#### Daniel Prescott *vs.*John B. Holmes, Adm’r.

A purchaser of personal property at an administrator’s sale, "who has paid the money, cannot recover it back, either from the administrator or distributees, on the ground of an implied warranty of title or soundness.

BEFORE DARGAN, OH., AT EDGEFIELD, JUNE, 1853.

Dargan, Oh. E. M. Collier, (defendant’s intestate,} died in possession of a negro man slave named Isaac. By virtue of an order from tbe Ordinary, the defendant, John B. Holmes, as administrator of E. M. Collier, on the 8d December, 1889, sold the personal estate of his intestate; and at that sale, he sold the negro Isaac to the plaintiff, for $900, which was paid.

It seems that at his death, E. M. Collier had a good title only for a life estate in Isaac: that is to say, he had a good title to Isaac during the life of one Eaehel Holloway. At her death Isaac was to go by way of remainder, to Lucy Reese, *10the daughter of the said Rachel Holloway. The latter died about the 10th December, 1847; and afterwards Lucy Reese filed her bill in this Court, against Daniel Prescott and several other persons, for the recovery of Isaac and other negroes from Prescott, and for the recovery from the other defendants of negroes to which she had a similar title.

Upon the hearing of that cause, it was adjudged that Lucy Reese should recover the negroes, Isaac among the others, and they were decreed to be delivered up.

The plaintiff has filed this bill against the administrator of E. M. Collier, and his distributees, (the whole estate having been divided,) to recover damages for the failure of the title, *upon.the implied warranty ;*for it is not pretended that there was any express stipulation as to the title.

The defendants contend, that if the plaintiff has a right to recover, he has an adequate remedy at law, and they except to the jurisdiction of this Court to entertain a suit upon a warranty. This objection cannot prevail, because the estate of E. M. Collier has been distributed, and the plaintiff is seeking to subject said estate in the possession of the distributees to the payment of his claim. The plaintiff rests his claim to recover upon the implication of law, that where the vendor has received full consideration, he warrants both the title and the soundness.

In the application of this doctrine in cases involving questions of soundness in the physical qualities of chattels sold, it is clear that the implication of a warranty does not arise, where the defects amounting to unsoundness are patent; or where the vendee has been fully informed of them by the vendor; 'or where the vendee has information from other sources. These circumstances rebut the implication. For it is unreasonable to suppose, that a person purchasing property with a full knowledge of its physical defects, would not require an express warranty, if such were the stipulation between the parties.

*11The principle applies with equal force in sales, where the title proyes to be defective. Where the purchaser buys with a full knowledge of the defects of the title, it must be presumed to be a waiver of the warranty; which would otherwise be implied. In the reason of this distinction, there can be no difference in its application, whether to questions of soundness or of title.

The intestate E. M. Collier purchased Isaac from Lewis Holloway who was the son of Rachel Holloway, the life tenant, by whom Isaac had. been conveyed to the said Lewis Holloway.— It appears from the evidence of Lewis Holloway, that E. M. Collier, when he purchased Isaac, had notice of the claim of Lucy Reese. The contract was not to be considered consummated, until Lewis Holloway had extinguished the claim in remainder of Lucy Reese. This was supposed to have been accomplished by the release of Lucy Reese and her husband James Reese, and the contract between Lewis Holloway and E. M. Collier for the sale of Isaac was carried into effect. This release was considered and held to be null and void by the decree in the case of Lucy Reese vs. Prescott and others. It does not appear that' J. B. Holmes, the administrator of Collier, had notice of the defect in'the title to Isaac at the time of the sale to the plaintiff Prescott. But it does very clearly appear, that at the date of his purchase of Isaac, from the administrator of Collier, on the 23d December, 1839, the plaintiff Prescott had notice of the claim of Lucy Reese. He was the son-in-law of Rachel Holloway,and in the divisions by her in 1829, he received portions of the negroes claimed by Lucy Reese in remainder, amounting to about one-sixth thereof. And in 1829, with the view of quieting his title to the one-sixth, which he got in the division of 1820, he obtained a release from James Reese (the husband of Lucy Reese) of the interest and estate of the said Lucy Reese therein.

In 1819 and 1822, James Reese and Lucy Reese had instituted proceedings in the Court of Equity in the nature of a bill *12
      *quia timet,*against Edward B. Holloway and Rachel Holloway, the object of which was to secure the forthcoming of the property at the termination of Rachael Holloway’s life-estate. In his answer of the 15th November, 1849, to the bill of Lucy Reese, Daniel Prescott sets up in bar to her claim, James Reese’s release of 18th December, 1889. And he says, he was induced to obtain that release in consequence of the proceedings of 1819 and 1822. In the division by Rachael Holloway, Isaac fell to the share of Lewis Holloway, her son, and he sold to E. M. Collier, and at the sale of his estate as has been before stated, he was bought by Daniel Prescott. Isaac was of the same stock of negroes to which claim was set up by James and Lucy Reese in 1819 and 1822. I think the inference is irresistible, that Prescott, a party to the division, in which Isaac fell to Lewis Holloway, was aware of the claim of Lucy Reese upon Isaac, as well as upon his own share in that division. I think he was as fully informed of the state of the title as was the intestate E. M. Collier, and better than even John B. Holmes the administrator, who made the sale.

