WARRANTY. 1. The doctrine of warranty of lands was formerly one of the most important parts of legal learning, but 'the effect of warranties having been gradually reduced within very small compass, the subject has now become of little practical use ; still it is necessary for those who would properly understand the English law of real pro perty to pay some attention to this difficult subject.
Warranty existed in the civil law, and was defined to be the obliga tion of the seller to put a stop to the eviction and other troubles which the buyer may sustain in the property purchased. By eviction is meant the loss of either the whole or a part of the property by reason of the right which another has to it. The other troubles referred to are those which, without affecting the property of the thing sold, diminish the beneficial interest of the purchaser, such as a claim to a usufruct, or a rent issuing out of the lands. This warranty was either in law, being that security which every seller is bound to give to a purchaser for the maintenance of his title to the property sold, though no stipulation to that effect was made at the time of the sale; or in deed, being that kind of particular warranty on which the seller and buyer agree. (Domat.,1. 1, t. 2. a. 10.) Warranty of lands in the English law is of feudal origin, and is derived from the obligation of the lord to defend his tenant's title against all claimants. If the tenant was evicted, the lord was bound to make him a recompense by giving him other lands of equal value. Every tenant holding of his lord time out of mind, by what was termed homage ancestral, was entitled to this warranty. The statute of the ISth of Edward 1., commonly called the statute of Quia Emptores, which prohibited the practice of subinfeudation, and authorised the free alienation of property, put an end to the homage ancestral, and consequently to the implied warranty annexed to it. To avoid the effect of this, when the lord aliened, the tenants, before they attorned to the new lord, required a new warranty from him ; and when the tenant aliened, it was with an express clause of warranty from himself. These express warranties were introduced even prior to the statute of Quia Emptores, in order to evade the strictness of the feudal law as to non-alienation without the consent of the heir; for though be might, on the death of his ancestor, have entered upon any lands aliened without his consent, the covenant of warranty descending upon the heir operated as a confirmation of the title of the grantee by obliging the heir who evicted him to yield the grantee a recompense in lands of equal value. This doctrine, it is said, was founded on the supposition that the ancestor would not wantonly disinherit his heir, who therefore was presumed to have received a recompense either in land or money which had purchased land, and that this equivalent descended to the heir, together with the ancestor's warranty.
This doctrine of warranty was the foundation of the assurance by way of common recovery [ItscovEnv]; but the use of warranties in conveyances had long been superseded in practice before they were practically abolished by the statute 3 & 4 Wm. IV., c. 27 & 74.
All the learning upon this subject will be found in ' Coke upon Littleton,' with Hargrave and Butler's notes.
2. Warranty of things personal.—By the civil law an implied warranty as to the vendor's title was annexed to every sale, and in our law also a purchaser of goods and chattels may have satisfaction from the seller, who sells them as his own and whose title proves deficient. But tho vendor is not bound to answer for the quality of the wares purchased (except in the case of articles of food, for binnan consumption), unless he expressly warrants them to be bound and good, or unless be knew them to be otherwise, and has used art to disguise them, or has mis represented them to the buyer.
No particular form of words is necessary to coustituto a warranty, and a bare representation or description of the quality may amount to a warranty if there be nothing to negative such en understanding. The custom of any particular trade may establish an implied warranty between parties transacting business therein, it being presumed that the dealings of the parties were regulated by the custom in the absence of evidence to the contrary ; but when there is express war ranty, it cannot be affected by the custom of the trade. A sale of
goods by sample is in effect a sale by warranty. A promise or warranty that the goods sold shall be of a merchantable quality is implied when the vendee had not at the time of the sale an opportunity of inspecting them, and when of course the general maxim of carrot emptor cannot apply. Also it seems that. when a commodity is sold for a particular purpose, the seller must be understood to warrant it reasonably fit and proper for such a purpose, though at the time of sale the purchaser had an opportunity of inspection. Where there is an express warranty, written or, it seems, even verbal, the vendee is not at liberty to avail himself of representations not embodied in the contract and made by the vendor without fraud. A general warranty will not extend to defects that are plain and obvious to the senses, and require no skill to detect, it being presumed that tho purchaser knew of and bought subject to them. It seems to be settled that when goods are sold expressly" with all faults," the seller is not liable in respect of latent defects, though he knew of them, unless some artifice be practised to prevent the buyer from discovering them ; but even in the case of a sale with all faults, the vendor will still be liable on en express war ranty against a particular defect. It has been said that there cannot be a warranty against future defects, but there seems to be no good foundation for the doctrine. It seems that a warranty ought to be given during the treaty for sale or at least before it is substantially completed, and that a warranty given after the completion of a sale is not binding for want of consideration. It has been decided that in actions upon warranty it is not necessary to offer to return the goods before bringing the action, nor even to give notice of the breach of warranty to the seller, though of course the not having done so would be a suspicious circumstance in the plaintiff's case. If there has been no offer to return the goods, the measure of damages will of course be the difference between the sum given and the real value, as ascertained either by sale or estimation. If the warranty be accompanied by an express condition to take back the goods, if found defective, and return the price, the buyer ought to return the goods within a reasonable time in order to maintain his action : and if, after an offer is made to do so, the seller refuse to receive them, they remain at his own rink.
There are certain rules which have been laid down with respect to sales of horses, one of the most common subjects of actions on warranty. The fact that what is termed a sound price is given fey a horse, does not imply any warrant of its soundness. If at the time of the sale the horse has any disease, or has met with aoy accident which either does, or in its progress or results will diminish the usefulness of the animal, such a horse is unsound, and, therefore, a cough or temporary lameness which, though it may be curable and not permanently injurious, diminishes his present usefulness, is unsoundness. So any organic defect is unsoundness, and, therefore, a nerved horse cannot be con sidered sound. Rearing is unsoundness if it proceed from disease or organic defect; but crib-biting, it seems, does not amount to unsound ness, though it is within a warranty that a horse was free from vice. A warranty of soundness is broken if the disease or defect existed at the time of the sale, though it could not then be detected, and did not appear till some time afterwards. The question of the soundness or unsoundness of homes is one peculiarly within the province of a jury to determine, and, therefore, a court will not set aside a verdict on account of the mere preponderance of contrary evidence, nor on the ground of any peculiarity in the nature of the unsoundness proved.