CHILTON, C. J.
It will better comport with that brevity which it is desirable to maintain injudicial opinions, to laydown the rules of law applicable to this case, by which the numerous charges must be tested, than to proceed with an analysis and examination of each charge separately.
1. The facts are briefly these: Wadsworth, the defendant’s intestate, owning the slaves now sued for, consented that Newman, the sheriff of Montgomery County, might sell them, without levy or advertisement, under an execution in his hands in favor of John • & Walter Lockwood, for $3,517 69 damages, besides cost, and ten per cent, damages awarded upon the affirmance of the judgment in this court; which execution was against Lewis W.'Pond, William A. Campbell, Henry Furniss and J. P. Figh. The proof conduced to show, that Wadsworth ty&s.a party to the demand on which the judgment was rendered, [539]*539but was the surety of said L. W. Pond. The slaves, owned as above stated by Wadsworth, were, by the consent of himself and Pond, sold by Newman, and Figh, at the request of said Pond, bought them for him (Pond), but paid no money, until some time thereafter. Immediately after they were bid off by Figh, he asked Pond what he should do with said slaves, and Pond told him to send them back to where they came from.— Thereupon, Figh immediately sent them to the residence of Wadsworth, at which place Pond was then boarding, and where he remained for some years, and until about a year before his death, when he boarded elsewhere. The negroes remained in the possession of Wadsworth, and one of them was hired out by the sheriff who sold them, subsequently to the sale; he acting as the agent of Mrs. Wadsworth, to whom he paid the money for the hire.
It appears that, at the time of the sale, both Pond and Wadsworth were insolvent, and executions against them had been returned tc no property found” &c. It also appears, that the execution, under which the slaves were sold, was issued on the 8th November, 1847 ; the bill of sale by the sheriff to Figh is dated on the next day (9th November) ; and the execution is credited with the receipt of $>8,418, besides costs and sheriff’s commissions, on the 10th of the same month. Figh, who had purchased or bid off the slaves for Pond, received the money from the latter, and paid it over to the sheriff, and never executed any instrument in writing to Pond; but after his (Pond’s) death, Figh executed a bill of sale to the plaintiff in error, who was his administrator with the will annexed, purporting to be for one dollar, and to convey the slaves to him in trust for L. W. Pond’s estate. Before this last named bill of sale, which bears date in January, 1851, Wadsworth claimed the slaves, being then in the possession of them, as his own property.
This is the substance of the testimony, which was submitted on both sides.
If it be conceded, that Pond was the principal debtor in the execution, to satisfy which these slaves were sold, and Wads-worth was but his surety upon the original demand, and no party to the execution, it was the duty of Pond to indemnify and protect Wadsworth against his liability; and if the latter consented to allow his slaves to be sold, by an informal sale [540]*540under the execution, as the property of Pond, and Figh purchased them at the request of, and for Pond, who sent them back to Wadsworth, from whose possession they came, Pond would not be in a condition to invoke the doctrine of estoppel to defeat Wadsworth’s title. He has given nothing for the slaves, has parted with nothing, and suffered no detriment by reason of Wadsworth’s consent to their sale as his property. True, he has paid the debt; but this he was bound to do, and the mere ceremony of having the slaves sold, and bidding them off and returning them back to Wadsworth’s, could not invest him with title. Estoppels are not favored in law, as they “ conclude a party by his own act or acceptance, to say the truth” (Co. Litt. 352 a.); and with respect to estoppels in pais, they should never be allowed to preclude the investigation and ascertainment of truth, unless the party insisting upon them can do so in good faith, and unless the affirmance of the untruth of the matter set up as an estoppel would work wrong or injustice to the party whose conduct was influenced by it.
