#### Ayres v. Parks, Adm'r of Humphries.

I From Iredell.

Where words, importing a warranty of soundness, are inserted in a conveyance of slaves, the Court will not consider them as a bare affirmation, which does not amount to a warranty, unless it appeals in evidence to have been so intended, but will deem them part of the contract, as otherwise they w'oultl not have been inserted. These words, viz. “ all the above named negroes are sound, healthy and clear of disease, and slaves forlife, and warranted and defended from - all manner of claims whatever,” contain a warranty of title, and a warranty of soundness sufficient to support an action.

This was an action of covenant upon a warranty in a hill of sale of negroes, brought to recover the value of one of the negroes, Peggy. The bill of sale was as follows.

“ Received of David B. Ayres, seventeen hundred and fifty dollars, “in full satisfaction for three negro girls, namely, Swkey, Peggy and “Jane. All the above named negroes are sound, healthy and clear of “ disease, and slaves for life, and warranted and defended from all “ manner of claims whatsoever. Given under my hand and seal, this, “ 16th November, 1818.”

Two grounds of defence were taken below $ first, that the bill of sale contained no warranty of soundness, and secondly, that if the covenant did amount to a warranty, it was obtained by fraud. The unsoiuidness of Peggy *60was an extraordinary bleeding at the nose, to which she had long been subject, and of which she died, within a year after Plaintiff bought her. It was in evidence that the bill of sale was written by the Plaintiff, and when presented to the Defendant’s intestate, she refused to sign it, unless the bleeding was excepted; the Plaintiff refused to receive a conveyance at all, or to purchase the negroes, unless Defendant’s intestate would sign that deed ; at the same time observing, that he was buying to sell again, and such an exception in his title would injure the sale; tiiat he intended to carry the slave to the south, and that she would never be called on, on account of Peggy’s defect: Defendant’s intestate thereupon, signed the hill of sale, and afterwards assigned as a reason for so doing, that the pr.ice was a very large one, greater than she could, get again, and she did not expect from the distance to which the negroes were to be carried, that she would ever be called on to answer for Peggy’s unsound* ness.

The Court instructed the Jury, that the bill of sale did contain a warranty of soundness, which, if untrue when given, entitled the Plaintiff to his action, if it were not obtained by fraud.

Verdict for Plaintiff, new trial refused, judgment and appeal.

Gaston for Appellant.

There is in this bill of sale, no warranty of soundness. — Lanier v. Avid. (1 Murpk. 338. 3 Murpk. 243. — 4 Johns. It. 421. — 2 Caines, It. 48.)

2. The defect was well known to vendee when he took the coyenant of warranty, if it be one, and such a covenant applies only to latent, not obvious defects; therefore, Plaintiff shall not recover. — (1 Fonbl. Eq. 379, 80. — Cro. Jac. 387. — Burr. 1125. — W. Black. M. 273. — 10 Fes. 506. > — 2 Comyn on Cont. 274 and cases there cited.) This is proved also, by the form of the declaration, in cases of this kind, which always alleges that Plaintiff confided in Defendant’s declarations. — 2 Chitt. FL 100,1,2.

*613. The parties in this action,'are confederates to prac-Use a fraud on others: they are pares in delido, and as be- ? ± tween them, even if the contract be broken by Defendant, the Court will not interfere.— Waymcll v. Reed. (5 Term R. 597.) Leicester v. Rose. (4 East. 373.)

Wilson contra.

This' is a warranty of soundness.— Gilchrist v. Marrow. (1 Law Repos. GO7.) Cramer v, Bradshaw. (10 Johns. R. 484.)

As to the defect having been known to the vendee, the Jury has settled that matter for ns, and this Court has nothing to do with it. We are saved also, all trouble as to the question of fraud, for the Jury have expressly negatived it.

Hall, Judge.

An affirmation at the time of sale, is a warranty, provided it appears in evidence to have been so intended. — (S Term, 57.) Whether it was so intended, is a matter of fact to be left to the Jury. In the present case, whether there is a warranty contained in the deed, on which this action is brought, is a question of law, and of course must bo decided by the Court.

I admit that a bare affirmation is only an inducement to make the contract, but ought not to be considered as part of the contract, and that then' is no remedy upon it unless you bring home a scienter to the party making it.

In the case before us, if the words of the deed, on which this suit is brought, had been regarded in the light of an affirmation, and notas a part of the contract, it is to be presumed that they would not have been inserted in the deed; but as the parties thought proper to insert them in the deed, it is a strong circumstance to shew that they were so inserted as a part of the contract.

If they are considered as a part of the contract, their meaning is obvious; there can be no doubt about the justice of the verdict. It is stipulated that the slaves are *62sound, healthy, free from disease, and slaves for life, and warranted and defended from all manner of claims whatsoever.

There is no doubt but what an action would lie. upon the latter part of the clause, where the titles of the ¿laves are warranted against all claims whatsoever, and I think there is no doubt but an action would lie upon that part of the clause which asserts that they arc si ares for life, because that is a warranty relative to the title ; it would seem strange then, that the same words, when applied to the quality of the property sold, would not, also, amount to a warranty of that.

With respect to the fraud complained of by the Defendant, that was laid before the Jury j it was their province to consider of it, and not the province of this Court. They have done so, and their verdict, as far as it is founded upon fact, is not under the control of this Court.

Let the quo animo, with which the contract was executed, as e\ ideticed by the deed, be what it might, it is-immaterial :■ it is our duty, only, to say what the con-trae! was, and in doing that, I ■'•oust say, that the contract was such as will sustain this action, and that the rule for a new trial must he discharged.

Taí’í.«ii, Chief-Justice, and Henderson, Judge, concurred.