Lee v. Gause
| Decision Date | 30 June 1842 |
| Court | North Carolina Supreme Court |
| Parties | WILLIAM LEE, ADM'OR . v. BRYANT GAUSE, ADM'OR. |
To prove the record of a suit in South Carolina, the plaintiff introduced the certificate of J. R., clerk of the court, under the seal of the court, “that the annexed are correct transcripts of the original proceedings filed in this office in the suit of William Todd, Administrator v s. William Lee,” to which was added the certificate of the presiding Judge “that J. R., who gave the attestation above set forth, is the clerk of the said court, and keeper of the records thereof, and that said attestation is in due form;” Held that this authentication was sufficient.
Where in a bill of sale of a slave there was the following covenant: “which said negro I do hereby warrant and defend forever to the said John Harris, his heirs and assigns forever,” and after the death of Harris, the value of the negro was recovered from his administrator in an action of trover, by one having a better title than the vendor; Held that such recovery in trover amounted to an eviction, and, therefore, the covenant was broken.
Held also, that the administrator of Harris could support an action as administrator to recover damages for such breach, though the covenant was not broken until after Harris' death--and although the action of trover was brought against him personally, he having possession of the slave as administrator.
Nor could the administrator in this State have united in this action one who was a joint administrator with him in South Carolina.
In case of one dying intestate in another State, the statute of limitations does not begin to run, until administration is granted in this State.
The cases of Grist v Hodges, 3 Dev. 198. Herrin v McEntyre, 1 Hawks 410. Markland v Crump, 1 Dev. & Bat. 94. Leak v Gilchrist, 2 Dev. 73. Grubb's Adm'tor v Clayton's Ex'tor, 2 Hay. 378. Jones v Brodie, 3 Murph. 594, cited and approved.
Appeal from the Superior Court of Law of Brunswick county, at Spring Term, 1842, his Honor Judge NASH presiding.
This was an action for a breach of the covenant contained in a bill of sale, of which the following is a copy:
“Received, August 23d, 1833, of John Harris, sen., five hundred dollars, in full payment for a certain negro fellow called January, which I have this day sold and delivered to him, which said negro I do hereby warrant and defend forever, to the said John Harris, his heirs and assigns, forever. Witness my hand and seal, the day above written.
ANDREW L. GOLD, (Seal.)”
The facts were, that one Cochran died in the year 1830, upon whose estate one William Todd administered, in the State of South Carolina, in the same year, and took into his possession, as such administrator, the negro slave mentioned in the bill of sale above set forth, which slave was, at the time of the decease of the said Cochran, of his proper goods and chattels--that, some time previous to the date of the said bill of sale, the said negro came into the possession of Andrew L. Gold, who was one of the next of kin and distributees of the said Cochran, and, as was contended by the defendant, with the assent of Todd, the administrator, but, as contended by the plaintiff, without his assent--that, while so in possession of the slave, Andrew L. Gold conveyed him to the said John Harris by the said bill of sale, and shortly thereafter died, and administration was soon afterwards taken out upon the estate of the said Andrew, by the defendant, in Brunswick county--that John Harris remained in the undisturbed possession of the negro in question until his death, which took place in the latter part of the year 1834--that the said Harris resided in South Carolina at the time of his death, and had the negro then with him--that in the early part of the year 1835, letters of administration were granted in South Carolina to the plaintiff and one John Vereen upon the estate of the said John Harris, and they inventoried the said negro in question as parcel of his estate--that soon afterwards an action of trover was instituted by Todd, as administrator of Cochran, against the plaintiff, without naming him as administrator of Harris, for the recovery of the value of the negro, in South Carolina, in which a verdict and judgment were rendered against the present plaintiff, the defendant in that suit, for six hundred dollars, and execution issued thereon, which was returned by the sheriff “satisfied.” The transcript of the record in this case from South Carolina was certified in the following manner:
“State of South Carolina, Horry District.
I, Isaac Readman, Clerk of the Court of Common Pleas and General Sessions, do certify that the annexed are correct transcripts of the original proceedings filed in this office in the case of Wm. Todd, Adm'or vs. William Lee. Given under my hand and seal of office this 28th March, 1840.
+----------------------+
¦ ¦JOHN READMAN. ¦
+-------+--------------¦
¦(Seal.)¦C. C. P. ¦
+----------------------+
I, Josiah J. Evans, one of the associate judges of the said State, and presiding judge of the said Court of Common Pleas, do hereby certify that John Readman, whose signature is affixed to the above certificate, is clerk of the said court and keeper of the records thereof, and that the said attestation is in due form. Given under my hand at Horry Court-House the 31st of March, 1840.
JOSIAH J. EVANS.”
To these certificates was annexed the certificate of the Governor of South Carolina, under the seal of the State, that the said Josiah J. Evans was a judge as above set forth &c. It also appeared that, at December Term, 1838, of Brunswick County Court, the plaintiff took out letters of administration on the estate of John Harris, and immediately thereafter instituted this suit against the defendant; and that the defendant, soon after qualifying as administrator of the estate of Andrew L. Gold, advertised, pursuant to the act of 1789. The defendant objected to the reading of the transcript from the court in South Carolina for want of due authentication, but the objection was overruled and the transcript received in evidence. The defendant relied in his defence upon the following grounds: 1st, that the recovery in South Carolina had not been made against the plaintiff upon title paramount in the negro; because Todd, having assented to Andrew L. Gold taking the negro in question as a part of the distributive share coming to him from the estate of Cochran, had thereby parted with his right as administrator: 2dly, that the covenant contained in the bill of sale was for quiet enjoyment, and there was no evidence that there had been any eviction of the plaintiff: 3dly, that the act of 1789 was a bar to the plaintiff's claim against the defendant, as administrator of Andrew L. Gold: 4thly, that the action was brought by the wrong person; for, if any one had a right to bring an action on the covenant, it was of course the person injured by its breach; no breach had taken place in the life-time of Harris--consequently no right of action had accrued to him, which would survive to his personal representatives. If the present plaintiff had sustained an injury, in being sued for the property in his own name, he had no right to sue in the name of the administrator of Harris to redress that injury; and if he had sustained the injury in truth qua administrator, why then it appeared that the injury consisted in the breach of a contract, to which Vereen was a party as well as himself, and therefore Vereen should have joined him in bringing the action: 5thly, that at any rate, even if the plaintiff had a right to his election to sue in the present form or with his co-administrator Vereen, yet he could not, by his election to sue in this form, defeat the operation of the statute of 1789, which commenced running immediately upon the breach.
It was further proved that a judgment had been obtained against Todd as administrator of said Cochran, upon which execution was issued, and was, by the direction of the administrator, levied upon the negro in dispute, then in the possession of the said Harris, who refused to give him up. What became of...
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