Fore v. McKenzie
58 Ala. 115
Ala.
1877
Check Treatment
BRICKELL, O. J.

The misrepresentation by a seller which will avoid a contract of sale, or furnish matter of defense to an action for the recovery of the purchase-money, must be of a material fact, operating as an inducement to the purchase; and the purchaser having a clear right to rely on it, must have been deceived by it. The plea does not aver a state of facts which brings the defense withiD the principle. There is no averment that the misrepresentation in reference to the title, induced the purchase ; or that the purchaser, being ignorant of the true state of the title, relied upon and>was deceived by it.

If the plea contained the averments, it would not present an available defense. The sale was judicial — the court of probate was the vendor, and the administrator but its officer *117or agent. To such sales tbe maxim, caveat emptor, is strictly applicable. There is no warranty of title, and tbe purchaser has no ground of complaint, if the title sold proves valueless. — Perkins v. Winter, 7 Ala. 855; Burns v. Hamilton, 33 Ala. 210. The representations of the agent or officer making the sale, as to the title, the purchaser has no right to rely on, but must inquire for himself. If a fraud is practiced on him, the sale is incomplete before confirmation, and he may make it ground of objection to confirmation. If the fraud is not discovered until after confirmation, in a proper case, a court of chancery would intervene for his relief. The sale after confirmation, clothes the heirs with rights which can not be disturbed, unless an opportunity is afforded to support them. There can be no rescission of the sale, in whole or in part, without the opportunity to them of sustaining its validity.— Lampkin v. Reese, 7 Ala. 170; Bland v. Bowie, 53 Ala. 152. Hence, the purchaser can not at law defend an action for the purchase-money, because of the fraud or misrepresentation of the administrator. To permit such a defense, would operate in a collateral proceeding, a rescission of the sale made, and confirmed by another court, having exclusive jurisdiction.

The case of Atwood v. Wright, 29 Ala. 346, has no application to the question. It was a sale of personal property, the title to which resided in the administrator, and it was complete without confirmation by the court. The demurrer was well taken, and should have been sustained.

The judgment must be reversed and the cause remanded.