Nixon v. . Lindsay

An estate in certain slaves had been limited by the will of James Collect to Mrs. Nancy king, for her life, and then to her children; in consequence whereof, upon the death of Mrs. king, which took place in 1851, her children became possessed of nine slaves as tenants in common. The children of Mrs. King who are living, are, Sarah, the wife of Joseph A. Sutherland, Elizabeth, the wife of William, Jones, and Ann, the wife of Frederick Pegge, the last mentioned of whom has sold his wife's interest in these slaves to Alexander H. Lindsay. Besides these, there was another daughter, Zelpha Nixon, in whom a fourth of this interest vested, but who died in the lifetime of her mother, and who left the plaintiffs, James C., Jesse H., and Zelpha A. Nixon, her (231) children and next of kin, who were infants, and to whom Dempsey Brown was appointed guardian. Being thus entitled, Wm. Jones, Joseph Sutherland, A. H. Lindsay, and Dempsey Brown, as guardians for the plaintiffs, agreed in writing under seal, dated 7th Jan., 1852, that S. G. Coffin, John Dorset, and Grafton Gardner, as commissioners, should divide the said nine slaves among them as the parties were severally entitled. They valued the whole nine slaves at $4,600, each share being $1150. In this division there were alloted to the plaintiffs, as the children of Zelpha Nixon, two slaves, Gabriel, valued at $750, and Mary, at $400. This valuation and division were reduced to writing, signed by the commissioners, and registered in the register's office of Davidson County. The negro woman, Mary, was sick at the time of the division, but it was believed by the commissioners, and others interested, especially by the guardian of the plaintiffs, that the disease was but temporary, by no means affecting her value; but it turned out, that she was at that time laboring under a deep and fatal disease, called the African consumption, which occasioned her death in about two months afterwards, notwithstanding the best skill procurable in that community, was employed to attend her.

There are allegations in the plaintiffs' bill, charging that the defendants, especially Jones and his wife, were aware of the extent of the woman's disorder, and that they concealed the fact from the plaintiffs guardian, and from the commissioners; moreover, that they fraudulently and deceitfully represented her to be sound, well knowing to the contrary. All of which matter is pointedly disputed by the defendants. They aver in their answer, that the plaintiffs' guardian was as well acquainted with the slave Mary as they, and much better than some of them who lived at a considerable distance off. Proofs were taken on both sides as to these points; but as their Honors, in making their decision, threw out of view the questions of fraud and diligence, it is not deemed necessary, or proper, to notice further the pleadings and evidence concerning them.

The bill prays that the several legatees shall be decreed to pay to plaintiffs a pro rata amount of the loss sustained by the (232) death of Mary; also a proportionate amount for the expense of nursing and medical treatment while she was confined.

The defendants, Jones and Lindsay, answer chiefly to the points above suggested, which have now become immaterial. The facts of the slave's ill health, of the fatal character of the disease, and of its permament [permanent] existence at the time of the sale, are not directly denied in either of the answers.

There were replication and proofs. The only part of the proof deemed important is the testimony of Dr. S. G. Coffin, who stated, "that he was one of the commissioners to divide the property; that as the parties had put their own valuation on the slaves, he did not examine into the state of Mary's health at that time; he had heard before of her sickness, and on the day of this partition, he heard Mrs. Jones say she had been unwell for some short time, but attributed it to exposure in sitting up with her mistress who had lately died; she then looked dull and stupid; in a short time afterwards, he was called upon to visit her, and found her afflicted with the scrofulous, sometimes called the African, consumption;" he says he attended her up to the time of her death, and is satisfied that "the first time he saw her, on the day of the division, she was laboring under the disease which terminated in her death in about two months, though he did not then suspect it."

The cause was set down for hearing upon the bill, answers and proofs, and was sent to this Court for trial. The bill contains an allegation that the defendant knew of the unsoundness of the slave, and fraudulently concealed it from the persons selected to make the division, and from the guardian of the plaintiffs; and, by misrepresentation and falsehood, caused them to believe that she was laboring under temporary indisposition, from want of sleep, etc., in attending at a sick bed.

(233) Without passing upon the proofs, we put this allegation out of the case; nor do we lay any stress upon the fact that the plaintiffs were infants, and according to Lord Coke, are not bound by the partition, unless it be equal. Coke Lit. 171 a.

The question is this: tenants in common of slaves, select commissioners who make partition; in the lot assigned to the plaintiffs is a girl, who, at the time of the division, was unsound, having an incurable disease, called African consumption, of which she died about two months thereafter; the tenants in common, and the commissioners, had no knowledge of this unsoundness, and all supposed the girl's indisposition to be slight and temporary, and she was valued at $400: have the plaintiffs an equity for contribution?

The plaintiffs are entitled to contribution, upon the broad ground of substantial justice, expressed in the books by the maxim "equality is equity." This conclusion may be supported upon two well-settled principles.

1. In partition of chattels, which is an equitable proceeding, a warranty is implied, not only of title, but of soundness; and the common law maxim "caveat emptor" has no application, being restricted (as the word"emptor" imports) to sales of chattels. In the conveyance of a fee simple estate in land, no warranty is implied; because there is no tenure. In partition of land, a warranty is implied; because of the privity of estate. In sales of chattels a warranty of title is implied; but there is no implied warranty of soundness, the maxim of the common law being "caveat emptor;" because it was thought some "play" (as mechanics call it) ought to be allowed, for the chaffering and exercise of individual judgment, attendant upon the traffic in such articles when the parties are at "arm length," and each is supposed to trade with his eyes open; so that in the absence of an express warranty of soundness, the purchaser of a chattel has no remedy except on the ground of deceit. This maxim, however, was peculiar to the common law. The civil law enforced a more refined morality, and acted on the rule, in the sale of chattels, "a sound price implies sound property." The common law maxim was confined to sales, where, as we have seen, the parties are supposed to be at arm's length, and no (234) authority or intimation in the books can be found, that it ever was supposed to extend to cases of partition. 1 Story's Eq. 221; 2 Kent 479; 2 Blackstone's Com. 451. Upon partition, the parties are in equalijure; there is supposed to be mutual confidence by reason of the privity of estate; and the object is to make an equal division of a commonfund. There is no chaffering or trafficking about it; third persons, selected by themselves, or appointed by the Court, make the division, and if the common fund is not as large as the parties suppose, either from defect of title, or of unsoundness as to part, the loss should be borne equally; in other words, in partition there is an implied warranty both as to title and soundness.

2. Where parties act upon a mutual mistake as to a fact, Equity will relieve, for the purpose of carrying, the intention into effect. Here, the intention was to make a fair and equal division. In consequence of a mutual mistake as to a fact. i. e. the unsoundness of one of the slaves, the division is grossly unequal; so that the share allotted to the plaintiffs, is of less value than the other shares, by more than one-third. Need any authority be cited to how that a Court of Equity will compel contribution in order to set the matter right, so that the loss may be divided? By way of familiar illustration: four boys have four apples; they divide; one of the apples. although sound outside, is rotten at the core and not fit to be eaten; will the others hesitate to make their comrade, who was so unfortunate as to get the rotten apple, equal, by each giving him a part of their's?

The plaintiffs are entitled to contribution for the estimated value of the slave, and also for the necessary and reasonable expense incidental to her last illness, and for loss of service; in regard to which there must be an account.

Per curiam.

Decree accordingly.

Cited: Cheatham v. Crews, 88 N.C. 39; Huntley v. Cline, 93 N.C. 461.

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