proper view if the defect has resulted at the time of the sale in injuriously affecting the health and condition of the horse so as to render it less able to perform service, or, which amounts to the same, the resulting condition amounts itself to unsoundness.15 The warranty may in connection with one of soundness be made to cover vices and bad habits,16 and undoubtedly crib biting will constitute a breach of the broad warranty that the horse is sound and without vice or sound and right.17 But it was held, about the time horseless street cars were first being used, that a warranty that a horse was sound and kind was not a warranty against its taking fright at a trolley car.1 18

502. Pregnancy, Sterility and Barrenness.-Pregnancy in an animal at the time of the sale does not constitute a breach of a warranty of soundness or the like, but as has been said rather tends to prove soundness.19 Thus the fact that a mare was in foal at the time of the sale does not constitute unsoundness even though the mare was sold for livery purposes. 20 And where ewes were sold with warranty that they were "in healthy condition" their pregnancy, though at an unseasonable time of the year, has been held not to be a breach of the warranty. In such a case that the young, if not prematurely born, are dropped at any particular season has no relation to the condition of health of the ewes which drop them; and though the opportunity for conception may have been unwisely, or even negligently, given, still the fact of conception is not evidence of ill health or disease.1 Nor does the want of full castration in a horse or mule constitute unsoundness. As a general rule, there is no implied warranty that an animal is fit for breeding purposes, and it seems that an express general warranty of soundness does not purport a warranty that the animal whether a male or female is not sterile or barren, though the warranty may be expressly made so broad in its scope as to cover breeding qualities.

503. Proof of Unsoundness.-Testimony of third persons who examined a horse immediately after its sale and while in the buyer's possession to the effect that it then had a spavin or similar defect rendering it unsound is admissible to prove the unsound condi

15. Notes: 53 Am. Dec. 176; 12 L.R.A. 696; 21 Ann. Cas. 1006. 16. Finley v. Quirk, 9 Minn. 194, 86 Am. Dec. 93.

Notes: 32 L.R.A. (N.S.) 184; 21 Ann. Cas. 1003.

17. Notes: 53 Am. Dec. 176; 21 Ann. Cas. 1006.

18. Meyer v. Krawter, 56 N. J. L. 696, 29 Atl. 426, 24 L.R.A. 575.

19. Olson v. Port Huron Live Stock Ass'n, 18 Mont. 392, 45 Pac. 549, 33 L.R.A. 557.

Notes: 32 L.R.A. (N.S.) 186; 21 Ann. Cas. 1004, 1006.

20. Notes: 53 Am. Dec. 178; 3 L.R.A. 185.

1. Olson v. Port Huron Live Stock Ass'n, 18 Mont. 392, 45 Pac. 549, 33 L.R.A. 557.

2. Notes: 32 L.R.A. (N.S.) 186; 21 Ann. Cas. 1006.

3. See supra, par. 474.

4. Notes: 32 L.R.A. (N.S.) 183, 186; Ann. Cas. 1916A 573.

tion at the time of the sale. And in case of a warranty of the soundness of a slave, evidence of his declarations made to an attending physician, as to the illness under which he was suffering at the time, the manner of the attack, and the progress of the disease, have been held admissible in evidence on the question of soundness or unsoundness. This is in pursuance of the general rule that whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are original evidence, subject to the judgment and decision of the jury as to their being real or feigned." On the other hand declarations of the slave as to past diseases which he had had but which he was not laboring under at the time were held to be inadmissible, and it was held that declarations of the slave to the fact that he had had the disease in question some time before the sale were not admissible," as declarations in relation to the declarant's bodily condition or feelings are admitted as original evidence only when they relate to feelings at the time, or to the nature, symptoms, and effect of a malady under which he is laboring at the time, and are regarded as mere hearsay, so far as they go beyond this limit.10 Opinion evidence of one not a physician that a slave was at the time of the sale suffering from syphilis has been held to be inadmissible.11 On the issue as to whether a slave was affected with syphilis at the time of the sale and of which she died some months thereafter, evidence that the disease was not known in the part of the country where the sale was made, but was known to exist in the place to which she was thereafter taken, has been held admissible; 12 and on principle this would apply in case of the sale of a horse which develops a contagious disease after the sale. The fact that a horse proved to be "balky" on trial a short time after the sale is held evidence to prove that it was balky at the time of the sale.18 To disprove unsoundness the buyer may be asked as regards the amount and character of the work done by the animal while in his hands.14

