Mockbee's Adm'r. v. Gardner , 2 H. & G. 176 ( 1828 )

Archer, J.

delivered the opinion of the court. It is a general and familiar principle, that there exists in every sale of personal property, an implied warranty of title, and that the vendor cannot be a witness to sustain the title of bis vendee.

But in this case the witness had made the sale of the property in controversy as an administrator. He was a mere trustee, and in that capacity sold the property. The exemption of executors, administrators, and other trustees, from personal responsibility on an implied warranty, seems to be indispensable. For who would accept an office of this kind, if he were to become necessarily the guarantee of the good title of him whom he represents, in all the property submitted to his charge, which he may be obliged by order of court to sell? In all cases in which the title sold, was ascertained to be defective altera final distribution of the estate, the administrator, if a recovery were had against him, would have to look for indemnity to creditors, distributees and legatees. In most instances his prospect of se.r curity would never be realised, and no power is given him to retain for such a contingency. Where fraud exists, or there is an express warranty, he would, undoubtedly, be personally answerable to a purchaser in ease of eviction. But it would little comport with the policy of the law, that offices so necessary, should be subjected to the operation of a principle so fraught with danger to their interests, as to deter every one from their acceptance.

But while this exception from the general principle exists in their favour, we by no means intend to assert that they would not be answerable, in case of a failure of title, while the purchase money for the property sold remained in their hands undistributed and unadministered. In such a case there would exist no-well founded reason why they should not refund to a purchaser. Such a modified liability would subject them to no danger of pecuniary loss; and as long as the fund remained in their hands, they might well be considered as liable, with other vendors, to the general doctrine of implied warranty of title. Whether that were the case, in the suit under consideration, the bill oi exceptions does not disclose. It was surely incumbent on the party objecting to the competency of the witness, that he should make the grounds of incompetency appear to the court, which could only be done by showing that the purchase money still remained in the hands of the administrator; and there being nothing to show this fact the witness was competent.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED,