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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,

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Y.) 97; Dingledine z'. Hershman, 53 I11. Bank, 6 Pet. (U. S.) S; Sutton 280, Ogden v. Walters, 12 Kan. 282; Schonwald, S6 N. Car. 198; s. c., 41 Sellars v. Fite, 59 Tenn. 120, Denham z'. Am Rep. 455. But compare as to Holeman, 26 Ga. 182. But it is other costs, Hutchens 7. Doe, 3 Ind. 528. wise if the irregularities are so glaring The sale to the plaintiff, upon a void that the purchaser ought to have known execution, of the defendant's interest in of them. Mordecai 7'. Speight, 3 Dev. real estate, held under a certificate of L. (N. Car.) 428; S. c., 24 Am. Dec. sale, passes no title, and, the judgment 266 and note; Sanders' Heirs v. Ruddle, and subsequent proceedings being set 2 T. B. Mon. (Ky.) 139; S. C., 15 Am. aside, the defendant is restored to his Dec. 148.

rights without the necessity of a suit Reversal of the judgment for error Gunz u. Heffner, 33 Minn. 215. See will not avoid the sale and destroy the also Underwood 2. Pack, 23 W. Va. 704. title of a stranger who has purchased in 1. Freeman on Void Judicial Sales, S good faith, but where the sale is made 48; Thrift v. Frittz, 7 Ill. App. 55; Stoney to the execution plaintiff it is otherwise. z'. Schultz, 1 Hill (S. Car.) Ch. 465; Corwith v. State Bank, 18 Wis. 560, Boykin z'. Cook, 61 Ala. 472; Burns z'. S. C., 86 Am. Dec. 793; Stroud z'. Casey, Ledbetter, 56 Tex. 282; Short z'. Por

740; s. C., 78 Am. Dec. 556 and ter, 44 Miss. 533; Goode 2. Crow, 51 note. See also Crain v. Parker, i Ind. Mo. 212; Barrett v. Churchill, 18 B. 374; Doe v. Swigget, 5 Blackf. (Ind.) Mon. (Ky:) 387; Verdin 7. Slocum, 71 328; Clark v. Bell, 4 Dana (Ky.) 15; N. Y. 345; Dodd v. Neilson, 90 X Y Plauschild v. Stafford, 27 Iowa 301; 243. Gott v. Powell, 41 Mo. 416; Feaster z'. And the fact that the sale is void Fleming, 56 Ill. 457; Dorsey ". Thomp- may be shown as a defence to an action son, 37 Md. 25; Stinson v. Řoss, 51 Me. on a note given for the purchase money. 556; S. C., 81 Am. Dec. 591; Wood ?'. Riddle v. Hill, 51 Ala. 224; Laughman Jackson, 8 Wend. (N. Y.) 9; Little v. r. Thompson, 6 Smed. & M (Miss.) 259. Bunce, 7 N. H. 485; S. C., 28 Am. Dec. 2. Freeman on Executions, $ 54; Sar363; Estes v. Booth, 20 Ark. 583; Gar- gent v'. Sturm, 23 Cal. 359; Adams v. rett 2'. Lynch, 45 Ala. 204; Termon v. Smith, 5 Cow. (N. Y.) 280. See also Lyon, Si Pa. St. 107; Farmer v. Rog- Watson v. Reissig, 24 Ill. 281; Boykin ers, 10 Cal. 335; Stormz'. Smith, 43 v. Cook, 61 Ala. 472; Henry z. Keys, 5 Miss. 497; Hubbell '. Broadwell, S Sneed (Tenn.) 488. Ohio 120; Gray 2. Brignardells, 3. Seeton r. Nevers, 20 Pick. (Mass.) Wall. (U. S.) 627; L'. S. Bank 2. Wash. 451.

