Bass v. Ware

Walker, J.

[1.] Section 1088 of the Code says, “ The vendor’s equitable lien for the purchase money of lands is abolished in this State.” Does this apply' to contracts entered into prior to the 1st of January, 1863, the time when the Code went into effect? Section 2 says, ^ all rights or obligations or duties, acquired or imposed by existing laws, shall remain valid and binding, notwithstanding the repeal or modification of such laws.” Section 7 says, “ laws prescribe only for the future.” From these provisions, we think the Code intended to apply to future contracts; and the section under consideration does not have a retroactive operation. The lien of a vendor arising out of a contract made prior to the first day of January, 1863, is not affected by the Code.

[2.] In the case of Hand vs. Armstrong, decided during the present term, {ante. p. 232) we had occasion to examine the effect of emancipation upon a warranty of title of “ slaves for life; ” and we then held that, “ Emancipation “is no defence to notes given for the purchase money of slaves sold in 1860, with warranty ‘ that they are slaves for life.’ The warrantor did not covenant against a future act of the Government. He simply warranted that the slaves in question belonged to that class whose condition was, by the then law, one of bondage for life — not that this condition should continue as long as they should live.” Is there anything in this case to take it out of the rule laid down in that ? We think not. There, the words of the covenant are, “ I warrant that they are slaves for life.” Here, the words are, “ Which negroes I do hereby warrant sound and healthy, and to be slaves for life.” It was argued with earnestness, that the words “ to be” are here used in a futv/re sense, and that the intention of the parties was, that the negroes should continue slaves during life. I am not as familiar with Lindley Murray and his successors as I was some thirty years ago, when I was principal of a “ rural academy,” usually ycleped “ an old field school; ” still, I think I may venture to insist that “ to be” is in the present tense of the infinitive mood, and when used without other qualifying or controlling words, has invariably a present, and not afutwre significance. The sense of the contract is: I sell you these negroes, and warrant them to be now — in the condition of — slaves for life; that is their status under the laws, and as such I transfer them to you. The title vests in the purchaser, and the negroes belong to him absolutely as slaves for life. After what has been said, in the case already referred to, it is deemed unnecessary to elaborate here.

The judgment of 'the Court below is affirmed.