#### JESSE P. PARKER AND ANOTHER, EX’RS., against JOHN B. LEATHERS.

Where one of the legatees of an estate, being' also an executor, by the consent of those interested, buys property at the executors’ sale, mot for the purpose of a division, but simply for his own gain and emolument, he must abide by the rule of caveai emptorand Unless he avers and proves a Warranty, or a fraud practiced upon him, must bear the loss arising- from unsoundness.

Cause removed from the Court of Equity of Orange County.

Joseph Armstrong- died in the year 1840, having bequeathed to his widow, Peggy Armstrong, during her life or widowhood, four negro slaves, tó wit, Daniel, Jacob, Tamor and Abram, with a proviso, that if she remained his widow, she might dispose of said slaves by will among her four children, James Armstrong, Nancy Coggin, wife of George T. Coggin, *250Mary Anne Parker, wife of Jesse P. Parker and Parthenia Leathers, wife of John B. Leathers, who were also his chil dren, being the only children of the marriage between them, and the next of kin of both the husband and wife. The plaintiffs, Jesse P. Parker and George T. Ooggin, and the defendant, John B. Leathers, were appointed executors of the will of James Armstrong, and having had the same admitted to probate, they qualified and undertook the duties of executing and performing the trusts of the same. They promptly and satisfactorily administered all the trusts therein confided, as to the first property that came to their hands, ^hich was the bulk of the estate, by paying the debts and legacies, &c.

Afterwards, in 184-, Mrs. Peggy Armstrong, the widow of the testator James, died intestate, without having married, and without having exercised the power given her by her husband’s will of giving the four negroes among her children, either by deed or will, and they, the executors of James Armstrong, took the negroes and other property left by Mrs. Armstrong, and, by agreement among themselves, sold the same at public auction, for the purpose of distributing the value amongst the four children. John B. Leathers, one of the executors, and one of the legatees, being anxious to own the negro slave Jacob, by the consent of Parker and Coggin, the other two executors, and of James Armstrong, the only other person interested in the property, was permitted to bid at this sale for the slave Jacob, and it was agreed that if he made the highest bid, the slave should be his. lie made the highest, bid at §725, and accordingly took possession of Jacob, and kept him mitil the death of the slave, which occurred in-; and, as the plaintiffs say, paid $168 of the purchase money. The prayer of the bill is, that the said John B. Leathers account for what has come into his hands as an executor of Joseph Armstrong; and that he account for tho price of the slave Jacob, thus purchased by him with the consent of the plaintiffs; and that he pay and satisfy to the plaintiffs, in such proportions as they may be severally entitled, their shares of the estate of Joseph Armstrong.

*251The answer of the defendant denies that he paid anything for the said slave after purchasing him, as set out in the plain-tiifs’ bill; but says that he told Parker, who was the receiver of the funds for which this last property sold, that he might appropriate an amount coming to him from that source towards liquidating this debt, as far as that amount would reach, and that it ■was about the sum stated in the bill.

He says further, that he has refused to account and settle with his co-executors, and the other plaintiff, James, who, with himself, are all the legatees of Joseph Armstrong, because they insist upon his paying for the slave Jacob, so bid off by him, the full price of $Y25; whereas, he says, at the time of this sale, this slave was laboring under an incurable disease, of which he was not aware at the time of the sale^ and which, notwithstanding- the greatest care and attention, very soon terminated his life.

The plaintiffs, by way of anticipation in their bill, say that it is true that the slave Jacob, died in about 16 months after the purchase by defendant; but whether he died of any disease existing at the time of the sale, they do not know ; and if it be material, they insist on holding him to strict proof of that fact. But they furthermore say in their bill, in anticipation of this defense, that even if it be true, that the slave Avas thus afflicted at the time of the sale, the plaintiffs had no knoAAdedge of the fact, and that the defendant had better means of knowing it than they. Replication, and proofs taken.

The cause Avas set for hearing upon the bill, answer and proofs, and sent to this Court.

Norwood and Bailey, for plaintiffs.

Bryan, for defendant.

Nash, C. J.

This case is essentially different from Nixon v. Lindsay, ante 230, decided at this term. That was a bill to equalise a partition made by distributees. The negroes Avere divided into lots, intended to be equal. In that assigned to the plaintiff, was one known to be sick, but her sick*252ness was not considered to be dangerous. In a short time she diecb from, an incurable disease, which she had at the time of the partition, though unknown to the parties; and the plaintiff prayed for contribution from the other distributees, which was granted by the Court. The case now before us is to call the defendant to an account, as one of the executors of Joseph Armstrong. The plaintiffs, together with the defendant, Leathers, were co-executors. By his will, the testator made a 'large bequest of slaves to his widow, during her life. Among them was one by the name of Jacob, who, together with the other property bequeathed to the widow, was, after her death, sold by the executors as part of the estate. The defendant, Leathers, with the consent of all interested, purchased the negro, Jacob, at the price of §725, took him into possession, and made sundry payments amounting in the whole to^ $168. In about sixteen months Jacob died, and the defendant refused to pay anything more, upon the allegation, that at the time of the sale and purchase, the negro was unsound with a mortal disease which subsequently put an end to his life. No fraud is alleged. This defense presents the case of a purchaser refusing to pay for a slave he has purchased, without any allegation of fraud, or taking any warranty, but merely on the ground that he was unsound at the time of the sale, and that unknown to the vendor. Equity takes care of those who take care of themselves. In a parol sale of personal property there is no implied warranty of soundness, and the defendant ought to have taken a written conveyance with a covenant of soundness. lie has not done so, and must account for the price of Jacob, deducting the jiayment made by him.

Pise Cueiaii. Decree accordingly.