delivered the opinion of the court, February 7th 1877.
This action was to recover for property sold by Birch to the plaintiff in error. By writing under seal the former sold “all his right, title and interest in and to” certain goods, chattels and fixtures, and also “in and to the letters patent,” * * * “for an improvement in the manufacture of copperas,” * * * “ so far as the same relates to the city of Philadelphia and adjoining counties, and city of Camden, in the state of New Jersey.”
All the assignments of error are to the rejection of evidence offered by way of defence. We do not discover any merit in the first three assignments. Birch sold his interest only. He pro*428fessed to sell no more. The writing contains no assertion indicating the extent of his interest. It makes no averment that he had not previously disposed of the property. He sold his present interest only — whatever that might be. These offers contain no averment of misrepresentation.
Where defence is made to the payment of the purchase-money for breach of warranty of title, there should be proof of eviction or of an involuntary loss of the possession. The warranty of title is a part of the consideration. While the vendee holds the covenant, and retains the possession, he cannot withhold the purchase-money. The right to detain purchase-money is in the nature of an action on the covenant. A' vendee who seeks to detain by virtue of a covenant of warranty of title, in the absence of fraud, is as much bound to prove an eviction as if he was a plaintiff in an action of covenant: Christy v. Reynolds, 16 S. & R. 258; Lighty v. Shorb, 3 Penna. R. 450 ; Dobbins v. Brown, 2 Jones 79 ; Murphy v. Richardson, 4 Casey 292; Wilson v. Cochrane, 10 Wright 229.
The purchaser of personal property, who takes and retains possession thereof, and uses and consumes the same, cannot afterwards prevent a recovery of the price he agreed to pay, by showing he had bought the title of a third person.
Here the plaintiff in error purchased of Birch on the 3d of August 1871. He offered to show, without any notice to the vendor, and before he took possession, that he bought an outstanding title on the 12th of September 1871. It appears that he made a payment to Birch on the 9th of October 1871, and continued to pay the Aveekly instalments until the 13th of September 1873. After so many payments and so long a time, it was rather late to set up an implied breach of the contract: Leaming et al. v. Wise et al., 23 P. F. Smith 173. There was -no offer to prove any fact which Avould make the patent a nullity.
The fourth assignment presents a different case. Conceding that the vendor sold his interest only, the offer Avas to prove that he, at the time of the sale, represented himself to be the owner of one-half of the patent right, which he then sold; whereas, in fact, he had previously sold the entire interest therein for the county of Philadelphia. It was in substance to prove that the vendor made a representation, which he knew to be untrue, of a material fact, and thereby deceived and defrauded the vendee.
It needs no citation of authorities to prove that the wilful misrepresentation or concealment of a material fact by the vendor constitutes a fraud. If the facts alleged were established, the vendee might sustain an action to recover damages for the fraud; or he may use it by way of defence in an action brought against him for the purchase-money. Under proper pleas (and no objection was made in the court beloAV nor here in regard to them), the vendee *429may set up any facts in defence which, show that in equity and good conscience he ought not to be required to perform his covenant : Evans v. Dravo, 12 Harris 62. The assignment is therefore sustained.
Judgment reversed, and a venire facias de novo awarded.