
    *Parrish v. Parrish.
    March, 1841,
    Richmond.
    Witnesses— Competency —Interest— Release— Effect.— In trespass for taking: and carrying- away a slave, defendant claiming the slave as part of his father’s estate, of which he is administrator, to prove that title, offers his' brother as a witness ; and to obviate objection to his competency, on the ground he was interested as a distributee, shews a deed of the witness, whereby he conveyed to defendant, for valuable consideration, all his the witness’s right, title and interest in tile father's estate, anil warranted tile same free from the claims of all persons : Huld, that as the witness had parted with all his Interest In his father’s estate whatever that was, and had not warranted that the particular slave in question was part of that estate, he had no interest in the controversy, and was competent.
    Trespass, in the circuit superior court of Goochland, by David Parrish against Humphrey Parrish, for taking and carrying away a slave the property of the plaintiff. Pleas, not guilty, and the statute of limitations. At the trial of the issues, the defendant offered to introduce his brother, Kelson Parrish, as a witness to prove that the slave in question belonged to the estate of the defendant’s and the witness’s father, of whom the defendant was the administrator, and in that character claimed and had taken possession of'the slave. And the witness being a distributee of the father’s estate, the defendant to shew that he had now no interest in the slave, exhibited a deed from the witness to him, duly recorded in the county court of Louisa, whereby Nelson Parrish, the witness, in consideration of 47S dollars, bargained and sold to Humphrey Parrish, the defendant, “all his Kelson’s right, title and interest, of every kind real and personal, in and to the estate of their deceased father,” and warranted “the same free from the claims of all persons whatever.” The plaintiff objected to the competency of the witness, because he had conveyed *to the defendant his interest in the slave in question if he was parcel of his father’s estate, and had warranted his title by the conveyance. And the objection was sustained by the court, and the testimony excluded : to which opinion the defendant excepted. • Verdict and judgment for the plaintiff for 800 dollars. The defendant applied to this court for a supersedeas; which was allowed.
    Rhodes, for plain tiff in error.
    Lyons, for defendant.
   TUCKLR, P.

I am of opinion, that the judgment should be reversed, and a new trial directed. The action was trespass de bonis asportatis to recover the value of a slave. The defendant, Humphrey Parrish, insisted that the slave belonged to his father’s estate, of which he was the'administrator, and he called his brother Nelson to prove it. The objection to the competency of the witness was, that he was interested as a distributee; to obviate which a deed from him to Humphrey was produced, conveying all his interest in his father’s estate to him; so that he had parted with all interest as distributee. But in the deed, he gives a general warranty of all the right conveyed: and it is contended, that he is liable to make good the loss to Humphrey, if the plaintiff recovers, and so is interested in protecting the defendant by his testimony. I do not think so. If the defendant loses the slave, it will be because the witness’s father had no title to him ; and if he had not, then the witness had none, and so the conveyance and the warranty had no reference to that slave. Por he sold no specific property nominatim or by description; but only his right, title and interest in the estate. What he had no right, title or interest in, or what was in fact no part of the estate, he did not sell, and of course did not warrant; for the warranty cannot be larger than the *grant. Though the language of this warranty seems general, yet it is, in effect, but a warranty against the vendor and all claiming under him, of such right and title as he had in his father’s estate. He did not warrant this slave or any other property to be part of his father’s estate. On the contrary, the very terms of the deed, that he sold “all his right, title and interest,” exclude the idea of his selling any thing more than he had a right to, and of course exclude the idea of his warranting any thing. Then not having warranted the title of his father to this slave, he would not be responsible for his loss, and so is disinterested. The warranty was designed, not to insure the goodness of the father’s title, but to secure the vendee against any prior conveyance or incum-brance of his own right and title.

The witness was therefore improperly excluded, and there must of course be a new trial.

The other judges concurred. Judgment reversed, and cause sent back for new trial.  