1 A warranty of title is implied in case of an exchange as well as in case of a sale. Hunt v. Sackett, 31 Mich. 18; Patee v. Pelton, 48 Vt 182, Byrnside v. Burdett, 15 W. Va. 702.

(d) This must be confined to sales of chattels. In the sale of real estate by deed there are no implied warranties. The words "containing .-" many acres," &C, do not import a covenant of quantity. Huntley v. Waddell, 12 Ired. I.. 32; Rick-ets v. Dickens, 1 Murphey, 343 . Powell v. Lyles, 1 id. 348; Roswel v. Vaughan, this is the established rule of law in this country. (e) 1 In any case where there was this warranty of title, it would seem to follow from acknowledged principles, that a title subsequently

Cro. J. 196. See ante, p. * 501.

(e) No case more directly asserts the implied warranty of title, in all cases of sales of personal property, than that of Defreeze v. Trumper, 1 Johns. 274 (1806). There the purchaser of a horse brought a suit against the vendor to recover damages; the title having been in a third person, and not in the vendor at the time of the sale. The principal objection at the trial was, that the evidence did not prove any warranty, nor any fraud in the sale. But the court said: " We are of opinion that an express warranty was not requisite, for it is a general rule that the law will imply a warranty of title upon the sale of a chattel." And this doctrine has been steadily adhered to and uniformly followed by the courts of New York. See Heermance v. Vernoy, 6 Johns. 5 (1810); Vibbard v. Johnson, 19 Johns. 77 (1821); Sweet v. Colgate, 20 Johns. 196(1822); Reid v. Barber, 3 Cowen, 272 (1824); McCoy v. Artcher, 3 Barb. 323 (1848). In this case a very able judgment was pronounced in favor of the doctrine of the text, namely, that in sales of personal property, in the possession of the vendor, there is an implied warranty of title, for the possession is equivalent to an affirmation of title. But it is held otherwise where the property sold is then in the possession of a third person, and the vendor made no affirmation or assertion of ownership. And the same was again distinctly affirmed in the case of Edick v. Crim, 10 Barb. 445. Dresser v. Ainsworth, 9 Barb. 619, is a valuable case upon this point. It is there held, that this implied warranty of title not only means that the vendor has a right to sell, but it extends to a prior lien or incumbrance. The essence of the contract is, that the vendor has a perfect title to the goods sold; that the same are unincumbered; and that the purchaser will acquire by the sale a title free and clear, and shall enjoy the possession without disturbance by means of anything done or suffered by the vendor. So in Coolidge v. Brigham, 1 Met. 551, Wilde, J., says: " In contracts of sales a warranty of title is implied. The vendor is always understood to affirm that the property he sells is his own. And this implied affirmation renders him responsible, if the title prove defective. This responsibility the vendor incurs, although the sale may be made in good faith, and in ignorance of the defect of his title. This rule of law is well established, and does not trench unreasonably upon the rule of the common law, caveat emptor." The general doctrine of the text is also directly asserted or recognized in Bucknam v. Goddard, 21 Pick. 760: Hale v. Smith, 6 Greenl. 420; Butler v. Tufts, 13 Me. 302; Thompson v. Towle, 32 Me. 87; Huntingdon v. Hall, 36 Me. 501; Robinson v. Rice, 20 Mo. 229; Lines v. Smith, 4 Fla. 47; Lackey v. Stouder, 2 Cart. (Ind.) 376; Gookin v. Graham, 5 Humph. 480; Trigg v. Faris, 5 Humph. 343; Dorsey v. Jackman, 1 S. & R. 42; Eldridge v. Wad-leigh, 3 Fairf. 372; Cozzins v. Whitaker, 3 Stew. & P. 322; Mockbee v. Gardner, 2 Har. & G. 176; Payne v. Rodden, 4 Bibb, 304; Inge v. Bond, 3 Hawks, 103; Taylor, C. J.; Chism v. Woods, Hardin, 531; Scott v. Scott, 2 A. K. Marsh, 217; Chancellor v. Wiggins, 4 B. Mon. 201; Boyd v. Bopst, 2 Dallas, 91; Colcock v. Good, 3 McCord, 513; Kicks v. Dillahunty, 8 Port. (Ala.) 134; Williamson v. Sammons, 34 Ala. 691: Morris v. Thompson, 85 Ill. 16; Marshall v. Duke, 51 Ind. 62; Richardson v. Tipton, 2 Bush, 202; Rice v. Forsyth,

41 Md. 389; Matheny v. Mason, 73 Mo. 677; Shattuck v. Green, 104 Mass. 42; Storm v. Smith, 43 Miss. 497; Sargent v. Currier, 49 N. H. 310; Wood v. Sheldon, acquired by the vendor would enure to the benefit of the vendee. (f) If the seller is in possession, but the possession i

42 N. J. L. 421; McGiffin v. Baird, 62 N. Y. 329; Krumbhaar v. Birch, 83 Pa. 426; Gilchrist v. Hilliard, 53 Vt. 592; Crouin-ger v. Paige, 48 Wis. 229; see also a well reasoned article in 12 Am. Jur. 311; 2 Kent, Com. 478. We have been thus full in the citation of authorities upon this apparently well-settled point, because there is still some conflict of opinion upon it, and because the American doctrine has been thought not to rest upon good foundation. The arguments and authorities upon the opposite side of the question are very ably stated in 11 Law Rep. 272 et seq. Scranton v. Clark, 39 N. Y. 220. In this last case it was decided that if the vendor be not in possession there is no warranty, and if he afterwards acquire a good title it will not enure to the benefit of the purchaser.

1 In Bennett's edition of Benjamin on Sales (ed. 1888), pp. 616-618, the learned editor doubts the reason for not implying a warranty of title though the vendor is out of possession, provided he purports to sell an absolute title, and after an examination of the cases finds but few actual decisions supporting the distinction.

*of such a kind as not to denote or imply title in him, there would be no warranty of title in England, (g) and we are confident that there would be none in this country.1

All warranties, however expressed, are open to such construction from surrounding circumstances, and the general character of the transaction, and the established usage in similar cases, as will make the engagement of warranty conform to the intention and understanding of the parties; provided, however, that the words of warranty are neither extended nor contracted in their significance beyond their fair and rational meaning. For these words of warranty are usually subjected to a careful, if not a precise and stringent interpretation, as it is the fault of the buyer who asks for or receives a warranty, if it does not cover as much ground and give him as effectual protection as he intended. (h) 2