
    A. & G. Goodloe vs. White’s adm’r.
    
    A warranty that a negro, who was entitled to his freedom was “ a slave for life,” is broken as soon as made and the warrantee is forthwith entitled to an action for damages for breach thereof.
    White sold a negro to A. & G. Goodloe, and executed a warranty that the negro sold was a slave for life. The negro brought suit for his freedom and recovered it; whereupon this action on the case was brought against the administrator of White. The defendant pleaded the general statute of limitations and the statute for the protection of dead men’s estates. Dillahunty, J. charged the jury that the warranty was broken as soon as executed and the statutes began to run from the date of the making of the warranty. There was a verdict and judgment for the defendant. The plaintiffs appealed.
    
      N. S. Brown, for the plaintiffs.
    The main? question in this' case, is, as to the application of the statutes of limitation to the plaintiffs’ claim. If the statute of three years began to run from the time of the execution of the bill of sale, then I admit the plaintiffs are barred. But I insist that no cause of action occurred until the slave recovered his freedom in October, 1843, and the plaintiffs’ eviction — and before the expiration of three years from that period suit was commenced. Can it be said that a cause of action had occurred before the judgment of the court, pronouncing the slave a freeman 1 And if the plaintiff had commenced this suit at any time before the suit for freedom, would they not have been repelled by the plea, that the freedom of the slave had never been established by the judgment of any court, and that they still held him as a slave ?
    ■ The presumption existed at the time of the sale, that the negro was a slave; such presumption arose frota his color and from the fact that defendant’s intestate, used him and sold him as a slave, and until the contrary was established, there could be no breach of the warranty and no cause of action. Ga-plinger vs. ' Vaden, 5 Hum. 629; 9 Yer. 57.
    The interpretation applied 'by the court below to the clause of warranty in the bill of sale, is too restricted. It ought not to be confined alone to the time of its execution, but to look rather to any recovery of freedom by the negro upon grounds then existing. Whether he was a slave or not, is a question different from that of soundness and subject to different tests; an unsoundness might proceed from causes subsequently arising, so • the rule to be applied to it demands greater strictness. But as the civil rights of the negro are continuous, the one way ór the other, determinable only by judicial inquiry, and until then there can be no change of ownership or of possession, so until such decision and eviction there can be no breach of the warranty. If this distinction is well founded, the charge of the court below was erroneous and the judgment should be reversed.
    
      Wright, for the defendant.
    All the covenants in the bill of sale, except the last, are in the present tense — relate to things present — to the present condition of the negro, in body and mind — • that he is sound, a slave for life, and the title good. If any of these things were false at the time, there was an instantaneous breach and cause of action and the statute run at once. Scott et. dl. vs. Scott, Adm’r, 2 Mar. Rep. 217; Payne vs, Hadden, 4 Bibb R. 304; Lockwood vs. Sterdevant, 6 Conn. R. 373, (1 Conn. R. second series 373;) Hamilton vs. Wilson, 4 John. R. 72; Hatch vs. Barr, 1 Hammond’s Ohio Rep. 390 ; Davis vs. Lymon et. al., 6 Conn. R. 249, (1 Conn. R. second series, 249; ) 14 John. R. 248; 4 Hum. R. 68. These covenants are like the covenants of “ seisin” “power and right to convey” “free of encumbrances” &c., used in the sale of real estate, and if untrue there is an instant breach and cause of action. It is the sense and intention of the parties as evinced in the covenants that we are to look at. 6 Conn. R. 249 — 252. As the court held in Hatch vs. Barr, 1 Ham. O. Rep. and other cases, “ the common covenant of general warranty is in the future — that the grantor will warrant and defend the title.” It is, in effect, only for quiet enjoyment and relates only to the possession,' and there is no breach of the warranty or cause of action till eviction. Martin and Yer. Rep. 48, 58-61; 1 Sug. Vend. 606-607 and note, and 2 do. 93. ■The same rhle applies to personal, as to real property. It is the intention of the parties which governs. The only covenant there in the future is the last “and will defend the same against all others.” This may be so, but there is no breach assigned upon it. The case of Caplinger vs. Vaden, Ádrrür, 5 Hum. R. 629, is not ■at all like the present, and the rule there cannot govern here. That was evidently the covenant of general warranty and was in the future.
   .Tueley, J.

delivered the opinion of the court.

The intestate, Benton R. White, sold a negro man named Augustus, to the plaintiffs for the sum of six hundred dollars, and executed to them a bill of sale without seal, bearing date the 17th of April, 1833, in which is contained a warranty that the negro was a slave for life. On the 17th day of June, 1846, the plaintiffs brought an action on the case for a breach of this warranty against the defendant as administrator of White; to which he has pleaded in bar the several statutes providing for the limitations of actions, as well those made for the protection of executorsand administrators, as those for the limitation of actions, generally. Whether these statutes, or any of them, constitute a defence to this action, depends upon the period of time at which the law holds this contract of warranty to have been broken. ■ If it were broken as soon as made, the defendant is protected by the statute of limitations, but if it were not broken until the slave asserted successfully his right to freedom, he is not.

We hold, upon principle and authorty, that the contract of warranty was broken as soon as it was executed, and that the plaintiffs might have had their action thereon at once, and could have effected a recovery upon proof that the negro was a freeman. The warranty is in the present tense, that the negro is a slave for life; no eviction, if such a use of the term is allowable, is necessary to give a cause of action upon such a contract of warranty, it partakes of the nature of a covenant of seisin as to real estate; which has always been held to be broken as soon as made, and without eviction.

Why should the vendee be compelled to wait for the negro to assert his freedom before he can bring suit upon his warranty? It is a crime to keep him in slavery after he is ascertained to be free. It becomes his duty both in law and morals, in such event, immediately to discharge him from servitude, and seek his redress against his vendor; and, unquestionably, he may do so. Then his right of action accrues immediately. The statute of limitations commences running immediately, and it runs on, effectuating a bar to the right of action, in the time prescribed by statute.-

It may be the misfortune of the vendee not to ascertain the fact of the slave’s freedom in time to prevent the operation of the statute of limitations, upon his right of action upon his warranty, but that cannot alter the law. 4 John. Rep. 72; 14 John. Rep. 248; Mar. Rep. 217; 4 Bibb R. 304; Conn. Rep. 373; 4 Hum. 66.

We, 'therefore, affirm the judgment of the Circuit Court.  