Livingston v. Bain

By the Court, Nelson, J. Iam of opinion the plaintiff cannot recover, for the want of consideration in the note. It is now conceded that Tobe was a free man at the time he was sold by the plaintiff to the defendant, and therefore no right or title to his services passed by virtue of the sale. The ignorance of all parties of the fact at the time could not make a free man a slave, much less authorize the sale of him. It cannot alter the legal rights of the parties, so far as the title of the plaintiff to the services of Tobe are involved, and the failure of consideration is the want of title to such services. I admit, in the case of personal property, the vendee in possession cannot set up a want of title in the vendor from whom he has received it, until a legal eviction or recovery against him by the lawful owner. 19 Johns. R. 77. But such recovery is a good defence to an action for the consideration, and if had after payment of the consideration, the money paid may be recovered back in an indebitatus assumpsit. Now, testing this case upon the principles applicable to personal chattels, (and that is the most favorable view for the plaintiff,) if there had been a recovery against the defendant by the true owner at the time Tobe asserted his freedom, there cannot be a doubt but such recovery would have been a good answer to this action. From the nature and necessity of the case, we should view the assertion of freedom on the part of Tobe equivalent to a legal eviction, especially when the plaintiff himself concedes the truth of the claim. He asserted his freedom in the only way in which he could, by emancipating himself from his servitude, and claiming and exercising the rights and priv [386] ileges of a free citizen. This legally and effectually put an ent¡ the title of ail parties to his further services. It is no answer to say that the defendant has had the benefit of his serv*ces a portion of the period for which he was sold. So has a purchaser of chattels the use of them from the time of the purchase till the recovery of the real owner. It is true the owner may in such case recover interest by way of damages for six years; and if Tobe cannot recover of the defendant for his services, it is the defendant’s gain, not the plaintiff’s, if wrong in the above position, I am of opinion the consideration of the note is illegal, and therefore the suit cannot be maintained ; it was given for the sale of a free citizen, as is now admitted, which is both illegal and immoral. Although the sale in this case may not have been immoral, as the parties were ignorant of the fact, still it is not the less illegal. New trial granted; costs to abide the event.