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Thereupon, at the December term of the court, the court awarded a rule against Cowper to show cause, if any he could, why he should not pay the difference between the bid made by him and the bid made at the second sale, which the court then confirmed. Appellant, Cowper, in response to this rule, set out that the intestate had no title to the property, and also relied on various irregularities in the proceedings. He also set up the order above quoted, by which the sale to him was ordered to be treated as a nullity, and pleaded it in bar of the rule, in connection with the subsequent orders of the court confirming the second sale, and conveying the property to the purchaser thereat.

In Makemson v. Braun, 100 Ky. 88, 18 Ky. L. Rep. 584, 37 S. W. 495, the commis

depends upon and awaits his sanction and confirmation."

But in Camden v. Mayhew, 129 U. S. 73, 32 L. ed. 608, 9 Sup. Ct. Rep. 246, the purchaser failed to pay his cash bid. A rule was awarded against the purchaser to show cause why he should not pay the sum bid by him for the property, or why the sale should not be set aside and a resale had at his risk and costs, and the exceptions to the report of the sale were sustained. The sale was set aside, and the commissioners were directed to resell the property, at the cost of the purchaser, for cash, reserving for future "determination in this case the question whether the said Camden will be required to pay the deficiency." He was held liable for the deficiency on a proceeding by rule. The setting aside of the sale in this case was probably because of noncompliance with the bid, although the reasons are not given, and the purchaser was not released, because the same order provided for his liability being retained. The chief question discussed was the right to proceed by rule or attachment without the sale having been confirmed. On ordering the resale, the court had offered the first purchaser the privilege of paying his bid, which was held equivalent to a confirmation.

A purchaser will be discharged from liability on a resale where proper steps to fix his liability are not taken.

So, a purchaser was held released from the deficiency caused by a resale, where such resale was had on different terms from those on which he purchased. Ray v. Adams, 28 Misc. 664, 59 N. Y. Supp. 1047; Riggs v. Pursell, 74 N. Y. 370; Banes v. Gordon, 9 Pa. 426; Weast v. Derrick, 100 Pa. 509; Labauve v. McCabe, 34 La. Ann. 183; Zimmerman v. Eckert, 2 Pennyp. 221; Freeman v. Husband, 77 Pa. 389; Paul Shallcross, 2 Rawle, 326; Hare v. Bedell, 98 Pa. 485.


And the same was held in Hendrick v. Davis, 27 Ga. 167, 73 Am. Dec. 726, holding, also, that the same property must be resold, and resold as the property of the identical defendant, as whose property it had been bid off to the first purchaser.

And a purchaser was held released from liability for a deficiency on second sale where the sheriff, on a return of the execution, made no mention of the defaulting bidder. The court further held that it was the duty of the sheriff

sioner sold a tract of land, and, the purchaser failing to execute bond, readvertised the property, and made a second sale at the next county court. He then reported to the court both the sales. The court confirmed the second sale, and ordered the property conveyed to the purchaser. After this a rule was taken out against the purchaser at the first sale to show cause why he should not pay the deficiency. It was held that he was not liable. The court said: "While an accepted bidder at a judicial sale who fails to comply with his bid may, by proper proceedings, be required to pay the damage resulting from such failure, which would include the difference between the bid, if any, and the amount realized on the final sale, if the property sold for less on that sale [than at the former sale], yet, where the

at execution sale to make a necessary memorandum in writing. Linn Boyd Tobacco Warehouse Co. v. Terrill, 13 Bush, 463.

In Harvey v. Adams, 9 Lea, 289, it was held that the purchaser at the first sale, where there had been a resale, could not be held liable by the judgment creditor for the difference in the first and last bid, the court saying: "There is no privity of contract between the complainants and the defendant. The defendant's contract was with the sheriff, and the liability to him."

In Grier v. Yontz, 50 N. C. (5 Jones, L.) 371, a purchaser was held released from liability for a deficiency on a resale where a new process was issued to sell the land. The court said: "By suing out the venditioni exponas, the creditor treats the debtor as still the owner of the land, and he relies upon that for the payment of his debt."