5. Kuntzman v. Weaver, 20 Pa. St. 422, 59 Am. Dec. 740.

6. Allen v. Vancleave, 15 B. Mon. (Ky.) 236, 61 Am. Dec. 184. See also Lush v. McDaniel, 35 N. C. 485, 57 Am. Dec. 566.

7. Allen v. Vancleave, 15 B. Mon. (Ky.) 236, 61 Am. Dec. 184. See ADMISSIONS AND DECLARATIONS, vol. 1, pp. 492-493.

8. Allen v. Vancleave, 15 B. Mon. (Ky.) 236, 61 Am. Dec. 184.

9. Lush v. McDaniel, 35 N. C. 485, 57 Am. Dec. 566.

10. Allen v. Vancleave, 15 B. Mon. (Ky.) 236, 61 Am. Dec. 184.

11. Lush v. McDaniel, 35 N. C. 485, 57 Am. Dec. 566. See EXPERT AND OPINION EVIDENCE, vol. 11, pp. 568571, 606-608, as to physical matters upon which a nonexpert may give his opinion.

12. Lush v. McDaniel, 35 N. C. 485, 57 Am. Dec. 566.

13. Finley v. Quirk, 9 Minn. 194, 86 Am. Dec. 93.

14. Whitworth v. Thomas, 83 Ala. 308, 3 So. 781, 3 A. S. R. 725.

504. Warranty of Title; General Scope and Effect.-Where real estate is sold with express covenant of warranty, it is the well settled general rule that a title thereafter acquired by the grantor will inure to the benefit of the grantee,15 and this rule has been held to apply to a sale of a chattel with warranty of title express or implied.16 When the seller warrants the title, if there be a better title in another person, and the buyer be dispossessed, though without any suit or action at law or in equity, the warranty is broken, as much as if there had been a recovery by suit; 17 the buyer in such a case, if satisfied of the insufficiency of the seller's title, and that the true owner would recover the property in an action, may surrender it, and recover its value in an action against his seller, by affirmatively establishing that the seller was without title.18 The existence of an incumbrance which the buyer is compelled to discharge will constitute a breach, as the warranty is not confined to the seller's right to sell, but is, in substance, a warranty that his title is perfect, and free from all liens and incumbrances or partial defects.19 So where at the time of the sale the chattels were subject to forfeiture to the federal government for the illegal acts of the seller in violation of the revenue laws, the subsequent enforcement of such forfeiture has been held a breach of the seller's warranty of title.20 The ground of the action for breach is an eviction by one having a title superior to that of the seller, or some lien existing at the time of the same. The breach does not depend on matters arising subsequent to the sale. So a subsequent seizure of the chattel by a trespasser will not constitute a breach; and in the case of the sale of a slave the subsequent abolition of slavery constituted no breach of the warranty that he was in fact a slave and not a freeman. It has been held that where the bill of sale expressly purports to transfer all the seller's "right, title and interest" in chattels subject to certain enumerated incumbrances, this is a transfer of the

15. See COVENANTS, vol. 10, p. 676. 16. Dorsey v. Gassaway, 2 Har. & J. (Md.) 402, 3 Am. Dec. 557. See also Scranton v. Clark, 39 N. Y. 220, 100 Am. Dec. 430.

17. Plummer v. Newdigate, 2 Duv. (Ky.) 1, 87 Am. Dec. 479; Burt v. Dewey, 40 N. Y. 283, 100 Am. Dec. 482; Read v. Staton, 3 Hayw. (Tenn.) 159, 9 Am. Dec. 740.

Notes: 35 Am. Dec. 607; 100 Am. Dec. 484.