I cannot doubt, but that when the plaintiff purchased Isaac he knew the state of the title, and intended take the risk.— Under these circumstances, I am of the opinion that the irüpli-cation of a warranty is rebutted.

It is ordered, and decreed that the bill be dismissed.

The plaintiff appealed from the deeree'made in this case, and moved to reverse the same, and for a decree for the plaintiff on the grounds:

1. Because it is respectfully submitted that his Honor misconceived the facts, in stating that Lucy Reese was a party to the proceedings in Equity in the nature of a bill *quia timet,*in 1819 and 1822. .Those proceedings having been in the name of James Reese alone, as plaintiff, and in which the protection of his rights only, although claimed through his wife, and not of her fights, was sought and asked of the Court.

*132. Because, it is submitted, the plaintiff, Prescott, did not, at the time of his purchase of Isaac in 1839, have notice of the claim of Lucy Reese; and the priee given, being the full value, repels the presumption that he knowingly took the risk of Lucy Reese surviving her husband.

3. Because an administrator by a publie sale of the chattels of his intestate, under authority of law and by an order of the Court of Ordinary, warrants the title, as well as the soundness of the property, in all cases where publie notice is not given to the contrary, and such warranty forms a part of the terms of sale, applicable as well to those who may have, as to those who may not have notice of an imperfection in the title.-

4. Inasmuch as E. M. Collier, the intestate, had equal notice with the plaintiff Prescott, of the claim of Lucy Reese to the negro in question, and the sale having been made by publie auction without any reservation of warranty, no inference can be drawn that the sale was with warranty as to such persons as had no notice, and without warranty, if bought by one having notice of Lucy Reese’s claim; that is to say, assuming that both Collier and Prescott had notice of the claim of Lucy Reese, yet the publie sale by Holmes, the administrator, without a publie disavowal of warranty of title, implied a general warranty to whomsoever might become purchaser, whether with or without notice.

Baushett, for appellant.

*Carroll,*contra.

The opinion of the Court was delivered by

DüNKIN, Ch.

This Court is not dissatisfied with the views of the evidence taken by the Chancellor from which he infers *14that, at .the time of the purchase in 1839, the plaintiff had notice of the infirmity in E. M. Collier’s title, and consequently would not be entitled to recover on an implied warranty. But a majority of the Court are also of opinion that, after the contract has been fully executed and the money paid, it cannot be recovered back either from the administrator or distributees of an estate upon the ground of an implied warranty. It is very diflicult to add anything to what is said by Mr. Justice Evans (whose judgment vras that of the Court,) in *Evans*vs. *Dendy,*2 Speer, 9. The doctrine of an implied warranty was an innovation upon the principles of the common law which required parties to examine for themselves, and, if they deemed it necessary, to protect themselves by proper covenants. Judges of the largest experience have often regretted the introduction of a different doctrine as the source of much unprofitable and vexatious litigation; and the universal opinion seems to prevail that it should not be further extended. It has been repeatedly held that the common law rule of *caveat emptor*applies to sheriff’s sales. No ease can be found in which a purchaser of personal property at the sales of an executor or administrator, who has paid his money, has been allowed to recover it back for unsoundness in the property or defect of title. In all the cases cited for the plaintiff this was relied upon by way of defence in an action for the purchase money, and the equitable distinction may have been recognized between an executed and an executory contract. Attempts have been made to go further, and to recover back the purchase money, but, so far as may be learned from the reports, the right has never been recognized. In *O’Neall*vs. Abney, 2 Bail. 318, the Court ruled that an administrator *de bonis non*was not liable on an implied warranty in a sale by his predecessor, the former administrator.— It was also there held that an administrator has no authority to bind the estate of his intestate by any contract, express or implied. *That*was an action to recover back the purchase money on account of the unsoundness of the property sold. But *15
      *Fuller*vs. *Fowler,*1 Bail. 75, was an action by the purchaser of a negro to recover from the distributee of an estate, the share of the purchase money which the distributee had received, the negro having been sold under an order of the Court of Equity for partition, and having proved to be unsound at the time of the sale. The plaintiff w’as non-suited on the ground that there was no privity of contract; which could not be, as was well declared in *Evans*vs. *Dendy,*if the law .implied a warranty in the sale by the commissioner. Substantially that case is decisive of this. The mode of distribution makes no difference in regard to the liability of the distributee. Without in any manner calling in question what has been heretofore decided in cases where the purchaser of personal property was defendant, we are content to adopt the rule of *Evans*vs. *Dendy,*when it is sought to recover back the purchase money either from the administrator or distributees of an estate, on the ground of an implied warranty.

It is ordered and decreed that the decree of the Circuit Court be affirmed and the appeal dismissed.

Daugan and WARDLAW, CC., concurred.

*Feeree affirmed.*