
    John T. Hull, Administrator of Peter Murphy, vs. William Clark, Administrator de bonis non of Edwin Perry, deceased.
    The court of chancery, in this state, has jurisdiction of a hill for the specific recovery of slaves, without an express allegation of the pretium affectionis.
    
    A sale made by an administrator of slaves belonging to his intestate, without order of court, is void, and passes no title to the purchaser.
    Such slaves may, therefore, being unadministered assets of the intestate, be recovered by the administrator de bonis non from the purchaser ; and to that end a court of chancery would have jurisdiction of a bill, by the administrator de bonis non, against the purchaser for the recovery of the slaves and their hires.
    Under the prayer for general relief, the court of chancery may decree hire of slaves sued for by complainant.
    Where an administrator sold slaves without order of the court, and his vendee resold the same slaves to one having no notice of his want of title, such sub-vendee would, nevertheless, acquire no other title thereby than his vendor had; and as he had none, he could pass none to his vendee.
    On appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor.
    William Clark, administrator de bonis non of Edwin Perry, deceased, filed his bill originally against Peter Murphy and others, on the 1st of August, A. D. 1840, in which he states that within two or three years past, Edwin Perry and Bridges A. Williams, partners in planting, died intestate. Vernon Dorsey, administrator on both estates.
    The parties had a considerable personal estate, which they had used in common. Of this personalty, Dorsey, so far as known, had no inventory, &c. taken, nor obtained any order for its sale. Among the personalty, owned jointly or severally, were Maria, aged twenty five, and her children, Ben, aged seven, and Mary, aged six months. Whether these were partnership negroes, or owned by Perry, complainant does not know; but avers they were one or the other.
    ' In March, or April last, Dorsey, as administrator, made a sale, or pretended one, of the slaves, and delivered them to Cook, taking his note at six months, with A. A. Catlett and one Morris, sureties, for about $810; with Cook’s consent, they passed into Murphy’s hands, where they now are.
    That Cook had left the state. He and his sureties utterly insolvent; fears Murphy, or he and Cook, if not prevented, will remove the slaves, and thus prevent complainant’s statutory lien as administrator de bonis non from being effectuated, if the sale-turn out to be valid, or in any event subject the estates he represents to the loss of the slaves. If the sale was invalid, he claims the slaves in specie; or if valid, then that the tacit lien be enforced; he prays also for general relief. Murphy demurred, but the de-' murrer was overruled. See Murphy v. Clark, 1 S. & M. 221.
    In February, 1844, the suit revived, by consent, in name of John T. Hull, as administrator of Murphy, who had died. Hull plead that he purchased the slaves from Cook for a valuable consideration, without notice of complainant’s title; the plea was disallowed, and he answered.
    Admits that Perry and-Williams died as stated, but knows nothing of their partnership or possessions as such, or that Dorsey administered on their estates, or either or when, or if Dorsey had the property appraised, or not, or obtained an order of sale or not; and as to these requires such proof as may be requisite.
    Does not know if at commencement of Dorsey’s administration the slaves were in his possession, or on the plantation; supposes it true that in March or April, 1840, Dorsey did sell them to Cook, or to him and A. Skinkle, and believes to Cook and Skinkle. “ All he knows is that the sale was made at Dorsey’s, on a credit of six months; this he has been informed, and believes.” ‘
    
      “ He requires proof that there is now outstanding against Cook, or Cook and Skinkle, a debt created by the purchase of said slaves.”
    Admits that about May 14, 1840, the slaves came into Murphy’s possession, and remained with him until his death; but believes and avers it was on a valid bond fide sale by Cook and Skinkle; that they were then in possession of them, claiming them as their own; that Murphy, believing they were the owners, free from incumbrance, purchased the negroes, giving therefor a negro man worth $850, and received from Cook & Skinkle their bill of sale of the negroes in question ; that Cook & Skinkle immediately removed the man and sold him for cash in foreign parts to some one unknown ; averred on information and belief that Murphy had no notice or information of complainant’s claim at his purchase.
    That the estates of Perry and Williams were insolvent; so complainant’s object in getting the slaves is to sell, and not retain them as family slaves.
    Henry Smith, clerk of the probate court of Hinds, proves that there is nothing in that court in regard to the action of Vernon Dorsey, as administrator of Edwin Perry, and also of Bridges A. Williams, except the grant of letters of administration of each estate to him; no inventory, order or report of sale or account; that the inventories &c. in those estates have been by the complainant as administrator de bonis non.
    
