
    Sale v. Roy.
    Wednesday, March 9, 1808.
    Executors — Sale ot Slaves Specifically Bequeathed— Rights of Legatee.- The right of a purchaser, at public auction, from an executor, of slaves, specifically bequeathed by the testator, cannot be disturbed by the legatee, whether the sale was necessary for the payment of debts, or not; unless it be proved that the purchaser knew there were no debts to render such sale necessary; the remedy of the legatee being, otherwise, against tlie executor only. -Neither can such purchaser, himself, compel the executor to rescind the contract.
    William Sale, in March, 1797, exhibited his bill in the County Court of Caroline, against Mungo Roy, sen. in which he stated that the defendant having advertised in the Fredericksburg Herald, on the 7th of December, 1795, that there would be sold at his plantation, on the 31st day of the same month, between twenty and thirty slaves, one-half of the purchase money to be paid on the day of sale, and credit given for the balance until the 1st of November, ensuing, bond and good security being required, the complainant, with many others, attended the sale, where he became purchaser of three negroes, to wit, Nanny, a woman, and Caroline and Aggy, her children, for the sum of ninety-two pounds, fifty whereof he accounted for and paid, and for the remaining forty-two, gave bond and security according to the terms of sale; that he afterwards was informed and believed it to be true that the said Nanny was one of certain negroes, who had been devised by the will of James Micou, deceased, to his nephew, James Henry Roy, and his nieces Beatrix and Catharine W. Roy, children of the said Mungo Roy, equally to be divided among them; that, at the time of the sale, one or two of the three devisees were under age, and the legal title to Nanny and her children remained id them, which the defendant well knew, and of which the complainant was totally ignorant; that he had since applied to the defendant, x'and offered to return him the slaves, requesting him to deliver up the bond to be cancelled, and to repayr the money advanced; with which requests he refused to comply. The object of the bill was, therefore, to compel compliance.
    The defendant, in his answer, admitted the advertisement ,and sale, the purchase by the complainant, and the devise in the will of James Micou ; but said that, as executor of the said will, “he had a right to sell, and did sell the said negroes to assist in paying the debts of his testator;” that the said debts were considerable; and that suits had been commenced against him; (without stating them ;) and denied that there was any justice or reason in the complainant’s request; averring that no such proposal would ever have been made, “had it not been for some indisposition that the negro woman was afflicted with, at the time the request was made; which, perhaps, might have been brought on by neglect, as it was notorious that, at the time the defendant had her in his possession, and sold her, she was a sound and healthy negro.” He acknowledged, that the complainant did pay him according to the terms of the sale, as much money as he was bound to pay: but said the complainant was “a bad accountant, or he would not call it fifty pounds,” and charged the complainant with being well acquainted with the circumstance that the negroes belonged to the estate of James Micou, deceased, long before he applied for a bill of sale for them.
    The advertisement (a copy of which was inserted in the record) did not mention the title by which any of the negroes were to be sold. 'The will, which was also inserted, was admitted to record in August, 1781.
    From sundry depositions it appeared, that the cryer who sold the slaves, was not informed that any of them were the property of James Micou, deceased; that James Henry Roy, one of the devisees of the slaves, and son of the defendant, was at the sale, and being asked “what would be done about the children’s rights,” said to the witness *that “if his father did not make them good, he would not lose his proportion ;” (but the sale was not forbidden by him, or by any body else;) that some time in the month of June, 1796, (about six months after the sale,) the complainant was informed, apparently for the first time, of the rights of the children; that sometime in- January, 1796, the negroes were all sick, and continued so until May; that in July, a witness was told that they were still sick; and that the complainant’s application to rescind the contract was made in August of the same year.
    The defendant having brought suit at common law against the complainant, on the bond, and obtained a judgment, while the suit in equity was depending; an injunction was awarded to stay execution until the matters in controversy in equity should be determined.
    On the final hearing the Court was of opinion, that “the sale and purchase of the three slaves in the bill mentioned be set aside; and it was decreed and ordered, that the defendant pay to the plaintiff the sum of fifty pounds paid on the day of sale;” (concerning which there was no evidence, except the allegations aforesaid) “with interest thereon at the rate of five per centum per annum from the 1st of January, 1796; and that the injunction be made perpetual.”
    This decree, on an appeal to the high Court of Chancery, was reversed, and the bill dismissed with costs; whereupon the complainant appealed to this Court.
    Call, for the appellant. The grounds of the suit were that Roy, being an executor, advertised a sale of slaves; not stating whether he sold as executor, or not. The appellant purchased, believing them to be Roy’s; but they afterwards turned out to be the property of his testator, who had devised them away: upon which he applied to rescind the contract and to have his money back, which Roy refused, though admitting them to be his testator’s. The answer states, too, that Sale was dissatisfied with the ^purchase, because the negroes were diseased. This circumstance, though not mentioned in the bill, yet, being stated in the answer, may be relied on by the complainant.
    Roy, as executor, had no right to sell unless he shews there were debts which rendered such sale necessary. This he does not: and therefore it was a mere pretext. Besides, Sale knew nothing of the defect in the title before he paid the purchase money; and ought therefore to be protected, as an innocent purchaser. If an executor sells a specific legacy improperly, the purchaser, if innocent, has a right to hold the property; but may give it up if the legatee wishes it, and he chuses himself to do so; and the court will compel the executor to refund, where there are no debts to pay, or there is other property which might be sold. This is the rule where the money has been paid; but, if it has not been paid, the purchaser cannot protect himself, but must give up the property.
    But, if this point be against me, it is established by the testimony that Sale was imposed on in tne purchase; the slaves being diseased at the time, which was known to Roy, but not to him.
    Randolph, for the appellee.
    If Mr. Call is right, the power of executors is at an end, and they cannot provide for the payment of debts; for no person will purchase of them. As to the objection that no account of debts is rendered, the answer is, that none is demanded by the bill, nor had the plaintiff a right to one. The only parties are the purchaser and seller; not the specific legatee,  There the executor sold a specific legacy ; and the case was between the legatee, executor, and purchaser: yet the Court declared the sale effectual; and that, if it was not necessary to pay debts, the legatee might recover of the executor; for the purchaser cannot be conusant of the state of the assets. Here, it is objected that the purchaser may waive the benefit: but, certainly, the purchaser *has no such right: that is a question between the legatee and executor only; for, if the executor has paid debts with the money, he has done what he had a right to do, and ought not to be compelled to refund. The circumstance that part of the purchase money was not paid makes no difference in the case. As to the disease of the slaves, the bill was filed more than a year after the sale, and expressed no complaint of any disease. If there had been such a ground of equity, it would certainly have been stated in the bill. The party here obtained the injunction upon his own oath, and therefore did not make this charge. The testimony proves, too, that when he applied to rescind the contract, he did not mention this objection, but only the supposed defect in the title. The answer does not put the question of disease of the slaves in issue; for the law does not authorise the plaintiff to prove any ground of equity not stated in his bill.
    Call, in reply.
    If the answer states a thing which is replied to, it is then a fact in issue; and the plaintiff may take depositions upon that point.
    As the executor relies that there were debts which rendered the, sale necessary, he ought to shew it. The presumption is against him, as the will was proved in the year 1781, and the sale did not take place until December, 1795.
    
