delivered the following dissenting opinion :
This is a suit instituted by the distributee of one estate, and the administrator of another, against infants, his own wards, to recover property, slaves, which have been in his possession as administrator, and that of their father and mother undisturbed for near fourteen years; the claim now for the first time asserted.
The complaint is that there was a mistake made as to the price given for them; that this, was inadequate, and *227that they were actually worth more than was given for them. Whilst the allegations of the bill are of this vague, loose and indefinite character, the proof, if this werepossible? is worse — in fact no proof at all. To defeat a solemn bill of sale, executed in the year 1843, in the most formal manner, in the presence of two lawyers in Monticello, with a release also formally executed, a paper is used professing to be an account of sales of somebody’s cotton — a hurried statement, for what purpose made, whether used by any one or known to the purchaser, does not appear and is not established. Upon this paper, this loose and vague memorandum, a decree is given setting aside the title of defendants, and decreeing it to complainants. Such, in brief, is the history of the case, and the annals of jurisprudence may, in my opinion, be searched in vain for a case so barren of equity and justice, so destitute of all merit in conscience or right, so ill-sustained by either allegations or proof, so positively obnoxious and offensive to principles esteemed venerable, and' to feelings near and dear to the common sentiments of humanity. I assert this after the most careful investigation of the case, the most anxious and attentive examination of the authorities.
I can scarcely credit the fact that the case has been re* garded by this Court as having the slightest claim to estimation. The idea of tbe administrator of a father and a mother suing their children, setting up claim to property, the possession of which he holds by virtue of their title, using his official name and their means to support an -adversary claim, suing infants, whose means of support and defence of their rights are in his hands, and whose age, inexperience, weakness and imbecility, constitute the most irresistible claims to his protection.
This Court, in the case of Strong vs. Willis, in and indignant terms, rebuked the action of a trustee asserting an individual light in opposition to his trust. They *228say, “if assailed by a stranger, the duty of the trustee would be to defend and protect the property, and he would be compelled to do so. Does he occupy a more favorable position as far as his own rights are concerned? Can he who has undertaken by his own solemn act to defend this trust deed, and carry into effect its objects and purposes of express and specific character, be permitted himself to turn round, repudiate the trust, and defeat and destroy it?” 3 Florida, 133.
Infants, from the earliest ages, whenever sued, have been “ treated as wards of Courts of Equity, and under its special cognizance and protection, and they regard them throughout, indeed, with all the anxious care and vigilance of a parent.” 2 Story Eq., 582. Here the position is reversed, for whilst complainant and his case seem to be special favorites, they and theirs are objects of odium and distrust. In possession of personal property for near fourteen years, a period sufficient to give title to anybody else and insure protection in a court of law as well as equity, having title full and complete in all the formality of law, it gives them neither defence nor protection. Presumptions of law and of fact, hitherto available to support title, to cure irregularities and defects, are used to their injury, to impair, to defeat and'destroy their rights. They would be entitled to the statute of limitation, to trial by jury, if full grown; they do not receive it as infants. The claim of a dowress has been hitherto regarded with favor in equity, and such was the position of their mother. It is here placed Jrelow all others. In case of mistake, the error usually is corrected and compensation given ; here the whole bargain is rescinded and set aside. It is openly alleged, that the administrator will not be held accoimta. ble for this or any other action. The infants and children are more easily assailed — have less power of resistance.
In a moral point of view, in foro conscienticB, the claim *229is still more, objectionable. The purchase of this property, these slaves, after the lapse of many years, proves, through the increased value of this species of property, to have been a lucky one; hence it is an object to get them, and not any deficiency of price. If there had been a loss or a had bargain, tbe claim would never have been heard of. Hence an arrangement, the united act of father and mother, now in their graves, jointly with a venerated grand-father, whose integrity, whose kindness to all his grand-children is most distinctly asserted and admitted, all these are to he assailed, and be put in the position of official infidelity and wrong. He made a gross mistake, sold the property for too little, abused the confidence and trust reposed in him by usurping power not belonging to him ! Independent of such considerations, it can ho shown that the claim of Cole’s children is sustained by the highest principles of law and equitj^; that their title is valid and firm as the action of their parents and grandfather is above censure and reproach, and based in the highest integrity and virtue.
Alexander Murray, of Jefferson county, having died in the year 1836, administration of his estate was committed to B. McBride, as administrator. Murray’s widow intermarried with Kichard B. Cole, who obtained from the Superior Court of the county, an order for the assignment of the dower of his wife in the estate of Murray, and the Commissioners allotted to him twenty-three negroes and other real and personal estate, as her portion. They also recommended that he be allowed “ the third of nett px-oceeds of cotton made on the plantation of the estate dux’ing the years 1836, ’37, ’38 and ’39.” The Court, upon this report, ordered that “ one-third of the net proceeds of the cotton crops grown on the plantation of the said Alexander Murray during the years aforesaid, he paid the petitioner’s by the administrator’, as recommended in the report.”
*230McBride, the administrator, on the 7th of January, 1843, sold to Cole the twenty-three negroes previously assigned, as dower, in full and absolute right, in compliance with the judgment, to pay the sum due on the crops aforesaid, and another small sum. A bill of sale by McBride, transferring the complete right to the negroes, and a release by Cole in due form of the judgment and debt aforesaid, and of all claim in behalf of his wife against the estate of Murray, were executed and delivered by the parties respectively.
Cole died in the year 1848, and his widow administered on his estate. In 1852, Mrs. Cole died. Administration of both their estates was, in November, 1852, confided to Asa May. On the 25th November, 1853, he filed his bill as administrator of Cole and of Mrs. Cole, and in right of his own wife as a distributee of Murray’s estate, against the infant heirs of Cole, against McBride, the administrator of Murray, and against Alvin May and his wife, who was another child of Murray. The primary and main object of the bill undoubtedly is, (though other matters are mixed up and included in it,) as its prayer expresses, “ that the slaves allotted to said Caroline, and their increase, be decreed to be the property of the administrator of Murray, and that the same reverted to him on her death, and that the bill of sale made on the 7th day of January, 1843, to said Cole, be cancelled and set aside, and the property be distributed,” &e.
The grounds of this application are the omission to “ include the exjaenses of the plantation, embracing overseer’s wages, provisions and supplies, medical bills, taxes, farming utensils purchased, and other expenses incident to the growing of crops, for the years 1836-7-8 and 9, as well as .the expenses of the sale and transportation of the same.”
Again, “ that the reversionaiy interest of the estate in said slaves was really worth, not only more than the true *231balance then due to Mrs. Cole for her interest in the crops, but largely more than the incorrect and erroneous estimate which formed the basis of the settlement,” &c.
3dly. That McBride as administrator had no authority nor power to sell such reversionary interest.
In short, they may be stated to be mistake, inadequacy and want of authority.
Before examining these, as we propose to do in their or. der, it is proper to refer to objections at once manifest on the face of the bill, and conclusive against the right of recovery. The right of an executor or administrator to the personalty of his testator or intestate, is too firmly established to be now controverted. “ lie is the representative of the deceased, and has the same property in his goods as the principal had when living, and the same remedies to recover them.” 2 Black. Com., 511.
