
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1809.
    M’Hugh v. Dinkins.
    Trover lies to recover damages fbr slaves obtained from the plaintiff' by the defendant, on the faith of a contract of sale, on condition, in writing, and partly executed, where it shall appear that the defendant is utterly unable to fulfil the conditions of the contract on his part; if' it shall appear to be the true meaning of the contract, that the property of the slaves shall not vest in the defendant, until the conditions shall be complied with,, notwithstanding possession has been delivered to the defendant, and although the plaintiff may ha^ an action of covenant.
    Jn such case evidence is admissible, to shew that, the defendant, either from ignorance and mistake, or Horn design, and with a fraudulent object in view, bound himself by covenants in the contract, to perform things not within his power, or the reach of his moans; and that in consequence thereof the plaintiff has been deceived and disappointed, without any fault on his part, and is entitled to a rescisión tof the con-, tract in teto, and a return of the slaves.
    Motion from Richland district, to set aside a nonsuit. Action of' trover, brought to trial before Bay, J. It appeared at the trial, that the negro slaves, for the conversion of which this action was . brought, belonged to the plaintiff, and that he -had placed them in the hands and possession of the defendant, in pursuance of a contract, in writing, and under seal, entered into by the plaintiff and defendant, dated January 4th, 1805, which contained, among other things, the following covenants. The defendant agreed to sell and convey to the plaintiff certain lots of land, and the buildings .standing thereon, in the town of Columbia, for which the plaintiff agreed to pay the defendant $5000. The slaves in question were to be paid, and received in payment,at the price or value of $11,000. It was stipulated, however, that the said slaves, though they were delivered to the defendant immediately, in part execution of the contract, that they should not be answerable for his debts; and it appeared from the whole written contract, taken together, that the intention of the parties was, riot that the property of the negroes should be immediately and absolutely transferred, but that the transfer should be conditional only, and should depend on the performance by the defendant of his part of the same contract. The balance of the consideration money to be paid by the plaintiff, was to be paid on the first of May next after the date of the contract; and $31 66, of it were to be paid to William Fitzpatrick, to whom the defendant was indebted. The defendant was to make a title to the plaintiff of the land, and to lodge the deed of conveyance as an escrow in the hands of Mr. B. Purvis, until the contract should be completed ; and he was to put the plaintiff in possession of the-bargained premises, on or before the first of May next then .ensuing. The plaintiff,’ after producing the deed which contained the agreement aforesaid, and after proving the same, and also proving the defendant’s acknowledgment, that the negroes were in his power and possession, and a refusal to deliver them up, offered evidence to prove that the defendant at the time of the contract was utterly unable to comply with the terms of it on his part. That the lots and houses which he had covenanted to sell and convey to the plaintiff, had been sold prior to the date of the said contract, by the sheriff of Richland district, under an execution against the defendant; and that at the time of entering into the said contract, the defendant had no right, or power, to sell and convey the premises. That the plaintiff was-deceived and imposed upon by the misrepresentations of the defendant, and the concealment of material circumstances affecting the said contract, which it was the duty of the defendant to have disclosed. It was intended upon this-evidence to have con*’ ten<^’ t^at transfer of the slaves in question was conditional only, and not absolute. That the right of property still remained *n the plaintiff; and that as the defendant was unable to comply with the terms of the contract on his part, the contract was at an end, and had ceased to bind the plaintiff | and, therefore, that he was entitled to reclaim the negroes, or recover damages for their illegal conversion, after a demand and refusal. The learned judge, however, being of opinion, that the action of trover could not be supported, that the remedy was mistaken, and that covenant was the proper action in such case, refused to admit the evidence of» fered. Whereupon the plaintiff was nonsuited.
    Bay, J., was of opinion the covenants were independent. That the right of property in the negroes vested in possession by the delivery to the defendant.
    Nov. 7,1807. This case was argued before all the judges, except Treüevant, 3,
    
