to try title, to which action the warrantor, though notified, did not appear, will not. be considered as evidence of paramount title in the plaintiff to that suit, in an action brought by the purchaser on the warranty.
    The English practice, touching voucher, has no place with us.
    Tried before Mr. Justice Frost, at Williamsburg, Spring Term, 1847.
    This was an action of covenant on the warranty of the title to a tract of land, conveyed by Samuel Mouzon to Emanuel Buckels, the plaintiff’s intestate. The plaintiff produced, and rested his case on, the record of a recovery of the land conveyed, in an action of trespass to try title, wherein one Robert H. Fulwood was plaintifl’, and Emanuel Buckels, defendant. In this action the defendant, had entered no appearance. The declaration was filed in October, 1844, and the case ordered for judgment the same day; and in November, Term, succeeding, judgment was rendered. It was proved for the plaintiff, that, at the Spring Term preceding, Buckels had told Samuel Mouzon that he must defend the suit which Fulwood had brought; and that Mouzon had said he would have nothing to do with it; but. that Buckels must defend it himself.
    The plaintiff was non-suited, because the judgment in Ful-wood v. Buckels, was no evidence of the title of the plaintiff; which was not put in issue, but was admitted by the refusal or neglect, of Buckels to plead to the action—and that the effect of the judgment by default, as evidence for the defendant against the vouchee, was not distinguishable from a, judgment by confession.
    The plaintiff appealed, and moved the Court of Appeals to set aside the non-suit, on the. ground,
    That, the record of recovery by R. H. Fulwood against Emanuel Buckels, the plaintiff’s intestate, was evidence, of a paramount, title in the said R H. Fulwood, and that the presiding Judge erred in holding this evidence sufficient.
    Miller, for the motion.
    Moses, contra.
    
   Withers. J.

delivered the opinion of the Court.

We concur with the presiding Judge, that the plaintiff should have been non-suited, nor have we any fault to find with the grounds upon which he placed it. It is quite unnecessary to go into the learning of the books in regard to the English practice touching voucher, for it has been sufficiently established that such practice has no place with us. It may be, that at some convenient season hereafter the Court may prescribe a rule defining .how and when a party, warrantor, may be vouched, and what shall be the evidence appropriate and sufficient to establish the fact. But in the case before us we see enough to determine it against the plaintiff. 1st. Because, admitting (for argument’s sake) that the record offered would be evidence against the defendants of what, was put in issue, there is no issue—nothing put in issue by a plea—no appearance even was entered—and it would he hard indeed to say that the deceased testator, or these defendants, shall be bound by a recovery against another, because he did not defend the action when vouched, when that other did not appear and plead so as to enable the vouchee to take the position of de-fence. 2d. Because, we can see much mischief involved in the proposition that a judgment by default should operate to prove title paramount, and legal eviction against a warrantor, as between him and the warrantee; for who shall say how much oí such a result may be attributable to collusion, or to culpable negligence? So far as there was a community of sentiment in the Court in the case of Middleton v. Thompson, 1 Spears, 67, that case, is strongly against the plaintiff.

The motion is dismissed.  