Ellett, J.,
delivered the opinion of the court.
The defendants in error brought an action of debt against the plaintiffs in error, in March, 1886, founded on a bill single, dated December 16, 1859, for $3,890.50, payable twelve months after date.
The defendants pleaded two pleas.
1. As to $1,300, parcel of the sum demanded, payment before suit brought, and
2. As to the residue of the sum demanded, that part of the consideration of said bill single was the purchase of certain slaves of the estate of Brandon, for the price of $2,670, sold by the plaintiffs below as executors as aforesaid, on the 12th of December, 1859, under a supposed order of sale made byAhe Probate Court of Monroe county, at November term, 1859, for the purpose of an equal division of such slaves among the parties interested therein. That a number of the legatees of said testator interested in said slaves were not summoned or lawfully notified of said proceedings, and did not appear thereto; wherefore the order of sale, and the sale itself, were void, and did not divest the title of the estate of Brandon to the slaves. That the slaves have become emancipated by the act of-the government of the United States, and are free persons, and as such beyond the power of defendants to return, or offer to return, the same to the plaintiffs. That the defendants did not discover the defect of title until after the emancipation of'the slaves, and during the term at which the plea was filed, and so they say that the consideration of said bill single has failed as to the said sum of $2,670.
To this plea of failure of consideration the plaintiffs below demurred, and the court sustained the demurrer, and this is the only error complained of.
[380]*380The grounds relied on as causes of demurrer to the plea, are, mainly, that the defendants do not allege or show any eviction or disturbance of their possession by superior title; that they did not return, or offer to return, the slaves in a reasonable time; that the excuse set out for not returning the slaves is insufficient ; and that the defendants did not offer to pay for the use and services of the slaves while in their possession, from the time of sale in December, 1859, to their emancipation.
It has been settled by repeated decisions of this court, that a sale of slaves, by an administrator or executor, at private sale, or in any manner not authorized by law, was void, and that the slaves might he recovered by the distributees, or legatees, from the persons holding under such sales. Cable v. Martin, 1 How. 556; Baines v. McGee, 1 S. & M. 208; Worten v. Howard, 2 S. & M. 527; Hull v. Clark, 14 S. & M. 187. These were all 'cases of suit, at law or in equity, by the distributees or legatees, to recover the property wrongfully sold. The first case we find in which the question was made as to the validity of a sale of personal property, where the objection was made by the purchaser, that the order of sale of the property for the purpose of equal division among the heirs, was given by the court, without all the parties interested having been summoned, as required by the statute, is that of Joslin v. Caughlin, 26 Miss. 134. In that case the purchaser of the property at the sale, set up these facts as a defence against the collection of the purchase-money, and the court said that the decree being void for want of notice to the parlies, no title passed by the sale, “ and hence the consideration of the note had entirely failed.” It is evident that the attention of the court was confined to the question of the invalidity of the order of sale, and was not directed very strongly to the effect which such naked invalidity, standing 'alone, was entitled to have upon the rights of the parties. Accordingly, when the same case came again before the court, in the following year, on a replication stating that the purchaser still retained the quiet possession of the slave, it was promptly decided that, without having made an offer to return the slave to the plaintiff, the defendants could not resist the payment of the note, notwith[381]*381standing the invalidity of the order of sale. 27 Miss. 852. The case having been again sent back, the defendants rejoined to the replication, that the slave died before the suit was commenced; and the sufficiency of this rejoinder being brought before this court, it was held to be too vague and uncertain to constitute a defence. The defendants, it is said, “were bound either to return the slave in a reasonable time, or to show a good excuse for not doing so.” Joslin v. Caughlin et al., 30 Miss. 502. The case was remanded, and then the defendants amended their answer, by alleging that the slave died before the obligation became due, and before they discovered the illegality of the sale, and therefore could not be returned. To this the plaintiff replied, that the slave came to her death by the ill-treatment, neglect, and violence of the defendants. A demurrer was sustained to this replication, and the case was brought to this court for the fourth time. It was then held that the answer offered no sufficient excuse for the failure to return the slave; and that, upon the pleadings, it appeared that the plaintiff had lost the property by the unjustifiable conduct of the purchaser. “ He was bound, said the court, t'o restore the plaintiff in his rights, before he could set up the defence of failure of title; and he can certainly take no benefit from his failure to do so, when that failure has arisen from an additional wrong.” 32 Miss. 104. We have quoted so much from the various decisions in that case, because they contain all that the court has said, at any time, in reference to excuses for not returning the property, and it is clear that the law on that point was not, in that case, made the subject of particular examination or discussion.