Under S. C. act 1839, § 58, providing that, if the purchaser at sheriff's sale shall fail to comply with the terms, the sheriff shall proceed to resell at the risk of the defaulting purchaser, either on the same or some subsequent sale day, as the plaintiff may direct, and, in the absence of any directions, shall resell on the same day if practicable, and, if not, on the next succeeding sale day, making in every such case proclamation that he is reselling at the risk of such defaulting former purchaser,-it was held, in Yongue v. Cathcart, 2 Strobh. L. 221, that the purchaser was released where the sheriff failed at the resale to make the proclamation required by the statute. On a subsequent trial of this case (3 Strobh. L. 304) it was held that, if the sheriff did not sell on the same day, or the succeeding sale day, the purchaser would be released from a deficiency unless the sheriff showed that the second sale was by the direction of the plaintiff.

And where the sheriff before the return day returned on his writ that the purchaser had not paid, and the property was unsold for want of bidders, and made no demand, it was held that the bidder was not liable for the difference in the price. Holdship v. Doran, 2 Penr. & W. 9. There seems to be some difference in the practice in such cases. In this case the court suggested that the sheriff should sue if the money was not ready at the return day. without tendering a deed, or he might make a special return "that the property was knocked down to A B for so much,-that said A B has

commissioner has elected to treat the bid the property. He is without power to reas a nullity, and has proceeded to advertise | lease the purchaser from his obligation. and sell again, and the second sale has The liability of the purchaser depends upon been confirmed without objection, it is then the action of the court. In the case at bar too late to proceed against the first pur- the court ordered the sale to be treated as a chaser for failure to comply with the terms nullity. He directed the land to be resold. of the sale." The commissioner, in making and, when that sale was made, he confirmed the sale, is the agent of the court. His it, and directed the property to be conveyed powers are limited by the orders of the to the purchaser. The purchaser at the first court. He has no power to treat a sale as sale was only a preferred bidder until his a nullity, and in the case cited the judg- bid was accepted by the court by confirming ment of the court turned, not on the action the sale. The contract was not complete, of the commissioner, but on the order of and, when the court decided not to confirm the court confirming the action of the com- the sale, but to treat it as though it had not missioner, for the act of the agent amounted | been made, the purchaser stood simply as to nothing until it was ratified by the court. any other person who makes a proposition The commissioner is simply ordered to sell which is not accepted. When the purchaser

not paid the purchase money, and that, therefore, the property remains unsold." But that the sheriff could not, unless the purchaser was notoriously insolvent, return that the purchaser has not paid long before the return day, and that the property was, therefore, unsold for want of bidding; and "where he does so, and has made no demand, and no evidence to justify him in so doing, the bidder is not liable for the difference in prices."

In Miller v. Collyer, 36 Barb. 250, it was held that the purchaser was not liable to the assignee of the sheriff under a foreclosure sale, where the terms of sale were that, if any purchaser shall fail to comply with the conditions, the premises so struck down will be put up for sale upon the same terms without notice to the purchaser, and such purchaser shall be held liable for any deficiency; that the remedy against a purchaser was by application to the court to compel him to complete it, or to resell, and hold him liable for the loss.

Purchasers have been released from liability on the ground of mistake, or want of authority in their agent to bid, or defects in the property or title.

So, in Clay v. Kagelmacher, 98 Ga. 149, 26 S. E. 493, it was held that a bidder would be released from liability on a resale, where he had refused to comply with his bid by reason of the statements of the auctioneer causing him to make a mistake as to the identity of the lot purchased.

In Harder v. Sayle-Stegall Commission Co. 61 Ark. 66, 31 S. W. 979, it was held that, if a second sale was made because an alleged purchaser refused to ratify a bid made by his agent, and the authority of the agent was limited, and the sheriff knew that he was exceeding his authority, the purchaser would be released from the deficiency arising from the second sale.

