The Roman law on this topic is thus succinctly stated by Windscheid, one of the most authoritative of recent German commentators.9 The vendor is liable in case of the purchaser's eviction (Entwehrung), that is to say, he is liable to the purchaser in case the latter loses the goods from the vendor's defective title. The vendor is obliged to secure to the purchaser not only momentary but permanent possession: praes-tare emtori rem habere licere.

1 Such appears to have been Chancellor Kent's ultimate view, as given in the fourth and later editions, of the passage above cited. See, also, 11 Law Rep. 272; 12 Am. Jur. 311; Benjamin on Sales, sec 628; Leake, 2d ed. 402.

2 Purvis v. Kayer, 9 Price, 488; McCoy v. Archer, 3 Barb. 323; Rodrigues v. Habersham, 1 Spears, 314.

3 Morley v. Attenborough, 3 Ex. 512; Eichholz 0. Banister, 17 C. B. N. S. 708.

4 Chapman v. Speller, 14 Q. B. 621! Bagueley v. Hawley, L. R. 2 C. P. 625; Baker v. Arnot, 67 N. Y. 448; Bashore v. Wister, 3 Watts, 490; Hicks v. Skinner, 71 N. C. 539; Mech. Sav. Inst. v.

O'Connor, 29 Oh. St. 651; Fore v. Mc-Kenzie, 58 Ala. 115; Hensley v. Baker, 10 Mo. 157.

5 Moser v. Hoch, 3 Barr, 230.

6 Patee v. Pelton, 48 Vt: 182; Hunt v. Sackett, 31 Mich. 18; Byrnside v. Burdett, 15 W. Va. 702; cited Benj. 3d Am. ed. sec 641.

7 1 Story's Eq. Jur. sec 143a, 161, 778, 779; Graham v. Oliver, 3 Beav. 124.

8 Rawle on Cov. 565; Hill v. Hobart, 16 Me. 170; Little v. Peddleford, 13 X. H. 167, Carter v. Alexander, 71 Mo. 585.

9 Pand. sec 391.

1. The purchaser must lose the thing on account of defective title. It is not enough if he loses it on other grounds, e. g., by its destruction, or its seizure by the state, or by a third person through violence. When the eviction is by judicial process, then the claim against the vendor is complete, though the vendor may subsequently contest it by showing that the judgment was wrongful and collusive, or had been entered in consequence of the purchaser's negligence.1 On the other side, it is not necessary that the defect of title should be declared by a judicial decree; if the purchaser voluntarily gives up the property to an adverse litigant, he can recover from the vendor by proving that the claim against him was one which he could not resist. The proper course for the purchaser, in case his title is judicially contested, is to notify the vendor - litem denuntiare - who then is entitled to interplead; but a neglect to give this notice does not deprive the purchaser of his right to indemnity should it appear that the vendor's intervention would have led to a different result.

2. The defect of title must be imputable to the vendor.2.

3. The goods must be actually taken from the purchaser, or he must have been obliged to have made some sacrifice to retain them; "vel damnatus est litis aestimatione." It makes no matter what shape the adverse process takes, whether it goes to divest property entire or to impose a lien, provided the purchaser be dispossessed, either in whole or in part.

Sec . 231. In our own law (modifying in this respect the Roman rule), the preponderance of authority is that to sustain a suit on a warranty of title, there should be an eviction of the vendee.3 When, however, there is a fraudulent misstatement of title on the part of the vendor, eviction need not be a condition precedent to suit.1 In Massachusetts, eviction is not a condition precedent to a suit,2 unless in cases where the third party contesting the title is a bankrupt assignee.3

To sustain 6uit there must be eviction.

1 L. 51, pr. D. de evict.; L. 1, C. de rer. per. iv. 64.

2 L. 1, C. de peric. (iv. 48); L. 11, pr. D. de evict.

3 Benj. on Sales, 3d Am. ed. sec 627, where are cited, Sweetman v. Prince, 62 Barb. 256; Krumbhaar v. Birch, 83 Penn. St. 426; Linton v. Porter, 31 111. 107; Gross v. Kierski, 41 Cal. 111. As to rule in Kentucky, see Payne v.

Rodden, 4 Bibb, 304; Chancellor v. Wiggens, 4 B. Mon. 201; Tipton v. Triplett, 1 Mete. (Ky.) 570; as to Tennessee, see Wood v. Cavin, 1 Heed, 506.

1 Case v. Hall, 24 Wend. 102; Sweetman v. Prince, 62 Barb. 256.

2 Grose v. Hennessey, 13 Allen, 389; Perkins v. Whelan, 116 Mass. 542; S. P. Dryden v. Kellogg, 2 Mo. Ap. 87.

3 Fogg v. Willcut, 1 Cush. 300; Gay v. Kingsley, 11 Allen, 345.