By the Court
Atwater, J.The Plaintiffs brought their action to foreclose a mpitgage upon real estate, which was executed by Smith, the Defendant, to secure the payment of a promissory note for the sum of $500. The Defendant by his answer, admitted the execution of the note and mortgage, but alleged that the consideration of the note was the sale to him by Plaintiffs of certain personal property, Consisting of horses, harness, wagon, &c., of which the Plaintiffs were in possession, and claimed to be owners at the time of the sale. That after such sale, one Adaline Annis replevied the property from Defendant, as owner thereof, and that in said action she established her title thereto; and obtained a judgment for the recovery of the property, the property replevied constituting the whole consideration of the note, except twenty-five *417dollars. The reply denied all the material allegations in the answer.
It appeared by the evidence that the Plaintiffs claimed title to the property by virtue of two chattel mortgages executed to them upon the property in question, by one O. M. Annis, and the principal point litigated below was, whether the Defendant purchased the property, or the debt of Plaintiffs against Annis, secured by these mortgages. On this question there was considerable evidence introduced on both sides. The jury found a verdict for Defendant. The Plaintiffs moved for a new trial, which motion was overruled. Prom the final judgment entered on the verdict the Plaintiffs appeal to this Court.
The first error complained of is, that the Court erred in submitting the whole case to the jury. That this being an equity case, only the doubtful questions of fact in the case should have been submitted to them, and a special verdict should have been taken.
Whether this objection be good in substance or not, we think the Plaintiffs are not in a position to raise it here. No exception appears to any of the evidence taken upon the trial, and the whole was submitted to the jury, without objection by either party. No special findings were requested by either party, before the jury retired, nor was any objection raised or any exception taken to the verdict, so far as the case shows, on the ground now urged to this Court. A party claiming the right to have submitted to a jury only certain questions or issues in a cause, must assert that right at the proper time, and if denied him, must except thereto in the proper manner, or he will be deemed to have waived it. It would be highly inequitable to permit him to lie by, and take the benefit of the finding if in his favor, and be permitted to allege error if found against him, on the ground that, the jury had no right to pass upon such issues, or that the Court should not have submitted them to the jury. The error complained of, if any, does not go to the jurisdiction of the Court, and we know of no authorities which hold that it may be here reviewed, unless the question has been properly presented to the Court below, and been there acted upon. The Plaintiffs *418have chosen to submit tbe whole case to the jury and must abide the consequences of their own act.
The Plaintiffs requested the Court to charge the jury as the law in the case:
First, If the jury find from the evidence and proofs given that the Defendant, Gilbert Smith, at the time he executed and delivered the note and mortgage mentioned in the complaint, had notice and knowledge that the Plaintiffs obtained title to the horses, wagon and harness mentioned in the answer, by'virtue of the chattel mortgages of O. M. Annis, there could be no implied covenant of title to said ■ personal property by the sale thereof.
Second, That if said Defendant knew that O. M. Annis was previously the owner of the personal property aforesaid, and that Plaintiff’s title was by virtue of chattel mortgages from O. M. Annis thereon, there could be no.warranty of title implied by the Plaintiffs in the sale thereof.
These instructions were refused by the Court, but the Court did charge among other things, that if the jury find that the consideration of the note mentioned in the complaint was the sale of the personal property mentioned in the answer, and also find that the Plaintiffs sold said personal property to the Defendant as their own property, they impliedly warranted the title thereto, to the Defendant, although the Defendant had notice and knowledge that Plaintiff’s title thereto was derived by the chattel mortgages executed by the said O. M. Annis.
We think there was no error in the refusal of the- Court to charge as requested, nor in the charge actually given. In 2d EenGs Commentaries, 618, the rule is stated, that in every sale of a chattel, if the seller has possession of the article, and he sells it as his own, and not as agent for another, and for a fair price, he is understood to warrant the title. And Parsons, in-his work on Contracts,-456, says that “in this country it seems to be now well settled by adjudications in many of our States, that the seller of a chattel, (if in possession,) warrants by implication that it is his own, and is answerable to the purchaser if it be taken from him by one who has a better title than the seller, whether the seller knew of *419the defect of bis title or not, and whether he did or did not make a distinct affirmation of his title.” The authorities in support of this doctrine are very numerous and scarcely need be cited, as they are many of them referred to by the authors above quoted. And even were it an open question, we should see no occasion to adopt a different rule from that above stated, founded as it is upon justice and gbod sense. In Dresser vs. Ainsworth, 9 Barb., 619, it was held that this implied warranty of title not only means that the vendor has a right to sell, but it extends to a prior lien or incumbrance, and that it is immaterial, whether the purchaser, at the time of his purchase, knew of a previous levy upon the goods by the sheriff. He has a right to rely upon the implied warranty, and if he is evicted by a sale oí the goods under a previous execution, he has a right of action against the vendor.
