#### James Croly v. James C. Pollard.

*Sale*— Implied *warranty of title*— Mortgage—Failure *of Consideration.*

1. The question in this case is whether a mortgage was given for the purchase price of property claimed to have been purchased of defendant by complainant, or to secure a loan used in making such purchase, and the finding of the circuit judge in favor of complainant's claim, is not disturbed.

2. A sale of personal property implies an affirmation by the vendor of its ownership, and he therefore warrants the title, unless it is shown by the facts and circumstances accompanying the sale that he did not intend to assert ownership, but only to transfer such interest as he plight have in the property.

Appeal from Wexford. (Fallass, J.)

Submitted on briefs May 18, 1888.

Decided October 19, 1888.

Bill to annul a mortgage. Defendant appeals.

Decree affirmed.

Tire facts are stated in the opinion.

*Sawyer & Bishop,*for complainant, contended:

1. Complainant’s theory is fully sustained by the bill of sale from Christensen to Rosevelt, together with the assignment indorsed thereon, and those writings cannot be contradicted by parol testimony; citing *Sutherland v. Crane,*Walk. Ch. 523; *Adair v. Adair,*5 Mich. 209; *Martin v. Hamlin,*18 Id. 364; *Kimball v. Myers,*21 Id. 284.

2. Where one of two innocent parties must suffer by the fault of a third, he shall sustain the loss who put it in the power of the third to occasion it; citing *Burson v. Huntingdon,*21 Mich. 432; *Holmes v. Trumper,*22 Id. 431.

3. In support of the claim that defendant is estopped from making the defense set up, counsel cited *Gibbs v. Linabury,*22 Mich. 479; *Smith v. Osborn,*33 Id. 411; *Peake v. Thomas,*39 Id. 589; *Stebbins v. Walker,*46 Id. 10; *Maxwell v. Bridge Co.,*41 Id. 467.

4. Estoppel *in pais*results from acts, and not from the intention, of the party; citing *Venneter v. Crossman,*42 Mich. 465; *Stebbins v. Walker,*46 Id. 11.

*613
      *C. C. Chittenden,*for defendant, contended:

1. Parol testimony may be introduced to aid in interpreting a contract, and to sbow the nature of the transaction; citing *Picard v.*McCormick, 11 Mich. 75.

2. A bill of sale does not embody the preliminaries or essential terms of a contract in such a way as to exclude parol evidence; citing *Rowe v. Wright,*12 Mich. 289; and the real nature of the transaction may be shown; citing *Fuller v. Parrish,*3 Mich. 211; *Trevidick v. Mumford,*31 Id. 467; *Sirrine v. Briggs,*Id. 443; *Phelps v. Whitaker,*37 Id. 72.

3. If the transaction was a sale, it amounts to only a quitclaim of defendant’s interest; citing 2 Add. Cont. 251; and the facts and circumstances show that defendant did not intend to assert ownership, but only to transfer what interest he might have in the property; citing Benj. Sales, §§ 613, 622, 639.

4. Complainant, by his failure to defend the Simons replevin suit, is estopped from his recovery from defendant.

Sherwood, O. J.

This case is an appeal from the Wexford circuit court, iu chancery, and appears from the record as follows:

The complainant bought a locomotive boiler, and engines belonging thereto, of the defendant, November 27, 1883, for $300, and took a bill of sale for the same, making payments therefor by two notes, one for $100, payable in six months, and the other for $200, payable in one year. These notes complainant secured by a mortgage on real estate in the county of Wexford.

Complainant placed the boiler and engines in a shop, and about two years thereafter the property was taken from him by writ of replevin under a claim made by a Mr. Simons of paramount title. Complainant thereupon notified the defendant of the suit and of the claim made therein, and requested him to defend the title to the property. This the defendant refused to do, claiming that- he never had any title thereto, and never sold the same to the complainant, and, the complainant making *614no defense, Simons succeeded in his suit, and complainant lost his property under the title made by Simons.

The only consideration received by the complainant for his mortgage given to defendant was the boiler and engines. The consideration having wholly failed, the complainant requested the defendant to discharge the mortgage, which he refused to do, and thereupon defendant, foreclosed the mortgage by advertisement, and bid off the property upon the sale. Complainant prays for a decree setting aside the sale and annulling the mortgage.

The defendant, in his answer, avers that he did not sell the boiler and engine to the complainant, but that, complainant purchased them from John Eosevelt and Robert Christensen, and that defendant loaned complainant the money with which to make the purchase, and took the mortgage above mentioned as security for his loan; that he had never seen the boiler and engines in' question until a long time after complainant made his, purchase of Eosevelt and Christensen.

The case was heard upon pleadings and proofs, and the circuit judge granted a decree in accordance with the prayer of the bill, and defendant appeals.

The testimony in the case was taken before the circuit judge in open court. Upon the material point in the case there is a contradiction between the parties in their testimony. The circumstances of the case, and the written testimony, however, are corroborative of the testimony of the complainant. The question in the case is, was the mortgage given by the complainant to the defendant for the loan of $300, or was it given to the defendant as the purchase price of the boiler and engines mentioned?

The title to the property which the complainant received came originally from Eosevelt and Christensen. Christensen, on September 7, 1883, transferred the property to *615Rosevelt, by written bill of sale, with warranty of title, and Rosevelt sold and transferred tbe property by a like bill of sale and warranty to the defendant, on November 27, 1883; and tbe defendant, in bis testimony, says be supposed that, when be conveyed by his bill of sale tbe property to tbe complainant, be got title thereto. That bill of sale'reads as follows:

> ‘“For a valuable consideration to me in band paid by James Croly, I hereby sell, transfer, and set over to tbe said James Croly all my right, title, and interest in tbe locomotive boiler and engines mentioned in tbe within bill of sale."

This was written on tbe back of tbe bill of sale from Rosevelt to tbe defendant, and was duly signed by tbe defendant, and dated tbe day complainant made bis purchase. It is claimed, however, by counsel for the defendant, that this bill of sale never gave the complainant any warranty of title to the property, either express or implied. Tbe complainant testifies that be bought tbe property of tbe defendant, and gave bis notes, secured by tbe mortgage, therefor, and tbe defendant, when asked for a bill of sale of tbe property, gave tbe complainant tbe one above quoted.

There is no doubt., I apprehend, but thar a sale of personal property implies an affirmation by tbe vendor that tbe property is his, and he therefore «warrants tbe title, unless it is shown by tbe facts and circumstances accompanying tbe sale that tbe vendor did not intend to assert ownership, but only to transfer such interest as he might have in tbe property. It is claimed on tbe part of tbe defendant that such facts and circumstances were shown in this case, and there is testimony^to that effect. It is, however, contradicted upon tbe other side by tbe testimony of tbe complainant.

Tbe circuit judge heard all tbe testimony. Tbe wit*616nesses were before him. His means of judging of the credibility of the testimony offered was far superior to ours, and it appears from the decree rendered he found against the defendant, and I do not think we should be justified in disturbing that finding. The preponderance of the testimony is clearly with the complainant.

The decree at the circuit must be affirmed, with costs.

The other Justices concurred.