Phillips v. Evans

| Mo. | Jul 15, 1866

Wagner, Judge,

delivered the opinion of the court.

This was an action commenced in the Boone County Circuit Court, returnable to the November term thereof, 1865, on a promissory note. In the year 1857, the respondent sold and delivered to the appellant, Evans, a certain negro girl named “ Clara,” for the consideration of one thousand and fifty dollars, for which he gave his promissory note, with Van Horne as surety. In 1861, the note, remaining unpaid, was renewed by the appellants, and suit was brought on the renewed note as above specified.

■ At the return term, the appellants filed their answer, stating that the note was executed for the purchase money for the negro girl “■ Clara,” and alleging that, at the time of the sale of the negro girl, the respondent made and delivered to Evans his written bill of sale of said negro, whereby he undertook and faithfully promised and warranted said negro “ Clara ” to be a slave for life, and also undertook and agreed “ to warrant and defend the title of said negro ‘ Clara ’ to said Evans forever.” The answer then averred, as a breach of the promise and undertaking on the part of the respondent, that the said negro “ Clara ” was not a slave for life; but that thereafter, to-wit, on the 11th day of January, 1865, by virtue of an ordinance abolishing slavery in Missouri, passed in convention on that date, the said negro “ Clara,” and all her children or issue, were manumitted and declared free. And that by virtue of the passage of the said ordinance, the title of the negro girl “ Clara,” and of her issue, was defeated and destroyed, and the appellant was thereby deprived of her and their services, by reason whereof, the consideration for which the note was given failed, &c. All that part of the answer setting up a breach of the warranty, and alleging a failure of consideration, was stricken out by the court, because it constituted no legal de-fence to the cause of action set out in the petition. The ap-péllants failing to file an amended answer, judgment was given for the respondent; and this is assigned for error here. It is contended first, that the court erred ill entertaining the motion, and should have compelled the party to resort to his demurrer; but the practice is well established, that a motion to strike out an answer which does not set up any legal de-fence to the action is proper—Sappington v. Jeffries, 15 Mo. 628" court="Mo." date_filed="1852-03-15" href="https://app.midpage.ai/document/sapington-v-jeffries-7998800?utm_source=webapp" opinion_id="7998800">15 Mo. 628 ; Niedelet v. Wales, 16 Mo. 214" court="Mo." date_filed="1852-03-15" href="https://app.midpage.ai/document/niedelet-v-wales-7998834?utm_source=webapp" opinion_id="7998834">16 Mo. 214 ; Barley v. Cannon, 17 Mo. 595" court="Mo." date_filed="1853-03-15" href="https://app.midpage.ai/document/barley-v-cannon-7999031?utm_source=webapp" opinion_id="7999031">17 Mo. 595.

The counsel for the appellant assumes that the agreement or undertaking to warrant the title of the girl Clara forever, and that she was a slave for life, amounted to a full covenant, and that she should always continue a slave, and that any act, from whatever source, destroying property in her, constituted such a breach- as would make the respondent liable over on his warranty. All warranties, however expressed, are open to such construction, from surrounding circumstances, and the general character of the transaction, and the established usage in similar cases, *as will make the engagement of warranty conform to the intention and undertaking of the parties—1 Pars. Contr. 576, 5 ed. Words of warranty should neither be extended nor contracted in their significance, but should be construed according to their fair and rational' meaning. The true rule governing in the construction of covenants of warranty, is undoubtedly to look into and ascertain the meaning and intention of the parties, if possible, by an examination of the context of the whole instrument. A party may, however, bind himself by covenant; where the law would absolve him from liability on the contract were it not for his express undertaking.

The question to be decided here must depend upon the meaning of the parties, after considering all the surrounding circumstances. The vendor sold the slave and covenanted with the vendee that she was a slave for life, and that he would warrant and defend the title to her forever. It is not denied that she was a slave for life at the time the sale was made and the covenant entered into. The state of slavery was her status at that time, made so by the laws of tbe land, and there is no pretence that there was then anything existing which tended to render the title defective, or to entitle her to freedom. The usual clause inserted in a bill of sale, in the conveyance of that peculiar species of property, was’ that the person sold was a slave for life; that is, that the person was made a slave by the existing law of the land, and the contract must be presumed to have been entered into with reference to that fact. It is in the very nature of the institution of slavery that it can only exist in a civilized nation by the force of positive law. When the vendor sold his slave, with a covenant that she was a slave for life, he intended nothing more than that the law at that time made her a slave for life. The covenant extended to all defects in the title, and was intended to protect the purchaser against them. But it cannot be presumed that the sovereign act or authority of the government, by which all title or property in slaves was totally annihilated, was in the contemplation of the parties. The emancipation of the slaves, by the sovereign act of the people, was neither anticipated nor thought of when the slave was sold in this case. It was not in the minds of the parties, nor embraced within the purview of the warranty. In case of sale and conveyance of real estate, when the vendor warrants the title, and covenants for peaceable and quiet enjoyment, should the property be swallowed up or destroyed by an earthquake, it will not be contended that such destruction would work a breach of the covenant, rendering the seller responsible. We are unable to distinguish the case supposed from the one presented here at bar. The Ordinance of Emancipation caused a complete annihilation or destruction of all property in slaves. It could not be controlled by the pax-ties, nor was it contemplated by them ; and clearly the covenaixt to warrant and defend the title to the negx-o, and that she was a slave for life, can.not, by any just constx-uction, be made to apply to such an occurrence.

The judgment of the Circuit Court must therefore be affirmed.

Judge Holmes concui-s ; Judge Lovelace absent.