It is very clear, that had the facts been ascertained, as the evidence conduced to show them, the doctrine of estoppel could not have precluded Wadsworth’s administrator from setting up his title. Wadsworth’s slaves, by his gratuitous consent, were sold as the property of Pond. We may concede that, had a stranger have purchased, trusting to such consent, and have parted with his money on the faith of it, his title would have been good; otherwise, he might be greatly injured and defrauded. But Pond buys them, through his agent, Figh. He buys, as his bill of sale purports to convey, all the interest which he (Pond) had in them before the sale. What interest did he then have 1 None; then he bought none. The property remained precisely in the same condition after as before the sale.' It would be a strange application of the doctrine of estoppel, to hold that, because a surety consented that his property might, for the purpose of a sale under execution, be treated as the property of the principal debtor, such principal might buy it in, and hold it, as having purchased his own property, the consideration for it being the payment of his own debt, which justice and good faith to the surety required he should have paid, thus avoiding a sale, and releasing the surety. The bare statement of the proposition shows, that to allow the principal to set up [541]*541such consent as an estoppel, would operate a fraud upon the surety, divesting him of the title to his slaves, which it was the duty of the principal to protect and maintain by the payment of the debt, and vesting that title in the defaulting principal, without the payment of one cent, or the doing of any act which the law, without such sale, did not require- There is no such potency in the mere ceremony of a sale by the sheriff. Nor does the fact that Figh bid off the slaves make any difference. He was the agent of Pond, the mere conduit, as was doubtless supposed, through whom the title could more securely pass.— So far as he, Figh, was concerned, the slaves vested in Pond, when he sent them to Wadsworth’s by Pond’s direction ; this was a delivery to Pond, and they were no longer at the risk of Figh. The bill of sale which he executed, in 1851, to the administrator of Pond, was but an attempt to furnish written evidence of a transaction consummated long before; for, had the slaves died after they were delivered by sending them to Wadsworth’s, it is too clear to admit of doubt that the loss would not have fallen on Figh. The title of Pond derives no additional strength by reason of its passing through Figh, who, as we have said, had no interest in the slaves, except as a mere naked trustee for Pond, after the amount which he bid was paid by the latter.
2. Having considered the law of the case, as applicable to the facts hypothetically stated as above, as it is insisted by the counsel that the proof justifies the presentation of it in another aspect, without expressing any opinion upon questions of fact, we proceed to consider the case upon the hypothesis for which they contend.
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CHILTON, C. J.
It will better comport with that brevity which it is desirable to maintain injudicial opinions, to laydown the rules of law applicable to this case, by which the numerous charges must be tested, than to proceed with an analysis and examination of each charge separately.
1. The facts are briefly these: Wadsworth, the defendant’s intestate, owning the slaves now sued for, consented that Newman, the sheriff of Montgomery County, might sell them, without levy or advertisement, under an execution in his hands in favor of John • & Walter Lockwood, for $3,517 69 damages, besides cost, and ten per cent, damages awarded upon the affirmance of the judgment in this court; which execution was against Lewis W.'Pond, William A. Campbell, Henry Furniss and J. P. Figh. The proof conduced to show, that Wadsworth ty&s.a party to the demand on which the judgment was rendered, [539]*539but was the surety of said L. W. Pond. The slaves, owned as above stated by Wadsworth, were, by the consent of himself and Pond, sold by Newman, and Figh, at the request of said Pond, bought them for him (Pond), but paid no money, until some time thereafter. Immediately after they were bid off by Figh, he asked Pond what he should do with said slaves, and Pond told him to send them back to where they came from.— Thereupon, Figh immediately sent them to the residence of Wadsworth, at which place Pond was then boarding, and where he remained for some years, and until about a year before his death, when he boarded elsewhere. The negroes remained in the possession of Wadsworth, and one of them was hired out by the sheriff who sold them, subsequently to the sale; he acting as the agent of Mrs. Wadsworth, to whom he paid the money for the hire.
It appears that, at the time of the sale, both Pond and Wadsworth were insolvent, and executions against them had been returned tc no property found” &c. It also appears, that the execution, under which the slaves were sold, was issued on the 8th November, 1847 ; the bill of sale by the sheriff to Figh is dated on the next day (9th November) ; and the execution is credited with the receipt of $>8,418, besides costs and sheriff’s commissions, on the 10th of the same month. Figh, who had purchased or bid off the slaves for Pond, received the money from the latter, and paid it over to the sheriff, and never executed any instrument in writing to Pond; but after his (Pond’s) death, Figh executed a bill of sale to the plaintiff in error, who was his administrator with the will annexed, purporting to be for one dollar, and to convey the slaves to him in trust for L. W. Pond’s estate. Before this last named bill of sale, which bears date in January, 1851, Wadsworth claimed the slaves, being then in the possession of them, as his own property.