Trust Co., 165 N. Y. 108, 58 N. E. 777, 53 L.R.A. 153; Hodges v. Wilkinson, 111 N. C. 56, 15 S. E. 941, 17 L.R.A. 545; Clevenger v. Lewis, 20 Okla. 837, 95 Pac. 230, 16 Ann. Cas. 56, 16 L.R.A. (N.S.) 410; Jarrett v. Goodnow, 39 W. Va. 602, 20 S. E. 575, 32 L.R.A. 321.

Notes: 7 Ann. Cas. 939; 16 Ann. Cas. 60, 62.

20. McKnight v. Devlin, 52 N. Y. 399, 11 Am. Rep. 715 (chattels con

18. Burt v. Dewey, 40 N. Y. 283, nected with a distillery). 100 Am. Dec. 482.

1. Note: 16 Ann. Cas. 63.

19. Sargent v. Currier, 49 N. H. 2. Note: 16 Ann. Cas. 63. 310, 6 Am. Rep. 524; McKnight v. 3. Osborn v. Nicholson, 13 Wall. Devlin, 52 N. Y. 399, 11 Am. Rep. 654, 20 U. S. (L. ed.) 689. 715; McClure v. New York Cent. Note: 16 Ann, Cas. 63.

property itself, and that therefore a general covenant to warrant and defend the sale should be construed a general warranty of the title, subject of course to the designated incumbrances.

505. Necessity for Dispossession or Loss; Minority View.---The view has been taken that a warranty of title in the sale of chattels is on the same footing as a covenant of seizin in the sale of real estate, and that if the seller in fact had no title the warranty is to be deemed broken though the buyer has not been dispossessed, because if the buyer is obliged to wait till dispossessed, the warrantor by that time. may be insolvent. And where, before the sale, the seller had given a mortgage or trust deed covering the property, which was still unsatisfied, it was held that his implied warranty of title was at once broken. For this reason it has been held that the statute of limitations begins to run against an action on the warranty of title from the time of the sale.8

506. Majority View as to Necessity for Dispossession or Loss.While there is no doubt that if the seller fraudulently represents the goods sold to be his own, when he knows them to belong to a stranger, an action on the case lies to recover damages therefor, though the real owner has not recovered the property, nor the buyer suffered any actual damage, the general view, which is similar to that applied in the case of a warranty of title to real estate or covenant for quiet enjoyment,10 is that a warranty of the title to chattels is not deemed broken for the purpose of an action by the buyer so long as the real owner has not asserted his title, and the buyer consequently has not been disturbed in his possession.11 This is not only well sustained by analogy, but is just in itself. In case of a breach the measure of damages is in some cases held to be the purchase money and interest, while in others it is the value of the chattel, and it would be highly inequitable to permit the buyer to retain the possession, or enjoy the use of the property thus acquired, and put his seller at defiance. Pos

4. Bevan v. Muir, 53 Wash. 54, 101 Pac. 485, 32 L.R.A.(N.S.) 588.

5. Payne v. Rodden, 4 Bibb (Ky.) 504, 7 Am. Dec. 739; Chancellor v. Wiggins, 4 B. Mon. (Ky.) 201, 39 Am. Dec. 499.

Note: 16 Ann. Cas. 62, 64. 6. Read v. Staton, 3 Hayw. (Tenn.) 159, 9 Am. Dec. 740.

7. Jarrett v. Goodnow, 39 W. Va. 602, 20 S. E. 575, 32 L.R.A. 321.

8. Chancellor v. Wiggins, 4 B. Mon. (Ky.) 201, 39 Am. Dec. 499. See infra, par. 514, as to limitations in actions on warranty of title.

9. Case v. Hall, 24 Wend. (N. Y.) 102, 35 Am. Dec. 605; Jarrett v. Good

now, 39 W. Va. 602, 20 S. E. 575, 32 L.R.A. 321.

Note: 16 Ann. Cas. 63, 64.

