An atteftation
to a contract
o f fale is not
equivalent to
Kafttl-be'l-
dirk.
declaration of the houfe being the property of the feller,— If, therefore,
the furety fhould afterwards prefer a claim of right to the honfe,
fuch claim is inadmiflible.'— T h e reafon of this is, that if the fecurity
be a condition o f the fale*’ (as if the purchafer fhould have laid, “ I
“ will buy the faid houfe, provided a particular perfon will be fecu-
“ rity againft any futuré claim to it,” ) in that cafe the completion of
the fale refts upon the agreement of the furety; and afterwards, when
he prefers a claim of right to the houfe, he endeavours to deftroy that
which he had himfelf rendered complete :— if, on the other hand, the
fecurity fhould not be a condition of the fale, the furety, in that cafe,
by agreeing to the bail, did, as it were, incite the buyer to the-bar-
gain, (fince his defire of purchafe was founded on the procurement of
bail.)— T h e bail fo given, therefore, is equivalent to a declaration of
the right of property of the feller.
I f, in the fale of a houfe, a perfon fhould atteft the bill of fale, and
put his feal to it, without giving any fecurity,, fuch teftimony and affixture
of feal is not an acknowledgment of the feller’ s right of property,
and hence the witnefs may, i f he pleafe, afterwards claim the
houfe, becaufe atteftation is neither a condition of fale, nor a declaration
of the property o f the feller, as it fometimes happens that men
fell their own property, and fometimes that of others.— Befides, the
witnefs may have made this atteftation merely as a memorandum of
th e tranfaciion; a fuppofition which the' cafe of bail could not admit
of.— Lawyers have remarked that i f it be expreffed, in the bill of fale,
that “ a certain perfon had fold fuch a houfe, which is his property,
“ by a complete and valid fa le,” and the perfon atteft the writing to
this effedt, “ Witnefs thereto,” this is an acknowledgment and declaration
of the feller’s right of property.— If, on the other hand, he atteft
it thus, “ Witnefs to the agreement of the buyer and feller,”
■ this is .not a declaration of the feller’ s right of property.
•section.
S E C T I O N .
O f Z A M I N S , or G u a r a n t e e s .
If an agent fell the cloths of his conftituent, and hold himfelf re-
fponfible for the payment of the price to his conftituent,— or, if a Mo-
ssarib fell the goods of his employer and hold himfelf refponfible for
the payment of the price,— the refponfibility in either cafe is null:
first, becaufe furety or bail is an engagement compelling the undertaker
to anfwer a claim; and as, in thefe cafes, the agent and Mozdrib
are themfelves the claimants for the price of the goods, it follows that
if they were refponfible for the fame, they would be fecurity on their
own behalf, which is abfurd:—and, secondly, becaufe the goods
remain in their hands in the nature of a truft; and truftees are not
held by the law to be liable to refponfibility.—If, therefore, they
were held refponfible, it would be contrary to the precepts of the
law.— Hence the taking of fecurity from them is null, in the fame
manner as a condition of refponfibility is null with refpeft to a truftee
or a borrower.
If two fharers in a Have fell him by one contrail, and each of them
be fecurity to the other, on behalf of the buyer, for his payment of the
proportion of the price due to that other, fuch fecurity is null; becaufe
if the fecurity were valid under a general copartnerfhip in the
price, it neceflarily follows that each is in part fecurity on behalf of
himfelf, fince every member of the flave is indefinitely fhared between
them;—or if, on the other hand, the fecurity of each were valid with
refpe£t to the other’s fhare in particular, this induces a divifion of a
debt before the receipt of it, which is unlawful.— It is otherwife where
two partners in a flave fell their Ihares by different contracts; as their
fecurity to each other, for the prices refpeitively due, is valid, fince
V ol. II. 4 G there
The guarantee
of
agents to
their employers
is
null.
The guarantee
of
partners, in a
purchafe and
fale to each
other, is null.