¶1(concurring specially) : I agree that a warranty of quality given by the vendor on a sale of chattels, does not run with the property. That is, a buyer from the vendee cannot recover from the original vendor on such warranty, whether or not he received a similar warranty from his immediate vendor. But that does not seem to me to decide the question in controversy. •
¶2A warranty of title to personal property does not run with the property. (24 R. C. L. 159.) That is, a buyer from the vendee cannot successfully sue the original vendor on his warranty, whether or not he received a similar warranty from the person from whom he purchased. But the recognized rule appears to be that if a buyer of personalty under such a warranty is sued by one claiming a superior title, and loses, the vendor is concluded by the judgment, if he was given notice and an opportunity to defend. (23 Cyc. 1272, 1273; 24 A. & E. Encycl. of L. 743; 24 R. C. L. 233; 15 R. C. L. 1019.) The only reason that I find given by courts for not following the same practice with respect to warranties of quality is that a change in that respect might have taken place between the two sales. (Smith & Melton v. Moore, 7 S. C. 209, cited in the opinion, and Morgan v. Winston, 32 Tenn. 472.) In the present case, *648however, it was specifically found that there had been no such, change. It may be that the fact that ordinarily a change of condition would be involved is a sufficient reason for not applying the rule at all in this situation; or the reason may be that in the nature of things it is only in regard to title and related matters that a warranty implies an obligation to defend. I concur in the result, with some doubt, but cannot see that the problem is solved by saying that the warranty does not run with the property.