#### THOMAS C. PASS vs. THOMAS L. LEA.

A. being entitled to a distributive share in certain slaves belonging to an intestate’s estate, before administration granted, conveyed by deed to B. certain of the said slaves specifically and by name. After letters of administration issued, B., who was also one of the next of kin, joined with A. and the other next of kin in a petition against the administrator for a settlement of the estate and a division of the slaves, and the slaves, which had been conveyed by A. to B. were, under the proceedings on that petition, allotted to A.

Held, that, in an action by B. against A. to recover the slaves, A. was es-topped from denying that she had title to the slaves, at the time she conveyed them.

Held, secondly, that the proceedings under the petition did not estop B from asserting his title against A.

The cases of Moore v. Willis, 2 Hawks 559, Smith v. Gray, X Dev. tj. Bat. 42, Holding v. Holding, Con. Rep. 525, and Wright v. Lowe, 2 Mur. 354, cited and approved.

Appeal from the Superior Court of Law of Caswell County, at the Fall Term 1849, his Honor Judge Settle presiding.

This is an action of detinue to recover certain slaves, mentioned in the plaintiff’s declaration. The facts are as follows: John Gamble died in 1836, intestate, possessed of the slaves in controversy and others. He left, as his next of kin, a sister, Mrs. Gamble, the testatrix of the defendant,-and four -children of another sister, who died before him ; of these children, Thomas Read, the testator of the .plaintiff, was one. No administi'ation upon his estate was granted until 1844, when letters issued to Nathaniel J. Palmer, who immediately took into his *411possession all the slaves of his intestate. Thomas Read and Mrs. Gamble filed a petition for a partition of the slaves ; the other children of the deceased sister of John Gamble and his administrator being parties defendant. Mrs. Gamble, by deed of bargain and sale, bearing date the 20th of January 1844, conveyed the slaves sued for to Thomas Read, and died after the filing of the petition and before partition made. A partition was duly made and confirmed by a decree of the Court, and the slaves so attempted to be conveyed by Mrs. Gamble were allotted to the defendant, her executor. On the behalf of the defendant it was insisted, first, that the bill of sale executed by Mrs. Gamble to Thomas Read conveyed only one half of the slaves in controversy, and that he, the defendant, was not thereby estopped from showing, that the other next of kin were interested therein, and should be parties plaintiff to the action. Secondly, although the deed from Mrs. Gamble to Thomas Read might have operated as an estoppel, yet the filing of the petition and the proceedings thereon were, in law, a transfer of record of whatever interest was in him in the slaves in question to the defendant’s testatrix; and the plaintiff was estopped from claiming title to the same.

For the plaintiff, it was insisted, that, at the time of the execution of the bill of sale, Mrs. Gamble had no interest in the slaves, and consequently she and those claiming under her are estopped by it; whatever interest she subsequently acquired was acquired for the plaintiff or his testator, and consequently he was not estopped by the record of the proceedings under the petition.

Under the charge of the Court, the jury found a verdict for the plaintiff and from the judgment thereon, the defendant appealed.

E. G. Reade and Kerr, for the plaintiff.

Graham and Mordicad, .for the defendant.

*412Nash, J.

As to the first objection of the defendant, it is believed the doctrine of estoppel does not-apply. It is in the nature of a motion to non suit the plaintiff for want of parties. At the time the deed was made, there were three persons, the children of the deceased sister, who were, with Mrs. Gamble, entitled to the property of John Gamble. And it is insisted that the deed to Thomas Read conveyed to him only one half of the slaves therein mentioned and he was consequently tenant in common with them. When the deed was executed. Mrs. Gamble had no legal or several estate in those particular slaves. Her only claim was for a distributive share of the estate of her brother, John Gamble, which might remain after the payment of his debts. Until the appointment of an administrator, the legal title may be considered in abeyance ; but, as soon as letters issue, they vest the property in the administrator, and relate back to the death of the intestate. Without his consent or a judgment of a proper Court, the next of kin have no right to intermeddle with it. The bill of sale operates, only as an equitable assignment of her interest in the whole estate of John Gamble to the value of those slaves. When, by the subsequent partition, these identical slaves were assigned to the defendant, the title of the plaintiff became complete by estoppel against Mrs. Gamble and all claiming under her. Judge Henderson in Moore v. Willis, 2 Hawks 559, put this case. If A. bargain and sell to B. by indenture, he thereby affirms he had title, when he executed the deed. And should A. not have the title at the time, but after-wards acquire it, in an action against B., the latter’s title shall prevail, not because A. passed to him any title by his deed, but because A is precluded from showing that fact. If this be so, and I presume it cannot be doubted, it puts an end to this objection. The bill of sale professed to pass a legal title to the slaves, which the bargainor had pot, and she warranted the title. If she had lived until *413after the partition, she could not have maintained an action for them against Thomas Read, and if he had sued her, she would have been precluded from denying his title. The other children of the deceased sister could not claim any interest in the slaves in controversy, after the distribution under the partition. They could not be made parties to this suit. Their interest would have been antagonistic to Thomas Read’s.

