10 Wend. 384 | N.Y. Sup. Ct. | 1833
By the Court,
Iam of opinion the plaintiff cannot recover, for the want of consideration in the note. It is now conceded that Tobe was a free man at the time he was sold by the plaintiff to the defendant, and therefore no right or title to his services passed by virtue of the sale. The ignorance of all parties of the fact at the time could not make a free man a slave, much less authorize the sale of him. It cannot alter the legal rights of the parties, so far as the title of the plaintiff to the services of Tobe are involved, and the failure of consideration is the want of title to such services.
I admit, in the case of personal property, the vendee in possession cannot set up a want of title in the vendor from whom he has received it, until a legal eviction or recovery against him by the lawful owner. 19 Johns. R. 77. But such recovery is a good defence to an action for the consideration, and if had after payment of the consideration, the money paid may be recovered back in an indebitatus assumpsit. Now, testing this case upon the principles applicable to personal chattels, (and that is the most favorable view for the plaintiff,) if there had been a recovery against the defendant by the true owner at the time Tobe asserted his freedom, there cannot be a doubt but such recovery would have been a good answer to this action. From the nature and necessity of the case, we should view the assertion of freedom on the part of Tobe equivalent to a legal eviction, especially when the plaintiff himself concedes the truth of the claim. He asserted his freedom in the only way in which he could, by emancipating himself from his servitude, and claiming and exercising the rights and priv
New trial granted; costs to abide the event.