
    Sypert vs. Sawyer, Ex’r.
    
    1. In tho absence of fraud a Court of Chancery has no right to decree relief on a warranty.
    2. Warranty is a personal covenant, for which an executor, who gives it, is personally responsible.
    Sawyer, as executor of Smith, sold a slave, Eda, at public auction to Sypert. The slave was cried off as sound, healthy, and sensible, and a bill of sale executed, warranting the slave to be sound, healthy, and sensible. This bill of sale was signed by Sawyer as executor of Smith, deceased.
    The slave was afflicted with scrofula at the time of the sale. The executor was the son-in-law of Smith.
    This bill was filed in the Chancery Court at Lebanon, to enjoin the collection of the purchase money, to wit, the sum of $400, for which Sypert had executed his promissory note, and on which suit had been brought.
    The bill charges, that the slave, Eda, was neither sound, healthy, nor sensible; and that this fact was well known to the defendant, but that he fraudulently concealed it, and sold the slave as sound in body and mind. The bill further charges, that the defendant was not only interested in the sale as executor, but had “a personal interest in the proceeds as one of the distributees of the estate of Smith.”
    The defendant answered, and Chancellor Ridley being of the opinion, that to give a Court of Chancery jurisdiction to decree relief, the warranty must be fraudulent; and being of the opinion that the proof did not exhibit fraud, dismissed the bill.
    The complainant appealed.
    
      R. L. Caruthers, for Complainant.
    The Chancellor dismissed the bill for want of jurisdiction, not being satisfied from the proof, that defendant knew of the unsoundness.
    For complainant, I insist that the Chancellor erred in applying the general doctrine of jurisdiction in cases of warranty to this case. Here the warranty is made by defendant, as executor, and it was proper to come at once into equity against him, as a trustee, to cancel the sale and receive remuneration out of the trust fund in his hands before the same should be disbursed. As the negro or her price belonged to the estate, equity is the proper place to adjust the rights of all the parties.
    But independent of this distinction, the complainant is entitled to relief upon the general doctrine, because the defendant knew of the unsoundness, and is therefore chargeable with fraud, which gives jurisdiction.
    
      Stokes, for defendant.
   Turley, J.

delivered the opinion of the court.

In this case, we think, there was no fraud in the warranty of soundness of the slave; and that, therefore, the complainant must be left to his remedy at law upon his warranty.

There is nothing in the objection taken to this, upon the ground, that the defendant warranted as executor, and is, therefore, responsible in equity, because he is a trustee, and has a right, as such, to have the whole matter heard in chancery, where he can have compensation, if made responsible upon his warranty, against the estate.

The warranty is a personal covenant, for which the executor is personally responsible, although he execute it as executor, and is, therefore, liable at law.

What might be his rights against the estate, when he has been held personally responsible, we do not at present deem it proper to determine.

The decree will, therefore, be affirmed.  