The Supreme Court of the United States hold the same doctrine as to an executor, (whose powers are the same as an administrator, except when a will intervenes.) “The appointment of an executor vests the whole personal estate in the person so appointed. He is, for the purpose of administering, as much the legal proprietor of the chattels as was the testator himself while alive.” Griffith vs. Frazier, 8 Cranch, 9 ; Peters’ Cond. Rep., 9.
• And such is the language of all the American Courts, without exception.
“A .distributee or legatee has no right to the property, nor is he recognized either at law ór in equity until he becomes possessed through the assent of the executor or adr ministrator.”' Farley vs. Farley, 1 McCord, 514.
In Gregory vs. Forester, the ‘Supreme Court of South Carolina say, the executor or administrator is the only organ through whom the rights of those entitled to the person 'alt-y can be ascertained, and the law requires the formality of an administrator as necessary to the security of those
*232rights. Ibid. 324 ; 1 Marshall, 10; see also Bradford vs. Felder, 2 McCord, 170; 6 J. J. Marshall, 26-572; 13 Wendell, 453. This Court has held the same language in two cases decided at the present term, McHardy’s Heirs vs. McHardy’s Executor, and Smith vs. Croom, affirming the case of Lott vs. Meacham in 4 Fla. Rep., 148.
“Exceptions will be found to the general power of'the executor or administrator to dispose of the estate of the testator or intestate, in those cases only where collusion exists between the purchaser or mortgagee and personal representative.” Will, on Ex., 611-612.
“There must be some fraud or collusion, or misconduct, between the parties.” 1 Story’s Eq. Jur., 545. ■ The bill in this case distinctly repudiates and rejects'all imputation of fraud against McBride ; indeed makes none against Cole. The aid rendered to the estate of Murray by the former by the liberal advance of his own means to protect the property from creditors, his gifts of slaves and lands to his daughter and children, all show his warm interest in the welfare of his child. Nor is there an insinuation that he preferred either of his grand-children to the other, or desired to advance one more than the other.
'Where then is the pretext for a suit on the part of this distributee ? The idea that he has the right to have a sale made by the administrator cancelled on the score of mistake or inadequacy, to have a decree for a return of the property to the administrator, is unheard of, and was never before entertained by any one. Fraud and collusion are the grounds, and the sole grounds of interference by a distributee or creditor with the action of an executor or administrator, and this is based entirely upon the nullity of the act, (for in ease of fraud there is in law no action, and the fraudulent actor is displaced) — a state and condition wholly at variance with, and opposed to the correction of a contract for mistake, or setting it aside for inadequacy— *233which admit its validity and the authority under which it was made, yet object to an irregularity in the mode of its execution.
Even if complainant succeeds in establishing his claim to the full extent, showing that there rvas mistake and no authority for the sale, does he not show that the slaves rightly belong to the administrator 'and that he alone has the right to sue for them, and that his remedy is clear and unquestionable at law, or is it come to this that a Court of Chancery is to be a sort of wet-nurse for all desperate claims, in the hope of making up deficiencies of title, of proof, and of allegations by presumptions — an expedient to get rid of the certainty, precision and security afforded to rights and property and to title, by the common law and trial by jury, and substitute in their place fiction, conjecture, presumption.
The mistake complained of is denied by the answer, and is sustained by the Court in conclusions of this kind : “ The administrator was in a condition, whatever might have been his intention, to commit errors and mistakes ” — “he disregarded his duty — there was gross mistake.” The action of the contracting parties is denominated “ folli.es, mistakes and negligencies” — “ an executor entering into hazardous bargains to jeopardize interests confided to his care.” With due respect, this does not dispose of the question at issue. A Court of Chancery has no power, no authority to determine the quality-of a contract, whether it be good or bad, profitable or injurious, to an estate. Such an inquiry is wholly unsuited to the judicial mind, and foreign from its objects and the purpose of its institution. The nearest approach of any thing of the kind is to be found in the subject of inadequacy, which, properly considered, is not embraced in it, since it rather affirms that there is no contract, than that it is beneficial or injurious to either of the parties. As the jurisdiction of the Court-*234in cases of mistake forms the turning point of the case, it is proper that it be thoroughly understood. Very fortunately it is well defined, and the difficulty is rather as to the application of the rules than their proper definition.
“ The general rule is, that an act done or contract made, under a mistake or ignorance of a material fact, is voidable and relievable in equity.” 1 Story Eq., 155, § 140. So in cases of mutual mistake going to the essence of the contract. Ibid. 157, § 142. Under these two heads we have an illustration of the various points decided; thus in case of the non-existence of the thing contracted for — • as to the extent of the thing sold — a release of the rights of the party to property of which he was ignorant that he had any title. § 142, 143, 145, 146. To these there are important 'qualifications — “ that the fact constituting the mistake, is material to the act or contract; that it is essential to.its character and an efficient cause of its concoction.” § 141. “ Nor is it sufficient in all cases that it be material, but it must be such as he could not by reasonable diligence get knowledge when he was put upon inquiry, for if by this diligence he could have obtained this knowledge, equity will not relieve him, since that would be to encourage culpable negligence.” § 146. “Nolis it every case wherever a material fact is unknown or mistaken, without any default of the parties, that a Court of Equity will interpose.” “The fact may be unknown to both parties, or it may be known to one and unknown to the other ; this will in many cases afford ground of relief, as where it operates as a surprise or fraud upon [the ignorant party. But in all such cases the ground of relief is not the mistake or ignorance of material facts alone, but the unconscientious advantage taken of the party by the concealment of them. And it is essential, not only that advantage be taken, but it must arise from some obligation on the party to make the discovery — not an obligation in *235point of morals, but of legal duty. It must fall within some definition of fraud or surprise.”- §. 148.
“ So when the means of information are open to both parties, or where each has adequate and equal means of' information, or where the fact is doubtful from its own nature.” § 149, 150.
“ The general rule upon which all these distinctions proceed is, that mistake or ignorance of facts is a proper subject of relief when it constitutes a material ingredient in the contract of the parties, and disappoints their intentions by a mutual error, or where it is inconsistent with good faith, and proceeds from a violation of the obligations which are imposed by law upon the conscience of either party. But where each party is equally innocent, and there is no concealment of facts which the other party has a right to know, and no surprise or imposition, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference.” P. 164, § 152.
“ One of the most common class of cases in which relief is sought in equity on account of a mistake of facts, is that of written agreements, either executory or executed. Sometimes, by mistake, the written agreement contains less than the parties intended; sometimes it contains more, and sometimes it simply varies from their intent by expressing something different in substance from the truth of that intent.” § 152.
"We have inserted these at greater length than may be regarded necessary, from the fact that the ground of the decision is not stated with such definiteness as to enable us to state on which of the various heads the view of the ■Court is placed.
Now upon what one of these various rules is this "party, the complainant in this case, entitled to relief? lie alleges that a sale was made by McBride, administrator of the *236estate of Murray, of certain slaves, the consideration of • which is given in a writing set forth in the record, and expressed to be ‘‘in full discharge and payment of the sum of $4,878, being one-third part of the crops of the years 1836, ’7, ’8 and ’9, allowed by a decree of the Superior Court, and in discharge of the sum of $38, and there is a full acquittance and discharge of all claims that his wife had as dower in the estate.” The mistake is alleged to consist in allowing the gross expenses instead of the products of the crops of those years. Now acccording to these authorities the enquiry would be, was this contract made in ignorance or mistake as to this fact, by one or the other of these parties ? "Was it, or not, designed to be embraced, but excluded by omission, accident or fraud? It would be difficult to maintain either of these positions. The release recites the decree of the Court, and that the sale is made to pay a debt created by it, and that decree [directs the nett and' not the gross proceeds to be paid, and the amount of the expenses, so as to attain the nett proceeds .must above all things have been known to the administrator. How then could he complain of ignorance or want of information? Not a witness shows the design to embrace these expenses, or even that there was a charge on their account.
