Fowler v. Smith

Appeal from the Superior Court of the City of San Francisco.

This cause was first heard in this Court, at January term, 1852, and will he found reported in this volume, at page 39, et seq.; to that report we refer for the facts of the case and the arguments of counsel.

After the decision of the Court, the appellant petitioned for a rehearing; and the argument of counsel in favour of the petition, is also reported, ante, page 50.

The petition was granted at January term, 1852, and the case ordered to he reinstated upon the calendar.

At October term, 1852, the following opinions were delivered.

■ Hbtdemeldt, Justice, with whom Andebsoe, Justice, concurred.

When the territory now comprised in the State of California, was under Mexican dominion, its judicial system was that of the Roman law, modified by Spanish and Mexican legislation. Upon the formation of the present State government, that system was ordained by a constitutional provision to be continued, until it should be changed by the legislature. At the first session of the legislature an act was passed, adopting the common law of England; and on the 22nd of April, 1850, another act was passed, repealing all the laws previously in force, but providing, “that no right acquired, contracts made, or suits pending, shall be affected thereby.”

It must, therefore, be considered beyond dispute, that all contracts made here before the 22nd April, 1850, must have their effect and construction by the rules of the civil law.

In this case those rules have been properly invoked by the defendant, because his contract of purchase was made prior to their repeal. And this Court, as well as it is bound to know judicially the act of repeal, is also bound to know that which was repealed. So in applying the law which decides the rights of the parties to this cause, I shall refer alone to the system under which the contract was made. A sale of property when made by the use of general terms, implies an obligation on the part of the seller, to cause the buyer to have the thing which is sold, by a title of proprietor, to deliver him possession, and to defend him against whatever may deprive him of possession. See Pothier on Contract of Sale. Possession seems to be looked upon as the great object of purchase, and the great symbol of right; and as long as it remains undisturbed, the seller has\\fulfilled his obligation. So much so, that even if the buyer discovers “that the seller was not the owner of the thing sold, and consequently, that the property in it has not been transferred to him,” yet, as long as he retains the possession, he cannot complain of the seller. See Pothier on Contracts.

Thus, it appears clearly, that the implied warranty of the seller is equivalent to a covenant, that the buyer shall quietly possess and enjoy, and nothing morel To give, therefore, the buyer a right of action on the warranty of the seller, there must have taken place an actual eviction; and that must be not merely an ouster by the sufferance, negligence, or other act of the buyer, but a judicial eviction, by the sentence of a tribunal of competent jurisdiction. And it is shown by Pothier, that even a sentence of eviction, is not enough to create a breach of the warranty, upon which to found an action, unless the sentence is earned into effect; 1 Pothier on Contracts, 89.