In the meantime, in the case of Bohannon v. Madison, 31 Miss. 348, the rule had been laid down more broadly. It is there said : “ By their purchase they acquired possession of the slaves; and if the sale was void they should have instantly returned the property to the executor.” “Parties who set up the illegal action of the executor or administrator, as a defence for not performing their contract, ought either to return, or offer to return, the property.” And again, in Washington v. McCaughan, 34 Miss. 304, it was said: “ The rule is now firmly [382]*382settled in this court, in regard to a sale of personal estate by an administrator, that the purchaser retaining possession, and not offering to restore the property to the administrator, shall not be permitted to resist the payment of the purchase-money on the ground that the sale was invalid.”
The general rule of law is, that upon a sale of personal property, the law implies a warranty of title; but it is equally well settled that, in the case of sales by executors, administrators, and other trustees, there is no such implied warranty, and that the maxim, cmeat emptor, applies in such cases, both in regard to the title and soundness or quality of the property sold. And where the vendee has protected himself by covenants of warranty, and is put in possession, he cannot defend himself against the payment of the purchase-money without a previous eviction, unless in cases where there has been fraud. This rule applies as well to personal as to real property, and where there is no warranty, express or implied, and no fraud, the purchaser is without remedy.
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Ellett, J.,
delivered the opinion of the court.
The defendants in error brought an action of debt against the plaintiffs in error, in March, 1886, founded on a bill single, dated December 16, 1859, for $3,890.50, payable twelve months after date.
The defendants pleaded two pleas.
1. As to $1,300, parcel of the sum demanded, payment before suit brought, and
2. As to the residue of the sum demanded, that part of the consideration of said bill single was the purchase of certain slaves of the estate of Brandon, for the price of $2,670, sold by the plaintiffs below as executors as aforesaid, on the 12th of December, 1859, under a supposed order of sale made byAhe Probate Court of Monroe county, at November term, 1859, for the purpose of an equal division of such slaves among the parties interested therein. That a number of the legatees of said testator interested in said slaves were not summoned or lawfully notified of said proceedings, and did not appear thereto; wherefore the order of sale, and the sale itself, were void, and did not divest the title of the estate of Brandon to the slaves. That the slaves have become emancipated by the act of-the government of the United States, and are free persons, and as such beyond the power of defendants to return, or offer to return, the same to the plaintiffs. That the defendants did not discover the defect of title until after the emancipation of'the slaves, and during the term at which the plea was filed, and so they say that the consideration of said bill single has failed as to the said sum of $2,670.
To this plea of failure of consideration the plaintiffs below demurred, and the court sustained the demurrer, and this is the only error complained of.
[380]*380The grounds relied on as causes of demurrer to the plea, are, mainly, that the defendants do not allege or show any eviction or disturbance of their possession by superior title; that they did not return, or offer to return, the slaves in a reasonable time; that the excuse set out for not returning the slaves is insufficient ; and that the defendants did not offer to pay for the use and services of the slaves while in their possession, from the time of sale in December, 1859, to their emancipation.
