The opinion of the court was delivered, May 20th 1868, by
Sharswood, J.Nothing appears to be better settled in this state as well as elsewhere than that to maintain an action upon a covenant of general warranty, an actual eviction must be averred and proved. Not indeed that the party need wait to be actually turned out of possession by legal process, for he may surrender when the result is plainly inevitable. In one case it was held that a judgment in ejectment by itself was not sufficient: Paul v. Witman, 3 W. & S. 407. All the cases agree that there must he a change of possession: Clarke v. McAnulty, 3 S. & R. 364; Stewart v. West, 2 Harris 336; Dobbins v. Brown, 2 Jones 75; Wilson v. Cochran, 10 Wright 229. It is different where an action is brought to recover unpaid purchase-money. There the defendant in Pennsylvania has always been allowed to set up as an equitable defence any outstanding better title actually asserted, which would amount to a failure of consideration of the contract of purchase, whatever may be the actual covenants in the deed of conveyance. Such a defence was permitted originally because equity was always a part of the law of this state, and the defendant could avail himself as a defence of whatever matter would entitle him to relief at the hands of a chancellor. That was the principle on which was decided Steinhauer v. Witman, 1 S. & R. 438, and the long train of authorities which have' followed in its wake.
It is not necessary to vindicate the law as thus settled, but there would be no difficulty in doing so. The warrantee can always give notice to his warrantor of any threatened claims, and it is his duty and interest to do so as well to save him from unnecessary cost as to render the proceeding, if successful, conclusive against him. To allow him to settle outstanding claims or encumbrances without notice or suit, and then recover the amount on his covenant, would pla.ce his covenantor at great disadvantage in point of evidence, and otherwise in defending against him instead of the original claimant.
It is urged also that the words “ grant, bargain and sell” constitute an implied covenant, not only against encumbrances done and suffered by the grantor, but by all who have preceded him in the title. A dictum by Judge Duncan to this effect in Funk v. Voneida, 11 S. & R. 111, is relied on. No such question arose in that case, which was that of a mortgage by the grantor himself. *485The provision of the Act of May 28th 1715, § 6, 1 Smith’s L. 95, is that those words “ shall be adjudged an express covenant that the grantor was seised of an indefeasible estate in fee simple, freed from encumbrances done or suffered from the grantor.” “The meaning,” says Tilghman, C. J., “is not clearly expressed, but I take it to be a covenant that the grantor had done no act, nor created any encumbrance whereby the estate granted by him might be defeated; that the estate was indefeasible as to any act of the grantorLessee of Gratz v. Ewalt, 2 Binn. 95; Whitehill v. Gotwalt, 3 Penna. R. 313; Seitzinger v. Weaver, 1 Rawle 377. The expression of Judge Duncan in all probability was a mere lapsus pennce, writing “ grantor or those under whom he claims,” instead of “grantor or those claiming under him.” It follows that there was no error in the judgment for defendant in the court below.
Judgment affirmed.