
    Burwell against Jackson, original suit.—Jackson against Burwell, cross suit.
    
      Contract for sale of lands ; implied warranty of title; “ good and sufficient deed of conveyance.”
   It was held, in this case, that in every contract for the sale of lands, there is, on the part of the vendor, an implied warranty that he has- a good title to that which he assumes to sell, unless such warranty is expressly excluded by the terms of the contract.

That this implied warranty exists so long as the contract remains executory; and ceases only upon the execution of the contract by a deed or conveyance, when the law applies the maxim caveat emptor to the case, and throws upon the purchaser the responsibility of seeing that he is protected by suitable express covenants.

Where, therefore, in a contract for the sale of lands, the vendors covenanted, that they would “ execute or cause to be made and executed to the party of the second part, on the first day of June, 1836, a good and sufficient deed of conveyance ” of a certain lot of land, it was held, that this covenant bound the vendors to convey a good title to the purchaser; and the title of the vendors having been extinguished before conveyance, by sale under a mortgage, although the mortgage existed and was upon record at the time of making the contract, it was held, that the purchaser had a right to treat the contract as rescinded; and that he might set up this failure of the vendor’s title as a defence to an action,, brought to enforce payment of a judgment ob- • Mined upon a note given in part payment of the first instalment of purchase-money ; such judgment having been rendered before the extinguishment of the vendor’s title, by the sale under the mortgage, and consequently at a time when the purchaser had no valid defence.

(S. C., 9 N. Y. 535.  