Year: 1861

rms was sn action of Replevin for the recovery
ot 'nree horses, claimed to be the property of
Brown. and alleged to have been forcibfy taken
IRON ais possession Verdict and Judgment for the
4 The facts are these on the 4th az lima. Is57 a
contract was completed between the plaintiff Brown
and one Walter Parker rbyvhicb for tbe ALLEGED CON,
sideratlor OF nve hundreddelars. Brown sold and
70 Farkr aiot Of ground in the vicinity of
ShelbyVille, containing about two acres: the deed
for which executed and delivered at the time of Ehs
contract) contains covenants of seizn IaTvfl rics
10 convey, that the lot was unencnmber ed and Of
general warrantee, the Consideration for the lot
given by Parker, as the record shows, was three
horses. which were delivered by him to Brown. A.
the time of the contract leaving balance Of SIS.
due from Parker for the lot, and horse received
by him from Brown ar the same time; for which
balance Parker executed and delivered his note to
Brown. 1t seems that Brown had no title TO the lot
He represented truly, to Parker, that he had made
a verbal purchase of the lot from one Dudley but
had received from him neither deed, nor oo2d for


titles but he further falsely represented, that ne had
paid all the consideration TO Dudley, except SO.
Upon this representation of the state OF the facts Dy
Brown, Parker, believing it TO be true, agreed to
complete the contract, and 10 accept Browns deed,
with the proper covenants and rely for his indem-
nifty in regard to the title upon covenantin Browns
deed TO him.


In the course of q few weeks after the contract,
on ascertainng that, in fact, part Of the consd





for the lot; and, assuming that by this fraudulent
representation on the part Of Brown, the contract
was vitiated dbiai0. Parker, as it would seem from
the proof, resolved to abandon the contract and re-
claim the horses given by him to Brown for the lot
And accordingly about the 10th of July, 1857 in
the night, the stable door of Brown was broken
open the horses taken off, and early the next MORN
ing before breakfast time Parker took the horses
to the home of defendant Wood (whO is his father
in-lRw) and made some sort of tOlerable transfer
or sale of said horses to the defendant. Parker.
however. gave no intmatiOn TO Brown Of an inten-
tOn on his part to avoid the contract or to reclaim
his property neither did he give back, or offer to
give back, the horse received by him from Brown,
in the contract between them; nor did he demand
the surrender Of his note for SO, given to Parker
But simply by force, recaptured the horses, and
placed them in possession Of Wood, who from all
the evidence, we assume, had fun knowledge Of all
the facts and must, therefore, be considered as
standing in the shoes of Parker, regards the de
termination of this case.


Upon the foregoing facts the question to be de-
termined is did the title to the horses sued for,
in Brown, and continue in him. so as 10 entite him
to maintain the present action or, was the contract
put an end to- and lis title defeated, By the recap
ture of the horses, by Parker, under the eircum-
stances before stated?


Ii cannot be doubted that, IN the absence of fraud
the contract between Brown and Parker, was q
valid and binding one on bOtS parties.


Parker had full knowledge that Brown had no
title to the lot. And knowing this, he prudently
exacted from Brown covenant in the deed from
him amply sufficient for his indemnity. The eoven-
ants included the want defect of title. And, in
such case the law presumes that the covenants
were expressly taken for the protection of the pur
chaser against the defect, on want of title Rawe on
Covenant led. Of 1852 566, l22 to l2S.


The purchaser cannot. in such case, refuse TO
paw the purchase money nor can the vendor, in
suit against him on his covenant, avail himself OF
the purchasers knowledge Of the defect Of title.
The knowledge of the latter cannot destroy the
legal effect of the vendors covenant, 10. l24 ..
Such evidence Of knowledge on the part of the
purchaser has been excluded in some of the cases,
on the grounds first because the issue Of notice or
knowledge is an implaterial one, and secondly be-
cause it infringes the rule, that parole evidence
shall not be admitted to control or contradict the
effect of written instrument. ID. 15. Pick. 20 s,
Mass lac.


But it is clear, that on the ground Of the false
and fraudulent representation Of Brown, in respect
to the payment of the purchase money OF the lot to
Dudley Parker might have come into court OF
equity for rescission of the contract 10 toto, but
then, he must have restored the hire received by
him from Brown.


1t must be conceded. too, perhaps, that without
the interpesition of Court of Equity. Parker, on
discovery of the fraud, might have put an end to
the contract by offering to cancel the deed restore
the horse to Brown, and demanding his property,
and rescissiOn of the contract. And if this had
been done, it mEy be, that Parker might have re-
captured the horses, provided this could have been
done peaceably, and without trespsss upon the
premises Of Brown. 9, Hump. 6S9.


But it is clear that Parker could not hold on to
the contract in part, and abandon, rescind it, in
part. And, in as much, as the title to the horses
passed to Brown though subject to be detected, at
the election Of Parker, because of the fraud Yet
as nothing was done by which, in law would be
efectual to put an end to the contract the conse-
uuence is that Brown must still be regarded as
having legal, thougha defeasible title, to the
horses sued for il this action.


The Jury having been instructed differently; the
Judgment is erroneous, and must be reversed.


Judgment reversed. MCKINNEY.


A correct copy, J. P. CLARK, Clerk.