
    William P. Mellen, administrator of James Patterson, vs. Joseph M. Boarman.
    An administrator in the sale of his intestate’s property sells only the title of the decedent as it exists, neither more nor less; he makes no warranty; if he were to do so, it would probably only bind himself individually, and not the estate which he represents; and if he make no covenants for title, the purchaser takes the risk of the title.
    If an administrator make representations at his sale, which mislead the purchaser, they may constitute a fraud on the purchaser, but not a covenant.
    
      If, in an administrator’s sale, there be neither fraud nor warranty, and the sale be regular, the purchaser is bound to pay his bid.
    An administrator sold a lot belonging to his intestate ; and at the sale it was proclaimed by a surety of the intestate, that the latter had not paid all the purchase money of the lot, and he as surety had paid part, and intended to claim his right to be subrogated to the lien of the intestate’s vendor; the administrator stated at the sale, that he did not think the claim could be maintained ; the purchaser heard both statements : Held, that the purchaser who afterwards arranged the claim of the surety, by giving him half the lot, could not set up, when sued on the note for the purchase money by the administrator, either a failure of consideration; or set up an offset against it for the amount thus settled with the surety.
    A debt due by a deceased person, is not an offset under the statute of 1840\ (Hutch. Code 854,) to a note given to the administrator for property purchased at his sale of the intestate’s property; and this is especially so where the estate is insolvent.
    In error from the circuit court of Hinds county; Hon. George Coalter, judge.
    Potter, for plaintiff in error.
    
      Shelton, contra.
   Mr. Justice Clayton

delivered the opinion of the court.

Mellen, as the administrator of Patterson, offered at public sale, after the necessary preliminary steps, a lot in the city of Jackson. Patterson had not paid the purchase money to the state, but at the time of the sale' it had been paid by Moss, as his surety, who claimed to have a lien upon the lot for the amount so paid, by virtue of his subrogation to the rights of the state. Notice was given of this claim at the sale, and it is in proof, that Boar-man had knowledge of it. It is also in proof, that Mellen, the administrator, stated at the sale, that he did not think the claim could be sustained. Boarman became the purchaser, and afterwards, by arrangement with Moss, settled the amount which Moss had paid, by giving him one half the lot. This suit was brought upon the note given by Boarman, for the purchase money. He seeks to avoid its payment, first, by a plea of failure of consideration, because he obtained no title under his purchase; 2d, by setting up the amount settled with Moss, as an offset. This offset was allowed in the court below, and the case thence comes to this court.

The deed of the administrator to Boarman, is not in the record, but we presume, as there is no evidence to the contrary, that it is of the usual character. Such deeds are without warranty. The administrator sells the title of the decedent, as it exists, neither more nor less. If he were to make a warranty, it would probably only bind himself individually, and not the estate which he represents. If there be no covenants for title, the purchaser takes the risk of the title. Smith et al. v. Winston et al., 2 How. 609.

In this case Boarman was fully apprized of the facts. The opinion of Mellen could not operate as a warranty. If Boarman were misled- by him, that might constitute a fraud, but could npt constitute a covenant. Fraud is not the subject of offset, and in truth there is no evidence of fraud in the case. To let in the defence, we should have to hold that the administrator warranted the title. If there were neither fraud nor warranty, and the sale were regular, the purchaser is bound to pay his bid. Moss or his assignee must be left to his remedy to recover the debt due from the estate. The case does not come within the statute of 1840, Hutch. Code, 854, in regard to mutual dealings between two or more persons, where one of them dies, because the transaction on the part of Boarman took place with the administrator, after the death of Patterson. The claim therefore cannot be taken out of the general course of administration. This may be an important consideration, if the estate is insolvent.

The claim to be subrogated to the lien of the vendor is exclusively of equitable cognizance, and of which consequently no notice can now be taken. Nor do we wish to be understood as giving any intimation as to its validity in equity.

The judgment is reversed, and a new trial awarded.  