By the Court.
Lumpkin, J.delivering the opinion.
This is the second time this case has been before thi3 Court; and to be justified in sending it back again, we should he clearly satisfied, not merely that injustice may have been done, but that the plaintiff in error has actually been wronged. How frequently are these little properties consumed by protracted litigation — the greatest curse that can be inflicted on parties.
And so far from right’s not having been done, we have ©very reason to conclude, under the charge of the Court, that the contrary is true.
What are the facts ? Mr. Siller dies, leaving a widow and three small children, and a negror girl of twelve years of age. No administration is taken out upon his estate, by his brothers-in-law, or by any body else. Frith intermarries with the widow. He raises the children as his own. The girl has one child and upon consultation with his wife, Frith concludes to sell the negroes. The fact, that in right of his wife, he was entitled to one-fourth of the price, is the surest guarantee that she and the child brought their value. Frith settles the outstanding debts against the estate and rears the children. One of them dies b.efore there is any accounting with him by Frith; and Frith discharges this son’s debts, the proof showing that he had agreed to do so, in Lorenzo’s life time, and at the time they were contracted.
*541At a distant day, when the children are raised, the Dorsetts are induced to come forward and administer on the estate of their deceased brother-in-law. Knowing of the sale made by Frith years and years before, they bring an action of trover against him to recover the negroes. They knew of the sale at the time it was made, and did not object.
What was the measure of damages to which they were entitled ? I answer confidently, that in a case like this, where it is impossible to deliver the property, that the value at the time of sale, .with the interest thereon, is the rule sustained by the current of cases, English and American. I am aware, that numerous dicta may be found which seem to indicate a different doctrine. I will not say, that there are not adjudicated cases to the contrary. But upon examination, I apprehend it will be found, that whenever the books speak of the highest value from the date of the conversion to the time of trial, as the measure of damages, they refer to cases in which it is possible to deliver the property in discharge of the verdict. And so the Judge instructed the jury that if they should find the sale was not fair, they might award the present value of the negroes. No doubt it was fair, it being the interest of the vendor to get the highest price. We assume then, that the criterion of damages was properly submitted. Hire to the time of sale, the purchase money with interest since; more I doubt not, than the annual hire would have amounted to.
Shall it be asked, shall a tortfeasor be dealt with as though he was clothed with authority to make the sale ? We reply, no more than this could be recovered against an executor de son tort; and this is the most that can be made of Frith, and that too, only as to three-fourths of the property. He owned the other fourth. He was a joint tenant of the whole. So much for the trover action.
As to the instructions of the Court respecting the equitahie set-off to which Frith was entitled, all that was argued and decided when the case was up before. Either we were *542wrong then, or the Circuit Court is right now. All that matter has been properly submitted to a special jury, and we doubt not, that their verdict is nearer right than this Court can make it.
Suppose Frith did pay some of Lorenzo’s debts after his death, he had promised to see them paid at the'time they were contracted; But if he had not, should the portion of his stepson be wrenched from his hands, until he was re-imbursed the amount that he had justly expended for this purpose ? To quote the principle, that one cannot make another a debt- or against his will, is a misapplication of it to such a case. What are the heirs at law of Lorenzo Siller entitled to ? The residue or net surplus of his estate, after his debts are paid. And does it matter to them, whether they were paid by Frith, without an administration and without expense to his next of kin, or through an administration ?
We are happy at not finding ourselves constrained to send this case back. For we may talk as much as we see fit, about breach of trust, usurpation of power, &e., in this case, the key to it is just this: up to the sale of the girl and her child by Frith, all who were concerned in the estate thought he was managing for the best interest of all concerned. But the woman it seems, instead of dying or proving barren, or valúeless, for any other reason, has turned out to be a most prolific breeder; and as poor Frith for his own sake, as well as the good of his step-children, had not the prescience to foresee this, the result must be visited upon his Head. We are all willing to take wives and contracts and everything else, for better, how few for worse! The recollection of the ruin of one honest trustee in this State, has made me slow to repeat the infliction. He sold ten negroes in January 1837, big and little, young and old, for $10,000. Those were the flush times in Georgia. He re-invested the proceeds in Railroad Stock at par. A new guardian was substituted. The new investment was repudiated, and in the face of an oifer to restore the identical negroes with hire— *543which, was refused — the $10,000 with interest was recovered thereby bankrupting the old trustee, for a miscalculation, and seriously injuring his security. The wards rejoiced at the sale, but would not abide the re-investment.
Judgment affirmed.