      
       3 P. Wins. 148, .Ewer v. Corbel.
    
   Saturday, March 12th, 1808, the Judges delivered their opinions.

JUDGE TUCKER-

James Micou by his will, which was proved on the 9th of August, 1781, bequeathed certain slaves to the children of Mungo Roy, whom he constituted his executor. In December, 1795, Mungo Roy advertised a sale of between twenty and thirty negroes at his plantation in Caroline county; one-half of the purchase money to be paid down, and a credit for the balance till the next November, the purchaser giving bond, &c. No notice *of the title was taken in the advertisement. William Sale, the sheriff, became the purchaser of the slaves bequeathed by James Micou, without notice (as he alleges in his bill) that the title was as above mentioned. After the purchase, being informed of this circumstance, at a distance of about eight months, he applied to Roy to deliver up his bond for half the purchase money, (having paid one-half down,}' and proposed to him to take back the ne-groes, which Roy, on his part, refused; Sale then brought a bill in the County Court to have back the money he had paid, and the bond which he had given, upon delivering to Roy the negroes purchased, or such of them as were alive. Roy in his answer insisted he had a right to sell, and did sell the negroes to assist in the payment of his testator’s debts; but does not allege any deficiency o/ other personal assets. The Chancellor pronounced an opinion (the cause being brought before him by appeal) “that an executor’s legal power to dispose of his testator’s goods, chattels, and credits is absolute. That the statute enacting that executors shall not sell the slaves of their testators, unless their other personal estate be not sufficient for payment of debts, did not abridge the power of an executor; did only prohibit him to exercise it, if the slaves were not requisite to supply deficiencies in other species of property, first subject to such demands;” and dismissed the bill.

