The evidence was sufficient to show that the horse had been stolen from Dysart before he came to the possession of defendant, and therefore, as against Dysart, defendant and his vendees were without title.
In the sale from defendant to plaintiff there was no proof of any express warranty of title; nor was any such proof necessary. The fair and reasonable construction of the evidence is that defendant had possession of the property at the time of sale and transferred it to the plaintiff on his paying the purchase money. Possession of personal property implies title, and in every case of the sale of personal property in possession, there is an implied warranty of title in the vendor. (2 Kent Com., 478; 2 Black. Com., 451; 1 J.R., 274; 3 Cow, 272; 3 Bac., 323.)
The important question in this case is, whether the plaintiff could recover without proving actual loss, or damage, by reason of defendant's want of title to the chattel. There was no evidence that plaintiff or his vendees had ever been disturbed in their possession or enjoyment of the property; nor had plaintiff ever parted with any money or property in consequence thereof.
It is true a judgment had been recovered against the plaintiff for the value of the horse; but, until satisfied, it only established a liability, not a loss. It might never be enforced. As the true owner was deprived of his property by a felony, he might pursue others, through whose hands it had passed, even the defendant, and satisfy his claim against them. Until a satisfaction, the owner's rights of action against others than plaintiff, remained intact.
In its operation and legal bearings, this case is very like a covenant of warranty for quiet enjoyment in the sale of land. If A, convey land to B, and B to C, and C to D, all with covenants of warranty for quiet enjoyment, and D is evicted, *Page 286 he may sue any or all of the preceding covenantors till he obtain satisfaction; but no intermediate covenantee can sue his covenantor till he himself has been compelled to pay damages upon his own warranty. (Withy v. Mumford, 5 Cow., 137; Baxter v.Ryerss, 13 Barb., 281.)
In the case of breach of an implied warranty of title to a chattel, the vendee is not bound to await legal action against him. If satisfied of the insufficiency of his vendor's title, and that the true owner would recover the property in an action, he may surrender it, and recover its value in an action against his vendor, by affirmatively establishing that the vendor was without title; or the vendee may await the prosecution of an action. If the vendor be notified of the action and required to defend, a judgment, if obtained, would be conclusive as to his want of title; but if not notified, and judgment is obtained, the onus of showing want of title would rest upon the vendee, the same as if surrendered without action. (Sweetman v. Prince,26 N.Y., 224, 232.)
If the property be surrendered to the true owner, then the vendee's loss and damage is established; but if a judgment be had against him, either with or without notice, the vendee's loss or damage is not established without proofs of satisfaction or payment of the judgment. In this case, the true owner (as in cases of covenants of warranty running with the land) would have a right of action against any possessor subsequent to the larceny; and that possessor against any prior covenantors, which might be pursued until this damage or loss is satisfied; hence any intermediate vendee, or covenantee, could not be permitted to maintain an action against his immediate warrantor, or covenantor, in the absence of fraud, without proof of damage by loss of property or compulsory payment of money.
I think the plaintiff on the trial, by omitting to prove payment of the judgment obtained against him, failed to establish a right of action as against the defendant, and hence was properly nonsuited. *Page 287
The judgment of the General Term should be reversed, and that of the Circuit affirmed.
All the judges voting, concurred. MASON and MURRAY, JJ., did not vote.
Order of General Term reversed, and judgment absolute for defendant.