§ 1064. In an executory contract of sale the vendee may refuse to accept the article sold unless the vendor make him a clear title;6 and if he have advanced the purchase-money, he may, upon discovery of a total failure of title, rescind the contract and recover back his advances in an action of assumpsit for money had and received.1 But where the sale is consummated and the article delivered and accepted, it does not seem to be quite settled in this country whether the vendee may bring a special action of assumpsit on the warranty so long as his title and possession are undisputed. The stronger opinion would seem to be that he cannot; upon the ground that the owner may never enforce his claim, or, if he do, the vendor may settle with him, in either of which cases there would be no breach of warranty to support the action.2 A judicial eviction would not, however, be necessary, provided a clear title be apparent in the claimant. Nor, indeed, would the vendee, on general principles, seem to be bound to support the expense of defending a suit; but upon suit being brought, he would seem to be entitled to abandon the thing, and to insist on the seller's warranty, or to call upon him to defend the suit.3 Yet if there be any affirmation of ownership, though there be strictly no express warranty of title, the law will import a technical deceit, so as to support an action on the case at once.4 And if there be actual fraud, the seller knowing the goods sold not to belong to him, an action on the case would immediately lie on the discovery of it.6 So, also, fraud is admissible by way of defence to reduce or extinguish a claim for the purchase-money.1

1 So, on the assignment of a judgment, the implied warranty of the amount unpaid, like the implied warranty of title in the sale of personal property, rests upon the presumption of law that the vendor knows the facts which he impliedly warrants. Furniss v. Ferguson, 34 N. Y. 485 (1866).

2 This section, together with the succeeding six sections, is taken from my treatise on sales. Despite the repetition that this course occasions, it was thought advisable, on account of the doubt still hanging over the question of warranty of title, and also because the other work may not always be at hand to consult. The treatise on sales, it may not be improper to say, will be found to be much fuller on all questions relating to sales than the abstract of the subject in the present treatise.

3 Graham v. Oliver, 3 Beav. 124; Roffey v. Shallcross, 4 Madd. 227; Dalby v. Pullen, 3 Sim. 29; 1 Story, Eq. Jur. § 778, 779, and cases cited.

4 1 Story, Eq. Jur. § 143 a, 161, and cases cited. See also Gillespie v. Moon, 2 Johns. Ch. 585; Allen v. Hammond, 11 Pet. 71; Roffey v. Shall cross, 4 Madd. 227. Ante, § 236.

5 Thomas v. Dering, 1 Keen, 729; Mortlock v. Buller, 10 Ves. 815; Paton v. Rogers, 1 Ves. & Beam. 351; Hill v. Buckley, 17 Ves. 395 Milligan v. Cooke, 16 Ves. 1; Dale v. Lister, 16 Ves. 7.

6 Purvis v. Rayer, 9 Price, 488; Chambers v. Griffiths, 1 Esp. 150; Souter v. Drake, 5 B. & Ad. 992; Judsonw. Wass, 11 Johns. 528; Clute v. Robison, 2 Johns. 613; Tallmadge v. Wallis, 25 Wend. 117.

1 See Morley v. Attenborough, 3 Exch. 514; Farrer v. Nightingal, 2 Esp. 639; Cripps v. Reade, 6 T. R. 606; Shove v. Webb, 1 T. R. 732, Johnson v. Johnson, 3 Bos. & Pul. 162; Chambers v. Griffiths, 1 Esp. 150; Berry v. Young, 2 Esp. 640, note; Picketon v. Litecote, 21 Viner's Abr. tit. Vendor and Vendee (B); Robinson v. Anderton, Peake, 94; Camfield v. Gilbert, 4 Esp. 221; 3 East, 516.

2 The rule is thus laid down in Case v. Hall, 24 Wend. 103; and Vib-bard v. Johnson, 19 Johns. 79; Brown v. Reves, 7 Mart. (n. s.) 235. It is also the rule of the Roman law, post, § 367 c. But the opposite doctrine is asserted in Scott v. Scott, 2 A. K. Marsh. 218; and Payuo v. Rodden, 4 Bibb, 304; Chancellor v. Wiggins, 4 B. Mon. 201.

3 See Bell on Sales, p. 95; Domat, Civil Law, pt. 1, b. 1, tit. 2, § 10, art. 3, (Strahan's translation) art. 6; Ib. art. 22. See Pothier on Sales, §118.

4 Bacon, Abr. Action on the Case, tit. D.; Cross v. Gardner, 1 Show. 68; Furnis v. Leicester, Cro. Jac. 474; Pasley v. Freeman, 3 T. R. 58; Case v. Hall, 24 Wend. 103; Vibbard v. Johnson, 19 Johns. 79; Medina v. Stoughton, 1 Salk. 210; 1 Ld. Raym. 593; Springwell v. Allen, 2 East, 448, n.; Dale's Case, Cro. Eliz. 41; Peto v. Blades, 5 Taunt. 657; Adamson v. Jarvis, 4 Bing. 66.

5 Ibid.

§ 1065. Where an action is brought on an executory contract to recover advances, or on an executed contract after eviction, it is not necessary to prove fraud on the part of the vendor; he is equally liable although he act in good faith and in ignorance of any defect in his title. But where an action on the case is brought, deceit is the ground of the claim, and it must be made out; if this simple rule be kept in view, it will serve to explain the ground upon which the early cases were decided, the apparent confusion between them and later cases, growing mainly out of the pleadings and form of action.

§ 1066. The doctrine of the Roman law in respect to warranty of title, though different in terms from the common law, was in substance the same. In the contract of do ut des which was nothing more than what is called in the common law an executory contract, a warranty of title or proprietorship was implied, and the money paid could be at once recovered, on failure of the title, and before eviction or disturbance of possession by the owner.. "Dedi tibi pecuniam, ut mihi Stichum dares. Finge, alienum esse Stichum, sed te tamen eum tradidisse; repetere a te pecuniam potero, quia hominem accipientis non feceris." 2 So, also, in the contract permutatio, or exchange, the same warranty was implied.3 But in an immediate sale, consummated on both sides, which is the real meaning of the terms emptio and venditio in the Roman law, the seller was only understood to warrant to the vendee the absolute right to retain undisputed possession and enjoyment of the thing sold. "Venditorem hactenus tenetur, ut rem emptori habere liceat, non etiam ut ejus faciebat;" 4 that is, as we should say in the common law language, it was a warranty of title, upon which no recovery could be had until the vendee's right of possession and enjoyment was attacked or title was questioned. By the practice of the Romans, the vendee had the right of denouncing or notifying to the seller the action brought against him, and leaving to him the defence of the suit, but he could not bring an action against him on the warranty until condemnation was passed by the court.1 By the French practice, however, the vendee may sue the vendor upon his warranty as soon as any adverse claim is made, or there is any interference with his enjoyment of the thing purchased.2 Again, in case of fraud, - as where the seller knew the article sold belonged to another, - he becomes immediately liable, although the possession of the vendee is undisturbed.3