#### Aaron Ray, Pltff in Error, *v.*Kinsey Virgin, Deft in Error.

ERROR TO MASON.

In an action on a note given for goods bought at an administrator’s side, the purchaser may show, in defence to the note, that the administrator, knowing the contrary, fraudulently represented the goods to be sound.

The defendant, Kinsey Virgin, was administrator of an estate. At the sale of the personal property of said estate by said Virgin, the plaintiff in error bought two horses, and gave the note sued on. The suit was brought before a justice of the.peace, and a judgment rendered against Ray for the amount of the note, and he took an appeal to the Circuit Court.

Upon the trial in that Court, the defendant below, proved that the sale of said horses was made by Ray in person, at a public, auction. That he represented, that said horses were sound and free from all diseases, except the horse distemper; when in truth, said horses had the glanders and were of no value whatever, and this was known to the administrator when he made those representations, and therefore, that the note was given without any consideration, and was procured by the fraud of said Virgin.

All this testimony was rejected by the Judge of the Circuit Court, upon the ground, that the false and fraudulent statements of the administrator, whereby he obtained this note for the use of the estate, were not admissible to prove that the note was without consideration; and the only remedy the maker of the note has in such a case is, to pay the note to the estate, and sue the administrator in his own right, and make him personally liable for the consequences of his fraud. The jury in the Circuit Court then gave a verdict for the amount of the note, and a judgment was rendered thereon. To reverse this judgment, this ease is brought here, and the error assigned is the refusal of the Circuit Court to permit said evidence to go to the jury.

M. McConnel, for Pltff in Error, submitted this cause to the Court *ex parte.*

Caton, J.

The only question in this case is, whether a party who has given a note for goods purchased at an administrator’s sale, may show in his defence to the note, that the admin*219istrator fraudulently represented the goods to be sound, when he knew them to be unsound. This precise question was decided in the case of Rice *v.*Richardson, 3 Alabama, 438, where such a defence was held to be admissible. Of the correctness of that decision I entertain no doubt. It is sustained by every principle of reason, of justice, and of public policy. It would never do to allow administrators, and other fiduciary officers, to exert their ingenuity in perpetrating frauds, and by that means obtain the notes of individuals, and then allow them to say that they had committed the fraud, not for their own benefit, but for that of the estate. Such an end cannot sanctify such means. There is no merit in the estate to authorize the enforcement of a demand thus obtained, more than there would be, had the fraud been committed by, and the note given to, the intestate. It is not making the estate responsible for the fraud of the administrator, for it loses nothing as a penalty for that fraud, which originally belonged to it, but it is preventing the collection of a claim to which the estate has no just right. The contract is executory, and being founded in fraud, cannot he enforced. Had the contract been executed, it might be impracticable to allow the money received to be recovered back, and the injured party would have to seek redress against the administrator personally. But' the rule must be different where the contract is executory.

To put an extreme case, yet one precisely within the rule contended for by the administrator. Let an administrator take a quantity of saw-dust, found on the estate of his intestate, and put it up in chests, marked as a genuine article of tea imported from China, throw it into the market and sell it at auction for tea, as a part of the assets in bis hands, for ten thousand dollars, and take notes for the amount, could the administrator be allowed to collect those notes? In that case it would he hut poor consolation to the victims, while making them pay their notes, to satisfy the debts of others against an insolvent estate, to tell them that they may sue an irresponsible administrator, and make him answer personally for the fraud. Had this note been given to the intestate, under the same circumstances, no one would deny the admissibility of the defence, yet there would be just as much merit in the claim then as now. The law cannot sanction a fraud by enforcing a contract impregnated with it.

*220If the administrator makes representations which he knows to be untrue, for the purpose of deceiving the purchaser, who is thereby deceived, without that degree of negligence on his part, which will throw the responsibility of the deception upon himself, wc hold that he may show that fraud in defence to the note. This does not dispense with the application of the rule, caveq| emptor, to such sales. I know of no case where that rule has ever been so applied as to excuse a fraud. The utmost vigilance may often be unable to guard against the practices of the fraudulent. As has been repeatedly decided by this Court, in the absence of fraud, the purchaser at such sales must not only look out for the title, but for the quality of the article which he purchases. Nor can the administrator bind the estate, by a warranty of either. If he assumes to do so, he would be personally responsible upon such warranty. This is carrying the doctrine of risk to the purchaser and immunity to the estate far enough. To go farther, and sanction the practice of a fraud, would tend to drive all prudent men from such sales, which would prove a serious detriment to estates. The evidence should have been admitted. The judgment is reversed and the cause remanded.

*Judgment reversed.*