
    Robertson v. Ewell.
    Argued, Thursday, October 3d, 1811.
    i. Executors — Sale of Personalty — Retention of Possession by Executor — Effect.—An absolute bill of sale of slaves, by an executor, who is nevertheless permitted to retain the possession thereof, is fraudulent and void, as to legatees, as well as creditors a,nd purchasers.
    a. Same — Sale of Slaves to Pay Personal Debt — Effect. —Quaere, whether a sale, by an executor, of slaves belonging to the estate of his testator for the purpose of paying a private debt of his own to the purchaser, be void as to residuary legatees, upon its appearing that the personal assets were sufficient (exclusive of slaves) for paying the debts and expenses, and that the purchaser knew in what right the executor held the property though he might not have known the state of the assets.
    3. Special Verdict — Fraud.—It is not necessary in a special verdict, that fraud be found expressly, eo nomine; if facts amounting to fraud in legal construction be found.
    This was an action of detinue, for a negro woman slave Hannah, and her child Billy, instituted in the year 1801, in the Northumberland District Court by James Ewell, senior, against Robert Monroe Robertson. Plea non detinet and issue. At the trial, the jury found a special verdict, the material parts of which were, in substance, that the said slave Hannah, was the property of Andrew Robertson, (father of the defendant,) who departed this life in the year 1795, having duly made his last will and testament, in which he appointed his widow executrix, and his son-in-law, James Ewell, jun., and the defendant, his executors, of whom the said Ewell and the widow qualified, that the said James Ewell, jun., being possessed of the said negro woman and her child, as executor *as aforesaid, did, on the 16th day of November, 1798, by a bill of sale, sell the said slaves, (and also one by the name of Peter, which he held by a gift from the testator in his lifetime,) to the plaintiff in this action, “to pay and satisfy a debt or debts due from the said James Ewell, jun., to the said plaintiff;” that it “was well known to the plaintiff, at the time of his making the said purchase,” “that the said Hannah and Billy had been the property of the said testator, and that the said James Ewell, jun., held the same as one of his executors; that the testator, at the time of his death, left personal property  more than sufficient to pay his debts;” but whether this last-mentioned circumstance was known- to the plaintiff was not found.
    It was further found, by the verdict, that James Ewell, jun., at the time he made the said bill of sale, delivered the said negro Peter to the plaintiff in the name of all the negroes mentioned therein; but retained the said slaves Hannah and Billy in his possession until April, 1801, when he lost them, and they came into the possession of the defendant; that, in the year 1800, the defendant demanded the said negroes of James Ewell, jun., telling him that he understood he intended selling them out of the country, which the said James denied, and begged he might keep them till the end of the year, when they would be returned.
    It was also found that James Ewell, jun., was possessed of a negro girl by the name of Peggy, delivered before the death of the testator; and also of a negro girl named Maria, who, at the testator’s death, was a part of his estate; “which said Maria, he the said James Ewell, jun., carried off with him when he left this part of the country.” The bill of sale (being found in hsec verba) conveyed two negro girls, Peggy and Maria, as well as the ^slaves before mentioned; but the verdict did not state that the Peggy delivered to James Ewell, jun., before the death of the testator, arid the Maria whom he carried off, were the same Peggy and Maria mentioned in the bill of sale.
    It was found that the defendant was one of the legatees of the testator, by whose will, (which was found in hace verba,) he was constituted one of four residuary legatees ; the slaves in question being not specifically bequeathed.
    Upon this special verdict, the District Court gave judgment for the plaintiff, to which a writ of supersedeas was awarded by this court; the grounds for reversal stated in the petition, being, 1. Because the sale of the slaves was illegal, and contrary to the duty of the said James Ewell, jun., and that with the knowledge of the plaintiff; Rev. Code, Vol. 1, ch. 170, sect. 2, p. 320; and, 2. Because the plaintiff’s permitting the said James Ewell jun., to remain in possession of the said slaves, after his purchase, and contrary to the tenor of the bill of sale, was fraudulent as to the petitioner and those interested in the estate.
    In support of the first point, Wick-ham observed, it is not found that the executor applied the money, for which the slaves were sold, to payment of the testator’s debts, or that the estate was any way benefited by the sale, being not necessary for payment of debts, it was therefore void under the act of assembly. I do not contend, that if an executor sells slaves for ready money, or on credit, the purchaser is, in all cases, bound to see to the application of the purchase money; but if the sale be, expressly, to pay the executor’s own proper debt, the purchaser buys at his peril, and ought to be liable, if it turn out that, in fact, it was not necessary. Even in England, where there is no such act of parliament, it has'been held that, if an executor sells a specific legacy, to pay his own debt, the legatee may recover it back.
    
