¶1delivered the opinion of the court.
¶2This is an action of covenant upon a warranty in a deed of conveyance for fifteen acres of land sold by McClain to Ferrell.
¶3Upon the trial it appeared, that at the date of the sale McClain was not in the actual possession of the land; and that Ferrell had brought suit to get the possession against one Wm. Owen; that he gave McClain notice to appear and prosecute the suit, which McClain neglected to do; that Ferrell lost the suit against Owen, and then commenced an action upon the covenant of warranty against McClain, and introduced the record of the verdict and judgment in the case against Owen as evidence of a better outstanding title against McClain.
¶4Upon the trial the circuit judge charged the jury, that the verdict and judgment proved a better outstanding title, and cast the onus upon the defendant to show that he had the better title, to support the plea of covenant performed, and that as the defendant had not shown such title, the plaintiff was entitled to recover.
¶5This is an anomalous case; none like it has been produced, and to sustain the position assumed by the circuit judge, would, as we think, be to engraft a new principle upon the law, unwarranted by authority. Where the vendee has been sued, he may notify his vendor to appear and defend the suit, and provision is made by law for making him defendant; but there is no principle by which he'can be substituted , as a plaintiff in the action of ejectment, and we therefore can think of no reason for notifying him in such a case to appear; and hold that the charge of the judge, upon the effect of the record re*46lied upon, was erroneous. For which Cause the judgment will be reversed, and the cause remanded for a new trial.