1 Spratt v. Jeffery, 10 B. & C. 249; Rodrigues v. Habersham, 1 Speers, 314; Smith v. The Bank of South Carolina, Riley, Eq. 113; McCoy v. Artcher, 3 Barb. 323; Purvis v. Rayer, 9 Price, 488; Earry v. Garrett, 9 B. & C. 928.

Besides, who should properly suffer in such a case? The innocent vendee, who has supposed, most naturally, most necessarily, that the seller had a title or right to sell, and who has paid a full consideration therefor, or the vendor, who has sold what he had no right to sell, and has pocketed the full price? The equities of the case are manifest.

That the affirmation of title is a natural implication from the selling is evident. Suppose one person should ask of another who is selling him goods whether he will warrant that the goods belong to him ? Would it not seem an extraordinary, nay, almost an insulting question?

When it is considered that the mere sale of provisions creates an implied warranty as to wholesomeness on the ground "that it maybe presumed that the vendor intended to represent them as sound and wholesome, because the very offer of articles of food implies this, and it may be readily presumed that a common vendor of articles of food, from the very nature of his calling, knows whether they are unwholesome and unsound or not " (per Mr. Chief Justice Shaw, in Winsor v. Lombard, 18 Pick. 57), and that an implied warranty arises in the case of a manufacturer against any latent defect (see post, § 838), because of the necessary trust reposed in the vendor, - surely, for the same reasons, a warranty of title ought to be implied.

Again, when goods not in the possession of the vendor are sold, and they turn out not to be his property, the sale must be founded either on mistake or fraud, for either the seller supposed he had a right to sell the title when he had not, which is a mistake going to the essence of the contract, and affording a sufficient ground for the vendee to avoid the sale and recover his money advanced thereon (see Hammond v. Allen, 2 Sumner, 394), or if the vendor knew that the title was disputed, or that he had no title or right to sell, and did not notify the fact to the vendee, it would be a direct fraud, for which the vendee could recover. Considered in this light, if would make no difference whether the goods were in the possession of the vendor or not. See Hammond v. Allen, 2 Sumner. 394; 11 Pet. 71; Hitchcock v. Giddings, Dan. 1.

Again, public policy is against such a distinction. In the large transactions of commerce, goods are very frequently not in the hands of the vendor, but stored elsewhere. It often occurs that goods are sold while at sea, and that unladen cargoes are sold while in possession of the master, or goods in a manufactory or warehouse are sold by a factor or broker having no possession of them. To hold, in all such cases, that there is no implied warranty of title, would be most injurious, and would offend against the long-established usages and customs of trade and who neither pretends to be owner and to take any responsibility in respect to the title, nor is considered as so There is also another reason against this distinction, and that is its indefiniteness. What is possession? And when may goods be considered in possession, and when out of possession? May any third person be considered as the bailee of the vendor, or only any third person holding without adverse claim on his part? Or if such third person hold as bailee of the vendor, supposing the right of title to be in his vendor, and it turn out that a fourth person has the real title, does the vendor hold constructive possession by his agent or not? It is easy to see that complicated questions may arise on this sabject in respect to which it is difficult to lay down any clear rule, which will be applicable to every case.

It would seem that a vendor ought to know his title, because he alone has the full means of knowledge; and assuming as he does the ownership of goods by selling them, the vendee must depend on that assumption; because in most cases it would be impossible for him to inform himself. It is true that he may demand an express warranty, but in the carelessness, rapidity, and extent of commercial transactions, a supposition of want of title would not naturally occur to the vendee, unless there were circumstances indicating a want of title, additional to mere want of possession. And if it do not occur to him, ought he to suffer a direct wrong ? The payment of a full price has at times been held to import a warranty of quality; certainly it should import a warranty of title.

There is also another reason against this distinction. Whether goods be out of possession or in possession, the utter failure of title is an utter failure of consideration, and the contract thereby becomes voidable. See ante, § 480.

In conclusion, the broad doctrine laid down by Blackstone, that "a purchaser of goods and chattels may have a satisfaction from the seller, if he sells them as his own, and the title proves deficient, without any express warranty for that purpose" (2 Black. Comm. 451), seems the true one, for as he says in another place, "it is constantly understood that the seller undertakes that the commodity he sells is his own." 3 Black. Comm. 165. In Coolidge v. Brigham, 1 Met. 551, Mr. Justice Wilde 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 proves 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 possession of personal property is primÔ facie evidence of title; and in many cases it would be difficult, if not impossible, before the sale, to discover the defect of title." The rule is broadly laid down here, and no distinction is made between goods in and out of the vendor's possession, unless the last sentence is to be understood doing. In such a case there would be a reciprocal understanding that the risk of title was taken by the buyer. The as restricting all the preceding statements. The court evidently did not consider such a distinction to create any difference of liability, for, if it had, the distinction would have been stated.