Williams v. Cannon. they were used, or understood, by the parties, whether they amount to a warranty, or are to be understood as a representation of the seller's opinion. Accordingly, where the vendor said of a colt he was about selling, "there is nothing the matter with the colt-it is well and sound, and will make a fine horse;" it was submitted to the jury to say, whether there was a warranty, or only a mere expression of the vendor's opinion, and they were directed to say how the words. were understood by the parties. Such will be found to be the effect of the decisions, both in England and the United States. See Ricks v. Dillahunty, supra. The first charge given in the case before us, did not refer it to the jury, to determine whether the representation made by the plaintiff as to the horse's lameness, was understood as a representation of the plaintiff's opinion, or a warranty that it proceeded from a founder; but assumed it as a legal conclusion that it was a warranty, and thus foreclosed the inquiry of the jury, as to the understanding and intention of the parties. In this view of the law, the court erred, as is conclusively indicated by the case cited from 8 Porter, and the still later decision of Barnett v. Stanton & Pollard, 2 Ala. R. 182. If the plaintiff made the representation in respect to the horse, with a knowledge of its falsity, he would be guilty of a fraud, which would have authorized the defendant to have rescinded his purchase; or if he retained the horse, to claim deduction from the purchase money to the extent to which he was prejudiced. See Barnett v. Stanton & Pollard, supra. We are not permitted to speculate about the reasons which influenced the jury in finding their verdict, and attribute it to their conclusion upon the question of fraud, in order that it may be sustained. It may be, and probably was quite as much the result of the first as the second charge. Be this as it may, it cannot be assumed that the plaintiff is not prejudiced by the error in the ruling of the court. The judgment is consequently reversed, and the cause remanded. Colburn, et al. v. Broughton, et al. COLBURN, ET AL. V. BROUGHTON, ET AL. 1. The bill in the case seeks relief against B as the administrator de bonis 3. The purchaser of trust property, at a sheriff's or coroner's sale, when it 4. The mere circumstance that a trust is created on certain property, does not invest a Court of Chancery with jurisdiction to determine disputes arising with regard to the title. 5. The death of the trustee is not a circumstance to confer jurisdiction, although it might create such an equity as would warrant a bill to prevent a sale, or removal of the trust estate, until the legal title could be ascertained by suit. 6. Although, at common law, a trust on personal property passes to the administrator of the estate, yet it is subject to be severed from the administration by the appointment of a trustee, under the statute, and when so severed, the trust can never again unite with the administration. 7. The personal representative of a trustee, who held the trust estate at his death, is estopped from setting up another title to defeat that under which his intestate held. Writ of Error to the Court of Chancery for the 5th District. THE case made by the bill is this: Martha J. is the wife of James F. Colburn, and the other complainants are her children by him. On the 25th December, 1829, one John B. Bradford, by deed of that date, conveyed to Wm. C. Coolidge, since de 9 351 125 129 tee. Colburn, et al. v. Broughton, et al ceased, certain real estate described therein, upon trust, to receive notes, profits and proceeds of the same for her life, and to her own separate use; and in case her husband, James B. should die during her lifetime, then to convey the same to her for life, and to the heirs of her body, by said James, in remainder. The consideration expressed in this deed, is the grantor's natural love and affection to the said Martha and her children, he being her father, two thousand dollars paid by the husband, and the sum of five dollars paid by the trusThis deed is alledged to have been admitted to probate on the day of its date, and recorded on the 17th day of April, 1830. From the deed, as exhibited, it appears to have been acknowledged before the then Judge of the County Court of Monroe county. On the 30th of December, 1829, the same Bradford conveyed to Coolidge certain slaves, to wit: Jack, about 67 years old; Sally, about 14, and Phœbe, about 11 years old, in trust, to permit the said Martha to possess, use, and enjoy the same, during her natural life, to her own separate use, and after her death to be the absolute property of her (issue) heirs, by James B. Colburn, with full power to the trustee, with her consent, to sell, exchange, &c. the same if it should seem expedient. From the deed, as exhibited, it appears to have been acknowledged on the day of its date, before the Judge of the County Court, and recorded the 16thApril, 1830. It is expressed in the deed, that the slaves were then in the possession of the husband, and the consideration is stated to be natural love and affection for the wife, and one dollar paid by the husband, as well as the trustee. On the 25th