#### Allen v. Winston’s Administrator.

March, 1822.

Sale of Land — Declarations in Presence of Vendor— ■ Effect. — Where land Is sold at public auction, and a third person makes a declaration in the hearing of the vendor and the bidders, that he is agent for persons having a claim to part of the land, but that an agreement has been made between him and the vendor, bv which the purchaser shall not be injured by the conflicting claims, and the vendor remain silent, he shall be bound by such declaration.

Appeal from the superior court of chancery, for the Richmond district.

. William A. Allen presented a bill to the chancellor, in vacation, praying an injunction to a judgment which Edmund Winston administrator, with the will annexed of Edmund Winston deceased, had_obtained against him, on *a bond given by the complainant for a tract of land which he had purchased, at public sale, and which was directed to be sold, by the will of the said Edmund Winston deceased. He also prayed an injunction to stay the,proceedings in a suit brought on another bond, given for the same consideration, on which judgment had not been yet obtained. The- material facts set forth in the bill, were these: that Edmund Winston, the defendant, advertised for sale, at public auction, certain tracts of land in Buckingham county, being part of the estate of his testator, which sale was authorised by his will: that it was understood, that a fee simple title, with general warranty, was to be conveyed: that on the day of sale, some doubts were expressed with regard to the title of the testator, a claim having been set up by the heirs of one Elizabeth Hudson: that Edward Booker, the attorney at law for the heirs of the said Elizabeth, publicly proclaimed, that he had been employed to prosecute a suit for the land in question: that as soon as the requisite papers could be obtained, the suit would be instituted; but, that no purchaser could be affected by his clients’ claim, as they had authorised him to state, that in case of the recovery of the land, they would be willing to receive the purchase money, and that it was immaterial to the purchaser to whom that was paid: that upon this, the complainant became the purchaser of one of the aforesaid tracts of land, containing 324 acres at $13.05 per acre, for which he gave his bonds according to the terms of sale, believing that whoever received his money would convey to him an indefeasible title: that Edmund Winston delivered to him a deed, which he has since been advised by counsel is insufficient, and which he believes was written to defraud him: that in consequence of this opinion, the complainant has not had the said deed recorded: that judgment has been obtained on one of the aforesaid bonds, and a suit instituted on the other: that the heirs of the said Hudson, have brought a suit in the county court *of Buckingham against him, the said E. Winston and others, to recover the land aforesaid, which suit is still depending: He therefore prays an injunction to stay the proceedings in the said suits, until the suit aforesaid in Buckingham shall be decided, and he can determine to whom he is to pay the price agreed to be given for the land.

Upon this bill, an injunction was awarded.

The answer of Edmund Winston, administrator with the will annexed of Edmund Winston deceased, admits the sale as stated in the bill: that the complainant became the purchaser of the quantity of land in the bill stated, and that he executed his bonds for the purchase .money. He denies, that it was understood at the sale, that a fee simple title, with general warranty, was to be made to the purchaser;‘on the contrary, it was clearly understood, that the defendant would not make himself responsible for the title, and would convey only such as was vested in him by the will. He does not admit, that when the plaintiff executed his bonds aforesaid, he did it under the belief, that whosoever received his money would convey to him an indefeasible title; and he expressly denies, that he intended or practised any fraud on the plaintiff, in executing to him a deed for the land he had purchased. He asserts that the deed was strictly in pursuance of the terms of sale, distinctly announced at the time, and well understood, as he believes, _ by all the purchasers: that having heard in his father’s lifetime of a claim set up by the heirs of E. Hudson, to some part of the said land, he resolved to make the sale in such manner as to guard against any responsibility for the title. He, therefore, on the day of sale, after the company had assembled, mentioned publicly that he had heard of the claim aforesaid: that he *35referred the people to Mr. Edmund Booker (a lawyer, then present, who had been employed to prosecute the claim of the Hudsons,) for information: that Mr. Booker addressed the people publicly on the subject; told them that he had *been employed to prosecute the claim; that he was to have one half of the land he could recover; that those disposed to purchase might go on to buy, notwithstanding his claim, and if it was afterwards found to be good, they - might pay him the purchase money: that the defendant did not assent in any manner to this proposition, but on the contrary mentioned to several who were desirous to purchase, and he thinks to the plaintiff among the rest, that the declaration of Mr. Booker was calculated to lead them into an error, for, that he would not consent to their paying the purchase money to Mr. Booker in any event: that he would sell such title only as he had a right to sell, under his father’s will, and would be responsible for none other: that the defendant, after Mr. Booker’s address, and before the commencement of the sale, caused it to be proclaimed by the cryer, that he sold only such title as was vested in him by the will: that he believes that this declaration caused the land to sell much lower than it otherwise would have done. After the sale was over, a deed was executed to the plaintiff in strict pursuance of the terms of sale, who made no objection to it, although it was distinctly read over to him, and he read it himself; and executed his bonds with the said Edward Booker, as his surety, for the purchase money: and as a further security, gave a deed of trust on the land itself. The defendant says further, that he does not believe the claim of the heirs of E. Hudson can be supported, and he suspects that the suit in their name has been probably brought at the instance of the plaintiff and other purchasers at the sale aforesaid, to enable them to delay the payment of the purchase money.

