In Dresser v. Ainsworth, 9 Barb. 620, the court clearly lay down the contrary doctrine. Welles, P. J., says: "It is a principle of law that in every sale of personal property there is an implied warranty by the vendor of title in himself. (Chitty on Cont. 133; 2 Bl. Comm. 451; 3 Ib. 166; Defreeze v. Trumper, 1 Johns. 274.) These authorities only go to the extent of showing that in such sale the vendor impliedly warrants that he is the owner of the goods, and has good right to sell. They do not settle the question whether the warranty in such case extends to a prior hen or incumbrance. In the present case "William A. Beach, if the property was his, or if, as he swears, it was his father's, and he was authorized by his father to sell it, had a right in either case to sell it to the defendant, and the general property would pass, notwithstanding the hen of the execution. The question then is, whether the rule referred to extends the implied warranty to such lien. The rule is borrowed from the civil law, as appears by Sir William Blackstone, in his Commentaries. (2 Bl. Comm. 151.) On looking into Domat, I find the rule, as established by the civil law, extends the warranty to liens and incumbrances, as well as to the title. (Domat's Civil Law, 75, 76, Book 1, tit. 2, Of the Contract of Sale, § 10, Of Eviction and other troubles to the purchaser.) The essence, then of the contract of warranty in the present case was, that the vendor had a perfect title to the goods sold at the time of the sale; that the same were unincumbered, and that the vendee should acquire by the purchase a title free and clear, and should enjoy the possession without disturbance by means of any thing done or suffered by the vendor. It was, therefore, immaterial whether the defendant knew of the levy at the time he purchased. He had a right to rely upon the warranty; and, having been evicted, his right of action was complete upon Beach, so far as this point is concerned.
"One part of the plaintiff's position in the exception under consideration was that if the defendant knew of the levy there was no fraud practised upon him. William A. Beach had testified that when he sold the property to the defendant he told him there was a levy on it, but that he did not think it was good. If the question of the defendant's knowledge of the levy was material in that aspect, the circuit judge should have so advised the jury, as requested. But the gravamen of the defence was not that a fraud had been practised upon the defendant, but that the consideration of the note had failed; and I think, therefore, the question only bound to entire good faith, and are not understood to warrant their title longer than the purchase-money remains in their hands or under their control. So if a person purchases goods at auction and immediately afterwards sells them With a full communication of the circumstances under which he had purchased them, no warranty of title is implied by law.1 These cases, however, stand upon peculiar grounds not applicable to the ordinary cases of sale, and it must clearly appear that no personal trust in respect to the title was understood by both parties to be reposed in the vendor.2 The rule may, therefore, be laid down that whenever a person sells goods as his own, without notice, express or implied, of fraud, in view of the objection, was entirely immaterial, and that no error was committed by the judge in declining to charge, as requested, in this respect."
In Edick v. Crim, 10 Barb. 417, however, Gridley, P. J., says: "Though the general rule is that the vendor of a chattel impliedly warrants the title, yet, when the chattel is not in the vendor's possession, but in that of another, this rule does not prevail. In such case the party buys at his own peril, unless there be an express warranty." The authorities cited for this doctrine are 2 Kent, Comm. 478; Cro. Jac. 197. The doctrine of the latter case, as we have seen, was repudiated by Buller, J., in the case of Pasley v. Freeman. See also Chancellor Kent's note to the passage cited, entirely qualifying the rule stated by him in the text.
See an elaborate article in the Law Reporter, vol. xi. p. 272, by Albert Pike, Esq., in which he argues that the Roman and the common law give only a warranty of right of undisturbed possession, but not of title. He does not, however, seem to have attended to the distinction in the Roman law between contracts of exchange ( permutatio), or executory contracts of sale (do ut des), and executed sales (emptio et venditio), in the former two of which the Roman law certainly implies a warranty of title. Post, § 833 d. And see, on the contrary, an elaborate article on warranty in 12 American Jurist, p. 311.
The great length which this note has reached must find its justification or apology in the interest of the question, and the doubtful position it still continues to hold in the common law.
1 Bagueley v. Hawley, Law R. 2 C P. 625 (1867).
2 As to pawnbrokers, see Morley v. Attenborough, 3 Exch. 500. As to executors, administrators, and trustees, see Ricks v. Dillahunty, 8 Port. 134; Forsythe v. Ellis, 4 J. J. Marsh. 208; Mockbee v. Gardner, 2 Harr. & Gill, 176. But see Cripps v. Reade, 6 T. R. 606. As to sheriffs' sales, see Peto v. Blades, 5 Taunt. 657; Hensley v. Baker, 10 Mo. 157; Chapman v. Speller, 14 Q. B. 621; Yates v. Bond, 2 McCord, 352; Friedly v. Scheetz, 9 Serg. & Rawle, 156. See also Dresser v. Ainsworth, 9 Barb. 620; McCoy v. Artcher, 3 Barb. 323; Adamson v. Jarvis, 4 Bing. 66.
§ 1063. In equity a warranty of title is always implied, and the vendor cannot enforce a specific performance on total failure of title, nor indeed on a partial failure which goes to the essence of the consideration.3 In such a case, also, the contract would, on application to a court of equity, be set aside on the ground of mistake.4 Yet if the vendee choose he may, on a failure of title as to a part, generally insist on a specific performance in respect to the part to which a good title can be made, with a corresponding abatement of price, if the difference of value be susceptible of determination.5