
    Isaac Cannon et al. v. John Jenkins et al. adm’rs. of Charles Jenkins & Jesse Rountree, adm’r of Wm. Rountree.
    From Pitt.
    An executor who buys at his own sale, however openly or fairly, holds the property at the election of the legatee, and one who purchased 'in conjunction with him, is subject to the same rule.
    But where an executor at his own sale bid fairly, for the purpose of enhancing the price, and the property being struck off to him, sol d it the same day, without collusion, to one who had bid against liiir., although the executor would have held it subject to an account, yet hi6 purchaser, the sale being a distinct transaction, acquired an absolute title.
    Sales of slaves in lots are not favored in Equity, because slavesgene-rally sell better singly ; and the person who conducts such sales does it at the peril of answering for the true value. But where :he slaves are sold in families, although the executor has no right to consult his feelings at the expense of the legatees, yet he will not be charged the full value, unless the interest of the legatees is manifestly injured by the mode of sale.
    Executors are justified by sales at auction in the usual way. Ii.it if they depart from this method, and sell at private sale, they are answerable for the full value.
    The representatives of an administrator cannot be compelled to account with any person, but an administrator de bonis non.
    
    The case of Ryden v. Jones (1 Hawks 497) approved by Ruffin Judge.
    
      The Plaintiffs, who were the legatees of Willie Canonnn, alleged, that the said Cannon died, having published his will, which was pioved by the intestate Charles Jenkins, to whom letters of administration with the annexed, issued, the executor therein appointed having renounced : That directly after the issuing of the letters of administration, the administrator, under the pretence of executing the will, hut with an intention offraudulcutly making a profit to himself, advertised four young ne-groes, viz. Jacob, Phil, Tom and Sam, who were directed by the will to he sold upon a credit often days : that in pursuance of this fraudulent intent, and to prevent the said slaves from bringing their value, they were sold in one lot, and were bid off by the administrator himself, at the price of $1,025 — that William Rountree, the intestate of the Defendant, Jesse, was present at the sale of the slaves, and immediately thereafter took the whole of them into his possession. The Plaintiffs averred, that the whole of this transaction was a pretence, to cover the profit made by the administrator upon a private sale of the negroes by him to Rounlree ; and they prayed that the salo might be declared to be void, and the Defendant» Jesse, decreed to he a trustee of the slaves for their benefit, and that the administrators of Charles Jenkins might account with them for their intestate’s administration of Willie Cannon's estate.
    The answers denied altogelho* the agreement between Jenkins and Rountree, as charged. The Defendants admitted,that the four negroes were offered together at public sale -, but they stated the reason to have been, that they were four brothers, whereof the eldest was not more than eight, and the two youngest twins, about four years of age. They also admitted, that at the public sale, .Ten-kins became a bidder, and the last bidder at 81.025. But they stated, that he ' bid only for the benefit of the estate, and to run up the property : that he did no! intend to make, nor did ha make any advantage to himself by the purchase : that the bidding was not rollusively for the benefit of Rountree, for that Jenkins and Rountree were bidders against each other : that the credit of that ga]e was six'months, and not" ten days : that it was fairly conducted — Jenkins’ bids openly given, and dwelt upon by his directions, and that he urged persons to bid upon himself: and finally, the price at whicli the negroes were knocked down to Jenkins, was a fair and full one : and that after Jenkins was declared the purchaser, and on the same evening, he sold the negroes at the same price to Rountree, who immediately gave his bond, received the negroes, and held the exclusive possession, for his sole use, up to his death, nearly thirteen years afterwards.
    The administrators of Charles Jenkins denied that any thing was due from their intestate to the Plaintiffs, but submitted to an account. Upon replication, proofs were taken, the substance of which is stated in the opinion of his Honor Judge RuEEtN.
    
      Gaston, for the Plaintiff.
    
      Hogg & Mordecai, for the Defendants.
   Ruffin, Judge.

— The bill is framed upon the rule in Ryden v. Jones (1 Hawks 497) and moreover charges an actual fraud in the purchase by Jenkins at under value, by means of a sale of all the negroes in a lump, on ten' days credit. The doctrine of that and similar cases is recognized throughout. An executor buys at his own risk ; and no matter how openly, nor for how full price, he holds purely at the election of the legatee. Nor could this case be distinguished from those, by the introduction of Rountree, as a third person, provided he purchased in conjunction with the administrator. He who knowingly connects himself with a trustee in a breach of trust (and he must do it knowingly, if he purchase from him on joint account) must abide the fate of his faithless companion, whatever form the transaction may assume.