I pass over the other circumstances of the case as perfectly immaterial to the question upon which I doubt. Eor I am by no means prepared to yield my assent to the broad terms in which the Chancellor’s opinion is conceived. I can find no law whatsoever in our code antecedent to tne act of 1705, which pronounces the nature of the estate which a man might have in slaves. Being utterly unknown to the common law, we can derive no information upon the subject from that source. The act above referred to, declared them in categorical terms to be real estate, and not chattels. The exceptions which followed in the act, created doubts respecting its true construction. It was explained by the act of 1727, the seventh section of which declares, *that no executor hath, or shall have, any power to sell or dispose of any slave or slaves of his testator or intestate, except for the payment of his just debts ; arid then only, where there is not sufficient of the personal estate to satisfy and pay such debts; and, in that case, it shall and may be lawful for the executor or administrator to sell and dispose of such slave or slaves, as shall be sufficient to raise so much money as the personal estate falls short of the payment of the debts.” This .is a declaratory law, as is shewn as well by the preamble, as by the word hath, in this clause, and being on a subject where we have no guide but the will of the legislature, must be taken as they have thought proper to express it. It made slaves not general assets, but special assets only, to supply any ■deficiency in the personal estate, and so jealous was the legislature of the abuse of the authority vested in an executor or administrator by this act, that in the year 1748, they passed another act, the 29th section of which is, word for word, as that before cited, except that it expressly requires the sale to be made at public auction. It is further to be observed, that the legislature at the same session, passed an act, declaring slaves to be chattels personal in all cases. This act was refused the royal assent, and consequently never became a law; but it shews the intention of the legislature to have been to restrain the power of an executor as to selling slaves, although they were willing that they should no longer be real estate. Would, the Chancellor have pronounced the power of an executor over the slaves of his testator so absolute, (to use his own terms) as that a private sale of a slave, in “disregard, even in contumacious disobedience to the prohibition,” not to sell except at public auction, would have been valid? Th§ doctrine contained in his decree seems to me to assert as much. But such a doctrine, I trust, will never receive the sanction of this Court in the latitude in which it is expressed. In the present case, the sale was made at public auction; there is therefore no *ground to impeach it, as contrary to the prohibitions of the act. And even if it had been made in private, the purchaser could not rescind it, though the legatee would not, I conceive, be bound by it: nor would he, perhaps, be bound by a public sale, if the purchaser had notice that there were either no debts, or that there was other sufficient personal estate to discharge them: and this I find to be the doctrine of the Master of the Rolls, with respect to terms for years, in the case of Ewer v. Corbet, 2 P. Wms. 148, and which I think equally applicable to slaves in this country, under the general provisions of our law, whether specifically bequeathed, or not. I am well aware that there are some general expressions in the opinions of the Court as delivered by the presiding Judge in the cases of Walden v. Payne, and Brock v. Philips, which may seem contrary to the principles I contend for. But the point now under consideration, was not before the Court in either of those cases; and I hope it cannot be codstrued as a disrespect to the Court, to dissent from such general expressions, where they may be applied to cases not under their consideration at the time.

In the present- case, the purchaser bought the slaves upon the plantation of the defendant, where a number of others were exposed to sale, at public auction, without any notice of the nature of the seller’s right thereto. JIe might very naturally suppose they were all (as a part are said, to have been) his own property. The legatees were all probably present. One of them is proved to have been so. The sale was not forbidden. .The purchaser then stands upon the ground of a fair purchaser without notice: nay more, of a purchaser buying with the knowledge of those who might claim title, yet standing by, and not disclosing such claim. Under such circumstances, the sale can never be impeached by them, whether justified by a deficiency of the personal estate, or not. The purchaser, then, is in no danger from that quarter. That being the case, there is no ground upon which to set aside the sale, for any thing ^alleged in the bill. And it certainly appears to me, that there is no equity arising out of the matter contained in the answer, which I think it would be mispending time to notice further.

On these grounds, and not for those mentioned by the Chancellor in his opinion, I think the decree should be affirmed.

JUDGE ROANE.

