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Thereupon, at the December term of the sioner sold a tract of land, and, the purcourt, the court awarded a rule against chaser failing to execute bond, readvertised Cowper to show cause, if any he could, why the property, and made a second sale at the he should not pay the difference between next county court. He then reported to the the bid made by him and the bid made at court both the sales. The court confirmed the second sale, which the court then con- the second sale, and ordered the property firmed. Appellant, Cowper, in response to conveyed to the purchaser. After this a this rule, set out that the intestate had no rule was taken out against the purchaser at title to the property, and also relied on va- the first sale to show cause why he should rious irregularities in the proceedings. He not pay the deficiency. It was held that also set up the order above quoted, by which he was not liable. The court said: “While the sale to him was ordered to be treated as an accepted bidder at a judicial sale who a nullity, and pleaded it in bar of the rule, fails to comply with his bid may, by proper in connection with the subsequent orders of proceedings, be required to pay the damage the court confirming the second sale, and resulting from such failure, which would inconveying the property to the purchaser clude the difference between the bid, if any, thereat.

and the amount realized on the final sale, In Makemson v. Braun, 100 Ky. 88, 18 if the property sold for less on that sale Ky. L. Rep. 584, 37 S. W. 495, the commis- | [than at the former sale], yet, where the depends upon and awaits his sanction and con- at execution sale to make a necessary memofirmation."

randum in writing. Linn Boyd Tobacco Ware. But in Camden v. Mayhew, 129 U. S. 73, 32 house Co. v. Terrill, 13 Bush, 463. L. ed. 608, 9 Sup. Ct. Rep. 246, the purchaser In Harvey v. Adams, 9 Lea, 289, it was held failed to pay his cash bid. A rule was awarded that the purchaser at the first sale, where there against the purchaser to show cause why he had been a resale, could not be held liable by should not pay the sum bid by him for the the judgment creditor for the difference in the property, or why the sale should not be set first and last bid, the court saying: "There is aside and a resale had at his risk and costs, no privity of contract between the complainants and the exceptions to the report of the sale and the defendant. The defendant's contract were sustained. The sale was set aside, and the was with the sheriff, and the liability to him." commissioners were directed to resell the prop- In Grier v. Yoptz, 50 N. C. (5 Jones, L.) 371, erty, at the cost of the purchaser, for cash, a purchaser was held released from liability reserving for future "determination in this case for a deficiency on a resale where a new process the question whether the said Camden will be was issued to sell the land. The court said: required to pay the deficiency." He was held "By suing out the venditioni exponas, the credliable for the deficiency on a proceeding by rule. itor treats the debtor as still the owner of the The setting aside of the sale in this case was land, and he relies upon that for the payment probably because of noncompliance with the bid, of his debt.” although the reasons are not given, and the Under S. C. act 1839, $ 58, providing that, purchaser was not released, because the same if the purchaser at sheriff's sale shall fail to order provided for his liability being retained. comply with the terms, the sheriff shall proThe chief question discussed was the right to ceed to resell at the risk of the defaulting purproceed by rule or attachment without the sale chaser, either on the same or some subsequent having been confirmed. On ordering the resale, sale day, as the plaintiff may direct, and, in the court had offered the first purchaser the the absence of any directions, shall resell on the privilege of paying his bid, which was held same day if practicable, and, if not, on the next equivalent to a confirmation.

succeeding sale day, making in every such case A purchaser will be discharged from liability proclamation that he is reselling at the risk of on a resale where proper steps to fix his liabil- such defaulting former purchaser,-it was held, ity are not taken.

in Yongue v. Cathcart, 2 Strobh. L. 221, that So, a purchaser was held released from the the purchaser was released where the sheriff deficiency caused by a resale, where such resale failed at the resale to make the proclamation was had on different terms from those on which required by the statute. On a subsequent trial he purchased. Ray V. Adams, 28 Misc. 664, 59 of this case (3 Strobh. L. 304) it was held N. Y. Supp. 1047; Riggs v. Pursell, 74 N. Y. that, if the sheritf did not sell on the same 370 ; Banes v. Gordon, 9 Pa. 426; Weast v. Der- day, or the succeeding sale day, the purchaser rick, 100 Pa. 509 ; Labauve v. McCabe, 34 La. would be released from a deficiency unless the Ann. 183; Zimmerman v. Eckert, 2 Pennyp. 221; sheriff showed that the second sale was by the Freeman v. Husband, 77 Pa. 389; Paul direction of the plaintiff. Shallcross, 2 Rawle, 326; Hare v. Bedell, 98 And where the sheriff before the return day Pa. 485.

