Williamson v. Walker, 24 Ga. 257

Williamson v. Walker

24 Ga. 257 | Ga. | 1858

McDonald J.,

By the Court. delivering the opinion.

The presiding Judge in the Court below seems to have put his decision on the ground solely that the representation of the executor was a warranty and nothing more.

A warranty may be made without fraud, and bind theparty for any defect in the article sold at the time of sale, whether the defect was known to him or not, and the Act of 1854 protects the executor from personal responsibility on such a warranty, made at the sale of the testator’s effects. It would be monstrous to hold, that by reason of that statute, an executor, by a wilful misrepresentation of the soundness of property sold by him as executor, which is known by him to be unsound, might impose on the community, and increase the assets of the estate. The law does not countenance this trickery and unfair dealing in the representatives of estates, and the statute affords'no protection in such *260case. The jury which tried the cause, were warranted by the evidence to find that the executor had been guilty of a fraud in making the representation in respect to the eyes of the mule, and to allow the defendants the excess for which the mule was sold to them over his actual value, by reason of the fraud,, as a credit on the notes. The assets of the estate will not be injured by that; for, if a mule of the value of -.thirty dollars only, came to the hands of the executor and by reason of his fraud, one hundred dollars instead of the thirty came to his hands,|is it right that the estate should retain the difference? There is no reason why the assets of the estate should be increased by such fraud. It would be offering a premium for fraud and wrong to persons holding the office of ■executor. We do not say that the executor would not be li,able personally in an action against him for the fraud; but at is against conscience for the estate to retain money thus obtained. The estate cannot be injured by litigation occasioned by the fraud of the executor. Expenses incurred by his misconduct cannot be allowed him as a charge against the estate. Hence the estate, in such cases, cannot be the loser if those who have the supervision of the executor’s accounts do their duty.

But it is said that if the purchaser has been injured by the fraud, his remedy is in a Court Of Equity. Courts of Chancery will grant relief, no doubt. 1 Vernon, 227. Courts of Law have concurrent jurisdiction with Courts of Equity, in matters of fraud, and there can be no reason to send a defendant to a Court of Equity in such case. The remedy is more tedious, troublesome, and expensive to all parties. In that Court reparation would be made to the injured party, and the culpable executor would be decreed to pay expenses and costs, and the estate would be left in the condition it would have been, if there had been no fraud. Such will be the precise effect at law, for the fraudulent executor’s account -cannot be allowed by the Ordinary, for his expenses, costs, .■and trouble.

*261We are not to be understood as deciding that a person who purchases at an executor’s or administrator’s sale, and who has made a bad bargain, and there has been no fraud, has a remedy. Such sales stand in] that respect on the footing of sales in market overt.

Judgment reversed.