
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1805.
    Murrell v. Administrators of N. Graham.
    If an agent, authorized to sell negroes, sells a negro which is not thes property of his principal, though in his possession, it shall not he considered an act within his authority.
    Evidence to prove an eviction of the thing sold, by the production ot a record, shall, not preclude other evidence to shew that the seller had naproperty in the thing-sold.
    Motion to set aside a nonsuit, and to obtain a> new trial. The' case was tried before Waties, J. in Sumter district. The action was assumpsit., to recover the value of a negro, which the intestate had sold to the plaintiff, and which plaintiff had re-sold to on© Garner; and which negro had been recovered by action of law from Garner, by J. Graham, and others. It. appeared in evidence at the trial, that one Simpson sold the negro in question to the-plaintiff by virtue of a letter ol attorney from N. Graham, which authorized Simpson to sell one of his negroes, without particularly designating any one negro ; and it appeared that N. Graham had at that time several negroes: and the negro m question was not proved to be the negro meant, unless by the presumption arising from the circumstance of his being then in the possession of N. Graham, though under the charge of Simpson. It further appeared, that when Garner was sued, he gave notice thereof io Murrell, to defend his title, but he took no trouble to do so. That after the recovery against Garner, he sued the plaintiff, Murrell, who then wrote letters to give-notice to the administrators of Graham, to defend his title; but it was proved that only one of these letters was served, or came to the hands of the defendants; and as they lived'at a distance apart, it was not proved that any, but one, had notice ; it was objected that only one had notice, and therefore that this notice was not sufficient. It was also objected, that the administrators of Graham should have been vouched in the first suit against Garner ; and upon this ground, the court refused to admit the verdict given in that suit, to be given in evidence in this. The verdict, also, in the suit brought by Garner v. Murrell, was rejected, en the ground, that sufficient notice thereof had not been given to N. Graham’s representatives. The plaintiff then offered evidence to prove that Nelson Graham had no property in the negro, wheiy Sold by him to the plaintiff, which the court rejected, ou the ground, that parol proof to this effect ought not to be admitted, after higher evidence of record had appeared ; and also because it would be improper to admit evidence to prove that Graham had no property in the thing sold, until it was first shewn that he had authorized the sale of the same thing, which had not been shewn in this case; for if Simpson was only authorized by him to sell one of his negroes, he was not authorized to sell as his, one that was not his property; and as there was no evidence to serve for the foundation of a be. lief that the negro in question was comprehended in the letter of attorney to Simpson, therefore it would be irrelevant to shew that N. Graham had no property The plaintiff was nonsuited.
    In this court, Richardson, for the plaintiff,
    cited 1 Domat, 79. Com. Dig. 10 Mod. 143. Not necessary for plaintiff to shew a lawful eviction to maintain this action, therefore other proof beside the records of a court, shewing an evictment, would be sufficient. If one mean of shewing that the plai .tiff had sold the defendant what did not belong to him, tailed, he was not thereby precluded from resorting to other means, or other species of evidence, for the same purpose. The evidence ot notice was sufficient in the case of Garner v. Murrell, because notice to one administrator, (if not to one executor.) is sufficient, and equal to notice to all of them,
    Falconer, for the defendants.
    There was no evidence, that the negro in question was intended, by the letier to Simpson, impow. ering bim to sell one ot N. Graham’s negroes ; and as the plaintiff asserts that N. Graham had no property in this negro, it is reason, able to presume, the power given to Simpson was not intended to extend to him. It would therefore have been in vain, to admit evidence of that which was not disputed, until it could be shewn that the sale was authorized by Graham. Therefore, the nonsuit was proper, and ought not to be set aside.
   The court,

(Grimke, Bay, and Brevard, Justices,)

were of opinion, the motion ought uot to be grauted, on the ground stated by the defendant’s counsel.

Wilds, J.

contra, thought the evidence arising from the presumption, that Simpson had pursued the authority given him, by selling this negro as Graham’s, from his being lead by Graham, who had the negro in his possession, to suppose he was his proper, ty; and from his not correcting the mistake afterwards, ought to have been admitted to go to the jury, in proof that Nelson had authorized the sale by Simpson.

Per totam curiam. The offering evidence to prove an eviction 0f the thingsold, by the production of a record, shall not preclude other evidence from being admitted, to shew that the seller had no property in the thing sold, at the time of the sale.

Motion refused.

Note. See 1 Domat’s Civil Law, 79, B. 1, Tit. 2, sec. 11: “ If the purchaser discovers that the seller has sold him that which belongs to another, and which the seller knew to be such, he may bring his action against the seller, although he be notas yet disturbed in his possession, to oblige him to remove the danger of the eviction; apd to recover the damages he may suffer by su,ch sale ” Sec. 30, L. After the buyer has intimated to the seller that he is sued, &c. the seller is boupd to warranty; but if he prejudices the .condition of his voucher, he cannot demand warranty against eviction.” Ib. Sec. L. 55,56. “ Eviction is the loss which the buyer suffers either of the whole thing that is sold, or a part of it, because of the right which a third person has to it.” D.omat, B. 1, Tit. 2, sec. 2.

If plaintiff, in trover to establish a property, offers written evidence, which ho fails in doing, he shall not be allowed to recur to, and rely on a mere possessory title — and parol eyidence of title is inadmissible. 2 Esp. It. 619. 
      
       It did not appear from the report of Watif.s, J. that N. Graham ever knew 6f the sale by Simpson, of the negro in question, to ilurrell If there was evidence given to that effect, 1 think it ought to have been suffered to go to thf¡ jury, to prove that Graham authorized the sale.
     