The doctrine of caveat emptor applies to the sale of real property and there can be no warranty of quality or condition implied in such sales. 4 Williston, Contracts, (Rev.Ed.), § 926; 8 Thompson, Real Property, (Perm.Ed.), § 4599; 55 Am.Jur., Vendor and Purchaser, § 368; 92 C.J.S. Vendor and Purchaser § 578; Steiber v. Palumbo, 219 Or. 479, 347 P.2d 978; Allen et ux. v. Reichert, 73 Ariz. 91, 237 P.2d 818; Dennison v. Harden, 29 Wn.2d 243, 186 P.2d 908; Shapiro v. Kornicks, 103 Ohio App. 49, 124 N.E.2d 175; Kerr v. Parsons, 83 Ohio App. 204, 82 N.E.2d 303; Harmon Nat. R. E. Corp. v. Egan, 137 Misc. 297, 241 N.Y.S. 708; Gilbert Construction Co. v. Gross, 212 Md. 402, 129 A.2d 518; Berger v. Burkoff, 200 Md. 561, 92 A.2d 376; Combow v. Kansas City Ground Investment Co., 358 Mo. 934, 218 S.W.2d 539; Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66. When a complaint wholly fails to state a cause of action it is subject to attack by a general demurrer and will not support a judgment.
"It is the general rule of law that implied warranties as to quality or condition do not apply to realty. Allen v. Reichert, 73 Ariz. 91, 237 P.2d 818."Voight arose from the failure of an air conditioning system sold as part of a new house.
In addition, the Smiths argue that the home was defective and, therefore, they contend that they are entitled to rescission for breach of an implied warranty of fitness. Some of the earlier decisions by this court have held that the rule of implied warranties is inapplicable to the sale of real property. Allen v. Reichert, 73 Ariz. 91, 93, 237 P.2d 818, 819-820 (1951); Voight v. Ott, 86 Ariz. 128, 132, 341 P.2d 923, 925 (1959). The theory of the older cases was that the seller does not impliedly warrant the conditions of the premises because the provisions of the contract of sale are deemed to merge into those of the deed, which embodies the full agreement of the parties.
It is the general rule of law that implied warranties as to quality or condition do not apply to realty. Allen v. Reichert, 73 Ariz. 91, 237 P.2d 818. If the item in question be realty, then there is no implied warranty applicable thereto. If the item be personalty, then the provisions of the statute as to implied warranties is made applicable and this is what the lower court held in finding that the sellers (defendants) breached their implied warranty as to the property in question. A "fixture" is defined in 36 C.J.S. Fixtures § 1, Definition and Nature and Requisites of Conversion into Realty in General, p. 890, as follows:
The rule is applied whether the house is new and unoccupied or had been used by others before plaintiff purchased. In addition to the New York cases cited in the text, the following cases support that rule: Druid Homes Inc.Cooper, 272 Ala. 415 AllenReichert, 73 Ariz. 91 WaltonPetty, 107 Ga. App. 753 CoutrakonAdams, 39 Ill. App.2d 290 WecksupraTudorHeugel, 132 Ind. App. 579 Jose-BalzsupraRappichAltermatt, 106 Ohio App. 282 VanderschriersupraSteiberPalumbo, 219 Or. 479 CaldwellWells, 228 Or. 389 Alabama v. Arizona v. Georgia v. Illinois v. (which distinguished case ) Indiana v. (which made no reference to case, ) Ohio v. (which distinguished case, ) Oregon v. , but see v. . As noted above, Colorado, Louisiana and possibly Texas hold that an implied warranty arises even though the house has been completed at time of contract. Generally on the question see Dunham, Vendor's Obligation as to Fitness of Land for a Particular Purpose, 37 Minn. L. Rev. 108; Bearman, Caveat Emptor in Sales of Realty — Recent Assaults Upon the Rule, 14 Vand. L. Rev. 541; Selker, Right of Purchaser in Sale of Defective House, 4 Western Res. L. Rev. 357; Notes:
Neither fraud nor concealment is present here. The cases of Berger v. Burkoff, 200 Md. 561, 92 A.2d 376 ( Ct. App. 1952); Allen v. Reichert, 73 Ariz. 91, 237 P.2d 818 ( Sup. Ct. 1951); Combow v. Kansas City Ground Investment Co., 358 Mo. 934, 218 S.W.2d 539, 8 A.L.R.2d 213 ( Sup. Ct. 1949); Otto v. Bolton Norris, 2 K.B. 46, 1 All Eng. 960 (1936); and the cases collected in 8 A.L.R.2d 218 (1949), support defendant's contention. The authorities cited by plaintiffs to avoid the established doctrine fall into two groups.