49 Tenn. 37 | Tenn. | 1870
delivered the opinion of the Court.
On the 16th of November, 1864, Plouston brought this action of debt, in the Circuit Court of Bedford, agaiust McLean, the plaintiff in error, and one Nance, as to whom a nolle prosequi was entered. A declaration was filed according to the form in use before the Code, upon an instrument styled “a bill single,” to which the plea of nil debit was pleaded “in short;” and in his second plea, the defendant craved oyer of the bill single sued upon, which was set out in said plea, in the words and figures following, viz:
*39 “$1,025. Twelve months after'date, we or either of us, promise to pay Caleb P. Houston, executor of Miss Ann Guy, deceased, one thousand and twenty-five dollars, for value received. February the 20th, 1863.
“If. B. McLeaN, [Seal.]
“Richard Nahce, [Seal.]”
In his second plea, McLean alleged that the bill single was executed and delivered to the plaintiff, as executor of Ann Guy, for the price of a certain slave sold by said Houston, as executor of Ann Guy, deceased, at public sale; “that said Houston fraudulently represented to all persons at said sale, that he was the executor of the last will and testament of said Ann Guy, deceased, when in fact he had not proved the will of said Ann Guy, and given bond and qualified as such executor; which facts were fraudulently withheld from the bidders at said sale. Defendant further avers and says, that he never offered to return said slave to said Houston, because he did not know that said Houston had not proven said will, given bond and qualified, when he sold said slave as aforesaid, until the — day of -, 1864; and at that time, said defendant had no power or control of said slave; he had gone off, and was, practically, free, and could not be returned. He further states, that he was disturbed in his possession of said slave, who became a freeman. He further says that said Houston has never made him a title to said slave. Whereupon, defendant says that the consideration of said bill single has wholly failed. All of which he is ready to verify.”
The plaintiff, in the court below, filed a special demurrer to said plea, alleging, as causes of demurrer:
The demurrer was sustained at December Term, 1867, and thereupon, a jury was impanneled, who found for the plaintiff, on the plea of nil debit; and judgment having been rendered in his favor, and defendant’s motion for a new trial having been overruled, the latter prayed and obtained an appeal in the nature of a writ of error, to this Court. There is no bill of exceptions; and the only question here is, upon the validity of the second plea.
The plea does not contain any direct or explicit averment that it was represented by the defendant in error, that Ann Guy was the owner of the slave at the time of her death, or that he had authority under the will, or as her executor, to make the sale or to make the title; though it may, perhaps, be inferred that these propositions are embraced in the averments that ' the slave was sold by said Houston as executor, at the public sale, and that he fraudulently represented himself as executor, when, in fact, he was not legally authorized to act in that character. The substance of the plea seems
It is provided in the Code, section 1806,-that the want or failure, in whole or in part, of the consideration of a written contract, may be shown as a defense, total or partial, as the case may be, to an action brought by any one who is not an innocent and bona fide holder; and section 1804 provides, in its second clause, that “the addition of a private seal to an instrument of writing hereafter (thereafter) made shall not affect its-character in any respect.” Under these sections, but especially the last, which places a sealed instrument on
The section last quoted was construed by this Court, in the case of Ford v. Thompson, 1 Head, 265, which was an action of debt brought upon a note executed for a slave, sold with a written warranty of soundness and of good title, and the note assigned after it fell due. The defense was a failure and want of consideration, and the 'defendant offered to prove that the slave was diseased and unsound at the time of the sale; to read the bill of sale warranting title and soundness, and also to read a certified copy of a deed of trust executed by his vendor, prior to the sale, conveying the slave to a trustee for the benefit of his creditors. The Circuit Court refused to admit the evidence, on the ground “that the defendant still had the slave in his possession, and had not been disturbed in the possession of the same;” but it was held by this Court, McKinney, Judge, delivering the opinion, that “the exclusion of the evidence was erroneous, in every view of the case, but
That case, in its prominent features, is similar to, and in one particular, stronger than the present. There, the vendor had made a bill of sale warranting title and soundness; but here, the plea does not aver the existence of a bill of sale, and the warranty can only be inferred from the facts stated, from which it may be implied that there was a sale of the slave, by a person having the visible ownership and possession, who contracted that he had a lawful right to make the sale, according to the principle stated in Word v. Cavin, 1 Head, 508. In Conner v. Crunk, 2 Head, 249, it is said that “if redress. is sought against a party who has made no warranty, the difficulty is out of the way, and a tender of the property unnecessary as a pre-requisite.”
Without commenting upon the case of Conner v. Crunk, or the distinction drawn in the opinion, 2 Head, 248, 249, between that case and the case of Rosson v. Hancock, 3 Sneed, 436, in which latter case Judge Harris dissented ; and without reviewing the cases of Sample v. Looney, 1 Cooper’s Overton’s Temí. R., 66 - foot p., and the cases there cited by the editor, or citing further, the cases' in which the doctrine as to recoupment of damages has been considered, it is sufficient to declare that, under the section of the Code above referred to, and in accordance with the cases of Ford v. Thompson, and Conner v. Crunk, it is not necessary, where there was fraud in the sale of
Ve hold, accordingly, that because of the allegation
Upon the legal admission by the demurrer, of the truth of the plea, we hold, of course, that there was fraud in the sale of the slave, and remand the cause, to the end that the plaintiff may file a proper replication to the plea. There is nothing in the record to show under what circumstances the executor acted, or whether he was authorized to act by the parties really interested, or whether, after his qualification, there were any acts done by him and the purchaser, or either, to ratify the sale; and, upon these hypothetical questions, we indicate no opinion.