#### Sabina Heyn v. Albert F. Ohman.

Filed November 9, 1894.

No. 5932.

Covenants of Warranty: Action for Breach: Evidence. In an action for recovery of damages alleged to have resulted from breaches of defendant’s covenants of warranty of title, and for quiet enjoyment, the plaintiff, to establish *¡prima facie*the breaches alleged, is required merely to prove that he has either been evicted or kept out of possession by one in actual possession claiming title paramount to his own. The presumption of title which then arises in favor of the party in possession must he overcome by proving title out of him, or both the aforesaid breaches may he deemed established by sufficient proof.

*694Error from the district court of Douglas county. Tried below before Krysor, J.

*Cavanagh, Thomas & McGillon,*for plaintiff in error,

cited: *Real v. Hollister,*20 Neb., 112; *Mills v. Rioe,*3 Neb., 85; Rawle, Covenants, 181, 308; *Sedgwick v. Hollenback,*7 Johns. [N. Y.], 380; *Blanchard v. Hoxie,*34 Me., 378; *Wait v. Maxwell,*4 Pick. [Mass.], 87.

*A. G. Waheley, contra,*

cited: *West v. Bine,*4 Wash. [U. S. C. C.], 691; *Ludlow v. McBride,*3 O., 231; *Ward v. McIntosh,*12 O. St., 240; *Rdbinoe v. Doe,*6 Blackf. [Ind.], 85; *Hill v. Draper,*10 Barb. [N. Y.], 454; *Jones v. Nunn,*12 Ga., 469; *Nagel v. Macy,*9 Cal., 426; *Shumway v. Phillips,*22 Pa. St., 151; *Jones v. Bland,*112 Pa. St., 176; *Brown v. Colson,*41 Ga., 42;' *Day v. Alverson,*9 Wend. [N. Y.], 223; *Caldwell v. Kirkpatrick,*6 Ala., 60; *Eakin v. Brewer,*60 Ala., 579; *Douglas v. Ruffin,*38 Kan., 530; *Spitznagle v. Vanhessch,*13 Neb., 338.

Ryan, C.

The defendant in error recovered judgment against the plaintiff in error in the district court of Douglas county for the sum of $975 and costs, on account of breaches of covenants of warranty contained in a deed made in 1887 by plaintiff in error to defendant in error. The consideration recited in the aforesaid conveyance was the exact sum for which judgment was rendered. On the trial there was uncontradicted evidence that one Mary K. Lund, from the year 1885 up to the time of trial, had held undisputed possession of the premises described in the deed above referred to; that she had placed thereon a house and other improvements, and upon demand to that effect that she had refused to yield possession to the defendant in error.

An objection of the plaintiff in error was sustained to the introduction in evidence of a decree entered in the dis*695trict court of Douglas county and the pleadings whereon the same was entered in a certain action in said court formerly pending, wherein the said Mary K. Lund had been plaintiff and Richard C. Patterson, Pierce C. Himebaugh, A. E. Ohman, and A. W, Baldwin had been defendants. These parties named as defendants, including Ohman, the defendant in error in this case, were such persons as had held the title to the real property as to which this controversy has arisen, except that there was an omission of the plaintiff in error, who, therefore, previous to the institution of said action, had become substituted in her place with respect to such rights as she had formerly possessed. In such an action, which was one by Mrs. Lund to enforce specific performance of the contract to convey the premises, under which contract she had taken and still retained possession, the only parties necessary for plaintiff’s purpose were such as were parties to the contract under which she claimed the right to specific performance, and the holder of the interests conflicting with and claimed to be paramount to her own at the time of action brought. These were all made defendants and with a view of showing that the defendant in error had actually been kept out of possession. This decree was competent evidence of the -existence of a title paramount behind the possession adverse to the defendant in error. The error of excluding this de-cree is not, however, available to the plaintiff in error, for it was her objection which prevented its introduction in -evidence. As has already been stated, there was shown an adverse possession dating from a time long anterior to the execution of the deed by plaintiff in error to defendant in error. By the latter party a demand of possession had been duly made and compliance with that demand has been persistently refused. There has been no showing of such title in the defendant in error as would justify the hope -that a suit for possession, if instituted, could successfully be maintained against Mrs. Lund. In Tyler, Ejectment, *69670, it is said : “ It is a maxim of the law that the party in possession of lands is presumed to have a valid title thereto, and this presumption can be overcome only by proving title out of such party. Indeed, it has been said that possession of real estate is *prima fade*evidence of the highest estate in the property; that is, a seizin in fee.” The views which have just been expressed find support in *Ware v. McIntosh,*12 O. St., 231; *Robinoe v. Doe,*6 Blackf. [Ind.], 85; *Shumway v. Phillips,*22 Pa. St., 151; *Jones v. Bland,*112 Pa. St., 176; *Brown v. Feagins,*37 Neb., 256. The district court, therefore, properly held that an action of this character was maintainable, since the only question controverted was that above indicated. Its judgment is, therefore,

Affirmed.