Where the declaration upon a warranty oftitle, o'r covenant fora conveyance, alleges, that there has been an eviction, by the holder of an adverse,, superior title— there is a sufficient assignment ofabreachinthat. respect; no express averment, that the superior title existed before the date of the warranty, is necessary,where; it appears that it was adverse— not derived from plaintiff himself. The declaiation here avers, that, the land was lost by “a superior- and better title than theonesold by the defendant,” and is held to be cl early good
But the counsel for the defendant insist, that the declaration is fatally defective, even after verdict, in not averring that the judgment of eviction was upon a title acquired prior to the date of the covenant, and they have called the attention of the Court to the case of Stephens vs. Puttie, 3 Bibb, 117. The principle recognized in that case is well understood and established. But, though it was properly applied then, it has no application to the declaration in this case. The averment as to the judgment of eviction in that case, was merely that there had been a judgment in an action of ejectment, and the Court correctly decided, that such an averment was insufficient, because it did not show that the judgment was rendered on a title adverse and paramount to that respecting which the warranty had been made. The Court did not so decide in express and direct terms, but it should be understood as intending nothing else, by declaring that the declaration should aver that “the person evicting had lawful title before or at the date of the grant to the plaintiff,1” Such an averment was required in that case, only for the purpose of showing that the title of the evictor was adverse and superior to that of the vendor of the person evicted. For the Court said that, without that, or some other averment importing that the successful party in theejectment recovered upon an adverse title, his title, though superior, might have been acquired after the date of the covenant of warranty and from the covenantee himself. It would be unreasonable to presume that the Court intended to be understood in any other sense — as the authority (Wotton vs. Hele, 2 Saund. 178,) cited in support of the opinion, will show — and as is manifest also, from the following language at the close of the opinion:— “ the declaration should contain an allegation that the “ person evicting had lawful title before or at the date of “ the grant to the plaintiff, or some other averment from “which it would be evident the claim under which the “ eviction was had, is adverse and superior to that granted “ the plaintiff1” And the latter branch of this quotation is abundantly sustained by reason, practice and authority. Kirby vs. Hansaker, Cro. Jac. 315; Wotten vs. Hele, 2 Saund. 180.