A sale of chattels for a sound price carries with it an implied warranty of title in the vendor. This is old law. Chandelor v. Lopus, 2 Croke, 2; Seixas v. Woods, 2 Caines, 48. And to this extent the rule of caveat emptor does not apply in sales of personal property. The rule is different in respect to real property, where a warranty must be expressed or the courts hold that none was intended. Subject to this rule, Romer sold his stock in trade in the cabinet shop to Lane; and the first question is, whether the vendee is protected from the chattel mortgages upon the property, executed by the vendor prior to sale, and recorded in conformity to the statute. Clearly, Romer had not a perfect title at the time he sold, and inasmuch as the record notice only affected third persons, and did not apply between the parties, Rmner was bound, as between himself and Lane, to make good the title. This suit is brought upon anote, not negotiable, given for a part of the purchase money, and the same right of defense exists as if Rmner owned the note.
Had the defense arisen upon a notice of special matter, accompanying the plea of general issue, I should have had *409little doubt of the defendant’s right to recoup to the amount of the chattel mortgages; nor do I doubt that an action would lie on the implied warranty; but there is no notice whatever of the facts which make out this defense. The defendant pleaded the general issue, with the common notice of set-off, and, on the trial, offered proof of payment of the mortgages as a set-off to the plaintiff’s demand on the note. This proof I then deemed inadmissible and ruled it out.
The defendant also offered to show payment of the note by proving payment of the mortgages, which was also ruled out.
The principle set up is, that the vendee of a chattel, under his implied warranty from the vendor, may pay any sum he deems necessary to clear the vendor’s title, and afterwards not only show such payment as a set-off in a suit for the purchase money, but bring assumpsit against the vendor for money paid and advanced for his use; for assumpsit will lie, e converso, where a set-off is maintainable. On a careful examination of the authorities, a majority of my brethren are disposed to hold the ruling in the court below erroneous on both points. Carter v. Carter, 5 Bing. 406, is a case similar in principle. It was a payment, by the tenant, of ground rent due by the landlord, after demand upon the latter and his neglect to pay. The tenant paid, to avoid a distress upon his property on the premises, and was allowed to set it up as a payment of rent to the landlord. The peculiar condition and liability of tenants at common law may, however, have induced this and like decisions. Partridge v. Dartmouth College, 5 N. H. 288, is a case more in point. The defendants were vendees of a quantity of lumber, in possession of one Olcott, who had a lien on it for sawing. Being unable to obtain possession of the lumber without satisfying the lien, they paid the amount due to Olcott, and afterwards, in a suit by the vendor, were allowed to show it as a payment of the purchase money. The court say: 1 ‘ The payment which the defendants made to Olcott cannot be considered a voluntary payment, but was a payment *410they were compelled to make in order to obtain the boards; and we are of opinion that it must be considered as a part payment to the plaintiff of the price of the boai’ds.” And they cite Carter v. Carter, 5 Bing. 406; Taylor v. Zamira, 6 Taunt. 524; Stubbs v. Parsons, 3 B. & A. 516; Andrews v. Handcock, 1 B. & B. 37; Sapsford v. Fletcher, 4 D. & E. 511; all cases between landlords and tenants.
After all, the learned court of New Hampshire is the only one which has sustained a case anywhere nearly like the present, and the fact that the possession could not be obtained without satisfying the lien gives it a shade of difference. Wells v. Porter, 7 Wend. 119, cited by the defendant’s counsel, does not sustain the jirinciple.
The payment by one partner, or by one tenant in common, of a sum necessary to protect the property in which they have a joint interest, is quite different from paying on an assumed or implied warranty; but authority must govern, and I cheerfully yield my own views to those of my brethren.
Judgment reversed, with costs.