133 Ala. 304 | Ala. | 1901
Upon every pertinent consideration and by all ruling authorities the sale of the land to J. M. House made through Culli as administrator, etc., by the probate court of Etowah county under its decree to that end, was a judicial sale. The complaint ■showed that the sale was within the letter and spirit of section 2154, and that it had been reported to the court rendering the decree of sale, as therein contemplated. Plea 2 setting up that the sale was at public auction and that no memorandum was made of it by the auctioneer, etc., was no answer to the complaint, and the demurrer to it should have been sustained.
The sale being a judicial one, the maxim of caveat emptor applies, and the purchaser cannot defend an action at law for the purchase money because of misrepresentations of the administrator while acting as the agent of the court in analdng the sale. — Fore, Admr., v. McKenzie, 58 Ala. 115. Pleas 3, 5 and 6, therefore, presented no defense to [this action.
Plea 4 was also bad. It was not necessary for , the sale to be confirmed to support an action under section 149 of the Code. The default of the purchaser rendered a confirmation of the sale legally impossible. Code, §§ 175, 177.
. On another trial, with the pleas [to -which we have averted eliminated from the case and the evidence confined to proper issue®, the plaintiff, on adducing the evidence introduced by him on the first trial, will be entitled to the affirmative charge with hypothesis.
Beversed and remanded.
