STARK vs. HENDERSON

STARK vs. HENDERSON. [bill in EQurrr for rescission of contract.] 1. Rescission of contrató on-account of misrepresentation by vendor. — A false representation by the vendor, in making a public sale of land as administrator without an order of court, to the effect that the sale was authorized by the decedent’s will, entitles the purchaser, who was thereby misled and induced to buy, to a rescission of the contract in equity. 2. Consideration of note. — A note given for the purchase-money of land, at a public sale made by an administrator, without an order of court, under the erroneous supposition that the will conferred on him authority to sell, is without consideration; and if an assignee of such note, for the purpose of avoiding that defense, induces the maker to substitute a new note, the substituted note is also without consideration. Appeal from tbe Chancery Court of Tallapoosa. Heard before the Hon. James B. Clark. This bill was filed by 'William G. Stark and Joseph C. Rawls, against Henry Henderson and others ; seeking the rescission of a contract for the purchase of certain lands, and an injunction of a judgment at law on the note for the purchase-money. The lands were sold, at public auction, by Green W. Hill, as administrator with the will annexed of John 0. Webb, deceased, under the erroneous supposition that the will authorized him to sell; and were purchased by said Stark, who was induced to buy by the misrepresentations of said Hill as to his authority to sell. A note for the purchase-money was given by Stark, with R. Lanier and L>. Neal as sureties, on which suit was af-terwards brought, in the name of said Hill, for the use of said Henry Henderson. This action w7as settled by Stark executing a new note, with other sureties, payable to Henderson; and the bill alleged that, at the time of the execution of this new note, Stark still believed that he had acquired a good title by his purchase, and that Henderson was cognizant of the want of consideration. Henderson, in his answer, denied all knowledge on his part of the consideration of the original note, but admitted that he had “understood from some of the parties that the consideration was land”; and alleged that the new note, on which he had recovered a judgment in his own name, was given in consideration of his extension of the day of payment of the first note. The testimony, so far as is material to the points here decided, is stated in the opinion of the court. On final hearing, on pleadings and proof, the chancellor dismissed the bill; and his decree is now assigned as error. Jas. E. Belser, and Wm. H. Barnes, for appellant. Geo. W. GuNN, and J. T. Leetwich, contra. [MAJORITY — STONE, J.] STONE, J. In the case of Lanier v. Hill, 25 Ala. 554, this court passed upon the identical contract presented by this record, and held, that the purchaser was entitled to relief in equity. That decision is decisive of this case, unless the giving of the new note places Henderson’s rights on a firmer footing. It is contended for Henderson, that in ignorance of any defense to tbe first note, be did, at tbe instance of Stark and Bawls, dismiss bis first suit, and extend tbe debt by taking a new note; that be thus surrendered bis right to take judgment in tbe suit then pending, and, in effect, gave indulgence for two years longer. We need not now decide, what would be tbe effect of this view of tbe case, if sustained by tbe record. See Bullock v. Ogburn, 13 Ala. 346 ; Holt v. Robinson, 21 Ala. 106; Finn & Dulany v. Barclay, 15 Ala. 626. Tbe appellee stands in no such attitude. Notwithstanding tbe denials in Henderson’s answer, tbe testimony of tbe witnesses Q-resham, Neal, Lanier, and Slaughter, forces upon us tbe conclusion, not only that Henderson knew of tbe defense to tbe first note, but that, in fact, be took tbe new note in tbe hope of thereby cutting off that defense. Although these witnesses depose only to conversations and admissions of Henderson ; generally tbe weakest of evidence; yet, with most of them, there were circumstances calculated to impress tbe memory. We think they fully overturn tbe answer. Hill, as administrator with tbe will annexed, bad no authority tó make sale of tbe land. Tbe first note was, therefore, without consideration. Tbe artifice by which Henderson obtained tbe second note, cannot place Mm in a better position than that occupied by Hill. — See Finn & Dula y v. Barclay, supra. Tbe decree of tbe chancellor is reversed, and tbe cause remanded for further proceedings in accordance with this opinion. Bice, C. J., not sitting.