1 Gill 153 | Md. | 1843
delivered the opinion of this court.
The inadmissibility of the' évidence of the articles of agreement set out in the first bill of exceptions, was put in the court below, upon the ground that there existed no privity between Brooke and Elisha Berry, or that he claiméd title under Elisha Berry; this could certainly furnish no justifiable ground for the rejection of the evidence. If the articles of agreement furnished evidence that Elisha Berry's title had passed to the plaintiff, (the plaintiff having first shown that Elisha Berry had title,) they established his right to recover against the defendant, whether the defendant claimed title under Elisha Berry or not, and whether he had any connexion with Berry or not
That an action of replevin is an appropriate remedy in this ease, we cannot doubt. By the law of Maryland it is appropriately applied to all cases in which the plaintiff seeks to try the title to personal property, and recover its possession, and we are clearly of opinion, that the plaintiff was entitled to the possession of these negroes, which had been delivered to him ¡under the agreement, and that his right of possession was not divested by their running away and getting into the possession of the defendants, and that as preliminary to the establishment of such right of possession, no evidence whatever was necessary to be furnished of a performance, or a readiness to perform the agreement on the part of the plaintiff.
The covenants in this deed are independent. The covenant to deliver the negroes to the plaintiff, is first in order of time, for without the negroes the plaintiff could not make a crop to divide according to the agreement, with the defendant Berry, and if there had been a failure to deliver the negroes, an action •could have been immediately sustained on the covenant. There existed a present and immediate right in virtue of the contract to the possession of the negroes, and the contract was executed by the parties in conformity with this construction, and the plaintiff was entitled to the possession for the whole term of ten years by the express stipulations of the contract. Neither party possessed any power to rescind the contract against the will of the other, nor did the non-performance by the plaintiff on his part (if such were the fact,) destroy the rights which he had acquired under the contract. The casual possession of the negroes acquired by the defendant Berry, did not enable him to retain the negroes, and to treat the agreement as a nullity. That it was the intention of the parties to. the contract, that possession of the negroes should, immediately on the execution of the agreement, pass to William F. Berry, is clear, not
The fourth bill (of exception is taken upon the admission by tire court of a certain conversation passing between sundry
JUDGMENT AFFIRMED.