Jagers v. Griffin

43 Miss. 134

• Court: Mississippi Supreme Court
• Decided: May 15, 1870
• Status: Published

Opinion

Simrall, J. :

Assumpsit was brought by Win. H. Griffin, in the circuit court of Amite county, against the defendant in error, founded on a promissory note. The defendants below pleaded non assumpsit, and a special plea, setting up a failure of consideration. Demurrer was sustained to the special plea; whereupon the defendants gave notice of facts that would be offered under the general issue. Yerdict and judgment for plaintiff below. The errors complained of contest the correctness of the decision of the court on the demurrer to the plea, and the exclusion of the evidence offered, from the jury.

The second plea in this case is like that in other cases at this term of the court. The excuse offered for not returning the slave is the same as that in the case of McMillan and Wilkinson v. Jas. M. Causey, just decided.

The second error assigned is that the court ought to have received the evidence offered on the trial by the plaintiffs in error. The matter proposed to be proved was the same contained in the plea, with the additional facts that shortly after the purchase, the slave ran away, and that if an effort had been made to return the slave to plaintiff, he would not have accepted the return.

In the case of Ware v. Houghton, 41 Miss. R., 370, the court say the rule of diligence ought to be more stringent where the means of information are of record in the county ; and where title is deduced under a judgment or decree, easy of access and open at all times to examination, a party so deriving title is chargeable with notice of whatever appears of record. It is not necessary to push the doctrine to the extent of holding purchasers responsible, with a knowledge of whatever appears of record in the judicial proceedings under which the purchase is made, to dispose of this case. For this purchase was made January, 1861. McMillan, the purchaser, never knew of a defect of title in his life-time.

Defendants never knew of the defects until after suit brought, which was the 19th April, 1866. When McMillan died, does not appear. How long a time he had within which to examine the record, is not shown. But it was also proposed to be proved that if an effort had been made to return the slave the offer would not have been accepted by the guardian. This could not have originated until the rescisión of the contract was agitated. Nothing was ever heard about the imperfections of the title from any party connected with the sale, or the obligation to pay the price, until after suit brought in 1866. It were difficult to conceive how or why tlie guardian should announce that he would decline to receive the slave before there was so much as a hint to him from any of these parties, that the title was bad, and a rescisión desired; nor is it seen how this intention or purpose of Causey, the guardian, helps these plaintiffs in their excuse for non return. The offer to rescind, if made in due time, and for a competent reason, accompanied with a tender of the slave, works a rescisión. It re-invests the title in the ward and absolves the purchaser from the duty to pay the price. This effect is accomplished, although Causey may have refused to accept. A knowledge that the guardian would repel the effort to rescind by refusal, does not release from the necessity to make the trial, nor confer on the debtors the same advantages as if they had gone forward in the line of rescisión. The fact that the slave escaped shortly after the sale, should, rather than otherwise, have stimulated the purchaser to look into his title, if he had doubts of its validity. The plaintiffs in error are sureties for the purchaser, and because of this relation to him, they are no more entitled than their principal, to benefits from the points brought into litigation. Let the judgment of the circuit court be Affirmed.