The Court say, everybody knows the vast and variable difference between the nett and gross value of the cotton crops on a plantation, some planters purchasing their own supplies, whilst others produce them mainly at home.” Now the administrator must have known this, and whether the supplies here were purchased or were paid for out of the corn, tobacco, rice, potatoes, bacon, sugar, or other product of the plantation. If, with full knowledge that these expenses on this plantation were not so paid, but purchased abroad, in defiance of .the order of the Court and of his duty, he paid the gross expenses instead of the *237nett, to the injury of the estate, is this a ground of relief for setting aside the contract and returning the slaves to him ? "We hold not, most clearly upon the rules and principles above set forth. It would be a case of negligence which would be the loss of the administrator. But we take it there was neither omission nor mistake. The administrator did not disregard nor disobey the order of the Court; did not neglect or fail'in his duty; did not take from the estate confided to him, arbitrarily and improperly, to increase the means and add to the store of another. The fair presumption is in favor of a title, not against it; in favor of the action of a sworn officer, and not against him; in favor of the integrity of a man whose conduct is not assailed, but distinctly admitted to be beyond reproach. If these supplies were purchased, there should have been proof, and there is no presumption that they were, from the absence of such proof. “Upon proof of title, every thing which is collateral to the title will be intended without proof.” 2 Starkie, 687; Sibley vs. Maria, 2 Fla. 565. “Nor will a fiction of law be raised so as to operate to the detriment of any person, as in destruction of a lawful vested estate.” Broome’s Legal Max., 54; 3 B. and C., 317, 325.
“ The law of England as well as the English law presumes against fraud, odiosa et inhonesta non sunt in lege prmsumunda et in faeio guod in se habet et bonum, et malum, magis de bono, gua/m de malo, prces'umundum est.” 2 Starkie, 686.
Nor is it necessary to rest upon presumption in support of the action of the administrator, even if the conclusion is attained that the expenses were due. Upon the very facts presented and in the record, there is sufficient to sustain him. There is a release by Cole of all claims in right of his wife, showing that other matters were taken into the consideration of this sale and bargain. Now the sums on *238account of the crops were received in 1836, N, ’8 and ’9, so that the interest upon them to the payment in January, 1843, would amount to nearly $1800, making a fund of .$5400, most ample and sufficient for all the expenses of the plantation for the four years, Mrs. Cole paying $1800, her third part, the estate paying the remainder and their two thirds.
The amount of the mistake is most material and important in another respect, to ascertain whether the contract should be only reformed to the extent of the error, or set aside entirely. In the case of Ladd vs. Chaires and Tompkins, this Court decided that “ where there were no indicia of fraud, and the misdescription goes only to part of the estate, and is of such a nature as not to prejudice the full enjoyment of the residue or the objects the purchaser had especially in making the purchase, then the Court will enforce the contract with compensation.” 5 Fla., 402.
If Mrs. Cole’s portion of the expenses of the plantation amount to $1800, rejecting all claims for interest, all value of the release and settlement of further claims, why not direct a payment of this sum rather than rescind the contract? Upon what principle can so severe and arbitrary a rule be justified ? It is well said that relief in cases of this kind is not matter of mere discretion — of arbitrary, capricious discretion — but sound and reasonable discretion.” 2 Story’s Eq., 5.
The same learned author says that “ in many cases’re■cision would not be an appropriate, adequate or equitable relief. The accident or mistake may be of a nature which does not go to the very foundation and merits of the .agreement, but may only require that some amendment, addition, qualification or variation should take place to ■make it at once-just and reasonable to be enforced.” 2 Story’s Eq., 6.
Admitting there was a mistake, we have seen it must be *239a material one to the act or contract, essential to its character, and an efficient cause of its concoction. Now can-this be said of this item of expense- — -a matter admitted by the Court to be doubtful and uncertain, and certainly not treated by the parties as the efficient and leading objects of the bargain — as its very foundation % If material, it entered to some extent into the consideration, and formed a part of it, and this was capable of designation. Now not a word is said in the opinion of the Court as to this, nor is there a particle of testimony to show one single item of expense on the plantation — not a single cent paid for supplies,, not even a claim set up by any body for any expense — not a. witness examined to thispoint — neither the merchant, overseer, planter nor physician ; — and yet this imaginary, uni-ascertained, undefined expense is declared so material as-to affect this contract, and be the cause of its recision! Whilst the rules and principles of equity have been so guarded as to the character of the mistake, they are more definite and decided as to the proof requisite and necessary to establish it. This very Couit itself has gone to the very extreme of strictness in this respect in the case of Simpson and Barnard, Adams & Co., a case asserting illegality and fraud in the consideration of a sealed instrument. The Court held “ the introduction of the subscribing witnesses indispensable to open the door to the introduction of circumstantial evidence.” They held, too, that “ in a matter of proof, a Court must not conjecture." 5 Fla., 540. The decision seems to be the very opposite, in all its aspects, to the case now decided. Without maintaining this rigor, it will be found that the English and American Courts, on this subject of mistake, hold rules and principles alike accordant with right and sense and propriety. “ In all such' cases, (alluding to mistakes in written agreements,) if the mistake is clearly made out by proofs entirely satisfactory,. equity will reform the contract so as to malee it conforma*240ble to the precise intent of the parties. But if the proofs are doubtful and unsatisfactory, and the mistahe not entirely made plain, equity will withhold relief upon the ground that the written paper ought to be treated as a full and correct exjjression of the intent, until the contrary is established beyond reasonable controversy.” 1 Story’s Eq., § 152. “And this remark,” says the learned author, “ naturally conducts us back again to the qualification of the doctrine which is insisted upon by courts of equity. Relief will be granted in cases of written instruments only where there is a plain mistahe clearly made out by satisfactory proofs. The qualification is most material, since it cannot fail to operate as a weighty caution upon all judges, and it forbids relief whenever the evidence is loose, equivocal, contradictory, or in its texture open to doubt or opposing presumptions.” § 157.
“There is less difficulty in reforming these, where the mistake is mainly or wholly made out by other preliminary instruments or memorandums o.f the agreement; — thus marriage settlements are often reformed and varied so as to conform to the previous articles, and conveyances of real estate are in like manner controllable by the terms of the prior written contract, and memorandums of a less formal character are admissible for the same purpose. But in all such cases it must be plainly made out that the parties-meant, in their final arrangements, merely to carry into effect the arrangements designated in the prior contract or articles. Eor as the parties are at liberty to vary the original agreement, if the circumstances of the case lead to the supposition that a new intent has supervened, there can be no just claim for the relief upon the ground of mistake. The very circumstance that the final instrument of conveyance or settlement differs from the preliminary contract, affords of itself some presumption of an intentional change of purpose or agreement, unless there is some reci*241tal of it or some other attendant circumstance which demonstrates that it was merely in pursuance of the original contract. It is upon a similar ground that courts of equity as well as courts of law act in holding that where there is a written contract, all antecedent propositions, negotiations and parol interlocutions on the same subject, are to be deemed merged in such contract.” P. 137, § 160.
