1811.

1

Supreme Court of Appeals. OCTOBER, cutor as aforesaid, did, on the 16th day of November, 1798, 1811.

by a bill of sale, sell the said slaves, and also one by the Robertson

name of Peter, which he held by a gift from the testator Ewell.

in his lifetime,) to the plaintiff in this action, " to pay and satisfy a debt or debts due from the said James Ewell, jun., to the said plaintiff;" that it " was well known to the plaintiff, at the time of his making the said purchase,” that the said Hannah and Billy had been the

, property of the said testator, and that the said James Ewell

, jun., held the same as one of his executors; that the testator, at the time of his death, left personal property more than sufficient to pay his debts,” but whether this lastmentioned circumstance was known to the plaintif was not found. It was further found, by the verdict, that James Ewell

, jun., at the time he made the said bill of sale, delivered the said negro Peter to the plaintiff in the name of all the negroes mentioned therein; but retained the said slaves Hannah and Billy in his possession until April

, 1801, when he lost them, and they came into the possession of the defendant; that, in the year 1809, the defendant demanded the said negroes of fames Ewell, jun., telling him that he understood he intended selling them out of the country, which the said James denied, and begged he might keep them till the end of the year, when they would be returned.

It was also found that James Ewell, jun., was possessed

slaves before mentioned: but the verdict did not state OCTOBER, that the Peggy delivered to fames Ewell, jun., before the

Robertson death of the testator, and the Maria whom he carried off,

Ewell. were the same Pegsy and Maria mentioned in the bill of sale.

It was found that the defendant was one of the legatees of the testator, by whose will, (which was found in hæc perbu, he was constituted one of four residuary legatees; the slaves in question being not specifically bequeathed.

Upon this special verdict, the District Court gave judgment for the plaintiff, to which a writ of supersedeas was awarded by this court; the grounds for reversal stated in the petition, being, 1. Because the sale of the slaves was illegal, and contrary to the duty of the said James Ewell, jun., and that with the knowledge of the plaintiff; Reo. Code. Vol. 1. ch. 170. sect. 2. p. 320; and, 2. Because the plaintiff's permitting the said James Ewell jun. to remain in possession of the said slaves, after his purchase, and contrary to the tenor of the bill of sale, was fraudulent as to the petitioner and those interested

in the estate.

In support of the first point, Wickham observed, it is not found that the executor applied the money, for which the slaves were sold, to payment of the testator's debts, or that the estate was any way benefited by the sale, being not necessary for payment of debts, it was therefore void under the act of assembly. I do not contend, that if an executor sells slaves for ready money, or on credit, the purchaser is, in all cases, bound to see to the application of the purchase money ; but if the sale be, expressly, to pay the executor's own proper debt, the purchaser buys at his peril, and ought to be liable, if it turn out that, in fact, it was not necessary. Even in England, (a) Sugleus

Law of l'enwhere there is no such act of parliament, it has been dors, p. 348. held that, if an executor sells a specific legacy, to pay his rives there own debt, the legatee may recover it back. a)

of a negro girl by the name of Peggy, delivered before the death of the testator; and also of a negro girl named Maria, who, at the testator's death, was a part of his es. tate; xhich said Maria, he the said James Ewell, jun., carried off with him when he left this part of the country.” The bill of sale (being found in hæc verba) convey. ed two negro girls, Peggy and Maria, as well as the

OBER,

811

V.

Another circumstance has great weight in this case

There were several executors, of whom my client was one, pertson It was the business of the purchaser to inquire of the

other executors whether they assented to the sale.

2. The purchase was a direct fruud upon the persons interested in the estate. The bill of sale was absolute, yet possession remained with Ewell, the executor. If the slaves had been his own, a sale in this manner wou'd have been fraudulent per se against creditors.* We are his creditors for the negroes themselves. Here false colours were hung out. The negroes were demanded by the defendant, after the bill of sale ; and the executor promised to deliver them at the end of the year.

Why should the purchaser be the loser? Is it not OCTOBER,

. 1811. - the better rule to leave the executor and his securities

Robertson responsible to persons injured, in case he sells improperly; but let the sale stand good, rather than hamper all

Ewell. sales by executors with such insuperable difficulties? Does the discount of the executor's private debt make any difference? If he had sold the slaves for cash, he might have paid away the money immediately in discharge of his own debt. Is a court of law, on the plea of non detinet, in an action of detinue depending on a sale by an executor, to examine his administration account, and this, too, when the residuary legatees are not parties to the suit? Is this laborious investigation to be made on the sale of every article of property?

