— In Duncan v. Ware’s Ex’rs. 5 Stewt. & P. Rep. 119, it was held that assumpsit for money had and received, would lie, to recover back money paid upon a judgment which was afterwards reversed. But in that case, as the reversal was for irregularity merely, and the debt was justly due, the defendant was permitted to retain the money. A similar decision was made in Green v. Stone, 1 H. & Johns. Rep. 405, where it was said that the plaintiff could not recover, unless the retention of the money by the defendant was contrary to equity and right; the defendant may resort to any equitable or conscientious defence to repel the claim of the plaintiff, and may show the justice of his original claim; so the plaintiff may prove, that he is not inlaw or justice liable to pay the same. “ A judgment reversed^becomes mere waste paper, • and the rights of the party, immediately on the reversal, are restored to the same situation in which they were, prior to the pronouncing of the judgment so reversed.” In Clark v. Pinney, 6 Cow. Rep. 297, it was said, when money is paid upon an erroneous judgment, which is subsequently reversed, “ the legal conclusion is irresistible, that the money belongs to the person from whom it was collected. Of course he is entitled to have it returned to him.” And the action, it was determined, could be maintained, although, upon the reversal of the judgment, the cause was remanded, and was still pending in the primary court. [Strange v. Allis & Lee, 10 Wend. Rep. 354 ; see, also, Lazell v. Miller, 15 Mass. Rep. 207; Isom v. Johns, 2 Munf. Rep. 272: Homer v. Barrett, 2 Root’s Rep. 156; Duncan v. Kirkpatrick, 13 Serg. & R. Rep. 292 ; Jamaica v. Guilford, 2 Chip. Rep. 103; Dennett v. Nevers, 7 Greenl. Rep. 399; Hamilton v. Aslin, 3 Watts’ Rep. 222.]
The action of assumpsit for money had and received, has been sometimes assimilated to a bill in equity, and the true test to the plaintiff’s right to recover, said to depend upon the fact, whether the defendant can, in equity and good conscience, retain the money sought to be recovered. Although the law is thus generally stated, the adjudged cases show what is meant by an equitable right to retain money paid upon a judgment, •which was afterwards reversed. It must grow out of, or be connected with, the case in which the judgment was vacated. Thus the party who has received the money, may show that *487he is entitled to recover for the cause alledged, though he mistook the appropriate remedy, or irregularities intervened which made it erroneous. But it is not permissible to justify the retention, by showing that the party has another cause of action, in which he will be entitled to recover as much as he received and retains. Such a defence could not be entertained, consistently with principle, unless it embraced a demand that was a proper subject of set off. If it was a breach of covenant for quiet enjoyment, or other unliquidated demand, distinct from the case in which the money was pai’d,.it could not be interposed as a bar to the action. In such case, to make his demand available, the defendant must become the actor in a suit, and have the damages he has sustained, ascertained by a judgment.
In the case in which the judgment was reversed, the declaration alledged that the act of 1803 “respecting conveyances,” made the legal effect of the words “ grant, bargain and sell,” contained in a deed conveying lands in fee simple, a covenant that the grantor “ was seized of an indefeasible estate, in fee simple, in the premises, freed from incumbrances done or suffered from the defendant;” and alledges as a breach, the execution of the mortgage by Brown to the Asylum, in 1821, and its payment by Dupuy in 1838. We held, that the words employed by the statute, did not import an absolute or general covenant of seizin, against incumbrances, and for quiet enjoyment, but amount to a covenant only, against acts done or suffered by the grantor and his heirs. The right to retain the money, is not urged upon the ground, that, that action could have been supported; but it is supposed that what was said by the plaintiff in the present case, at the time he delivered the deed to the defendant, and his liability to the defendant upon his covenant of warranty, if he had been ousted, authorize him to resist a recovery. The remark of Roebuck, that, if Brown was not good and able to discharge the mortgage, certainly ad-r ded nothing to his obligation to maintain his vendee in the quiet enjoyment of the land; for this he had stipulated to do, by his covenant of warranty.
The view we have taken of the case, would, perhaps, relieve us from the necessity of inquiring what state of fact must be. shown to entitle Dupuy to sue upon the express covenant contained in the deed from Roebuck. We may, however, remark, *488that it has been said the plaintiff can recover in an action upon the covenant of warranty, though he may have voluntarily yielded to a dispossession, provided the title to which he yielded was a good title, and paramount to that of the warrantor. There is no necessity for involving himself in a law suit in making defence against a title, which he is satisfied must ultimately prevail. He consents, however, at his own peril. If the title to which he has yielded, be not good, he must abide the loss; and in a suit against the warrantor, the burden of proof will be on the plaintiff.
So, where land sold with a covenant of warranty, had been previously mortgaged, it was held that an ouster, or expulsion, was equivalent to an eviction by legal process; and so was any lawful disturbance, or interruption, by a stranger having a paramount title. But it was necessary that some particular act should be shown, by which the plaintiff was interrupted; otherwise the breach of covenant for quiet enjoyment would not be well assigned. If a demand was made, the plaintiff, it was said, might yield to the dispossession; and that such an ouster would entitle him to his remedy on the covenant of warranty. Such an act, by a lawful and paramount claim, would disturb the enjoyment of the possession; and the plaintiff, being compelled to purchase in, another title, for his own security, would be authorized to reimburse himself, by suing for a breach of covenant. [2 Lomax on Real Property, 273, 274; see, also, Hamilton v. Cutts, 4 Mass. Rep. 349; Sprague v. Baker, 17 Mass. Rep. 586; Mackey v. Collins, 2 Nott & McC. Rep, 186 ; Furman v. Elmore, Id. 189; Day v. Christian, 10 Wheat. 449.]
Assuming the law to be as liberal as we have stated it, the facts disclosed in the record do not show that the defendant , has a right of action upon the express covenant in his deed. This being the case, he has no pretence for insisting upon a retention of the money received on the reversed judgment. Whether the defendant discharged the mortgage to the Asylurrq under such circumstances as entitles him to recover the amount of his vendor, by a suit either at law or in equity, we need not inquire. That question he will be able to solve, by a reference to the facts that he can establish by proof.
The consequence of what we have said, is, that the judgment of Ihe Circuit Court must be affirmed.