delivered the opinion of the court. In the covenant, which is the ground-work of this case, Fenwick warrants and defends the negroes sold against all persons whatsoever, to be the property of Forrest,, his heirs, executors and administrators. The breach of this covenant; as assigned', is that the negroes, at the time of the salo, were not the property óf. Fenwick; but were the property of one David SommerviUc, who dispossessed Forrest of them by a writ of replevin issued against Fenwick, and that Fenwick did not warrant aiid defend the negroes to Forrest, as bound by his covenant to do. Fenwick to this charge pleads non infregit bonventio'nem; aiid on the trial of the issue, no proof is offered by Forrest in support of Ms case; except the services of Sommierville’s replevin, and the return of it to Baltimore county court, and the neglect of Fenwick to kppear to the action at the return court, although he was apprised of the resolution of Forrest not to defend the replevin; Is this proof sufficient to sustain the action of covenant, is the question, and did the court below err in refusing to instruct the jury, on the prkyer óf Fenwick, thát the plaintiff, Forrest, was not entitled to recover? .
Whether the covenant be considered a covcnaiitfor quid enjoyment of the negroes, or simply an undertaking to warrant and defend the title to them to the vendee, against the acts of all persons whatever, to maintain ati action for a breach of it, the plaintiff is bound not only to state specially, dispossession of the negroes, but if it be- by a stranger, he must also state á better or paramount legal title to them In such Stranger. Dispossession liy lawful process need not, however, be set forth; for it is enough to state deprivation of possession by a person having lawful title. Foster vs. Pierson, 4 T. R. 617. These statements' are material in the plaintiff’s declaratidn, and without them it would be bad on demurrer. If material to state eviction and lawful title by a stranger, it is equally indispensable to support them by proof; and the inquiry is, whether the title of Sommervilie to the negroes in controversy, whose property they are alleged in the declaration to have been at the time of the sale to the plaintiff,- is established by the evidence laid before the jury on the trial of the case? The disturbance of possession proved, is an eviction by process against Fenwick, but the mere service of the replevin is no evidence of the right or title of Sommervilie *417id'the negroes replevied. How this replevin was disposed of after the return court, does not appear; at that court, the testimony is, that Forrest undertook the defence of it, made a motion for á return of property; and then abandoned the case, and that Fenwick did not at that term appear to the action. Whether at any future time he became a party to it is no where stated; neither does ii appear that the title to the negroes was ever tried on this replevin-. If Sommerville had made good Isis claim to the negroes thus replevied, the judgment would have afforded the best evidence, to which the plaintiff in this suit could resort, to prove'that he (Sommerville,) had a better title to them than Fenwick; it would have been the establishment-of his right by process of law: Blit this is not the only testimony the plaintiff in this action might have used to sustain his allegation, that at the time of the sale of the negroes in dispute to him by Fcnwidc, they were the property of 'Sommerville. This material proposition he might have substantiated by any other evidence, written or oral, evincing the fact, and thus have maintained his action of covenant against the defendant. Evidence of either kind, to prove Sommerville's right to the disputed negroes, he failed, however, to produce on the trial, and therefore we think the court below ought to have given the directions to the jury prayed for by the defendant.
We reverse the judgment, and order a procedendo to issue,
judgment reversed, &c.