
    CARPENTER vs. GOING, Adm’r.
    1. A voluntary sale, -without any legal compulsion, by an executor de son tort, confers on his purchaser no better title than he himself had.
    2. A voluntary purchaser from an executor * son tort, when sued in trover by the rightful administrator, cannot show, in mitigation of damages, that since his purchase, the executor de son tort has paid debts winch the administrator was bound to pay in due course of administration.
    3. Whether under our statutes, the executor de son tort, when sued in trover by the rightful administrator, can show such payments in mitigation of damages,
    
      Queers ?
    
    Ereos to tbe Circuit Court of Greene.
    Tried before tbe Hon. Jobn D. Pbelan.
    J. B. Claree, and Watts, Judge, & JaoesoN, for plaintiff:
    1. Tbe action of trover is an equitable action, and tbe defendant bas a right to give in evidence any fact or facts which will show that the plaintiff ought not to recover full damages. ■Strong v. Strong, 6 Ala. Rep. 845; Plevin v. Henshall, 10 Bing. 24, (25 E. C. L. R. 17); McGowen v. Young, 2 S. & P. 160,170, 171; Baldwin v. Porter, 12 Conn. Rep. 473; Sedg--wick on Dam. 519.
    2. An .executor de son tort has a right to give in evidence, in mitigation, tbe payment of tbe bona fide debts of tbe deceased, so as to reduce tbe damages to a nominal sum, or indeed, defeat a recovery. Mountford, Adm’r. v. Gibson, 4 East, 441; Hostler’s Adm’r. v. Scull, 2 Haywood, 179; 4 Bacon’s Ab., 32, 38; Saam v. Saam, 4 Watts, 432; 2 Saunders’ PI. & Ev., 513; 14 Pick. 356; 6 Mass. 323.
    3. And tbe purchaser of property from an executor de son tort is at least entitled to make any defence tbat bis vendor could make.
    S. E. Hale, for defendant:
    Tbe title to personal property of a deceased testator or intestate vests in tbe personal representative, when appointed, and bas relation back to tbe death of tbe testator or intestate ; and a sale thereof, if made by any other person, or even by tbe personal representative otherwise than as provided by the statute, is void, and confers no rights upon tbe vendee. 12 Ala. Rep. 532; 15 ib. 707; 9 ib. 912 ; 4 Ala. 443; 12 ib. 298 ; 10 Peters’, 161; 4 Munfoxd, 194; 4 Har. 168 ; 18 Ala. Rep. 828.
    And tbe sale being void, tbe personal representative can either bring an action of detinue, and recover tbe specific property, or an action of trover, and recover its value from tbe vendor, notwithstanding tbe proceeds may have gone to tbe payment of tbe debts of tbe testator. 4 Har. & Johnson, 394; 4 Harrington, 168; 2 Brevard, 307.
    Carpenter was guilty of a conversion of tbe slave, and liable for bis full value in an action of trover tbe moment be converted him to bis own use; and no act of bis, without tbe consent of tbe party aggrieved, can defeat tbe action. 21 Wendell, 396; 17 ib. 91.
    Tbe doctrine of recoupment does not apply, except in cases where tbe demands spring out of tbe same transaction, and are between tbe same parties. 13 Ala. Rep. 595; 6 ib. 82; 15 Wendell, 158.
    And Mrs. Woolfolk paid tbe debts of Woolfolk, tbe testator, if any were paid, and not Carpenter; and a court of law cannot subrogate Carpenter to her rights, whatever they may be.
    A bill of exceptions is always taken most strongly against the party excepting, and every intendment will be made, consistent with the facts set out in the bill of exceptions, to sustain the judgment of the court below.
    So far as this court is informed by the bill of exceptions, the estate of Woolfolk is wholly insolvent; and if that be so, and the plaintiff in error is allowed to reduce the amount of the damages for the conversion of the slave, by the amount of the proceeds thereof that may have been appropriated in payment of the debts of the testator, it will be permitting the parties, by an improper intermeddling with the estates of deceased persons, to prefer one creditor to another, and thereby defeat the whole policy of our laws upon that subject. 2 New Hampshire, 477.
    If a rightful administrator had made the sale without an order of court, the sale would have been void, and have conveyed no title. Surely, then, a sale made by a person who is not rightful administrator, without an order of court, cannot confer a title.
    It is said, that trover is an equitable action, like assumpsit. Now, suppose that an action of assumpsit had been brought against Carpenter for the value of the slave, could he set off against that claim money paid by Mrs. Woolfolk in payment of debts of the estate, without showing it was done at his instance or request, or that the administrator had claimed the benefit of such payment; in other words, can a wrong doer take the property of a third person in payment of his debt, without his consent, and thus defeat the rights of the true owner, without his consent or acquiescence ?
   DARGAN, C. J.

This was an action of trover, brought by Alfred E. Going, as administrator de bonis non of Thomas Woolfolk, deceased, against Thomas Carpenter, to recover damages for the conversion of a slave, which belonged to the decedent'at the time of his death. The defendant, for the purpose of mitigating the damages, offered to prove the following facts: Thomas Woolfolk, before his death, executed his last will and testament, whereby he appointed his wife executrix, and made her his sole legatee during her widowhood. After his death, the widow proved the will, which was admitted to probate, but did not take out letters testamentary, or of administration, and shortly after tbe probate of tbe will, sbe advertised several of tbe slaves belonging to tbe estate for sale. At tbis sale tbe defendant became tbe purchaser of tbe slave in controversy, and paid for him a thousand and one dollars. He further offered to prove, that tbe money thus paid was applied by tbe widow to tbe payment of tbe bona fide debts owing by tbe testator at tbe time of bis death. Tbe plaintiff objected to tbe introduction of tbis evidence, and bis objection was sustained; whereupon tbe defendant excepted.

