#### Gordon v. Finlay.

~i t From Wilkes*. J

A purchase From one administrator, where there is more than one, will vest no title in the purchaser, aliter of executors.

A trustee cannot become a purchaser at.his own sale, and it would seem that no circumstances will justify a departure from this rule. When one administrator purchases a slave of his co-administrator, it is not, in strictness, a purchase from himselfs but the purchase vests no title, for duty and interest being in opposition in the purchaser, the case comes within the mischief intended to be guarded against’ by the rule which prohibits trustees from purchasing of themselves;

This was an action of detinue for a slave, tided before-Badger, Judge.

On the trial it appeared that the slave in question ber longed to one Gordon, who died in 1806 intestate; administration on his estate was granted to the plaintiff, his widow, and Wesley Gordon, his son, and one of his dis-tributees. It having been ascertained that there were debts due from the estate, more than ordinary perishable property would pay, it was agreed, in 1807, between the plaintiff on the one part, and Wesley Gordon and his brothers and sisters (the other distributees) on the other, that if the plaintiff, their mother, would pay those debts, supposed to be of amount equal to the valúe of the slave in question, she might keep the slave as her own property. At the time of this agreement, two of the distributees were infants. Mrs. Gordon, the plaintiff, accordingly took possession of the slave, and kept it until 1811, always claiming Mm as her own. The estate was settled and the distributees paid, and no objection has ever been set up by the infants, though since of full age, nor has any dissatisfaction been expressed by them. The plaintiff made arrangements for the payment of the debts above mentioned, and evidence was offered to show the fact of payment, which was denied by defendant;

*240In 1811 the slave went into possession, of the defendant under a pledge or mortgage from the plaintiff, ta secure the payment of two hundred dollars to the de-fenc[ant. Afterwards Wesley Gordon paid defendant, redeemed the pledge, and took possession of the negro. Wesley Gordon then executed to his mother, the plaintiff, a writing, declaring that he held the negro as a security for the money he had paid, and that plaintiff was at liberty, by repayment to him, to redeem at any time' within five years. In 1817 the plaintiff did pay to Wesley Gordon what ivas due for the negro, and lie was delivered to her by Wesley. During the same year, Wesley again obtained possession of the negro, and sold him to defendant to discharge a debt which he had contracted with defendant.

On these facts defendant contended, that the payment of debts to the value of the slave by the administratrix, with the consent of all the distributees, would not giye her a title to the slave; and that the defendant, having purchased from a co-administrator, had good title.

The judge, leaving to the jury the question of fact whether there had been such a payment as was alleged, instructed them that an advance by an executor or administrator of money, in the payment of debts, to the value of a particular chattel, with the consent and upon the express agreement of the distributees that on such payment the chattel should belong to the administrator or executor, would make such chattel his own. And the jury ivas further instructed, that after receiving the negro as plaintiff’s property, by way of mortgage or pledge to secure a debt, by parting with the negro to Wesley Gordon on receiving the sum due, and Wesley holding him (as defendant did) by way of pledge for the payment of the money, and surrendering the negro to plaintiff upon such payment, that both Wesley and the defendant had admitted that she had title at that time, and were estop/ ped now to deny it.

*241Yerdict for plaintiff, new trial refused, judgment and appeal.

Hall, Judge.

Although I think the defendant has no. right to the negro in question, I think the plaintiff has no right to recover in her individual name, because she does not show a right to the negro in that character. Perhaps if the negro had been taken out of her possession by the defendant, she might have maintained an action for him without naming herself administratrix, (Godolph 134. Wentw. Off. of Ex. 104,); but this was not the case. The contract recited, under .which she claims the negro, was entered into only by her and some only of the distributees; the others at the time were under age. It does not appear that they had arrived at maturity when the estate was settled; and although they have expressed no dissatisfaction at the contract, it docs not appear that they have confirmed it, or how long they have acquiesced under it. If they have ratified it, I sec no reason why the plaintiff should not recover. If it has not been ratified, a recovery may be effected by the representatives of the intestate in their representative character. If one of them refuses to sue, he may be summoned and severed. (J3ac. Jlbr. Exr. and Jldnir. D. 3.) But under the circumstances of the caso, I think the rule for a new trial should be made absolute.