The Supreme Court of Mississippi say the proof should be clear beyond a doubt. 2 How., 701.
In the case of Lyman vs. The United Insurance Co., Chancellor Kent treats the subject in his usual clear, lucid and conclusive style, and, what is more, his remarks are pertinent to the present case. “The difficulty in this case,” says he, “ arises from the want of the requisite evidence of any agreement of the parties different fi-om that contained in the policy. The cases which treat of this head of equity, jurisdiction, require the mistake .to be made out in the most clear and decided manner, and to the entire satisfaction of the Court. The only circumstance on which the plaintiffs place any reliance to show that the Company had agreed to the proposals, etc., is the memorandum at the foot of the plaintiff’s proposal. But it appears to me that this note is far too vague and uncertain to justify any correction of the policy. It was not subscribed by the Company nor by their 'authority. It appears only to be heads of conversation and inquiry on mere fugitive points, which were lost and merged in the execution of the formal instrument. It was the duty of the plaintiff to have resorted to that instrument so soon as it was drawn, to see whether the parties understood each other. No one says that the notes at‘the foot of the proposals were the terms, nor for what purpose they were made. All this is left to conjecture and inference. To alter a clear written contract of the parties, without any parol proof to warrant the new agreement, and when the charge of mis*242take is denied in the answer and denied by a witness present, and to do this upon no other foundation than such an imperfect memorandum, obscuris vera involvens, would be destructive to the certainty and safety of written contracts. There is no case that goes to such lengths ; no amendment was ever made without absolute conviction of the truth and precision of the real agreement." 2 John. Chy., 633 and 634.
Now applying these rules to the case under consideration, and there is a difficulty wholly insurmountable. There is no proof supporting or creating the idea of mistake, much less establishing the extent of it. The complainant seems to have contented himself with attempting to show the gross receipts of the sales of cotton, as if every thing else were consequent upon this, as if presumption would make up whatever else was wanting; not a witness examined to prove a single allegation; no ignorance, surprise, or want of knowledge, mistake or error on the part of McBride, no fraud, imposition, improper conduct or advantage on the part of Cole, no deficiency in any of the agreements between the parties. So far from the proof amounting to absolute conviction and precision, so far from its being satisfactory, the very opposite of all this prevails as to the entire case, and every part of it. It is not a case of doubt or uncertainty ; it is a case in which there is nothing to hang a loop aj>on, and utterly destitute of all color of proof.
We have said there was an attempt to show the gross sales of cotton. The Court give to the paper, copied into the recoi’d, containing an account of the sales of some~ body's cotton, the weight of evidence. It is no little surprising that it should have been proposed, much less treated as evidence. It has no date, no signature, is not proved to be the hand-writing of any one, is not connected with any proceeding, judicial or other, to give it authenticity— *243was not even read as evidence in the Court below. It was exhibited to the .Court below — the appropriate expression to characterize the only legal use of such a thing. It is assumed to be McBride’s hand-writing. Now McBride is a party, and his deposition or statement of the entire transaction, under oath, would not be evidence except against himself. If the paper was made before the bill of sale and release, these supercede it, and give the true history of the transaction. They are the deliberate act of both parties, whilst this of McBride’s is, by its own ac* knowledgment, a hurried statement in the absence of papers, and entitled to» no credence. If made afterwards, McBride could neither do nor say anything to invalidate his own title. The Court say, “if good to charge Murray’s estate, it is to discharge it.” Now there is nothing to support-any such allegation. The fact is the paper cannot be regarded as evidence except by an overthrow of the rules and laws of evidence.
Before noticing the second point, some attention is due to objections made to the report of the Commissioners and the judgment of the Court, which are declared to be a nullity — the former as not having been confirmed, and further, the widow, it is said, waé only entitled to her portion of the personalty of which her husband “ died possessed.’^ Now a very conclusive answer to all this is, that none of these were contested or put in issue by the pleadings. So far from it, their validity is expressly asserted by the bill. What else can we infer from the allegation, that “ in the execution of the decree confirming the report of the Commissioners, the administrator made a mistake in the adjustment of the amount of said pwwds,” ¿;c. ?
In ot. Andrews "¡..'ay L’icu í,-11. H 'V -(■ occasions, the doctrine, íamilíar to every lawyer, that “no facts are properly in issue unless charged in the bill, and *244of course no proof can generally be offered of facts not in tbe bill, nor can relief be granted in matters not charged, although they may be apparent from other parts of the pleadings and evidence.” They would not admit the case made out by the answer, even to vary the case. 5 Fla. 565.
Independent of this, a judgment may not be reviewed in this Court except by appeal or writ of error, and whilst so unreversed it concludes the subject on which it is rendered, and pronounces the law of the case. It puts an end to all inquiries into the fact by deciding it. 3 Peters, 204-5; 10 Peters’ S. C. Rep., 479; 2 How. S. C. Rep., 343 ; Florida, Stephens vs. Sessions.
But it is wholly indifferent as to this point, as the declaration of the nullity of these affects not in the slightest degree the title of defendants. This rests upon their bill of sale, and their possession of near fourteen years, undisturbed and unquestioned. On the contrary, it leaves the case of complainants without a shadow of support, for it is the deviation from the order of the Court in paying the gross proceeds instead of the nett that forms their entire case, and this is made out alone by the judgment and order of the commissioners.
So erroneous do I regard the views on the point of the interest of the widow, that I cannot consent to allow them to pass unquestioned. The statute does not require the report of the commissioners to be confirmed. It directs the sheriff to “ allot and set off to the widow her portion oí the personal estate, which part shall he and enure to such widow, her heirs,” &c. Duval, 87. This of itself constitutes her title. Nor is she confined to the personalty of which her husband “ died possessed.” This is very far from being the law, and the quotation is but a fragment of it.— The statute enacts that on a petition being filed, the Court shall issue their writ to the sheriff, commanding him to summon five discreet free holders as commissioners,” *245who, after allotting one third of the land, “ shall at the same time allot and set off to such widow her portion of the personal estate of which her husband died possessed, and to whieh by this law she shall be entitled,” sec. 3.— The second section of the same- law referred to provides that “ the widow shall be entitled to a share in the personal estate; if there be more than one child, (the case of Mrs. Cole,) to one third part in fee simple, except slaves, in which she shall have a life estate, and. such claim shall have a preference over all others.”, Duval, 86.
She was then entitled to the proceeds of the crops, and to whatever in addition was made by the estate up to the time of the division or allotment.
Other positions, subject to the objections already taken of the want of allegation in the bill, of issue made in the Court below, and of testimony to support them, require notice. Thus . we are told in the opinion that “ Cole was a trustee of Mu'rray’s estate, and the minors of Murray should not suffer the loss of their rights by the follies, mistakes and negligencies of their trustees, Cole and McBride, &c. Cole was in privity with the estate for which he was dealing.”
