45 N.Y. 494 | NY | 1871
The ground on which the motion for a nonsuit was made, was that the validity of the lien of the chattel mortgage upon the horse had not been established by judicial proceedings. If this was necessary, the judge erred in not granting the motion, as the evidence was that the vendee of the plaintiff gave up the horse to the assignee of the mortgage when demanded, upon being satisfied that the lien was *496
valid against the title acquired by the purchaser. While the latter retained possession of the horse under the title acquired by his purchase from the plaintiff, he had no cause of action for the breach of the implied warranty of title, although able to prove that no title, whatever, was acquired thereby. (Case v.Hall, 24 Wend., 102.) The rule, when the vendor fraudulently represents that he has title, is different. In the latter case, an action to recover damages for the deceit will lie, although there has been no disturbance of the possession. (Same case and cases cited.) The rule in cases of warranty, express or implied, was derived from the analogy to that adopted in cases of covenants of quiet enjoyment in conveyances of real estate. (See case, supra.) An eviction is an essential prerequisite to a recovery in the latter class of cases. Yet this need not be by process of law. It is enough that on a valid claim made by a third person, under title paramount, the plaintiff voluntarily yielded up the possession. If this is done without legal contest, the plaintiff must prove that the title to which he yielded, was paramount to that acquired by him under his deed from the defendant. (Greenvault v. Davis, 4 Hill., 643; St. John v.Palmer, 5th id., 591.) The rule adopted in these cases has been regarded since as the law of the State, and as such applied to like cases. Actions for a breach of warranty, express or implied, upon a sale of personal property, we have seen are within the same principle, in this respect, and require the application of the same rule. To hold that a purchaser of personal property must become a wrong-doer by withholding it from the true owner, and compel him to resort to an action for its recovery, to entitle him to redress for a breach of warranty of title, would be absurd. Such a rule cannot be supported by reason, or sound policy. It must stand only upon authority, if at all. But there is no well considered case holding any such doctrine. In Rew v.Barber (3 Cowen, 272), an action for breach of warranty of title was sustained, where the property had been taken from the purchaser by the sheriff, under a levy made previous to the sale. That differs in no respect in principle *497
from the present case. The sheriff, by his levy, acquired, a property in the goods for the purpose of satisfying the execution. This was nothing more than a title paramount to the judgment debtor. The sheriff had the right to reduce the property to his possession wherever he could find it. This is the right, also, of any owner of personal property. The fact that the former may use force in the recaption of the property, if necessary, while the latter may not, but must resort to his legal remedy, if unable to get possession personally, does not affect the question. The title is no more determined judicially when taken by the sheriff, than it is when taken by any other owner. InSweetman v. Prince (
Chief Judge and PECKHAM and ANDREWS, JJ., concur. ALLEN, FOLGER and RAPALLO, JJ., dissent.
Judgment affirmed.