returned on his writ that the purchaser had And the same was held in Hendrick v. Davis, not paid, and the property was unsold for want 27 Ga. 167, 73 Am. Dec. 726, holding, also, that

of bidders, and made no demand, it was held the same property must be resold, and resold that the bidder was not liable for the difference as the property of the identical defendant, as

in the price. Holdship v. Doran, 2 Penr. & whose property it had been bid off to the first W. 9. There seems to be some difference in purchaser.

the practice in such cases. In this case the And a purchaser was held released from lia- court suggested that the sheriff should sue if bility for a deficiency on second sale where the money was not ready at the return day, the sheriff, on a return of the execution, made without tendering a deed, or he might make a no mention of the defaulting bidder. The court special return "that the property was knocked further held that it was the duty of the sheriff' down to A B for so much,—that said A B bas bid. McCord v. McGinty, 99 Ga. 307, 25 S. E. Purchasers have been released from liability 667. This sale was void under a statute. (See on the ground of mistake, or want of authority Upchurch v. Lewis, 53 Ga. 621, subdiv. III. b.) in their agent to bid, or defects in the prop- So, where an administrator fraudulently reperty or title.

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commissioner las 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, there- And where a sheriff's sale was set aside and fore, the property remains unsold." But that quaslied, it was held that the sale bond also was the sheriff could not, unless the purchaser was properly quashed, and the purchaser released. notoriously insolvent, return that the pur- Wilson v. Percival, 1 Dana, 419. chaser has not paid long before the return So, a bidder was held released from his purday, and that the property was, therefore, un- chase as adjudicatee of a succession, where it sold for want of bidding; and "where he does appeared that there was probability of litigaso, and has made no demand, and no evidence tion on the title. Rogge v. Municipal Improv. to justify him in so doing, the bidder is not Co. 49 La. Ann. 37, 21 So. 170; Bachino v. liable for the difference in prices."

Coste, 35 La. Ann. 570; Nash's Succession, 48 In Miller v. Collyer, 36 Barb. 230, it was La. Ann. 1573, 21 So. 254. held that the purchaser was not liable to the And in Dunscomb v. Holst, 13 Fed. 11, where assignee of the sheriff under a foreclosure sale, the title was such that the purchaser was not where the terms of sale were that, if any pur- bound to accept, an order was made relieving chaser shall fail to comply with the conditions, him from complying with his bid, and directing the premises so struck down will be put up for a resale. sale upon the same terms without notice to the A sale was void where the vendor, having a purchaser, and such purchaser shall be held purchase-money lien, had execution sale liable for any deficiency; that the remedy thereon of the land without having his deed against a purchaser was by application to the securing such lien put on record. It was held court to compel him to complete it, or to re- that the purchaser should be released from his sell, and hold him liable for the loss.

resented that the land sold was the property So, in Clay v. Kagelmacher, 98 Ga. 149, 26 of his intestate by virtue of the location of a S. E. 493, it was held that a bidder would be head right, where he knew that it had been released from liability on a resale, where he had located upon another tract, it was held that refused to comply with his bid by reason of the the judgment upon the sale note for the purstatements of the auctioneer causing him to chase money should be enjoined. Coombs v. make a mistake as to the identity of the lot Lane, 17 Tex. 280. purchased.

In Deaver v. Reynolds, 1 Bland, Ch. 50, a purIn Harder v. Safle-Stegall Commission Co. chaser in partition sale was released by order 61 Ark. 66, 31 S. W. 979, it was held that, if of court, where he was unable to comply with a second sale was made because an alleged pur- the requirements of the sale in regard to exe. chaser refused to ratify a bid made by his cuting bonds, and asked that the sale be set agent, and the authority of the agent was aside; but he was held chargeable with the limited, and the sheriff knew that he was ex- costs and expenses of the first sale, to be receeding his authority, the purchaser would be tained out of any share coming to him. released from the deficiency arising from the For other cases where the purchaser at a second sale.

