Mahone v. Yancey

DARGAN, J. It is very clear, that Neal was not interested in the event of the suit. He had sold the slaves to Yan-cey, the defendant, but did not warrant the title, but on the contrary, conveyed only such right and title as he had acquired from Mims; and by the express terms of the contract, Yancey purchased the slaves at his own risk. Under this contract, the defendant could not possibly have any demand against Neal, although the title he acquired from him should fail. Mims, whose testimony was also objected to on the ground of interest, conveyed the slaves to Neal, in 1841, with a warranty of title to Neal, his heirs and assigns, and it is contended that he was interested, because, by the terms of his warranty, if the title failed in the hands of the assignee of bis vendee, that the assignee could charge him with the purchase money received from Neal, in a court of equity, if it [399] could not be done at law. It is very certain, that a covenant, (to use a technical expression,) will not run with a chattel at law, and that a vendee of a vendee cannot sue the original vendor at law, upon a warranty of title, although there be a recovery against the second vendee, by a title paramount to the title of the vendor. Salle v. Light’s Ex’r, 4 Ala. 700; 4 Iredell, 440. Whether the second vendee, either by bill in equity, or by using the name of his vendor, could, under any circumstances, charge the first vendor, who sold with warranty of title, it is not absolutely necessary to decide, and 1 therefore decline to express any opinion upon the point; for, if it were conceded that the first vendor could, by any proceedings be charged for the benefit of the second vendee, who had purchased with a mere quit claim, and who had no right of action against his immediate vendor, it must be apparent that the recovery against him must have been by a title adverse and paramount to the title of the (original vendor; or by a title derived from the original vendor, older than the title of the vendee. Or in other words, the title by which the recovery was had, must be one to which the warranty extended, and as against which he was bound to protect his vendee; otherwise the original vendor could not, under any circumstances, be made responsible. Testing the bill of exceptions by this rule, the circuit court did not err, for in order to show that Mims had any interest whatever, in the result of this suit, it must have been shown, that the title which was sought to be enforced against Yancey, was one covered by the warranty of Mims to-Neal. This is not shown by the record, and all persons not parties to the suit, areprimafacie competent witnesses, and he who objects to the competency of a witness, on the ground of interest, must show that the witness is interested. But we are not informed whether the title of the plaintiffs, by which he seeks to recover the slaves, was derived from Neal or from Yancey, or whether it was one covered by the warranty of Mims; and until it is shown, that the warranty of Mims covers the title, by which the plaintiff seeks a recovery, the question whether Mims was not disqualified as a witness, [400] because of his warranty to Neal, is not necessarily raised, and therefore is not decided. Let the judgment be affirmed. ChiltoN, J., not sitting.