As the seller of personal property impliedly warrants his title,18 unless the buyer clearly agrees to take merely such title as the seller may have, it is seldom necessary in jurisdictions where rescission is allowable for breach of warranty 19 to invoke the doctrine of mistake as a justification of the buyer's right of rescission for defective title to goods which he has bought, since there will be either a warranty or the buyer will have agreed to buy and pay for only such right as the seller might have; but wherever the parties have based their contract on the assumption that the seller has title there seems no reason why there should not be rescission on the ground of mistake even though there is no warranty.20 Thus where the plaintiff bought chattels for value at an execution sale which were not the property of the judgment debtor but of a third person, recovery was allowed from the judgment creditor of the money paid.21
17 Art. 2219.
18 See supra, Sec.Sec. 975-979, 1063, 1129, 1162.
19 See supra, Sec. 1461.
20 Claffin v. Godfrey, 21 Pick. 1; King v. Doolittle, 38 Term. 77; Stocks v. Sheboygan, 42 Wis. 315. As to bargains for patents which turn out to be invalid, see supra, Sec. 137.
21 Dresser v. Kronberg, 108 Me. 423, 81 Atl. 487, 36 L. R. A. (N. S.) 1218, Ann. Cas. 1913 B. 642. The court said (page 425): "We are aware that the courts in some jurisdictions notably in Indiana and Illinois, have denied recovery from the judgment creditor, but we are unable to assent to the force of the reasoning by which that conclusion is reached. Dunn v. Frazier, 8 Blackf. (Ind.) 432; Lewark v. Carter, 117 Ind. 206, 10 Am. St. Rep. 40, see note to same, 3 L. R. A. 440; England v. Clark, 5 111. 487. The decisions in Indiana are placed upon the ground that the doctrine of caveat emptor applies with full force in all judicial sales and that the purchaser buys at his peril. This statement when rightly interpreted is true but it simply means that there is no guaranty or warranty of title because the purchaser takes and can only take whatever title the debtor has. Therefore in the absence of fraud the law will not ordinarily relieve a purchaser from a defective title and a partial failure of consideration, as for instance an outstanding incumbrance or a lien for taxes. Ritter v. Henshaw, 7 Iowa, 07; Parker v. Rodman, 84 Ind. 256. But the doctrine is not carried to the extent that in case of absolute failure of title the purchaser is without remedy. Even the States which deny a right of action against the creditor, grant it against the judgment debtor. MoGhee v. Ellis, 4 Litt. (Ky.) 244, 14 Am. Deo. 124; Price v. Boyd, 1 Dana