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Johnson v. Jones.

It is well settled that a vendee who is in possession under covenants of warranty, cannot set up failure of consideration as a defence to a note given for the purchase-money, unless he has been evicted. Hoy v. Taliaferro, 8 S. & M. 727; Heath v. Newman, 11 Ib. 205. Yet he may defend at law for any fraud in the contract of sale, apart from, and independent of, any defect of title. Anderson v. Hill, 12 S. & M. 679.

The same general rule prevails in equity, in cases free from fraud, unless it be shown that the vendor is insolvent, which fact constitutes an exception that authorizes the interposition of equity. Wilty v. Hightower, 6 S. & M. 350; Vick v. Percy et al., 7 S. & M. 268; 5 How. 279. In this case the bill alleges that the vendor is insolvent, and the fact is not disputed. The fraud which is alleged might have been set up as a defence at law; having failed to make it in that form, the complainant cannot now resort to equity for the same matter. Thomas v. Phillips, 4 S. & M. 358. The only space open for him to occupy in equity, therefore, is the failure of consideration, coupled with the inability of the vendor to pay the damages which might be recovered upon his covenant. This ground, if there were no other circumstances to prevent, would be open to the principal debtor; is it equally so to the surety?

In Montgomery et al. v. Dillingham, 3 S. & M. 658, this court said, "the consideration does not pass to the surety. The obligation of the principal is the inducement to him. When the principal waives a defence, he thereby admits the validity of the consideration." Here there is no express waiver, perhaps nothing which could be construed into an implied one. Without a waiver, the doctrine may be somewhat doubtful. In Burge on Suretyship, 367, it is said, “If a person become surety for the price of an estate which another had purchased, and knowing that the purchaser had been evicted from the estate, pays the price to the vendor, the surety will have no recourse against the purchaser, because he could have avoided paying, by opposing to the vendor the exception arising from the eviction which the purchaser had suffered.” We need not decide this point at present, because, conceding to the complainant the right in this

Johnson v. Jones.

instance to file the bill, still there are obstacles in his way,

which cannot be overcome.

This bill is substantially for a rescission of the contract. It was filed in December, 1844. The original contract of sale was made in April, 1836; the first compromise between the complainant and the defendant was in February, 1838. In an application either for a specific performance, or for a rescission of a contract, there must be no unnecessary delay. If the applicant has been negligent, and there has been a change of circumstances affecting the contract in any material particulars, the court will not interfere. Upon a rescission of a contract, it is likewise the duty of the court to restore the parties, as nearly as possible, to the situation they respectively occupied, at the time of making the contract. Ayres v. Mitchell, 3 S. & M. 683; Liddell v. Sims, 9 Ib. 596; Fitzgerald v. Reed, Ib. 103. If, from the conduct of one of the parties, they cannot be placed in their original condition, the court will not rescind in his favor, and at his instance.

In all these respects the complainant has failed. There was a delay of several years before the filing of the bill, after he knew of the alleged defects of title, or after he might have known them, by the use of reasonable diligence. It is true the bill states that he had just come to a knowledge of the facts, but the answer shows that he must have known them long previously. If the objections to the title had been promptly made, it is very possible they might have been obviated in time to have met the approbation of the purchaser. The opportunity to do so had passed away before this suit was commenced.

By the compromise the defendant gave up to the complainant the original notes executed by complainant and Carman. The complainant took indemnity from Carman, which he now says has failed. If he had not made the compromise, the defendant might perhaps have obtained the indemnity for his own benefit, and by greater diligence have made it available; or he might possibly have secured it in some other way from Carman. All that is now impossible. The defendant gave up the claims upon Carman, and accepted the undertaking of the complainant.

Johnson v. White.

The court cannot, if it should rescind the contract, restore him to the position he then occupied.

By the compromise and the indemnity which he received, the complainant has precluded himself from going back to an inquiry into the original consideration. A mere renewal of the note might not have had such effect. Rentfrow v. Shaw, 4 How. 651. But the surrender of Carman's note, and the acceptance of another security in lien of it, was a sufficient consideration to make the guaranty so far binding, as to render it improper for a court of chancery now to interfere.

The decree of the chancellor is affirmed.

21 584 72 1023

JOHN JOHNSON vs. J. & H. H. WHITE.