10. See COVENANTS, vol. 7, p. 1150. 11. Salle v. Light, 4 Ala. 700, 39 Am. Dec. 317; Johnson v. Oehmig. 95 Ala. 189, 10 So. 430, 36 A. S. R. 204; Sumner v. Gray, 4 Ark. 467, 38 Am. Dec. 39; Hynson v. Dunn, 5 Ark. 395, 41 Am. Dec. 100; Morrison v. Edgar, 16 Mo. 411, 57 Am. Dec. 236; Sargent v. Currier, 49 N. H. 310, 6 Am. Rep. 524; Case v. Hall, 24 Wend. (N. Y.) 102, 35 Am. Dec. 605.

Notes: 35 Am. Dec. 607; 16 Ann. Cas. 62, 63.

sibly the real owner may never claim and enforce his title, or if he does, the seller may settle with him. The breach implies no bad faith, and, therefore, is compatible with perfectly fair dealing between the parties; and the indemnity is complete by responding therefor after a recovery under the paramount title. 12 And in addition the continued possession of the buyer may ripen into a perfect title.18 Therefore the mere want of title is no defense to an action for the price and does not constitute in itself a partial or total failure of consideration available as a defense in such an action; 14 and a fortiori, in the absence of fraud, a buyer cannot set up want of title in his seller in defense to an action for the price, where he has enjoyed an undisturbed possession thereof from the time of the sale to the time at which the property ceased to exist or to be of any value.15 So, in the case of the sale of a slave, where the buyer retained the possession and enjoyment of the property for a number of years and until slavery was abolished, it was held that the seller's want of title was no defense to the buyer's liability for the price; 16 and the same has been held true where the buyer had the possession of the slave sold until his death.17 It has been held that, if a purchaser voluntarily pays the price of the goods purchased to a third person, who claims them, he cannot afterwards in a suit brought by the seller against him for the price set up as a defense the want of title in the seller, and that he had paid the price to the true owner.18 On the other hand it is held that if the buyer is threatened with suit by the true owner, and under such compulsion pays him the price, he may set this up in defense of an action by the seller for the price.19 If the chattel is taken from the buyer in a suit by a third person to foreclose a mortgage existing at the time of the sale, this is a breach of the warranty for which the buyer may sue though the suit has not yet ended; 20 and the same is true if the buyer is compelled, in order to retain the property, to discharge an incumbrance existing, unknown to him, at the time of the purchase.1

12. Case v. Hall, 24 Wend. (N. Y.) 102, 35 Am. Dec. 605. See also Johnson v. Oehruig, 95 Ala. 189, 10 So. 430, 36 A. S. R. 204.

13. Johnson v. Oehmig, 95 Ala. 189, 10 So. 430, 36 A. S. R. 204.

14. Johnson v. Oehmig, 95 Ala. 189, 10 So. 430, 36 A. S. R. 204; Morrison v. Edgar, 16 Mo. 411, 57 Am. Dec. 236.

Note: 36 A. S. R. 206.

15. Sumner v. Gray, 4 Ark. 467, 38 Am. Dec. 39.

16. Ware v. Houghton, 41 Miss. 370, 93 Am. Dec. 258.

17. Sumner v. Gray, 4 Ark. 467, 38 Am. Dec. 39.

18. Salle v. Light, 4 Ala. 700, 39 Am. Dec. 317 (approving and applying a case from another jurisdiction).

19. Johnson v. Oehmig, 95 Ala 189, 10 So. 430, 36 A. S. R. 204 and note; Jordan v. Van Duzee, 139 Minn. 103, 165 N. W. 877, L.R.A.1918B 1136 and note; Matheny v. Mason, 73 Mo. 677, 39 Am. Rep. 541.

Note: 16 Ann. Cas. 64.

20. Hodges v. Wilkinson, 111 N. C. 56, 15 S. E. 941, 17 L.R.A. 545; Clevenger v. Lewis, 20 Okla. 837, 95 Pac. 230, 16 Ann. Cas. 56 and note, 16 L.R.A. (N.S.) 410.

1. Sargent v. Currier, 49 N. H. 310, 6 Am. Rep. 524.