    Hooker, for the plaintiff,
    in support of the motion. The evidence was rejected ; therefore it cannot be known whether the allegation of fraud was, or was not, true. If the allegation had been proven, the whole contract must be void. The court declared that the action was misconceived, and on that ground the nonsuit was taken. Though covenant would lie, it will not follow that trover may not also be maintained. But covenant would not lie in this case; and trover is the proper action. He referred to Esp. Dig. 285,538. The defendant has gotten possession of goods of the plaintiff, to which he has no just right, and refuses to restore them. The question is resolved to this. In whqpa is the right of property? The covenants are executory. The transfer of the negroes is conditional. Such a contract is lawful. It may be pru. dent, it may be necessary, to guard against fraud by such precautions. Covenant might lie to enforce the contract, and recover damages ; but in this case, the remedy would be ineffectual. The defendant is insolvent. The plaintiff has a right to insist on a re-scisión of the contract, either on the ground of fraud, or because the defendant is unable to comply with that part of it to be by hint performed. The terms of the contract authorize him to do so. The contract declares, “ that the property shall not vest so as to be liable to the defendant’s debts. It could not, therefore, vest, at all.
    Goodwin, on the same side.
    Covenant goes to confirm the contract; trover to disaffirm it. 4 Co. 242. Plaintiff may have a choice of remedies. The intent of the contract was, that no property should be absolutely transferred until the contract should be executed 
      in toto. The contract could not be executed, on the part of the defendant, who had notice by the demand of the negroes, that the plaintiff chose to consider .the- contract at an end. The defendants qualified property was thereupon discharged. He referred to 2 Bos. and P. 346. 7 D. and E. 65. 4 D. and E. 216, 5 do. 175. And insisted that property, not fairly and absolutely transferred, may be recovered in trover, or damages for the conversion.
    Nott, in reply.
    The plaintiff has no right to disannul the contract ; and therefore, according to the position of the plaintiff’s counsel themselves, trover cannot be maintained. The plaintiff cannot prove what he has suggested, that there was any imposition on the part of the defendant, or that he is unable to perform his part of-the contract. The contract was entered into with a full knowledge of all the circumstances relating to it. The defendant, by the terms of the contract, was to keep possession, at all events, of the negroes, till the other parts of the contract should be executed. Covenant is a remedy of a higher nature ; therefore trover will not lie. 2 Sir. 1028. Covenant would not so far affirm the contract as to vest the property of the negroes in the defendant, unless ac. cording to the true intent of the contract.
   May 6, 1809.

