Morris v. Kenton

The judgment- of the court was pronounced by Eijstis,-C.- J*. By an instrument under-private signature, dated the 3d of July, 1840; at- New Orleans, the defendant sold the plaintiffs a tract of laud of one arpent front on the Pass of, Biloxi, in Hancock county, Mississippi, for- the sum of $l-O0O4u cash, and their, three notes-of. $500-each,-payable at one,-two, and three years from the date of the sale. This suit is brought for the recevei-y back of the purchase money and notes, and a further sum for an alleged eviction from the premises under a-writ issued from the-Circuit Court of Harrison county, State aforesaid, in a certain judgment rendered in a certain action of ejectment against one Elizabeth Curtis, at the suit of Doe ex dem. Holley, and Dorsite Richards. There was- judgment for the plaintiffs, and the defendant, has appealed., The only party defendant-to the action of ejectment appears tb have Keen Elizabeth Curtis. It does not appear that either-the plaintiffs, or the defendant, were parties to it, and there is- no evidence of any eviction- by process of law of the plaintiffs from the land which the defendant sold, and the title to which he- warranted; To make a vendor liable on his warranty, we und'erstaud, that'the purchaser must be evicted by some lawful authority. Cockerell v. Smith, 1 Ann. Rep. 1. We have nothing before- us which shows' that any judgment of eviction has been pronounced against them, or how their title is affected- by the judgment, against Etizabeth Curtis, whom we should judge to be-a nominal1 party. She was the- vendor to Kenton; the defendant, but had neither the ownership, nor was she in possession of the property on- which the judgment is said to have effect. It was incumbent on the plaintiffs to maintain and vindicate their possession against intrusion, and any force but that of the law itself; for which alone the defendant is-responsiblé. Pothier; Contrat-de Vente, §-83. Mackeldey, Droit Romain, 370. The judgment appealed from is therefore reversed, and judgment rendered, r for the defendant, with-costsinbotli-courts;