Executors of a mortgagor were misled and induced to believe that a sale of the premises would not take place. It was held that the sale should be set aside on the ground of surprise, on their paying to the purchaser his costs and expenses; and, if this was not complied with, the plaintiff could cause the property to be exposed again for sale. Williamson v. Dale, 3 Johns. Ch. 290.

And where an administrator's sale was void, it was held that an action for specific performance could not be maintained by the heir against the purchaser. Kertchem v. George, 78 Cal. 597, 21 Pac. 372.

And where a sheriff's sale was set aside and quashed, it was held that the sale bond also was properly quashed, and the purchaser released. Wilson v. Percival, 1 Dana, 419.

So, a bidder was held released from his purchase as adjudicatee of a succession, where it appeared that there was probability of litigation on the title. Rogge v. Municipal Improv. Co. 49 La. Ann. 37, 21 So. 170; Bachino v. Coste, 35 La. Ann. 570; Nash's Succession, 48 La. Ann. 1573, 21 So. 254.

And in Dunscomb v. Holst, 13 Fed. 11, where the title was such that the purchaser was not bound to accept, an order was made relieving him from complying with his bid, and directing a resale.

A sale was void where the vendor, having a purchase-money lien, had an execution sale thereon of the land without having his deed securing such lien put on record. It was held that the purchaser should be released from his bid. McCord v. McGinty, 99 Ga. 307, 25 S. E. 667. This sale was void under a statute. (See Upchurch v. Lewis, 53 Ga. 621, subdiv. III. b.) So, where an administrator fraudulently represented that the land sold was the property of his intestate by virtue of the location of a head right, where he knew that it had been located upon another tract, it was held that the judgment upon the sale note for the purchase money should be enjoined. Coombs v. Lane, 17 Tex. 280.

In Deaver v. Reynolds, 1 Bland, Ch. 50, a purchaser in partition sale was released by order of court, where he was unable to comply with the requirements of the sale in regard to executing bonds, and asked that the sale be set aside; but he was held chargeable with the costs and expenses of the first sale, to be retained out of any share coming to him.

For other cases where the purchaser at a judicial sale was released on account of the title, see next subdiv., where sales were set aside and deposit returned.

II. Release from bid and return of deposit.

In England, Ireland, and Canada the practice is that on a report of sale the purchaser may suggest doubts upon the title, whereupon a reference is had to ascertain and report, and, if the master reports that there is a cloud on the title, the purchaser is released, and is entitled to a return of the purchase money paid. and is usually allowed interest and costs. The question of practice is stated to be as follows,


fails to execute his bond, it may be that
the parties prefer another sale, thinking
that the property will sell for more, and in
this event the court may so order without
taking any proceedings against the purchas-
er. But if it is desired to hold the pur-
chaser, then his bid must be accepted by
the court, and, if he still refuses to give
the bond, a resale may be ordered, or the
purchaser may be dealt with as in cases of
contempt; and, in this state of case, if the
land on the second sale sells for more than
on the first, the surplus will belong to the
purchaser. The court cannot, however,
treat the sale as a nullity, and thus keep
the surplus, if the land on the second sale
sells for more than on the first, and at the

same time hold the purchaser responsible for
the deficiency if on the second sale it sells
for less. In Shirley v. Shewmaker, 23 Ky.
L. Rep. 452, 63 S. W. 11, the first sale was
confirmed by the court and a rule was taken
against the purchaser to show cause why he
should not give bond, which was made ab-
solute. Brassfield v. Burgess, 10 Ky. L.
Rep. 660, 10 S. W. 122, is in effect the same,
and so is Tyler v. Guthrie, 17 Ky. L. Rep.
1193, 33 S. W. 934. But in none of the
cases is the court allowed to treat the sale
as a nullity, and still proceed to hold the
purchaser liable,

