The opinion of the court was delivered by
Royce, Ch. J.This is an action on the case for deceit and breach of warranty of title in the sale of personal property. The property in question was sold in three parcels, to the plaintiff and to two other parties, to whose rights under the sale the plaintiff succeeded, conditionally, to be paid for in installments within a certain limited time, and to remain the property of the vendor until paid for. At the time of sale the property was encumbered to the amount of about $2,400 by a chattel mortgage duly recorded. Said mortgage was running to the defendant; but previous to the sale an interest in it to the amount of $1,250 had been assigned by the defendant to the Barnum Richardson Co.; which assignment was also recorded. The plaintiff had no actual notice of this encumbrance. After the expiration of the time within which, by the terms of the contract, payment of the full purchase price was to be made, and after the plaintiff had made partial payment, the property was seized and sold by the Barnum Richardson Co., by proceedings under the statute for the foreclosure of chattel mortgages; and the proceeds applied to the payment of their claim, the costs, and expenses of the proceeding, and the *396balance paid over to certain attaching creditors of the defendant.
The sale to the plaintiff, when made, was acquiesced and participated in by the defendant, the mortgagor, Tobin, and one McArthur, who, the case shows, was “the agent and representative in this State ” of the Barnum Richardson Co.; and the case further shows that said property when sold was kept on premises occupied by the defendant and said Tobin.
The law must be regarded as well settled in this State, and in the United States generally, that in the absence of any notice to the contrary, a person, who sells personal property in his possession, sells it with an implied warranty of title. Patee v. Pelton, 48 Vt. 182; Benj. Sa. s. 641, and note i. And it is held that the word “possession” in this connection is to receive a broad construction, so as to include constructive as well as actual possession. Thus it is held that possession by a bailee or agent or a tenant in common of the vendor, is sufficient; and that to constitute the exception, it must appear that the goods were in the adverse possession of a third person, or else that the vendor had either no interest in them, or a mere naked interest, without either actual of constructive possession. Shattuck v. Green, 104 Mass, 42.
From what appears in this case, therefore, we think the defendant must be treated as having been in possession of the property at the time of the sale in such a sense, at lea'st, as to raise an implied warranty of title.
While the doctrine of the courts in different States is not entirely uniform as to the exact state of circumstances under which a vendee may assert the breach of an implied warranty, it may safely be said, that he must show a lawful eviction, or at least a legal right to the possession of the property in a third person. Benj. Sa. s. 627, and note i. The plaintiff having shown the property taken out of his hands by means of the foreclosure sale upon the Barnum *397Richardson Co.’s claim under the mortgage, it is replied that had the plaintiff fulfilled the terms of his contract of purchase he could not have been dispossessed in that way; because by their participation and acquiescence in the sale to him, both the defendant and the Barnum Richardson Co. would have been estopped from setting up any claim under the mortgage against him. That the defendant and the mortgagor would have been so estopped by their acts in connection with the sale seems to admit of no question. Pom. Eq. Juris, s. 801 et seq.; Miller v. Bingham, 29 Vt. 82. Whether the Bai'num Richardson' Co. stand in the same position, depends simply upon the authority of McArthur to act for them in doing what the case shows he did do upon the occasion of the sale.
With regard to this, the case shows, that he was “ the agent and representative of the Barnum Richardson Co. in this State,” and also shows certain acts of his in relation to the sale at auction of certain of the mortgaged property, which was thus disposed of before the sale to the plaintiff, and which do not appear to have been questioned by his principals. In the absence of anything to show that Me Arthur’s authority as agent was a special or limited one, or that what was done by him was beyond the scope of his authority, we think this is enough to make his acts in this connection binding upon his principals. Had the plaintiff fulfilled the terms of his contract of purchase by paying the full amount therein stipulated to be paid, before eviction, he could not lawfully have been deprived of possession by the Barnum Richardson Co. by foreclosure of their mortgage.
It is contended, that by receiving payments from the plaintiff after the expiration of the time limited in the contract of sale, the defendant extended the time of payment, and so could not lawfully retake the property without previous demand of payment. This may be true; but it does not appear that the plaintiff’s possession was disturbed *398or attempted to be, by the defendant. The property was taken and sold by the Barnum Richardson Co. by virtue of their right, acquired previous to the sale to plaintiff, under the assignment to them of an interest in the mortgage by the defendant. Nothing appears by -which any extension of the time of payment or other waiver of the terms of the sale to plaintiff, by the defendant, could affect their rights; nor is it shown that they knew of any such.
As the plaintiff, by fulfilling the terms of his contract, would have acquired a good title, not subject to be defeated or disturbed in the manner of which he complains, he cannot maintain this action; and the judgment of the County Court must be reversed and judgment rendered for the defendant to recover his costs.