25 Tex.

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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." | In two or three States the pur

1 chaser 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. 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 en. titled to receive a title free from equities and encumbrances of which he had no knowledge or notice.5

Dec. 124

1. Freeman on Void Judicial Sales, § 585; Boggs . Hargrave, 16 Cal. 559. 49. Citing Boggs v. Hargrave, 16 Cal. Salmond v. Price, 13 Ohio 368; s. c., 559; Burton 7'. Lies, 21 Cal. 87; Johnson 42 Am. Dec. 204; Laws v. Thompson, 2'. Robertson, 34 Md. 165; Cook v. 4 Jones (N. Car.) 104; Halcombe 1'. Toumbs, 36 Miss. 685; Hudgin v. Hud- Loudermilk, 3 Jones (N. Car.) 191: gin, 6 Gratt. (Va.), 320; s. c., 52 Am. The Monte Allegre, 9 Wheat. (L'. S.)

616; Burns v. Hamilton, 33 Ala. 210. 2. Chapman v. Brooklyn, 40 N. Y. In Louisiana, he may, by statute, re372; Schwinger z'. Hickock, 53 N. Y. cover the price paid as against both 280; Henderson 1. Overton, 2 Yerg. debtor and creditor, where the sale is (Tenn.) 394; s. c., 24 Am. Dec. 492. annulled. Citizens' Bank v. Frietag, 37 See also Ritter z'. Henshaw, 7 Iowa 97; La. An. 271. also Sanders z. Haniilton, 3 Dana (Ky.) 5. Jordan v. Poillon, 77 N. Y. 518; 550, approved in an article in 21 Alb. Monarque v. Monarque, So N. Y. 320; Law Jour. 386, by W. J. Gaynor. People v. Knickerbocker Ins. Co., 66

3. Meier v. Craig, 3 Blackf. (Ind.) How. (N. Y.) Pr. 115; Monaghan 7'. 293; s.c., 25. Am. Dec. 111; Julian 2. Small, 6 Rich. (S. Car.) 177; Kosten C.'

) Beal, 26 Ind. 220; McGhee 7. Ellis, 4 bader v. Spotts, 80 Pa. St. 430; Edney Litt. (Ky.) 245; s. C., 14 Am. Dec. 124; v. Edney, 80 N. Car. 81; Hunting v. Price ' 7. Boyd. i Dana (Ky.) +36; Walter, 33 Md. 60. But compare McIloward v. North, 5 Tex. 290; Warner Manus z'. Keith, 49 Ill. 388; Owsley v. 7!. Helm, i Gilin. (Iìl.) 220; Wilchinsky Smith's lleirs, 14 No. 153; Cashion ?'. v. Cavender, 72 Mo. 192; Burns 7'. Led- Faina, 47 Mo. 133.

Faina, 47 Mo. 133. And see authorities better, 56 Tex. 282.

herein before cited under CAVEAT In Kentucky, the purchaser of land EMPTOR. under a void execution, having thus “A court of equity will relieve the paid the debt of the defendant, has an purchaser from complying with his bid equitable set-off against such defendant made at a judicial sale where the title in a suit by the latter for possession; is defective.” Dunscomb v. Holst, 13 and the purchaser may, if he is in pos- Fed. Rep. 11. session of such land, have a lien thereon In a recent case in New York in for the amount so paid. Geoghegan z'. purchaser at a partition sale refused to Ditto, 2 Metc. (Ky.) 433; s. C., 74 Am. complete his purchase because of a de

fective title, The lower court sustained 4. Freeman on Void Judicial Sales, a motion to compel him to take it, and 49. Citing Branham 2'. Šan Jose, 24 Cal. this was held erroneous by the court of

Dec. 413

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.

