Morgan v. Patrick

7 Ala. 185 | Ala. | 1844

GOLDTHWAITE, J.

— 1. We think it clear that the judgment in this case must be reversed, upon the statement agreed .to by the counsel.

The principal question is whether the action of assumpsit is the proper one in the event that the ease of the plaintiffs was made out by legal evidence. This action is allowed wherever there is an express contract, not under seal, to pay money or perform a duty, or where one can be implied from the circumstances in proof. [Chitty on Plead. 93.] In this case, according to the facts agreed upon, the defendant sold to the plaintiffs a tract of land, knowing at the time it was incumbered by a judgment of which the purchasers were ignorant. There is no question, but that this was a fraud upon the purchasers? for which they had a remedy, although there might be no covenants of general warranty, or against incumbrances. Whereever there is a deeeit coupled with an injury, it is said an action on the case will lie — (Pasley v. Freeman, 3 Term. 31,) — and even where a warranty under seal is executed, it has been held in this Court, that an action may notwithstanding, be maintained upon the deceit. [Cozens v. Whittaker, 3 S. &. P. 322.] It is true, this was a case where the warranty and deceit was with respect to personal property; but the same rule is laid down as applicable to purchasers of land;— Cooper v. McLewry, Cooper, 308; 3 Coke on Litt. note, 381, a. — and is recognized in Cullum v. Branch Bank at Mobile, 4 Ala. Rép. 16. These citations, showing that an action on the case will lie on the fraud, whether there was or was not a covenant of warranty in the conveyance, are quite conclusive to prove that assumpsit is not the proper remedy in either case. In this case, however, it is impossible to know from the admissions of the party, whether the conveyance made by him was with or without covenant of warranty against incumbrances. If there was such a warranty it is clear that the party must resort to that, if he waives the deceit and proceeds upon the contract. [Dunn v. White, 1 Ala. Rep. 645.] Our opinion upon this part of the case is, that the action is misconceived and cannot be sustained under any proof of the facts stated.

2. We think it also very clear, that the admissions of the defendant were not evidence, either of the conveyance of the land by him, nor could they enable the Court to determine, that judgments in South Carolina are considered a lien upon lands. We must presume the common law to be in force Until changed by statute; by this, a deed is necessary to convey the title to lands; by it also, we know that lands are not bound by judgments. The rule is, that admissions, out of Court, are not evidence to establish deed or records. [Hasbrouck v. Baker, 10 Johns. 19; Jenner v. Joliff, 6 Id. 9; Cloud v. Patterson, 1 Stew. 394.] And the same rule applies with greater force to statutes, which ascertain the rules of law, or give rights to individuals. [Willard C. Co. v. Hathaway, 8 Wend, 480; Rinaldi v. Rives, 1 Stewart, 174.]

The result of this examination is, that the judgment must be reversed, and the cause remanded.