47 Minn. 500 | Minn. | 1891
The plaintiff exchanged the horse in controversy here with defendant for a span of ponies. It turned out that the ponies were mortgaged, of which fact the parties were ignorant, they having been brought from another county. The mortgage was overdue, and was given to secure the sum of $450 and interest, and included other property. Within a few days after the trade the mortgagee demanded possession of the ponies of the plaintiff, and the evidence in the case tends to show that he immediately, upon the same day, notified defendant of the claim, and offered to return the ponies, and demanded the horse in controversy and a rescission of the bargain, which defendant refused. Subsequently the ponies were taken from plaintiff by the mortgagee, in proceedings under the statute for claim and delivery, in an action to recover the same; and plaintiff, claiming the right to recover his horse as upon a rescission, brings this action for the possession thereof. The plaintiff answered in the suit brought by the mortgagee against him, and that action is still pending and undetermined.
1. A seller of personal property, actually or constructively in his possession, which he undertakes to sell as his own, impliedly war
2. In this case, however, the action, based upon the alleged rescission, is for the recovery of the consideration, — the horse given in exchange for the ponies, or its value, if a recovery of the specific property cannot be had; and if there could be, in law, no rescission upon the facts in the case, or there was none in fact, the suit must fail. There is no doubt that a warranty of title may be implied in a contract of exchange as upon a sale of personal property. In the case of a warranty of quality of personal property, and where the contract is executed by delivery and acceptance of the property, the rule is that the vendee is not entitled to return the same and rescind the oontract for a breach of the wairanty, except in cases of fraud, or unless it is so stipulated in the contract. Knoblauch v. Kronschnabel,
When this action was brought it is true that the plaintiff had notified the defendant of the claim of the mortgagee, and had offered to return the property. This was all that was required on that branch of the case for the purposes of a rescission. The offer was seasonably made, and it was all that was necessary to enable the defendant to take upon himself the defence of the title and to protect his own interests. But the tender was refused, and the defendant denied the validity of the. adverse claim, and stood upon the contract as made. The mortgage had not been foreclosed. It included a large amount of other property. There is nothing to show the real amount of the incumbrance on the ponies, or that a valuable interest did not pass by the sale. Plaintiff did not yield to the demand of the mortgagee, and has never surrendered the property, but he is still litigating the title with him. He cannot maintain this action while that is pending. There has been no eviction or taking equivalent toan eviction. The taking in claim and delivery is merely provisional, and the property is held to await the result of a litigated suit under a bond for its return to plaintiff, if he succeeds in his defence. No proof of loss or failure of consideration has been shown, because a breach of the
Order affirmed.
Collins, J., took no part in this case.