
    Wm. Kerr v. Sam’l. Montgomery.
    
      York—Spring Term, 1833.
    The sheriff had levied on a wagon, under iions in his office, and left it in the possession of Brown, the defendant, in the execution. Afterwards, the plaintiff, acting as a constable, under magistrate’s ex editions against Brown, also levied on the wagon; at the sale, he bid it off to himself, and afterwards sold it to the defendant. The wagon was quently seized by the sheriff, and sold under the first levy. Under these circumstances, the defendant refused to pay for it, and he was sued before a magistrate, who gave judgment against him, which was affirmed by the Circuit Court.
    .property by execuuoñste f!ce,índ\mdCrí' warasmidby tL> conf“s
   Curia, per

O’Neall, J.

In all sales of personal property, (except in sales made by operation of law) there is an implied warranty of title; and if the vend°r has no title, and the vendee is deprived Of possession, by a paramount title, he may, if he has paid the price, recover it back, with interest and the costs of eviction ; or if he has not paid the price, he may set up the defect of title, as failure of consideration, by way of defence to an action for its recovery.

The fi. fa's, lodged in the sheriff’s office, against Brown, before the seizure of the wagon, in execution by the constable, were legal liens on it, and the sale under them, after the constable’s sale and purchase by himself, and his subsequent sale to the defendant, was a regular eviction of the defendant, by a paramount title.

The fact, that the defendant knew of the existence of the fi. fa’s, against Brown, cannot benefit the plaintiff". He also knew of them, and if he did not intend to warrant against them, it was his business to have made the exception. The defendant might, and very possibly did, suppose the plaintiff’s title good, from the fact that it arose from a sale under execution, by the plaintiff himself, as a constable.

The motion to reverse the decision of the Judge below, and the judgment of the Justice of the peace, is granted.  