George v. Bean ( 1855 )

Fisher, J.,

delivered the opinion of the court.

This was an action brought in the Circuit Court of Chickasaw county, upon a promissory note, given by the defendants to the plaintiff for the sum of $1500, to secure the purchase-money of two slaves sold at public sale by the plaintiff as administrator, and purchased by one of the defendants.

The defence set up was, that the plaintiff fraudulently concealed the fact, that one of the slaves was unsound. The proof on this subject, if we have been able to understand the record, which, like most of the records from that county, is almost unintelligible, amounts to nothing. There is no proof of either fraudulent representation or fraudulent concealment of any fact which could affect the validity of the sale. As a general rule, an administrator warrants neither the title nor soundness of the article he sells. There is, perhaps, in such case an implied warranty, which would bind .the estate as to the title of the property, but there is no warranty of soundness, and none can be presumed against the party, as there is no benefit accruing to him under under such contract; and the same may be said as to a charge of fraud. He has no motive to make false representations, and we must presume, in the absence of clear proof on this point, that if they were made at all, they were honest, and not intended to mislead. But the purchaser must not only show that the representation was made, but that he trusted to it in making the purchase.

The same may be said in substance with respect to a fraudulent . concealment. The purchaser must show that the slave was not only diseased at the time of the sale, so as greatly to impair her ' value, but that the conduct of the administrator was such as necessarily to conceal this fact. It is the policy of the law, that persons purchasing property at administrator’s sales, should trust either to their own judgment, or such information as they may derive from sources other than the administrator, in making the 'purchase. An account of the sale is returned to the Probate Court, and he must settle with the distributees-according to the record thus made, unless he can show that the debt without any fault of his has been lost. Such a defence, if successful in the Circuit Court, opens the door for litigation between the distribu-tees and the administrator in the Probate Court, which litigation, independent of the delay occasioned in the distribution of the ■ estate, or in the satisfaction of the demands of creditors, is attended with expense and jfcrouble to all parties concerned.

If the fraud has in truth been practised by the administrator, and the purchaser deceived thereby, he ought in this class of cases, to be driven to his action directly against the administrator, so that innocent parties who are interested in a speedy settlement of the estate, will not be delayed by the fraudulent conduct of the admin- ■ istrator. If a recovery should in such case be had against him, he will not have any recourse upon the estate for reimbursement on account of his fraud; and consequently no excuse for delaying payment of the demands of creditors, or for not mating distribution, as the case may be.

Under any view which we have been able to take of the case, we think the court below erred in refusing to grant the new trial. Judgment reversed, and new trial granted.