
    
      Samuel J. Rice vs. Wm. Kennedy, adm'r. of S. W. Kennedy.
    
    In November, 1836, defendant’s intestate sold to plaintiff two negroes, with warranty of title. In March, 1837, plaintiff sold the negroes to C., from whose possession they were, shortly afterwards, taken, by one claiming by paramount title. In September, 1837, C. brought trover for the negroes; and the defendant, being notified of the suit by the plaintiff and 0., and required to sustain his intestate’s title, employed attorneys, who appeared and managed the suit. At Pall Term, 1843, the action was tried, and a verdict found for the defendant therein, which, on appeal, was sustained. In October, 1845, the plaintiff brought his action .against the defendant, for breach of his intestate’s warranty of title, and the defendant pleaded the statute of limitations. Held, that, by the conduct of the parties, the statute was suspended until the action of trover was ended, and the plea was overruled.
    
      ■Before RichaiidsoN, J., at Fairfield, July, Extra Term, 1848.
    This was an action of assumpsit, for a breach of warranty, as regards title, on the following instrument, to wit:
    “Received, of S. F. Rice, seven hundred and fifty dollars, in full, for a negro woman, Lilly, and child, James, which negroes I warrant slaves for life, and sound in every respect. Witness my hand and seal, November 2d, 1836.
    SAMUEL W. KENNEDY.”
    On the 1st March, 1837, Rice sold and delivered Lilly and James to Thomas Crawford, in whose possession they remained about three weeks, when they were taken, without his consent, by one John M’Elvey, who claimed them as the property of one Margaret Phillips, deceased, on whose estate he had administered. Crawford brought an action of trover, in Chester, to recover the value of the negroes. The action was commenced September 30, 1837, and was continued in Court until Fall Term, 1843, when a verdict was rendered for M’Elvey, the defendant. An appeal was taken, which, in December, 1843, was dismissed. By the verdict in that case, it was settled that the title to Lilly and James was in Margaret Phillips, at the time of the sale by Kennedy to Rice. Judgment, on the verdict, was entered up against Crawford, March 8th, 1844, and execution issued and lodged in sheriff’s office same day.
    The present action was commenced 30th October, 1845. The pleas were the general issue and the statute of limitations.
    It appeared that Kennedy died shortly after he made the sale to Nice; and that Rice and Crawford gave notiee to the defendant, who had administered upon the estate of Kennedy, that title was set up to Lilly and James, in Margaret Phillips — that Crawford had brought suit, in Chester, to try the validity of the claim, and that the defendant, in the present action, as administrator of Kennedy, must sustain the title of Kennedy. It further appeared that the defendant did employ attorneys to conduct the suit of Crawford against M’Elvey; that said attorneys did manage said suit; and that the defendant himself personally attended some of the Courts, in Chester, when the case was pending for trial.
    His Honor, the Presiding Judge, overruled the plea of the statute of limitations, and the jury found for the plaintiff $750, and interest thereon, from the 20th March, 1837.
    The defendant appealed, and now moved this Court for a new trial, on the ground that, according to the undisputed facts of the case, plaintiff’s cause of action accrued more than four years before the commencement of this suit, and, therefore, the plea of the statute of limitations ought to have been sustained.
    
      Boylston, for the motion.
    
      Buchanan, contra.
   Curia, per

Whitner, J.

The dissatisfaction with the Circuit decision arises out of the question made by the plea of the statute of limitations. The defendant having filed this plea, on the facts proved, it was overruled; and a new trial is now asked, because of error therein. This is the only ground of appeal.

In the review of the case, it will be assumed that, in the sale of the negro woman, Lilly, and child, by Samuel W. Kennedy, appellant’s intestate, to the plaintiff, Samuel F. Rice, there was a warranty of title, and, whether arising on the instrument of writing, or by implication of law, the result of the motion now submitted would be the same.

The report of the Presiding Judge sufficiently shows the facts of the case.

The failure of Crawford to recover, establishes that Kennedy had no title to the slaves at the time of sale; and the defendant, therefore, claims that the warranty, as to title, was broken as soon as made, and that, from the time of this breach, a right of action accrued; or, if the warranty assured quiet enjoyment, as well as seisin, yet, when the possession was disturbed, and title asserted by another, that this was such a breach of this contract as to give a right of action; and, failing to avail himself thereof within the statutory time, that the plaintiff had lost his remedy.

The plaintiff, at the time of his contract, of course reposed on defendant’s undertaking that his title was good, and that his enjoyment should be quiet, or that he, the defendant, would indemnify for any failure, whether partial or total.

When the possession of the plaintiff was intruded on, and an adverse claim set up, a legal test was promptly resorted to, for the purpose of ascertaining, with certainty, whether his title was valid, and whether this disturbance was by a mere ‘trespasser, or, in fact, by the legal owner. When he applied to the defendant, then standing as his warrantor, and gave notice that his title and possession had been assailed, the defendant, it is alleged, by his conduct in the issue between Crawford and M’Elvey, reaffirmed what was said by his warranty as to title — undertook to sustain it, and, at the same time, to punish thereby the wrongdoer for this invasion of Crawford’s rightful possession. Under defendant’s management, the conflicting claims were investigated — the contest protracted — and years elapsed; when, failing in the issue, he leaves the plaintiff to count the costs of his rashness, and claims that time had placed him beyond plaintiff’s reach. Such propositions shock one’s sense of fair dealing, and are, at least, enough to put the mind on anxious inquiry whether these are necessary legal deductions.

From the view taken of the case, this Court is relieved from most of the perplexing questions thus suggested, and from the necessity of imposing on the plaintiff any unreasonable onus in the prosecution of his remedy.

This relief is none the less acceptable to the Court because-afforded by the defendant himself. When he was notified of the suit of Crawford vs. McElvey, and of the issue involved, he did what it was entirely proper he should do.

Because of the contract of his intestate, and to save multiplicity of suits — to solve precisely the same questions, though affecting different vendors and vendees, (and these, it may well be perceived, may have been greatly increased in number,) these parties have done what is equivalent to a construction of their own contract, and fixed, as well the mode, as the contingency on which their respective rights should be determined. This defendant, therefore, being the first seller, and mainly concerned in sustaining the suit, stepped forward and assumed the position proper for the interests of all the parties, and these acts, in the opinion of this Court, amounted to an agreement to postpone and submit to the adjudication thus to- be had; and that legal eviction, therefore, should be the test of the breach of contract, and that, until thus ascertained, the respective rights of parties should be suspended.

, This may be regarded as analagous somewhat to a further promise to pay by a debtor, or to an acknowledgment of subordination of title by one in possession.

When the decision was thus had, from that time these questions were determined, and this party must be held to the consequences of his act.

The plea of the statute of limitations was, therefore, properly overruled, and the motion for a new trial is consequently refused.

O’Neall, Evans, Wardlaw, Frost, and Withers, JX, concurred.

Motion dismissed.  