Cowan v. . Silliman , 15 N.C. 46 ( 1833 )

The breach assigned was, 1st, the defect of title in the defendant at the time of the sale.

2d. The disturbance of the plaintiff's possession by the demand of one Alexander Silliman who had a title to the slave at the time of the sale.

PLEAS — Non est factum, and non infregit conventionem.

On the trial before Norwood, J., at ROWAN, on the Fall Circuit, 1831, the case was that the sale was made in June, 1818; that one Alexander Silliman then had title to the slave, and demanded possession of her of the plaintiff in the fall following, which was refused, and that, thereupon, he threatened to bring suit for her, but never had done so. The slave died soon after the demand, and this suit was commenced in March, 1826. His Honor charged the jury that the bill of sale contained a covenant of title, and in legal construction a covenant that the defendant had title in the slave at the time of the sale. That if the covenant was for quiet enjoyment only, the demand of Alexander Silliman was a disturbance of the plaintiff's possession which gave him a right of action, as by that demand his possession was rendered adverse, and Alexander Silliman might charge him with the value of the slave, notwithstanding her subsequent death. And further, that the fact of Alexander Silliman's not having brought suit against the plaintiff for more than three years after his demand, was no defense to the present action, because, as the (47) slave died in the same year, the plaintiff could not have had an adverse possession of her, which, under the act of 1820 (Rev., ch. 1055), would have given him a title.

A verdict was returned for the plaintiff, and the defendant appealed. The view which I take of this case differs almost entirely from that of the Judge of the Superior Court.

Regarding the covenant as one of title, the plaintiff was, as I conceive, entitled to recover only nominal damages; for such only he sustained. The slave, herself, could not, if alive, be recovered from him; nor could damages for the conversion. Every action by Alexander Silliman, the owner, was barred by the statute of limitations before this suit was brought; and Wilson v. Forbes, 13 N.C. 30, is in point for the defendant.

If the covenant be for quiet possession, I think it has not been broken. In the Superior Court it was held that the demand of the owner was a breach because it rendered the present plaintiff chargeable in an action for the value. That cannot govern the case, because he was so chargeable without demand, upon his purchase, possession and claim of property; or, at all events, would have been by sale, which would have been of itself a conversion. This would be to sink the distinction between a covenant for title and that for quiet enjoyment.

That a warranty of chattels, constituted in this deed by the words "warrant and defend," is a covenant for quiet enjoyment, is a settled rule in this State. It has been understood by the profession too long, to admit now of a question. Hence, upon eviction, the value at that time is the measure of damages. It is familiar doctrine in reference to land, that suit and even recovery, is no breach, unless the loss or disturbance of possession follows. I had thought it equally so in relation (48) to chattels. The reason is the same. The covenants respect the possession. The opinion of the Court is, that in holding a demand by the owner of the slave, to be a breach of the covenant for quiet possession, the Superior Court erred.

It is further contended for the plaintiff, that besides the covenant for quiet enjoyment, created by the words "warrant and defend," the words "warrant to be good sound property," make a covenant of title, or for the property in the slave. It is, however, the opinion of the Court, that those words relate to the state and quality of the slave, and not to the title. After them follows, "and healthy"; which shows the meaning. There are not three covenants in the deed, but two. Both begin with "I do warrant"; and a part of the latter expressly includes the health of the slave. It is not to be taken, that with the latter, would be mixed a stipulation respecting the title, which would have naturally connected itself with the preceding. But"sound" interposed between "good" and "property," clearly affixes the proper meaning to the whole. We may say "good property," when speaking of the title, but we never say "sound property, and healthy," in respect of anything but the condition of the subject of the contract. "Property" is here used for "negro," or other description of thing sold.

We think this is the proper construction of the deed, and that the plaintiff cannot recover. This conforms too, to the justice of the case; for Alexander Silliman never brought suit, and the plaintiff enjoyed the slave as long as she lived, and now seeks to throw on the defendant the loss, which arose not from the better title of another, but by her death. There must be a new trial.

PER CURIAM. Judgment reversed.

Cited: Webster v. Laws, 89 N.C. 229; Hodges v. Wilkinson, 111 N.C. 59,61; Britton v. Ruffin, 123 N.C. 69.

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