24 N.C. 440 | N.C. | 1842
This was an action for a breach of the covenant contained in a bill of sale, of which the following is a copy:
Received, 23 August, 1833, of John Harris, Sr., $500, in full (441) payment for a certain negro fellow called January, which I have this day sold and delivered to him, which said negro I do hereby warrant and defend forever to the said John Harris, his heirs and assigns, forever. Witness my hand and seal, the day above written.
ANDREW L. GOLD. [SEAL]
The facts were that one Cochran died in 1830, upon whose estate one William Todd administered, in the State of South Carolina, in the same year, and took into his possession as such administrator the negro slave mentioned in the bill of sale above set forth, which slave was, at the time of the decease of the said Cochran, of his proper goods and chattels; that some time previous to the date of the said bill of sale the said negro came into the possession of Andrew L. Gold, who was one of the next of kin and distributees of the said Cochran, and, as was contended by the defendant, with the assent of Todd, the administrator, but, as contended by the plaintiff, without his assent; that while so in possession of the slave, Andrew L. Gold conveyed him to the said John Harris by the said *312 bill of sale, and shortly thereafter died, and administration was soon afterwards taken out upon the estate of the said Andrew by the defendant, in Brunswick County; that John Harris remained in the undisturbed possession of the negro in question until his death, which took place in the latter part of 1834; that the said Harris resided in South Carolina at the time of his death, and had the negro then with him; that in the early part of 1835 letters of administration were granted in South Carolina to the plaintiff and one John Vereen upon the estate of the said John Harris, and they inventoried the said negro in question as parcel of his estate; that soon afterwards an action of trover was instituted by Todd, as administrator of Cochran, against the plaintiff, without naming him as administrator of Harris, for the recovery of the value of the negro, in South Carolina, in which a verdict and judgment were rendered against the present plaintiff, the defendant in that suit, for $600 and execution issued thereon, which was returned by the sheriff "Satisfied." The transcript of the record in this case from South (442) Caroline was certified in the following manner:
STATE OF SOUTH CAROLINA, HORRY DISTRICT.
I, John C. Readman, clerk of the court of common pleas and general sessions, do certify that the annexed are correct transcripts of the original proceedings filed in this office in the case of William Todd, administrator, v. William Lee. Given under my hand and seal of office this 28 March, 1840. JOHN C. READMAN, C. C. P. [SEAL]
I, Josiah J. Evans, one of the associate judges of the said State, and presiding judge of the said court of common pleas, do hereby certify that John C. Readman, whose signature is affixed to the above certificate, is clerk of the said court and keeper of the records thereof, and that the said attestation is in due form. Given under my hand at Horry Courthouse this 31 March, 1840. JOSIAH J. EVANS.
To these certificates was annexed the certificate of the Governor of South Carolina, under the seal of the State, that the said Josiah J. Evans was a judge as above set forth, etc. It also appeared that at December Term, 1838, of Brunswick County Court the plaintiff took out letters of administration on the estate of John Harris, and immediately thereafter instituted this suit against the defendant; and that the defendant, soon after qualifying as administrator of the estate of Andrew L. Gold, advertised pursuant to the act of 1789. The defendant objected to the reading of the transcript from the court in South Carolina for want of due authentication, but the objection was overruled and the transcript received in evidence. The defendant relied in his defense upon the following grounds: *313
1. That the recovery in South Carolina had not been made against the plaintiff upon title paramount in the negro; because Todd, having assented to Andrew L. Gold taking the negro in question as a part of the distributive share coming to him from the estate of (443) Cochran, had thereby parted with his right as administrator.
2. That the covenant contained in the bill of sale was for quiet enjoyment, and there was no evidence that there had been any evidence of the plaintiff.
