The opinion of this court was delivered by
Coulter, J.The evidence excepted to was improperly admitted. Daniel M’Clure sold his interest in the real estate of his father, William M’Clure. He was one of the executors of his father’s will, and William M’Clure, one of the defendants, was another. The contents of the will, under which Daniel claimed the one-tenth of the real estate, was equally well known to the vendor and the purchasers, Holliday M’Clure being a son of the testator, and all claiming under the will.
Testator directed that his just debts should be paid, and that, if his personal estate was insufficient for that purpose, his executors should sell his real estate, and apply as much as was necessary to that object. One of the purchasers, being an executor, had an equal opportunity to know the extent of the debts as well as the vendor; and the debt which it is sought now to deduct from the purchase-money of Daniel’s share pro,rata, being a judgment, was *481doubtless known to both executors; at least, it was both their duties to provide for its payment under the will. And they contracted for the purchase and sale of Daniel’s interest, standing exactly on the same platform of circumstances which could affect the transfer, as to knowledge of their rights and liabilities, or in any degree influence the contract. The language,of the contract is, “ I will sell my claim as a legatee to the real estate of William M’Clure, our father, for the sum of $450, and give bond and security for the relinquishment of said claim, &e.” It is his claim, to the real estate of his father, as devisee, which he sells. And what was his claim as devisee ? It was the net product of an equal share with his brothers and sisters, after deducting advances made to him by his father, and the payment of his father’s debts; both of which are distinctly charged upon the real estate by the will. One party to the contract could not take advantage of the others. They were alike affected with notice of the judgment, and must have contracted about the claim of Daniel to the real estate, with reference not only to this judgment, but all other debts due by testator. We must carry out the contracts of the parties; and, as the defendants covenanted to pay for a valuable consideration, unless they show that they are entitled to relief, in consequence of fraud practised by the other party, or in consequence of the other party standing on the vantage-ground, by a knowledge of facts which the other had not an equal opportunity of knowing, and which good faith required him to communicate, as they affected the substance of the contract. Here the fair interpretation of the contract is, that it was only the surplus, after paying the debts and advancement, that was sold and bought; these being both charged in the will upon the land pro rata, and consequently each party took the risk as to the amount. At a very early period in the history of the jurisprudence of this country, it was determined, that on a sale, where it was the meaning of the parties to buy and sell only a claim, the purchase-money must be paid, although the vendor had a bad title: Pennsylvania v. Simms, Addison, 9.
A man has a right to contract as he pleases, no foul play being, used against him, and to sell and buy subject to risk. There was in fact no risk here, if the purchaser had chosen to open his eyes, but there might have been risk as to unrecorded debts of the deceased, if any existed, and that risk the parties evidently took upon themselves. It is our duty to enforce contracts fairly and honestly made, with a horizon equally clear to both parties.
Judgment reversed, and venire de novo awarded.