We think tbe counsel for tbe plaintiff in error properly admitted, that under our statutes, tbe sale by tbe widow gave tbe defendant below, who is plaintiff in error, no title to tbe slave, as against tbe rightful administrator; and tbe only question, therefore, is, was tbe testimony admissible in mitigation of damages? We can consider Mrs. Woolfolk in no other light than as an executrix de son tort; and consequently sbe bad no legal title to tbe slave in question. Having none herself, as against tbe lawful administrator, sbe could impart none to her vendee. It would never do to allow a purchaser to obtain a good title to tbe goods of tbe deceased, as against tbe lawful administrator, by tbe mere act of sale, by an executor of bis own wrong. I intend, however, to confine tbis remark to tbe precise Avords I have expressed, for there may be cases in which a purchaser may get a good title; as if judgment be rendered against an executor de son tort, and tbe goods of tbe deceased are sold under an execution issued thereon, tbe title of tbe purchaser may be valid. This, however, I do not intend to decide; and I have stated tbe supposed case, to show that we now bold that tbe mere voluntary sale by an executor de son tort, without any legal compulsion, will not confer on bis purchaser a better title than be himself bad.

Tbe counsel for tbe plaintiff in error, admitting tbis proposition to be true, contend, that when an executor de son tort is sued in trover by tbe rightful administrator, that though be cannot defeat tbe action in foto, yet he may show that be has paid tbe debts which tbe administrator was bound to pay in due course of administration, and if such payments equal tbe value of tbe property sold, tbe administrator can recover only nominal damages. I admit that this is tbe settled law of England, and it has been recognized in several of tbe United States. See "Williams on Executors, Vol. 1, 144; Bacon Ab. tit. Executors & Administrators, Vol. 4, 32; Toller on Executors, 365; Viner’s Ab. Vol. 11, Book E. 215; Saam v. Saam, 4 Watts, 432; Hostler v. Scull, 2 Haywood, 179. But the question is, can tbe purchaser from tbe executor de son tort, be substituted to tbis equitable defence, tbat tbe executor de son tort might himself make. We think tbat be cannot, at least in a court of law. We do not intend to deny tbe common saying, tbat trover is an equitable action, and tbat tbe plaintiff can recover damages only to tbe extent of tbe injury actually sustained; as if tbe mortgagee bring trover against tbe mortgagor, be can recover only the amount of tbe debt; or if goods be sold illegally to discharge a lien, tbe owner can recover of tbe purchaser only tbe value of tbe goods, deducting tbe amount of tbe lien. But we bold, tbat tbis equity or right must be personal to tbe defendant himself; tbat is, it must have existed in him at tbe time be became liable to tbe action, or if acquired afterwards, it must have been acquired by bis own act; for at law be cannot be subrogated to tbe equities of another, which have sprung up after tbe liability of tbe defendant has become perfect. Let us 'test tbis principle by tbe facts of tbis case. It is clear, tbat at tbe time of tbe defendant’s purchase, when be paid tbe price to Mrs. Woolfolk, be was then liable in trover (if there bad been a lawful administrator), to tbe extent of tbe value of tbe slave, for at tbat time no equitable defence existed, either in bis favor or in favor of Mrs. Woolfolk; and to allow him to set up tbe subsequent acts of Mrs. Woodfolk as bis equity, would not only be to subrogate him to tbe rights of another, but would often lead to inquiries so embarrassing and complicated, tbat a court of law would never be assured tbat tbe ends of justice bad been attained. I do not remember a case where one has been subrogated to tbe equitable rights of another, in a court of law, and I am unwilling to take tbe first step, even to reach tbe supposed justice of a particular case; especially when we see tbat such subrogation would or might lead to inquiries far beyond tbe simple issue, and involve inquiries respecting tbe rights of others not before tbe court, which a court of law would not only be unable to protect, but would be unable to do full and complete justice in tbe particular case.

It may, however, be said, that tbe purchaser from a mortgagor, or from one who held tbe lien on tbe chattel, can reduce tbe recovery to tbe extent of tbe debt or lien, and that this is a mere subrogation at law to tbe rights of him from whom be purchased. But it must be borne in mind, that tbe purchaser acquires this right by bis own act, to wit: tbe act of tbe purchase, and tbe chattel comes to bis bands clothed with it; be therefore asserts his own equity in making that defence, and not tbe equity of another, arising after bis liability is fixed or perfect, and from an act to which be is not privy.

I am satisfied, that tbe defence ought not to be allowed at law, and it is not now necessary to say whether it can avail tbe party in a court of equity; but if be can insist on it at all to reduce tbe amount of tbe recovery, it must be in that court, and not in a court of law. I have said, that tbe executor de son tort, when sued in trover by tbe lawful administrator, may reduce tbe damages, according to tbe English law, by showing that be has paid debts which tbe administrator, in due course of administration, would have been bound to pay. I do not, however, intend to decide, that under our statutes, this can be done at law, even by tbe executor de son tort himself; but even conceding that be may, we all concur in this, that bis vendee cannot, by showing payments after bis purchase.  