Sargent v. Currier , 49 N.H. 310 ( 1870 )

Smith, J.

When the defendant exchanged horses with the plaintiff, he impliedly warranted the title to the horse given by him in exchange; and the defendant thereby became answerable to the plaintiff, in case the title proved defective, whether the defendant knew the defect of his title or not; 1 Par. on Con. 4th Ed. 457-8 ; 2 Kent’s Com. 478. This implied warranty is not confined to the vender’s right to sell, but is, in substance, a warranty that his title is perfect, and free from all liens and incumbrances : See Dresser v. Ainsworth, 9 Barbour 619. The plaintiff, having paid Philbrick, who paid Hodgdon, who paid the amount requisite to relieve the property from the mortgage, is entitled, as against the defendant, to be regarded as having himself discharged the incumbrance. The property could not have been relieved from the mortgage without the payment; the payment, therefore, was not voluntary, but compulsory: See Grose J., in Exall v. Partridge, 8 Term 308, p. 311; Wilde J., in Gleason v. Dyke, 22 Pick. 390, p. 393-4. The plaintiff has been compelled to pay money, which the defendant ought to have paid ; and which, as between the plaintiff and the defendant, the defendant was primarily liable to pay. A request may be implied, “ if money be paid by a person in consequence of a legal liability to which he is subject, but from which a third person ought to have relieved him by himself paying the amount;” 1 Ch. Pl. 13th Am. Ed. 350, 351; 2 Green. Ev. sec. 114. It is upon the ground of an implied request, that sureties are allowed to maintain a count for money paid against their principals-. Hunt v. Amidon, 4 Hill (N. Y.) 345, is an authority to the point, that the vendor of incumbered property is liable, in a count for money paid, to the purchaser who, is compelled to discharge the incumbrance in order to retain the property : See, also, Ticonic Bank v. Smiley, 27 Me. 225 ; Exall v. Partridge, 8 Term 308; McIntyre v. Ward, 18 Vt. 434 ; Kearney v. Tanner, 17 Serg. & Rawle, 94; Francisco v. Wright, 2 Gilman (Illinois), 691, may, perhaps, be regarded as an authority favorable to the defendant.

Our conclusion is, that the plaintiff may maintain the count for money paid ; and that the statute of limitations is not a bar, because the cause of action did not accrue till the money was paid.

It is unnecessary to consider, whether the other count can be maintained.

Case discharged.