It has been settled by repeated decisions of this court, that a sale of slaves, by an administrator or executor, at private sale, or in any manner not authorized by law, was void, and that the slaves might he recovered by the distributees, or legatees, from the persons holding under such sales. Cable v. Martin, 1 How. 556; Baines v. McGee, 1 S. & M. 208; Worten v. Howard, 2 S. & M. 527; Hull v. Clark, 14 S. & M. 187. These were all 'cases of suit, at law or in equity, by the distributees or legatees, to recover the property wrongfully sold. The first case we find in which the question was made as to the validity of a sale of personal property, where the objection was made by the purchaser, that the order of sale of the property for the purpose of equal division among the heirs, was given by the court, without all the parties interested having been summoned, as required by the statute, is that of Joslin v. Caughlin, 26 Miss. 134. In that case the purchaser of the property at the sale, set up these facts as a defence against the collection of the purchase-money, and the court said that the decree being void for want of notice to the parlies, no title passed by the sale, “ and hence the consideration of the note had entirely failed.” It is evident that the attention of the court was confined to the question of the invalidity of the order of sale, and was not directed very strongly to the effect which such naked invalidity, standing 'alone, was entitled to have upon the rights of the parties. Accordingly, when the same case came again before the court, in the following year, on a replication stating that the purchaser still retained the quiet possession of the slave, it was promptly decided that, without having made an offer to return the slave to the plaintiff, the defendants could not resist the payment of the note, notwith[381]*381standing the invalidity of the order of sale. 27 Miss. 852. The case having been again sent back, the defendants rejoined to the replication, that the slave died before the suit was commenced; and the sufficiency of this rejoinder being brought before this court, it was held to be too vague and uncertain to constitute a defence. The defendants, it is said, “were bound either to return the slave in a reasonable time, or to show a good excuse for not doing so.” Joslin v. Caughlin et al., 30 Miss. 502. The case was remanded, and then the defendants amended their answer, by alleging that the slave died before the obligation became due, and before they discovered the illegality of the sale, and therefore could not be returned. To this the plaintiff replied, that the slave came to her death by the ill-treatment, neglect, and violence of the defendants. A demurrer was sustained to this replication, and the case was brought to this court for the fourth time. It was then held that the answer offered no sufficient excuse for the failure to return the slave; and that, upon the pleadings, it appeared that the plaintiff had lost the property by the unjustifiable conduct of the purchaser. “ He was bound, said the court, t'o restore the plaintiff in his rights, before he could set up the defence of failure of title; and he can certainly take no benefit from his failure to do so, when that failure has arisen from an additional wrong.” 32 Miss. 104. We have quoted so much from the various decisions in that case, because they contain all that the court has said, at any time, in reference to excuses for not returning the property, and it is clear that the law on that point was not, in that case, made the subject of particular examination or discussion.
In the meantime, in the case of Bohannon v. Madison, 31 Miss. 348, the rule had been laid down more broadly. It is there said : “ By their purchase they acquired possession of the slaves; and if the sale was void they should have instantly returned the property to the executor.” “Parties who set up the illegal action of the executor or administrator, as a defence for not performing their contract, ought either to return, or offer to return, the property.” And again, in Washington v. McCaughan, 34 Miss. 304, it was said: “ The rule is now firmly [382]*382settled in this court, in regard to a sale of personal estate by an administrator, that the purchaser retaining possession, and not offering to restore the property to the administrator, shall not be permitted to resist the payment of the purchase-money on the ground that the sale was invalid.”
The general rule of law is, that upon a sale of personal property, the law implies a warranty of title; but it is equally well settled that, in the case of sales by executors, administrators, and other trustees, there is no such implied warranty, and that the maxim, cmeat emptor, applies in such cases, both in regard to the title and soundness or quality of the property sold. And where the vendee has protected himself by covenants of warranty, and is put in possession, he cannot defend himself against the payment of the purchase-money without a previous eviction, unless in cases where there has been fraud. This rule applies as well to personal as to real property, and where there is no warranty, express or implied, and no fraud, the purchaser is without remedy.
