Bixler v. Saylor

The opinion of the court was delivered, by Sharswood, J. An exchange of real estate has a warranty in law incident to it; a condition to give the party a re-entry as well as a warranty to enable him to vouch and recover over in value. To make an assurance of that character, it is indispensable that the word excambium, exchange, should be employed: Dean v. Shelly, 7 P. F. Smith 427. An exchange of chattels has no such legal effect. It is a mutual bargain and sale, to which there is incident an implied warranty of title, with the right, in case of breach, to recover in damages. When, however, one of the parties to the contract acts malfi fide, knows that he has no title to the article he gives in exchange, it is a false and fraudulent affirmation on his part which taints the transaction, and puts it in the power of the other party to avoid it and reclaim his property. There was evidence in this case from which the jury might have drawn the inference that when Saylor made the trade with Drumheller, he knew, or had reason to believe, that the horse he received had been stolen from Bressler. With knowledge of this fact he made the exchange. Had this not been so it would have been a fraud upon him, which would have authorized him to rescind the contract or treat it as void, and recover the horse he had given in exchange from Drumheller, or any person who had purchased from him with notice of the fraud. But if he knew the fact, how can he be said to have been defrauded in the exchange ? Volenti non fit injuria. Eor what appeared to him to be a sufficient reason, he determined to run the risk of the bargain, and he therefore parted with the property of his horse to Drumheller. When Bressler reclaimed from him the stolen horse [149] he had received, his remedy against Drumheller was an action on the implied warranty of title to recover damages. He could not sue for the specific recovery of the horse he had given in exchange, as there was nothing which lay in his mouth to set up in avoidance of that transaction. If there was a fraud, he was particeps fraudis — he was a receiver of stolen goods with knowledge. It follows logically and necessarily, that if the jury found such knowledge, Saylor could not recover the animal from Bixler to whom Drumheller had sold it, even if Bixler also knew that the horse Saylor received was Bressler’s horse. In pari delicto potior est conditio possidentis. We think there was error in the refusal of the court below to affirm the defendant’s 3d and 4th points, and in answering as they did. Judgment reversed, and venire facias de novo awarded.