The object of all this undoubtedly is, to deprive Cole .and his representatives of the rights, which, by the rules and principles of equity, are extended to a bona fide purchaser, to affect them with notice of every thing connected with the estate, so that if there be mistake, and the act not perfectly legal and exactly formal, to make.it void, to incapacitate them from purchasing, for no principle is better settled than that a trustee cannot be both vendor and vendee — buyer and seller; further,-even this, that a title pro.cured hy them shall not have the protection o.f the statute of limitation. Beyond this, even that the dowress when treating with the estate of her deceased husband, shall occupy the position of, and be subject to the rules prevailing *246in cases of fraudulent purchasers in collusion with an executor. Now the objection and answer to this is, that it is not only not supported by law, precedent or authority, by equitable rule or principle, but directly opposed to them all. In point of fact, Cole was not trustee. Where is the evidence of this % Who made him or the dowress trustee for the children of Murray ? What charge had they of the property — what power over it ? McBride was the owner and holder, and if any body was trustee he was, but his trust was not jointly with Cole. So far from the owner of the dower interest being regarded as an object of odium and ranked with a fraudulent purchaser, and prevented from buying from the estate, the very reverse exists. Thus by statute, “ her claim has preference over all others.” — • In equity she is highly favored ; her right is not only a legal righ t, but it is a moral right. She is therefore in the core of the law, and a, favorite of the law. If she has recovered her dower against the heir, who is an infant, and there is a term to protect the inheritance, which by the neglect of the guardian is not pleaded, the term will not be allowed in equity to be set up against her. 1 Story’s Equity, 584.
The second allegation of the bill is that of inadequacy. This subject has been so fully treated by this Court in full accordance with the English and American decisions, and its application is so forcible to this very case, that little more is requisite than to repeat what is thus declared. — . In Barrow vs. Bailey it was held “ that to justify relief of this character, there must be unconscionableness or inadequacy, so as to demonstrate some gross imposition, or some undue influence, such as would shock the conscience, and amount in itself to conclusive evidence of fraud.” 5 Fla. 27; 1 Story’s Equity, § 244, 246.
In the more recent case of White vs. Walker, the Court quote from the very able opinion in the much contested *247case of Farnham vs. Brooks, 9 Pickering, 231, argued by the late Daniel Webster and William Wirt on opposite sides, in which the enlightened Court say, “some principles may be extracted from the decisions which stand not contradicted by others, and therefore may be adopted as rules. One is, that mere inadequacy in price, if the bargain is fair, is no ground for relief. Another, that if the value of the thing sold depends upon a contingency, although great advantage may bo gained,'yet the contract shall be sustained.” 5 Fla., 487.
This last principle is fatal to this position of plaintiff, even if inadequacy were made out. But let us examine the facts, though very few and imperfect in the record — ■ for proof there is none to satisfy the mind as to the value of the slaves, nor Mrs. Cole’s life estate, nor the interest after her death.
The estimate of the Commissioners who assigned Mrs. Cole’s dower is in the record, and they give the value of all the slaves ,of the estate of Murray in 1840. Those sold to Cole are estimated at $6140 as their full value. Add to this 6 per cent, interest, the increase according to the view of the Court, and we have $7225, the full value of the negroes in January, 1843, the time of sale. Now it was not the full right which McBride was selling, but only the interest after Mrs. Cole’s death, and this value is the matter of enquiry. She was, judging from a deed of trust made to her before her marriage, probably thirty years of age in 1843, and her chances of life might reasonably have been estimated at thirty years more, but say twenty, so as to allow for mistakes. What would then be the present worth of negroes in the market, burthened with the use and enjoyment of them by another for twenty years, taking all risks of death, injury, &c. ? Is it one-third, one-half, or two-thirds of their full value ? To state it differently, what is the worth of a life-estate in negroes, with a prospect of em *248joyment for twenty years? — for this should be deducted from the full value to get the worth of the reversion. Would one having the future interest, or a third party having no interest, give one-third, one-half, or two-thirds o'f the value, in the hope of realizing at some future period ?
The administrator sold this uncertain interest, dependent upon Mrs. Cole’s death, with a fair prospect of her living twenty years, for upwards of two-thirds of their full estimated value, throwing out of view the claim for interest for monies received by the administrator in 1836, ’7, ’8 and ’9, the value of the release of further claim on the estate, giving $4926 for negroes estimated at $7225. And this is adjudged inadequacy — a bargain to shock the moral sense, as conclusive evidence of fraud, as demonstrating some gross imposition or undue influence.
A rule of the English law, as to the purchase of reversions, has been apjflied to the case — a subject more largely treated by Judge Story. Having stated the cases of constructive fraud in which the contract is a fraud upon the rights, interests, duties, etc., of third persons, he says: “it is upon this ground that relief has been constantly granted in what are called catching bargains with heirs, reversioners and expectants in the life of their parents, or other ancestors. Many, and indeed most of the cases, have been compounded of every species of fraud, etc. There is always fraud presumed or inferred from, the circumstances or conditions of the parties contracting, from weakness on one side; usury on the other, or extortion or advantage taken of that weakness. In most of these cases have concurred deceit and illusion on other persons not privy to the fraudulent agreement. The father, ancestor or relation from whom was the expectation of the estate, has been kept in the dark. The heir or expectant has been kept from disclosing his circumstances, and resorting to them for advice, which might have tended to his relief and also *249reformation. This misleads the ancestor, who has been seduced to leave his estate, not to his heir or family, but to a set of artful persons who have divided the spoil beforehand.” 1 Story’s Eq. 357, § 334.
If the entire books had been searched for authority, none could have been found more inapplicable to the case under consideration. If Murray’s children, the distributees of this property, the reversioners or expectants, after the death of their mother, had been seduced by her or her husband Cole — if advantage had been taken of their necessities, weakness or ignorance, through usury, extortion or other means, to. purchase their interest at an unconscionable price, then the authorities cited by the Court might have application. But can this sale by McBride, a full grown man, the officer confided by law with the ownership of the property and its disposition, be termed a catching bargain ? Can weakness, youth, imprudence, giddiness, necessities and pecuniary embarrassment, ignorance and incapacity be imputed to him, so as to cause a contract made by him' to be set aside, as if he were a minor and infant ? Can calculating rapacity, artfulness, usury and extortion be alleged as to Cole ? It may be a question whether the rule has any application in this country, being rather based upon the great desire of the English Courts to protect the interests of their peculiar classes than upon any principles of right or justice. Apply it with all its force to the present case, that the purchaser of a reversion must prove that a full price was given, and.the proof in this case is ample, full and complete.
Another conclusion of the Court is, that the sale was not public, but made privately. No such fact is alleged in the bill put in issue by the pleadings, nor made to appear by the proof. The bill alleges want of authority, of power [in the administrator to sell — alleges mistake and inadequacy as the special grounds. This evidently is em*250braced, by none of these, indeed is excluded by them.— That it should be set up by 'the Court here for the first time, not having been made a subject of contestation in the Court below — should be held of such moment as to conclude the rights of the parties, is incomprehensible— nay more, to raise such an issue — to come to such a conclusion with the facts of this case before them !