His Honor, after stating the substance of the answer, as above, proceeded ; Without scanning the depositions minutely, it is sufficient to say, that the answers are fully sustained by the proofs. And the * „ ... Witnesses disclose another fact, not mentioned m the answers, which strongly rebuts the charge of collusion • which is, that Jenkins’s last bid was $>25 upon that of Rountree of Si.000. Every person present, members of the family as well as strangers, thought the whole, business fairly conducted ; and in particular, a lady, wiio is taken to be the widow of the testator, urged Rountree to purchase, as he already owned the mother of the, hoys. From this state of the facts, it is manifest, that the case is not within the principle upon which the bill goes. If indeed the case of the Defendant, Rountree, rested upon the purchase by Jenkiiis-, it would necessarily give way j for as affecting the title to the slaves, that is amere nullity. Such indeed seems to have been as much the actual intent of Jenkins, as it is the conclusion of law. He did not design a purchase for his own benefit, lie did not for a moment claim an individual interest. But being desirous of obtaining flie best price, be run the property up against Rountree, until it finally fell on himself; and finding that he was unable to sc<‘ew Rountree higher, he afterwards sold to him for the same price. Rountree’s purchase was therefore a separate and distinct transaction ; of which the validity is not dependent upon the previous purchase of Jenkins, but upon the general authority of the latter, as administrator, and the actual lona Jides of the parties in this last and only real sale. And there seems to be nothing in the conduct of the pur chaser, that can taint his title. It is to be expected, that he will buy as low as he can ; and he is not to advise in what lots the property is to be offered, nor be responsible. for an injudicious arrangement. If indeed the smallness of the price, the insolvency of the executor, or in a w ord, the whole face of the proceeding, showed a collusion between the vendor and vendee, Equity would roach the property. But there is no pretence for that here-; for an inadequate price essentially enters into that proposition j a)H| a¡j ^|!e witnesses prove, that the sum of gl,025 was the ful! value of the negroes, as they were purchased by ]{ounireef namely, in one lot• Nor could the price have altered Rountree’s right, notwithstanding the said in a lump, had he purchased at a public sale, otherwise fairly conducted. The hill must therefore be dismissed, as against the administrator of Rowiti'ce, with costs.

A sale in the lump may be attended with very different consequences to the administrator himself. The Court does not favor sales by executors in large masses. Most commonly the articles sell best, singly; and therefore, they ought, in general, to be so offered. It is not exactly like sales by Sheriff', whioliought tobe most strictly watched ; for as only so much as will satisfy the execution ought to be sold, so only so much as will probably satisfy it, ought to be set up. In sales by executors, the whole is to he sold at all events, by the terms of the wilt And it is the duty of the executor to get the most he can. Sometimes, indeed, as much, or more can be had, when the property is disposed of in one, than in more parcels, as in the instance of a family of slaves, when the children are all of tender years. But he, who conducts such a sale, does it at his peril, and must answer for the true value, where the price has been materially affected by the mode of sale. It would certainly have been harsh to separate these four boys, and sever ties which bind even slaves together. True, it must be done, if the executor discovers that the interest of the estate requires it $ for he is not to indulge his charities at the expense of others. But the Court would not punish him for acting on the common sympathies of our nature, unless in so doing he hath plainly injured those, with whose interests he stands charged.

This doctrine however does not directly apply to the case before us; for it can only embrace sales regularly made by auction, according to the common course. If «Lo executor sell in that way, tlie ps-ice actually obtained is his justification, unless it has been diminished by Lis mismanagement ot* fraud. But if he take upon himself to depart from his plain line of duty by selling by private contract, he makes himself responsible for the true value, without reference to the price obtained, unless perhaps in very extreme cases of necessity. In such case, he can derive no help from the fact, that he disposed of each single article by itself; nor su flier detriment from selling the whole together. In each case, he puts himself upon the single point, that as ranch, or more, has been got in that way, than could have been got hy auction, in this respect only, is the purchase of Jenkins at ids public ¡jale material la this case. Under (he circumstances proved, it is denned a fair criterion of the highest price. Besides that, all the witnesses think it a lair one, and some of them that it is higher than the real value, and that nobody but Jiounlree, who owned (he rest of the family, would have given as much, if the negroes had beer; severally sold. Indeed, it speaks for itself, being’ $253 2? each, far little children. The Court, therefore, cannot hut approve of the conduct of the administrator before us.

There is a prayer, in case the Plaint ills cannot recover the slaves themselves, for au account of :he proceeds. This involves a general account of Jenkins’ administration- — au account, to which the next of kin have no primary right, but only the administrator de bonis non of the testator ; and he is not made a party. In strictness, as the cause has been brought to a hearing without him, (he bill might be dismissed ; and perhaps it ought, as no application was made for an account before filing the bilk and the main scope of it touches the title to the slaves);, and is whollygroundless. But as Jenkins’ administrators submit in their answer, to an account with the Plaintiff for their shares, without making objection to the want of parties, the Court will permit the cattse to stand over. as to the administrators and next of kin of Charles Jen-^ns, a reasonable time for amendment. But in the mean while, these Defendants are entitled to their costs Bp to this time.

Per Curiam.

— Declare that Charles Jenkins did not purchase, and did not intend to purchase, at the public sale made by him, the slaves in the pleadings mentioned, for his own use, or that of William Rountree; but that'he bid, merely to run up the price for the benefit of the es tate of Willie Cannon ; and declare further, the said purchase by Jenkins to be merely void. Declare further, that on the day of public sale, and after it, William Roun-tree purchased from said Charles, as administrator, for a valuable consideration, and without collusion, by a new agreement, distinct from the purchase aforesaid of said Charles — and decree, that the bill be now dismissed, as against the Defendant, Jesse Rountree, with costs.

Declare further, that the said Charles is liable to the estate of his testator for the actual value of said slaves, because he did not s<jIl them at auction ; but that, file said price obtained from the said Rountree, was a fair and full one, and therefore tiie Court doth, under the circumstances, approve of the sale to the said William, at that price. — And because the Plaintiffs cannot proceed to the taking,of an account of tiie estate of the testator, which came to the hands of said Charles, without having tne administrator de bonis non before the Court, let the cause be retained, as against the other Defendants, with li-bar ty to the Plaintiffs to add parties, &c.  