judicial sale was released on account of the Executors of a mortgagor were misled and title, see next subdiv., where sales were set induced to believe that a sale of the premises aside and deposit returned. would not take place. It was held that the sale shouid be set aside on the ground of sur- II. Release from bid and return of deposit. prise, on their paying to the purchaser his costs and expenses; and, if this was not complied In England, Ireland, and Canada the practice with, the plaintiff could cause the property to is that on a report of sale the purchaser may be exposed again for sale. Williamson v. Dale, suggest doubts upon the title, whereupon a 3 Johas. Ch. 290.

reference is had to ascertain and report, and, And where an administrator's sale was void, if the master reports that there is a cloud on It was held that an action for specific per- the title, the purchaser is released, and is entiformance could not be maintained by the heir tled to a return of the purchase money paid. against the purchaser. Kertchem v. George, 78 and is usually allowed interest and costs. The Cal. 597, 21 Pac. 372.

question of practice is stated to be as follows, solute. Brassfield v. Burgess, 10 Ky. L. the bond, a resale may be ordered, or the Rep. 660, 10 S. W. 122, is in effect the same, purchaser may be dealt with as in cases of and so is Tyler v. Guthrie, 17 Ky. L. Rep. contempt; and, in this state of case, if the 1193, 33 S. W. 934. But in none of the land on the second sale sells for more than cases is the court allowed to treat the sale on the first, the surplus will belong to the as a nullity, and still proceed to hold the purchaser. The court cannot, however, purchaser liable. treat the sale as a nullity, and thus keep Judgment reversed and cause remanded, the surplus, if the land on the second sale with directions to discharge the rule against sells for more than on the first, and at the appellant. in Kirwan v. Blake, 1 Hogan, 151: First, that be paid interest and costs. Mackay v. Orr, 3 Ir. the bidding binds the bidder, while it is open to | Eq. Rep. 499. the court to receive an out bid and order a re- In Hill v. Kirwan, 1 Hogan, 175, where the sale, until the conditional order of confirmation purchaser was discharged because a good title has become absolute; second, that the condition- could not be made, and there was no fund in al order cannot be entered until the bidder has court to pay his interest and costs, the purchase deposited one fourth of the purchase money ; money having already been paid back, it was third, that the order to confirm absolutely can. held that he was entitled to have a receiver not be done until the remaining three fourths appointed over the lands, with direction to of the purchase money is paid; fourth, if the apply the rents in the discharge of his interest title is not good, the purchaser will be paid and costs. back his purchase money at 6 per cent with- A person who had made a deposit as the out being involved in any of the consequences highest bidder under a decree, and who was of the investment or disposition of the funds outbid at a subsequent sale, was held entitled between the parties ; fifth, that the purchaser to have his deposit paid back immediately ; but has a right to have his purchase money in- as to his interest and costs he was required to rested in the stocks at his own risk, or to trans- wait until the sale was completed. Archdall y. fer stock at his own risk to the amount of the Montgomery, Vern. & S. 302. purchase money, but in that case he will be And where the title to land sold under a debound to make good the full amount of the pur- cree was defective, and the purchaser was dischase money when the transaction is completed, charged, he was held entitled to the full amount and to gain or lose the difference himself. of his purchase money, interest and costs. It

fails to execute his bond, it may be that same time hold the purchaser responsible for the parties prefer another sale, thinking the deficiency if on the second sale it sells that the property will sell for more, and in for less. In Shirley v. Shewmaker, 23 ky. this event the court may so order without L. Rep. 452, 63 S. W. 11, the first sale was taking any proceedings against the purchas- confirmed by the court and a rule was taken er. But if it is desired to hold the pur- against the purchaser to show cause why he chaser, then his bid must be accepted by should not give bond, which was made abthe court, and, if he still refuses to give

In the following cases, on the sale being set was further held that, where such interest and aside, the purchaser was held entitled to a re- costs were to be paid out of a fund chargeable turn of his deposit with costs. There is not with the usher's poundage, the loss should be enough difference in the facts in these cases to borne by the funds in the cause, and not by the justify setting them out in full : Ward v. discharged purchaser. Johnson V. Reardon, 3 Trathen, 14 Sim. 82; Reynolds v. Blake, 2 Sim. Ir. Eg. Rep. 200. & Stu. 117; Calvert v. Godfrey, 6 Beav. 97. A sale in partition was invalid because it But without interest: Feely v. Kilkenny, Flan, took place before the certificate in answer to & K. 456 ; Lachlan v. Reynolds, Kay, 52 ; M'Cul- the inquiries directed by the decree was made. loch v. Gregory, 1 Kay & J. 286.

