Appeal from the Circuit Court of Hale.-

Tried before Hon. John Moore.

The facts upon which the case turns are' sufficiently set out in the opinion.

T-he main question raised by the charges asked on behalf of the plaintiff, is, whether an administrator who sell's land under the order of the probate court can make an agreement to receive Confederate money in payment, which will- be available to the defendants ?

The court authorized the sale of the property upon a credit of twelve months. Confederate notes were at that time, and it was evident would continue to be for a long while then to come, the common currency and only circulating medium of the country. All property was sold for and paid in that kind of money. It stood as the measure of the value of property whenever it was sold. There was no other means whereby to estimate the value of property. The sale, though made under the orders of the court, was not made, and was not expected or intended to be made, upon terms different from those upon which sales were generally made. It could not be expected that a purchaser would bid the value of the land in depreciated currency, and pay the amount thus bid in good money. The authority on behalf of the administrator to agree to take Confederate money might be well implied. Under no other circumstances could a sale have been made for the price bid.

But the cases are numerous to show that an administrator can enter into binding stipulations not apparently authorized by the order of sale. He may warrant the soundness of the property sold, and in such case a breach of warranty would enable the purchaser to defend an action on the note for the purchase-money. — Stoudenmire v. Williamson, 29 Ala. 558 ; Pov) v. Bradley, in manuscript

He may commit a fraud upon the purchaser, and in such case the purchaser cah set up the fraud as a defense to the suit upon the note given for the purchase-money. — Atwood's Adm'r v. Wright et al., 29 Ala. 351; Rice v. Richardson, 3 Ala. 428.

In these cases the administrator was not authorized by the court to warrant the soundness of the property in the •One instance, or to perpetrate a fraud upon the purchaser by misrepresentation in the other,‘ yet, in either case, his acts were held to be binding upon the estate and available to the purchaser. These cases clearly lay down and settle the principle in controversy. The land was sold at its value in Confederate notes, (which was several times its value in good money,) to be paid for in the same kind of currency ; to hold the purchaser bound to pay the amount in good money, would be a gross fraud upon him. And however innocent the court or the distributees might be in the inception of the contract, yet if they attempted to make the purchaser pay the entire amount in good money, they would be participators in the fraud.

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