Y. 194

Ala. 752.

appeals. The case was remitted, how good faith was subrogated to the lien of ever, to the lower court in order that the judgment paid by him, upon the sale the purchaser might be compelled to being adjudged invalid and set aside. take the property if the title should be Short v. Sears, 93 Ind. 505, 507. See made good. Miller z'. Wright, 109 N. also Bunts v. Cole, 7 Blackf. 265; Reily

t". Burton, 71 Ind. 118; Carver zi. How1. Anderson v. Foulke, 2 Har. & G. ard, 92 Ind. 173. And in another recent (Md.) 346; Hayes v. Stiger, 29 N. J. case it was held that “where land sold Eq. 196; Fisher v. Hersey, 17 Hun (Ň. at sheriff's sale, upon execution, is misY.) 370; Hickson v. Rucker, 77 Va. described in the levy, return and notice, 135. Compare East v. Wood, 62 Ala. or, on foreclosure of a mortgage, where 313. So held where misrepresentations the decree is void for want of notice, were made by the execution creditor. and the land is misdescribed in the deWebster 7. Iaworth, 8 Cal. 21; S. C., 68 cree and sheriff's deed, the purchaser Am. Dec. 287; Masson v. Bovet, i receiving a sheriff's deed nevertheless Den. (N. Y.) 69; S.C., 43 Am. Dec. 651. takes color of title, which he can conSo, where a guardian misrepresented vey, and the right of subrogation to the the title. Black r. Walton, 32 Ark. rights of the judgment or mortgage 321. But misrepresentations by the creditors passes to his grantees.” Ray holder of the paramount title have been v. Detshon, 79 Ind. 56. held no ground for relief from an ad- In Kentucky, the right has been afministrator's sale. Pool v. Hlodnett, 18 firmed in favor of a purchaser at an

So with the representations execution sale. McLaughlin 2. Daniel, of a cotenant as against the others. 8 Dana (Ky.) 183. Matlock v. Bigbee, 34 Mo. 356. See In South Carolina, the same has been also Riley '. Kepler, 94 Ind. 308; Fore held. Bentley 7. Long, i Strob. (S. 7'. McKenzie, 58 Ala. 115. See SET- Car.) Eq. 52; s. C., 47 Am. Dec. 523. TING ASIDE AND RESALE, infra, this In North Carolina, the right has been title.

affirmed in favor of purchasers at pro2. Thompson t'. Munger, 15 Tex. 523; bate sales. Scott v. Dunn, i Dev. & B. s. c., 65 Am. Dec. 176. See also Dean (N. Car.) Eq. 427; s. C., 30 Am. Dec. 2'. Morris, 4 Greene (Iowa) 312. But 174; Perry v. Adams, 98 N. Car. 167; compare Veeder v. Fonda, 3 Paige (N. S.C., 2 Am. St. Rep. 326.

In Missouri, Nlississippi, Oregon,

, 3. 2 Jones on Mortgages, Ø 1648; Gra- Wisconsin, Virginia, and perhaps in ham 2. Bleakie, 2 Daly (N. Y.) 55; two or three other States, a similar view Thomas 7. Davidson, 76 Va. 338.

has been taken. Valles' Heirs 2. Flem4. Subrogation of Purchaser--Right ing, 29 Mo. 152; Grant v. Loyd, 12 Affirmed.-In Indiana, the right was de

Smed. & M. (Miss.) 191; Douglas v. nied in the early case of Richmond i'. Bennett, 51 Miss.680; Stockton . Dow

7' Marston, 15 Ind. 136; s. C., 42 Am. Dec. ney, 6 La. An. 581; Levy v. Riley, 4 204. But in a recent case it was held Oreg. 392; Hudgin v. IIudgin, 6 Gratt. that under the general principles of (Va.) 320; s. c., 52 Am. Dec. 124; equity as well as under the Rev. St. of Blodgett v. Hitt, 29 Wis. 182; Mohr z'. Indiana, 1881, § 1084, the purchaser in Tulip, 40 Wis. 66. See also Bright v.

Y.) 94

106 Ind. 109.

U.S. 385, +05.

