#### Eaton vs. Lyman.

COVENANTS eon, Title : Evtction oe Covenantee. (1-3) *Proper enichnee that it was upon title pwi'cmount to that of covenantors.*(4) *Judgment to which covenantee is entitled on showing moneys paid to remove in-cumbrances.*

1. In an action by E. (as assignee) upon tbe covenants in L’s deed to E., a former eviction of E. at tbe suit of E. is not of itself proof of E’s paramount title as against L.

2. A tax deed to plaintiff, made after tbe commencement of tbis action, is no evidence therein of bis title.

3. A tax deed of earlier date, introduced merely “ for tbe purpose of showing incumbrances,” is not evidence of plaintiff’s paramount title.

4. 'Proof of moneys paid to remove tax or other liens covered by L’s covenants, will only sustain (under proper pleadings) a judgment for the amount so paid, with interest and not one for tbe amount to which plaintiff would have been entitled *on*showing paramount title in himself.

ERROR to tbe Circuit Court for *Winnebago*County.

Action upon tbe covenants in a deed, tbe plaintiff claiming under an assignment from one Erickles, defendant’s grantee in tbe deed. Tbe plaintiff, in an action against Erickles (in I860), bad obtained judgment of possession, and evicted bim, but immediately sold bim tbe premises, taking in part consideration Erickles’ right of action against tbe defendant under tbe covenants in tbe deed of tbe latter to Erickles. Tbe plaintiff introduced tbe following evidence: 1st. Tbe deed from tbe defendant to Erickles, containing tbe covenants sued upon. 2d. Assignments to bimself from Erickles, of tbe right to recover on these covenants. 3d. Under objection of defendant, a certified transcript of tbe *325judgment and proceedings in tbe suit of plaintiff against EricHes, together with tbe execution issued tbereon, purporting to sbow an eviction on tbe 5th of February, 1865. 4th. A tax deed, dated December 31, 1867, to one Eastman, for part of tbe lands in controversy, and a quit-claim from Eastman to plaintiff; objected to by defendant because tbe tax deed was issued after tbe commencement of this action. 5th. A tax deed dated April 11, 1863, based upon a tax sale in 1851, for tbe purpose of showing incumbrances ; which was also objected to. 6. A certain abstract from tbe office of tbe clerk of tbe board pf supervisors, and two redemption certificates issued by tbe same clerk, introduced to show incumbrances outstanding at tbe time tbe defendant deeded to Frickles, and which plaintiff bad taken up. Tbe plaintiff, as witness for himself, stated that tbe consideration of tbe deed given by him to Frickles was $35 in money, and an assignment of Frickles’ right of action against tbe defendant, which was estimated between them at $450; and that Frickles bad been in possession ever since.

Tbe defendant introduced evidence to show title in himself at tbe time be sold to Frickles.

Tbe court instructed tbe jury to find a verdict for tbe plaintiff for $350, with interest from March 26, 1865. 'This seems to have been tbe date of tbe assignment to plaintiff. Tbe evidence upon which $350 was determined as tbe proper amount of damages, does not appear in tbe printed case. Yerdict and judgment accordingly; and defendant appealed.

*J. M.*Gillet, for appellant:

1. Tbe court cannot bold in this case, as it now stands, that tbe defendant is bound by tbe eviction of Frickles, which does not appear to have been upon a title paramount to that of tbe defendant Tbe case was different when tbe court held, in one of tbe former appeals *(.Eaton v. Lyman,*24 Wis., 438), that *Lyman*was bound because be was connected with that eviction by taking part in tbe trial — independently of whether Frickles was evicted by a paramount title. 2. Tbe charge of the judge *326below was erroneous. It directed a verdict absolutely, independent of tbe question whether the jury believed the evidence, and independent of all evidence. It also directed them to find a verdict for $350 and interest, when at most plaintiff was entitled to recover only $35, and possibly a part of the taxes.

*B. P.*Baton, respondent, in person,

argued that the tax deed to Eastman the certificates of redemption by the plaintiff, and the abstract of titje showing incumbrances, and redemption by the plaintiff, were properly received in evidence, and sufficiently established the plaintiff’s right to recover upon the covenants in defendant’s deed. 2. The case also shows an eviction of Erickles under plaintiff’s judgment, after notice to the defendant. Defendant, not having moved for a new trial, cannot object that the evidence was not sufficient.

DixoN, C. J".

This case comes here for the third time, and upon questions differing from those heretofore decided. *Eaton v. Lymans,*24 Wis., 438; *Same v.*Same, 26 Wis., 61. The question of *Lyman's*being bound by the judgment in the action of *Baton v. Brickies*is altogether out of the case. The bill of exceptions contains no evidence upon that point, and is certified to contain all the evidence necessary to present the questions arising upon the exceptions taken. The record, therefore, of the proceedings and judgment in *Eaton v.*Frickles, given in evidence by the plaintiff, was no proof of paramount title against the defendant. The position that it was, or that *Lyman*was bound by that judgment, is said to have been abandoned in the court below ; but whether for the reasons stated by this court in its last opinion, or for others, does not appear. At all events, the evidence of paramount title to charge the defendant with full damages for breach of the covenant sued upon, and to justify the instruction of the court to the jury to which exception was taken by the defendant, is to be found elsewhere than in the record and judgment *327in *Eaton v. Frickles.*Tbe court directed a verdict in favor of tbe plaintiff for $850, witb interest at seven per cent, from tbe 26tb day of March, 1865. An examination of tbe bill of exceptions does not disclose any evidence of paramount title in tbe plaintiff justifying tbis direction. Tbe only evidence offered or given by tbe paintiff to sbow sucb title, was a tax deed from Brown county and tbe state of Wisconsin to H. Eugene Eastman, for 45 acres of tbe land in controversy, dated December 81st, 1867, and a quit-claim deed from Eastman and wife to tbe plaintiff, dated October 16tb, 1868. Botb those deeds were executed after tbis action was commenced, which was in March, 1867, and they were of course no evidence of paramount title in tbe plaintiff upon which tbis action can be sustained.

It is true tbe plaintiff gave in evidence tbe tax deed executed in 1863 upon tbe sale of 1851, but, as tbe bill of exceptions states, “for tbe purpose of showing incumbrances.” That deed was not offered or relied upon by tbe plaintiff as evidence of title in himself.

Tbe plaintiff likewise gave evidence of some other incum-brances to a small amount, for taxes due and unpaid on tbe land at tbe time of tbe conveyance by *Lyman*to Brickies, and which have been paid off or removed by tbe plaintiff. As tbe assignee of Brickies, tbe plaintiff may, perhaps, if tbe pleadings are properly framed, be entitled to recover tbe sums so paid to remove incumbrances; but they amount to nothing like tbe sum for which tbe court directed verdict, and which can only be recovered by proof of paramount title in tbe plaintiff, upon which be evicted Brickies. No sucb title was proved, and tbe judgment must be reversed, and a new trial awarded.

*By the Court.*— It is so directed.