3. That the act of 1789 was a bar to the plaintiff's claim against the defendant, as administrator of Andrew L. Gold.
4. That the action was brought by the wrong person; for, if any one had a right to bring an action on the covenant, it was of course the person injured by its breach. No breach had taken place in the lifetime of Harris; consequently no right of action had accrued to him which would survive to his personal representatives. If the present plaintiff had sustained an injury in being sued for the property in his own name, he had no right to sue in the name of the administrator of Harris to redress that injury; and if he had sustained the injury in truth qua administrator, why, then, it appeared that the injury consisted in the breach of a contract to which Vereen was a party as well as himself, and, therefore, Vereen should have joined him in bringing the action.
5. That at any rate, even if the plaintiff had a right to his election to sue in the present form or with his coadministrator, Vereen, yet he could not, by his election to sue in this form, defeat the operation of the statute of 1789, which commenced running immediately upon the breach.
It was further proved that a judgment had been obtained against Todd as administrator of said Cochran, upon which execution was issued, and was, by the direction of the administrator, levied upon the negro in dispute, then in the possession of the said Harris, who refused to give him up. What became of the levy was not shown, but Harris retained the possession of the negro to the time of his death.
The court instructed the jury, upon the first point, that if the evidence satisfied them that Todd, as administrator of Cochran, had, prior to the date of the bill of sale to Harris, surrendered up the property of Cochran to his distributees, of whom Andrew L. Gold was one, his recovery in his action against the plaintiff was not a recovery by paramount title, and the plaintiff could not recover in this action. On the second point the jury were instructed that the covenant in the bill of sale was a covenant for quiet enjoyment, and if they believed (444) the testimony, there was an eviction as would sustain this action. Upon the third, fourth, and fifth objections the jury were instructed that the plaintiff could maintain this action if the other questions were decided by them in his favor, and that the defendant was not protected by the act of 1789. *314
There was a verdict for the plaintiff, and a rule for a new trial having been discharged and a judgment rendered for the plaintiff, the defendant appealed. The first question for our consideration is upon the admissibility of the record of the court of South Carolina, to the authentication of which, by the clerk of that court, objection is made. That document purports on its face to be, not an abstract or extract of a part of the record of a suit, but a full memorial of all that was done in the suit, from beginning to end. It begins with the writ in trover, contains a declaration, a plea of not guilty and issue thereon, and the postea, setting forth the venire facias, the return of it to the court, the appearance and impaneling of the jury, a verdict for the plaintiff, and a judgment for the damages assessed and costs, and execution therefor, with satisfaction returned. To this is annexed, under the seal of the court, a certificate of J. R., the clerk of the court, "that the annexed are correct transcripts of the original proceedings filed in this office in the suit of William Todd, administrator, against William Lee"; and to that is added the certificate of the presiding judge of the court, "that J. R., who gave the attestation above set forth, is the clerk of the said court and keeper of the records thereof, and that that attestation is in due form." To this it is objected that the clerk's certificate does not state that the transcript furnished by him is a copy of the record of the cause between those parties, and it may be that this is only a transcript of a part of the record or of minutes of the court, not engrossed in the record. (445) But, it seems to us, the objection is overnice, and that the attestations are substantially in conformity with the act of Congress. The proceedings certified do not appear to be minutes or a portion only of what the court did in that matter, but in themselves import to be a complete history of a suit from its commencement to its termination. When the proper officer gives his testimonial that the annexed are correcttranscripts of the proceedings, we must suppose that they are transcripts of all the proceedings in that cause; in other words, of the whole record. But, however we might be disposed to cavil at the particular wording of this certificate, we must receive it, inasmuch as its correctness, according to the law of South Carolina, is vouched by the judge of the court, who certifies that it is in due form; and such certificate is made conclusive by the act of Congress. We, therefore, think the record was properly admitted.
We will next proceed to notice the other grounds taken on the part of the defendant. *315
The first depended merely upon a question of fact, which was left by his Honor to the jury, and with which this Court cannot meddle.