It is neither put in issue, nor proved, that the slaves in question were diseased at the time of the sale. The case, therefore, stands merely upon the general question whether the sale of a slave specifically bequeathed, and sold by an executor, at public sale, for the payment of debts due from the testator, can be annulled by the purchaser.

The case of Ewer v. Corbet, 2 P. Wms. 148; (followed up by the other cases) is decisive to shew that the doctrine is otherwise in relation to personal estate in general; and that an objection to the sale does not lie in the mouth of a purchaser, however it may be as to the legatee. In that case it was said with great force, that it is not reasonable to put every purchaser of a lease (the case was that of a lease) from an executor, to take an account of the . testator’s debts: and that, if equity were otherwise, it would lay an embargo on all personal estate in the hands of executors, which would be attended with great inconveniences: the bill of the specific legatee to recover the term sold by the executor was dismissed; and, it was decided that the legatee had no remedy but against the executor to recover the value of the legacy, in case there were sufficient other assets for the payment of debts. The principle of this decision has been expressly extended to slaves by the decisions of this Court. In the case of Walden v. Payne, 2 Wash. 7, it was declared (which, indeed, was before sufficiently evident) that slaves were clearly assets in the hands of an executor, and liable to the payment *of debts, &c. and, in the case of Brock v. Philips, 2 Wash. 68, the above doctrine was expressly recognised as applicable to slaves. It was there said that, although the principle caveat emptor applied to lands devised to be sold for the payment of debts, it was otherwise as to slaves and personal estate; and that a purchaser of slaves sold at public auction by an executor, for the payment of debts, could not be disturbed. If this doctrine be correct, which I hold it undoubtedly to be, it follows, as a necessary consequence, that there is no pretence that the purchaser, on his part, can annul the sale.

If it be said that slaves are a kind of special assets, and only liable in the event of the deficiency of the other personal estate to pay the debts, the same may be said of other chattels specifically bequeathed; but, as to them, the objection does not pre•vail. Goods specifically bequeathed are liable to a similar exemption, not only by the general principles of law, but by the particular provision of our act. I cannot, therefore, discriminate between slaves, and other goods, when specifically bequeathed.

On the ground, therefore, that the law on this point ought to be considered as settled, and settled on right principles, I am of opinion that the decree of the Chancellor is correct, and ought to be affirmed.

JUDGN FILMING.

It is admitted that an executor has no right to sell a specific legacy for the payment of his testator’s debts, so long as he has in his hands other assets sufficient to discharge them: but whom does the law presume to be the proper judge of the circumstance? The executor himself: and, therefore, if he sells a specific legacy, when there are other assets sufficient to pay all the debts of his testator, I conceive it to be sound law that he and his securities are alone responsible to the legatee ; and the fair purchaser, for a valuable consideration, at a public sale, without notice, shall be quieted in his purchase. And, supposing the act of 1748, declaring that slaves shall *be sold for the payment of a testator’s or intestate’s debts, only where there is not sufficient other personal estate to pay and satisfy the same, to have been in force when the sale now under consideration was made, (which, however, is not admitted,) yet the sale, being a public one, would have been good, as to the fair purchaser without notice; for the reason above stated.

The purchase of the negroes by the appellant was made at a public sale, on the 31st of December, 1795, part of the purchase money paid to Roy the executor, and a bond given for the balance, payable the November following. The appellant, finding he liad made an improvident purchase, about seven or eight months after, offered to give up the negroes to Roy the executor, whom he required to return the money paid in part of the purchase, and to cancel the bond given for the balance; under pretence of a defective title in the negroes: but there was not even a suggestion that they were unhealthy: and it is remarkable, that in his bill of injunction, filed fourteen months after the purchase, in which he prays relief against the judgment obtained on his bond, there is no complaint of the unsoundness of the negroes, or either of them: and it appears to have been an after-thought, and a feeble attempt to bolster up an unsustainable equity : and there is no evidence that either of the negroes had been unhealthy, or were so at the time of the sale.

Had the appellant conceived his purchase an advantageous one, we should, probablj' have heard no complaint from him; but he would have defended his title, if called in question, by the laws of the land.

It appears to me a very plain case, and I am for affirming the decree. 
      
       Ed. 1769, c. 3.
     
      
       1748, c. 5, Ed. 1752.
     
      
      
        2 Wash. 7 & 70.
     