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Worthy et al. vs. Johnson ct al.

1st. For multifariousness; no privity in defendants; cause of action is separate and distinct against each one ; and no combination shown.

20. It is brought in the vame of the wrong parties; should have been brought by Worthy's legal representative,

3d. That complainants have a Common Law remedy. 4th. There is no equity in the bill.

The Court sustained each of the grounds, and dismissed the bill; and to this decision complainants excepted.

John L. STEPHENS, for plaintiff in error, cited

Mitford's Plead. 241. 2 Vern. 37. - 1 Atkyns, 283. 5 Mad

1 , dox Ch. R. 93, '4. McCartney et al. vs. Calhoun et al. 11 Ala. (N. S.) Rep. 110. 8 Ves. 347. Lester vs. Lester, 6 Ib. 631. 10 Ib. 393. 17 Ib. 168. 5 lb. 680. Prince's Dig. 234, 238.

B. H. Hill and O. A. Bull, for defendants in error, cited

Story's Eq. Pl. 218, 394, 406, '7, 412. 2 Ves. Jr. 95, 486. 6 Johns. Ch. R. 115. Fellows vs. Fellous, 4 Cowen, 682. 1 McCord, 132, 3 Ib. 371. 3 Peere Williams, 394. 2 McCord Ch. R. 169. 4 Paige, 47. 6 Ves. 748. Bond et al. vs. Zeigier et al. 1 Kelly, 342.

By the Court.-LUMPKIN, J. delivering the opinion.

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[1.] The first ground taken in the demurrer is, that the bill is multifarious, because it joins defendants, some of whom purchased directly themselves, at the executor's sale, while others bought at second hand, under executions against the executors, who purchased at their own sale.

All the defendants, as purchasers of the slaves, as the property of Worthy, have à common interest in resisting the equity of complainant's demand. They have, also, a common interest in sustaining the validity of the executor's sale, under which they all derive title ; and these points being common to all, the bill is not multifarious. It is not indispensable that all the parties should have an interest in all the matters contained in the suit; it will be sufficient if each party has an interest in some matter in the

Worthy et al. vs. Johnson et al.

suit, and they are connected with others. Addison vs. Walker, 4 Young & Coll. 444. - Parr us. Attorney General, 8 Clarke f. Fin. 435.*

(2.) The second ground of demurrer is, that the bill should have been brought by the administrator, de bonis non, and not by the heirs.

The general rule undoubtedly is, that creditors and heirs can suc only through the legal representative-the exception is, “unless there be collusion, insolvency, unwillingness to collect the as. sets, or some other special facts to warrant it. Gilbert vs. Thomus et al. 3 Kelly, 575, and authorities there cited. The bill in this case expressly charges, that application to sue has been made to the administrator, and that he refused to institute proceedings for the recovery of this property. He is properly, therefore, made a co-defendant.

It is suggested that the name of the representative might be used, without his consent, to maintain this suit. A ne exeat, however, or some other proceeding, requiring his voluntary action, might become necessary, in the course of the litigation, to protect the interest of the heirs.

[3.] The third ground taken in the demurrer is, that the complainants have an ample Common Law remedy. None has been pointed out none occurs to this Court; on the contrary, they are compelled to resort 10 Equity to make their election-not to ratify the purchase made by the executors at their own sale. This, step is equally necessary to render a satisfactory reason for not sueing through the legal representative of the estate.

[4.] The next and last ground in the demurrer is, that there is no equity in the bill; and the main points insisted on here, are, first, that the sale is valid, and secondly, if it is not, that the defendants, being bona fide purchasers, cannot be affected by any irregularity in the sale, or in the proceedings of the Court of Or. dinary, under which it was made.

Does the doctrine of caveat emptor apply to the public sales of executors, administrators and guardians, made under the authority of law? While the rules relating to market overt in England, by which certain privileges are allowed, which are not granted to private sales, have not generally been recognized or enforced in

*See Warthen vs. Brantley of Daniel, 5 Ga. Rep. 571.-[Rep:)

Worthy et al. os. Johnson et al. this country, and the doctrine obtains here, that no person can make a valid sale of property to which he has no title, and which he is not authorized by the real owner to sell:

[5.) Judicial sales are an exception; and in respect to these, as well as sales made under the Probate Acts of the several States, and sales of goods found, and of estrays, the general rules of market orert apply. The Monte Alegre, 9 IVheat. Reps. 616. Heacock vs. Walker, 1 Tyler's R. 341. Forsythe vs. Ellis, 4 J. J. Marsh. 298. Sims vs. Alexander, 3 Yeates' R. 268.

In South Carolina, it has been expressly held, that careat cmptor is the best possible rule that can be laid down. The Court emphatically siates, that all who attend such sales, ought to take care and examine into the title, &c.; that no warranty, express or implied, can be raised on the part of the owner, as to whom the proceeding is compulsory; nor of the Sheriff, who is the mere agent of the Court; nor of the Court itself-and that the purchaser was compelled to pay the money bid at such sale, not. withstanding any defect in the title. The Creditors of Thayer vs. Sheriff of Charleston, 2 Bay. 170.

