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has knowledge or information of the selling, letting, lending or advancing, give notice in writing of the date, nature and amount thereof to the president or other head of the institution, in which case the forfeiture shall be by the agent. This section shall not apply to a person selling or letting in expectation of immediate payment, if he shall within ten days thereafter give notice in writing of the date, nature, or amount of the sale or letting, to such president or other head.
11. Clearly no implied contract by father to pay for goods furnished or services rendered to child who has attained twenty-one.
The cases collected in the note to Wennall v. Adney, 3 Bos. & Pul. 249, cited ante, p. 309, sustain the conclusion that a promise by a father to pay the debt of a son of full age, not living with his father, though the debt were incurred by sickness, which ended in the son's death, cannot, without a previous request by the father, proved or presumed, be enforced by action. Mills v. Wyman, 3 Pick. 212; Loomis v. Newhall, 15 Pick. 163. But a father may come under an original and express liability for his son. Cook v. Long, 1 Car. & Marsh. 510, 41 Eng. Com. Law Rep. 510. If the father offer to make reasonable compensation for the board of his son, past and future, and this offer be accepted, the contract may be good, as well for what had been done before, as for what is done after, it is made. 15 Pick. 165, 6; Bret v. J. S. & wife, Cro. Eliz. 756; Colton v. Westcott, 1 Rol. 381.
ACTION ON A CONTRACT FOR THE SALE OF LAND; OR THE BREACH OF ANY WARRANTY, EXPRESS OR IMPLIED.
1. Where action is against vendor or vendee of an estate in fee or for years.
An action will lie against a vendee to recover the consideration money for land sold, Hoskins v. Wright, 1 H. & M. 377; Shepherd v. Little, 14 Johns. 210; Bowen v. Bell, 20 Id. 340; Wolfe v. Hauver, 1 Gill 93; or against a vendor to recover damages for the loss sustained by his non-performance of the contract. As early as the 9 Jac. 1, it was resolved that if one assume upon good consideration to make unto another VOL. II.-23
a good assurance of land, but perform it not, he is not obliged to file a bill in chancery for performance of the promise, but may have an action at law for breach of promise, and recover damages. Gollew v. Bacon, Bulstr. 112.
Whether the action be against vendor or vendee, it may be a question, 1, whether there existed a valid contract between them in relation to the land; and 2, whether there has been performance by the plaintiff, and non-performance by the defendant, of what was to be done on his part. Judson v. Wass, 11 Johns. 525; Van Eps v. Corpo. of Schenectady, 12 Id. 436.
On a sale of real property, although a good title be not stipu lated for by the agreement, the purchaser has generally a right to require it; it is a right not growing out of the agreement between the parties, but given by law. O'gilvie v. Foljambe, 3 Meriv. 53. The agreement, it is true, may use language shewing that the vendor intended to sell such a title as he had received, and nothing more. Wilmot v. Wilkinson, 9 Dow. & Ry. 620, 22 Eng. Com. Law Rep. 397. When it is contended that its true construction is that the purchase money is to be paid before the title can be ascertained, its terms should be so plain and express as to leave no doubt that such was the intention of the parties-that the purchaser contemplated parting with his money at the risk of being able to recover it back upon the vendor's failing to make out a good title. Wilde, C. J., in Porcher v. Gardner, 8 Man. Grang. & Scott 477; 65 Eng. Com. Law Rep. 477. Such being the rule on the sale of the fee, does a like rule hold on the sale of a lease? Is there in such case an implied undertaking by the vendor to make out a good title to the lease? Lord Tenterden thought not. George v. Pritchard, Ry. & Moo. 417, 21 Eng. Com. Law Rep. 478. But his decision is overruled. Souter v. Drake, 3 Nev. & Man. 40, 5 Barn. & Adol. 992, 27 Eng. Com. Law Rep. And it is now established, that on the sale of a lease there is an implied undertaking to make out the lessor's title to demise, as well as that of the vendor to the lease itself. S. C.; Hall v. Betty, 4 Man. & Grang. 411, 43 Eng. Com. Law Rep. 216.