This is the substance of the testimony, which was submitted on both sides.
If it be conceded, that Pond was the principal debtor in the execution, to satisfy which these slaves were sold, and Wads-worth was but his surety upon the original demand, and no party to the execution, it was the duty of Pond to indemnify and protect Wadsworth against his liability; and if the latter consented to allow his slaves to be sold, by an informal sale [540]*540under the execution, as the property of Pond, and Figh purchased them at the request of, and for Pond, who sent them back to Wadsworth, from whose possession they came, Pond would not be in a condition to invoke the doctrine of estoppel to defeat Wadsworth’s title. He has given nothing for the slaves, has parted with nothing, and suffered no detriment by reason of Wadsworth’s consent to their sale as his property. True, he has paid the debt; but this he was bound to do, and the mere ceremony of having the slaves sold, and bidding them off and returning them back to Wadsworth’s, could not invest him with title. Estoppels are not favored in law, as they “ conclude a party by his own act or acceptance, to say the truth” (Co. Litt. 352 a.); and with respect to estoppels in pais, they should never be allowed to preclude the investigation and ascertainment of truth, unless the party insisting upon them can do so in good faith, and unless the affirmance of the untruth of the matter set up as an estoppel would work wrong or injustice to the party whose conduct was influenced by it.
It is very clear, that had the facts been ascertained, as the evidence conduced to show them, the doctrine of estoppel could not have precluded Wadsworth’s administrator from setting up his title. Wadsworth’s slaves, by his gratuitous consent, were sold as the property of Pond. We may concede that, had a stranger have purchased, trusting to such consent, and have parted with his money on the faith of it, his title would have been good; otherwise, he might be greatly injured and defrauded. But Pond buys them, through his agent, Figh. He buys, as his bill of sale purports to convey, all the interest which he (Pond) had in them before the sale. What interest did he then have 1 None; then he bought none. The property remained precisely in the same condition after as before the sale.' It would be a strange application of the doctrine of estoppel, to hold that, because a surety consented that his property might, for the purpose of a sale under execution, be treated as the property of the principal debtor, such principal might buy it in, and hold it, as having purchased his own property, the consideration for it being the payment of his own debt, which justice and good faith to the surety required he should have paid, thus avoiding a sale, and releasing the surety. The bare statement of the proposition shows, that to allow the principal to set up [541]*541such consent as an estoppel, would operate a fraud upon the surety, divesting him of the title to his slaves, which it was the duty of the principal to protect and maintain by the payment of the debt, and vesting that title in the defaulting principal, without the payment of one cent, or the doing of any act which the law, without such sale, did not require- There is no such potency in the mere ceremony of a sale by the sheriff. Nor does the fact that Figh bid off the slaves make any difference. He was the agent of Pond, the mere conduit, as was doubtless supposed, through whom the title could more securely pass.— So far as he, Figh, was concerned, the slaves vested in Pond, when he sent them to Wadsworth’s by Pond’s direction ; this was a delivery to Pond, and they were no longer at the risk of Figh. The bill of sale which he executed, in 1851, to the administrator of Pond, was but an attempt to furnish written evidence of a transaction consummated long before; for, had the slaves died after they were delivered by sending them to Wadsworth’s, it is too clear to admit of doubt that the loss would not have fallen on Figh. The title of Pond derives no additional strength by reason of its passing through Figh, who, as we have said, had no interest in the slaves, except as a mere naked trustee for Pond, after the amount which he bid was paid by the latter.
2. Having considered the law of the case, as applicable to the facts hypothetically stated as above, as it is insisted by the counsel that the proof justifies the presentation of it in another aspect, without expressing any opinion upon questions of fact, we proceed to consider the case upon the hypothesis for which they contend.
