This is a suit brought by Reager, administrator, against Walton and others, on a promissory note for nine hundred and four dollars. Defendants below plead a failure of consideration. To this plea a general exception is filed, which was sustained by the Court. The ruling of the Court deciding the plea to be defective, being excepted to, and assigned as error, presents the only question in the ease for review in this Court.
The answer, for the most part, consists of legal conclusions, deductions from facts not disclosed, and vague references to facts dimly portrayed. By culling out what is distinctly alleged, the defence set up is, that the note was given for and in consideration of a tract of land sold by Reager as administrator of the estate of William Baker, and purchased at administrator’s sale by Walton; that at the sale Reager represented that Baker’s estate had a good title to the land; that by this representation Walton was induced to make the purchase; that the estate did not have and never had a good title to the land, and cannot make a title; that the title to the land is in the heirs of the estate of Warnell who have brought suit to eject the purchaser Walton, and will probably succeed; that the deed divesting the estate of Warnell, if any such ever existed, was cancelled before Baker’s vendor conveyed the land to him; (the administrator’s deed from Reager to Walton, as well as the order of the Probate Court therein recited, show that Baker was the vendee of Bratton, and that it was conveyed by deed to Bratton by Walker in 1849,) that “they, defendants below, were mistaken and deceived in like manner as plaintiff (the administrator) was, by what appeared to be facts showing a title to this land in the estate, and under such mistake became the purchaser at said pricethat said administrator honestly believed in the truth of his representation at the time it was made; that since the sale facts have come to light which show that he was mistaken, and still he refuses to receive back his deed, to cancel the note, and place the parties “in statu quo;” which they pray that the Court will require him to do.
Plaintiff in error, in support of this plea, contends that to force him to pay the note under these circumstances, will be a fraud upon his rights ; and that is the question.
It has been truly said that fraud cannot be defined. By which it is meant that a rule cannot be laid down which will fit every case. If we should approximate a definition, by saying, that fraud is what a disciplined, well-organized mind will decide to be unconscionable, in reference to the rights and duties of the *109parties, still we have but the basis for making a rule, and not the rule itself. If such mind should detect and drag forth fraud from its covert place, and give it a form and name, that is but one precedent; still, Proteus-like, fraud will every other shape assume. Hence it is held, that in ferreting it out, every case is to be determined upon its own combination of facts.
The first step, in the investigation of the case before us, is a definite understanding of the rights and duties of the parties. It is well settled that in an administrator’s sale the rule obtains, which is embraced in the phrase “ caveat emptor.” (Lynch et al. v. Baxter & Wife, 4 Tex. R. 437; Edmonson v. Hart, 9 Tex. R. 554; Williams v. McDonald, 13 Tex. R. 332.) That does not generally mean that the sale is wholly without Avarranty of title; for in the sale of personal property, where the rule may apply, there is an implied warranty of title. It means that the purchaser must exercise his own judgment upon whatever he reasonably has the means of exercising his judgment upon, pertaining to the thing sold. And in administrators’ sales of land this extends to the title. (See cases above cited ; 1 Burrill’s Law Dic. 191.)
From the plea it appears that the representation complained of, that the estate had, and could make, a good title to the land, was merely an expression of opinion or judgment, upon facts equally well known to the purchaser at the time as to the administrator. Plaintiff in error had a right to adopt that, as his own judgment, just in the same light as though he had consulted his own attorney, and adopted his opinion. This representation of the administrator did not indicate the existence of a fact which really did not exist, but only a legal conclusion upon facts that did exist, and were not peculiarly within the knowledge of the administrator. The answer, does not show that there were any facts not equally accessible to himself as they were to the administrator; and it was his duty to form his own judgment upon them. Therefore the representation, whether true or false, was not such an one as the purchaser had any right to rely upon, in making the purchase, and does not take the case out of the rule caveat emptor. (Mitchell v. Zimmerman, 4 Tex. R. 80.) The case mainly relied on to maintain the sufficiency of the plea is Crayton v. Mangor. (8 Tex. R. 285.) There is a most material fact in that case, which is not in this. The administrator’s intestate, Pettus, had sold the land before his death. If the administrator had sold the land twice, it cannot *110be doubted that the second sale, ipso facto, would be a fraud upon the second purchaser. And it would be equally so where the intestate had sold it, whether the fact was known or unknown to the administrator, if the purchaser had no knowledge of it. There is no such fact in this case; and if there be a defect in the title, it is in some remote link, not dependent upon or arising from any fault of the intestate or the administrator.
The case of Mitchell v. Zimmerman (4 Tex. R. 75,) was one where relief was granted, upon the ground of false representations to the quantity of land rented, where the party deceived had not fairly the means of detecting the gross mistake.
In the case of Able v. Chandler (12 Tex. R. 88,) the false representations relieved against, were concerning the particular qualities of a slave, which no one but an owner would reasonably have the means of knowing.
In the case of Combs v. Lane, (17th Tex. R.) the administrator represented that the land sold belonged to the estate of Elizabeth Gray, located by virtue of her headright certificate; but the truth was, that a part of her headright had been located on it, which he had subsequently raised, and located on another tract of land. Here was a distinct fact represented, which was false. And that which constituted the falsity—the raising the location and placing the certificate on another tract—was not a matter readily open to detection.
These authorities support the principles above announced, and show that this plea does not present a case of fraud or mistake, relievable in a Court of Equity. Judgment is affirmed.
Judgment affirmed.