4. Rights of Purchasers. As already stated, the purchaser obtains, where the sale is valid, whatever title the execution defendant had. He bids with this understanding, and has a right to presume that such title, or, in case of an administrator's or a guardian's sale, that of the decedent or ward, will be conveyed to him. If, therefore, the sale should prove to be void, or if, from any cause, he cannot obtain such title, which was the consideration for his bid, it cannot be enforced against him.1 Where the purchaser has already paid the purchase money before discovering the sale to be void, there is much difference of opinion as to his remedy, if any he has. If the plaintiff be the purchaser he may, upon failure of the title in such case, obtain a new execution. 2 Where the officer is in fault and the title fails because of his misconduct, he will be liable to the purchaser in an action of trespass on the case.3 Where a purchase is made under a decree in equity, and such decree is reversed for a jurisdictional defect in the proceedings, or where the title fails because the grantee of a mortgagor was not a party to a foreclosure, the plaintiff has the right to prosecute further proceedings. In the case first named he may have the process properly served, Y.) 97, Dingledine v. Hershman, 53 Ill. 280, Ogden v. Walters, 12 Kan. 282; Sellars v. Fite, 59 Tenn. 120, Denham v. Holeman, 26 Ga. 182. But it is other wise if the irregularities are so glaring that the purchaser ought to have known of them. Mordecai . Speight, 3 Dev. L. (N. Car.) 428, s. c., 24 Am. Dec. 266 and note; Sanders' Heirs v. Ruddle, 2 T. B. Mon. (Ky.) 139; s. c., 15 Am. Dec. 148. 66 Bank, 6 Pet. (U. S.) S; Sutton v. 1. Freeman on Void Judicial Sales, § 48; Thrift v. Frittz, 7 Ill. App. 55, Stoney 7. Schultz, I Hill (S. Car.) Ch. 465: Boykin v. Cook, 61 Ala. 472; Burns '. Ledbetter, 56 Tex. 282; Short v. Por ter, 44 Miss. 533; Goode v. Crow, 51 Mo. 212; Barrett v. Churchill, 18 B. Mon. (Ky.) 387; Verdin v. Slocum, 71 N. Y. 345; Dodd v. Neilson, 90 N. Y. 243. Reversal of the judgment for error will not avoid the sale and destroy the title of a stranger who has purchased in good faith, but where the sale is made to the execution plaintiff it is otherwise. Corwith v. State Bank, 18 Wis. 560, s. c., 86 Am. Dec. 793; Stroud . Casey, 25 Tex. 740; s. c., 78 Am. Dec. 556 and note. See also Crain v. Parker, i Ind. 374; Doe v. Swigget, 5 Blackf. (Ind.) 328; Clark v. Bell, 4 Dana (Ky.) 15; Hauschild v. Stafford, 27 Iowa 301; Gott v. Powell, 41 Mo. 416; Feaster v. Fleming, 56 Ill. 457; Dorsey v. Thompson, 37 Md. 25; Stinson v. Ross, 51 Me. 556; s. c., 81 Am. Dec. 591; Wood v. Jackson, 8 Wend. (N. Y.) 9; Little v. Bunce, 7 N. H. 485; s. c., 28 Am. Dec. 363: Estes v. Booth, 20 Ark. 583; Garrett . Lynch. 45 Ala. 204; Termon v. Lyon, Si Pa. St. 107; Farmer v. Rogers, 10 Cal. 335; Storm v. Smith, 43 Miss. 497; Hubbell v. Broadwell, 8 Ohio 120; Gray v. Brignardells, I Wall. (U. S.) 627; U. S. Bank v. Wash. 451. ". And the fact that the sale is void may be shown as a defence to an action on a note given for the purchase money. Riddle v. Hill, 51 Ala. 224; Laughman v. Thompson, 6 Smed. & M (Miss.) 259. 2. Freeman on Executions, § 54; Sargent v. Sturm, 23 Cal. 359; Adams v. Smith, 5 Cow. (N. Y.) 280. See also Watson v. Reissig, 24 Ill. 281; Boykin v. Cook, 61 Ala. 472; Henry v. Keys, 5 Sneed (Tenn.) 488. 3. Seeton v. Nevers, 20 Pick. (Mass.) and thus give the court jurisdiction to proceed. In the second named case he may apply to the court, have the sale vacated, the satisfaction cancelled, and then, by supplemental bill, bring in the proper parties, and have the property resold. In either case the purchaser may, by applying to the court in the original suit, have the proceedings conducted for his benefit, though in the name of the original plaintiff." 