Boyd, 2 Story (U. S.) 605; Sheldon gage. State ex rel. Jessup v. Milligan, Sub., $$ 38, 39; Davis v. Gaines, 104

In Texas, the execution of a mortgage In Texas, it is held, in a recent case, on chattel property cannot affect the that a purchaser at a sheriff's sale, who right of a creditor of the mortgagor has paid money on his bid which dis- to levy upon it and sell his interest uncharges the judgment, and received a der execution; the purchaser would buy defective sheriff's deed, may be subro- subject to the mortgage lien, having gated to the lien of the original judg- notice thereof. If after purchase the ment, and his right of action does not rights of the lien holder are jeopardized, depend on his possession. If in posses- he may sequester the property in a suit sion, he cannot be disturbed in it by the against the mortgagor, and make the original judgment debtor, until the purchaser under execution a party. money paid by him in discharging the Sparks v. Pace, 60 Tex. 298. And in judgment has been refunded. Jones z'. the same State, where an appeal is taken Smith, 55 Tex. 383. See also Mayes z'. under article 1493, Pasch. Dig., by the Blanton, 67 Tex. 246.

provisions of which execution may issue Right to Subrogation Denied.—Rich- and property be seized, but no sale can mond z'. Marston, 15 Ind. 136; Nowler be made pending the appeal, if neverv. Coit, i Ohio 518; s. c., 13 Am. Dec. theless the officer sells, the purchaser at 640; Salmond i'. Price, 13 Ohio 368; this void sale is entitled to be refunded Bishop z'. O'Conner, 69 111.431; Cham- the purchase money, the same having bers 1. Jones, 72 Ill. 279; Kinney v.

'. Kinney v. been applied to the satisfaction of the Knoebel, 51 Ill. 112.

judgment. Burns v. Ledbetter, 56 Tex. Rights and Remedies of Purchasers 282. Generally.-In Maryland, under $$ In South Carolina, a purchaser at 1 and 2 of art. 83 of the code, relat- sheriff's sale may sue for the recovery ing to the seizure and sale of equitable of the land purchased, assailing for estates under execution, and the rights fraud a prior conveyance by the judgof purchasers at such sales, if the equit- ment debtor, and in the same action able title be one which includes posses- ask judgment that the prior deed be set sion of the property, there can be no aside. Burch v. Brantley, 20 S. Car. doubt that the writ of habere facias 503. And one who purchases land sold possessionem is applicable to give the under her execution for less than the purchaser possession. Deakins v. Rex, amount due, but fails to receive the

sheriff's deed, is entitled, nevertheless, In Pennsylvania, where one pur- to assert her equitable title to such land chases property at sheriff's sale under a in an action brought for its partition, to levari facias issued on a judgment ob- which action she is inade a party detained on a mechanics' lien, filed under fendant. Small z'. Small, 16 S. Car. 64. the provisions of the act of June 16th, Where, under a judgment on con1836, Pamph. L. 696, he may institute structive service, certain lands were the summary proceedings provided by found to belong to the debtor, and were the act of June 16th, 1836, Pamph. L. subjected to the payment of the judg780, and its supplement of May 24th, ment, and a sale was had and the lands 1878, and thereby recover possession of sold to a bona fide purchaser, held, that the premises. Walbridge's Appeal, 95 he was entitled to protection, although Pa. St. 466.

afterwards the judgment was vacated In Indiana, a purchaser at sheriff's and set aside. Keene v. Sallenbach, 15 sale, from which redemption has been Neb. 200. made under the statute, is not entitled A purchaser at an execution sale is in ejectment to recover possession upon not an “aggrieved party” within the the ground that he had redeemed from meaning of § 693 of the California a 'sale made upon a senior mortgage. Code of Civil Procedure, which preHis right as such redemptioner is not scribes a penalty for selling real propto possession of the lands, but to a lien erty without notice, recoverable by the thereon for his redemption money and party aggrieved. Kelley v. Desmond, interest, which he may enforce by suit 63 Cal. 517. for its' recovery. Rice 7. Puett, 81 Ind. On bill by the holder of a sheriff's 230. And the purchaser, at a consta- deed, made to him as assignee of the ble's sale of mortgaged personal prop- certificate of purchase, to set aside cererty, is not entitled to possession unless tain deeds made by the defendant in the he complies with the terms of the mort judgment under which the sheriff's sale

60 Md. 593

1

lil. 275.