It was held that the purchaser was entitled to And where a purchaser under a decree was his costs arising from the deposit, which had released because the title was encumbered by a been paid into court and invested, with the right to cut timber, it was held that the pur- dividends thereon, or the actual amount of chaser was justified in withholding payment deposit and produce, with costs, charges, and until the objection was removed, and, if it could expenses. Powell v. Powell, L. R. 19 Eq. 422. not be removed, the purchaser would be entitled The court said: If he insisted upon the return to be discharged from his purchase and to have of the money itself, he was entitled to it and his deposit refunded, or to an allowance of an all the dividends which have arisen from its abatement in the purchase money.

Street v. investment. Hallett, 6 Ont. Pr. Rep. 312. The court did But where the purchaser lodged stock instead not aliow costs because the application was of money in court, and the sale was set aside premature.

by the House of Lords for want of title, on a In the following cases the purchaser was motion by the purchaser to have the stock reallowed the return of his purchase money with turned in specie, and not merely the money interest and costs : Lineham v. Cotter, 8 Ir. Eq. ordered deposited with 6 per cent interest, as Rep. 104 ; Gower v. Hill, Hayes & J. 127; the funds had risen in the interim, it was held Pleasants v. Roberts, 2 Molloy, 507.

that, as it was not shown that he undertook And a purchaser under a decree was dis- the risk of a fall in the prices, he was not charged upon a report of bad title, and it was entitled to the benefit of the advance; and his held that his deposit should be paid back with- money, with interest, was returned. Kirwan v. out prejudice to his applying for interest and Blake, 2 Molloy, 506. costs, when there should be a fund in court. In New York the practice is for the purchaser After his death a fund was realized from which to have the title examined before confirmation, his personal representative was held entitled to and, if his objection to the proceedings, or to other mortgage was already in process of foreAnd purchasers were heid entitled to have closure. Bradley v. Leahy, 54 Hun, 390, 7 N. Y. the amvunt paid on their bids refunded, and the Supp. 461. auctioneer's fees and costs, where the sale was And a purchaser was held entitled to be remade in partition, and there was a question as lieved from his bid, and to have the 10 per to the lien of legatees, which could not be de- cent deposit refunded, and the costs and extermined, as they were not parties. Jordan v. penses of searching the title paid to him, where Poillon, 77 N. Y. 518.

the title, are sustained, the sale will be set sale was properly set aside, and the purchaser aside, and the deposit or purchase money paid was allowed $30 expenses for examination of will be refunded to him, with the expenses of title, to be paid from the proceeds of the sale. examining the title and costs.

Rogers v. Menton, 21 Misc. 535, 47 N. Y. Supp. So, a purchaser was held entitled to be re- 1147. This evidently was to be refunded from lieved from his purchase, and to be repaid his a second sale, but the case does not show this. deposit upon the sale with interest, and all his So, a ,purchaser at a mortgage foreclosure proper expenses of examining the title, with was beid entitled to have his bid canceled, and costs, where there was a question affecting the to a return of the purchase money paid, with title as against heirs who were not made par- $102, the expense of examining the title, where ties in a partition sale. Toole v. Toole, 112 the sale was made subject to a mortgage hav. N. Y. 333, 2 L. R. A. 463, 8 Am. St. Rep. 750, ing eighteen months to run, when in fact such 19 N. L. 682.

the sale was made by the receiver of an inIn Campbell's Estate, Tucker, 240, the surro- surance company on a foreclosure, and infant gate held that a sale was so irregular that it owners were not made parties to the action. should be set aside, and that the purchaser was People v. Globe Mut. L. Ins. Co. 33 Hun, 393. entitled to be paid his deposit and the auction- In the following cases, where the sale was eer's fees. But he further held that a surrogate set aside, a return of the deposit was allowed : had no power to allow counsel fees on this pro- Re Whitlock, 32 Barb. 48; Hirsch v. Livingston, ceeding, or on examining the title.

