The ability of one who contracts to sell property, either real or personal, to give a good title, is never regarded as a fact the non-existence of which invalidates the contract. If the contract contains an express or implied warranty of title,4 the vendor is liable in damages for the breach of the warranty. Under what circumstances one may elect to rescind a contract because of a breach by the other party and sue for restitution instead of for damages is elsewhere considered (post, Sec. 260 et seq.).
Even though the license contains an express stipulation that the licensee's privilege shall be exclusive, it is held that the invalidity of the patent does not invalidate the license. See Holmes v. McGill, supra.
1 Taylor v. Hare, 1805,1 Bos. & Pul. N. R. 260; Schwarzenbach v. Odorless, etc., Co., 1885, 65 Md. 34; 3 Atl. 676; 57 Am. Rep. 301.
2 1805, 1 Bos. & Pul. N. R. 260.
3 "Quasi-Contracts," pp. 37-39.
4 Ordinarily, in a contract to sell or a sale of chattels, there is an implied warranty of title. Williston, "Sales," Sec. Sec. 216-220. The same is true of executory contracts for the sale of land. Burwell v. Jackson, 1854, 9 N. Y. 535; Seld. Notes 243; Moore v. Williams, 1889,115 N. Y. 586, 592 ; 22 N. E. 233 ; Rawle, "Covenants for Title," Sec. 32. But in a conveyance of land there is no implied warranty. Dorsey v. Jackman, 1814, 1 Serg. & R. (Pa.) 42; 7 Am. Dec. 611; Rawle, " Covenants for Title," Sec. 320.
If, on the other hand, the contract is without warranty of title express or implied, the purchaser is held to have assumed the risk of the vendor's inability to give a good title and consequently is without a remedy.1