
    Mathews v. Allen.
    Where an administrator in 1839 sold a land certificate by order of court, which afterwards proved to be fraudulent: Held, That, by the laws then in force, the purchaser wan entitled to a rescission of the sale and a repayrnont. of the purchase-money, to be enforced against the succession in the person of the administrator, if not closed, or if the succession had been closed, then against the heirs and distributees; but that the purchaser liad no claim against the administrator personally.
    Error from Red River. This suit was commenced on the 30th of January, 1845, and the petition alleged that on the 3d of June, 1839, the defendant (who is plaintiff in error) conveyed lo the plaintiff tiie headlight certificate of one Tilomas D. Dresser for one third of a league, for which the plaintiff paid the sum of three hundred and eighty-eight dollars and forty-five cents, and that the defendant covenanted to warrant and defend the peaceable possession of the said land. The petition further alleged that the certificate was fraudulent, and that the covenant of the defendant had been broken, to the great damage of the plaintiff, and prayed judgment for damages and costs of suit.
    The defendant demurred to the petition, and pleaded, among other matters, that he sold and conveyed said land certificate to plaintiff as the administrator of Tilomas Dresser, and in strict compliance with an 'order of the Probate Court.; and that, as administrator as aforesaid, he received two notes, about the amount of three hundred and eighty or ninety dollars, which lie still held aga.list plaintiff, subject to a credit of about eighty dollars; praying that he might have judgment for such sum as might Í5e due him. And lie further pleaded that, as administrator, lie lias paid for the estate of the said Dresser about three hundred and fifty dollars, as would appear by reference to the settlement with the Probate Court; that there were no other effects of said decedent but the certificate, and that the notes were the property of the defendant. These pleadings were filed in 1843. A hiatus of four years occurred in the proceedings, whim the suit was reanimated by an amended petition filed the 3Dth of April, 1840. This recited the substance of (he indenture or conveyance of the certificate, the most material parts of which were that the vendor, describing' himself as the administrator of Thomas Dresser, deceased, sold the certificate by virtue of an order of the Probate Court, and warranted that the purchaser should have, hold, and enjoy the said certificate, and all the land and privileges accruing' thereon, as also his heirs, executors, and administrators, free from any incumbrances whatever from the heirs, executors, or administrators of the said Dresser. The petition alleged that the certificate was, on the 10th of April, 1841, rejected by the investigating board of commissioners, and prayed that the contract and sale he rescinded and judgment be rendered against the defendant for the amount of the purchase-money paid.
    The deed of conveyance and the notes for the purchase-money were filed. A jury was waived, and the court decreed that the notes set forth for the pnruhase-money were the consideration for the execution of the covenant sued upon, and that the plaintiff had, before the commencement of this suit, paid the sum of one hundred dollars; that the contract between plaintiff and defendant he rescinded, canceled, and set aside; that the land certificate and ihe notes he mutually surrendered, and that the plaintiff recover the sum of one hundred dollars and interest at five per cent., &c.
    
      Mills §• Murray, for plaintiff in error.
    
      E. G. Benners, for defendant in error.
   Hemphill, Ch. J.

The record does not show that there was any action on the demurrer.

The cause, upon the pleadings, exhibits, and proof, was submitted to the court, and, without discussing the alleged errors in the order of their assignment, I will consider whether the judgment on the submission is such as should have been rendered.

It appeared from the pleadings and the argument that it was a controverted question whether the warranty was general or special as against the heirs, executors, and administrators of Dresser. But it is wholly immaterial whether it was the one or the other, or whether there had been any express covenant of warranty. The vendor had no title. The certificate was worthless, was fraudulent in contemplation oE law, and was in fact a mere nullity,-and the purchaser was entitled to a rescission of the contract and to the repayment of the sums advanced.

This was especially the. law of the contract at the time of its execution. Under the system of Spanish jurisprudence then in force it is an established rule that a sound price warrants a sound commodity. An implied warranty was annexed to every sale, and if the vendor’s title partially or wholly failed the purchaser was entitled to partial or entire relief.

But against whom is the plaintiff, under the pleadings and facts in this case, entitled to redress? Unquestionably not against the defendant individually. Tlie sale was made by'him in his representative capacity and by an order of the Probate Court, and the claim must bo presented against the legal representatives of the deceased intestate. If the succession be not closed, an action would lie against the administrator; if settled, against the heirs and distrib-utees. Had the plaintiff, by averment and-proof, shown that tiie defendant was still Ihe administrator, or that there .were no debts, or that they had not been paid, and that the defendant retained the amount advanced on ihe.notes, ho might iiave had the money paid arrested and restored and full relief.

The notes, it is true, are still held by the defendant,'who claims them as his own, on the ground that he has paid debts of the estate equivalent in amount; and the plaintiff might perhaps set up a claim to their cancellation, on tile ground that they form a cloud upon his rights. This, however, would be but a weak equity, and a petition for that purpose should be dismissed, or at least prosecuted at the costs of the plaintiff, as a recovery upon the notes is and was barred at the commencement of the action, aud in addition the want of consideration would be a good defense.

The plaintiff did not allege that any such notes were in existence, or pray their cancellation, or set up any facts which would, in the absence of other parties, justify such decree; the plaintiff claimed that he had paid the whole of the purchase-money. The notes were produced by the defendant as well to show that but a portion of the consideration had been received as to set up an unfounded pretension for a judgment for the balance.

Upon considering the matters presented in the record, we are of opinion that the plaintiff is not entitled to a recovery in this action, and it is therefore ordered, adjudged, and decreed that the judgment be reversed and the cause dismissed.

Reversed and dismissed.  