William Joslin, Executor, &c., v. Caughlin and Brown, 26 Miss. 134

Mr. Chief-Justice. Smith delivered the opinion of the court. This was an action brought in the circuit court of La Fay-ette county, by the executor of John Joslin, deceased, on a sealed note, made payable to him as such executor. The defence set up was a failure of consideration in the note. It was alleged in the answer to the complaint, 1st. That the note in suit was given for a certain slave, which was sold at an administration sale by the executor, and purchased by the defendant Caughlin.

That the slave thus sold, and which was the sole consideration of the note, was bequeathed, with several other slaves, to his sons and daughters, by the said testator, to be equally divided amongst them; the division to be made by three disinterested persons, to be selected by the executor. 2d.

It was further alleged, that a decree for the sale of all of the said slaves was made by the court of probates for said county, upon the application of the executor, who represented to the court, that an equal division, in kind, could not be made of them; that the said decree was made without notice to the divisees under the said will; and that the sale of said slaves, including the slave which was the consideration of the note, was made by virtue of and in execution of the said decree. 3d.

It was also further averred in the answer, that the said slave, “ at the time of the said sale was unsound and of little value.” There was another ground of defence set up, which it is unnecessary to notice. The plaintiff demurred severally to the defences alleged in the answer; and the demurrer was overruled as to the defences above stated.

The court of probates is vested with general jurisdiction in reference to the sale of personal property belonging to the estates of deceased persons; and may, consequently, in the exercise of a sound discretion direct the sale of the personal effects in all cases, in which a sale is necessary for the general purposes of administration. The court may, upon the application of the administrator ad colligendum, order the sale of property which is of perishable nature. It may, upon a proper showing, direct the sale of a growing crop.

And the court may, also, in all cases, in which it is necessary for the payment of the debts, order a sufficient amount of the personal effects to be sold. Hutch. Dig. 662, § 84; lb. 655, § 40; lb. 669, § 109; and in a single case specified in the statute, where the object is neither the preservation of the property nor the payment of the debts of the estate, the court may order a sale of a certain description of personal property.

This case is where one or more slaves shall have descended from a person dying intestate, and an equal division thereof cannot be made, in kind, on account of the-character of the property. In such case it is competent for the court of probates of the proper county in which administration of the estate 'was granted, to direct the sale of such slave or slaves, and the disposition of the proceeds arising therefrom, according to the rights of the distributees.

But it is expressly provided, that before an order or decree directing the sale shall be made, “ each claimant shall be duly summoned to show cause, if any he can, against such sale.” Hutch. Dig. 661, § 82. The power to order a sale of the personal estate of a decedent, for the purpose of a distribution, does not necessarily constitute a part of the jurisdiction of our courts of probate; and there are many valid and satisfactory reasons, why an unlimited discretion to direct a sale for that purpose, of the slave property of a decedent, should not be vested in those courts.

Hence, as there has been specific legislation on the subject, and the conditions stated on which the power may be exercised, and express directions given as to the forms which should be observed before it can be exerted,'it follows, that, in all other cases, not embraced within the language and intent of the statute, the power does not exist. The statute above referred to, in terms applies only to cases in which slaves belonging to a person dying intestate, have descended. There is a manifest difference between a legatee under a will, and the distributee of an intestate’s estate.

In the one case, the foundation of his title is the bequest contained in the will; in the other, the right is based upon the division made pursuant to the statute of distributions. The whole of the estate of a decedent is charged primarily with the payment of his debts; but in the case of a devise or bequest of any portion of the estate, that portion undisposed of by will must first be applied to the payment of the debts.

We think, therefore, that it -was not intended to confer upon the court of probates, the right to direct the sale of property bequeathed, except where it is necessary for the preservation of the property itself, for the simple purpose of a distribution. But if it were conceded, that the court has jurisdiction to decree a sale of slave property bequeathed by the will of the testator, where it is incapable of a division in kind, we deem it evident, that, before a decree for that purpose can legitimately be made, the legatees must have due notice.

The authority of the court, if indeed it do exist, in such cases, must be regarded as a special jurisdiction limited to the state of case defined in the statute. And hence it must be exercised in the mode therein pointed out. Regarded in that light, it is exactly analogous to the power of the court in regard to the sale of the real estate of a decedent, for the payment of the debts, or for a division.

And, putting it on that footing, it is clear that the court can make no valid decree for the sale of slaves, which were bequeathed by the testators, with a view to distribution, unless the legatees, claiming title to them, are duly notified; and which fact must be affirmatively shown by the record. In the case before us, the facts admitted by the demurrer show, that the legatees under the will were not duly summoned, before the order for the sale was made. The court, therefore, had no jurisdiction of the parties who were to be affected by the order or decree.

The decree was consequently a nullity, and no title passed under the sale made pursuant to it. Hence, the consideration of the note had entirely failed. There was, therefore, no error in the decision on the demurrer to the two first grounds of defence. But we are of opinion that the court erred, in overruling the demurrer to the third plea or ground of defence set up in the answer. It is not pretended that there was any express warranty of soundness, or that there was any deceit practised by the plaintiff in making the sale, or any fraudulent concealment of the alleged unsoundness or want of value in the slave.

The law in relation to the sale of personal property is well understood, and has been repeatedly settled by this court. The rule is, that the purchaser buys at his own peril, caveat emptor, unless there is an express warranty, or unless the law imply a warranty from the circumstances of the case, or the nature of the commodity sold; or unless the seller be guilty of a fraudulent concealment or representation in respect to a material inducement to the sale. Story on Sales; 10 S. & M. 476. In the sale of property at an administrator’s sale, the doctrine of caveat emptor is applied with great strictness.

And in no case will a warranty of soundness be implied from the price at which the property was sold. Let the judgment be reversed, the cause remanded, a new trial awarded.