1 In two or three States the purchaser has been permitted to recover from the plaintiff the amount of his bid paid upon the plaintiff's judgment; 2 and in other States he has, with more reason, been suffered to recover from the defendant, where the latter had no title, the amount paid in satisfaction of the judgment.3 But the better rule is said to be that the purchaser at an execution sale cannot, in an independent action, recover the amount of his bid from either of the original parties, except in case of fraud, misrepresentation, or the like.4 In some of the States the rule is more liberal in regard to equity sales, and it is held that the purchaser at such a sale is entitled to receive a title free from equities and encumbrances of which he had no knowledge or notice.5 1. Freeman on Void Judicial Sales, § 49. Citing Boggs v. Hargrave, 16 Cal. 559; Burton . Lies, 21 Cal. 87; Johnson 7. Robertson, 34 Md. 165; Cook v. Toumbs, 36 Miss. 685; Hudgin v. Hudgin, 6 Gratt. (Va.), 320; s. c., 52 Am. Dec. 124. 2. Chapman v. Brooklyn, 40 N. Y. 372; Schwinger v. Hickock, 53 N. Y. 280; Henderson v. Overton, 2 Yerg. (Tenn.) 394; s. c., 24 Am. Dec. 492. See also Ritter v. Henshaw, 7 Iowa 97; also Sanders v. Hamilton, 3 Dana (Ky.) 550, approved in an article in 21 Alb. Law Jour. 386, by W. J. Gaynor. 7. 3. Meier v. Craig, 3 Blackf. (Ind.) 293; s. c., 25 Am. Dec. 111; Julian . Beal, 26 Ind. 220; McGhee 7. Ellis, 4 Litt. (Ky.) 245; s. c., 14 Am. Dec. 124; Price 7. Boyd. I Dana (Ky.) 436; Howard v. North, 5 Tex. 290; Warner v. Helm, 1 Gilm. (Ill.) 220; Wilchinsky v. Cavender, 72 Mo. 192; Burns 7. Ledbetter, 56 Tex. 282. In Kentucky, the purchaser of land under a void execution, having thus paid the debt of the defendant, has an equitable set-off against such defendant in a suit by the latter for possession; and the purchaser may, if he is in possession of such land, have a lien thereon for the amount so paid. Geoghegan 7. Ditto, 2 Metc. (Ky.) 433; s. c., 74 Am. 585; Boggs . Hargrave, 16 Cal. 559. Salmond v. Price, 13 Ohio 368; s. C., 42 Am. Dec. 204; Laws v. Thompson, 4 Jones (N. Car.) 104; Halcombe v. Loudermilk, 3 Jones (N. Car.) 491; The Monte Allegre, 9 Wheat. (U. S.) 616; Burns v. Hamilton, 33 Ala. 210. In Louisiana, he may, by statute, recover the price paid as against both debtor and creditor, where the sale is annulled. Citizens' Bank v. Frietag, 37 La. An. 271. 5. Jordan v. Poillon, 77 N. Y. 518; Monarque v. Monarque, 80 N. Y. 320; People v. Knickerbocker Ins. Co., 66 How. (N. Y.) Pr. 115; Monaghan 7. Small, 6 Rich. (S. Car.) 177; Kosten bader v. Spotts, 80 Pa. St. 430; Edney v. Edney, So N. Car. 81; Hunting v. Walter, 33 Md. 60. But compare McManus 7. Keith, 49 Ill. 388; Owsley v. Smith's Heirs, 14 Mo. 153; Cashion v. Faina, 47 Mo. 133. And see authorities hereinbefore EMPTOR. cited under CAVEAT "A court of equity will relieve the purchaser from complying with his bid made at a judicial sale where the title is defective." Dunscomb v. Holst, 13 Fed. Rep. 11. In a recent case in New York a purchaser at a partition sale refused to complete his purchase because of a defective title. The lower court sustained a motion to compel him to take it, and this was held erroneous by the court of Where the purchaser was induced to bid by fraud or misrepresentation on the part of those conducting or interested in the sale on whose statements he had a right to rely, he may have the sale set aside and the property resold.1 Mere silence, however, will not, as a rule, constitute fraud in a judicial sale.2 Courts will often grant a reference, upon application of the purchaser, to ascertain if title can be made, and, if the referee should report that it cannot, will relieve the purchaser from completing his purchase. 3 The right of subrogation is another important right existing, in most of the States, in favor of a bona fide purchaser who has, by payment of his bid, discharged a lien on the land of the defendant without gaining the title thereto.* appeals. The case was remitted, how ever, to the lower court in order that the purchaser might be compelled to take the property if the title should be made good. Miller z. Wright, 109 N. Y. 194. 