Baines v. Drake, 50 N.C. 153, 5 Jones 153 (1857)

Dec. 1857 · Supreme Court of North Carolina

50 N.C. 153, 5 Jones 153

ABSOLOM B. BAINES et al. Executors, v. JOHN H. DRAKE.

Where a slave is directed, in a will, to be sold after the expiration of a life-property therein, the executor is the proper party to make the sale, though not specially directed so to do.

Where power is given by a will to two executors to sell a slave, and one of them makes a parol sale, accompanied by a delivery, which is afterwards concurred in by the other executor, the authority is well executed.

Upon a special contract for the sale of a slave at a given price, in a suit brought for the price, the purchaser cannot give in evidence, that the slave was unsound and worthless. Ilis remedy is by action for a deceit or on a warranty of soundness.

AotioN of assumpsit, tried before SauNders, J., at the last Fall Term of Nash Superior Court.

The plaintiffs declared on a special contract for $900, the price of a negro slave Jack, whom one Jordan Slierod had bequeathed as follows:

“•Item. I lend to my grand-danghter Ohrischany Penelope Elizabeth Ann Strickland, one negro man named Jack, and one bed and furniture daring her natural life-time, and after her death to be sold and the money divided between my two sons, Silas Slierod and Eedmond Slierod.” A. B. Baines and Isaac Strickland were appointed executors, and they both qualified.

The slave Jack was delivered to the" legatee for life, who kept possession of him until her death, which occurred in 1856. Upon the death of the first taker, O. P. E. A. Strickland, the plaintiff Baines, acting under the authority conferred by the will of Jordan Slierod, took possession of the slave in question, and sold and delivered him to the defendant, at the price aforesaid, ($9D0) which the defendant agreed to pay.

The defendant offered to prove that Jack was utterly worthless, and of no value at the time of the sale ; that he had been unsound for years before the sale — -was sick at that time, and died of the same sickness a few days afterwards. The evidence was objected to by the plaintiffs and ruled out. Defendant excepted.

The defendant further contended, that the assent of the executors to the life-estate, took the whole property out of the executors; that they conveyed nothing to the defendant by the sale, and that there was, therefore, no consideration for the promise.

And further, that the power to sell the slave Jack was conferred by the will on both executors, and that the sale by one passed no property, so that in this point of view, there was no consideration for the promise declared on.

His Honor ruled these positions against the defendant, and gave it as his opinion, that the plaintiffs, on the facts adduced, were entitled to recover. Defendant excepted.

Verdict and judgmentfor the plaintiffs for the sum demanded. Appeal by the defendant.

Dortoh, for the plaintiffs.

B. F. Moore and Miller, for the defendant.

Battle, J.

There can be no doubt that it was the duty of the plaintiffs, by virtue of the power conferred upon them by the will of their testator, to take possession of the slave in question, after the death of the tenant for life, and sell him for the purpose declared in the will; Allen v. Watson, 1 Murph. Rep. 189 ; Dunwoodie v. Carrington, 2 Car. Law Repos. 469. The objection, that one of the executors could not alone make sale of the slaves, does not arise. It does not appear that a bill of sale was executed ; but on the contrary, it is to be inferred from the statement in the bill of exceptions, that the sale was made by a delivery of the slave without any deed. • This being so, it matters not whether the contract for the slave was agreed upon, and the actual delivery made, by one or by" both the executors, for if effected by one only, the bringing of the suit for the price by both, shows a concurrence by both, and that, in legal effect, it was a sale by both.

The testimony offered by the defendant, to show that the slave was, at the time of the sale, unsound and utterly worthless, was properly ruled out, because it was irrelevant and and could not have had any proper effect upon the issue. The defendant received the slave, and if he were unsound and worthless, the defendant must sue upon a warranty or for a deceit, if he can prove facts sufficient to sustain an action in either form. The case of McEntire v. McEntire, 12 Ire. Rep. 299, is directly in point against the defense now attempted to be set up.

Pee Cueiam, Judgment affirmed.