Next, it is said that the covenant of warranty of title in the bill of sale from Gold to Harris is but a covenant for quiet enjoyment, and was not broken by a recovery of the value of the slave in an action of trover by the true owner, because it was not an eviction. But, unquestionably, it is tantamount to eviction. It is a loss of the property by the covenantee, who is by a legal compulsion under a necessity to pay the value to the true owner, and thus purchase the same slave a second time. Upon a proper covenant of quiet enjoyment annexed to land, we held that an adverse possession under the better title was the same as eviction, although the bargainee was never in possession under his deed, and so was not actually evicted. Grist v. Hodges,
But it is further said that this action will not lie in the name of the administrator, because the breach, if any, did not occur in the time of the intestate. But the answer, is that although that rule (446) may be true as regard covenants relating to the freehold, yet in respect of debts, personal covenants, and, indeed, all personalties, the administrator fully represents his intestate, and may have all actions touching the same which the intestate himself might have had. The law assigns to the executor not only the property of the testator, but also all personal actions and the causes of such actions. Went. Off. Exr., 159. It is true, a covenant of this sort, touching a personal chattel, does not attach itself to the chattel, or run with it, as it is called, as a like covenant does with realty; and, therefore, the assignee of the personal property cannot sue on a covenant of warranty to his vendor. But if such assignee be evicted by title paramount, he may have recourse to his assignor; and the latter again, after making satisfaction, may fall back on the original vendor to himself to recover in damages what he has been compelled to pay by reason of the defective title warranted. Thus it is in cases of covenants of warranty in conveyances of land, where a second purchaser does not sue on the covenant of the original vendor, but is reimbursed by his immediate vendor; then the latter may recover from the first. Herrin v. McEntyre,
It was further contended that as the action of trover was brought against the defendant in his own right and not in the character of administrator, he must now sue in his own right, or, at all events, that he cannot recover in his name as administrator, for two reasons: the one, that no damage is shown to the intestate, because the recovery was paid out of the present plaintiff's own money; and the other, that if he can sue as administrator, his coadministrator in South Carolina should have (447) been joined with him. Our opinion is against the defendant, notwithstanding these objections, also. As to the form of the action in South Carolina, it could not have been otherwise. The plaintiff Lee had the possession of the negro, and, of course, the conversion complained of in that action was his conversion and not that of his intestate or, necessarily, that of his coadministrator. But he held the negro as assets of his intestate, recovered and left by the latter as a part of his estate. Although he was bound by the judgment to pay at all events, and out of his own money, the recovery therein made from him, yet, as between him and the estate, he was undoubtedly entitled to make such payment out of the assets, if he had sufficient in his hands, or to reimburse himself out of any that might thereafter come to his hands. As he could not sue himself, the law works the satisfaction between the person who had thus a claim against the estate and the estate; and, therefore, in substance and reality the damages were paid out of the assets, or reimbursed out of them; and it is immaterial which, for in either case the intestate's personal estate has sustained the damage for which this suit was brought. It follows that the suit must be brought by the administrator as such. Indeed, it is quite clear, as before mentioned, that personal covenants of this kind are not assignable but by act of law, as to the executor or administrator as such. Lee could not have sued, therefore, in his own right. Neither would it have been proper to unite Vereen, the other administrator in South Carolina, with him. If they were suing here for the negro himself, of which they had been in possession in their own State, they might have maintained an action by the two jointly, because there they declare on their own possession, and do not name themselves administrators or make profert of their letters. Leake v. Cilchrist,
Then as to the act of limitations of 1789 for the protection of administrators and executors, it is plain that it does not bar. The case does not state when the defendant administered. Its language is, that Gold died "shortly after" he conveyed to Harris, and that administration was "soon afterwards" taken by the defendant, which is too indefinite to found a bar of the statute. But if that was out of the way, the answer is equally complete that the present suit was brought within the same month in which the plaintiff took administration here; and the statute did not begin to run until that event. Grubb v. Clayton,
PER CURIAM. Judgment affirmed.
Cited: S. c.,
(449)