Where a question arises between vendor and vendee, as to the meaning of a good or sufficient title, there must be such a title as the court of chancery would adopt as a sufficient ground for compelling specific performance; there must be not merely such a title as would support a verdict for the purchaser in an action of ejectment against a mere stranger, but such an one as would enable the purchaser to hold the property against any person who might probably challenge his
right to it. Jeakes v. White, 6 W. H. & G. 881. If the vendors did all that their contract required, and more was demanded, that may release them from the obligation of taking any further steps in the transaction. Wilmot v. Wilkinson,
9 Dow. & Ry. 620, 22 Eng. Com. Law Rep. 397.
If the vendee make default in payment, the mode of proceeding proper against him must depend on the terms of the contract. Where the terms of a sale at auction had to be sought for in the articles exhibited by the auctioneer at the time of the sale, and they provided that the purchaser should secure the purchase money, with interest, by his promissory notes, with two approved endorsers, payable in 6 and 12 months," and that he "should be allowed 30 days to comply with those terms," and on failing to comply within the 30 days, the property was "then to be resold on account of the first purchaser," it was decided that though the purchaser failed to give such notes within the 30 days, or at any time afterwards, the vendor could maintain no action on the contract, without first resorting to a resale and ascertaining the deficit. Webster &c. v. Hoban, 7 Cranch 399.
2. Whether on a sale of personal property generally, the contract imports that the vendor has a good title.
With respect to executory contracts of purchase, and where the subject is unascertained, and is afterwards to be conveyed, it would probably be implied that both parties meant that a good title to that subject should be transferred in the same manner as that it would be implied under similar circumstances that a merchantable article was to be supplied. Unless goods which the party could enjoy as his own, and make full use of, were delivered, the contract would not be performed. The purchaser could not be bound to accept if he discovered the defect of title before delivery; and if he did, and the goods were recovered from him, he would not be bound to pay, or having paid he would be entitled to recover back the price, as on a consideration which had failed. Parke, B., 3 W. H. & G. 510. But when there is a bargain and sale of a specific ascertained chattel, which operates to transmit the property, and nothing is said about title, what is the legal effect of that contract? Does the contract necessarily import, unless the contrary be expressed, that the vendor has a good title? 11 How. 520. Or has it merely the effect of transferring such title as the vendor has?
According to the Roman law, (Domat, Book 1, tit. 2, § 2, art. 3,) and in France (Code Civil, ch. 4, § 1, art. 1603,) and
Scotland, there is always an implied contract that the vendor has the right to dispose of the subject which he sells. Bell on Sale 94; 3 W. H. & G. 510.
The rule of the civil law has been adopted in South Carolina. In that state there is in the sale of a chattel an implied warranty of title, Moore &c. v. Lanham, 3 Hill 304; and also of soundness, when the sale is for a sound price, Timrod v. Schoolbred, 1 Bay 324; Vanderhirst &c. v. Taggart, 2 Id. 498; Barnard v. Yates, 1 Nott & M. 142; Rose &c. v. Beatie, 2 Id. 540; ante, p. 57. This is the general rule. It does not apply where the sale is by order of a court of equity. At least in such a case there is no warranty for breach of which a vendee could maintain an action against a distributee who has received the money. Fuller v. Fowler, 1 Bailey 75. As between an ordinary vendor and vendee, the general rule—that there is an implied warranty of soundness-applies, notwithstanding there is an express warranty of title. Spears v. Wells, 1 McCord 421. But this is only where the express contract is silent. If there be any stipulation in the written contract in relation to the soundness or quality of the thing sold, the law implies nothing beyond what the parties have contracted. McLauchlin v. Horton, 1 Hill 383. If the seller expressly refuse to warrant, there can be no pretence for raising the implied warranty. Smith v. Bank of So. Caro. Riley's C. R. 113; Venning v. Gantt, Cheves 87; Rodridgues ads. Habersham, 1 Spears 319.
