
    John H. Scott vs. D. D. Hix et al.
    
    1. Feme Covert. Her rights as to property not reduced into possession and sold by the husband. Ohancery. A court of equity on the application of a feme covert, will set aside a sale of her interest in personalty made by her husband before the same is reduced to possession, even though she also joined in the conveyance according to all the solemnities required by law for the conveyance of real estate.
    2. Warranty. Of title to personalty. When it cannot be implied. The law does not imply a warranty of title to personal property not in possession of the vendor, at the time of sale, but which is out of his possession and claimed by another. In such case the warranty must be express, it cannot be implied. The vendor may in a proper case, be made liable for fraud, but the action must be upon that ground, not upon a contract qf warranty implied.
    FROM BEDFORD.
    This bill was filed in chancery at Shelbyville by the complainant, against the defendant as executor of the will of William Hix, dec’d, and John G., Charles T. and Mary Philpot and others, legatees under the same, as purchaser of the interest of John G. Philpot and Mary his wife, to have the said interest decreed to him and for an account. William Hix, the testator, made his will in 1833, and died soon after, by which he settled his whole estate, consisting of slaves and other property, upon his wife, and directed that upon the death of his wife the whole should be equally divided among his children. John G. and Charles T. Philpot had married daughters of the testator. Ponding the life estate, Charles T. Philpot purchased the remainder interest of John G. and Mary, and took a conveyance of their interest, in which both joined. He afterwards sold said interest without warranty to the complainant. Upon the termination of the widow’s life estate, in 1852, this bill was filed for the purposes aforesaid, whereupon Mhry Philpot, by her nest friend, filed her cross bill, repudiating said conveyance, and praying for the protection of her rights, and that said remainder interest be settled upon trustees for her sole and separate use. The cause was heard by chancellor Ridley, ‘at the September term, 1854, who dismissed the original bill. The complainant appealed.
    Whitesides and Davidson, for the complainant,
    cited Stray on Con., §§ 827, 828, 833, and cases there cited. 7 Eng. Law and Eq. Rep., 330. Story on Sales, §§ 365, 366, 367 and notes. 5 Humph., 484. 10 Yerg., 316.
    E. Cooper, Wisener and T. H. Coudwell, for respondent,
    cited, 1 Humph., 54, 58. 4 Hay., 26. 3 Humph., 118, 347. 5 Hump., 343; id., 529, 535. 2 Kent, 472. 1 Bouv. Ins., 383. 1 Salk. R.'211.. Story on Sales, § 416. 1 Story Eq. Jur., §§ 149, 244; id., 138. 5 Humph., 529. 12 Peters, 32. Lee vs. Knuelwls, 10 Humph. 9 Con., 411. 2 Johns. Ch. R., 519. 2 Caines, 188, 5 Johns. Ch. R., 29.
   Oaruthers, J.,

delivered the opinion of the court.

William Hix, by his will of 1833, bequeathed to his wife certain slaves and othef property for life, and at her death,- remainder to he divided among his children, so as to make all equal.

His daughter Mary married John T. Philpot, and Rebecca, Charles Philpot. In the year 1840, Charles bought of John T. the remainder interest of his wife Mary,- in the said property, and took their joint deed for the same, which was upon acknowledgment and privy examination, registered. On the 3d day of August, 1842, the said Charles sold the same interest to complainant, who after the death of Mrs. Iiix filed this bill against the executors, his vendor,- the said John T. and his wife Mary, and the other legatees, setting up his rights as purchaser of the interest of John T. and Mary his wife, and asking for an account.

Whereupon, the said Mary filed her cross bill, demanding that her rights be protected in said property, and that the same -be settled upon her for her own separate use.

Her rights are clear, as this is property never reduced to possession by her • husband, and no sale by him could affect her title, even if she signed and acknowledged the deed according to all the solemnities required by law for the conveyance of her real estate, as she did in this case. Yet, being under coverture, it is not binding upon her, in a case like this. This is not seriously contended for in the argument.

But secondly, it is insisted that the - complainant is entitled to a decree over against his vendor, Charles Philpot, upon the ground that, the law implies a warranty of title in personalty, although the deed does not contain it. And as all the parties are before the court, complete justice should be done..

This proposition cannot be ' sustained for several reasons :

1. The law does not imply a warranty of title to personal property not in possession of the vendor, at the time of the sale, but which is out of his possession and claimed by another-, as in the case before us. In such cases the warranty must be express — it cannot be implied. The vendor may in a proper case, be made liable for fraud, but the action must be upon that ground, not upon a contract of warranty implied.

2. The facts in this case, show that there was no intention to warrant by Philpot, nor any such understanding on the part of Scott — it was an adventure for speculation with a risk of title, and all other consequences.

That it has turned out unfortunately, cannot change the law.

3. There are no charges in the bill to authorise any relief against Charles Philpot, even if the facts would justify it, which, as we have seen, they do not.

We cannot act upon the question of morals and good faith, on which counsel have commented, but are confined to the rules of law, which may not be so refined in every case.

The decree of the chancellor will be affirmed.  