28 Miss. 772 | Miss. | 1855
delivered the opinion of the court.
This is a writ of error to a judgment of the circuit court of Franklin county.
The error assigned is, that the court below erred in overruling the defendant’s motion for a new trial, which was sought to be supported on the ground that the damages were excessive, and the verdict in other respects contrary to law and evidence.
The action was brought to recover damages for an alleged breach of warranty as to the title of the defendant to a slave, which he had sold to the plaintiff.
The material evidence introduced on the trial to support the action, may be stated in few words. One witness states that he was present when the plaintiff paid to the defendant the sum of $250, which was understood by both parties to be in full payment for a slave named Jane, which had been sold by the defendant to the plaintiff. That defendant on receiving the money, delivered a bill of sale, executed by his wife alone, and not acknowledged as required by the statute, to the plaintiff
This is, in substance, the testimony, so far as it relates to the sale ; and the question is, as nothing appears showing that an express warranty was entered into by the defendant, whether the law will, under the facts, imply a warranty as to the title of the defendant to the slave sold to the plaintiff.
The rule is thus stated by Chancellor Kent: — “In every sale of a chattel, if the possession be at the time in another, and there be no covenant of warranty of title, the rule of caveat empior applies, and the party buys at his peril. But if the seller has possession of the article sold, and he sells as his own,
It is, however, said, that the case is taken out of the operation of the rule, with respect to an implied warranty of title, by the fact of the seller delivering the bill of sale of his wife to the purchaser, and thus disclosing his agency, or rather the name of his principal. If a feme covert can act by an agent at all in selling or transferring her title to her slaves, there is still but one mode by which such agency can be created; and that is by deed,
It is, therefore, wholly immaterial which position shall prevail. If he professed to sell his own property, then the law implies a warranty of title, and he is responsible in damages for a breach of this warranty. If, on the contrary, he professed to act as his wife’s agent in making the sale, he merely assumed a false character, and thereby obtained the purchaser’s money, without a shadow of consideration; and the money may, therefore, be recovered back under the count for money had and received.
Upon the whole case, it may be remarked, that if strict justice has not been administered in the court below, the plaintiff in the action, and not the defendant, has been the sufferer. The verdict, as modified by the court, is as reasonable as the defendant ought to have desired, and more so than justice demanded.
Judgment affirmed.