This suit is by the complainant as administrator of Mr. and Mrs. Cole, charged by law and his oath with the rights and interests of their children in this very property, and trusted with the muniments of their title to all their property. The proof is entirely on his side, not a particle on theirs. Not even the title deed, the bill of sale made by their grand-father to their father, under which the property has been held by their father, by their mother, and by May himself as their administrator, giving the history of the bargain, the account of the transaction — even this is not filed, and their rights are tried in its absence, and this most unfavorable presumption to their prejudice and injury indulged with full knowledge of its existence, but in ignorance of its contents. The release filed by the complainant to show the mistake, shows that there was a bill of sale. “ Be it remembered, that I, Richard B. Cole, have this day received from Burwell McBride, administrator of the estate of Alexander Murray, a MU of sale of the right, title and reversion in the following negroes,” &c. Now why file the release and suppress and withhold this instrument ? Whilst this important document is thus kept out of view, whilst the account of the administrator is also kept out of the way, a fugitive vagrant scrap of paper is hunted up to supply their place ! It is thus the rights of these infants are disposed of — in this manner their title is tried and presumed to be bad!
The finding that the sale was private, is based upon a statement that it was not contested in argument. Such *251view is utterly opposed to the views of this Court in Simpson vs. Barnard, Adams & Co., and to other authorities, showing conclusively that no one has a right to admit away the rights of infants. “ Where relief is sought against infants, the facts upon which it is to' be founded must be proved; no decree can be made upon admissions in the answer of a guardian ad Utem.” 1 Sanf. Chy. 103, 129.
“ The answer in such case is regarded as pleading merely, and cannot be used as evidence for or against the infant, against whom the complainant must prove his case.” Thayer vs. Lane, Walk. Chy. 200.
Opposed, too, to views of the jurisdiction of this Court, taken again and again from its first organization. (i The jurisdiction of this Court is appellate merely, to re-examine and re-judge, to correct erroneous decisions already made. It is not a jurisdiction’to determine, in the first instance, cases or questions which have not been submitted to the decision of the Court below.” Archer vs. Duval, 1 Fla., 225.
The Supreme Court of the U. S. express themselves more pointedly to the same effect. “ This objection was not made in the Court below at the hearing, or in the argument, so that no opportunity was afforded to the petitioner to produce any evidence on the subject, or his counsel to answer the objection. Under such circumstances, it would be dealing a measure of justice incompatible with every principle of equity to visit upon him an objection which he was not bound to meet in the Court below, which he could not meet there, and which the Court were compelled to refuse him the means of removing by evidence.” Mitchell vs. U. S., 9 Peters, 31.
We come now to the third position — the power of the administrator to sell a reversionary interest. It is admitted by the Court, that “ according to the English authorities, a reversion is assets in the hands of the administra*252tor, coupled with an interest in himself, and like all other assets of the estate, it was in his power to dispose of it at private sale.” No limitation has been shown to the power and authority of this officer to dispose of the personalty, and if he can dispose of a full interest in slaves, which has been conceded, where is the objection to his selling a minor and inferior interest ? There is no better chance of fraud (which seems to be the main argument,) in the one case than in.the other. If an interest in remainder or reversion, contingent or conditional, be required for payment of debts, why may it not be sold now at its present value, in its present state ? Why wait twenty years or more, taking all the risks of death or other accident, to sell the same property at a future time, to pay the same debts ? Besides, where is the direction to the administrator to suspend his functions and cease from paying debts ? Such impediments to the sale of poersonal property are injurious to the public, to the present and future owners and to creditors. . They are alike opposed to the express obligations and duty of the administrator, who is enjoined by law to sell property, both real and personal, until the debts and legacies are all paid. The authorities and rules on the subject in the English Courts and in text books, are uniform, and, without exception, maintain both the right and power. It is proper to bear in mind that the same rules apply to executors as to administrators, except where a will may direct the action of the former. Williams on Ex., 601.
“All goods and chattels, real and personal, go to the executor.” “ Chattels in action as well in possession, go to him.” 2 Com. Dig., 281.
“ There are two sorts of choses in action; one, which may be called a present chose in action, and another, which is called a future or reversionary chose in action. Among future choses in action, reversionary and contingent, may be enumerated a reversionary interest in money or stock, *253expectant on a precedent life estate limited of it.” Ram. on Assets, 176. “Executors and administrators are entitled. to interest by condition, remainder or increase, by assignment, limitation and election.” Toller on Ex., 164; Williams, 440.
“Reversion expectant upon an estate for life, or term of years, shall be assets.” 1 Com. Dig., 579.
“A remainder in a term of years, though it never vested in the testator’s possession, and though it continue in remainder, shall go to the executor and be assets.” Toller, 166.
If such interest be assets, the right of disposition cannot be disputed. “ It is a general rule of law and equity that an administrator has an absolute power of disposition over the whole personal effects of his testator or intestate.” 2 Will. 609.
“ It is a general rule of the Court of Equity, that where personal property is bequeathed for life with remainder over, and not specifically, it is to be converted into government stock, and the tenant for life is entitled on that prin ciple.” 7 Vesey, 137.
“ Where there is a general bequest of a residue for life, with remainder over, the practice now is to have the property sold and converted into money, and the proceeds safely invested, and the interest thereof paid to the legatee for life.” 2 Kent, 354; 8 Paige, 295.
“ The rule as to personal estate is, that what is not specifically given, and consists of an interest wearing out, or an interest at present saleable, but in point of enjoyment future, the whole is converted into money, in a question between tenant for life and remainderman.” . 9 Vesey, 552.
Whilst the right to sell the reversion is thus manifest, placed beyond the possibility of a question, and directly admitted by the Court, the sale made in this case is adjudged bad because of the illegality of a sale made prfi *254vately and not in public, and because of inadequacy and gross mistake. This has already been adverted to as to the matter of fact, and I propose now to consider it in connection with the law of the State, with statutory provisions. Is there anything altering the common law on this subject so as to make a private sale necessary, or prohibiting such a one on the part of the administrator ? 'It is first provided that “slaves shall be deemed, held and taken as personal property, for every purpose whatever.” This, by statute as early as 1823, sections nineteen and twenty of the law concerning wills and the duties of executors, passed in 1828, apply to the subject. These provide that executors and administrators, whether it be necessary for payment of debts or not, shall, so soon as convenient ,-after they shall be qualified, sell at public sale all such goods of their testator or intestate, specific legacies excepted, as are liable to perish, be consumed, or rendered worse by keeping, giving such credit as . they shall judge best and the circumstances of the estate will admit, taking bonds or promissory notes, with good security of the purchasers, and shall account for such goods according to the sales,” etc. § 19.
“That if such perishable goods be not sufficient for the payment of debts and expenses, the executor and administrator shall proceed to sell the other personal estate, disposing of the slaves last, until the debts and legacies be all paid, having regard to the specific legacies, provided that if any testator direct that his estate shall not be appraised or sold, the same shall be preserved in specie, and .an [inventory only be made thereof and deposited, unless a sale be necessary for payment of debts.” § 20 ; Duval, 113; Thompson, 202.
There is in the first of these sections a direction to sell perishable goods at public sale, but it is not continued in the second clause. The term's are, that they “ shall pro*255ceed to sell,” omitting the words of the first section, “ at public sale.” Now if a provision of this kind was designed to be so express and peremptory as to invalidate a sale, it is inconceivable how such an omission was made or took place. To give this force to a clause Lof the kind would be to violate the plainest rules of reason and common sense, and subvert the plainest dictates of propriety. To hold that the omission of a direction is not only tantamount to a positive direction, but beyond it, of so express and peremptory a nature, as to repeal an absolute law on the subject, would be going to ah extreme; the more so when by decision of the Court at its present term, affirming the rules of construction of the English and American Courts, it is held that “ to repeal a statute or the common law, there must be negative terms or words so clearly repugnant as necessarily to imply a negative, repeal not being favored by implication, and it is not to be presumed that the Legislature intended an innovation beyond what the casé absolutely frequired.” 1 Black., 90; Dwarris on Statutes, 695; Mitchell vs. Stewart.