[6] In the case cited from Wheaton, the question of liability in judicial sales, particularly as to the quality of goods, was very fully considered, and it was there held

1. That the owner is not chargeable for any representation or warranty of the agent of the law in selling.

2. That the officer is only the minister of the law, to execute the orders of the Court, and cannot be considered as warranting the property sold, so as to render himself personally liable, while he acts within the scope of his authority; and that the rule careat emptor applies, generally, from the nature of the transaction, to all judicial sales.

Where a Sheriff sells goods on execution, there is, probably, an implied warranty, that he does not know that they are not the property of the execution debtor; and for a breach thereof, assumpsit would lie, perhaps, at the instance of the purchaser against the officer, to recover to the extent to which he has been damnified by the deception. Pets vs. Blades, 5 Taunt. 657.

[7.] The same doctrine applies to sales made by executors and administrators, under authority of law, A license to sell, gives

no power, by warranty, to bind the estate which they represent. • It would be but reasonable, that the Legislature should confer

Worthy et al. vs. Johnson et al. this power, under certain restrictions. . It would enable trustees to sell for a better price. And why should not the estate, at any rate, to the extent of the residue in the hands of the representative, be responsible to the holder for any failure?

Still, I repeat, the principle uniquestionably is, that the representative has no power of charging the effects of the estate, by any contract originating with himself; neither is he required, by any duty of his office or trust, to enter into personal obligations respecting property which he sells. He is at liberty, to be sure, to do so, it he chooses, and by thus exciting the confidence of purchasers, enlarge the proceeds of the sale.

(8.) The exemption of executors, administrators and other trustees, from personal responsibility to a purchaser, except where fraud exists, or there is an express warranty, seems to be indispensable. For who would accept an office of this kind, if he were to become pecessarily the guarantee, of him whom he represents, of the good title and soundness of all the property submitted to his charge, and which he may be obliged, by order of Court, to sell. It would be but poor indemnity to have to look, if a recovery were had against him, to creditors, distributees and legatees. It would but ill comport with the policy of the law, that officers so necessary should be subject to the operation of a principle, so fraught with danger to their interest, as to deter every one from the acceptance. 2 Har. & Gill. 176. It might be otherwise, if the purchase money remained in their hands, unadministered.

Can an executor or administrator become a purchaser, at his own sale? In some of the States it has been decided, that such sales are, per se, void ; and the Legislature of this State, by a recent Statute in relation to Sheriffs, have gone far to sanction this principle. They have not only prohibited Sheriffs from buying at their own sales, but declared all such purchases absolutely null, and have, in addition, subjected the officer to a public prosecution and severe punishment, upon conviction for a violation of the law. And much, perhaps, might be said in support of this principle, upon the score of public policy,

The doctrine, however, maintained, as it respects this class of trustees, by this Court, is, that where a purchase is made by a trustee, on his own account, of the estate of the cestui que trust, although sold at public auction, it is in the option of the cestui que

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Wurthy e d. nr. Johnson et al. trust to set aside the sale, whether bona fide made or not; and that it is voidable only and not absolutely void. Campbell vs. Walker, 5 Ves. 678, 680. 13 Vcs. 601. Ex parte Lacey, 6 Ves. 625. Ex parte Bennett, 10 l'es. 381, 385, 386. Morse vs. Royal, 12 Ves. 355. Whitcomb rs. Minchon, 5 Mad. Rep. 91. Bell's Supplement, pp. 11, 12. The heirs should make their election within a reasonable time, otherwise they would be precluded. · It is contended that the defendants, or at least that portion of them who bid off property, directly, at the sale, themselves, are protected in their title, because, as it is alleged, they are bona fide purchasers, even admitting the sale to have been contrary to law.

(9.) Two objections are taken to the legality of the sale. One, that the order of the Court of Ordinary does not show, upon its face, that the Court had jurisdiction; and the other, that the property was not advertised for sixty days, as required by the Statute. The Act of 1829, provides that “ It shall be lawful for the Inferior Courts of the several Counties in this State, when sitting for ordinary purposes, to order the sale of any slave or slaves, belonging to the estate of any testator, or intestate, or ward, on the application of the executor or executors, administrator, administrators or administratrix, or guardian or guardians, which shall be at public auction, and on the first Tuesday in the month, between the usual hours of sale, at the place of public sales in the County where the letters testamentary of administration or guardianship may have been granted, giving sixty days' notice thereof in one of the gazettes of the State, and at the door of the court house of the County where such sales are to be held, when it is made fully and plainly to appear, that the same will be for the benefit of the heirs and creditors of such estate, or of the ward of such guardian or guardians: Provided, that a notice of such application for leave to sell, be first made known, in one of the public gazeltes of this State, at least four months before any order absolute shall be made thereupon.” Prince, 284.

The order passed by the Court of Ordinary, authorizing the sale, is in these words: “Upon the application of Benjamin P. Robinson and Jane Worthy, executor and executrix of Thomas Worthy, deceased, for leave to sell the real estate and all the negroes of said Thomas Worthy, late of this County, deceased, and having published the same in terms of the law, it is ordered by

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