Henderson, Judge.

The defendant’s title is certainly bad, for he derives it from one of two administrators, who sold in satisfaction of his own private debt, and at private sale. I think, also, that the plaintiff has no title: nor do I think that the defendant is estopped from showing it. The plaintiff claims the negro in question by virtue of an agreement between her and her co-administrator, Wesley Gordon; which was, that she was to pay certain debts of the estate, supposed to be equal in amount to the value of the negro, and take the negro as her *242own property; and this agreement was made with the consent of such of the- distributees as were of age. That a settlement was afterwards made of the estate, (but when it does not appear); that the distributees are all now of age, and have never questioned the settlement, (neither does it appear when they came of age.) In all sales there must be a vendor and a vendee. The same person cannot be both vendor and vendee. The purchase, then, was made of Wesley Gordon alone; and one administrator cannot, alone, when there are more, make a sale. They are, in this respect, unlike executors; for all the administrators together represent the intestate, whereas each executor represents the testator. But there is something further in this case. The estate was confided to the plaintiff with the administrator. She was bound to exercise her best judgment in its management; and no act of hers could be valid where her duty and interest were in opposition. In the sale of this negro it was her duty to obtain the best price, (at least his value;) it was her interest, if she became the purchaser, that she should obtain him on the lowest possible terms. Nor is it an answer to show that in this particular case the full value was paid. For wise purposes the rule of law is general, and makes no exceptions. A trustee cannot purchase at his own sale, that is of himself. This rule may, at times, produce individual hardships and inconveniences; but its general operation is beneficial. Lead us not into temptation, came from the lips of him to whom error cannot be imputed. To implore it, would not disgrace the most honest and pious among us. To make exceptions from the rule in partiCular cases, upon the ground that full value was paid, would produce litigation; and who is there to show the full value? Mere strangers to the worth of the property, and on the opposite side, one whose situation gives him an opportunity of knowing all its defects, and also all its good qualities, and- where interest would lead him to expose the one and conceal the' other* I? therefore, think *243that the rule should not be departed from; I will not say in any instance, but I must say in those which I at present can call to mind. I am released from saying any thing about the ratification by the distributees. To pre-rent discussion, I will confine myself to those who were under age; for it is not, as to them, shown what they have done or said, or whether they have said or done any thing knowingly. It appears only that they have, not disturbed the settlement, for how long a time does not appear. What does appear may all well be, and the sale will not be confirmed or made good. Nor is the defendant estopped from showing title paramount the plaintiffs; allowing that he was prevented from doing this during the mortgage, the estoppel arose from the mortgage and expired with it. I admit that possession alone will support an action, founded even on the title against a mere wrong doer, until a title paramount is shown to be somewhere; for possession of a chattel is prima fade evidence of title: as in this case, if Mrs. Gordon, had shown that, she had been in possession of the slave, claiming him as her own, and that the defendant now has him, and he shows no title, Mrs. Gordon would recover; for her possession is prima fade evidence of her right: but when the defendant shows that it was Gordon’s in his life time, which was prior to Mrs. Gordon’s possession, she must then show a title in herself; for her title, supported by prima fade evidence alone, is destroyed. ' It is asked, how is this title in the administrators in their representative capacity to he. enforced? I answer, by an action in their representative capacity, in which they both must join; at least the names of both are to be used in the commencement, and if one will not go on with the action, such one must be summoned and severed.

I believe all the assertions made in this opinion are to he found in the common place books, and therefore I have not cited authorities. As to the authority of one iMntinistrator where there are more than one, I would re<*244fer to Mangum's admr. v. Sims, (1 Car. Law Reports. 547.)

Tati or, Chief Justice, concurred with his brethren.