Let a purchaser beware ; no one ought in ignorance to buy that which, is the right of another.
This maxim may be shortly stated as “Caveat emptor” — Let the buyer beware ; and applies to purchasers of all descriptions of property, whether of lands or goods, as well to title as to quantity and quality, and is generally applied, in the case of real estate and chattels real, in the following manner : — Where A. sells land to B. with a defective title, A. not knowing of the defect, in this case B., though evicted, has no remedy against A. ; nor does it make any difference, though the defect were known to A., if it were a patent defect, and might by reasonable diligence have been also known to B., and this though A. had, in the course of the negotiations for sale, made misrepresentations respecting the alleged defect.
If, however, the defect be a latent one, known to the vendor, but not disclosed to the purchaser, and which by proper diligence the purchaser could not possibly have discovered ; in this case, caveat emptor does not apply, and the purchaser is not bound to the contract, either in law or in equity.
If the case be one of misdescription only, in the particulars of the property contracted to be sold, and does not go to the whole subject of the contract, this will be set right by a court of equity, and an equivalent will be ordered to be given by way of compensation.
The same rule applies to the purchase of specific chattels! personal, and may be thus briefly stated : where the purchaser has an opportunity of judging of. the quality of the goods purchased, he, in the absence of express warranty, takes them with all their defects. Where, however, he confides in the judgment of the seller, as where he orders goods suitable for a particular purpose, the law implies a warranty that they will be suitable for that purpose ; and this generally as to both title and quality. In all contracts for the sale of goods, if the seller warrants the things sold to be of a good and merchantable quality, and on delivery they are found to be of a different quality from that ordered by the purchaser, or if he discover some latent imperfections in them which were not visible to a man of ordinary circumspection at the time of purchasing, he may, on the immediate discovery of their not corresponding with the order, return them and rescind the contract. But unless the seller expressly warrants the goods sold to be sound and good, or that he knew them to be otherwise and has used some art to disguise the defect, the buyer cannot recover back the price. On the whole, it appears that the law requires the purchaser in all cases to use the utmost diligence in the investigation of the right and title to, and nature, estate and quality of, the thing to be purchased ; and if he do not, then, in the absence of positive fraud on the part of the vendor, he (the purchaser) must take the thing purchased as he finds it, with all faults. It may be proper here to add that positive fraud vitiates all contracts, as well at law as in equity, and that money paid upon such a contract may be recovered back, and the contract rescinded or declared void, and which indeed it is of itself ab initio. It is a common judicial saying, that upon a sale “with all faults,” it is not intended to be with all “frauds.”
Hob. 99 ; 1 Campb. 193 ; Roll. Abr. 90 ; Noy Max. u . 42 ; Attwood v. Small, G CI. & Fin. 232 ; Lowndes v. Lane, 2 Cox, 2G3 ; White v. Cuddon, 8 CI. & Fin. 7GG ; Duke of Beaufort v. Neeld and others, 12 CI. & Fin. 248 ; Hart v. Windsor, 12 31. & W. 68 ; Brown v. Edgington, 2 Scott X. 11. 504 ; Shrewsbury v. Blount and others, 2 Scott N. R. 588 ; Keelo r. Wheeler, 7 31. & Gr. GG3 ; Parkinson c. Lee, 2 East, 314 ; Gray t. Cox, 4 B. & C. 108 ; Jones v. Bright, 5 Bing. 533.