The note upon which this action is based, containing a provision for a reasonable attorney's fee, if collected by suit, is not negotiable. Randolph v. Hudson, 12 Okla. 517,74 P. 947; Cotton et al. v. Deere Plow Co., 14 Okla. 605,78 P. 321. A sale of property in the vendor's possession implies a warranty of title. 2 Benjamin on Sales (Corbin's Ed.) p. 829 and authorities cited under footnote 18; 2 Mechem on Sales, § 1302, and authorities cited under footnote No. 3.
"The warranty of title which is implied is a warranty as to the whole title, and it, therefore, protects against partial defects, liens, charges, and incumbrances by which the title transferred is rendered anything less than full, perfect, and unincumbered." (2 Mechem on Sales, § 1304; Hodges v. Wilkinson,111 N.C. 56, 15 S.E. 941, 17 L. R. A. 545; Dresser v.Ainsworth, 9 Barb. [N.Y.] 619; Hall v. Aitkin, 25 Neb. 360, 41 N.W. 192; Close v. Crossland, 47 Minn. 500, 50 N.W. 694;Electro-Dynamic Co. v. The Electron, 74 Fed. 689, 21 C. C. A. 12, 45 U.S. App. 16)
In the case of Hodges v. Wilkinson, supra, it is said:
"It necessarily follows that it was sufficient for the plaintiff to show that Wahab had title to the horse in controversy by virtue of the mortgage when Wilkinson sold to the former, and that the horse had been seized and the possession of him acquired by Wilkinson by virtue of the warrant in the claim and delivery proceeding brought against the plaintiff. Upon principle it was no more necessary for Hodges to waive the recovery of Wahab in the pending action that it would have been to prosecute an unsuccessful suit against Wahab, had the latter acquired the possession by bridling the horse while it was straying in the public highway, *Page 844 and without objection from any person." (Coble v. Wellborn,13 N.C. 388.)
The court further says:
"If Hodges had actually surrendered the horse to Wahab on demand, or if he agreed to give no trouble if claim and delivery proceedings were instituted still he had the burden on him of showing the title in Wahab, with the advantage to the defendant of having the opportunity to meet and contradict, if he could, the testimony offered to prove title in him, which he could not have done in the suit already instituted against Hodges. * * * If Hodges offered testimony insufficient to satisfy the jury that Wahab had paramount title, then Wilkinson, by implication at least, must have falsely warranted the title to the horse, and would have no ground of complaint if Hodges had surrendered possession to the true owner on being convinced of his right, and even with the assurance from Wahab that he would not insist on his rights in case the plaintiff should fail to recover in this action. The plaintiff, in order to show paramount title as well as possession in Wahab, offered a chattel mortgage dated May 9, 1885, executed by W. H. Green to Harriet Cohen, which had been regularly registered and proven in Hyde county. After objection the court admitted the chattel mortgage, except the writing on the margin of it purporting to be an assignment of the mortgage by Harriet Cohen, which plaintiff proposed to prove subsequently."
We conclude that a warranty of title is implied in the sale of chattels in the actual or constructive possession of the vendor to vendee buying in good faith, honestly believing he is obtaining a clear title to the same. Further, when there is an outstanding mortgage title, lien, or incumbrance, and the mortgagee obtains or demands possession of such property, the vendee is not required to force the party setting up such adverse claim, lien, incumbrance, or title to reduce the same to final judgment or adjudication in a court of proper jurisdiction before bringing action upon the implied warranty, in which event the burden would be upon such vendee to prove a superior title, lien, or incumbrance in another in such action against the vendor. In this record, whilst the defendant's answer is not as clear and specific as it might have been, yet, without renewing the motion to make the *Page 845 second amended petition more definite and certain, judgment should not have been rendered for plaintiff on the pleadings.
The records show that the lower court never passed on the motion to strike the interplea from the files. The interplea alleges that the said assignee of the estate of C. W. Lewis is the equitable owner of said note, and entitled to convert the same to the use of said estate for the benefit of the creditors thereof. The, legal title is in the plaintiff. Where the intervener voluntarily appears and asks to intervene and have his rights determined in said cause, it is certainly within the power of the court to permit it. This jurisdiction ought always to be exercised to the ends of the furtherance of justice. At common law the remedy would have been by suit in equity to set aside the transfer of said note and injunction to restrain the plaintiff from proceeding to final judgment until the action for the cancellation of such assignment had ben finally determined. Section 4239, Wilson's Rev. Ann. St. 1903;Goodrich v. Williamson et al., 10 Okla. 588, 63 P. 974; 2 Beach, Equity Jurisprudence, § 883.
Since the assignee reserved no exceptions to the action of the court below, and has not joined in the prosecution of this appeal, this cause could not be reversed on that ground; but for the error in rendering judgment on the pleadings in favor of the plaintiff this cause is reversed and remanded for a new trial.
All the Justices concur. *Page 846