1. Anderson v. Foulke, 2 Har. & G. (Md.) 346; Hayes v. Stiger, 29 N. J. Eq. 196; Fisher v. Hersey, 17 Hun (N. Y.) 370; Hickson v. Rucker, 77 Va. 135. Compare East v. Wood, 62 Ala. 313. So held where misrepresentations were made by the execution creditor. Webster v. Haworth, 8 Cal. 21; s. c., 68 Am. Dec. 287; Masson v. Bovet, I Den. (N. Y.) 69; s. c., 43 Am. Dec. 651. So, where a guardian misrepresented the title. Black v. Walton, 32 Ark. 321. But misrepresentations by the holder of the paramount title have been held no ground for relief from an administrator's sale. Pool v. Hodnett, 18 Ala. 752. So with the representations of a cotenant as against the others. Matlock v. Bigbee, 34 Mo. 356. See also Riley. Kepler, 94 Ind. 308; Fore . McKenzie, 58 Ala. 115. See SETTING ASIDE AND RESALE, infra, this title. 2. Thompson 7. Munger, 15 Tex. 523; s. c., 65 Am. Dec. 176. See also Dean . Morris, 4 Greene (Iowa) 312. But compare Veeder v. Fonda, 3 Paige (N. Y.) 94. 3. 2 Jones on Mortgages, § 1648; Graham. Bleakie, 2 Daly (N. Y.) 55; Thomas v. Davidson, 76 Va. 338. 4. Subrogation of Purchaser--Right Affirmed.-In Indiana, the right was denied in the early case of Richmond . Marston, 15 Ind. 136; s. c., 42 Am. Dec. 204. But in a recent case it was held that under the general principles of equity as well as under the Rev. St. of Indiana, ISSI, § 1084, the purchaser in good faith was subrogated to the lien of the judgment paid by him, upon the sale being adjudged invalid and set aside. Short v. Sears, 93 Ind. 505, 507. See also Bunts v. Cole, 7 Blackf. 265; Reily 7. Burton, 71 Ind. 118; Carver 7. Howard, 92 Ind. 173. And in another recent case it was held that "where land sold at sheriff's sale, upon execution, is misdescribed in the levy, return and notice, or, on foreclosure of a mortgage, where the decree is void for want of notice, and the land is misdescribed in the decree and sheriff's deed, the purchaser receiving a sheriff's deed nevertheless takes color of title, which he can convey, and the right of subrogation to the rights of the judgment or mortgage creditors passes to his grantees." Ray v. Detshon, 79 Ind. 56. In Kentucky, the right has been affirmed in favor of a purchaser at an execution sale. McLaughlin v. Daniel, 8 Dana (Ky.) 183. In South Carolina, the same has been held. Bentley v. Long, 1 Strob. (S. Car.) Eq. 52; s. c., 47 Am. Dec. 523. In North Carolina, the right has been affirmed in favor of purchasers at probate sales. Scott v. Dunn, 1 Dev. & B. (N. Car.) Eq. 427; s. c., 30 Am. Dec. 174; Perry v. Adams, 98 N. Car. 167; s. c.. 2 Am. St. Rep. 326. In Missouri, Mississippi, Oregon, Wisconsin, Virginia, and perhaps in two or three other States, a similar view has been taken. Valles' Heirs 7. Fleming, 29 Mo. 152; Grant v. Loyd, 12 Smed. & M. (Miss.) 191; Douglas v. Bennett, 51 Miss. 680; Stockton. Downey, 6 La. An. 581; Levy v. Riley, 4 Oreg. 392; Hudgin v. Hudgin, 6 Gratt. (Va.) 320; s. c., 52 Am. Dec. 124; Blodgett v. Hitt, 29 Wis. 182; Mohr v. Tulip, 40 Wis. 66. See also Bright v. Boyd, 2 Story (U. S.) 605; Sheldon Sub., §§ 38, 39; Davis v. Gaines, 104 U. S. 385, 405. In Texas, it is held, in a recent case, that a purchaser at a sheriff's sale, who has paid money on his bid which discharges the judgment, and received a defective sheriff's deed, may be subrogated to the lien of the original judgment, and his right of action does not depend on his possession. If in possession, he cannot be disturbed in it by the original judgment debtor, until the money paid by him in discharging the judgment has been refunded. Jones v'. Smith, 55 Tex. 383. See also Mayes z'. Blanton, 67 Tex. 246. Right to Subrogation Denied.