of December, 1839, Colburn, the husband, conveyed to Coolidge certain other slaves, to wit: Lewis, about 22 years old; Mary, about 17; Sukey, about 13; Cæsar, about 12; Sterling, about 11; Betsey, about 10; Lettuce, about 21; Lucy, about 5; Ned, about 3, and Juliett, about 15 months, upon trust, to permit Martha Colburn to receive the profits, hire, &c. and to permit her to use and possess the same, at all times during her natural life, to her own separate use, and to the heirs of the bodies of the said James B. and Martha, in remainder. But if they should die without heirs, then the trustee to convey to the right heirs of the husband, in such manner as he should appoint by his last Colburn, et al. v. Broughton, et al. will, &c. This deed, as exhibited, appears to have been acknowledged in the same manner as the last, and recorded 16th of April, 1830. The consideration is expressed upon its face to be for divers good causes, and four dollars paid by the trustee. Coolidge is a party to each of these three deeds, having in writing accepted the trust, and covenanted faithfully to perform the duties imposed on him. Immediately after their execution, he entered into possession of the lands and slaves so conveyed. About 100 acres of this land was then in cultivation, and on that he put all the slaves, except Lettuce, Lucy, Ned and Juliette, which were retained by Mrs. Colburn as house servants. Coolidge cultivated the land until August, 1835, and inade crops of corn and cotton, more than sufficient for the use of the plantation. He sold cotton every year in Mobile. and received the proceeds thereof, as well as that of the year 1839; all of which he applied to his own use, and never accounted for with the complainants. The crops averaged 25 bales of cotton, worth from 1200 to $1500. Coolidge was an intimate friend of, and resided in the family of Mrs. Colburn. Confidence was reposed by her in his integrity and honesty, that he would account justly, but she never called on him for a settlement, and was the more inclined to waive inquiry into her affairs from his expressions of gratitude, and his often repeated declarations, of a determination to leave her children whatever property he might have. Habits of intemperance in the latter part of his life, produced frequent indisposition, requiring from Mrs. Colburn and her family great care and attention to his wants and comforts. No charge was made against him for board, and to the time of his death, in August, 1835, he was treated as a member of the family. At the October term, 1835, of the Circuit Court of Monroe county, one Smith was appointed by that court as the trustee in the place of Coolidge. Smith resigned in November, 1838. Afterwards, on the 27th of that month, application was made to the Court for the appointment of Thomas Gailliard as trustee, who, on the 30th was appointed to act until the ensuing term of the Circuit Court, when the ap Colburn, et al. v. Broughton, et al pointment might be conrmed or otherwise. Previous to the sitting of that court, the legislature divested it of jurisdiction, and the appointment being temporary, expired, leaving Mrs. Colburn without a legal trustee, to manage the trust property. The slaves before mentioned had increased by births, and Sukey, one of them, was exchanged for another named Peter, in virtue of the power in the deeds. Gailliard, as trustee, purchased at a sale by the sheriff, by virtue of execution against Colburn, a barouche and two horses, with trust money belonging to Mrs. Colburn.* The father of Colburn, in January, 1839, addressed a letter to the trustee, Gailliard, inclosing a note upon his son for $1600, dated Sept. 11, 1820, directing the trustee to receive any kind of property in part payment, expressing a wish to give the same to Mrs. Colburn and her children, in trust. Colburn, in part satisfaction of this demand transferred to Gailliard, a negro slave named Rachel, at $300, which sum was credited on the note. At the same time, one Nye was indebted to Colburn by note, and it was proposed by the latter to assign it to Gailliard, on receiving credit upon his note. This was agreed to and Gailliard took from Nye a conveyance of certain lots to the elder Colburn, who subsequently conveyed them to Gailliard, as trustee for Mrs. Colburn and her children. In March of the same year, Colburn also sold to Gailliard his household and kitchen furniture, to the amount of $375, with trust monies, as the bill alledges; but the receipt exhibited, states the payment to be in receipt of collections for negro hire, as per account rendered. In March, 1834, Coolidge purchased from one Ballard certain slaves, to wit: Susy, about 35 years old; Leonidas, about 12; Polly, about 10; Franky, about 6; Kelly, about 35; Richmond, about 11; and Leah, about 8. Coolidge was then in the receipt of the income of the trust estate, and never had rendered any account. Previous to the purchase, he oftentimes declared he wished these slaves for Mrs. Colburn and her children, and after the purchase for the sum of $2,750, and three horses, declared they were bought and paid for, for the benefit of her and her children, and the conveyance was to her in his name, as trustee for her and her children. |