Admitting that the terms at public sale” are continued into the second section by implication, so as to give a direction to the executor or administrator thus to sell personalty, what is to be the effect of the non-observance of such order ? There is a manifest distinction, familiar to-the lawyer as to the judge, in construing statutes between-acts merely directory, that ought properly to be attended to by the officer, and yet do not invalidate thi’ough non-observance, and such as are vital and indispensable to the validity of the act to be performed. Negative words, affirmative words that are absolute, explicit and peremptory, and show that no discretion was intended to be given, and. such as are of the essence, seem to be of the latter character; others are not. 8 B. & C., 29; 2 Dwarris on Stat.,. 714, ’15 and ’16 ; Frazier vs. Willy, 2 Florida, 118; Williarns *256vs. Mosely, 2 Florida, 334; Smith’s Com. Cons., 782, 795.
A case decided by the Court of Appeals of Kentucky, will illustrate this doctrine. Objection was made that a sheriff’s sale was had without advertising- at the meetinghouse door and most public places within the county, as required by law. The Court say the “law is silent with respect to the consequence of a failure on the part of the sheriff to comply with its requisitions, nor is there any statutory provisions on this subject. It is obvious that in the several acts prescribing the duties of sheriffs with relation to executions, there are many provisions which are merely directory to the sheriff, and a failure to comply with which, thought it might render him liable to the extent of the injury produced by such failure, would not vitiate the sale under execution. Thus, for example, the law requires that the sheriff shall endorse on the execution the time when it came to his hands, yet no one will contend that a sale made under an execution, where the sheriff fails to make such endorsement, would be void on that account. Other examples of a similar nature might be given, but they will readily occur to those who will take the trouble to reflect on the subject.” They held the provisions directory, and overruled the objection to the sale. 2 Bibb, 402.
In a more recent case, the same Court held that an irregularity or defect in the advertisement, nor the inadequacy of the price, nor place of sale, nor paucity of bidders, did not invalidate the sale. Kilby vs. Haggin, 3 J. J. M., 212.
And these decisions are believed to be in-exact accord with those of all the American Courts. Their correctness will be perceived by a careful consideration of the two sections above quoted. They provide, the 19th section, that the perishable goods be sold at public sale, whether necessary to pay debts or not, giving credit and taking bonds *257and notes with, security. The 20th, if there are not sufficient to pay debts and expenses, then the other personal estate to be sold, and slaves last. Now if the strict rule is to be applied to the mode of sale which is presumed to be given in the latter section, very obviously it embraces the other express provisions — that the perishable goods be sold first — that they be sold on credit, for bonds with security —that the personalty be sold after these, and only for payment of debts, and slaves after all the rest is sold. Now under this new rule, if any of the directions here given is not observed, if perishable property is sold after the other, or if security is not taken — if there are no debts, or slaves not sold last, or any of the property is sold for cash, the sale is void. Nor are these the only directions important to be observed. The whole statute is full of directious, not less important, imperative and peremptory to these officers. Thus they are to take oath, to give bond with security, to have an inventory, to file a complete account of property sold, &c., so that if sales are declared void for one failure they may be for all; and if the objection is available to the estate, it may be for a purchaser who may assert his right in reply to the note or by suit. Strictly carried out, no rule would be more disastrous — injurious alike to the estates of decedents and to all persons deriving title from them ; for it may be safe to affirm, that scarcely a purchase made at an administrator’s sale within twenty years past would stand the application of such a test. The fact is, that such objections have been made again and again in the Courts and overruled. But there is not the slightest pretext for it. The two clauses of our statute are taken, word for word, from a statute of the State of Kentucky — . (see Littell & Swigert’s Statutes of Kentucky, p. 30) — under which decisions have been had to the following effect: In Stamps vs. Beatty, the objection was that it was not shown that a sale of a negro belonging to the estate was *258necessary to pay debts. The Court say, “ power being given to the executor to sell for the payment of debts, and in defect of other assets, it is not the duty of the purchaser to inquire into the whole administration to see whether there is a defect of other assets. He has aright to presume that the executor had rightful authority to sell. To impose such trouble, risk and inconvenience on a purchaser, would operate to the total annihilation of the power of the executor to sell in any event, and operate to the prostration of the rights of the heir in any sale that might take place.” They held the sale valid. Hardin, 341.
In the more recent case of Ward vs. Lewis : “ The only question in this case is, whether a sale, by an administrator, of a slave of the intestate, in his possession as administrator, for a debt due by himself to the purchaser, when the sale was not necessary for payment of the debts of the intestate, be void or not. The legal title vested in the administrator for payment of the debts of the intestate. A sale of any of them was a breach of his official duty, unless necessary for payment of debts. But the- purchaser cannot be presumed to know the condition of the estate of the intestate, and therefore if he buy a slave bona fide of the administrator, proof that the sale was not necessary for payment of debts will not affect his right. Such a contract is not void unless the purchaser be guilty of a fraud on the estate of the intestate in making the purchase.” 3 J. J. M., 505.
In another case, the same Court say, the situation of an administrator is not like that of a trustee empowered to sell. He may no doubt sell when necessary for payment of debts, but without selling, in some cases, he may acquire the exclusive right to a chattel belonging to the estate. Where, without having any money of the intestate, he pays debts with his own money, he is entitled to the absolute property in a specific chattel of equal value to the debts paid, *259by electing to take the chattel as a compensation.” Again so that the value of the property is, obtained, a sale of slaves cannot be complained of by distributees. Haddix’s heirs vs. Haddix’s ad’r, 5 Litt., 201; 1 Munroe, 251; Toller Ex. 238; 6 J. J. M., 387.
In Henning vs. Conner, they held “ an admistrator liable to distributees for the value of a negro and his hire, sold without necessity for the payment of debts? 2 Bibb, 188.
What makes these decisions more cogent still, is the fact that slaves are there declared to be realty, and this was insisted on as the ground of support to the objections taken.
The decisions of the Courts of the States from which the provisions of our statute were borrowed, like those of the English Courts on English statutes continued in our system, would seem to be conclusive. Still more so when they accord with the views of the Courts in England, with those of other American 'Courts, and of writers on law on the same subject.
In Farr vs. Newman, discussed and considered with great care, one of the Judges said: “I do not mean to controvert that an executor has necessarily incident to his office, a disposing power over the personal estate. If it were otherwise, no man would deal with an executor, for the buyer cannot be supposed to have a knowledge of the state of the testator’s property and debts, and therefore the bare act of sale is a sufficient indemnity to the purchaser, if there be no collusion.” 4 T. R., 644,
“It is of great consequence,” said a very able Chancellor, “ that no rule [shall be laid down which may impede executors in their administration, or render the disposition of their testator’s effects unsafe or uncertain to the purchaser ; his title is complete and perfect by sale and delivery. What becomes of the price is no concern of the purchaser,” léYesey, 361.