The second objection cannot avail the defendant. It is founded upon the idea, that, by the decree of the Court on the petition, the legal title of Mrs Gamble to the slaves in question was established, and the plaintiff’s testator, being a party of record, was bound by it and estopped to deny her title. There cannot be a doubt, that matters, which have once been determined by judicial authority cannot be again drawn into contest, between the parties to the determination or their privies. It is equally true, that, when the cause of action is the same, the change of the action will not evade the principle. If therefore the same question was before the Court in that case, as is now controverted between these parties, the plaintiff is estopped. To give to a record, however, this conclusive effect, it must appear, among other things, that the matter averred is inconsistent with it, because, if it be consistent with it, it cannot be an exception. The conveyance by Mrs. Gamble was but an assignment of her equitable interest in John Gamble’s estate to the value of the negroes conveyed. The legal title was in the administrator, and, until the division, it continued there. The petition was to distribute the slave property of John Gamble among his next of kin. Mrs. Gamble, who was his sister, and the testator Thomas Read, who was one among the children of a deceased sister, were necessary parties. The only question was as to the division. The petition contained no allegation of any transfer by Mrs. Gamble to Thomas Read. The Court did not and could *414not consider any such question, for it was not put in issue by the pleadings. The plaintiff, then, in averring in this suit, that, before that proceeding took place, Mrs. Gamble had assigned to him all her equitable interest in the slaves, is averring nothing inconsistent with the record of that suit. But again an allegation in a record, to operate conclusively as an estoppel, must not be uncertain. An estoppel must be certain to every extent. Coke Lit. 308, 8526. “If therefore á thing be not precisely and directly alleged, it is no estoppel,” The equitable interest of the plaintiff in the slaves was not by the record put in issue» oither directly or indirectly ; he is not therefore estopped to show the fact. It is admitted that the delivery ot the slaves under the decree vested the legal estate in the slaves in controversjr in the defendant, as the executor of Mrs. Gamble, but it was there only to feed the estoppel. Such is,the case put by Judge Henderson in Moore v. Willis. And such was the decision in Rawlins’ case, 4 Coke Rep. 52, in which it was held, that, if a man leased land in which he had nothing and afterwards bought the land, such lease would be good against him by conclusion. But nothing in interest, till he bought the land, but as soon as he bought the land, it would become a lease in interest. The case of Doe on the demise of Christmas against Oliver, 2 Smith’s leading cases 417, is to the same effect. .The case was. that one Ann Stephenson was entitled to an estate in fee, upon the contingency of her surviving a certain individual. While the contingency yet continued, she and her husband made a lease for a term of years and levied a fine to support it. She survived the tenant for life and the ejectment was brought to recover the term. It was admitted by the defendant, that the fine and recovery operated by way of estoppel, bound the lessors and parties .and privies, but it was insisted it did not bind strangers. The Court decided that it bound the lessors by estoppel or conclusion, so long as *415the contingency continued, and that when the contingency happened, the estate that devolved upon them fed the estoppel, and the estate created by the fine ceased to be an'estate by estoppel only, and became an interest. 2 vol. Thom. Coke 488.

Ruffin, C. J.

If one sell and convey a chattel absolutely, he cannot afterwards say, he had no title at the time or a defective one, and for that reason take the thing back. In an action for it by the purchasers against the seller, the latter’s conveyance must conclude the matter between them. It is impossible he could be allowed to justify the detention in direct opposition to his own sale. It must be the same, when an action is brought against one claiming under or representing the seller; which is the case here, as the defendant alleges a newly acquired" title in his intestate, who conveyed to the plaintiff's testator, and that such title came to the defendant as her administrator. It was admitted in the argument, that this was generally true. But it was insisted not to be so here, because the deed to the testator was made by one of the next of kin of an intestate, from whom the negroes came, and therefore that it passed her distributive share of them, and, consequently, that it could not create an estoppel. Now, an absolute sale of a personal chattel, unless there be a stipulation to the contrary, imports a warranty of title, where possession is delivered, and it would seem that the vendor could not recover the thing, nor withhold the possession of it from the vendee, against his own undertaking, that the title was good, upon such a quibble' as that supposed, namely, that the title was at the time of the sale good for a month, or for an undivided tenth part of the thing sold. But in truth, it need not be considered here, whether the ancient technical rule alluded to, which concerns conveyances of land, can be applied" to sales of personalty. For, a right to a distributive^’ *416share is clearly not an estate, of which any notice whatever can be taken at law, as the subject of a conveyance’ Smith v. Gray, 1 Dev. & Bat. 42. It is a mere right to call the administrator to account and have a decree for distribution after the debts paid ; and the next of kin have no legal property in any specific chattels, which may form parts of the effects. All the next of kin together cannot recover or convey a single slave. When the administrator has made a distribution, then, and not till then, do the next of kin acquire a legal interest or title. A decree against the administrator for distribution does not vest the legal right in things, decreed to the next of kin, but only operates in personam, and requires the administrator, in whom the title is, to convey it in such mode as will be effectual to vest the property at law ; as, for example, to endorse bonds, make transfers of bank stock and public securities, or convey or deliver slaves ; and until such endorsement, transfer or delivery, the next of kin has not the property and cannot sue as the legal owner, that is, in his own name. In a legal sense, then, the deed passed, the property in the slaves to no extent whatever; and, consequently, if the subject were land, in which the vendor had but an equitable interest, the ease Would not be within the rule relied on for the defendant. Nor can the operation of the intestate’s conveyance be affected by the decree in the suit against the administrator. The nature of decrees in equity has just been mentioned. They do not even profess to pass the legal title, and therefore they cannot create any estoppel in relation to it. It was said, indeed, that the petition was for partition among the next of kin, as tenants in common. Doubtless a partition of land or of 'slaves, under the statute, constitutes a legal title ; for, the- parties had a title of that kind before, and all they wanted, in addition, was that each one’s share should be allotted in severalty, and the statute gives the judgment that operation. But *417petitions for legacies and distributive shares and the decrees in them partake of the nature of the like proceedings in equity; Holding v. Holding Conf. Rep. 525, Wright v Lowe, 2 Mur. 354 ; and the suit in this case was against the administrator for distribution, and between tenants in common for partition. In itself, there* fore, the decree can have no effect on the title to the slaves, either as a conveyance or an estoppel; and the judgment should be affirmed.

Per Curiam.

Judgment affirmed.