Gilchrist v. Marrow, 5 N.C. 607, 2 Car. L. Rep. 607 (1816)

July 1816 · Supreme Court of North Carolina

5 N.C. 607, 2 Car. L. Rep. 607

Gilchrist v. Marrow.

This cause was tried before Daniel, J. at Cumberland Superior Court. It was an action of covenant to recover damages for the breach a warranty of soundness contained in a bill of sale, whereby the defendant sold to the plaintiff “a girl slave, named Mary, about eleven years of age, sound and healthy, and do by these presents further covenant and agree to warrant the right and defend the title of the said slave,” &c.

On the trial, it was contended that the warranty related only to the title, and not to the soundness; but the Judge being of a different opinion, a verdict was entered up for the plaintiff. The defendant moved for a new trial, which was overruled, and he appealed to this Court.

M'Millan, for plaintiff, cited 6 Johns. 49. 10 Johns. 484.

Henry, for the defendant, cited Com. Dig. Covenant. A

Per Curiam.

It is contended by the defendant, that the only covenant contained in this bill of sale relates to the title; and that there is no other express covenant in the deed. We are clearly of opinion, that the following words in the deed contain an averment of a fact, and amount to an express covenant: “I have bargained, sold, and by these presents do bargain, sell, and deliver unto the said Archibald Gilchrist, one certain negro girl slave, named Mary, about eleven years of age, sound and healthy." These words are not as has been contended, barely words of description, but aver facts sufficient to maintain this action. The warranty of the title in the latter end of the bill of sale, does not destroy or interfere with the covenant upon which this action is predicated. The motion for a new trial must be overruled, and a Judgment entered for the plaintiff.

Cramer v. Bradshaw, 10 Johns. 484, is a case very much like the present.