It is argued, that, Wadsworth being insolvent as well as Pond, the object of both parties in consenting to the sale by Newman and the purchase by Figh, was, to place the slaves out of the reach of W adsworth’s creditors, and thus to defraud them.
If the proof should sustain this hypothesis, then it is clear that Figh could have held the slaves, both as against Wads-worth and Pond. The law holds such transactions, as to creditors and bona fide purchasers for a valuable consideration, to be void ; but as between the parties themselves, such sales are valid and binding. It follows, if Figh had a good title as [542]*542against Wadsworth, he had the right to vest that title in Pond ; and his title, as against Wadsworth, was good and available, if his purchase was made under an agreement with Wadsworth and Pond, or with Wadsworth alone, that he should bid them off and hold them, or vest the title by transfer in Pond, to screen the property from liability to Wadsworth’s debts.
If, on the other hand, Figh did not in any way participate in the transaction with any fraudulent design, and bought the property in good faith, as the agent for Pond; yet, if it was agreed between Wadsworth and Pond, that the property should pass through the ceremony of a sale under execution as Pond’s property, and should be bought in by Pond, either personally, or through his agent, and held by him or his agent, in order to delay, hinder or defraud the creditors of Wadsworth, in such case, the title of Pond would avail as against Wadsworth, notjwithstanding he was the principal in the debt on which the judgment and execution were founded.
Neither would the fact that Wadsworth afterwards came to the possession of the slaves, in the absence of any proof of a contract or agreement by which he acquired them from Pond, prevent a recovery by the latter : that is to say, the maxim, 11 in pari delicto, potior est conditio possidentis^ has no application to such case ; for, as between the parties, the law pretermits the fraud, or, if it regards it, does so for the purpose of holding the fraudulent vendor to his sale, thus punishing his fraud by the forfeiture, as it were, of his property so fraudulently disposed of.
3. In regard to the validity of the bill of sale from Figh to the plaintiff in error, it is only necessary to remark, that if Figh bought the slaves as the agent of Pond, and called upon him to know what he should do with them, and was directed to send them to Wadsworth’s, where Pond also lived, and this was intended as a delivery to Pond, the title would, under the second aspect of the facts in which we have considered this case, have vested in Pond; and Figh, having parted with his title by this verbal delivery, could have conveyed none to the administrator by his bill of sale in 1851. But, conceding that the title did not pass by the verbal arrangement, and that it was understood between the parties that the transfer should not be consummated until a bill of sale was executed, still the instrument found in [543]*543the record does not vest the legal title in the administrator as such, although it purports to do so. He takes the property, if at all, as an individual, while he has the equitable right to it as administrator. He is the representative of the deceased, in respect “ of the goods and chattels, rights and credits which were of the deceased at the time of his death.” Such rights as he acquires subsequently to that period, he takes as an individual, but, it may be, as a trustee for the estate which he represents.
It is proper to remark, however, that the fact of accepting a bill of sale by Martin Pond, the administrator, of Figh, does not preclude the administrator from deducing a title through his testator by virtue of a consummated sale by Figh to him.— Estoppels must be mutual; and as the administratrix of Wads-worth is not bound by the bill of sale, so she can take no advantage of it.
The law, as given in charge by the court, does not accord with the views we have above expressed.
The first charge given, excludes from the consideration of the jury the evidence as to whether Figh made a delivery and consummated transfer of the slaves to Pond immediately after his purchase, as some of the proof conduced to show. Upon the hypothesis that the sale was made to delay and defraud creditors, and that Figh bought at Pond’s request, and paid for the slaves with Pond’s money, the charge left the title in Figh, unless it was divested out of him by the bill of sale to the administrator of Pond.. This was erroneous, as restricting the plaintiff’s right of recovery to a partial view of the facts, and rendering it unnecessary for the jury to consider other proof tending to show that the title had passed out of Figh, independent of the bill of sale to Martin Pond.
We forbear, however, a further comment on the several charges, as the principles wo have stated will be sufficient to guide the primary court in the further progress of the cause.
Let the judgment be reversed, and the cause remanded.
Goldth waits, J., not sitting.