Again in Strong v. Barnes, 11 Vt. 221, where a carding machine, not in the possession of the vendor, was sold by a written contract of sale, without warranty of title contained therein, but it appeared that the vendor had in conversation affirmed that he had such a machine, upon doubts being expressed by the vendee, it was held "that the bill of sale amounted to a warranty that the defendant was owner." See also Harvey v. Young, Yelv. 21, American edition, and note by Mr. Metcalf. In Defreeze v. Trumper, 1 Johns. 274, where a horse was sold by the plaintiff as executrix in her own wrong, and the administrators recovered the value of the horse of the vendee, the court said: "We are of opinion that an express warranty was not required; for it is a general rule that the law will imply a warranty of title upon the sale of a chattel." And the rule, as 6tated in Blackstone's Commentaries (vol. ii. p. 451), is expressly affirmed totidem verbis. See also Murray v. Judah, 6 Cow. 491, and Heermance v. Vernoy, 6 Johns. 5, where the court say: "Every man is considered as warranting the title of personal property which he sells, though there be no express warranty for that purpose." See also Rew v. Barber, 3 Cow. 280; Chancellor v. Wiggins, 4 B. Monroe, 201; Sibley v. Beard, 5 Ga. 550; Col-cock v Goode, 3 McCord, 513. In Swett v. Colgate, 20 Johns. 202, Mr. Justice Woodworth, after stating that an affirmation as to quality, though made at the time of the sale, must be intended as a warranty, in order to render the vendor liable, goes on to say: "With respect to the title to the goods sold, an express warranty is not necessary; for it is a general rule, that the law will imply a warranty of title." See also note to this case in the second edition (1839). See also Mr. Metcalf's note to Yelv. 21 b, and Chism v. Woods, Hardin, 531; Hilliard on Sales, sect. x. p. 258; Payne v. Rodden, 4 Bibb, 304.
In Vibbard v. Johnson, 19 Johns. 78, the court say: "There is no doubt that in every sale of a chattel for a sound price, there is a tacit and implied warranty that the vendor is the owner, and has a right to sell." See also Case v. Hall, 24 Wend. 103. In Blasdale v. Babcock, 1 Johns. 518, which was an action on the case on an implied warranty in the sale of a horse, the judge charged the jury that the defendants, by the sale of the horse, warranted it to be his property, and, upon a new trial, the charge was supported by the whole court. In Payne v. Rodden, 4 Bibb, 304, where there was no affirmation of title, the court say: "Although a seller is not presumed to undertake for the soundness of goods which he sells, yet with respect to a chattel in the possession of the vendor, it is settled by a current of authority that there is an implied warranty of title. Here, however, the fact of possession is recognized." In Mockbee v. Gardner, same rule would apply to the sale of a chattel by a sheriff on execution, and to all sales by an executor, administrator, or that they belong to another, or that his title is doubtful or defective, a warranty of title is implied by the fact of sale.1 Where such notice is either express or implied necessarily from the facts of the case, or the character of the seller in relation to the goods, the purchaser is supposed to take the risk.
2 Harr. & Gill, 177, the court say: "It is a general and familiar principle that there exists in every sale of personal property an implied warranty of title." In Ritchie v. Summers, 3 Yeates, 531, Smith, J., says: "The act of selling chattels is such an affirmation of property, that on that circumstance alone, if the fact should turn out otherwise, the value can be recovered from the seller. It is constantly understood that the vendor undertakes that the commodity he sells is his own." In Boyd v. Bopst, 2 Dall. 91, the same statement is made in the same words. In Willing v. Peters, 12 Serg. & Rawle, 181, the court say: "On the sale of personal property there is an implied warranty by the vendor, unless the agreement be to the contrary." See also Dorsey v. Jackman, 1 Serg. & Rawle, 44, and opinion by President Roberts in note; Lanier v. Auld, 1 Murph. 138; Dean v. Mason, 4 Conn. 428.
Since the publication of this note in the previous (third) edition, in the late case of Smith v. Fairbanks, 7 Foster, 521, Mr. Justice Woods clearly enunciates the doctrine of the text as follows: "It was contended that here was no warranty shown, and consequently no interest. In order to imply a warranty of title, however, it is necessary only that the seller should sell the property as his own. That is equivalent to an affirmation that he holds the title which implies a warranty. To sell property as one's own can mean nothing else than that it was sold with the understanding of both parties, that the title of the property was in the seller." After examining the dictum as to sales in the possession and out of the possession of the vendor, he continues: "In this case it would seem probable that a fair price was paid for the cow, if that can make any difference. The contrary is not shown. We, however, do not give any particular force to that circumstance. The cow was sold as the property of the witness. That as we regard it is the material fact. Such a sale implies warranty of the title. The price, so far as it is to have force, is for the reason that it tends to show a probable intention to sell the entire property of the chattel. No doubt then exists, we think, that if the title should prove deficient, the witness in this case would be answerable, as upon a warranty of title, for the price paid and the reasonable costs of this litigation. We think the mere fact of want of possession in the seller, at the time, who sells the chattel as his own property, can make no difference in relation to the warranty. The only thing which gave rise to such an idea was the dictum of Lord Holt, not probably assented to by Lord Raymond, and distinctly repudiated by Buller, J.; and although stated by Kent as the rule, in his first edition, where the sale is made of one's own property, yet modified in the fourth in the case of a sale of the chattels as one's own property." In Huntingdon v. Hall, 36 Me. 501, however, it is laid down by the court that a warranty of title will only be implied where the goods sold are in the possession of the trustee; for as they do not profess to sell the goods as their own, but expressly as belonging to another person, they are vendor, and not where they are out of his possession. The cases relied upon to support this doctrine are Morley v. Attenborough (3 Exch. 512), which, as we have seen, was a pawnbroker's sale, where the goods were not sold as belonging to the seller, but the contrary; McCoy v. Artcher (3 Barb. 323), in which the doctrine is clearly laid down; and Russell v. Richards (1 Fairf. 433), where it is implied.