36 Me. 501 | Me. | 1853
The plaintiff having purchased a house of the defendant on the land and in the occupation of a third
There was no fraud, no express warranty, no delivery of the thing sold, and no assertion of title on the part of the vendor before or at the time of sale. The bill of sale discloses that it was not in the possession of the vendor, and the evidence shows that it was on the land of a third person. In such case, no warranty of title will be implied. The implied warranty arises when the vendor is in possession of the chattel himself or by his servant at the time of the sale. “ In every sale of a chattel, if the possession be at the time in another, and there be no covenant or warranty of title, the rule of caveat emptor applies, and the party buys at his peril. But if the seller has possession of the article, and he sells it as his own and not as the agent of another, and for a fair price, he is understood to warrant the title.” 2 Kent’s Com. 478. This question was elaborately discussed in Morley v. Attenborough, 3 Wils. Hurls & Gordon, 512, and after a careful review of the English authorities, Parke, B., in delivering the opinion of the Court, thus declares the law; “ It would seem that there is no implied warranty of title in the sale of goods, and that, if there be no fraud, a vendor is not liable for a bad title, unless there is an express warranty or an equivalent to it by declarations or conduct, and the question in each case, where there is no warranty in express terms, is whether there are such circumstances as to be equivalent to such warranty.” In McCoy v. Artcher, 3 Barb. 323, after a careful examination of the decisions in relation to this subject, the Court came to the conclusion, that if the property sold was at the time of the sale in the possession of a third person, and there was no affirmation or assertion of ownership, no warranty of title would be implied, but if there was an af
In Russell v. Richards, 1 Fairf. 433, the doctrine of implied warranty would seem to be limited to the case where the vendor has possession. “Asale of a chattel, “ says Mellen, C. J.,” in the possession of the vendor, amounts to a warranty of title ; not so in the case of real estate.” The law is laid down in accordance with these views in the various text books, with the exception of Story on Sales, 535, cited by the counsel for the plaintiff in his argument. Ross on Vendors & Purchasers, 335; Long on Sales, Rand’s Ed., 201; 1 Parsons on Con. 458. The cases where it is asserted in general terms, that in the sales of personal chattels, the law will imply a warranty, will be found to be those in which the vendor was in possession, and where the distinction here considered did not arise, and was not necessarily involved in their determination.
There is no evidence that the plaintiff has paid the notes given for his purchase. It is not necessary to determine whether the money can be recovered back as on a failure of consideration. Plaintiff nonsuit.
