#### JAMES C. NIXON AND OTHERS against ALEXANDER H. LINDSAY AND OTHERS.

Tho maxim caveat empior does not apply in casos where the parties are placed in a confidential position between themselves; for in such cases, there is an implied warranty of soundness, as well as of title.

Where parties act upon a mutual mistake as to a fact, Equity will relieve for the purpose of carrying the intention into effect Therefore:

Where tenants in common of slaves, appointed commissioners to make partition among them, which is done as they suppose, faMy and equally, but it turns out that a slave allotted to one of the shares was, at the time, laboring-under a disorder of an incurable character, which rendered her worthless, though this was not known to any of the claimants; or to the commissioners, it was held that the owners of tho other shares were bound to contribute pro rata, to the party receiving the defective lot.

Cause removed from the Court of Equity of-Randolph County.

An estate in certain slaves bad been limited by the will of James Collett to Mrs. Nancy King, for her life, and then to her children; in consequence whereof, upon the death of Mrs. King, which took place in 1851, her children became possessed of nine slaves as tenants in common. The children of Mrs. King who are living, are, Sarah, the wife of Joseph A. Sutherland:, Elizabeth, the wife of William Jones, and Ann, the wife of Frederick Pegge, the last mentioned of whom has sold his wife’s interest in these slaves to Alexander IT. Lindsay. ,. Besides these, there was another daughter, Zelplia Nixon,v in whom a fourth of this interest vested, but who died in the lifetime of her mother, and who left the plaintiffs, James C¡, *231Jesse IT., and Zelpha A. Nixon, her children and next of kin, ■who were infants, and to whom Dempsey BroAvn was appoim ted guardian. Being thus entitled, ¥m. Jones, Joseph Sutherland, A. H. Lindsay, and Dempsey Brown as guardians for the plaintiffs, agreed in writing under seal, dated Till Jan., 1852, that S. G. Coffin, John Dorset, aiid Grafton Gardner, as commissioners, should divide the said nine slaves among them as the parties were severally entitled. Tliey valued the Avhole nine slaves at $4,600, each share being $1150. In this division there were allotted to the plaintiffs, as the children of Zilpha Nixon, two slaves, Gabriel, valued at $T50, and Mary, at $400. This valuation and division were reduced to writing, signed by the commissioners, and registered in the register’s office of Davidson County, Tlie negro Avoman, Ifa-ry, Avas sick at the time of the división, but it Avas believed by the commissioners, and others interested, ésx>eciaíly by the guardian of the plaintiffs, that the disease was but temporary, by no means affecting her A'alue; but it turned out, that she was at that time laboring under a deep and fatal disease, called the African consumption, which occasioned her ddatli in about tAvo months afterwards,-notwithstanding the best skill, procurable in that community, was employed to attend her.

There are allegations in the plaintiffs’ bill, charging that the defendants, especially Jones and his wife, were aware of the extent of the Avoman’s disorder, and that they concealed the fact from the plaintiffs’ guardian, and from the commissioners, moreover, that they fraudulently and deceitfully represented her to be sound, well knowing to the contrary. All of Avhich matter is pointedly disputed by the defendants. They aver in their ansAvCr, that the plaintiffs’ guardian was as well acquainted Avith the slave Mary as they, and much better than some of them who lived at a considerable distance off. Proofs Avere taken on both sides as to these points ; but as their Honors, in making their decision, threw out of A'iew the questions of fraud and diligence, it is not deemed necessary, or proper, to notice further the pleadings and evidence concerning them.

The bill prays that the several legatees shall be decreed to *232pay to plaintiffs a pro rata amount of tlie loss sustained by tlie death of Mary; also a proportionate amonnt for tlie expense of nursing and medical treatment while she was confined.

The defendants, Jones and Lindsay, answer chiefly to the points above suggested, which have now become immaterial. The facts of the slave’s ill health, of the fatal character of the disease, and of its permanent existence at the time of the sale, are not directly denied in either of the answers.

There wore replication and proofs. The only part of the proof deemed important is the testimony of Dr. S. G. Coffin, who stated, “ that he was one of the commissioners to divide the property; that as the parties had put their own valuation on the slaves, he did not examine into the state of Mary’s health at that time; he had heard before of her sickness, and on the day of this partition, he heard Mrs. Jones say she liad been unwell for some short time, but attributed it to exposure in sitting up with her mistress who had lately died; she then looked dull and stupid; in a short time afterwards, he was called upon to visit her, and found her afflicted with the scrofulous, sometimes called the African, consumptionhe says he attended her up to the time of her death, and is satisfied that “ the first time ho saw her, on the day of the division, she was laboring under the disease which terminated in her death in about two months, though he did not then suspect it.”

