16 Mo. 411 | Mo. | 1852
delivered the opinion of the court.
Edgar, suing for the use of Brent, commenced Ms action before a justice of the peace, again Morrison, upon a promissory note for one hundred dollars, which was payable to Brent.
Brent, by his agents, sold certain slaves to Morrison, for nine hundred and fifty dollars, of which eight hundred and fifty dollars was paid in cash, and the present note was given for the balance of the purchase money. At the time of the sale, a bill of sale for the slaves was made, in which a warranty was inserted, by which Brent warranted the “ title to said negroes to be good in the said Morrison, his heirs and assigns forever,«I free from all legal claims whatever.”
The justice having given judgment for the plaintiff, the case was brought by appeal to the Circuit Court, and upon the trial there, the defence was set up by Morrison, that, at the time of the sale, the title to the slaves was not in Brent. It was admitted by Morrison that, ever since the sale, he had had the undisturbed possession of the slaves. The Circuit Court decided against this defence, and the question now to be considered is, whether it is a valid defence to the suit, upon the present note.
Although this note had been assigned by Brent to Edgar, yet it was admitted that, at the commencement of the suit, Edgar was holding it for Brent; consequently, the question is one between Brent, the payee, and Morrison, the maker.
4» The case of Frisbee v. Hoffnagle has been questioned in Lloyd v. Jewell, 1 Grreenl. R. 355, and is understood to be overruled in New York, in several subsequent decisions, as well as by Vibbard v. Johnson. Whitney v. Lewis, 21 Wend. 181. Lamerson v. Marvin, 8 Barb. Sup. C. R. 9.
Although the decisions in other states are not uniform, yet the weight of authority is opposed to the defence attempted in this case, where the purchaser holds the undisturbed and undisputed possession of the property under the sale. The defence is essentially a denial of the consideration of the contract, upon which the action is brought, and it is but reasonable that a person who holds the possession of chattels, under a purchase, shall not be allowed to deny the consideration of his promise to pay for them, while his possession is not disturbed.
But it is insisted that the peculiar language of the warranty, in the bill of sale, binds Brent, not merely to defend the title to the slaves against all opposing claims, but amounts to a covenant of present right and title to the slaves, similar to the covenant of seizin in the conveyance of a tract of land, and
The judgment of the Circuit Court is, with the concurrence of the other Judges, affirmed.