Livingston v. Arrington

RICE, C. J. More than a quarter of a century ago, in Duff v. Ivy, 3 Stew. Rep. 140, this court decided, that a warranty of soundness, as well as of title, was contained in a bill of sale in the following words : “ Received of Abraham Duff three hundred and fifty dollars, in full payment for a negro named Chaiftty, which I warrant and defend unto the said Duff.” ' j (signed) “ Thomas Ivy.” The bill of sale which we are called on in the case at bar to construe, is in the following words: “ Received, this 16th day of January, 1850, of John S. Livingston, the sum of six hundred and eighty dollars, payment in full for the purchase of negro girl Malinda, which said negro I do warrant and defend to him, the said John S. Livingston, his heirs and assigns forever. In evidence of which, I have hereunto set my hand and seal, day and date above written.” (signed) “ Nicholas W. Arrington.” Our opinion is, that the warranty created by the words, “ I do warrant and defend to him, his heirs and assigns forever,” is not less extensive than the warranty created by the words, “ I warrant and defend unto him.” We cannot hold that the superadded words, “ his heirs and assigns forever,” operate in favor of the warrantor, to diminish the extent of his warranty. It is a salutary rule, applicable, as we think, to all such instruments as those above set forth, that a written instrument is to be construed most strongly against the maker; that when he has used in it language of doubtful or double import, it is to be taken in its strongest sense against him; and that, if it is capable of two constructions, it should receive that which is most unfavorable to him. — Hogan v. Reynolds, 8 Ala. Rep. 59. In view of this salutary rule, and of the fact that the decision made in Duff v. Ivy has been acquiesced in as the law of this State for more than a quarter of a century, and has [428] probably been acted on as a rule of property in many instances, we shall adhere to and maintain that decision. We hold, therefore, that the bill of sale executed by Arrington to Livingston contains a warranty of soundness, as well as of title, and that the court below erred in its first charge to the jury. We wish it noticed, that what we have above decided is in reference to the warranty of a slave — a personal chattelj and that we do not intimate that any thing we have above decided would be applicable to a warranty as to land. The rule, that a general warranty does not cover defects plain and obvious to the purchaser, applies only to defects which are external and visible, — such defects as the eye&an discover and enable the purchaser to comprehend^ That rule has no application to the defects of the slave Malinda, as the same are disclosed in the testimony in this record. — Parsons on Contracts, 459, note (i). The charges of a court must be construed with reference to the evidence. The second charge of the court in this case, when thus construed, is erroneous. We deem it unnecessary to notice the other questions presented on the record. For the errors of the court below, in its charges to the jury, its judgment is reversed, and the cause remanded.