In England, according to the older authorities, there is no warranty of title in the actual contract of sale, any more than there is of quality. The rule of caveat emptor applies to both; but if the vendor knew that he had no title and concealed that fact, he was always held responsible to the purchaser as for a fraud, in the same way that he is if he knew of the defective quality. Co. Lit. 102, a.; 3 Rep. 22, a.; Noy's Max. 42; Fitz. N. B. 94, c.; Springwell v. Allen, 2 East 448; Littledale, J. in Early v. Garrett, 9 Barn. & Cress. 932; Williamson v. Allison, 2 East 942. In recent times a different opinion appears to have been gaining ground. 3 Rep. 22 a. note. Mr. Wooddeson in his lectures goes so far as to assert that the rule of caveat emptor is exploded altogether. 2 Wood. 415. But this, no authority warrants. Parke, B., 3 W. H. & G. 511; Seixas v. Woods, 2 Caines's Rep. 53, 55. At all times, however, the vendor was liable if there was a warranty in fact of title or quality. Dickson v. Zizinia &c. 10 Com. Bench (1 J. Scott) 602, 70 Eng. Com. Law Rep. 602, 2 Eng. Law & Eq. 314; Simms &c. v. Marryat, 7 Eng. Law & Eq. 330. At an early period, a vendor's affirming
goods to be his own was deemed equivalent to a warranty. Ld. Holt in Medina v. Stoughton, 1 Salk. 210, Ld. Raym. 593; Buller, J. in Pasley v. Freeman, 3 T. R. 57; 3 Stark. on Ev. part 4, p. 1661; Brockenbrough, J. in Brown v. Shields, 6 Leigh 445, 6; Coolidge v. Brigham, 1 Metcalf 552; Stone v. Denny, 4 Id. 155. Some of the text writers drop the expression of warranty,' or 'affirmation,' and lay it down in general terms that if a man sells goods as his own and the title is deficient, he is liable to make good the loss. 2 BI. Com. 451; 2 Kent's Com. 478. For this position Sir Wm. Blackstone cites Cro. Jac. 474, and 1 Roll's Abr. 70, in both which cases there was an allegation that the vendor affirmed that he had a title. Nevertheless the rule as laid down by him was acted on in New York in Defreeze v. Trumper, 1 Johns. 274; Heermance v. Vernoy, 6 Id. 5: the court distinguishing between this case and a case upon the quality, not the title, of the chattel sold. Seixas v. Woods, 2 Caines's Rep. 53, 55; Snell &c. v. Moses & sons, 1 Johns. 96; Holden v. Dakin, 4 Id. 421; Davis v. Meeker, 5 Id. 355. It holds that in every sale of a chattel for a sound price, there is a tacit and implied warranty that the vendor is the owner and has a right to sell. Vibbard &c. v. Johnson, 19 Johns. 77. In Kentucky a like doctrine prevails-that the law implies a warranty of title. Chism v. Wood, Hardin 531; Payne v. Reddin, 4 Bibb 504; Scott v. Scott's adm'r, 2 A. K. Mar. 215. The implied warranty is that the vendor has title at the time of sale; it is considered in the nature of a covenant of seisin which is broken immediately if the vendor has no title. S. C.; Chancellor v. Wiggins, 4 B. Monroe 202.
In Pennsylvania, also, it is regarded as established that a party selling as his own, personal property of which he is in possession, warrants the title to the thing sold; and that if by reason of defect of title, nothing passes, the purchaser may recover back his money, though there be no fraud or express warranty on the vendor's part. The doctrine is considered to apply to choses in action as well as other descriptions of personal property; and therefore if one innocently sell or transfer for value, a bank note, negotiable note, bond or other instrument, and it turns out that the instrument is forged, so that it is worthless in the hands of the transferree, the latter may recover back again the value given for it on the implied warranty of genuineness. Charnley v. Dulles, 8 W. & S. 361.
In several of the states besides Pennsylvania, the circumstance of the property being in the vendor's possession, at the time of the sale, has been deemed material. Gookin v. Gra