
    William H. Parker, Commissioner, vs. John A. Partlow.
    
      Commissioner's Sales— Warranty — Soundness.
    Where the Commissioner, at his sale of personal property, gives notice that there is no warranty of the soundness of the property, the rule caveat emptor applies to the sale, and the purchaser will be bound to pay, although the property should prove unsound.
    BEFORE MONRO, J., AT ABBEVILLE, FALL TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows :
    
      “ Under a decree of the Court of Equity, directing a sale of the estate of one Bird, deceased, for partition among the distributees, on sales day in January, 1859, the plaintiff, as Commissioner of that Court, .exposed for sale sundry slaves belonging to said estate, at which sale the defendant became the purchaser of a negro man named Lewis, at the price of $890; and in conformity with the terms of sale, executed to the plaintiff a bond to secure the payment of the purchase money. So that it is the recovery of this amount which the plaintiff seeks, as Commissioner, by action of debt to recover “ The defence was failure of consideration under the rule laid down by the Court of Errors in the case of the Commissioner vs. Smith, 9 Bich., 515, the slave having died about eighteen days after the purchase, to wit: on the 25th day of the same month, of a chronic disease, under which he was laboring at the time of the sale. To this it was replied that assuming the slave to have been diseased and unsound at the time of the sale, this defence could not avail the defendant, inasmuch as at the commencement of the sale, and during its progress, the plaintiff had caused to be proclaimed in the presence and within the hearing of the bystanders, that there would be no warranty of the soundness of the property, but that those who might be desirous to purchase, were referred to Mr. Wilson, who had been Bird’s overseer, and to Capt-Johnson, for any information respecting the condition of the slaves.
    “ This being a question of new impression, and likely to be one of frequent occurrence,- — for I was given to understand during the progress of this trial, that it is the habit of the present plaintiff to make similar announcements at all his official sales of personal estate — I announced it tobe my purpose to rule in such a way as to have the question finally adjudicated by the Appeal Court, although it is but justice to myself to say that my ruling was then in accordance with my own views of the law, and accordingly instructed the jury that it was as competent for a Commissioner at such a sale to make a disclaimer of warranty as it was for a private individual, and that the effect of such disclaimer in defeating the defence set up, would be the same as if the plaintiff had been acting in his private capacity.
    “ As regards the third ground of appeal, I would take leave to remark that the jury having been out for some time, expressed a desire to return into Court. What that purpose was I was not apprised until they came in. When they came in, .the foreman remarked that they did not precisely understand the rule I had laid down, or something to that .effect. I repeated it to them in nearly the same language I had doné before, or probably in similar language to that which is attributed to me in the second ground of appeal. But for my ruling of the law as I did, I have not the slightest doubt that the jury would have found a verdict for the defendant — nay, I can hardly suppose they could have found otherwise, for •the proof of the unsoundness of the slave at the time of sale, although apparently unknown to any one at the time, as established by the post mortem examination of the body by Drs, Pressly and Anderson, could hardly leave a doubt on the mind of any one.
    
      “ The only question then which I considered as involved in the case, was the purely legal question to which I have referred; and in passing upon this question, I am wholly unconscious of having been influenced by any other motive than an unbiased judgment — least of all was it my purpose in announcing a simple legal proposition “to wring a reluctant verdict from a jury, contrary to the law, evidence and the justice of the case.”
    “ I have made no specific reference to the testimony, because I considered there was nothing more than a legal question involved in the case.”
    The defendant appealed, on the grounds:
    1. Because the consideration of the bond sued on was a negro, who had dropsy of the heart at the time of the sale, and was in consequence utterly worthless to the defendant.
    
      2. Because his Honor erred in charging the jury that the plaintiff, Commissioner in Equity, had the right of his own head and without authority from any one, to disclaim warranty, so as to defeat the defence of failure of consideration.
    ■ 8. Because the presiding Judge had the jury called back into Court, and a second time told, them emphatically that he took the responsibility of charging that the Commissioner had the authority to disclaim warranty, and which disclaimer was as effectual as that of any one, to defeat the defence of failure of consideration.
    4. Because his Honor would not charge the jury that such disclaimer could only be considered upon the question of notice by the defendant, under the plea of failure of consideration ; but on the contrary, charged that such disclaimer did more than put the defendant on his guard — that it brought the cause under the principle of law applicable to warranties between individuals trading in their own right.
    5. Because his Honor charged, that the mere unauthorized declaration of a Commissioner, that there was no warranty, took the case out of that class which proceeds upon the ground of failure of consideration, and placed it in that other class which depends exclusively upon warranty.
    6. Because the verdict, wrung from a reluctant jury, is contrary to the law, as well as the evidence and justice of the case.
    
