#### John Atkinson *v. J*ohn Farmer and others.

From Johnston.

party has no remedy to recover a debt once sited for, the .execution on which has been returned “satisfied.”

Purchaser at Sherdi’s Sale. — A't a Sheriff’s sale there is no warranty of title, independent o: the act of 180/1; ch. *4a*Whoever, therefore, purchases, runs the risk of a bad title.

Jto man can be compelled to become debtor to another, except in the case of a protested bill of exchange paid for the honor of the ' drawer ; if, therefore, at a Sheriff’s sale, the Plaintiff in the execution purchase the property, and the title prove bad, the law raises no assumpsit m the debtor or Defendant .n execution to make good to the purchaser the sum lost by such purchase. \

Executor and Administrator. — If an Administrator has delivered over the property to the next of kin, or has delivered part and wasted part, so as not to be able to pay the debt, the property may be followed into the hands of the next of kin, although the Administrator has wasted more of the assets than the debt amounts to.

But where, in the settlement of an Administrator’s accounts, a certain sum is left in his hands to pay a debt, as to the next of kin, that debt is paid ; the creditor must look to the Administrator and his securities. BUtthe securities are not liable if suit has been brought by the creditor against the Administrator for this debt, and at the Sheriff’s sale such creditor has purchased the property sold, by reason of which the execution is returned “ satisfied although tile creditor may afterwards lose the property by reason of a superior title.

This bill was filed against the administrator and dis-tributees of the estate of William Farmer, deceased* charging, that William Farmer being indebted to Jolin Atkinson upon bond, died intestate, and administration of his estate was granted to Benjamin farmer, who was sued by Atkinson, and judgment recovered. Execution issued against the goods of the intestate in the hands of his administrator. Pending the suit, the- administrator-delivered to the next of kin, who were the Defendants in this case, their several shares of the intestate’s estate; nevertheless, the Sheriff seized and sold some of the ne-groes delivered over to the Defendants, and complain-, amt became the purchaser at the price of g7J0, and took *292the Administrator’s bond for the balance of the debt; in consequence of which, ihe Sheriff returned he execution “satisfied.” Not long afterwards, the distributees, to w[l0!í) (jie gaj¿ negroes bad been delivered, got possession of them, am! complainant being advised that he could not recover them, as the title did not pass to him by the sale, and his remedy at law being gone for his debt, he charged that other property liad been sold by the Administrator, the proceeds of which had not been exhausted by the payment of the intestate’s debts, and prayed for an account of this sale, and for payment to himself of any residue that might be in the Administrator’s bands *;*and, as to the next of kin, he prayed that they might be decreed to pay the balance of his debt, in consideration of their being in possession of the estate of their intestate.

The distributees pleaded, that in the settlement of the Administration accounts of the estate of William Farmer, deceased, the Administrator bad been credited with the amount of the complainant’s judgment at law against liim, and that the residue only of their intestate’s estate bad been distributed among them, (costs and charges deducted.) And some of the distributees, in their answer insisted, that by the finding of the Jury it appeared, that when complainant recovered hisjudgment against the Administrator, there were assets sufficient in the Administrator’s bands' to discharge said judgment, and' that he gave security for his Administration ¿ that com-pkunani’s remedy, if he were entitled to any, was against the Administrator and his securities.

The Court of Equity for Johnston county, upon hearing the bill, answers, pleas, &c. decreed, that the Defendants should pay to complainant ¿§281 19s. *4d.*and that each party should pay his own costs. From this decree the Defendants appealed to this Court. The case was argued by *I). Cameron*and *Gaston,*for the complainant, and by *Seawelt*and *Browne,*for the Defendants. *293The complainants relied upon l *Eq. Ca. Mr.*237, *Fla.*lo : and the Defendants upon 3 *Aik.*91, 406. 3 *F, Wms*98, 332. «

Haii, Judge,

delivered the opinion of the Court:

It-may be well doubted whether the complainant has any remedy to recover this debt, since the execution has been returned *“*satisfied.” When property is sold under execution, whether real or personal, there is no warranty of title either express or implied attached to such sale, independent of the act of 1807, cb. 4. There is no compulsion on any one to purchase j but he who pleases to. purchase, incurs the risk of purchasing a bad title. If a stranger had purchased in the present instance, could he have recovered iiis money back upon finding he had purchased a bad title? And can it make any difference that the purchaser was the Plaintiff in the execution ? He had the liberty of bidding, but when he purchased he stood in the same situation with a stranger. He was creditor and purchaser both ; in which of these capacities does ho come into the Court ? As creditor, it is said. Suppose, then, that a stranger had purchased and paid the money through the Sheriff to the Plaintiff, the Plain-, tiff would have no claim either at law or in equity ; his, claim would be satisfied, and he would rest satisfied, but the purchaser would not; and it is in that character that the complainant now stands in this Court.

It seems to be an established principle, that no man shall be compelled to become the debtor of another, except in cases of hills of exchange, paid when protested, for the honor of the drawer, (1 *Term*20. 1 *H. Bl.*83, 91.3 *Esp. Rep.*112;) find cases of implied assumpsits do not contradict the rule. If one person pay the debt of another, merely because he chooses to do it, he cannot recover the amount so paid from the debtor. Nor is the case different, if he voluntarily purchase a bad title at a Sheriff’s sale, and thereby discharges it. The law in *294such case will not imply an assumpsit. There is no pri-vity of contract between the parties. For these reasons, the complainant is not entitled to the relief he asks,

But if complainant be entitled to recover, who ought to pay the debt? In common cases the Administrator ought to pay$ but if he. has delivered the property over to the next of kin, or if, as in the present case, he lias delivered over part and wasted part, so as not to be able to pay the debt, the property may be followed into the hands of the next of kin, although the administrator lias wasted more of the assets than the debts amount to. Butin the present case, the Adminístralo!* stands upon very different grounds. líe liad a demand at law, and at law that demand has been satisfied, and becomes into the Court to ask a favor. The equity of his request must he examined, as well as the equ.ty of the Defendant's objections. What are they ? They, state that this amount was paid to, or left in, the hands of the Administrator, for the purpose of paying this debt As to them, then, it is paid; the Administrator was the proper person to receive it from them, and they have- fully paid it, although the complainant never received it. We are then Jed to inquire who was in fault? and the answer is, the Administrator, and he is insolvent. The next question is, Ought not his securities to pay it? They undertoook for bis faithful administration of the estate, in which he has failed, and of course it would seem that they are answerable. But it is said that they are exonerated at law, and that equity will oncrate them. Admitting that to be the case, it has been brought about by the conduct of the complainant himself, by bidding at the Sheriff’s sale, and having his execution returned “ satisfied.” And if he by that means has put it out of his power to receive his debt from them, others ought not to be liable on that account. The Defendants have equal equity with the complainant, and this Court can give no relief. The bill must he dismissed.