in Kirwan v. Blake, 1 Hogan, 151: First, that the bidding binds the bidder, while it is open to the court to receive an out bid and order a resale, until the conditional order of confirmation has become absolute; second, that the conditional order cannot be entered until the bidder has deposited one fourth of the purchase money; third, that the order to confirm absolutely cannot be done until the remaining three fourths of the purchase money is paid; fourth, if the title is not good, the purchaser will be paid back his purchase money at 6 per cent without being involved in any of the consequences of the investment or disposition of the funds between the parties; fifth, that the purchaser has a right to have his purchase money invested in the stocks at his own risk, or to transfer stock at his own risk to the amount of the purchase money, but in that case he will be bound to make good the full amount of the purchase money when the transaction is completed, and to gain or lose the difference himself.

In the following cases, on the sale being set aside, the purchaser was held entitled to a return of his deposit with costs. There is not enough difference in the facts in these cases to justify setting them out in full: Ward v. Trathen, 14 Sim. 82; Reynolds v. Blake, 2 Sim. & Stu. 117; Calvert v. Godfrey, 6 Beav. 97. But without interest: Feely v. Kilkenny, Flan. & K. 456; Lachlan v. Reynolds, Kay, 52; M'Culloch v. Gregory, 1 Kay & J. 286.

And where a purchaser under a decree was released because the title was encumbered by a right to cut timber, it was held that the purchaser was justified in withholding payment until the objection was removed, and, if it could not be removed, the purchaser would be entitled to be discharged from his purchase and to have his deposit refunded, or to an allowance of an abatement in the purchase money. Street v. Hallett, 6 Ont. Pr. Rep. 312. The court did not allow costs because the application was premature.

In the following cases the purchaser was allowed the return of his purchase money with interest and costs: Lineham v. Cotter, 8 Ir. Eq. Rep. 104; Gower v. Hill, Hayes & J. 127; Pleasants v. Roberts, 2 Molloy, 507.

And a purchaser under a decree was discharged upon a report of bad title, and it was held that his deposit should be paid back without prejudice to his applying for interest and costs, when there should be a fund in court. After his death a fund was realized from which his personal representative was held entitled to

Judgment reversed and cause remanded, with directions to discharge the rule against appellant.

be paid interest and costs. Mackay v. Orr, 3 Ir.
Eq. Rep. 499.

In Hill v. Kirwan, 1 Hogan, 175, where the
purchaser was discharged because a good title
could not be made, and there was no fund in
court to pay his interest and costs, the purchase
money having already been paid back, it was
held that he was entitled to have a receiver
appointed over the lands, with direction to
apply the rents in the discharge of his interest
and costs.

A person who had made a deposit as the highest bidder under a decree, and who was outbid at a subsequent sale, was held entitled to have his deposit paid back immediately; but as to his interest and costs he was required to wait until the sale was completed. Archdall v. Montgomery, Vern. & S. 302.

And where the title to land sold under a decree was defective, and the purchaser was discharged, he was held entitled to the full amount of his purchase money, interest and costs. It was further held that, where such interest and costs were to be paid out of a fund chargeable with the usher's poundage, the loss should be borne by the funds in the cause, and not by the discharged purchaser. Johnson v. Reardon, 3 Ir. Eq. Rep. 200.

A sale in partition was invalid because it took place before the certificate in answer to the inquiries directed by the decree was made. It was held that the purchaser was entitled to his costs arising from the deposit, which had been paid into court and invested, with the dividends thereon, or the actual amount of deposit and produce, with costs, charges, and expenses. Powell v. Powell, L. R. 19 Eq. 422. The court said: If he insisted upon the return of the money itself, he was entitled to it and all the dividends which have arisen from its investment.

But where the purchaser lodged stock instead of money in court, and the sale was set aside by the House of Lords for want of title, on a motion by the purchaser to have the stock returned in specie, and not merely the money ordered deposited with 6 per cent interest, as the funds had risen in the interim, it was held that, as it was not shown that he undertook the risk of a fall in the prices, he was not entitled to the benefit of the advance; and his ey, with interest, was returned. Kirwan v. Blake, 2 Molloy, 506.

