Thurston v. Spratt , 52 Me. 202 ( 1863 )

The opinion of the Court was drawn by

Kent, J.

The vendor in possession of personal property impliedly warrants tbe title to tbe thing sold. He is therefore bound to make good to the purchaser all his losses resulting from the want of a good title. If the purchaser, or any subsequent vendee is sued in replevin or trover, or in any other action involving the question of title, if he gives notice to his vendor of the pendency of the action and its nature, the judgment is conclusive evidence against such vendor. If no notice is given, it is not conclusive on him, but he may show that the plaintiff, in a suit against him on his warranty, ought not to recover the amount he has paid, because the case was not properly defended, and judgment was suffered unnecessarily. French v. Parish, 14 N. H., 496; Duffield v. Scott, 3 D. & E., 210; 1 Johns., 517; Weld v. Nichols, 17 Pick., 538; Kipp v. Bingham, 6 Johns., 157.

It can make no difference that there are intermediate purchasers, and that the suit is against the last one, if the question of title is the sole matter in controversy. All the individuals who have sold the property are alike warrantors, and can as well defend the title in the suit against the last purchaser, as in a suit against themselves, if they have notice. The law will not tolerate a succession of long lawsuits to determine, as in this case, the title to a single horse, in all of which precisely the same issue is to be tried, when all the parties have had due notice and an opportunity to defend. It requires that every warrantor, who is notified, shall act at once in defending himself, or in aiding the party sued to defend the action. This is the rule in real actions. Perkins v. Pitts, 11 Mass., 125; 4 Mass., 353.

Where there is a succession of transfers, and judgment against the last holder, and notices to all the vendors, it may be competent for the first, or any seller, to show that the defect in the title arose after he sold the property, and that therefore he had no interest in the determination of the question tried. However this may be, the defect in the case before us was in the title of the defendant. That was the only question in issue. He was notified and did nothing to aid in the defence. This case illustrates the wisdom of the rule. After being notified, he stands by and keeps to himself the facts which he now says would show a right in. him to sell the property. If he had disclosed them or testified to them at the trial, the result might have been different, lie allows a final judgment to pass by which the other innocent purchasers lose the property and damages and costs, and now asks to be allowed to prove them, when it is too late for his vendee to use them in his defence.

Exceptions overruled. Default to stand.

Damages to be assessed by Judge at Nisi Prius.

Appleton, C. J., Cutting, Dickerson and Barrows, JJ., concurred.