Phillips v. Evans

• Decision Date: 31 July 1866
• Citation: 38 Mo. 305
• Parties: PRESTON PHILLIPS, Respondent, v. WILLIS G. EVANS AND ISHMAEL VAN HORNE, Appellants.
• Court: Missouri Supreme Court

38 Mo. 305

PRESTON PHILLIPS, Respondent,

v.WILLIS G. EVANS AND ISHMAEL VAN HORNE, Appellants.

Supreme Court of Missouri.

July Term, 1866.

Appeal from Boone Circuit Court.

In the year 1857, the appellee, Phillips, sold and delivered to the appellant, Evans, a certain negro, named “Clara,” (on the 26th of August of that year,) for the sum and price of $1,050, and about the same time he sold and delivered to said Evans certain personalty for the ther sum of $____, which sums were added together, and the appellants executed their joint promissory note therefor. This note ran several years, and was finally renewed by adding the accumulated interest to the original amount, for a new principal, and a new note for such new principal was executed by appellants. At the proper time, the appellants filed their answer in this cause, admitting the execution of the note sued on, but setting up by way of defence, that, simultaneously with the execution of the note, the plaintiff, Phillips, (who is appellee here,) made, executed and delivered to the appellant, Evans, (Van Horne being merely surety on the note,) his bill of sale, (or rather deed of “bargain and sale,”) whereby he covenanted as follows: “which negro Clara I warrant sound and healthy, and a slave for life. I also warrant and defend the title of said negro Clara to said Evans forever,” &c. and assigning, as a breach thereof, that the said Clara was still alive though not a slave, by reason of the operation and effect of the “Ordinance of Emancipation,” passed by the Constitutional Convention on or about the 11th day of January, 1865, which made her a free woman, and destroyed the appellant's title to her; and on a further breach, that, by reason of the same event, the consideration pro tanto of the note sued on had failed, and asking a recoupment for so much of the amount claimed on said note, &c.

The appellee moved to strike out all that part of the answer setting out the covenant and assigning breaches thereof. This motion the court below sustained, and the appellants declining to answer over, judgment went for the full amount of the debt, interest and costs. The appellants filed their motion in arrest, & c., which was overruled; whereupon they tendered and filed their bill of exceptions, &c., &c.S. Turner, for appellants.

I. The Circuit Court erred in sustaining the motion to strike out. The practice act, it is believed, never contemplated that such motion would be resorted to in any case where a demurrer alone, under the ancient practice, would properly lie.

II. It is insisted that the bill of sale referred to in the answer (the material part of which is quoted above) must be construed with all the strictness of a solemn covenant--the words “bargain and sell,” “warrant,” and “warrant and defend the title forever,” being among the terms employed by the covenantor. The effect of this term is, and doubtless was at the time intended by the parties, to put the property conveyed (if property the negro Clara could be called) upon the footing of real estate, thereby subjecting the covenantor to all the liabilities that would attach to the grantor in a deed embracing covenants running with land. In the instrument under consideration, there are no words of limitation or restriction, and hence the appellee Phillips must be deemed to have covenanted against the acts of the whole world. The Court of Appeals of Kentucky have adopted this rule for the construction of covenants in which no restrictive terms are employed--Combs v. Fisher, 3 Bibb, 51; Redding v. Hall, 1 Bibb, 536; Hoffman v. Sharp, 1 J. J. Marsh, 489; Thompson v. Jewell, 1 Marsh. 196. See also a thorough discussion of s question in Singleton v. Carroll et al., 6 J. J. Marsh. 529. The appellee Phillips, by the terms of the bill of sale, meant, either that he “would warrant the said Clara to be a slave for life,” and that he “would warrant and defend the title to the said Evans forever,” in the sense above contended for, or he meant nothing at all. The language used is broad, comprehensive and simple. It is a general covenant, and is and was intended to be prospective. Its meaning is obvious, and it must be construed according to the plain and obvious meaning of its terms--Parry v. Burch, 3 Mo. 447. Nothing will discharge a covenant but a performance of it, or some act of the obligee preventing performance, or the obligee be guilty of laches, or execute a release under seal; otherwise, the covenant is not discharged, and if not discharged, it is broken; and if broken, the obligor must answer in damages-- Thompson v. Cox, 6 Mo. 506; 1 Mo. 707. He who in general terms covenants, &c., shall be held to keep his covenant.

It was insisted in the court below that Phillips did not mean or intend to warrant a future event--especially an event of the nature assigned as a breach; that he merely warranted the woman Clara to be then a slave for life; that when he warranted the title forever, he did not mean forever; that warranties of personal property contemplate the past and the present, and not the future-- Eden v. Parkinson, 3 Doug. 735.

It is objected, however, that the Emancipation Ordinance of January 11, 1865, was not the act of the appellee, and that, therefore, he ought not to be a loser thereby. Suppose at that date he had held the slave, would not he then have been the loser? If he sold her (as in this case) and warranted her to be a slave for (her) life, the money being still unpaid at the date of the ordinance, why should he not still be the loser--looking to the appellant for a fair compensation for the length of service she did perform, and no more? This argument of counsel, if it proves anything, proves too much; for it is assuming that one cannot covenant against persons other than himself, which, as a legal proposition, is absurd. But on the day last named, by competent and rightful authority, --by an authority which held a title paramount--the title which appellee Phillips warranted to stand “forever” was declared null and void, whereby the appellants were, so to speak, evicted. This sovereign act of the State of Missouri was either tortious or rightful. If the former, it is conceded that the answer in this case presents no legal ground of defence, since, in that case, there is no breach in the warranty. If the latter, we insist that the answer sets out a good, substantial and valid defence. Either the Convention had the legal power to pass this ordinance, or it had not. If it had such power, then the ordinance is valid and rightful. If it had not such power, then the ordinance is itself a nullity.Sheeley & Boulware, for respondent.

An answer that does not create or make an issue, or that presents a defence that is no legal bar to the action, can only be reached by motion--R. C. p. 1232, § 12, & p. 1236, §§ 30, 31. A demurrer will not lie in such a case. The causes for a demurrer are expressly given in the statute, and this is not one of them--Bond v. Worley, 26 Mo. 253.

In the investigation and argument of this cause, we are necessarily left in some respects in the dark. In the history of our country, no parallel case can be found. In all the States where slavery had existed and was abolished before the late rebellion, the abolition was by a gradual system, and the question could not be raised. The government of England made a compensated emancipation when the system was abolished in the West India Islands. We are therefore compelled to argue this cause by analogy. For the purpose of the argument in this cause, the power of the people to meet in convention and pass an ordinance of emancipation is admitted, and the power was known to exist at the time of the purchase of the negro, both by the seller and the purchaser. It has been expressly decided by this court, in Sloan v. Gibson, 4 Mo. 32, that a warranty of soundness covers a disease existing at the time, and not future diseases. This principle is fully sustained in the case of Price v. Barr, Litt. S. C. 217. A man, in the sale of a negro, warrants him to be sound in body and mind. Such a warranty has never been held to cover any disease that the negro may have had years before, but of which he had recovered at the date of the sale, nor has it ever been held to cover any disease that might be contracted after the date of the sale and warranty. The cases before referred to settle the principle that the warranty only covers diseases existing at the date of the warranty. Thus, a negro may be sold to-day and warranted...