In New York the practice is for the purchaser to have the title examined before confirmation, and, if his objection to the proceedings, or to

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the title, are sustained, the sale will be set aside, and the deposit or purchase money paid will be refunded to him, with the expenses of examining the title and costs.

So, a purchaser was held entitled to be relieved from his purchase, and to be repaid his deposit upon the sale with interest, and all his proper expenses of examining the title, with costs, where there was a question affecting the title as against heirs who were not made parties in a partition sale. Toole v. Toole, 112 N. Y. 333, 2 L. R. A. 465, 8 Am. St. Rep. 750, 19 N. E. 682.

And purchasers were held entitled to have the amount paid on their bids refunded, and the auctioneer's fees and costs, where the sale was made in partition, and there was a question as to the lien of legatees, which could not be determined, as they were not parties. Jordan v. Poillon, 77 N. Y. 518.

In Campbell's Estate, Tucker, 240, the surrogate held that a sale was so irregular that it should be set aside, and that the purchaser was entitled to be paid his deposit and the auctioneer's fees. But he further held that a surrogate had no power to allow counsel fees on this proceeding, or on examining the title.

And under N. Y. Code Civ. Proc. §§ 2752 and 2754, providing, in a petition to sell decedent's real estate to pay debts, that the petition should state the names of the heirs and devisees, and that they should be cited, where the petition omitted the same, and the heirs were not cited, a purchaser was held entitled to a return of the purchase money paid, and the auctioneer's fees, and the expenses incurred in the examination of the title, in an application to be relieved from sale. John's Estate, 21 N. Y. Civ. Proc. Rep. 326.

So, it was held that the purchaser was entitled to have the purchase price refunded, with the expenses, including searching of title, and this was apportioned between the parties procuring the sale. Muller v. Struppman, 6 Abb. N. C. 343. In this case a partition sale was held invalid on the ground that the supreme court had no inherent original authority to order a sale of the real estate of an infant.

And in an action for partition a sale was held to pass an insufficient title, and the purchaser was held entitled to be discharged from his bid, and to the return of his deposit of 10 per cent, and to interest, out of the rents and profits in the hands of the receiver, and expenses of investigating the title. Rogers v. McLean, 10 Abb. Pr. 306. In this case an infant lunatic, who was a necessary party, was not served with summons.

And a purchaser under a sale to pay debts under an order of surrogate's court was held released, and the return of his deposit granted, and costs of examining the title, where the proceedings were invalid, and creditors were not parties, and the title was doubtful. Mahoney v. Allen, 18 Misc. 134, 42 N. Y. Supp. 1127. In this case the referee moved to compel the purchaser to comply with his bid, and the purchaser moved to be released from his bid, and to have his deposit returned, and to be reimbursed expenses, and to set aside the final judgment and order confirming the sale.

sale was properly set aside, and the purchaser was allowed $50 expenses for examination of title, to be paid from the proceeds of the sale. Rogers v. Menton, 21 Misc. 535, 47 N. Y. Supp. 1147. This evidently was to be refunded from a second sale, but the case does not show this.

And a sale under a mechanic's lien was set aside because the purchaser was ignorant that the defendant's wife had an interest in the property. It was held that the court had power to set aside the sale, and to reimburse the purchaser from the proceeds. It was held that the

So, a purchaser at a mortgage foreclosure was heid entitled to have his bid canceled, and to a return of the purchase money paid, with $102, the expense of examining the title, where the sale was made subject to a mortgage having eighteen months to run, when in fact such other mortgage was already in process of foreclosure. Bradley v. Leahy, 54 Hun, 390, 7 N. Y. Supp. 461.

And a purchaser was held entitled to be relieved from his bid, and to have the 10 per cent deposit refunded, and the costs and expenses of searching the title paid to him, where the sale was made by the receiver of an insurance company on a foreclosure, and infant owners were not made parties to the action. People v. Globe Mut. L. Ins. Co. 33 Hun, 393.

