30 Ala. 283 | Ala. | 1857
"When tbe wife, owning a separate estate, before tbe adoption of tbe Code, joined with ber husband in the execution of a note, for the price of a personal chattel bought by them, the note was a charge upon that separate estate. — Ozley v. Ikelheimer, 26 Ala. 332; Walker v. Smith, 28 Ala. 569.
Such note, however, did not impose upon her any liability which could be enforced at law, or against her personally. As to her, it could be enforced in equity, as a charge upon her separate estate. But, when the attempt was thus made to enforce it, it was open to all the defenses, total or partial, to which it would have been subject had she been suable, and sued upon it at law. She was entitled to aver and prove that it was not a charge to any extent upon her separate estate, or that it was not a charge to tbe extent apparent on its face.
If Mrs. Caldwell (now Mrs. Perkins) bad been suable and sued at law upon the note mentioned in the bill, she would not have been confined to the defense founded on a breach of the warranty contained in the bill of sale of the slave, for part of the price of which the note was given. She would have been entitled to show in defense that, although there was no breach of warranty, there was fraud on the part of the vendor in tbe sale of the slave.— Milton v. Rowland, 11 Ala. 732; Barclay v. Dixon, 22 Ala. 370; Morgan v. Patrick, 7 Ala. 185; Bradford v. Stewart, 26 Ala. 410. And if she had proved such fraud in the sale, then, as she had not availed herself of tbe right to rescind the contract offaecount thereof, she would have been entitled to a deduction from the note, of a sum equal to the difference between tbe actual value of the slave at the time of the sale, and the value tbe slave would have possessed at that time, if she had conformed to the representation made by the vendor, and in which representation the fraud consisted, with interest on that sum. Marshall v. Wood, 16 Ala. 806; Rowland v. Shelton, 25 Ala. 217.
A careful examination of the pleadings and evidence in this cause, has brought us to the conclusion, that the complainant, knowing the negro woman not to be a good
The decree of tke chancellor is erroneous, and must be reversed. Tke cause is remanded for further proceedings not inconsistent with this opinion. Tke appellee must pay tke costs of tke appeal to this court.
