Sparks v. . Messick

Eodman, J. The argument for the plaintiffs requires the maintenance of three propositions : 1. That Messick, the executor, who sold the slave, had no title. 2. That he warranted the title. 3. That in consequence of the defect, the plaintiff, although .he continued to hold the slave from 1858, or thereabouts, until ¡her death in 1863, might rescind the sale, and refuse payment of the price. 1. It is not necessary to examine particularly the first proposition, as it is conceded. 2. The second requires-a little more consideration. It seems to be the law in England, that as a general rule, there is no implied warranty of title upon a sale of chattels. Morley v. Altenborough, 3 Ex ch. 500. But -this rule has been so limited by exceptions, that it has been said to have been practically “eaten up.” Broom’s Leg. Max. 767; Eicholz v. Ban *442 nister, 17 C. B. N. S. 708, (112 E. C. L. R.,) Baguely v. Hawley, Law Rep. 2, C. P. 625. That there is such a warranty, seems to be the general doctrine in the United States. 1 Pars. Cont. 574, and note e. on p. 575. Andres v. Lee, 1 D. & B. Eq. 318. But we think it clear, that where there is a written bill ot sale, which contains no warranty, none can be implied or proved, as that would be to add to the writing by parol. Van Ostrand v. Reed, 1 Wend. 424; Pender v. Forbes, 1 D. & B., 250. In this case the plaintiff speaks in his complaint of a “ pretended bill of sale;” and the defendants say there was a bill of sale for the slaves. Neither of them produce the bill of sale, or set out its contents, and it is not said to have contained any warranty. If it had, in fact, contained a warranty, the plaintiff ought to have so alleged with certainty; and it is fair to presume that he would have done so. And although it is stated by the plaintiff) that the defendant claimed the slaves as executor, it is not stated whether he sold in his capacity as executor, and professed to convey the estate of his testator, or in his own right. It might make a material difference, because, it is held that on sales by executors, administrators, &c., there is no implied warranty of title. Ricks v. Dillahunty, 8 Pars. (Ala.) 134. Bingham v. Maxey, 15 Ill. 295. If this were material, in the view we take of the case, we should be compelled to assume the fact, against the plaintiff; because it is his duty to state his case plainly and directly, and not leave important facts to be be inferred or guessed at. It is impossible to tell from the pleadings, with any precision, the date of the sale. It seems from the answer to have been in 1857 or 1858. Dashe, remained in possession of the plaintiff until her death in 1863, and her children so far .as appears, until their emancipation. We think that even if there was a warranty of title, which was broken, it cannot be allowed to a vendee, to keep the property many years, and until it is destroyed, and then to *443 rescind the contract and refuse payment of the price, upon the ground that the consideration has failed. He has received a substantial consideration, he cannot restore the vendor to his original condition, and by his delay, has forfeited whatever right he might originally have had to rescind the contract. Hunt v. Silk, 5 East, 449; Percival v. Blake, 2 C. & P. 514. He must be left to recover upon his warranty, if he can make one out, such damages as he may be entitled to. Per Curiam. Judgment affirmed.