#### A. W. CLAYTON *against*A. J. GLOVER.

A court of equity has power to set aside a sale made under its order, as well at the instance of the purchaser, as of the owner of the property.

Where the Judge in the Court below refused to set aside a sale because of a mistaken idea that his discretion was controlled by a principle of law which had no application, it was *IIeld*an appeal would lie to this Court, and that the question should be sent back to the Court below, that it may be again considered by the Court, and his discretion fairly exercised.

Appeal from a decree made by his Honor, Judge Caldwell, at the Court of Equity of Chowan Fall Term, 1857.

The plaintiff, by his guardian, had filed his petition at the Spring Term of the Court, for the sale of a slave named Alfred. At the Fall Term, .1857, the clerk and master made the following report: “ Iri this case the undersigned reports, that he exposed the slave Alfred to sale, at the court-house door, in the town of Edenton, on the 3rd Monday in June, 1857, on a credit of six and twelve months, with interest from date, after deducting $75 in cash to pay costs; having first duly advertised according to an order of this Court, at Spring Term, 1857, at which time and place, appeared Andrew J. Glover, and bid for the said slave $1000, which is the full value of said slave.”

“ At the time of the sale, and in the hearing of all persons present, the undersigned made known, that there was a defect in each of the said slave’s eyes, and called up the said *372slave so near the stand, that all persons present could see the said defect, which was patent.”

“ After that declaration and the sale, the said Glover took possession of the said slave, but refused to comply with the terms of the sale on account of said defects.”

“The undersigned has not since exercised any control over the said slave, nor has the guardian, on whose petition he was sold. Said Glover still refuses to comply with the terms of the sale.”

At this Court, (Fall Term, 1857,) the purchaser, Glover, appeared and filed the following affidavits of himself and Edward Warren and Thomas Gregory, upon which he based a motion to have the sale of the slave Alfred set aside, viz :

“ A. J. Glover maketh oath, that he was not present when the condition of the said slaves’' eyes was made known by the clerk and master, that he saw the white spots in the eyes, but thought the said slave had glass-eyes, which is a sure sign of permanent vision ; that he afterwards consulted a physician, who, on an examination, informed him that the eyes were defective, and that the said slave might go blind immediately.”

“ Edward Warren being duly sworn, maketh oath that he is a physician, and that at the request of A. J. Glover, he examined the eyes of the slave Alfred, and found them defective; that there Avas a Avliite spot upon each eye, produced by disease, Avhicli may increase and finally destroy the sight of the said slave.”

“ Thomas Gregory maketh oath, that he considers the said slave worth about $500, with his eyes defective.”

His Honor, after hearing the report of the clerk and master, and the affidavit of A. J. Glover, and the depositions of the Avitnesses, decreed as follows: “That inasmuch as there is no Avarranty of soundness in the sale, by a clerk and master in equity, that the sale and report be, in all respects, confirmed, and that the said A. J. Glover do comply Avith the terms of sale.” From which decree Glover appealed.

*373No counsel for plaintiff.

Heath, for defendant.

Battle, J.

Had his Honor, after hearing the report of the clerk and master, and the affidavits produced by the purchaser, refused to set aside the sale, upon the ground that the purchaser had shown no sufficient cause for relief, there might have been a question, whether upon an appeal, we could review his decision ; but he declined to grant relief upon another ground, to wit, a want of authority ; assigning as a reason, that there was no warranty of soundness in the sale of a slave by a clerk and master in equity. This was putting the case upon a question of law, and not of fact, and we, therefore, think an appeal lies from his order or decree. See *Freeman*v. Morris, Bush. Rep. 287, and the cases therein referred to.

The Court of Equity has, undoubtedly, the power to set aside a judicial sale, made in pursuance of its .order, whenever the owner of the property,tor those who act for him, can show that the price bid is inadequate, and it would seem that in fairness, the court ought to have the corresponding power to relieve the purchaser, whenever, from fraud and mistake, he has bid too much for the property; and such, from the authorities, wo find to be the case. In *Morehead*v. *Frederick,*(stated in Sug. on Yen. and Pur. page 80, and in the App. No. 10, of the Am. from 9th London Ed.) the purchaser was relieved from his purchase, on the ground of mistake; and in Note 3, to 2 Dan. Oh. Prac. 1515, (Am. Ed.) wo find that similar relief has been granted by courts of Chancery of several of our sister States. The sale being made under its authority7, the court will see that justice shall be done to both vendor and purchaser, upon the fairest principles of equity and good conscience.

Believing that his Honor erred, in supposing that he had no power to interpose in favor of the purchaser, his interlocutor}7 order must be reversed, and this opinion certified to the Court below.

Pee OuexaM, Decree accordingly.