
    SELBY vs. RILEY.
    
      Sixth Judicial District Court,
    
      October, 1857.
    Failure of Consideration.
    If property is sold, while in the possession of the sheriff, by virtue of an attachment, dnly issued, the title, which remains in the vendor, will pass to the vendee, but subject to the lien created by the attachment&emdash;?and in an action by the vendor, on a promissory note, given to him in payment for the property so encumbered, the vendee cannot plead this lien as working such a failure of consideration, as will entitle Mm to recoup the amount expressed ou the face of the note, to the extent of the lien. To such a vendee the doctrine caveat emptor applies.
    The facts are fully get forth in the opinion..
    L Edwards, for plaintiff.
    Upton & Hereford, for defendants. Botts, J.-&emdash;The
   Botts, J.

The plaintiffand defendants being in the city of Sacra- mento, the former sells to the latter certain personal property, then in the town of Folsom, and upon the road between Folsom and Jackson. The defendants execute and deliver to the plaintiff their promissory note for the purchase money, and receive" an order upon the agent of th© plaintiff for the delivery of the properly. This action is brought upon the promissory note, and the defendants plead a failure of consid- eration. To sustain their plea, they prove that the property was at- tached by the creditors of the plaintiff, on the night of the day on which they purchased, and that under this attachment, the properly was finally sold, and that they never reduced it to actual possession. As to a portion of the property, it appears that the sheriff had attempt- ed to levy an attachment upon it, previous to the sale by the plaintiff to the defendants 5 but under my view of the law, it is not necessary to decide whether the acts of the sheriff amounted, in law, to a levy or not.

Between theparties there can be no doubt that the act of sale was perfected by the delivery of the note on the one hand, and the order for the property on the other. From that moment the right of dominion was transferred from the-vendor to tire vendee, just as much as if the if the consideration of the transfer had been the payment of money, instead of the promise to pay, and there &s?e no circumstances that will constitute a defense to this suit, that would not sustain 'am action to recover back the money, if it had been actually.paid.

Under circumstances like these, a bona fide vendee Is allowed a reasonable time to reduce the property purchased into actual possession. See Montgomery & Berry vs. Hunt, 5 Gal. 366. It is possible that by the laches of the vendee in this respect, he may let in an attaching creditor, but he can surely take no advantage of Ms own wrong. As far, therefore, as the attachment after the sale, is concerned, if by it the vendee was deprived of the property he had bought, it was his own fault.

But it is said that a portion of the property was under attachment, at the time of sale. Will the fact that such property never came to the possession of the vendee, constitute a part failure of consideration for which the defendant would haye a right to recoup in this action ? It may be very doubtful whether the property was ever attached; if it was not, it was still in the possession of the plaintiff' at the time of the sale ; if it was attached. It was then in the hands of the sheriff. Im either event, the title remained in the plaintiff only; in the latter ease It was encumbered by the Een that attached in consequence of the levy.

How, for a long time it was the doctrine of the common law, that a sale of pergonal property impEed no warranty of title, but I think the modem doctrine is, that a sale of personal property by one in possession, (aliter if in the possession of another,) carries with it a warranty of title. It never was held, that I know of, that a sale in either the one case or the other, impEed a covenant against incumbrances. (See Ghitfcy on Contracts, p. 246, and authorities there cited.)

Thus, even if the property was in the hands of the sheriff, encumbered by the Hen, the purchaser took at Ms risk, and is in the category of those to whom the doctrine' of "caveat emptor" Is intended to apply. The plaintiff Is entitled to judgment for the principal sad-interest dire upon the note—let judgment be entered accordingly.  