¶1 (after stating the case as above). It was under • and by virtue of the judgment in the special proceeding of D. *243 H. Latham, administrator, &c., of C. C. Little v. Willis Cherry et als., that the land in question was conveyed to W. A. Blount by the defendant Latham, and the proceeds of the sale, or so much thereof as was applicable to that purpose, applied in discharge of the balance of the purchase money due upon the sale of the land made to C. C. Little in 1861. The paramount title was in the heirs of Little, claiming under the sale made to their ancestor in 1861, by the defendant Latham. He cannot be heard to say that their title was not good and paramount to that acquired by the plaintiff from him.
¶2 One of the heirs of Little had acquired possession in the manner stated in the case. Was that such an eviction, actual or constructive, as to entitle the plaintiff to recover upon the warranty in the deed from Latham to him? We think it was.
¶3 “ The existence of a better title, with an actual possession under it, is of itself a breach of the covenant.” The purchaser is not required to bring an unnecessary action in which he must fail to recover the possession. Grist v. Hodges, 3 Dev., 198; Herrin v. McEntyre, 1 Hawks, 410; Duvall v. Craig, 2 Wheaton, 45.
¶4 If there has been no eviction by legal process the burden of showing that there was a better or paramount title is upon the purchaser, and even then the mere existence of a superior title in another is not a breach of the covenant, but the purchaser need not be actually evicted by legal process. “It is enough that he has yielded possession to the rightful owner, or the premises being vacant that the rightful owner has taken possession.” Washburn on Real Property, Vol. 3, 406, 3d Ed.
¶5 In Sprague v. Baker, 17 Mass., 586, there was a valid prior encumbrance by mortgage, which, upon demand, the purchaser discharged. This was held to be such an eviction constructively as entitled him to recover upon the warranty. *244 So in Norman v. Lee, 2 Black, 507, it is said that an adverse possession by virtue of a paramount title is regarded as an eviction, and involves a breach of the covenant of warranty.
¶6 There was error, and the plaintiff is entitle to a new trial.
¶7 Error. ' Reversed.