In contracts to sell real estate the contract is construed unless a contrary intention is expressed, as binding the seller to convey a good title; 22 but when an actual conveyance has been made there are certainly no implied warranties and generally the assumption is made that the buyer takes the risk of the seller's title except to the extent that the seller by the express terms of the deed warrants its validity,23 Where, however, the property to which the contract relates has no existence (not simply is not owned by the seller), it seems probable that an attempted conveyance could be set aside for mistake;24 and it seems, further, that if the grantor's supposed title or right to convey was based on his holding some office or having some authority, or upon some other fact and it clearly appeared that the parties contracted on the mutual erroneous assumption that the grantor had the office, or the authority, or that the necessary facts existed, the transaction will be rescinded.26
(Ky.), 434; Geoghegan v. Ditto, 59 Ky. 433, 74 Am. Dec. 413; Julian v. Beal, 26 Ind. 220, 89 Am. Dec. 460; Westerfidd v. Williams, 59 Ind. 221; Coan v. Grimes, 63 Ind. 21."
22 See supra, Sec. 923.
23 See supra, Sec. 926.
24 In Hitchcock v. Giddings, 4 Price, 135, Richards, C. B., said: "Suppose I sell an estate innocently, which at the time is actually swept away by a flood, without my knowledge of the fact; am I to be allowed to receive 5,000/. and interest, because the conveyance is executed and a bond given for that sum as the purchase money, when, in point of fact, I had not an inch of the land, so sold, to sell?"
In the actual case the plaintiff had purchased and taken a conveyance from the defendant of an interest in real estate which had, however, been cut off by the suffering of a common recovery. It was held that a bond given by the plaintiff for the price must be delivered up for cancellation. Cf. with cases cited supra, Sec. 926. See also Blakeman v. Blakeman, 39 Conn. 320.
25 Hitchcock v. Giddings, 4 Price, 135; United States v. Gridley, 186 Fed. 544; O'Neal v. Phillips, 83 Ga. 556, 10 S. £. 352; Phillips v. O'Neal, 85 Ga. 142,11 S. E. 581,87 Ga. 727, 13 8. E. 819; Julian v. Beal, 26 Ind. 220, 89 Am. Dec. 460; Fleetwood v. Brown, 109 Ind. 567,9 N. E. 352,11N. E. 779; Earle v. Bickford, 6 Allen, 549, 83 Am. Dec. 651; Griffith v. Townley, 69 Mo. 13, 33 Am. Rep. 476; Clark v. Carter, 234 Mo. 90, 136 S. W. 310; Martin v. McCormick, 8 N. Y. 331; Thomas p. Bartow, 48 N. Y. 193, 198; McKib-ben v. Doyle, 173 Pa. 579, 34-Atl. 455, 51 Am. St. Rep. 785; Bigham v. Madison, 103 Tenn. 358, 52 S. W. 1074, 47 L. R. A. 267; Irick v. Fulton, 3 Gratt. 193. See also Miller v. Thompson, 40 Nev. 35, 160 Pac. 775. Cf. Erkens v. Nicolin, 39 Minn. 461, 40 N. W. 567. On their facts some of these cases are not easy to reconcile with those cited supra, Sec. 926,
In England the distinction is taken between a case where the price for the conveyance has been paid (where no recovery is allowed),26 and a case where mistake is urged as a defence to an obligation to pay the price or as a reason for cancelling it (where relief is allowed).27 But the distinction is worthless. The conveyance has been given in both cases. If the grantee has got what the parties intended he should have - namely, just what the conveyance gives him - he can neither recover the price if he has paid it, nor, if he has not, defend against his contract to pay it. On the other hand, if the contract was made on the mistaken assumption of an essential fact of which the grantee did not take the risk, he should have as complete a right to recover a price which he has paid as to defeat the recovery of a price which he has not paid.