23 Miss. 42 | Miss. | 1851
delivered the opinion of the court.
The plaintiff brought suit on a promissory note for $3333.33, dated Natchez, January 11, 1839, payable one year after date at the Planters’ Bank of Natchez, and signed by defendant’s testator as maker, indorsed by defendant and others. The defence set up is failure of consideration, arising from want of title in the vendor of the land for which the note was given. There was a verdict for the plaintiff, but a new trial was granted, to which plaintiff’ filed his bill of exceptions. On the next trial the jury found for defendant, and the plaintiff excepted, and it was stated in the last bill of exceptions that all the same points that were excepted to by the plaintiff on the first trial had also arisen on the second, and that the case was to be considered as presented by the first bill of exceptions.
A large tract of land, described as lying in Louisiana, was sold by E. C. Hyde to Israel Leonard, the maker of the note, and the transaction is described by the deposition of Hyde, who was examined as a witness for the defendant. He says the note sued on was, amongst others, given for a tract of land sold by him to Leonard for $45,000; that he received in part payment sundry notes of third persons, $10,000 in cash, and the balance was secured by three notes of Leonard, for equal amounts payable in one, two, and three years, the
It is proved by the surveyor-general of Louisiana, that the lands described in the deed were vacant or public lands when-Hyde sold. Broughton, who had sold to Hyde, had a claim to lands, but they laid in another township,,ten miles off. It seems from documentary evidence, that’ Hyde and Hurst each obtained patents in 1843 for a quarter section of land, which were founded on preemption rights. These two quarter sections it is said fall within the land mentioned in Hyde’s deed to Leonard. But the defendant also introduced deeds from Hyde and Hurst to Thistle, in each of which the consideration money is expressed to be $500, and the deeds bear date after the public land sales.
The plaintiff introduced Frederick Stanton, who proved that being about to take an assignment of the note sued on, he called upon Thistle, who was indorser, about the 5th of February, 1839, for information in regard to it, and was informed that there was no offset; whereupon witness inquired
The deposition of Prentiss was taken, by which it appears Thistle, after the note was due and had been protested, went 'to him in company with Stanton, and in reply to an interrogatory propounded, stated that the note would be paid. Witness understood that Thistle was the executor, and on this assurance regarded the transfer as complete, but would not have considered himself b'ound to complete the arrangement with Stanton without such assurance. Prentiss’ deposition was also objected to because he was indorser, but it seems he indorsed only as the agent or attorney, and without any interest or liability.
This is the substance of the evidence, and on it both parties required sundry charges to the jury, and those refused on the part of the plaintiff, and those given for the defendant, are now relied on as sufficient, amongst other causes, to reverse the judgment.
On this state of the case it seems there are two general questions, the decision of which must dispose of the case. First, Was there such a failure of consideration as to constitute a defence? and second, Has there been a waiver of the de-fence ?
On the first point it is contended, that the failure of title must be total; that a partial failure cannot be set up at law. And then it is insisted, that as Hyde and his partner, Hurst, were entitled to a preemption right as to two quarter sections of the land, the failure was not total. And then again, it is said, when a vendee takes covenants of warranty, there must be an eviction;
This note was given for land in Louisiana, and the law of
We can have no hesitancy in deciding that there was a total failure of title in the present case. The witness, Hyde, who was the vendor, so states, and indeed this fact is only controverted in argument on the ground that to a small portion of the land Hyde and Hurst had a preemption right. It seems to be true that each of them obtained patents for a quarter section. But admitting that they had such right, does that alter the case. By the act of 29th of May, 1830, a preemption right was allowed to actual settlers, but the act expressly prohibited the assignment or transfer of such right, and declared all such made prior to the issuance of a patent, absolutely void. 4 U. S. Stat. at Large, 420. The act of June, 1834, revived the act of 1830, but it did not make the right assignable or transferrable. 4 U. S. Stat. at Large, 678. The act of 1830 was again revived by the act of 22 June, 1838; but this last act made it necessary, before a patent should issue, that the party should swear before a competent officer, that he entered upon the land which he claimed in his own right and for his own benefit, and that he had not, directly or indirectly, made any contract or agreement to transfer the title, or by which the title should inure to the benefit of any other person at any future time; and it further declared, that such agreements should be void. 5 lb. 251. Now it is said, that Hurst obtained or held his preemption under the act of 1834, and Hyde under the act of 1838. The deed from Hyde to Leonard was executed the 11th of February, 1839, and it is manifest that Hyde did not intend to convey any land to which he had but a
As the title has failed, we come next to inquire whether the defence is made complete by eviction. The deed contains but a general covenant of warranty, and it has often been decided that there is not a total failure of consideration without eviction, or something equivalent. Hoy v. Taliaferro, 8 S. & M. 727; Heath v. Newman, 11 Ib. 201; Dennis v. Heath, Ib. 206; Duvall v. Craig, 2 Wheat. 45, and notes. But this
In the next place, has there been any waiver of the defence ? If Leonard had been living, and had made the statement to Prentiss which was made by his executor Thistle, the matter would have been placed beyond dispute. Or if he had been consulted, and had replied to Stanton before the assignment was taken, as did Thistle as indorser, it would have been equally plain. But as it is, the question arises, Can an execu
We have thus stated what we take to be the law of the case on the two general questions presented by the record, and on examining the charges given at the instance of the defendant,
And again, the court refused to charge that “ A mere outstanding title in another who does not sue for the recovery of the land, is not a breach of the covenant of warranty, and the existence of such title does not constitute a failure of consideration.” As a general proposition this is very nearly correct, except that it assumes that there must be a suit. A suit is the usual mode of settling a right it is true, and therefore generally necessary. But we have said when the title is in the United States a suit is not necessary; and in this instance there could not have been a suit. Besides, the authorities show that a legal eviction may occur in certain cases without a suit.
It hence follows that the court correctly refused to grant a ’ new trial, and in the granting of the first new trial we can see no error, inasmuch as the verdict was contrary to law and evidence ; therefore, let the judgment be affirmed.