But, in the case of sales of personal property by an executor or administrator, under a void order of the Probate Court, the decisions above quoted give the purchaser a remedy for the failure of title, although there is no warranty, no eviction, and no fraud. This relief is afforded as in cases where there is a warranty of title or soundness, and the purchaser is desirous to rescind the contract m toto, on the ground of some defect existing in the title or quality of the property. A purchaser under such circumstances may proceed in two modes: he may keep the property, and defend the action by showing a partial failure of consideration, and a breach of the warranty to that extent; or ho may rescind the contract, by returning the property. If the complaint be of the want of title, he must show a previous eviction, or he must return the property. In this case, there being no warranty, the decisions alluded to give the purchaser the right to defend himself against the payment of the purchase-money, by returning, or offering to return, the property, within a reasonable time after discovering the defect of title, and thereupon rescinding the contract of sale. And the question [383]*383presented on this record is, whether, in such cases, any excuse will be admitted for not returning the property, and if so, whether the excuse stated in the plea is sufficient.
The rule on this subject, appears to be stated in the books without any qualification. Thus, “ if the purchaser elect to treat the sale as a nullity, he must forthwith return, or tender back, the subject-matter of the sale, or give notice to the vendor to take it back; for if the purchaser keeps it an unreasonable time, or uses it, and exercises the dominion of an owner over it, he cannot afterwards treat the sale as a void sale, and recover the purchase-money on the ground of failure of consideration. Addison on Con. 273. And he must put the other party in statu quo, by an entire surrender of possession, .and of everything he has obtained under the contract. Voorhees v. Earl, 2 Hill, N. Y. 288; 1 Denio, 69. And if one party have already received benefit from the contract, he cannot rescind it -wholly, but is put to his action for damages. Story on Con. 1080, § 977. A contract cannot in general be rescinded m toto, by one of the parties, where both of them cannot be placed in the identical situation which they occupied when the contract was made. Ohitty on Con. 815, 689, 691, 485.
We do not find the doctrine anywhere stated that the purchaser can, in any case, or under any circumstances, rescind the contract, without a return of the property or an offer to return it. The very idea of rescinding a contract implies that what has been parted with shall be restored on both sides. That one party shall be released from his part of the agreeement, -and that he shall be excused from making the other party whole, does not seem agreeable to reason or justice. If, on the contrary, a a party, by any cause, becomes unable to return the property before he discovers the defect of title, it would seem more equitable that he should be left to his recourse on his covenants, and, if he has not protected himself by covenants, that he should be without remedy.
In the present case, the purchaser had the possession and use of the property for nearly six years, and until the title wras destroyed by act of the government. He had all the beneficial [384]*384enjoyment of the property which he could possibly have had if the title under the executor’s sale had been perfect. To allow him now to rescind the sale would be to permit him to retain all the benefit, profit, and advantage of the labor of the slaves for nearly six years without making any compensation. Such a conclusion would be full of injustice to those interested in the estate. The means always existed, near at hand, to discover the true state of the title, and a very little diligence would at any moment have disclosed the defect. If men choose to make large investments of money, without taking any of the ordinary precautions to assure themselves that they are obtaining a good title, courts ought not to lend too indulgent an ear to their complaints, even when they come freshly after the transaction for relief. JBut when parties have slept on their rights for over six years; when the statute of limitations would itself have made their title perfect, by cutting off all remedy from those supposed to possess the superior title, they present themselves with no claim to the favorable consideration of a court of justice. The rule of diligence ought to be the more stringent where the means of information are of record in the county, and where the title is deduced under the judgment or decree of a court easy of access, and open at all times for examination. Indeed it is a familiar general principle, that a party deriving title under or through a judicial proceeding, is charged with notice of whatever appears by the record. It is not necessary to apply this principle to the present case, for, without it, the long delay of the parties would be sufficient to preclude them from setting up the defence.
~We think, therefore, there was no error in sustaining the demurrer to the second plea, and as this is the only error assigned, the judgment will be affirmed.