In the following cases, where the sale was set aside, a return of the deposit was allowed: Re Whitlock, 32 Barb. 48; Hirsch v. Livingston, 3 Hun, 9; Beckenbaugh v. Nally, 32 Hun, 160; Collier v. Whipple, 13 Wend. 224.

And a sale of a decedent's estate in an action for partition was objected to on the ground that there was a mortgage on the premises, and that there were no advertisements for creditors, and that the administrator could have a resale to pay debts. It was held that the purchaser could not be compelled to take the property, but was entitled to be refunded his 10 per cent deposit with interest. Hall v. Partridge, 10 How. Pr. 188.

On a bill against devisees to subject property in their hands to a debt of the testator, judg ment creditors were not made parties. The sale was set aside, and it was held that the purchaser should be discharged from his purchase and the deposit returned to him, and that he was also entitled to the interest on his deposit, and to the costs to which he had been subjected. Morris v. Mowatt, 2 Paige, 586, 22 Am. Dec. 661. The court said: "At present, there is no fund under the control of the court out of which the interest and costs can be paid; and, as all the parties have acted in perfect good faith in relation to this sale, the expenses must be paid out of the fund hereafter to be raised, if a second sale takes place. If no sale of the property is had, and no other way is provided for the payment, the charge must fall on the complainants personally."

And where a plaintiff guardian of an infant in a foreclosure action was also appointed guardian ad litem without disclosing that he was guardian, the sale was held voidable, so that the purchaser was entitled to be relieved from the purchase and to have the money paid in refunded, with costs. Hecker v. Sexton, 43 Hun, 593.

So, a purchaser at a partition sale was held entitled to be released, and to have the money paid returned, with his disbursements, where the property was encumbered by a condition limiting the buildings to be erected at a certain cost, which was not disclosed at the sale. Knee v. Kuykendall, 6 N. Y. S. R. 1.

So, where the complainant in a partition suit was a feme covert, and her husband was not joined as a party, it was held to be fatal to the title of the purchaser; and it was held that, if the title could not be perfected, the pur

chasers were to be discharged and their deposits | authority, is that a judicial or execution sale returned, including costs, out of the proceeds of the lots directed to be sold. Spring v. Sandford, 7 Paige, 550.

In Aspinwall v. Balch, 4 Abb. N. C. 193, it was held that, if the property bought at a foreclosure sale was materially damaged by fire before the deed was delivered, the purchaser would not be obliged to accept it. In this case the damage was not material, but it was held that, if the plaintiffs in the foreclosure action did not repair the building within a reasonable time, or give adequate compensation, the purchaser could renew his motion to be discharged, and for a return of his deposit.

will not be set aside at the instance of the debtor, or the purchaser will not be ousted from possession without refunding to him his purchase money which has been applied to the benefit of the debtor. This is on the ground that "he who seeks equity must do equity." And the same relief has been had in commonlaw cases where the distinction between common law and equity has been abolished. This principle is derived from the Roman law, as shown by Justice Story in the case of Bright v. Boyd, 1 Story, 478, Fed. Cas. No. 1,875, saying: "Where a bona fide possessor or purchaser of real estate pays money to discharge any existing encumbrance or charge upon the estate having no notice of any infirmity in his title, he is entitled to be repaid the amount of such payment by the true owner, seeking to recover the estate from him. Dig. lib. 6, title, 1, L. 65; Pothier Pand. lib. 6, title 1, note 43.

And a purchaser was relieved from his bid in a sale under partition instituted under the Revised Statutes, when such proceedings had been abolished by the Code. It was held that the purchaser was entitled to have his deposit repaid, and to an order directing the petitioners to pay costs and expenses, to be a charge upon the petitioners' interest in the land. Re Cavanagh, 14 Abb. Pr. 258.