The cause was set down for hearing upon the bill, answers and proofs, and was sent to this Court for trial.

Qihner and Miller, for the plaintiffs.

Morehead, for tlie defendants.

Pjíaksou, J.

The hill contains an allegation that the defendants knew of the unsoundness of the slave, and fraudulently concealed it from the persons selected to make the division, and from the guardian of 'the plaintiffs; and, by misrepresentation and falsehood, caused them to believe that she was laboring under temporary indisposition, from want of sleep, &c., in attending at a sick bed.

*233Without passing upon the proofs, we put this allegation out of the case; nor do we lay- any* stress upon the fact that the plaintiffs were infants, and according to Lord Coke, are not bound by the partition, unless it be equal. Coke Lit. 171 a.

The question is this: tenants in common of slaves, select commissioners who make partition; in the lot assigned to the plaintiffs is a;girl, who, at the time of the division, was unsound, having an incurable disease, called African consumption, of which she died about two months thereafter; the tenants in common, and the commissioners, had no knowledge of this unsoundness, and all supposed the girl’s indisposition to be slight and temporary, and she was valued at $400: have the plaintiffs an equity for contribution?

The plaintiffs are entitled to contribution, upon the broad ground of substantial justice, expressed in the books by the . maxim “equality is equity.” This conclusion may be supported upon two well-settled principles.

1. In partition of chattels, which is an 'equitable proceeding, a warranty is implied, not only of title, but of soundness; and the common law maxim “ caveat emptor" has no application, being restricted (as the word “ emptor ” imports) to salee of chattels. In the conveyance of a fee simplcestate in land, no warranty is implied-.; because there is no tenure. In partition of land, a warranty is implied;; because ©f th<s> privity of estate. In sales of chattels a warranty of title is implied’; but there is no implied warranty of -soundness, the maxim of the common law being “emeat emptor f because it was thought some “play” (as mechanics call it) ought to be allowed, for the chaffering and exercise of individual judgment, attendant upon the traffic in such articles when the parties are at “arm’s length,” and each is supposed to trade with his eyes open; so that in the absence of an express warranty of soundness, the purchaser of a chattel has no remedy except on the ground of deceit.. This maxim, however, was peculiar to the common law. The civil law enforced a more refined morality, and acted on the rule, in the sale of chattels, “ a sound price implies sound property.” The common law max*234 im was confined to sales, where, as we hare seen, the parties are supposed to he at arm’s length, and no authority or inti-, mation in tiie hoolcs can he found, that it ever was supposed to extend to eases of partition. 1 Story’s Eq. 221; 2 Kent 479; 2 Blaqkstone’s Com. 451. Upon partition, the parties are in equalijure; there is supposed to be mutual confidence by reason of the privity of estate ; and the object is to make an equal dimisión of e, oommooifwnd. There is no chaffering- or trafficking about it; third persons, selected by themselves, or appointed by the Court, make the division, and if the corn-anon fund is not as largo as the parties suppose, pither from defect of title, or of nnsoundness as tojiart, the loss should be borne equally; in oilier words, in partition there is an implied warranty both as to. title and soundness.

2, Where parties apt upon a mutual mistake as to a fact, Equity will relieve, for the purpose of carrying the intention .into effect, Ilere, the intention was to make a fair and equal division. Ip consequence of a mutual mistake as to a fact, i. e. the nnsoundness of one of the slaves, the division is grossly unequal; so that the share allotted to the plaintiffs, is of less value than the other shares, by more than one-third. Rood any authority be cited to, show that a Court of Equity will compel contribution in order- to set the matter right, so that the loss may be divided ? Ry way of familiar illustration :• four boys have four apples; they divide; one of the apples, although sound outside, is rotton at the core and not fit to be eaten; will the others hesitate to make their comrade, who was so unfortunate ps to get the rotten apple, equal, by each giving him a part of'their’s?

'The plaintiffs are entitled to contribution fbr the estimated value of the slave, and also for the necessary- and reasonable expenso incidental to her last illness, and for loss of service ; in regard to which there must bp a¡n account,

Recreo accordingly. PlCR CURIAM*