¶1The opinion of the court was delivered by
¶2In this case the plaintiff purchased of Nathan Eaton. Nathan Eaton by his agent, Gardner Eaton, sold the plaintiff a horse, for which the plaintiff gave his note to Nathan, who received the note, and the horse was delivered to the plaintiff. Afterwards, the horse was attached, by the defendant, as the property of Gardner Eaton. In an action for this taking, is Nathan Eaton a competent witness for the plaintiff, to prove his title ?
¶3This is not the case of two persons claiming as purchasers, or as a purchaser and attaching creditor, under the same man, and between whom he may stand in the same interest. The plaintiff claims under Nathan, the defendant claims under Gardner. This then presents the common question whether a vendor is a competent witness for the vendee to sustain his title, as against a third person. There can be no doubt that if the plaintiffs title, derived under Nathan Eaton, *245turned out defective, Nathan would be answerable to the plaintiff. He would either be unable to collect the note, which he held against the plaintiff, or, if that was paid, he' must answer over to the plaintiff, as every sale of chattels is accompanied with an implied warranty of title. “ A wit- “ ness, who is answerable to a vendee, in case the title turns out to be defective, is not competent to support the title “ in an action against the vendee, founded on an alleged “defect of title.” 3 Stark. Ev. 1647. Whether the action is commenced against the vendee, or the property be taken away by a third person, and the action is by the vendee, to try the title, can make no difference. The vendor is equally interested in the result of the action.
¶4Judgment reversed.