Miles against Diven, 6 Watts 148

The opinion of the Court was delivered by Sergeant, J. If the verdict and judgment for the defendant in this case should stand, the creditors and minor children of the intestate, for whose benefit the law empowers the administrator to make a public sale, must sustain a heavy loss, because the administrators, privately and without authority, undertook to contract with the defendant to sell him the land, and in so doing, mistakenly pointed out the boundary. This is beside the duty of the administrator.

He is not the source to which one designing to purchase, is justified in resorting for information respecting the land of the intestate. The administrator may be presumed to be acquainted with the personal estate, and competent to malee representations or contracts in regard to it. But the real estate, with its title papers and muniments, descends to the heirs. The administrator is but an agent employed by the haw, for a special purpose. He cannot travel out of the limits assigned him.

His representation previously to the sale, is no more than that of a third person, and it must be considered the folly of the purchaser to rely upon it. The principles decided in Myers v. Hodges, 2 Watts 381, that the administrator cannot contract beforehand for the sale of the land, or in any respect control the course prescribed by the law, decides the present point. If he cannot bind the interests of the creditors and children by his previous contract, he cannot do so by his representations, by undertaking to communicate knowledge, which the law no where supposes him to possess, or authorizes him to give.

Should a sheriff prior to the day of public sale, and without the directions of those interested, undertake to exhibit the boundaries of a tract of land belonging to the defendant, which he expected to sell on a venditioni exponas, who would suppose he could bind the parties by such representation, should the purchaser be so remiss as to confide in it, if it should prove inconsistent with the real boundaries of the tract as sold?

In the same manner, in the case of an administrator, who is merely the instrument of the law to effectuate the sale by public vendue, and in no other manner, it is by the advertisement and conditions of sale that the responsibilities of the vendor and vendee are to be determined, and any information the purchaser chooses to ask of the administrator beforehand, he takes at his own risk, just as he does that given by another person.

It appears by the evidence in this case, that the administrator was ignorant of the boundaries of the tract, that he mistook the line, and while making a private bargain with the defendant, some time prior to the-sale, (and, it would, seem, even before the order of the orphans’ court, under which the sale was made,) informed the defendant that the tract contained no mountain land. It turned out that about forty acres of the two hundred and forty-one, were mountain land.

The petition and order of sale, however, were for two hundred and forty-one acres; the advertisement and description were of the same quantity, and that was the quantity the defendant purchased at the vendue, at 18 dollars per acre. The defendant entered into possession, paid part of the purchase money, and now contends that on account of this misrepresentation of the administrator, he is authorized to retain the choice part of the farm, viz: one hundred and ninety-eight acres seventy perches, at that price, and reject the residue. This would be highly unjust.

If there even had been such a mutual mistake as would invalidate the purchase, equity would dictate that the vendee should either affirm or disaffirm the sale; that he should give up all or keep all. It would be a fraud on the children and creditors, and occasion a heavy loss to those who were innocent of the transaction, if under such circumstances, the defendant could construe the contract so as to keep the best part of the land at a price intended to be the value of the whole, and throw on them the mountain land, which, separated from the rest, is worth little or nothing.

This is the utmost the defendant could have obtained by application to the orphans’ court, to set aside the. sale before confirmation; for that court would not have confirmed a part and set aside the rest. It would have required the defendant to take all or none. This was the proper course for the defendant to take, to obtain relief from his purchase, even had there been ground for alleging, (which, however, I do not perceive,) that there was a fraudulent misrepresentation by the administrator. The effect Avould still have been only to enable the defendant to set aside the sale.

And admitting that he Avould not be precluded in this suit from alleging a fraud practised by the administrator, the consequence would be the same. The contract would be declared void, and the parties restored to their original position; the defendant surrendering up the land, and the accounts between the parties for moneys paid and interest on the one hand, and for rents and profits on the other, settled according to the equitable circumstances of the case.

But there is no evidence of fraud, and application was not made to the orphans’ court to set aside the sale; on the contrary, the sale was confirmed, and the defendant is not justified in refusing to comply with his contract. Judgment reversed, and venire de novo awarded.