Bradford v. Jenkins

Ellett, J., delivered the opinion of the court. The bill in this case was filed by the appellant, in April 18G6, to enjoin the sale of property under a deed of trust. It is shown that the appellee sold and conveyed a large quantity of land, and a large number of slaves, to the appellant, on the 1st day of January, 1851, for a price to be paid partly in cash, and the residue in four equal annual instalments, the last of which was to be paid on the 1st of January, 1861. The land was conveyed by a warranty deed, and the slaves by a separate bill of sale of the same date, by which the appellee, Jenldns, warranted “the title of the slaves against the claim or claims of any and all persons whatsoever, and that the same are slaves for life.” The same land and slaves were, on the same day, conveyed by Bradford to R. H. Hayden as trustee, to secure the deferred payments of the purchase-money, with a power of sale on default of payment. The main ground relied on in the bill for relief, is, that the slaves were warranted to be slaves for life, and that they have since been emancipated by act of the sovereign power of the State, and have ceased to be slaves for life, and that the consideration of the note remaining unpaid has thereby failed. A motion to dissolve the injunction on bill and answer, was sustained by the court below, and the complainant appeals to this court. It is contended, in the first place, that the warranty of title to the slaves has been broken by their subsequent emancipation. This proceeds on the idea that the warranty that the slaves “ are slaves for life,” means, in legal contemplation, that they shall continue to be slaves during the term of their natural lives. We ' do not so understand the contract. The warranty only under [335] takes to guarantee the status of the slaves as slaves for life at the time of the sale, and the covenant is fulfilled if, at the time of the sale, the slaves were, by the then existing laws of the State, in a condition which rendered them liable to servitude for the period of their lives. The title of Jenkins to the slaves is not disputed, nor is it intimated that he was not the absolute owner of them, and fully authorized to convey them. By his covenant he only became liable for the condition of things as at the time of sale, and did not warrant that the policy of the government on the subject of negro slavery would never undergo a change. Every owner of property holds the same subject to such action as the sovereign power of the State may, in the exercise of its ultimate sovereignty, adopt in relation to it-The risk of such action was upon Jenkins as long as he was the owner of the slaves in question, and it passed to Bradford when they were transferred to him. The warranty is in the present tense, that the slaves “ are slav es for life.” To hold that this is a covenant that they will continue to be slaves for life, at any subsequent period, would be to engraft upon- the contract of the party conditions and engagements to which he has never given his assent, and into which no sensible or prudent man would ever agree to enter. It might with as much force be argued, that the ordinary warranty of soundness will be Broken, if the property should subsequently become unsound, as to hold the -warranty of title to be broken by the subsequent emancipation of the slaves. Again, it is contended that -where a party agrees to do a thing which is lawful at the time, and it afterwards becomes unlawful by act of the legislature, the act avoids the promise, or, as it is expressed in some of the cases, “repeals the covenant.” This is a familiar principle abundantly sustained by authority, but its application to the case before us is not perceived. Jenkins did not contract to do anything which was lawful at the time, but which it has since become unlawful for him to do. If his contract was executory; if he had not parted with the title to the property, but had only bound himself to make title a.t a future period, the doctrine invoked would be applicable to the [336] case, and his obligation would be avoided or repealed; for it has now become unlawful and impossible to make a title to a negro as a slave. "What effect this would have in such a case, depends very much upon considerations discussed in the case of McMath v. Johnson at the present term. But here the contract of Jenkins has been fully executed, lie made complete and valid conveyances of the land and slaves to Bradford, in January, 185 Y, at a time when.it was perfectly lawful and proper .for him to do so. He warranted that the negroes were slaves for life at that time, and it is not denied that they were so. Nothing remained to be done by him, and he is not now under any agreement to do any act which it has become unlawful for him to perform. He parted with his property, and the appellant received it, and held and enjoyed it for over eight years, when, in some one of those mutations of policy to which all people are subject, and which have occurred in so many countries besides ours, the government chose to sweep out of existence all rights of property in the subject-matter of a part of this contract. The plain rule of right and law, in such cases, is, that the loss must fall upon the party who is the owner at the time. This is the rule when the loss occurs by accidental or natural causes, and there is no reason why it should not apply when the loss is by the act of the sovereign power. The contract of the purchaser to pay the purchase-money has not become one which it is unlawful or impossible for him to perform. The consideration of his promise has not failed, for he received all he contracted for — to wit, a good title to the property at the time of the sale; and he has had the enjoyment of it for several years. If he can now avoid the payment of the purchase-money, on the ground of failure of consideration, upon the same principle he might recover it back, if he had paid his notes at the time they severalty fell due. But again, it is insisted that it is against the present public policy of the State to enforce contracts based, in whole or in part, on the consideration of the sale of negroes as slaves, although such contracts contravened no law and no policy at the time they were made. [337] We admit that by the action of the convention August, 1865, abolishing slavery in this State, it has become unlawful to enter into any new contracts, since that date, founded on the idea of the existence of slavery as a lawful relation or status; but it is clear that before that date there was no law or policy that impaired the validity of such contracts. The provision incorporated in the constitution by the convention, recites that the institution of slavery has been destroyed in Mississippi, and it declares that “ neither slavery nor involuntary servitude shall hereafter exist in this State.” It is prospective in operation on the rights of property, and declares only the future policy of the State on the subject. Only such contracts come within the condemnation of this law, or its policy, as are entered into after its adoption, and which assumes the continued existence of the institution in the State. We cannot give to either a retrospective operation, so as to destroy rights vested by lawful contracts at a time when slavery was a cherished relation among us. The views already expressed sufficiently answer other considerations presented in the argument, which it is unnecessary to examine in detail. The case of Cummings v. Parish, 39 Miss. 412, disposes of the ohjection to the substitution of Christian as trustee. Let the decree be affirmed. Other cases involving the same defense, where the slaves were sold under an order of the Probate Court, by an administrator or executor, and where there was consequently no warranty of title, have been submitted to us, in which of course a similar decision is rendered.