We do not understand that the authorities cited by the counsel for the Appellants, (so far as we have had access to to them) hold any different doctrine. In Ketchum vs. The Bank of Commerce, 19 N. Y., 499, Denio, J., in (delivering the opinion of the Court, says: “Where the transaction is a sale of chattels or securities which the vendor has sold as his own, and the mistake is as to his title, the vendee may also recover upon an implied warrantee of title,” citing authorities which support the general principle above stated. That case certainly does not conflict with the rule uniformly adhered to in New York. In Hoe vs. Sanborn, 21 N. Y., 552, the question of implied warranty of title, was not at issue in the action. The suit was upon a promissory note, and the Defendant in his answer alleged that he purchased of the Plaintiff a quantity of circular saws, tor the purchase price of which the note set forth in the complaint was given ; that at the time of the purchase the Plaintiffs “ warranted said saws to be good saws, and of good quality,” and he averred that the saws were “ not good saws, or of good quality,” and that said saws were “ of no value.” The reply denied the facts set up in the answer.
Here the issue was as to warranty of quality, in regard to which it is not claimed that the same rule prevails as in regard to warranty of title. It is true, that the syllabus states *420as a part of tbe decision of tbe case, that “ it seems that tbe theory of common law in respect to implied warranties, rests upon tbe deceit of tbe vendor, in not disclosing defects of which tbe probability of bis knowledge is so great that its existence is presumedand' tbe reasoning of Selden, J., who delivered tbe opinion, would seem to support this statement of the reporter. If this however is intended to apply to implied warranties of title as well as of quality, tbe decision to that extent can only be regarded as obiter dictum, and not of binding authority, and indeed a part of tbe Court did not assent to some of tbe propositions in tbe opinion. Tbe deduction which tbe counsel for tbe Appellants seems to draw from this case is that if tbe purchaser has tbe same means of knowledge as to tbe title of tbe chattels, which tbe vendor possesses, there is no implied warranty, since there is no deceit on tbe part of tbe vendor. That in such cases where fraud is not proved it will not be-presumed. Tbe case of Roe vs. Sanborn does not, as we understand, bold such doctrine ; but whether correct or not as to tbe theory on which implied warranty of title rests, does bold that tbe probability of knowledge of title on tbe part of tbe vendor is so strong that tbe Courts will presume its existence without proof. Tbe Court in that case say : “ It is obvious that tbe vendor of goods would be very likely to know whether be has a title to tbe goods be sells. He knows tbe source from which such title was obtained, and has therefore tbe means of judging of its validity which tbe purchaser cannot be supposed to have. Hence it is tbe doctrine, both of tbe civil and tbe common law, that every vendor impliedly warrants that- be has title to what be assumes to sell. Some slight doubt has been supposed to be thrown upon this doctrine in England by tbe remarks of Parke, B., in tbe case of Morley vs. Attenborough, 3 Exch., 500. It is however too well settled, both in England and in this country to be overthrown or shaken by tbe obiter dicta of a single Judge. My object is not to establish this doctrine which admits of no doubt, but simply to show that it rests upon tbe foundation here suggested, viz : “tbe presumed superior knowledge of tbe vendor in regard to bis title.” As tbe learned Judge who delivered tbe opinion *421in the case above cited, does not find fault with or combat the long established rule, it is perhaps of little consequence to determine whether he has given the correct reason for it, although without a careful examination of the case, erroneous conclusions might naturally be drawn from some of the propositions stated.
The objection that the verdict was against the weight of evidence cannot prevail. There was some conflicting testimony as to whether Smith purchased the debt against Annis, or the property covered by the mortgage. This was a question peculiarly within the province of the jury to determine, and where there is some evidence to sustain their finding, this Court will not disturb the verdict, on the ground that the weight of evidence as reported in the case might seem to favor the other theory.
The judgment below must be affirmed.