      Jones, McGowan, for appellant.
    1. At the common law a purchaser may rely upon the defence of failure of consideration, certainly where there is an entire failure; and the defence in such cases does not go upon the ground of contract, but "because the thing contracted and paid for is not received.” Chit, on Con. 461-4, and note»; Wharton vs. O'Hara, 2 N. & McC. 65; Colville vs. Berly, 2 Denio, 139 ; Chit, on Con. 622, note.
    2. In this State the new doctrine has been adopted — which goes further than the common law — that where a full price is given, the seller is presumed to have agreed to warrant soundness as well as title. Timrod vs. ShooTbred, 1 Bay, 324, and numerous cases.
    3. But there is a class of cases where the sale is made under-such circumstances that there cannot be a contract of wanranty, either express or implied, and in such cases the ends of justice require that we should fall back upon the common law doctrine, at least as to executory contracts. Commissioner vs. Thompson, 4 McC. 434; Evans vs. Dendy, 2 Sp. 9; Fuller vs. Fowler, 1 Bail. 75; Prescott vs. Holmes, 7-Eich. Eq. 1.
    4. In making a sale for others, an executor, an administrator or a commissioner exercises an agency for the parties, which so connects the owners of the property with the purchaser, as to authorize tbe latter to plead failure of consideration, upon the common law principle. Commissioner vs. Smith, 9 Eich. 520, and the authorities cited.
    5. But the agency of a commissioner, who makes a sale under an order of Court, is limited and special. The power granted in the order is in writing, and cannot be extended so as to give the right to stipulate in any way upon the subject of warranty. And, therefore, neither his warranty nor disclaimer of warranty binds either himself or the parties. From his position the commissioner is legally and necessarily silent upon the subject of warranty. Story’s Agency, § 76; 5 B. & Aid. 204; FLugg vs. Smith, 1 Taunt. 352; Gibson vs. Colt, 7 Johns. E. 390.
    
      Cothran, contra,
    cited Turnio vs. Fludd, 1 McC. 121; Singleton vs. Seriott, Dud. 257; Long' on sales, 402; Paley on Ag, 209; Skinner vs. Gunn, 9 Porter, 305; Story on Ag. sects. 59, 97,122.
   The opinion of the Court was delivered by

O’Neall, C. J.

We think the rule was correctly stated in the Commissioner vs. Smith, 9 Rich. 522.

It is there stated: “The single inquiry is, was the property sold such as it appeared to be, or such as, the seller permitted buyers to believe it was by his silence, or by failing to put them on their guard, as by refusing to warrant."

It is true, the commissioner is not liable on an express or implied warranty in his sales; yet, in such sales, there is as to the executory contract of purchase a quasi warranty, such as explained, in the Commissioner vs. Smith. His sale, in most respects, is regarded as analogous to an executor’s; the rule in such a sale as settled in Green's Exor's vs. McLean, 2 McMull. 17, was intended to be applied to sales by the commissioner. If lie chose in making a sale to give notice, that there was no warranty, the rule of caveat emptor would apply. .

It is true, the commissioner acts under the order of the Court of Equity; but that does not deprive him of a.sound discretion in the time or matiner of the sale. . He is the agent of the Court and of the parties, for whom he makes;the sale. He sells their title, and is, therefore, as much pro hac vice, the owner, as an executor. Like, the latter, he may. say, “ there is no warranty in this sale,” and when he so declares, the purchaser can’t say, I bought as the thing appeared to be; but he buys and* runs the chance of its being what its outside appearance presents. . : ■

The beautiful argument of Mr. Cothran showed the propriety of the commissioner’s course, and held up, as it ought to be, what a guard it was to the rights of the distributees, in such a sale.

The motion is dismissed, and I may add, that would have been the result of -the motion in the Law Court of Appeals had not that Court been dissolved before their judgment could be announced.

Johnstone and Wardlaw, JJ., concurred.

Motion dismissed.  