    The defendant, Thomas Cook, proves that he was present at the sale of Edwin Perry’s estate, by Vernon Dorsey, as administrator; that his firm of Cook & Skinkle purchased the negro woman, Maria, at that sale, at between $700 and $800, for which, a few days after the sale, a note was given, including the price of some other property they bought; that this was in the latter part of 1839, or first of the year 1840; has never given to Dorsey any other note ; has no recollection of any one signing it as surety, but A. A. Catlett; has not paid to Dorsey, or any other person, any part of the note; that Skinkle exchanged the woman, Maria, with Peter Murphy, for a negro man, but at what estimates, does not recollect; never transferred any other negro to Murphy. Dorsey’s sale occurred at Edwin Perry’s, late place or dwelling; Cook & Skinkle took the negro received in exchange to New,Orleans, and sold him for cash.
    This was all the proof. The court below decreed that the slaves should be delivered to complainant, and an account should be taken of their hires.
    Hull appealed.
    
      
      D. Skelton, for appellant.
    I.There is not one particle of evidence that Perry ever owned these slaves, except what is stated in the deposition of Thomas Cook, one of the defendants. It is denied by the answer.
    Cook’s evidence is inadmissible, because,
    1. He is one of the defendants to the suit, and his deposition was taken without an order of court for that purpose, and therefore could, not be read.
    2. He is an incompetent witness against Murphy, having an adverse interest to him. 1 Stark. Ev. 104-114; Gilb. Ev. 106; 6 John. R. 5, 538 ; 16 lb. 89; 4 Mass. R. 653 ; 6 Bing. 394.
    3. Having undertaken to convey title to Murphy, he is not a competent witness to impeach that title. 2 Atk. R. 228; 1 Mass. R. 91; 8 lb. 431.
    Without Cook’s testimony, there is not a particle of evidence that the slaves in controversy ever belonged to Perry, nor is there any fact proven even tending to show that fact, and therefore if Cook’s evidence be excluded, the bill should be dismissed.
    II. But admit Cook’s evidence, and the proof that Perry ever owned these slaves is wholly insufficient. Cook’s evidence is that he was present at a sale by Yernon Dorsey, of the estate of Perry. At that sale a number of slaves were sold, and he purchased the slaves in question, and gave his note for them. Now if the slaves ever belonged to Perry, that fact is susceptible of proof more direct than an inference from the fact that they were .sold by Dorsey, at the same time and place as the property of Perry. It does not follow that because Dorsey sold the property of Perry on that day, he may not also have sold a part of his own at the same time. My position is strengthened by other facts. The complainant has been wholly unable to prove that these slaves ever belonged to Perry, or were ever in his possession. That fact might certainly have been proved, if it had been true. But even if there is still a doubt upon the question of Perry’s ownership, the defendant is entitled to the benefit of that doubt.
    III. There is no proof that Dorsey ever was administrator or executor of Perry, or Williams.
    1. Cook’s deposition is insufficient as proof of that fact. He was never asked the question, and he does not state the fact; the complainant’s questions ask relative to a sale, in the question described as a sale by Dorsey, as the administrator of Perry, and he answers that he was at the sale referred to. Obviously his presence and purchase was the only subject of his answer, and he did not undertake or mean to assert or deny that Dorsey was administrator of Perry.
    2. If Dorsey ever was administrator, it was susceptible of better proof than Cook’s vague statements. The letters of administration should have been produced in proof, and they were the only legal proof of Dorsey’s administration. The want of this proof is fatal to the decree rendered, and for that reason it must be reversed.
    IV. Admitting the administration by Dorsey, and that the slaves were sold by him are Perry’s property, I argue that a subsequent administrator cannot vacate and set aside the contract of his predecessor, in the administration; the distributees alone have the right to avoid such a sale. The administrator who made the contract, and his successors in the administration, have no such right.
    The principles of law sustaining the right as to the distributees do not exist as to the administrator de bonis non. To the heirs belongs the ultimate right of property, subject to be divested only in the mode prescribed by statute; except in that way it cannot be divested at all. But not so with the administrator’ himself; he sells with an implied covenant that he has authority to sell. S. & M. Ch. R. 562. He cannot allege his own turpitude or neglect, to avoid his own contract. But the administrator de bonis non stands in no more favorable attitude than the original administrator. He is but a successor in the fiduciary character. He does not come in with the power to repudiate or avoid the acts of his predecessor, done in the course of his administration, or to inquire as to their legality or illegality. He takes the estate just as it comes from the hands of his predecessor, with no more and no fewer rights than his predecessor would have, were his administration continued; is chargeable only on that basis, and can inquire into no act of mal-adminis-tration by his predecessor; such acts of maladministration, being no injury to him, but only to the heirs and creditors. 1 How. R. 93; Freem. Ch. R. 486; 5 S. & M. 130; 6 lb. 323.
    There is good reason in this right (to avoid the sale) being confined to the heirs and creditors. The act regulating the mode of sale was designed to protect their interest. 1 How. R. 561. The heirs have the right to confirm the sale, and hold the administrator responsible for the amount of it, or to avoid it and recover the slave; but they have no right to do both. 2 John. Ch. R. 441.
    In many cases this right of action is valuable to the heirs, as where the slave sold has since deceased, or greatly depreciated in value. But if an administrator de bonis non can at his election vacate such a sale, without the heirs’ concurrence, and again reduce the slave to possession, and re-adminisfer it; thereby he discharges his predecessor of his liability as. aforesaid, and cuts off the heirs’ right to confirm the sale. This is plain sense; when stated as a legal principle it is this — the sale is not per se void, but voidable at the election of the heir or creditor, for whose benefit the act was passed.
    It is precisely the same rule which governs the acts of other trustees. If the cestuis que trust concur and acquiesce in the irregular execution of the trust, the consequences of the act are waived, and other persons not damaged cannot complain. Hill, Trust. 525.
    Y. Another valid defence to this suit, is, that the defendant, Murphy, is a purchaser for a valuable consideration, without notice, from Cook, who was in possession of the property, and apparently the owner of it.
    I admit that if it was a proceeding to enforce the administrator’s lien for the purchase-money, that would be no defence, for a very plain reason that does not exist in this case. In that case there would be a legal mortgage created, by the statute, of which the proceedings on record in the probate court would be constructive notice to all persons, and therefore in such case no such plea would be good as a defence. 2 S. & M. 697, 698. But no such legal mortgage, and no such notice exists in this case. The pleadings and proof in this case show that the whole records of that court might have been searched, and no evidence would have been found that these slaves had ever belonged to the estate of Perry; they had never been so returned by any administrator, they had never been sold under an order of that court, and nothing there showed any thing about them. See Barnes v. McGee, 1 S. & M. 217; Ld. Red. Treat. 215; 2 Mad. Ch. 321; 2 Sug. Vend.; 2 Bro. C. C. 264.
    For English decisions, sustaining the same doctrine, the following cases are directly in point: 2 Ves. Jr. 458; 3 Atk. 302; 2 Cas. Chan. 72 ; 1 Vern. 27; 1 Russ. 154; 2 Freem. 24; 2 Eq. Cas. Abr. 79. See also 1 J. C. R. 288, 566; 3 lb. 345 ; 3 Hen. & Mun. 316.
    VI. Upon the proof made, this is only a trial of the legal right to the slaves in controversy. A chancery court has no jurisdiction, there being ample remedy at law.
    This question was once argued in this case, before this court; reported, 1 S. & M. 222; the judges differed in opinion, and it is still open. The naked question is, Will the court, under those facts, presume a pretium aJfectionis between Clark and the slave, against the servile relations proven to exist between Murphy and the slave! Clark litigating only for the purpose of sale to raise money; Murphy’s administrator litigating for his distributees; for Murphy’s estate is solvent, and not charged to be otherwise.
    I think so to hold will be to give to the chancery court an extent of jurisdiction that is supported neither by principle nor authority.
    On this point Mr. Shelton cited and reviewed the following authorities: 1 S. & M. 222; 1 Vern. 272; 1 P. Wm. 390; 3 Rand. 170; 6 lb. 194; lb. 506; 4 Yerg. 84; 10 lb. 30.
    VII. The chancellor has ordered an account for hire; the bill is not shaped with that view, nor is there any prayer to that end, and the remedy for the hires at least was at law.
    