-Richmond v. Marston, 15 Ind. 136; Nowler v. Coit, 1 Ohio 518; s. c., 13 Am. Dec. 640; Salmond . Price, 13 Ohio 368; v. Bishop. O'Conner, 69 Ill. 431; Chambers. Jones, 72 Ill. 279; Kinney v. Knoebel, 51 Ill. 112. Rights and Remedies of Purchasers Generally. In Maryland, under §§ 1 and 2 of art. 83 of the code, relating to the seizure and sale of equitable estates under execution, and the rights of purchasers at such sales, if the equitable title be one which includes possession of the property, there can be no doubt that the writ of habere facias possessionem is applicable to give the purchaser possession. Deakins v. Rex, 60 Md. 593. In Pennsylvania, where one purchases property at sheriff's sale under a levari facias issued on a judgment obtained on a mechanics' lien, filed under the provisions of the act of June 16th, 1836, Pamph. L. 696, he may institute the summary proceedings provided by the act of June 16th, 1836, Pamph. L. 780, and its supplement of May 24th, 1878, and thereby recover possession of the premises. Walbridge's Appeal, 95 Pa. St. 466. In Indiana, a purchaser at sheriff's sale, from which redemption has been made under the statute, is not entitled in ejectment to recover possession upon the ground that he had redeemed from a sale made upon a senior mortgage. His right as such redemptioner is not to possession of the lands, but to a lien thereon for his redemption money and interest, which he may enforce by suit for its recovery. Rice . Puett, 81 Ind. 230. And the purchaser, at a constable's sale of mortgaged personal property, is not entitled to possession unless he complies with the terms of the mort gage. State ex rel. Jessup v. Milligan, 106 Ind. 109. In Texas, the execution of a mortgage on chattel property cannot affect the right of a creditor of the mortgagor to levy upon it and sell his interest under execution; the purchaser would buy subject to the mortgage lien, having notice thereof. If after purchase the rights of the lien holder are jeopardized, he may sequester the property in a suit against the mortgagor, and make the purchaser under execution a party. Sparks v. Pace, 60 Tex. 298. And in the same State, where an appeal is taken under article 1493, Pasch. Dig., by the provisions of which execution may issue and property be seized, but no sale can be made pending the appeal, if nevertheless the officer sells, the purchaser at this void sale is entitled to be refunded the purchase money, the same having been applied to the satisfaction of the judgment. Burns v. Ledbetter, 56 Tex. 282. In South Carolina, a purchaser at sheriff's sale may sue for the recovery of the land purchased, assailing for fraud a prior conveyance by the judgment debtor, and in the same action ask judgment that the prior deed be set aside. Burch v. Brantley, 20 S. Car. 503. And one who purchases land sold under her execution for less than the amount due, but fails to receive the sheriff's deed, is entitled, nevertheless, to assert her equitable title to such land in an action brought for its partition, to which action she is made a party defendant. Small 7. Small, 16 S. Car. 64. Where, under a judgment on constructive service, certain lands were found to belong to the debtor, and were subjected to the payment of the judgment, and a sale was had and the lands sold to a bona fide purchaser, held, that he was entitled to protection, although afterwards the judgment was vacated and set aside. Keene v. Sallenbach, 15 Neb. 200. A purchaser at an execution sale is not an "aggrieved party" within the meaning of § 693 of the California Code of Civil Procedure, which prescribes a penalty for selling real property without notice, recoverable by the party aggrieved. Kelley v. Desmond, 63 Cal. 517. On bill by the holder of a sheriff's deed, made to him as assignee of the certificate of purchase, to set aside certain deeds made by the defendant in the judgment under which the sheriff's sale 5. Liabilities of Purchaser.