#### John Cowan v. James Silliman.

In the sale of a chattel, neither the words “warrant and defend,” nor the words “ warrant to be good sound property, and healthy,” constitute a covenant of title. The first is for quiet enjoyment, and the last apply to the state and quality of the article sold.

The case of Wilson v. Forbes, (ante 2 Vol.p. 30).approved.

Covenant upon the following deed: — “ Received of “ James Cowan, four hundred and seventy-five dollars, ‘‘ it being in full payment of a negro woman called il Boreas, which said negro woman I do warrant and “ defend the same, to James Cowan, his heirs and assigns “ forever; — this said girl I do warrant to be good sound “ property, and healthy. Witness, &c. James Silliman."

The breach assigned was, 1st. the defect of title in the defendant at the time of the sale.

2d. The disturbance of the plaintiff’s possession by the demand of one Mexander Silliman who had a title to the slave at the time of the sale.

Tee as— non est factum, and non infregit conventionem-

On the trial before Norwood, Judge, at Rowan on the Fall circuit of 1831, the case was that the sale was. made in June, 1818 — that one Mexander Silliman then had title to the slave, and demanded the possession of her of the plaintiff in the Fall following, which was refused, and that thereupon he threatened to bring suit for her, but never had done so. The slave died soon after the demand, and this suit was commenced in March, 1826. His Honor charged the jury that the bill of sale contained a covenant of title, and in legal construcion a covenant that the defendant had title in the slave at the time of the sale. That if the covenant was for quiet enjoyment only, the demand of Mexander Silliman yas a disturbance of the plaintiff’s possession which gave him a right of action, as by that demand his possession was rendered adverse, and Mexander Silliman might charge him w'ith the value of the slave, notwithstanding her subsequent death. And further, that the fact of Mexander Silliman’s not having brought suit against the plaintiff for more than three years after his demand, *47was no defence to the present action, because as the slave died in the same year, the plaintiff could not have had an adverse possession of her, which, under the act of 1820, {Rev. c. 1055,) would have given him a title.

Nominal damages only, can be recovered upon a covenant of title, when the action of the poison having title is barred by the act of liar-itatiojis.

A covenant for quiet posssession, is not broken by a demand of possession made by one having title.

A verdict was returned for the plaintiff, and the defendant appealed.

Winston for the defendant.

Nash, eontra.

Rupfin, Chief Justice.

The view which I take of this case differs almost entirely from that of the Judge of the Superior Court.

Regarding the covenant as one of title, the plaintiff was, as I conceive, entitled to recover only nominal dama-gos; for such only he sustained. The slave herself could not, if alive, be recovered from him; nor could damages for the conversion- Every action by Alexander SUliman, the owner, was barred by the Statute of limitations before this suit was brought; and the case of Wilson v. Forbes, (ante 2 Vol. p. 30.) is in point for the defendant

If the covenant be for quiet possession, I think it has not been broken. In the Superior Court it was held that the demand of the owner was a breach because it rendered the present plaintiff chargeable in an action for the value. That cannot govern the case, because he was so chargeable without demand, upon his purchase, possession and claim of property ; or, at all events would have been by a sale, which would have been of itself a conversion. This would be to sink the distinction between a covenant for title and that for quiet enjoyment.

That a warranty of chattels, constituted in this deed by the words “warrant and defend,” is a covenant for quiet enjoyment, is a settled rule in this State. It has been understood by the profession too long, to admit now of a question. Hence upon eviction the value at that time is the measure of damages. It is familiar doctrine in reference to land, that suit and even recovery, is no breach, unless the loss or disturbance of pos*48session follows. I had thought it equally so in relation to chattels. The reason is the same. The covenants respect the possession. The opinion of the Court is, that in holding a demand by the owner of the slave, to be a breach of the covenant for quiet possession, the Superior Court erred.

It is further contended for the plaintiff, that besides the covenant for quiet enjoyment, created by the words “ warrant and defend,” the words “ warrant to be good sound property” make a covenant of title, or for the property in the slave. It is however, the opinion of the court, that, those words relate to the state and quality of the slave, and not to the title. After them follows, “and healthy ;” which shows the meaning. There are not three covenants in the deed, but two. Both begin with “I do warrant;” and a part of the latter expressly includes the health of the slave. It is not to bo taken, that with the latter, would be mixed a stipulation respecting the title, which would have naturally connected itself with the proceeding. .But “sound” interposed between “good” and property, clearly affixes the proper meaning to the whole. We may say “good property” when speaking of title, but we never say “ sound property, and healthy,” in respect of any thing but the condition of the subject of the contract. “Property” is here used for “negro,” or other description of thing sold.

Wo think this is the proper construction of the, deed, and that the plaintiff cannot recover. This conforms too, to the justice of the case; for Alexander Sil-Ihnan never brought suit, and the plaintiff enjoyed the slave as long as she lived, and now seeks to throw on. the defendant the loss, which arose not from the better title of another, but by her death. There must be a new trial.

Ter Guriam — Judgment reversed.