delivered the following opinion:

This comes up upon a demurrer to the second amended complaint filed April 26th; and so far as it is different at all from the preceding demurrer, it seeks to raise the point that there can be no suit on a warranty of title to land until there has been a final judgment rendered, and is based more particularly upon the Civil Code, § 1383, taken in connection with the definition of eviction in § 1378. It would seem that the exact point was raised in the preceding demurrer when it was passed upon February 19th, and unless there is something new very clearly brought to the attention of the court, it would not be wise to go back pf what has already been decided. In other words, a demurrer is simply calling on the court for judgment as to whether a party shall plead further, and it mentions certain reasons why he should not go further. The court does not necessarily pass upon the reasons, but does upon the demand for judgment whether the party shall proceed further. The opinion, it seems, does not discuss this warranty feature set up in the demurrer, but it is discussed in the pleadings, and for that reason it is raised now. The point, however, has been decided by the judgment of the court on February 19th, which says that the demurrer is overruled. Of course that overrules the whole demurrer.

1. Now as to the merits of the contention, if still open, it seems to the court at present that this would be the situation.

Section 1364, under the head of “Obligations of the Vendor,” gives as a general provision: “Vendor is bound to deliver and warrant the thing which is the object of the sale.” And § 1377 says: “By virtue of the warranty referred to. in § 1364 the *596vendor shall warrant to tbe vendee: (1) Tbe legal and peaceful possession of tbe tbing sold; (2) that there are no bidden faults or defects therein.” That seems to give as tbe absolute duty of tbe vendor under bis warranty, tbe legal and peaceful possession of tbe tbing sold. It does not say this must be done only if a suit is brought, but it covers all cases. He shall warrant to tbe vendor tbe legal and peaceful possession of tbe thing sold. Tbe statute goes on to define when eviction takes-place, or, at all events, says that eviction does take place when by a final judgment, and by virtue of a right prior to tbe sale, tbe vendee is deprived of tbe whole or of a part of tbe tbing purchased. Tbe vendor shall be liable for tbe eviction even though no stipulation has been included in tbe contract on the subject. And in tbe section 'more especially relied upon, § 1383, a warranty cannot be demanded until a final judgment may have been rendered by which tbe vendee should be adjudged to lose tbe thing acquired, or a part thereof. That is clear from tbe wording of it, but taking this whole Io, tbe whole of that series of sections, it is speaking of suits all tbe way through. Almost every other section speaks of a suit. For instance, tbe very next one to § 1383 says: “Tbe vendor shall be obligated to tbe proper warranty whenever it is proved that be was given notice of tbe suit for eviction at tbe instance of tbe vendee. In tbe absence of this notice, tbe vendor shall not be bound to tbe warranty.” That refers to a suit, and to nothing else, and tbe same is true of other sections. Another section is that notification shall be made in tbe manner established in said law for tbe summoning of defendants, and so on.

The construction that I must put upon this is that it is an elaboration of tbe situation that occurs when the vendee is *597evicted by suit. In such cases tbe vendor is not liable unless be is made a party to tbe suit, unless be is given notice of tbe suit, and that that is tbe sole object of this discussion from § 1378 to § 1386, — but that it does not cover one way or tbe other wbat happens if tbe vendee is evicted without any suit, without any chance to defend himself at law. That is not provided for one way or tbe other, and probably tbe reason would be that, as it would occur in such a variety of cases, there would be no way of laying down a rule. You can lay down a rule in a law case, but not for all circumstances that may come up between man and man.

That being so, my conclusion is that tbe warranty under § 1377 covers tbe legal and peaceful possession of tbe thing sold under all circumstances, and that these sections which are now relied upon simply establish tbe procedure which applies when this legal and peaceful possession of the thing sold is disturbed by suit, and nothing more, but that nevertheless the duty still exists under the warranty to make good the legal and peaceful possession of the thing sold whenever eviction happens, even under other circumstances.