      Foote and Hutchinson, for appellee,
    Relied on the case of Murphy v. Clark, 1 S. & M. 221, as settling all the questions involved in this suit.
   Mr. Justice Clayton

delivered the opinion of the court.

The question of the jurisdiction of the chancery court to entertain a bill for the recovery of slaves, without a specific allegation or the pretium affectionis, is settled by the case of Butler v. Hicks, 11 S. & M. 78. The very fact of filing such bill, carries with it a presumption that the property is preferred to damages for its recovery. ,

The proof in this case sufficiently establishes that the slaves in controversy belonged to the intestate of the defendant, and that Dorsey, the former administrator, made a supposed sale of them. But it- is clearly shown that he made no attempt to obtain an order of court to authorize the sale, and that, in truth, the sale took place without any authority. It therefore passed no title to the purchaser. Cable v. Martin & Bell, 1 How. R. 558; Edmundson v. Roberts, 2 How. 822.

As there was no valid administration of these effects, the sale was void, and the right of property was not changed. It was consequently competent for «the administrator de bonis non to sue for and recover it. Byrd v. Holloway, 6 S. & M. 325.

The plea of purchase by the appellant’s intestate, from the original purchaser, for valuable consideration without notice, cannot protect him. If his vendor had no title, he procured none by his purchase. The question of notice or want of notice is unimportant. Ventress v. Smith, 10 Peters, 16; 11 S. & M. 86.

As to the hires, although there is no specific prayer for them, they are embraced by the prayer for general relief.

On the whole, no error is perceived in the decree, and the same is affirmed.  