Bkevakd, J.,

declared the opinion of the court, after stating the case, and the points discussed in the argument. It was alleged, by the defendant’s counsel in'the course of his argu. ment, that the defendant is not justly chargeable with misrepresentation, or concealment in any thing material respecting the contract; and that he has always been able, and willing, to execute the same on his part. If this were indeed so, the plaintiff cannot be entitled to reeover.in this action, or in any other. But this argument turns on the assumption of facts, which were not proved. The plaintiff offered evidence to prove the contrary, which the court would not admit. The question is, whether this evidence was relevant to the case ? If it was so, it ought to have been admitted. If otherwise, it was properly rejected. We are of opinion the evidence ought to have- been received. The intention of the parties, to be collected from their written agreement, appears to have been, that the contract should be execu-tory and conditional, until finally executed in all its parts; and that the property to be transferred and exchanged, should not be transferred, or exchanged, completely, and absolutely, but upon condition that the whole contract should be fully executed, according to the true intent and proper construction of it. The whole scope of writing evinces this intention, as well as that particular part of which was intended to secure the negroes in question from th© cla™s of the defendant’s creditors. Equal caution seems to have k®en exerciseti by both parties. The defendant, on his side, takes care to insert a stipulation, that his deed of conveyance of the tenements to be transferred to the plaintiff, shall not be delivered to him until the covenants on his part shall be fulfilled. The deed is to be delivered to Mr. Purvis as an escrow. Is it credible, that the plaintiff did not intend an equivalent security on his part ? It is true the negroes are delivered into the defendant’s possession ; but this makes no difference, if the intent of such delivery was not to pass the property absolutely. It was a delivery pursuant to the terms of the written agreement; and the intention of the act is to be sought in that instrument, and ought not to be deduced from the mere circumstance of delivery. If then, it be admitted, that until the contract should be fully executed, no property should vest by this written executory contract, ■ or be transferred absolutely from' either of the contracting parlies to the other, it must follow that the defendant had not an unqualified right to detain, or hold the negroes-in question, as his absolute property. It remains to examine the-question, whether he could retain, after a demand, upon the ground of a lien, or qualified right, founded on the executory contract? There is no doubt, that if he was able and willing to perform his part of the contract, and there was no fault on his side to vitiate the contract, or render it void, or voidable, by the plaintiff, that he would be entitled to keep possession of the negroes; for his doing so would be in conformity with the true spirit and meaning of the contract; and he might claim in a Court of Equity a specific execution of the agreement. But if, on the- contrary, ho was unable to perform the covenants which were to be performed by him, or would not execute the contract on his part, it would seem hard and unjust to say, that the plaintiff should nevertheless be bound to perform the part of the contract by him undertaken to be performed. It would seem equally unjust and unreasonable to say, that because the party who is in fault, and will not perform his part of the contract, has obtained money or goods from the other party, who is not in fault, upon the faith of the contract, and in expectation of its perfect execution, should be entitled to retain the same ; or that he should not be liable to restore any chattels, or the value of them, which he shall unrighteously withhold from the true owner of them, although he may have obtained possession of them fairly, under & contract by which he might have obtained an absolute and indefea* Bible right to bold them against all the world. The plaintiff, at the trial, suggested, and offered to prove, that the defendant, either through design, or from ignorance, or mistake, had entered into covenants which he was unable to comply, with. If this had been ,. ini ii i . . /i proven, it would have appeared that the main object of the contract, as respected the plaintiff, was frustrated. That lie could not, from the fault of the defendant, whether his motives were fraudulent or not, makes no difference, derive the advantage from the contract W'hich,\vas expected and intended; and, therefore, that he had an unquestionable right to claim a rescisión of it in loto. If he had a legal claim to rescind the contract on this ground, he had a right to demand the negroes in question ; for the party in possession could justify his detention only upon the foot of the contract, and by insisting on a full execution of it. But unless he could show that he was able to execute the contract on his part, he certainly would not be entitled equitably, or legally, or upon any right principle, to hold the property under the contract, - against the claim of the rightful owner. Then if, under these circumstances, a man may reclaim the possession of chattels, as his absolute and rightful property, it cannot be disputed that trover is the most proper action, to obtain redress, where the thing in dispute is unjustly and unlawfully detained. In this case, it appears the negroes in dispute were demanded. This was evidence to show the intention of the 'plaintiff to disaffirm the contract, and reclaim his negroes. It was also evidence, coupled with the refusal of the defendant to give up the negroes, of an unlawful conversion. The right of the plaintiff to recover in this action, depended on evidence which the court refused to admit. We are of opinion the evidence should have been received, and that the right of property should have been determin* ed by the jury, upon a due consideration of the facts disclosed in evidence, and upon the sound principles of law applicable to the case.

In support of the doctriue here laid down, the following authorities are referred to. 2 Pow. on Contr. 196,203,412,406. 2 Ventr. £78. 5 Vin. Abr. 510. 4 Bosanq. and Pul. 144. 4 Dallas, 250. Pothier on Obligations, 14, 260. 2 Esp. Rep. 639. 1 Cain’s, .47. 1 Dali. 428. 2 D. and E. 100.

It has been contended, that covenant will lie in a case like this, tand hence the conclusion has been drawn, that trover will not lie. But this conclusion is not warranted by the premises. In many cases, a man has a choice of remedies. He may have an action Km the case, or trover. 2 Bl. Rep.. 1112. Debt or case, 4 Co» or covenant, Cro. Eliz. 797. Trover or trespass, ib‘ 824>

Nonsuit set aside, and new trial granted.  