4 Ala. 700 | Ala. | 1843
The legal sufficiency of the entire declaration was brought to the view of the Circuit Court by the demurrer to the first count, taken in connection with plaintiff’s demurrer to the pleas, and we propose to consider the law, as applicable to every part of it. ' It may be premised, that the express covenant contained in the bill of sale of defendant, is nothing more than a warranty of title, and consequently confers the same rights and imposes the same obligation, and nothing more. To entitle the vendee to recover for a breach of such a contract, he must show that he has been deprived of the thing sold, by title paramount, though it is not necessary that he should alledge a deprivation of the property in these precise terms. - It is enough if the breach be stated in words of equivalent import. Thus in Day et al v. Chism, [10 Wheat. Rep. 449,] it appears the defendant covenanted and agreed by indenture with the plaintiff, his heirs and assigns, to warrant and defend the title to the premises described, against the claim of all and every person whatsoever, as his own proper right in fee simple. The plaintiff averred that the defendant “ had not a good and sufficient title to the said tract of land; and by rea
In respect to the effect of the recovery by Beale against Lazarus, it may be laid down generally, that in an action by the vendee of personal property against the vendor, upon a warranty of title, a judgment for the property against the vendee by a third person claiming to be the rightful owner, in a suit of : which the vendor had no notice, cannot be given in evidence
We have stated these principles as tests by which to deter
The second count is also defective. It deduces the liability of the defendant from the recovery of Beale against Lazarus, the satisfaction of that judgment by the latter, his reimbursement by the plaintiffs, and the notice of these facts by the defendant. If the plaintiffs had notice of the pendency of the action by Beale, and opportunity afforded to defend it, so that the judgment would have been conclusive of their want of title, then they might have discharged the judgment and sued the defendant. Such a state of things would have been equivalent to a payment under legal coercion. But even then, the question of title as between the plaintiffs and defendant, would be subject to the fullest examination.
It is perfectly clear, that the defendant’s covenant with the plaintiff, was a matter not assignable under any statute of ours, and did not enure so as to give a right of action to any one who might subsequently become the purchaser of the slave. Whether the plaintiffs, upon being vouched by Lazarus to defend his title, could have called the defendant to their aid, and thus have made the judgment in favor of Beale conclusive of their right to recover of him, after they had satisfied Beale, is a question which does not arise upon the record; and will not, consequently, be mooted. In addition to the grounds on which this Count places the liability of the defendant,it should
From what we have said it will be seen that the third count is palbably bad. It merely affirms, that the defendaht, at the time he made the bill of sale, had no interest in the slave, Ned, “ but the true property was in one James A. Beale.” This may all be true, and yet the defendants covenant be unbroken. There is no allegation of fraud on the part of the defendant to the plaintiff’s injury, nor is it even averred that Beale has at-te'mpted to enforce his title. It is difficult to conceive of a right to recover damages, so long as the enjoyment of the property . is unmolested. If the fact alledged be true, the plaintiff’s tes -I tator might have dissolved the contract by an offer to return) the slave to the defendant, and recovered the purchase money by suit, but it is not pretended such an offer was made, nor indeed can it be successfully.
It is unnecessary, after what has been said, to consider the effect of the arrangement between Lazarus and Mrs. Light, as evidenced by the writing. This will be discovered by an application of the principles stated. It may, however, be proper to remark, that if the plaintiffs can make out a right of action against the defendant, the release contained in that paper will not so inure to him as to defeat a recovery; but the measure of damages will not be the amount of Beale’s judgment — it cannot exceed the injury sustained by the breach of the covenant.
We will not undertake to examine the defendant’s pleas with particularity, as the pleadings will doubtless all be remo-delled, if the case progresses farther. The pleas, with few exceptions, cannot abide the test of legal criticism, and most of them were apparently intended to meet the form of allegation adopted in the declaration.
Our conclusion is, that the judgment must be reversed and the cause remanded.