It is a well settled doctrine that a purchaser of land, who has received a deed with covenants of warranty and entered into possession, cannot, so long as he retains the possession, deny his vendor’s title, or refuse to pay the price. Lewis and wife v. Boskins, adm'r, 21 Ark., 61; Pintard v. Goodloe, Hemp., 502; Willison v. Watkins, 3 Pit., 43; Wilson v. Weatherby, 1 Nott & McCord, 373; Meadows v. Hopkins, Meigs, 81.
Therefore, as it was not averred in the answer filed in the justice court that the defendant was not in. possession, it set up no defense, and did not put in issue or involve the title of the acres.
But even had it contained such an averment, it would not* of itself, or without some evidence upon the trial tending to bring in question the title, have been sufficient to deprive the justice or the Circuit Court, upon appeal, of jurisdiction of the case, for, until such evidence should be offered, it -could not be seen whether the defense ivas real or not a mere sham for the purpose of defeating the jurisdiction. Nolen v. Royston, 36 Ark., 561; Fitzgerald v. Beebe, 7 Ark., 305.
And for the same reason, it is obvious that a suit should not upon that ground, be dismissed upon motion.
The court below erred in sustaining the defendant's motion and dismissing the plaintiffs suit, and the judgment, is reversed and the cause remanded for further proceedings..