All the cases in Sugden were in equity; and many of them turned on fraud committed by the purchaser : but such as were decided by Lord Hardwicke,(a) are in my (a): Nugent

6. Gifford, 1 favour. The case determined by Lord Kenyon (6) was on 4tk. 463.; and

Meud y. Lord very different ground, and did not impeach the authority Orrery, 3 of Lord Hardwicke.

The other overruling cases c) (6) Bonny are all since our revolution, and by judges of inferior Ridgard,

2 Bro. Ch. talents to Hardwicke, or not touching the point decided Cases 4:38.

(c) Andrew by him.*

v. Wrigley, 4

Bro Ch. Ca. The provision in our Act of Assembly is only manda

808, 135.; Hill tory to the executor ; making him responsible for dis- Simpson, 7

Vesey jr 152; obedience; but not declaring the sale void.

and Scott v.

Tyler, 2 Dick. 2. As to the charge of fraud, it is not found in the 701. special verdict, and is not to be presumed. The bill of sale could be considered fraudulent against creditors only. It is not found that Ewell was in debt; nor that his bond and security was not amply sufficient to indemnify the legatees.

Botts, contra. The plaintiff, who bought of the er. ecutor, was not to be presumed connusant of the state of the assets. It is not found that he was ; and, from the nature of things, the contrary is rather to be inferred. He had a right to presume that the executor had, out of his own funds, made advances to his testator's creditors, to the value of the slaves in question, beyond so much of the assets, (made liable by law before slaves, as had come to his hands; in which case, he had a clear legal

title to sell them for his reimbursement; or, indeed, to 1) Toller's convert them to his own use as compensation.(a) A

Atk. 135.

'pe
. p. 185. state of things might have existed to justify the sale.

How was the purchaser to know it? Was he to call on the executor for a previous account of assets The executor, if so dispused, might easily have imposed upon him. If the principle now contended for should be established, no person would buy of an executor. Is suit to be brought by the executor against the legatee, for settlement of his administration account, before he can sell any slave belonging to his testator's estate ?

Wickham, in reply. I said that, in general, the purchaser from an executor is not bound to see to the appli

a

Was ever such a suit heard of?

* Note. See Alexander v. Deneale, 2 Munford, p. 941.

In the 36th Year of the Commonwealth.

1811.

v. Ewell.

to pay

2, cation of the purchase money; but the sales being for

the express purpose of paying his own debt, makes the difference. A constituent

part
of this contract was,

that the money should go, in the first instance, to pay the executor's private debt. This circumstance made the purchaser particeps criminis. Since the borrower is alway's slave to the lender, a door is open to frauds in. numerable, if an executor may

sell his own debt; making that part of the contract of sale. If money had been paid by the purchaser, the executor would have had a choice, to pay it, afterwards, in discharge of his own debt, or not. This makes all the difference in the world.

There is no more difficulty in examining the adminis. tration account in detinue than in debt, in which it is often done upon the plea of plene administravit.

The modern authorities in England are in my favour, and entitled to more respect than the more ancient decisions. The science of jurisprudence is progressive,

FLEMING, ROANE, Brooke, and COALTER) “ that the OCTOBER, title of the appellee to the slaves in question, being under an absolute bill of sale by an executor, who was

Robertson nevertheless permitted to retain the possession thereof, the same ought to be considered as fraudulent and void, as to the appellant, (a distributee,) under the true construction of the act to prevent frauds and perjuries ;'

' that act not only being in affirmance of the principles of the Common Law, which equally extend to the case of distributees, as of creditors and purchasers, but the former description of persons being also equally comprehended, with the latter, under the provisions of the said statute. On this ground the Court is of opinion to reverse the judgment, with costs, and enter it for the appellant.

and daily receiving improvement. The modern judges have the advantage of Lord Hardwicke's knowledge, and their own 100.

Fraud in the purchaser, where sufficient facts appear, may be examined at law, as well as in equity. Where the bill of sale is absolute, and possession remains with the grantor, the conveyance is void, not against creditors only, but against all persons having a legal or equitable title to the property.

3. The very act or selling the slaves, made the executor 2 debtor to the estate; and here the purchaser assisted

a

him to deceive the legatecs. We had a right to defend ourselves, by maintaining our possession, and ought not to be turned round to the executor's securities. Innocent persons ought not to be made to suffer, when the trong may be prevented, or when the wrong doer him. self may be made responsible.

Monday, March 9;h, 1812, the President delivered the unanimous opinion of the Court, (consisting of Judges