Williams v. McCormack ( 1846 )

GREEN, J.

delivered the opinion of the court.

It appears from the bill, answer and proof in this cause, that the defendant, William McCormack, as administrator of the estate of his mother, Judith McCormack, deceased, petitioned the Circuit Court of Smith county, to order that the negroes belonging to the estate be sold, in order to a division of the estate among the distributees. The court decreed that the clerk should make the sale, as prayed for.

At the said sale, the complainant became the purchaser of a girl Eliza, at the price of $526. About a year after the sale the girl died, having been under the influence of a fatal disease from a period previous to the sale; and suit having been brought by the clerk, upon the note which was given for the price of Eliza, the complainant filed this bill to enjoin the parties from proceeding further therein, alledging that the defendant, William McCormack, fraudulently represented to him, that the girl was sound and healthy, when he knew she was diseased and unsound.

The answer denies the fraud charged, but admits, that said William did state to complainant, that he believed the girl was sound.

‘The witness Bailey, the crier of the sale, proves, that Wm. McCormack stated on the day of sale, that the girl had been sick, but that she had been doctored, and had got well, and that she was sound. The sale was made the 27th of December, 1841, and the proof shows, that this girl had not been hired out during the year 1841, on account of her bad health; that during that year she had been treated by Mrs. King, a doctress in that neighborhood, and had greatly improved in her appearance. Mrs. King and other witnesses thought she was well.

There is no reason to doubt, from all the evidence, but that the defendant, McCormack, honestly believed what he stated on the day of the sale, and therefore was guilty of no fraud.

It is alledged, however, that the affirmation of McCormack amounts to an express warranty. It is unnecessary to discuss this question, for in the absence of fraud, this court has no jurisdiction to give the relief prayed for. If there be an express warranty, a court of law can afford a full and adequate remedy.

But if it were made to appear, that William McCormack committed a fraud, by falsely representing that the negro was sound, it would not entitle the defendant to relief in the case. William McCormack had no more to do with this sale than any other distributee of the estate.

The sale was made under a decree of the court, by its clerk, and the note was executed to him.

If a distributee of an'estate, make a fraudulent representation in relation to property of the estate, which is offered for sale; of which representation, the other parties interested, are wholly ignorant, their rights cannot be affected thereby. If any purchaser is defrauded by such representations, his remedy is against the party alone, who committed the fraud; but he cannot, for that cause, resist the payment of the price of the property purchased.

Upon all, or either of these grounds, therefore, we think the bill should be dismissed.