6 Watts 148 | Pa. | 1837
The opinion of the Court was delivered by
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
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.