In People's Bank v. Kurtz, 11 Weekly Notes, 226, Sup. Ct. Penn. 1882, it was held that while the vendor of stock in his own possession warrants his own title, he does not warrant that the stock was not part of a fraudulent overissue. "It may now," said Sharswood, C. J., "be regarded as well settled, that a party selling as his own, personal property of which he is in possession, warrants the title to the thing sold; and that if by reason of a defect of title nothing passes, the purchaser may recover back his money, though there be no fraud or warranty on the part of the vendor. This doctrine is held to apply to choses in action, as well as other descriptions of personal property (Charn-ley v. Dulles, 8 W. & S. 353).

"Shares of stock in a corporation are choses in action, giving a right to dividends and an interest in the capital. The certificate is the evidence of such ownership, and there can be no doubt that if the certificate is forged, or the holder is not such bona fide, so that he has no claim on the corporation, the vendor would be liable to his vendee on the implied warranty of title. His possession of the certificate would be as to his vendee possession of the stock, just as possession of a bond or note is possession of the debt which they represent. Where, however, there has been a fraudulent overissue of stock, evidenced by certificate under the genuine seal of the corporation, the case presented is somewhat different. It has been well settled that a corporation is liable to bona fide holders of such fraudulent certificates, because, like individuals, they are responsible for the fraudulent exercise of the power intrusted by them to their officers or agents. It is unnecessary in this case to consider whether they are bound to permit a transfer on their books, and to deliver a new certificate to the bona fide vendee. It may be that where the overissue is in excess of the amount authorized by the charter, they would not be. But it seems to be established, upon principle as well as authority, that the bona fide holder of such a an innocent vendor, by the mere act of sale, asserts that he is owner. . . . The negative is stated to be the true rule of

"The one controverted question," according to Mr. Benjamin, "is thus narrowed to this point whether in the sale of a chattel fraudulent certificate would have a right of action against the corporation, and that his measure of damages would he the market value of his stock at the time the transfer was demanded (Willis v. Philada. & Darby R. R. Co., 6 W. N. C. 461, and cases cited in the opinion of Judge Hare). The vendor of such a certificate has then a title which he can transfer, and a remedy against the corporation. Suppose the shares in the case before us had been transferred by an original subscriber, his vendee would have been in the same position as the assignee of shares subsequently issued in excess of the charter. He would have had a clear right to demand a transfer and new certificate. Such certificate, however, would have been worth to him only the value of the stock in the market at the time. If his transfer had been refused, he would be entitled to the same remedy and the same measure of damages. The vendor of shares of stock certainly does not warrant the solvency of the corporation. Corporations are especially liable to be made insolvent by the embezzlement and frauds of their agents or officers. It matters not whether the loss arises from robbery or embezzlement, or by the fraudulent issue of stock, the value of the stock is depreciated. It matters not whether such fraud or robbery was before or after the sale of the stock, the bona fide vendor cannot, under the rule in question, be held responsible for the depreciation in value. It is one of the risks which are assumed by all dealers in such securities. It is agreed in the case stated that ' the certificates were in the usual form and regular on their face, and were issued by the duly constituted officers of the company, and were sealed with the genuine seal of the corporation.' We are of opinion that the implied warranty of title extended no further, and that there was no breach."

That on a sale of bonds by telegraph there is a warranty of genuineness, see Donaldson v. Newman, 9 Mo. Ap. 235. That on a sale of accounts there is an implied warranty that they are due, see Gilchrist v. Hilliard, 53 Vt. 592.

"In this state," said Ray, J., in a case before the Supreme Court of Missouri in 1881, "the principle is well settled, that the purchaser of land, who has taken a conveyance with covenants of title, or a bond for such a conveyance, and is placed and continues in the undisturbed and undisputed possession thereof, will not be relieved against the payment of the purchase-money, on the mere ground of defect of title; there being no fraud or false representations as to the title, and no eviction. In all such cases he cannot resist the payment of the purchase-money, without offering to restore the possession, thus acquired by him, to the vendor. Mitchell v. McMullen, 59 Mo. 252; Harvey v. Morris, 63 lb. 475; Wheeler v. Standley, 50 lb. 509; Connor v. Eddy, 25 lb. 72; Smith v. Busby, 15 lb. 393. It is equally well settled, in this state, that a purchaser who has paid for land may, where the paramount title is outstanding, maintain an action against his vendor for a breach of his covenant of warranty, without an actual eviction: ' That is, an actual dispossession, by process of law, consequent upon a judgment, is not necessary, in order that a covenantee may maintain an action for breach of the covenant of warranty.

In all such cases, however, of voluntary dispossession, or "ouster in pais," where there has been no judgment, the burden of proof is upon the covenantee to establish the adverse paramount title to which he has yielded; and the possession should only be surrendered after claim or demand made therefor.' Morgan v. R. R. Co., 63 Mo. 129, and cases cited. Such also seems to be the law in other states, in like controversies, between vendees and vendors of real estate. Whitney v. Lewis, 21 Wend. 131; Lamerson v. Marvin, 8 Barb. 1; Estabrook v. Smith, 6 Gray, 572; Greenvault v. Davis, 4 Hill, 643; Fowler v. Poling, 6 Barb. 165; Hamilton v. Cutts, 4 Mass. 349. It may be remarked, however, that the implied warranty of title, upon the sale of personal property, has been held by the authorities to be analogous to a covenant for quiet enjoyment, in the sale of lands; and it would seem, from these authorities, that the courts do not maintain a different rule in actions based on a breach of warranty of title, on the sale of personal property, than is adopted in a like action in the sale of real estate. McGiffin v. Baird, 62 N. Y. 331; Bardewell v. Colie, 1 Lans. 145,146; Sweetman v. Prince, 26 N. Y. 232, 233; Stringham v. Ins. Co., 40 N. Y. 285, 286; Matheny v. Mason, 12 Rep. 627."