Van Doren v. Fenton

WiNsnow, J. Tbe plaintiffs are manufacturers of lumber, and they claim in this action that they purchased standing timber of tbe defendants, and paid them $228.58 therefor-‘upon a warranty of title, which warranty failed, said timber [148] being tbe property of tbe United States, and tbat tbey were compelled to pay tbe purchase price of tbe logs a second time to tbe United States, and tbey bring tbis action to recover upon tbe warranty of title. Tbe plaintiffs’ evidence showed tbat tbe timber purchased was standing when tbe contract was made, tbe title of the land being then in tbe United States, and tbat tbe purchase was oral. Thus it appears tbat tbe purchase was a purchase of real estate, and it is well understood tbat there can be no warranty of title to real estate by parol. Tbe respondent claims tbat there is an implied warranty under tbe rule tbat when personal property in possession of tbe vendor is sold at a fair price there is an implied warranty of title. Tbis principle might apply except for two slight difficulties, viz., tbe timber sold was not personal property, and was not in tbe vendor’s possession. So it seems tbat there is a total failure to prove either an express or implied warranty of title,, and tbe verdict was rightly directed. By the Court. — Judgment affirmed.