The case of Agnew v. McElroy, 10 S. & M. 552 cited, and confirmed.
It is no bar to a second suit if the first action is incompetent, or if the plaintiff

mistake his character, or if the first judgment is given for faults in the de

claration or pleadings. A judgment on a pleading which does not go to the foundation of the action, is

no bar to a subsequent suit; the merits of the second action must be decided

in the first, to make the first suit a bar. In an action of trover, the cause of action accrues from the time of the conver

sion. When goods are tortiously taken, the statute of limitations begins to run from the taking, unless fraud is practised to prevent knowledge of their

taking. J. purchased from B. and wife negroes which belonged to the children of W.,

and claimed and exercised absolute ownership over them for three years : Held, that the sale to J. was a conversion, and in an action of trover by the children of W. against J. for said negroes, that the statute of limitation commenced running from the time of J.'s purchase.

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.

This was an action of trover, instituted in the circuit court of Yazoo county by the defendants in error, to recover the value of certain negro slaves. The same plaintiff formerly instituted

Johnson v. White.

an action of replevin against Johnson, for the recovery of the same negroes. To the action of replevin Johnson plead the statute of limitations; the plaintiffs replied that they had been infants until within, &c. To this replication Johnson demurred; the court sustained the demurrer, and dismissed the suit.

To the action of trover Johnson plead not guilty, the former recovery or adjudication in the action of replevin, and the statute of limitations of three years. On the first and last of these pleas the defendants in error joined issue, and demurred to the second. The court below sustained the demurrer, and pronounced the plea insufficient.

It was proved on the trial that the plaintiffs in the action of trover were children of one Asa White, who lived in the State of Louisiana, and who died there in 1829; that Cecilia White was the mother of plaintiffs, and survived their father; that the negroes in controversy were the property of Asa White in his lifetime, and in his possession in Louisiana at the time of his death; that after the death of White, Cecilia, his widow, married one Glasscock, and soon after separated from him, but was never divorced; that Cecilia during their separation came from Louisiana to her father's house in Yazoo county, and brought with her the negroes in controversy; that in 1833, and during the lifetime of her second husband, said Cecilia married or pretended to marry with one Winn. On the 22d day of November, 1833, Johnson purchased from said Winn and his wife Cecilia, for a valuable consideration, the negroes in controversy, and received from them their bill of sale. That said negroes had been in Johnson's possession, in the county of Yazoo, ever since the time of his purchase as aforesaid. There was a jury and verdict for the defendants in error for the full value of the negroes claimed, and their hire from the time the demand was made by the sheriff until the trial.

Instructions were asked by the plaintiff in error, which were refused by the court; and by the defendants in error, which were granted by the court.

The opinion of the court renders it unnecessary to notice said instructions.

50

VOL. XIII.

Johnson v. White.

R, S. Holt, for plaintiff in error, insisted,

1. That the court erred in sustaining the demurrer of the plaintiffs to the plea of a former recovery or adjudication, and cited Gould on Pleading, 477, 478; Roscoe's Civil Ev. 101; 1 Phil. Ev. 333; 10 S. & M. R. 552.

2. The court erred in giving and refusing instructions. To prove what was a conversion, he cited 1 Chit. Pl. 175; 15 John. R. 430; 10 Wend. R. 391; 14 Pick. R. 360; 8 Ib. 542; 4 Ib. 250; 2 Esp. Nisi Prius, 580; 5 Burr. R. 265 ; 2 Saund. Pl. & Ev. 892; 1 Smith, Lead. Cases, 415; 4 Maule & Sel. 260; 7 Port. R. 276, 466; 2 Tuck. Com. 878.

3. The court erred in refusing to grant a new trial.

Miles and Battaile, for defendants in error.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

The negroes sued for in this action of trover by defendants in error, were the property of Asa White, who died in Louisiana in 1828 or 1829, leaving his wife Cecilia surviving. He also lest three children, the defendants in error, and one other who is since dead. The ownership of White and the heirship of detendants are fully established. At the death of their father they were small boys, six or eight years old. There is no proof that administration was ever taken out.

The plaintiff in error claims the negroes by purchase. The widow of White married Glasscock, from whom she separated and brought the negroes to Mississippi. Glasscock died in 1834, but his wife had a pretended marriage before his death, to wit, in 1832 or 1833, with one Winn. In November, 1833, Winn, jointly with Cecilia, conveyed the negroes to plaintiff for a valuable consideration, who has had them in possession and claimed them as his own ever since.

The defendants in error had previously instituted an action of replevin for the negroes, to which Johnson pleaded the statute of limitations of one year, to which infancy was replied. To this replication Johnson demurred, and the demurrer was sustained, and the case thus disposed of. This former judgment

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