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: 1 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 the purchaser before suit. McKee v'. not essential to the relief sought for the Lineberger, 69 N. Car. 217; Hunt z. complainant to prove affirmatively that Gregg, 8 Blackf. (Ind.) 105. But comhe paid value for the certificate of pur- pare Holdship z'. Doran, 2 P. & W. chase assigned to him, and upon which (Pa.) 9. his deed was made. Until his deed Where the property of a corporation should be impeached, in some mode under mortgage was levied on under known to the law, it is prima facie various other claims, and the company sufficient as a basis to the relief sought prepared to arrest the sale by affidavits by such a bill. Shelton 2”. Blake, 115 of illegality, but an agreement was

effected by the company and creditors A, a married woman, joined with her represented, under which the objection husband in a bond with warrant of at- was to be withdrawn, the equity of re torney, and mortgage of her real estate, demption of the property to be sold and to B, who entered judgment on the bid in for the creditors, at a stated price, bond against both obligors, and under no money was to be paid except the an execution thereon levied on said real costs, and the company was to have a estate and bought it in at sheriff's sale. specified time in which to redeem the The amount bid by B at the sale was property, or on failure to do so, the claimed by B and also by other cred- creditors were to be interested in it in itors of A's husband, and the sheriff, proportion to their claims, and the having filed a special return, an auditor Sheriff assented to this arrangement, was appointed who awarded the same and the property was bought by the to B, who exchanged receipts with the agreed bidder for the creditors, this did sheriff for the purchase money.

Sub- not give other creditors the right to sequently B issued a scire facias on the seek redress directly from the bidder mortgage. Held, that the defendants at the sale, by bill in equity, for the were entitled to a credit for the sum bid purpose of compelling him to pay the by and awarded to B at the said sheriff's amount of the bid, especially where the sale, although he did not obtain a good complainants had postponed all action title, owing to the fact that the bond of for more than two years, where the the married woman was void as against sheriff had gone out of office, and her. Wells v. Van Dyke, 106 Pa. St. where the other property of the defendIII.

ant had, in the meantime, been sold The right of an execution defendant and otherwise disposed of. Cureton ?'. to use a patented machine passes with Wright, 73 Ga. 8. the machine to the purchaser at sheriff's 2. Durnford 7'. Degruys, 8 Mart. sale. Wilder v. Kent, 15 Fed. Rep. 217. (La.) 220; s. c., 13 Am. Dec. 285; Bis

1. Bell v. Owen, 8 Ala. 312; Robin- bee V. Hall, 3 Ohio 449; Roberts v. son v. Garth, 6 Ala. 204; s. C., 41 Am. Westbrook, I

Coldw. (Tenn.) 115: ; Dec. 47; McKee v. Lineberger, 69 N. Herman on Executions, 325, § 211. Car. 217; Glenn v. Black, 31 Ga. 393; 3. This is the general rule, but the Jones a. Null, 9 Neb. 254; Chappell v. exact measure of damages seems to deDann, 21 Barb. (N. Y.) 17; IIerman on pend somewhat on the circumstances Executions, 325, § 211.

of each particular case. See Girard v. Assumpsit is the form of action gen- Taggart, 5 S. & R. (Pa.) 19; Adams v. erally resorted to. See note to Mount McMillan, 7 Port. (Ala.) 73; Lamkin 7'. Brown, 33 Miss. 566); s.c., 69 Am. 2°. Crawford, 8 Ala. 153; Glenn v. Dec. 362, 365,

Black, 31 Ga. 393. But in Roberts v. The purchaser remains liable even Westbrook, i Coldw. (Tenn.) 115, and though he may have assigned his bid. Grier v. Youtz, 5 Jones L. (N. Car.) Wimer . Obear, 23 Mo. 242.

371, this rule is held not to apply to The officer should tender a deed to execution sales.

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