44 Ala. 171 (Ala. 1870), Fitzpatrick v. Hearne

• Citation: 44 Ala. 171
• Opinion Judge: PECK, C.J.
• Party Name: FITZPATRICK, EX'R, v. HEARNE.
• Attorney: FITZPATRICK & WILLIAMSON, for appellant. COX, WITCHER & RUGELEY, contra.
• Court: Alabama Supreme Court

Page 171

44 Ala. 171 (Ala. 1870)

FITZPATRICK, EX'R,

v.

HEARNE.

Supreme Court of Alabama

January Term, 1870

[ACTION ON PROMISSORY NOTE GIVEN FOR PURCHASE-MONEY OF SLAVES.]

APPEAL from the Circuit Court of Lowndes.

Tried before the Hon. JAMES Q. SMITH.

FITZPATRICK & WILLIAMSON, for appellant.

COX, WITCHER & RUGELEY, contra.

PECK, C.J.

The demurrer to the third plea should have been sustained; the matters stated in it constitute no defense to the action. The third section of the said ordinance No. 38, which refers to notes, &c., given for and in consideration of slaves, has been decided at this term, in the case of McElvain et al. v. Mudd, Adm'r, &c., to be unconstitutional and void. Ordinance No. 39, referred to, does not apply to such a case as this. Its objects and purpose are, to declare judgments on certain penal statutes void and inoperative, and that new trials should be granted on certain judgments, where meritorious defenses existed, except the latter part of the third and last section, which "declares that all judgments rendered in any of the courts of this State, against defendants, where the consideration was for the purchase-money or hire of a slave or slaves, are hereby declared to be null and void."

The case of McElvain et al. v. Mudd, Adm'r, supra, settles the question as to the validity of this part of said section. It is in violation of the constitution of the United States, and, therefore, null and void.--See article I, § 10, part 1, of that instrument. This disposes of the third plea, and shows that the demurrer to it should have been sustained.

2. The second plea raises the question, as to the lega construction and effect of the warranty set out in said plea, and whether it can operate to defeat the recovery of the plaintiff, either in whole or in part. The language of the warranty, as stated in the plea, is, "that the title of said slaves was warranted by plaintiff to defendant for the life of said negro slaves, and that said title failed, without fault on the part of said defendant." This warranty may be said to combine and contain two warranties--1st, that it is a warranty of title; and 2d, a warranty that the said negroes were slaves for life. This plea, although very in-artificially drawn, I am inclined to consider a good plea, in substance, and that the demurrer to it was properly overruled. A demurrer was not the proper way to present the question, that the plaintiff intended and desired to have settled. But as the question, if not disposed of now, will, no doubt, be made in the right way on another trial, and as it is a question greatly perplexing the people, I propose to go on and dispose of it at this time.

We know in what the breach of these warranties is supposed to consist, to-wit: that the institution of slavery has been abolished, and the slaves themselves emancipated by the government of the State, and of the United States. The question, therefore, arises, do these warranties protect the vendee, on the sale and purchase...