    *Another circumstance has great weight in this case. There were several executors, of whom my client was one. It was the business of the purchaser to inquire of the other executors whether they assented to the sale.
    2. The purchase was a direct fraud upon the persons interested in the estate. The bill of sale was absolute, yet possession remained with Ewell, the executor. If the slaves had been his own, a sale in this manner would have been fraudulent per se against creditors. We are his creditors for the negroes themselves. Here false colours were hung out. The negroes were demanded by the defendant, after the bill of sale; and the executor promised to deliver them at the end of the year.
    Botts, contra.
    The plaintiff, who bought of the executor, was not to be presumed conusant of the state of the assets. It is not found that he was; and, from the nature of things, the contrary is rather to be inferred. He had a right to presume that the executor had, out of his own funds, made advances to his testator’s creditors, to the value of the slaves in question, beyond so much of the assets, (made liable bv law before slaves,) as had come to his hands; in which case, he had a clear legal title to sell them for his reimbursement; or, indeed, to convert them to his own use as compensation,  A state of things might have existed to justify the sale. How was the purchaser to know it? Was he to call on the executor for a previous account of assets? The executor, if so disposed, might easily have imposed upon him. If the principle now contended for should be established, no person would buy of an executor. Is suit to be brought by the executor against the legatee, for settlement of his administration account, before he can sell any slave belonging to his testator’s estate? Was ever such a suit heard of?
    *Why should the purchaser be the loser? Is it not the better rule to leave the executor and his securities responsible to persons injured, in case he sells improperly; but let the sale stand ’ good, rather than hamper all sales by executors with such insuperable difficulties? Does the discount of the executor’s private debt make any difference? If he had sold the slaves for cash, he might nave paid away the money immediately in discharge of his own debt. Is a court of law, on the plea of non detinet, in an action of detinue depending on a sale by an executor, to examine his administration account, and this, too, when the residuary legatees are not parties to the suit? Is this laborious investigation to be made on the sale of every article of property?
    All the cases in Sugden were in equity; and many of them turned on fraud committed by the purchaser: but such as were decided by Eord Hardwicke,  are in my favour. The case determined by Eord Kenyon  was on very different ground, and did not impeach the authority of Eord Hardwicke. The other overruling cases are all since our revolution, and by judges of inferior talents to Hardwicke, or not touching the point decided by him.
    
    The provision in our Act of Assembly is only mandatory to the executor; making him responsible for disobedience; but not declaring the sale void.
    2. As to the charge of fraud, it is not found in the special verdict, and is not to be presumed. The bill of sale could be considered fraudulent against creditors only. It is not found that Ewell was in debt; nor that his bond and security was not amply sufficient to indemnify the legatees.
    Wickham, in reply.
    I said that, in general, the purchaser from an executor is not bound to see to the application *of the purchase money; but the sales being for the express purpose of paying his own debt, makes the difference. A constituent part of this contract was, that the money should go, in the first instance, to pay the executor’s private debt. This circumstance made the purchaser particeps criminis. Since the borrower is always slave to the lender, a door is open to frauds innumerable, if an executor may sell to pay his own debt; making that part of the contract of sale. If money had been paid by the purchaser, the executor would have had a choice, to pay it, af-terwards, in discharge of his own debt, or not. This makes all the difference in the world.
    
      There is no more difficulty in examining the administration account in detinue than in debt, in which it is often done upon the plea of plene administravit.
    The modern authorities in .England are in my favour, and entitled to more respect than the more ancient decisions. The science of jurisprudence is progressive, and •daily receiving improvement. The modern judges have the advantage of Bord Hard-wicke’s knowledge, and their own too.
    Fraud in the purchaser, where sufficient facts appear, may be examined at law, as well as in equity. Where the bill of sale is absolute, and possession remains with the grantor, the conveyance is void, not against «creditors only, but against all persons having a legal or equitable title to the property.
    3. The very act of selling the slaves, made the executor a debtor to the estate; and here the purchaser assisted him to deceive the legatees. We had a right to defend ourselves, b3r maintaining our possession, and ought not to be turned round to the executor’s securities. Innocent persons ought not to be made to suffer, when the wrong may be prevented, or when the wrong doer himself may be made responsible.
    
      
      Sale of Personalty — Retention of Possession by Vendor — Fraud Per Se. — On this subject, see foot-note to Davis v. Turner, 4 Gratt. 422. where the Virginia and West Virginia authorities in point are collected and it is shown that the so-called doctrine of fraud •per se is repudiated by the later Virginia and West Virginia decisions. The principal case was cited on the subject in Williamson v. Parley, Glim. 16; Land v. Jeffries, 5 Rand. 606, 608; Claylor v. Anthony, 6 Rand. 304; Davis v. Turner, 4 Gratt. 449, 457, 459; Howard v. Prince, 12 Fed. Cas. 651. See also, monographic note on "Fraud” appended to Montgomery v. Rose, 1 Pat. & H. 5.
    
    
      
      Special Verdict — Inference by the Court. — Although it is an inflexible rule that the court upon a special verdict cannot infer other facts from those found, yet it is the province of the court to make all legal inferences from the facts found in the verdict. Henry v. Graves, 16 Gratt. 244, citing the principal case.
    
    
      
       Note. The jury probably meant “personal property exclusive of slaves:” but this they omitted to express. — Note in Original Edition.
    
    
      
       Sudden's Law of Vendors, p. 348, and the authorities there commented upon.
    
    
      
       Note. See Alexander v. Deneale, 2 Munford, p. 341.
    
    
      
       Toller’s Law of Ex'rs, p. 185. I
    
    
      
       Nugent v. Gifford, 1 Atk. 468, and Mead v. Lord Orrery, 3 Atk. 235.
    
    
      
       Bonny v. Ridgard, 2 Bro. Ch. Cases, 438.
    
    
      
       Andrew v. Wrigley, 4 Bro. Ch. Cases, 135: Hill v. Simpson, 7 Vesey jr. 152, and Scott v. Tyler, 2 Dick. 724.
    
    
      
      Note. But see Crane v. Drake, 2 Vernon, 616.
    
   Monday, March 9th, 1812, the President delivered the unanimous opinion of the Court, (consisting of Judges ^'Fleming, Roane, Brooke, and Coal-ter,) “that the title of the appellee to the slaves in question, being under an absolute bill of sale by an executor, who was nevertheless permitted to retain the possession thereof, the same ought to be considered as fraudulent and void, as to the appellant, (a distributee,) under the true construction of the act ‘to prevent frauds and perjuries;’ that act not only being in affirmance of the principles of the Common Baw, which equally extend to the case of distributees, as of creditors and purchasers, but the former description of persons being also equally comprehended, with the latter, under the provisions of the said statute. On this ground the Court is of opinion to reverse the judgment, with costs, and enter it for the appellant.”  