In the late case of Morley v. Attenborough, 3 Exch. 500, this doctrine has, however, been disputed. It is said by Baron Parke, after a review of the old authorities on this question: "From the authorities in our law, to which may be added the opinion of the late Lord Ch. J. Tindal, in Ormrod v. Huth, 14 M. & W. 664, it would seem that there is no implied warranty of title on 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 will be whether there are such circumstances as to be equivalent to such a warranty. Usage of trade, if proved, as a matter of fact, would of course be sufficient to raise an inference of such an engagement; and without proof of such usage, the very nature of the trade may be enough to lead to the conclusion that the person carrying it on must be understood to engage that the purchaser shall enjoy that which he buys as against all persons." This last sentence seems to yield the whole question. Usage of trade imports a warranty of title in all cases, unless, perhaps, where the very nature of the contract or the facts of the case plainly show that the vendor does not possess the title to the subject, or the right to sell, and that the vendor takes the risk knowingly. And if the nature of the trade is enough to create an implied warranty of title, every complete and absolute sale would come within the rule, simply because it is a sale, which cannot be made by any person not having a title. In the case in which this judgment was delivered, a pawnbroker, in a sale of forfeited articles which he did not profess to own, sold a harp which had been pawned by a person who did not own it, and the owner reclaimed it of the vendee, who brought an action therefor against the pawnbroker. From the very nature of the warranty, by which the vendor is bound, whether the subject-matter of sale be in his possession or not;1 and the only sale in this case, it was thought that the pawnbroker could not be understood as warranting his title; the vendee being affected with notice that the article sold had been merely forfeited upon a pledge. But we do not see why, in such a case, the innocent vendee should suffer. The vendee had trusted the pawnbroker, the pawnbroker had trusted the pawner, and the remedy of each should be against the party trusted by him. What consideration was there to support the sale to the purchaser? Why could he not reclaim the purchase-money on the ground of a total failure of consideration? Any rule except the simple one that a sale imports a warranty of title leads us into constant difficulties. The court go on to say, after admitting that executory contracts create an implied warranty of title: "We do not suppose that there would be any doubt if the articles are bought in a shop professedly carried on for the sale of goods, that the shopkeeper must be considered as warranting that those who purchase will have a good title to keep the goods purchased. In such a case the vendor ' sells as his own,' and that is what is equivalent to a warranty of title. But in the case now under consideration, the defendant can be made responsible only as on a sale of a forfeited pledge, eo nomine. Though the harp may not have been distinctly stated in the auctioneer's catalogue to be a forfeited pledge, yet the auctioneer had no authority from the defendant to sell it except as such. The defendant, therefore, cannot be taken to have sold it with a more extensive liability than such a sale would have imposed upon him; and the question is, whether, on such a sale, accompanied with possession, there is any assertion of an absolute title to sell, or only an assertion that the article has been pledged with him, and the time allowed for redemption has passed. On this question we are without any light from decided cases.
"In our judgment it appears unreasonable to consider the pawnbroker, from the nature of his occupation, as undertaking any thing more than that the subject of sale is a pledge and irredeemable, and that he is not cognizant of any defect of title to it. By the statute law (see 1 Jac. I. c. 21) he gains no better title by a pledge than the pawner had; and as the rule of the common law is that there is no implied warranty from the mere contract of sale itself, we think that where it is to be implied from the nature of the trade carried on, the mode of carrying on the trade should be such as clearly to raise that inference. In this case we think it does not. The vendor must be considered as selling merely the right to the pledge which he himself had; and therefore we think the rule must bo absolute.
"Since the argument, we find that there was a count for money had question, in respect to which there is any doubt, is whether the mere act of selling, where the absolute title to the goods and received, as well as the count on the warranty, in the declaration. But the attention of the judge on the trial was not drawn to this count, nor was it noticed on the argument in court.
1 See Sims v. Marryat, 17 Q. B. 281; 7 Eng. Law & Eq. 330.
"It may he that though there is no implied warranty of title, so that the vendor would not be liable for a breach of it to unliquidated damages, yet the purchaser may recover back the purchase-money, as on a consideration that failed, if it could be shown that it was the understanding of both parties that the bargain should be put an end to if the purchaser should not have a good title. But if there is no implied warranty of title, some circumstances must be shown to enable the plaintiff to recover for money had and received. This case was not made at the trial, and the only question is, whether there is an implied warranty."
That this doctrine is to be restricted to the actual facts of that case, will be seen by the late case of Sims v. Marryat, 17 Q. B. 281; 7 Eng. Law & Eq. 330. Mr. Bell, also, in his Treatise on the Contract of Sale, page 95, says, "As no one can justly sell anything without having a full title of ownership, or at least a right to dispose of the subject which he sells, he, by the act of selling, gives an implied assurance to the buyer that he holds such powers as effectually to make the transfer to him." " This general doctrine is laid down as a necessary result of the principles of the contract by the institutional writers of all countries." Blackstone lays down the same rule, and says, "It is constantly understood that the seller undertakes that the commodity he sells is his own." 3 Black. Comm. 165. See, also, 2 Black. Comm. 451. Mr. Comyn, in his treatise on Contracts, repeats the rule in the same words, and by way of illustration adds, "where a man sells goods as his own when they are the goods of a stranger, an action lies against him without an express warranty." In Doe d. Gray v. Stanion, 1 M. & W. 701, it is said, "In contracts for the sale of real estate the agreement to make a good title is always implied." A fortiori, this would be true of personal property.