(dissenting). Upon reconsideration of this case, on the petition for re-hearing, I find myself unable to sustain the decision heretofore rendered. In the first place the court below, through the judge sitting at the time, overruled a demurrer to the answer; but on the day the cause was called for trial, another judge, without any motion to vacate the order overruling the demurrer, entertained the motion for judgment on the pleadings and granted it inxta/nter.
This I cannot but regard as an irregular and unwarrantable practice. The order overruling the demurrer was a judgment of the court, upon which the answering parties had a right to rely that they would have a trial upon the merits, until it was set aside in some regular way. Had the order been set aside and the question upon the demurrer been re-argued, then, if the demurrer were sustained, the parties would have had a right to amend if they could, and might have cured the defects found. But the motion *420for judgment was permitted and sustained, and the power to amend cut off in the face of the former undisturbed judgment, as though it never existed. This is neither good nor seemly practice.
Secondly, I think the answer was good both as a defense and a counter claim, although the facts were not in form designated as a counter claim. Affirmative relief, viz., the rescission of the contract, the cancellation of the notes and mortgage and the reconveyance of the land, was demanded, and facts sufficient therefor were stated.
The complaint set out the deed containing a covenant that the grantors were the owners in fee of the premises, free of all incumbrances. The answer alleged that the grantors represented that they had perfect title to the premises, and knew that without such title the guarantors would not have become responsible upon the notes; that the grantors never had title to an undivided three-fourths of the premises, but that the same was vested in other persons named, and that to certain described portions of the premises they had no title at all. No actual possession of any of the land was taken, but, nevertheless, as soon as the state of the title was ascertained, a demand was made upon the grantors for a rescission -of the entire contract, and a deed of reconveyance was tendered. Upon such facts, which I have very briefly summarized, I think a clear case for rescission was made out, which was enforcible as a counter claim in the suit on the notes.
I know it is the general rule that a purchaser of real property under a deed of general warranty cannot defend a suit for purchase money by showing a merely defective title. But this was not a deed of merely general warranty, for the grantors covenanted that they were the “ owners in fee.'' Covenants of quiet possession, warranty of title, and the like, are not equivalent to this. Such covenants are not broken until ouster; but the covenant of ownership is *421broken instantly, if ownership in fee does not in fact exist, for it is equivalent to a covenant of seizin and good right to convey. Rawle on Covenants, §58; Devlin on Deeds, §§ 887-8.
But these matters of defense have nothing to do with the question of rescission, which lies in every case where, by misrepresentation, a party has succeeded in inducing another to accept in fulfillment of a contract that which is materially different in quantity, quality or title from what the representation led him to suppose it to be. This right, of rescission continues although the contract be an executed one, Warvelle on Vendors, p. 836, §7; and it is a remedy for defective title to real property. Id., p. 843, §10.