60 Md. 563 | Md. | 1883
delivered the opinion of the Court.
This action was brought in April, 1882, by the apjiellant against the appellee upon a promissory note for $225 given by the defendant to the plaintiff, dated the 5th of March, 1881, and payable in six months. This note was given as part payment for four mules sold by the plaintiff to the defendant at its date. The case was submitted to the Court below upon an agreed statement of facts, all errors in pleading being waived, and the Court to draw such inferences from the facts stated as a jury could.
From the statement of facts it appears that Sharlet Rockwell, the plaintiff, is the widow of Solomon Rockwell,
Upon these facts the Court below gave judgment in favor of the defendant, and from that judgment the plaintiff has appealed.
But it is further argued that an executor de son tend having title and disposing of that title, the purchaser takes it and cannot set up a breach of warranty until he has been ousted by some superior title or recovery at law had. It is true authorities are not wanting to sustain the proposition that a purchaser of personal property cannot defeat a recovery for the price agreed to be paid by showing that the property is owned by another, unless he has been ousted, or there has been a recovery by the true owner. In fact in Case vs. Hall, 24 Wend., 10, Nelson, Ch. J., laid it down as law that where the vendee relies upon the warranty of title express or implied there must be a recovery by the real owner before an action can be maintained, and that this is in the nature of an eviction and is the only evidence of the breach of the contract in analogy to the case of covenants real. And in the more recent case of Krumbhaar vs. Birch, 83 Penn., 426, it was decided that where the purchaser seeks to defend an action for the purchase money on the ground of a breach of war
There has been no direct decision upon this precise point in Maryland, but it is not necessary in order to sustain the defence in the present case to go to the extent of adopting the law as laid down in the Massachusetts and Kentucky decisions. The statement of facts shows that the defendant “paid the amount due on the note in suit to Charles, the said Charles having previously made demand on him therefor and threatened, to take possession of the mules, as administrator of Rockwell unless he did so pay,” and this payment is in our opinion a good defence to the action. In the case of McGiffin vs. Baird, 62 N. Y., 329, the opinion, is expressed that such a defence would be sustained, for the Court say: “If the property is taken from the purchaser by title paramount, or if the purchaser is compelled to pay the true owner the value of the property, in either case it is a defence for the purchase money. So if the vendee returns the property upon discovering the defect in title he may have an action on the implied warranty, and of course a defence to an action for the purchase price, in which case he assumes the onus of proving title in a third
The application of this doctrine to the present case is obvious. We have shown that the plaintiff had no title to these mules. The title to them vested absolutely in the administrator, Charles, and he could undoubtedly either have recovered them from the defendant by replevin or have sued him in trover for their conversion. He had already paid part of' the purchase money to the plaintiff
It has also been argued that Charles had no right to the administration, and that the letters to him were irregularly and improperly granted. Assuming (but without intimating an opinion to that effect) that it is competent for the plaintiff to assail the validity of these letters in this action, we find nothing in the statement of facts to show that they were not granted in strict conformity with the requirements of the statute on this subject. The widow resided out of the State at the time they were granted, and therefore no notice to her was required. Code, Art. 93, sec. 33. And it is not shown, nor is there any thing in the statement of facts from which the inference can be drawn, that there was any other person entitled to administration before Charles, or that the Court could not have granted him' the letters in its discretion under Art. 93, sec. 31.
Judgment affirmed.