Opinion by (after finding the facts as set out in the statement of facts) :
The questions involved in the trial were essentially matters of'fact. If the plaintiff’s allegations were correct, as to which there was competent proof, the verdict of the jury can and ought to be sustained. We have gone carefully over the twenty specifications of error, covering the offers of testimony received under objection, the answers to points for charge, the parts of the general charge deemed objectionable, and the allegations of bias on the part of the court in commenting upon the testimony of the defendant, and find nothing in any of them specially worthy of note. The answers by the court as to what constituted eviction or its- equivalent, in order to enable the defendants to set up the outstanding title as a defense to the payment of the balance of the purchase money, rest upon undoubted authority. ■ The plaintiff himself recognized the J ennings’s title and the other interests embraced in his deed to Jennings, Wise, Gillam and Wilson were identical. It is true that the plaintiff *150claimed to have purchased the interest of the parties to whom he previously conveyed the one half the land upon which the timber was sold to the defendants at treasurer’s sale, but, being a tenant in common with them, he could not secure a title as against them thereby. Weaver v. Wible, 25 Pa. 270; Davis v. King, 87 Pa. 261, down to Enyard v. Enyard, 190 Pa. 114, are so uniform and emphatic upon this subject that it is unnecessary to enumerate the authorities.
As to the failure of title to the portion of the tract claimed by Simpson, the whole question is clearly stated in Knepper v. Kurtz, 58 Pa. 480, in which Mr. Justice Shakswood says: “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 be a change of possession: Clarke v. McAnulty, 3 S. & R. 364; Stewart v. West, 14 Pa. 336; Dobbins v. Brown, 12 Pa. 75; Wilson v. Cochran, 46 Pa. 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 defense 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 defense was permitted originally, because equity was always a part of the law in this state, and the defendant could avail himself, as a defense, 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.” We see nothing erroneous, therefore, in the answers to the points relating to the failure of title to the portion of the land claimed by Simpson.
The case, as a whole, was elaborately tried and not improperly submitted to the jury, under all the evidence. We can see nothing in any of the assignments of error' of which the plaintiff has a right to complain.
Judgment affirmed.