¶1delivered the opinion of the Court.
¶2There is no doubt that in every sale of a chattel for a sound price, there is a tacit and implied warranty that the vendor is the owner and has a right to sell. If, therefore, after the sale by Johnson N. Vibbard had asserted his right to the chest of tea, by suing the defendants and recovering, this would have been a good defence to the action: and if the recovery was subsequent to the trial of the cause between these parties, it would have furnished a good cause of, action on the implied warranty.
¶3The defendants have seen fit to satisfy JY. Vibbard for the tea, and now to set up his title in this action ; but this they have no right to do. The plaintiff below being in possession of the tea, sold it, as his property, to the defendants. (Kennedy v. Strong, 14 Johns. Rep. 15.) They cannot, in this way, draw the plaintiff’s title in question, by their own voluntary act of payment. It. is not competent to them to dispute the title of their vendor, unless they have been charged at the suit of another person, who has, after contestation, shown a better title. The principle is analogous to a demise of a house by A., who is in possession, claiming title, to B. The latter receives the possession, and enjoys the premises by the permission, and on the letting of A. In an action for the rent, B. cannot set up that A. has nothing in the premises, and that he has paid the rent to C. voluntarily. If C. had recovered the rent, and substantiated his title, then it would be a good defence¿ otherwise, not.
¶4Judgment affirmed.