So, the purchaser losing title is allowed by subrogation a lien on the interest of the debtor in the land, on the principle that equity will subrogate the party extinguishing the lien to the rights of the lien holder, and will protect him to that extent. The question of reimbursement or subrogation arises from the nature of the relief sought, the pleadings in the case, and the possession of the land.

In other states, where the sale is set aside the practice is to direct the return to the purchaser of the purchase money paid, where it has not been distributed. This was held in the following cases: Levy v. Riley, 4 Or. 392; Dula v. Seagle, 98 N. C. 458, 4 S. E. 549; Shields v. Allen, 77 N. C. 375; Smith v. Brittain, 38 N. C. (3 Ired. Eq.) 347, 42 Am. Dec. 175; Dumestre's Succession, 40 La. Ann. 571, 4 So. 328; Lee v. Texas & N. O. R. Co. 22 Tex. Civ. App. 501, 55 S. W. 976; Hyman v. Smith, 13 W. Va. 744; Edney v. Edney, 80 N. C. 81; State Bank v. Green, 10 Neb. 130, 4 N. W. 942; Preston v. Fryer, 38 Md. 221.

After a decretal sale a deficiency execution was issued without authority of law, because there was on file a supersedeas bond staying proceedings, and the execution was invalid. The purchasers of the property were held entitled to a return of the purchase money paid, with legal interest. State Bank v. Green, 10 Neb. 130, 4 N. W. 942.

And a purchaser at a master's sale which was confirmed appealed from the order of confirmation. The sale was set aside on appeal, and the purchaser in the meantime had paid her bond. It was held that she was entitled to have the purchase money returned with interest, and that she was not liable for the fees of the appellant's attorneys, the commissioner and the clerk. Hall v. Dineen, 26 Ky. L. Rep. 1017, 83 S. W. 120.

On a bill to enforce a mechanic's lien against the separate real estate of a woman, a decree of sale was made. The decree was reversed on the ground that against a separate estate it should have provided for the application of rents and profits, and not for a sale of the corpus, and the sale set aside. It was held that the purchaser should receive back her bonds executed for the purchase money, and the cash payment should be refunded, but that she should be charged with the rents and profits, less taxes paid, and, if the rents and profits should exceed the cash payment, a personal execution should be rendered against her for the balance. Charleston L. & M. Co. v. Brockmeyer, 23 W. Va. 635.

III. Relief by reimbursement or subrogation.
a. Generally.
The general rule, according to the weight of

The exceptional cases in regard to the restitution to the purchaser of the purchase money, or his right to subrogation, occur in probate or guardian sales, where the purchase money was not used to extinguish liens, in some cases applying the principle of caveat emptor where subrogation was denied.

In some cases relief was denied where the proceedings were void, as in attachment proceedings, or a personal judgment on publication only, and there was no judgment to support the lien.

There were other cases where relief was denied on account of the pleadings or parties, or where another remedy was suggested.

b. Reimbursement.

The weight of authority is that reimbursement to the purchaser will be imposed as a condition precedent in actions to set aside execution and judicial sales, and in actions of ejectment in states allowing equitable defenses, where the money of the purchaser has extinguished debts which were a charge on the land. This is on the principle that he who seeks equity must do equity, or on the principle of compensation, or on what is known as an equitable lien allowed the purchaser to secure his advances. Keeping these principles in view, the courts have established a broad equitable principle that the purchaser will not be compelled to restore the property under a void sale, where he is not in fault, without being compensated for his purchase money.

This was held where a mistake was made by the auctioneer in confusing the numbers of two lots, thereby sacrificing a valuable lot for a small amount. The purchaser was held entitled to the amount paid and interest and taxes, subject to rental value. Howlett v. Garner, 50 S. C. 1, 27 S. E. 533.

So where a sheriff's sale under execution of an indelinite interest in an estate was held void. Penn v. Spencer, 17 Gratt. 85, 91 Am. Dec. 375.

A purchaser under a title bond brought suit

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