*260The late Chancellor Kent, in a very elaborate and masterly opinion, after reviewing all the cases bearing on the subject of sales by executors, said, “they all agree in this, that the purchaser is safe if he is no party to" any fraud by the executor, and has no knowledge or proof that the executor intended to misapply the proceeds, or was in fact by the very transaction misapplying them to his own private debt.” Field vs. Sheffelin, 7 John. Chy., 161.
Judge Story says : “ At common law, the executor or administrator is treated for many purposes as the owner of the assets, and has a power to alien and dispose'of them. There is no such thing known as the assets in the hands of the executor being debtor; or creditor, having a lien upon them; but the person of the executor in respect to the assets .is treated as debtor. The courts of equity do not supersede the principles of law upon the same subject, and therefore a sale bona fide, made for a valuable consideration, even with notice of other assets, will be held valid, so that they cannot be followed uby creditors or others into the hands of a purchaser. In this respect there is a manifest difference between cases of ordinary trusts, where notice takes away the protection of a bona fide purchase from the party, and this peculiar sort of a trust mixed up in some degree with general ownership. To effect a sale or other transactions of an executor attempting to bind the assets so as to let in the claims of creditors or others who are principally interested, there must be some fraud or collusion or misconduct between the parties.” 1 Story’s Eq., 545. Again: “as the personal estate is liable for the payment of the debts generally, the purchaser of the whole or any part of it is not, upon the principle already stated, bound to see that the purchase money is applied by the executor to the discharge of the debts. Otherwise it would be indispensable for a person desiring to purchase, to come into a Court of Equity to have an account taken *261of tlie assets of the debts due him and whether it was necessary to sell, which would be a most serious inconvenience and greatly retard the due settlement of estates.” 2 Story’s Eq., 382 — ’5.
Even in the case of trusts, admitting McBride to be a trustee of the estate of Murray, for the payment of debts generally, the same doctrine applies ; the purchaser is not bound to see to the application of the purchase money. Will, on Per. Property, 233; 5 Ired. Eq., 357; 13 S. & B., 262.
That it was not an oversight in the Legislature, but that they acted with a full knowledge both of the common law and the Kentucky decisions, is evident from tthe fact that by the sixty-first section of the same law, they make the administrator apply to tthe County Court for leave to sell the personalty in case of necessity to pay debts, and require a satisfactory showing to justify the order. Duval, p. 183.
Different States of the Union have provisions altering the law in this respect, but it will be found to have been done by language express, decided and peremptory. Thus in Georgia: “ no administrator shall be allowed to sell any slave, where the other personal estate, with the hire of such slave for twelve months, shall be sufficient to discharge the debts, and the Judge of Ordinary shall direct the sale and notice given to each distributee.” Prince Dig. 165.
In North Carolina, sales are made under an order of the Court of the county, after advertisement, and a sale is prohibited under penalty of $200.
In Mississippi the sale shall be void unless by the order of the Ordinary.
In Alabama and South Carolina on a like order. 6 Stat. S. Car., 238; Ala. Code, 349.
Can there be a rational doubt that our Legislature would have adopted some such law as these if their design had *262been to alter-the law as it had previously existed, this being the. rational and appropriate mode and means of at-, taining such an end ?
The conclusion then is fair and just, that the sections quoted do not alter or repeal the common law, and that a sale privately made is not void unless there is fraud or collusion.
It remains to notice the authorities adduced by the Court in support of some of the positions assumed. They say, according “to the English authorities, a reversion is assets in the hands of the administrator, coupled with an interest in himself, and like all other assets of the estate, it was in Ms power to dispose of it at private sale and to confer on the purchaser a good title, though he still remained liable for any fraud or collusion in the sale. This interest, which is attended with such important consequences in the cases above referred to, is declared to be expressly done away with by our statute.” Allusion is made in these remarks to the case of LeBaron vs. Fauntleroy, 2 Florida, 294.
With due respect, there is not the slightest foundation for the assertion. The Court in that case had not the subject of reversion under consideration. The remarks quoted apply to an executor and not to an administrator, and distinguish between the two. They were in reference to q subject entirely different and unconnected with this, and furnish no support to the position assumed by the Court. By the common law, the executor was entitled to the surplus remaining after debts, legacies, &c. This the Court declared was done away with by our statute, and not the power of the administrator to sell or dispose of the property.
It is said that the Supreme Court in South Carolina has decided that in interest in reversion cannot be sold under execution by a sheriff. Admit this, and it does not meet this case. The very authority shows that such interest *263may be “ assigned, but not levied upon.” By whom assigned ? — certainly by the executor or administrator, so that this is authority for the transfer and not against it.
Again it is said, “ delivery was necessary, and no deliv. ery was possible in this case.”- Can it be the design to say that there can be no sale of an interest in reversion in personalty to the present holder as by a reversioner to the tenant for life ? Why he is the very one to whom the delivery was possible, and to whom the objection of want of power to deliver possession does not apply. Cole had the property in possession. By assigning to him the interest in reversion, to connect with the life estate of his wife, he acquired the full title. The books are full of such cases; indeed the Court by their decree assert this power of the administrator, for they decide that this claim of Cole’s heirs shall stand as a mortgage upon the negroes and be paid with interest, and the slaves not to be delivered up until after payment. Now this is making a mortgage of the reversion for the administrator by the Court, on the principle of ordering that to be done which ought to be done.— Now if he can mortgage, why not sell?
The fact is that the common law provides the just and appropriate remedy for all this. If property is sold at an undervalue at private sale, the executor or administrator is responsible for the difference to all interested ; and this is the true point of enquiry for a sale, whether public or private — is the means of getting a price and of paying debts, and if this is attained, no injury is done. In like manner he is prohibited from applying the assets to payment of his own debts, selling them collusively at an undervalue, paying debts out of their order, and all other acts showing negligence, mal-administration, so as to defeat the rights of creditors, legatees or persons entitled to distribution. For any or all of these he is liable on his bond, may *264be displaced from his office, and may be enjoined by a Court of Chancery. Toller on Ex., 424; Will., 1105,1118.
Although of the opinion that a sale by an administrator or executor is most appropriately made publicly, I see nothing in the statute to make it imperative or obligatory— cei’tainly nothing to justify the coxiclusion that a sale is void on account of its not having been so made. I find no i’epeal of the common law in any shape. If thex’e is a change of the law, thex’e is nothing to invalidate the purchase ixi this case; no fx’aud nor collusion, no evidence even that the purchase was made privately, or that the sale was not made in public.
The distributees and creditors have a clear protection for their rights, not only in the care and proper appointment of a suitable and coxnpetent pei’son by the Judge of Probate, but by the official bond to cover all delinquencies. They have in addition, the power of removal and the process of injunction of the Court of Chancery, to prevexxt injury and wrong. To allow them the additional aid of claiming the property, though sold by their own agent, after its value is improved xnany yeax’s after, would be to accumulate remedies in their favor, to the great injury of the public and to private rights.
It is consoling to find that the error or injustice, if any, in the decision, may, by the rules axxdpxúnciples govexming in courts of equity, be effectually averted and ¡prevented. Infants are allowed six months, after coming of age, to correct and contest a decree against them. 4 Hen. & Mum., 376 ; 5 Leigh, 119; 4 J. J. M., 68 ; 1 Sandford Chy., 103, 129 ; Bingham on Infancy, 131; Lube’s E. PL, 159, 160 8 Call, 459.