Assuming that Morse, under the contract of letting to the plaintiff's assignor, had the legal title to the calves sold to the defendant, I do not see under the adjudications on the subject how the latter can resist the claim to recover the purchase money. First, can he do it upon the *Page 331 ground of fraudulent concealment on the part of the plaintiff as to his title? A conclusive answer to this point is, that there is no finding of fraud by the referee, and we have repeatedly held that we cannot resort to the evidence for the purpose of reversing a judgment. But it would be difficult to find fraud from the evidence. Both the plaintiff and his father testified that Morse gave permission to sell the calves, and although the referee has found against the fact that such permission was given, yet if the plaintiff had reason to believe, and did believe that he had such right from what Morse told him, or otherwise it might relieve him from the charge of fraud. The contract itself is not very clear as to the title of the calves, and there is no positive evidence that the plaintiff knew its terms; and besides, fraud is not set up in the answer. There may be cases where a fraudulent affirmation or representation of title by a vendor of personal property, would render him liable to an action for damages upon proof of its falsity, and so of a fraudulent concealment, if the circumstances are sufficient to establish it, and in such cases the vendee may interpose the same as a defence or counter-claim in an action for the purchase money. But in the absence of fraud he can only rely upon an express or implied warranty of title. In every case of a sale of personal property there is an implied warranty of title, and this is analogous to a covenant for quiet enjoyment of land. (40 N.Y., 283; 26 id., 233; 19 J.R., 77.) The effect of such a warranty is to guarantee the purchaser against eviction or injury from other parties. If the property is taken from the purchaser by title paramount, or if the purchaser is compelled to pay to the true owner the value of the property, in either case it is a defence to an action for the purchase money. So if the vendee returns the property upon discovering the defect of title, he may have an action upon the implied warranty and of course a defence to an action for the purchase-price, in which case he assumes theonus of proving title in a third person; and upon the same principle, if for any reason it is impracticable or even undesirable to return the property, perhaps the purchaser *Page 332 may pay the claimant its value without legal proceedings, and avail himself of it as a defence, upon assuming the burden of establishing the validity of the claim. This is the extreme extent of the rule of protection recognized in any adjudged case, and it appears to me is as far as it would be safe to carry the rule consistently with the rights of the vendor.
The defendant in this case did not bring himself within any aspect of the rule. He had neither returned the property, nor had his possession been interfered with, nor had any recovery been had against him, nor had he paid the claimant of the property any thing. All that had been done was the claimant had given the defendant notice of his claim. NELSON, Ch. J., in Case v.Hall (24 Wend., 102), says: "Possibly the owner may never claim and enforce his title, or if he does, the seller may settle with him. The breach implies no bad faith, and is therefore compatible with perfect fair dealing between the parties, and the indemnity is complete by responding therefor, after a recovery under the paramount title."
The point urged of a want of consideration is answered by the views already expressed. The defendant received the possession of the calves with all the indicia of a good title, and also the personal obligation of the plaintiff, that the title was perfect, and for aught that appears in the case he has enjoyed and will continue to enjoy the full benefit of his purchase.
The judgment must be affirmed.
All concur.
Judgment affirmed. *Page 333