#### ISAAC MURRELL vs, ALLEN WEATHERS.

A covenant entered into by the buyer of a slave, that he -would give the seller the refusal, at a given price, if he ever wished to dispose of it, is a valid Stipulation. But it is no breach of such a contract to loan the slave, for a Week, twenty miles out of the State, if done bona fide. Neither did the sale of the slave, by such bailee without the knowledge or consent of the covenantor, a few clays before the writ issued in this case, although ratified by him after the suit was brought, amount to a breach that could be recovered for in the action then pending.

It would have been otherwise if the suit had been brought after the ratification.

Action of covenant, tried before his Honor, Judge Ellis, •at the Spring Term, 1856, of Gaston Superior Court.

*526Tlie plaintiff declared for the breach of the following covenant :

“ Know all men by these presents: that Isaac Murrell, of the County of Gaston, State aforesaid, hath bargained and sold unto Allen Weathers, one negro woman named Beck, aged from forty-two to forty-five years, for which I, Isaac Murrell, doth warrant and defend against the claim or claims of all persons whatever, to the said Allen Weathers, for the sum of two hundred and twenty-five dollars, in hand, paid to the said Isaac Murrell.

The condition of the above obligation is such that, if Allen Weathers ever wished to dispose of the aforesaid negro woman, that he is to give to the said Isaac Murrell the refusal of the said negro woman., for the sum of two hundred and twenty-live dollars; and Allen Weathers further binds himself, not to ever sell or dispose of the aforesaid negro woman, to any speculator whatsoever, in witness,” &c.

The breach complained of was, that defendant without giving plaintiff the refusal of the slave, had parted with her secretly in a distant State.

The proof was, that the parties lived in Gaston County; that the defendant loaned the slave in question, for a week, to his son, who lived about twenty miles distant from his father’s residence, in the State of South Carolina, to assist him upon his farm; from thence she was removed by his son to the State of Alabama, and sold, without the knowledge, and contrary to the wishes, of the father. This sale took place a few days before the writ was issued. After the action was begun, the son returned to Gaston County, and informed the defendant of what he had done, which was the first information he had of where the slave was, or what had been done with her. The son then offered to pay the defendant for the slave, which he agreed to.

The plaintiff’s counsel contended, and asked his Honor to charge: 1st., that loaning the slave to his son to be carried out of the State, was a breach of the covenant.

2nd. That in assenting to the sale in Alabama, after he had *527been, informed of it, though after the writ had been issued, carried the effect of the sale back to the time of the sale in Gaston, and made that a breach of the covenant.

Ilis Honor declined so to instruct the jury, but signified his opinion that the plaintiff could not recover. In submission to this opinion, the plaintiff took a nonsuit and appealed.

Hoke, for plaintiff.

Lander and Avery, for defendant.

Pearson, J.

The agreement of the defendant, “ if he over wished to dispose of the slave, to .give the plaintiff the refusal at the price of §225,” was a valid stipulation, for a breach whereof, the plaintiff would have -a good cause of action; and the question is, was there a breach at the time the plaintiff sued out the writ?

The fact that the defendant loaned the slave to his son, who resided out of the State, to labor for him for one week, certainly did not, of itself, constitute a breach, if done Iona fide, and without any ulterior intent thereby, indirectly, to dispose of her, and put it out of his power to perform his stipulation with the plaintiff. It maybe, from what afterwards occurred, there was evidence which entitled the plaintiff to insist that the question of intent should be submitted to the jury, but as the case is stated, it does not appear that this point was made on the trial. It is now too late for the plaintiff to avail himself of it; for the case seems to be stated with the view solely of presenting the two points made below.

Upon the second point we are also against the plaintiff. The sale by the son of the defendant was made a few days before the writ issued, but the defendant had no knowledge of it, and did not ratify it until after the writ issued; consequently, although this ratification was a clear breach of the agreement, yet, the plaintiff sued out his writ before he had a cause of action. The suggestion, that as the sale was made good by this ratification, and the title thereby enured to the purchaser from the date of the sale by relation, the same *528effect must follow in regard to the breach, so as to carry that back to the date of the sale, under the maxim, omnis ratihibitio retro tralvitwr et mandato eqmparatwr, is not well founded. The maxim is misapplied in respect to the relation back, so far as it regards the breach ; its only proper application is, as between the owner of the property and the purchaser, for the protection of the latter, the ratification is considered as equivalent to a prior command, or authority, to the son ; but in regard to third persons there is no general inconvenience or policy making this fiction necessary, and they must be content to stand or fall by the actual facts, which, in our case, are that tho defendant had not parted with the title, or disposed of the slave in violation of his agreement, when the plaintiff commenced his action, but could, at that time, have recovered the slave from tho purchaser, if he had seen proper, and so, had not then put it out of his power to perform his agreement.

Per Curiam,

Judgment affirmed.