Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-04-09

Opinions Of the supreme G0urs OF 1he Stmte
OF Tennesaees at Nashville, December
Term, Is5s.


Term, Is5Ss
III b grse as3 Wood Va Gavin ~ - 81.
II This VAS - action Of debt, founded opon an i'm
piled Esrtaaiy Of title 10 a slave brought into IN,
, Circuit Court Of Bedford on the lst day Of MAY
1856. Tee main question to be determine.t IS
whether or notthe action is barred BY the statut,
of limi'stiOu for six years 5i7sr .oi
On the 18th Of January, 1850, the defendant and
HE wife sold and COSY yei t. plaintiff, by bill
sale under seal, negro man named Tom, for the
consideration OF $500 90. And therein warranted
the slave 20 be sound. and slave for life but the
made no Warranty Of riile. The defendant, it il
admit 3D. in possession Of the slave at the time
Of the sale, and delivered bin TO the plaintiff.
4 On the / lth Of February, 1850, less THAI sr0ath
i after the ssle, one Sarah Bariett, to whom the
slave really belonged as il seems, Instituted
ton Of repleVn against the plaintiffs for bis re-
] eOVeTy. Aud on the sama day on which the snit
was commenced, the slave was taken BY the sheriff
D1der the writ Of repcyiu, and delivered 70 Mrs.
Burdett. whose tile was established BY the verdict
| and Judgment in the case. on the final Trial. 0R-
ing - the abssneso OF the defeuds1t beyond the lin
its Of this Safe, the Preseat suit was not sooner
4 commenced as IL is alleged.
! The jury were instructed, that notwithstanding
Che bill Of sale sileat as TO The title action
/ might be maintained on an implied warranty Of IL
ue and that the title TO he slave Ess 10 another
per- on at the time Of the sale, the implied
W was broken at the instant ii was mlde snd the
1
which The statute Of Limitations would begin 10 OP,
/ crate
As regards the sale Of personal properly the set
lied rule is, that If sells goods ehatteis
owner, being clothed with visible esEetshiP, or
possession the time of the sale be implicitly IN
dertakes and promises though netting be stirulsi-
ed or said GpOe the sabjeet-Jhst the goods chat
'e!s are his property; aud thar be has lawful right
to make the sale ADD transfer he proposes 20 nlaks
and if be were not the owner al the time Of the
sale, aud Tie property vas IN lhIrl person, Sho
subsequently, claims and depTives the purchs-
ser Of il, the seller viii be responsible in DAMAGES
for the breach Of such implied Undertaking Adds
son on Con. 1885,
T5is principle does not sppiy where the seller is
not IN possession Of the properly at the lime Of the
sale; nor where the person does bot sell as 0aer Of
the property; but in some special character
psciiy, and this is known 10 the purchaser La
such case, the purchaser is bound 10 look into the
title CT his vendor Id
Aud it is clear, tina. although the terms Of
written contract, though it be undsr SEAL do not in
themselves contain, or import, any express covenant
~ TO the tite yet the law, in order to give proper
force aud effect TO the contract and to discourage
dishonesty and bad faith will create and supply as
necessary result and consequence o. the contract
certain coTessns and obligations. which will bind
the parties as efeeiually as If they had been ex-
pressed in the strongest and most explicit terms.
ID 49, l.a @
This doctrine is not at variance with auy estab
lished principle Of the Law. Is is net adding new
term 20 the agreement Of the p1riies, in tho sense
Of The law; nor is i any Infringement OF the prin
eple that parol evidence is inadmissbe to enlarge
or vary the written agreement Of the partiS; be-
cause such implied covenant is regarded as in
herent term Of the contract not necessary to be
expressed, and having the same force IS if stated
in terms.
But, it is argued, that the Court erred in laying
down the rule. that if he property were not in the
Al,
enant Of warranty Wss broken when made, and The
plaintiff would have an immediate right Of action |
thereon The possession OF the slave having been 1
transferred to the purchaser 81 the time Of the
tract, it would seem 10 bs competent for him on /
ss;ertaining the fact that he title in third |
person, 70 reIudiste the cOntTsct, and return, or
offer to return, the properly to the seller; and i
theTeupon, without waiting 10 be dispossessed by /
the paramount title to institute his action for the
breach of the implied warranty. The implied stip-
ulation resulting from the contract that the prop
erty in the seller, and that he had lawful
light 10 make the sale and transfer thereof which
he assumed to make to the purchaser, is undOubt-
edly false, and, in view Of the law is broken the
instant it is made, II the title in a third per-
son. Aud upon the Possession being lest or, upon
voluntary Ctfer to restore it TO the seller in dis
lfirmanee of the fraudulent contract the pur-
chaser has an immediate and perfect right Of action
And q that instant the statute Of limitations will
attach, and begin to operate against the right Of
action Of the purchaser.
In the present case the defendant having no tile
10 the ave, The loss Of possesson-by the seizure
of the sheriff the writ Of reple Vin-Was safi-
,ienI TO enttle the plaintiff to maintain his action
The right TO sue then accrued, and perfect; and
rom that point Of time, the statute commenced TO
operate. If good title had been communicated TO
he plaintiff, BY The sae, Of course 3 wrongful dis
by the act OF third person, would
rave furnished no ground of aeIion against the
defendant.
As period of more than six years elapsed, from
he seizure Of tho slsve BY the sheriff before the
Of shis suit, it follows that the
plaintiffs action is barred.
In this view of the case it does not become
necessary 10 consider The objection taken to The
oTm Of the action. 1t mey be observed, hOssser.
bat the bringing Of action Of debt, was, 10 say
be least Of it, a very liberal application Of the
principle announced in the case Of Thompson vs.
french, 10 Yerg. 452
But, 80 that point is not necessary 10 the de-
erninsion Of the case, and the action fails on the
'lher ground We express authoritative opinion
ipoh the question.
Judgment affirmed. MCKISSEY.
correct copy J P. CLARK, Clerk.