-Where the purchaser at an execution sale fails or refuses to pay his bid, an action will lie against him by the sheriff in his official capacity to recover the amount of the bid; or the bid may be ignored and the property resold.2 If, upon the second sale, the property brings less than the amount bid at the first sale, the difference may be recovered from the defaulting bidder.3 was made, as clouds upon the title, it is not essential to the relief sought for the complainant to prove affirmatively that he paid value for the certificate of purchase assigned to him, and upon which his deed was made. Until his deed should be impeached, in some mode known to the law, it is prima facie sufficient as a basis to the relief sought by such a bill. Shelton v. Blake, 115 III. 275 A, a married woman, joined with her husband in a bond with warrant of attorney, and mortgage of her real estate, to B. who entered judgment on the bond against both obligors, and under an execution thereon levied on said real estate and bought it in at sheriff's sale. The amount bid by B at the sale was claimed by B and also by other creditors of A's husband, and the sheriff, having filed a special return, an auditor was appointed who awarded the same to B, who exchanged receipts with the sheriff for the purchase money. Subsequently B issued a scire facias on the mortgage. Held, that the defendants were entitled to a credit for the sum bid by and awarded to B at the said sheriff's sale, although he did not obtain a good title, owing to the fact that the bond of the married woman was void as against her. Wells v. Van Dyke, 106 Pa. St. III. The right of an execution defendant to use a patented machine passes with the machine to the purchaser at sheriff's sale. Wilder v. Kent, 15 Fed. Rep. 217. 1. Bell v. Owen, 8 Ala. 312; Robinson v. Garth, 6 Ala. 204; s. c., 41 Am. Dec. 47; McKee v. Lineberger, 69 N. Car. 217; Glenn v. Black, 31 Ga. 393; Jones v. Null, 9 Neb. 254; Chappell v. Dann, 21 Barb. (N. Y.) 17; Herman on Executions, 325, § 211. Assumpsit is the form of action generally resorted to. See note to Mount 7. Brown, 33 Miss. 566; s. c., 69 Am. Dec. 362, 365. The purchaser remains liable even though he may have assigned his bid. Wimer v. Obear, 23 Mo. 242. the purchaser before suit. McKee v. Lineberger, 69 N. Car. 217; Hunt v. Gregg, 8 Blackf. (Ind.) 105. But compare Holdship . Doran, 2 P. & W. (Pa.) 9. Where the property of a corporation under mortgage was levied on under various other claims, and the company prepared to arrest the sale by affidavits of illegality, but an agreement was effected by the company and creditors represented, under which the objection was to be withdrawn, the equity of re demption of the property to be sold and bid in for the creditors, at a stated price, no money was to be paid except the costs, and the company was to have a specified time in which to redeem the property, or on failure to do so, the creditors were to be interested in it in proportion to their claims, and the sheriff assented to this arrangement, and the property was bought by the agreed bidder for the creditors, this did not give other creditors the right to seek redress directly from the bidder at the sale, by bill in equity, for the purpose of compelling him to pay the amount of the bid, especially where the complainants had postponed all action for more than two years, where the sheriff had gone out of office, and where the other property of the defendant had, in the meantime, been sold. and otherwise disposed of. Cureton v'. Wright, 73 Ga. 8. 2. Durnford . Degruys, 8 Mart. (La.) 220; s. c., 13 Am. Dec. 285; Bisbee v. Hall, 3 Ohio 449; Roberts v. Westbrook, I Coldw. (Tenn.) 115: Herman on Executions, 325, § 211. 3. This is the general rule, but the exact measure of damages seems to depend somewhat on the circumstances See Girard v. of each particular case. Taggart, 5 S. & R. (Pa.) 19; Adams v. McMillan, 7 Port. (Ala.) 73; Lamkin 7. Crawford, 8 Ala. 153; Glenn v. Black, 31 Ga. 393. But in Roberts v. Westbrook, 1 Coldw. (Tenn.) 115, and Grier v. Youtz, 5 Jones L. (N. Car.) 371, this rule is held not to apply to The officer should tender a deed to execution sales. " |