Sumner vs. Gray, 4 Ark. 467

By the Court, Dicinriuo;!, J. We have looked into the cases upon this subject with much attention, and can find none precisely in point. The principles, however, which will guide us in this decision, will be found fully sustained in the adjudged cognmon law cases, and expressly decided by the civil law. The vendo^has suffered nO eviction in this case. He enjoyed the use and possession of the property, until its destruction. His title had never been disturbed, nor did he claim any indemnity for want of title in the vendor, by action for a deceit.

Upon what principle, then, either of equity or justice, can he be permitted to question his vendor’s title, after a providential contingency has happened, and deprived him, at once, of the enjoyment and possession of the property? The value «of his contract depended upon the happening of this contingency; and both he and the vendor took it into consideration, when the one purchased, and the other sold and delivered, the property.

It is too late for him, now, to turn round and say to his vendor, “you bad no Cue.5’ A bill in equity would not lie to rescind the contract, for want of title in the vendor, because it would be wholly impossible to place him in (he condition he was when he parted with his property. Why, then, shall the vendee not pay the purchase money, when he has enjoyed all the fruits and benefits arising from the sale ?

We apprehend the like consequence would follow, if they had remained in his possession, when they should have become useless from service, and he, in the mean time, derived no inconsiderable advantage from their labor. The contract of sale could only last during the lives of the slaves; and this contract he enjoyed to the fullest extent, for that fijne. We are aware that, in many of the English ' cases, there is said to be an implied warranty in the sale of a personal chattel. Still that principle, when correctly understood, has no application to the question now before us.

We hold the true doctrine in 1 this case, to be the rule laid down by Pothier, which is: if one, in " good faith, sells, and puts another in possession of, an estate, of which i he is not the true owner, and his want of title is afterwards discovered, : the vendee is not entitled to an action against the vendor, so long as i he remains undisturbed in his possession. This holds good, when the 1 seller parts with the property in good faith, believing it tb be his, which the law presumes until the contrary is proved.

But if he knew, at the time of the sale, that he had no title, an action of deceit would necessarily lie for bad faith. Pothier on Contracts, 27, 28. This principle of the civil law is certainly in accordance with sjtrict justice I and moral right; aiyl it is peculiarly applicable to the purchase of f slaves, whose value may be increased or lessened by providential circumstances, over which neither parly can have any control.

If a pur- / chaser would rescind a contract of sale, and so entitle himself to. a return of the money paid,.he must put the vendor in the same situation that he was in before the delivery of the article. Kimball vs. Cunningham, 4 Mass. 502. In Carr vs. Henderson, 15 Mass. 320, it is said that if the vendee does not return the property, or cannot put the party in the same situation, he elects to consider the contract as existing; and, in that case, if he is entitled to any redress, it is by way of damages for its breach.

Now it cannot be pretended, that, because an action will lie for deceit, for want of title, that a vendee, having undisturbed possession, can defend himself against the payment of the purchase money, and at the same time retain the property, and enjoy all the benefits of the sale. If that were the case, the vendor would not only lose the property, but be compelled to pay the price of it to the true owner. The doctrine, therefore, of Benton vs. Stewart, 3 Wend. 236, and Minor vs. Bradley, 22 Pick. 457, fully sustains the principle that a purchaser cannot treat the contract as void, if he retain the property.

How, then, if he cannot restore the property, can he be exonerated from the purchase money? In Tallmadge vs. Wallis, 25 Wend. 107, the court held that a plea of want of seizin in the vendor, who had conveyed real estate, with a covenant of seizin, is no bar to an action of debt on a bond given for the purchase money. To bar a recovery, upon the ground of a failure of consideration, the defendant must allege that he obtained no estate or interest whatever under the conveyance.

Now if this' is true as to personal actions, and as to the sufficiency of a plea questioning the consideration of the contract, it is undeniable that the same principle must govern in regard to the proof of a failure of consideration as to personal property. Does the vendee, in this instance, pretend to prove that he received no estate or interest in the property? Unquestionably not. His own evidence shows that he had an interest, and enjoyed the estate, during its whole continuance. The law will, therefore, hold him bound to pay the purchase money.

If a vendor fraudulently represents the goods sold to be his own, when he knows them to belong to a stranger, an action on the case lies to recover damages therefor, though the real owner has not recovered the possession, nor the vendee suffered any actual damage. 1 Show. 68. Sell. N. P. 482. The same matter may be admissible, by way of defence, for the purpose of reducing or extinguishing the claim to the purchase money. See 15 J. R. 250. 24 Wend. 102. Where, however, the vendee relies on the warranty qf title, express or implied, there must be a recovery by the real owner, before an action can be maintained.

This is in the nature of an eviction, and is the only evidence of the breach of the contract, in analogy to the case of covenant real, and is so expressly ruled in Case vs. Hall, 24 Wend. 102. It would be unjust to permit the vendee to retain possession, and enjoy the use of the property, and put his vendor at defiance. Possibly his title and possession may never be disturbed, or the seller might perhaps quiet it. The breach implies no bad faith, and is, therefore, compatible with perfect fair dealing between the parties. Judgment affirmed.