The plaintiff replied generally.

Many affidavits were taken on both sides, which go to establish the facts of Booker’s declaration; of Winston’s silence; of the proclamation made by the cryer that Winston *would not be responsible for any thing more than the title which he derived from his father; of the price of the land being enhanced by Booker’s proclamation. One witness states, that he did not hear the proclamation made by the cryer.

On the motion, the chancellor dissolved the injunction.

A petition for an appeal, was presented to a judge of this court, and granted.

Leigh, for the appellant,

contended, that Winston gave his assent to Brooker’s declaration that the land might be sold, and that the Hudsons would be content to receive the proportion which might fall to them, when their claim should be adjusted. Under such circumstances, silence was equivalent to express assent. It was the •duty of Winston to have contradicted Booker’s declaration, if he did not mean to sanction it. But, by remaining silent he led the purchasers into an error, and encouraged them to bid their money under a false expectation. That such was the effect, is proved by several affidavits, which declare that the land was enhanced in price, by the idea that the purchaser might pay his money either to Hudson or Winston, as their rights might be thereafter adjusted. But, the case does not rest merely on the silence of Winston. He expressly recognised the declarations of Booker, by referring to him on the day of sale, to give the people information of the state of the adverse claim. When, therefore, Booker made the statement in question, and Winston remained silent, what were the people to conclude, but that Winston assented to his statements? It is not consistent with natural equity, that Winston should receive the whole purchase money, when the title to a part of the land was in dispute.

Johnson, for the appellee.

Winston did not acquiesce in the statements of Booker, but told many people that Booker had no authority to say any thing about the appropriation *of the purchase money. Indeed, he publicly contradicted it by making the cryer announce, that he would only be responsible for the title which he held under his father’s will. Booker was Winston’s adversary, not his agent. He ought not, therefore, to be considered as adopting the assertions of Booker, by mere silence; even if he had not expressly contradicted them by the proclamation of the cryer. But, the subsequent conduct of the appellant places this subject beyond doubt. He gave an unconditional bond, and received a deed without a general warranty: that an executor or administrator is not bound to give a general warranty, is proved by a case in 3 Vez. jr.(a) and by Syme v. Johnson. (b) The doctrine of failure of consideration does not apply to the sale of land evidenced by deed. The jleed alone expresses the extent of the vendor’s liability, (c) Cases of fraud are alone excepted.(d) But Allen has shewn no defect of title. It would be very easy to evade a just debt, if the bare allegation of a claim should be deemed sufficient to enjoin it.

Leigh, in reply.

There is no ground to presume any collusion between Allen and the Hudsons. The proofs are complete to shew, that this claim had long subsisted, and has since been actually put in suit. The evidence of acquiescence, on the part of Winston, cannot admit of a doubt. It is precisely similar in principle, to the case of a mortgagee standing by when the mortgaged lands are sold. As to the pretence that Winston contradicted the declarations of Booker, it is not proved by any of the persons to whom he is said to have spoken. But, if it were, such contradiction would not affect Allen, unless it was made personally to him. Booker’s declaration was *36made publicly and heard by every one present. The pretended *contradiction is said to have been made to a small circle of persons, none of whom are brought to confirm the assertion. The proclamation of the cryer, so far from being in opposition to the declaration of Booker, is perfectly consistent with it. Winston might very well say, that he would only be responsible for his father’s title, and at the same time, that he would agree to divide the purchase money with the Hudsons, if they should recover^ any part of the land. As to the unconditional bond and the deed without general warranty, they both proceeded from the confidence inspired by Winston’s conduct and the positive' declarations of Booker, that the purchaser should run no risque. The cases cited by Mr. Johnson have no bearing upon a question, where fraud or deception is a principal ingredient.

(a)

а) p. 283, 503.

(b)

3 Call, 558.

(c)

 Sug-d. 813.

(d)

 Sugd. 315. Eonb. vol. 1, p. 261, n. *g.*

JUDGE BROOKE,

delivered the opinion of the court.*

The court is of opinion, that although the appellee was not'bound to give a general warranty, yet by the bill, answer, exhibits and depositions, it sufficiently appears, that he permitted it to be understood by the bidders and by-standers, at the sale of the land in question, in a manner equivalent to his express assent, that the purchase money was to be paid to him or to the representatives of Elizabeth Hudson, in the event that they had a better title. The court is therefore of opinion, that the injunction ought not to have been dissolved, until the state of that title had been ascertained to the satisfaction of the chancellor. The decree is therefore reversed, the injunction re-instated, and the cause remanded to be further proceeded in, according to the principles aforesaid.