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December 1, 1859


THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Maryland.

It was an action of assumpsit brought by Charles Flowers and Alice Flowers, of Louisiana, claiming to be heirs and universal legatees of Charles Mulhollan, against Foreman, surviving partner of Keller & Foreman.

The claim arose in this way:

There was a tract of land in Louisiana, which Calvit conveyed to Davis, Davis to Keller & Foreman, and these last to Mulhollan, under a power of attorney dated 21st December, 1827. The attorney conveyed it to Mulhollan with a clause of general warranty.

Mulhollan, on the same day, conveyed a part of it to Reuben Carnal, but nothing more need be said about this deed for the purpose of explaining the questions which arose in this case.

The heirs of Calvit, in 1838, filed a petition in the District Court, parish of Rapides, State of Louisiana, alleging that they were the sole heirs of their mother, who was the lawful wife of Anthony Calvit; that during the community between said Anthony Calvit and his wife, he purchased said tract of land; that the said wife died, leaving the petitioners her heirs, and their father their natural tutor; that in the year 1822, while petitioners were minors, he sold the whole of said land to A. J. Davis, in violation of the rights of petitioners, who were entitled to one-half thereof, as the heirs of their mother; that said land was then in possession of said Charles Mulhollan and Reuben Carnal, and the petition prays that one-half of said land may be adjudged to them.

Carnal filed his answer, denying the allegations in the petition, alleging that he purchased said land from Charles Mulhollan, who was bound to defend the title, and citing him in warranty in the suit.

Mulhollan filed his answer, denying all the allegations of the plaintiffs, and alleging that he purchased said land from said Keller & Foreman, under a general warranty, and he prays that said Keller & Foreman, as warrantors, may be cited to defend him in his title and possession, and that curators ad hoc may be appointed to represent the said warrantors, who are absentees.

In conformity with the prayer contained in Mulhollan's answer, a citation issued, not to Keller & Foreman, but to George K. Waters, who is styled curator ad hoc of the parish of Rapides, and said Waters appeared and filed an answer, and undertook to defend the cause for the absentees, on whom no process was served, and who had no notice nor knowledge of the case.

The District Court gave judgment in favor of the defendant.

The case was appealed, and the Supreme Court of Louisiana, on the 26th of November, 1845, reversed the decision of the District Court, and ordered, adjudged, and decreed, 'that said James and Coleman Calvit do recover of the defendant, each and respectively, one undivided eighth of the tract of land described in their petition, that they be quieted in their title to the said undivided eighth hereby decreed to them respectively as against the defendant or any person claiming through or under them;' but with regard to the question of improvements and rents and profits, so far as James and Coleman Calvit were interested, and as to the question of damages between the warrantees, the case was remanded to the District Court. And on a rehearing, the Supreme Court, on the 29th of October, 1845, decreed that its former judgment be maintained as far as it went, and that, in addition to the purposes for which it was ordered to be remanded, it be also remanded for the further purpose of ascertaining whether the price received by the plaintiffs' father and tutor for the property in dispute was applied to the payment of the community debts of the father and mother of the plaintiffs, to which said James and Coleman were bound to contribute in proportion to their rights thereto; and that in the mean time no writ of possession issue until they have paid the amount which may be found to be due by them on the trial of the cause in the lower court.

During the progress of the cause, Charles Mulhollan died, and Charles Flowers and Alice Flowers appeared therein as his heirs and universal legatees.

Charles Mulhollan died in 1846. Shortly afterwards, Thomas O. Moore, the acting executor, paid to James and Coleman Calvit twelve hundred dollars each for their relinquishment of their claims to the tract of land in question.

On the 31st of May, 1853, the District Court rendered judgment in favor of Charles Flowers and Alice Flowers against Keller & Foreman, who were represented by the curator ad hoc. The judgment was for eight hundred and fifty dollars, with interest thereon, at five per cent., from the 14th of November, 1846, and costs.

There being no mode of reaching Keller & Foreman, under this judgment, an action of assumpsit was brought against them, as before stated, in the Circuit Court of the United States for the district of Maryland. The defendants pleaded the statute of limitations of Maryland.

The two statutes of this State are the following, viz:

The act of 1715, chapter 23, section 2, provides that all actions upon the case shall be brought 'within three years ensuing the cause of such action, and not after,' with a saving by section 22 in favor of persons beyond seas.

The act of 1818, chapter 216, section 1, repeals the saving in the act of 1715, in favor of persons beyond seas.

The reader will perceive that the only question in the case was when the statute began to run, whether in 1846 or 1853.

The Circuit Court granted the following instruction.

The defendant prays the court to instruct the jury, first, that the act of the State of Maryland, passed in the year 1715, chapter 23, entitled, 'An act for limitation of certain actions, for avoiding suits at law,' and the act of said State, passed in the year 1816, chapter 216, entitled, 'An act to avoid suits at law,' constitute a bar to the recovery by the plaintiff in this case. To the granting of which instruction the plaintiff excepted, and upon this exception the case came up to this court.

It was argued by Mr. Brent and Mr. Phelps for the plaintiff in error, and by Mr. Brown, upon a brief filed by Brown and Brune, for the defendant.

The counsel for the plaintiff in error maintained the following proposition:

That upon all the evidence in the case it appears, either that our cause of action did not accrue at all, until 31st May, 1853, or only accrued sub modo, and in abeyance, and did not mature until that date; in either of which cases, we are within the statutory limits.

Such part of the argument of the counsel for the plaintiff in error as there is room to insert, was as follows:

That said contract was broken, giving a right of action to the plaintiff.

(Upon the defence of limitations.) That such action accrued within three years prior to the institution of the suit.

These two points will be considered together.

The contract was concerning land situated in Louisiana. It was made in Louisiana, and there it was to be performed. The inquiry therefore is, what, by the lex loci, was necessary to constitute a beach of the contract?

Story's Conf. Laws.

By the civil law, the remedy upon the obligation of warranty is two-fold, and each remedy has respect to a distinct and independent cause of action.

The more usual remedy in the French and Louisiana practice is the one which was originally resorted to in the present case, while pending in the Louisiana court. By it, the warrantor is formally vouched or cited in to defend his vendee's title, as soon as proceedings are commenced against the latter. If the seller thus called in cannot defend, 'the judge condemns him to indemnify the defendant, by the same sentence by which he pronounces in favor of the original plaintiff.'

In this from of proceeding, the cause of action may be said to arise as soon as the vendee is troubled in his possession by a suit, for at that moment his right to call in his vendor in warranty accrues.

The other remedy is the one now being prosecuted, and which was rendered necessary by the fact that the first was ineffectual, the court which gave judgment not having jurisdiction over the absent parties.

In substance, this remedy corresponds to the ordinary common-law action of covenant, and, like it, is not available until final sentence is pronounced, and cannot be brought before the vendee has sustained an eviction, either actual or constructive.

Pothier des Ventes, part 2, C. 1, sec. 2, art. 5, sec. 2.

Domat, lib. 1, tit. 2, sec. 10.

In the present case, therefore, the cause of action did not accrue until eviction was consummated.

'Eviction' is defined to be 'the loss suffered by the buyer of the totality of the thing sold, or a part thereof, occasioned by the ...

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