3 flun, 9; Beckenbaugh v. Nally, 32 Hun, 160 ; And under N. Y. Code Civ. Proc. $$ 2752 and Collier v. Whipple, 13 Wend. 224. 2754, providing, in a petition to sell decedent's And a sale of a decedent's estate in an real estate to pay debts, that the petition action for partition was objected to on the should state the Dames ot the heirs and ground that there was a mortgage on the premdevisees, and that they should be cited, where ises, and that there were no advertisements for the petition omitted the same, and the heirs creditors, and that the administrator could were not cited, a purchaser was held entitled have a resale to pay debts. It was held that to a return of the purchase money paid, and the purchaser could not be compelled to take the auctioneer's fees, and the expenses incurred the property, but was entitled to be refunded in the examination of the title, in an applica- his 10 per cent deposit with interest. Hall tion to be relieved from sale. John's Estate, v. Partridge, 10 How. Pr. 188. 21 N. Y. Civ. Proc. Rep. 326.

On a biil against derisees to subject property So, it was held that the purchaser was en. in their hands to a debt of the testator, judgtitled to have the purchase price refunded, with ment creditors were not made parties. The the expenses, including searching of title, and sale was set aside, and it was held that the this was apportioned between the parties pro- purchaser should be discharged from his purcuring the sale. Muller v. Struppman, 6 Abb. chase and the deposit returned to him, and N. C. 343. In this case a partition sale was that he was also entitled to the interest on his held invalid on the ground that the supreme deposit, and to the costs to which he had been court had no inherent original authority to subjected. Morris v. Mowatt, 2 Paige, 586, 22 order a sale of the real estate of an infant. Am. Dec, 061. The court said: "At present,

And in an action for partition a sale was there is no fund under the control of the court held to pass an insufficient title, and the pur- out of which the interest and costs can be paid ; chaser was held entitled to be discharged from and, as all the parties have acted in perfect his bid, and to the return of his deposit of good faith in relation to this sale, the expenses 10 per cent, and to interest, out of the rents must be paid out of the fund hereafter to be and profits in the hands of the receiver, and raised, if a second sale takes place. If no sale expenses of iuvestigating the title. Rogers v. of the property is had, and no other way is McLean, 10 Abb. Pr. 306. In this case an in- provided for the payment, the charge must fall fant lunatic, who was a necessary party, was on the complainants personally." not served with summons.

And where a plaintiff guardian of an infant And a purchaser under a sale to pay debts in a foreclosure action was also appointed under an order of surrogate's court was held guardian ad liton without disclosing that he released, and the return of his deposit granted, was guardian, the sale was held voidable, so and costs of examining the title, where the pro- that the purchaser was entitled to be relieved ceedings were invalid, and creditors were not from the purchase and to have the money paid parties, and the title was doubtful. Mahoney in refunded, with costs. Hecker v. Sexton, 43 v. Allen, 18 Misc. 134, 42 N, Y. Supp. 1127. In Hun, 593. this case the referee moved to compel the pur- So, a purchaser at a partition sale was held chaser to comply with his bid, and the pur- entitled to be released, and to have the money chaser moved to be released from his bid, and to paid returned, with his disbursements, where have his deposit returned, and to be reimbursed the property was encumbered by a condition expenses, and to set aside the final judgment limiting the buildings to be erected at a certain and order confirming the sale.

cost, which was not disclosed at the sale. Knee And a sale under a mechanic's lien was set v. Kuykendall, 6 N. Y. S. R. 1. aside because the purchaser was ignorant that So, where the complainant in a partition suit the defendant's wife had an interest in the was a feme covert, and her husband was not property. It was held that the court had power joined as a party, it was held to be fatal to the to set aside the sale, and to reimburse the pur- title of the purchaser ; and it was held that, chaser from the proceeds. It was held that the if the title could not be perfected, the purthe property under a void sale, where he is not the purchaser should receive back her bonds in fault, without being compensated for his executed for the purchase money, and the cash | purchase money. payment should be refunded, but that she should This was held where a mistake was made by be charged with the rents and profits, less taxes the auctioneer in confusing the numbers of two paid, and, if the rents and profits should exceed lots, thereby sacrificing a valuable lot for a the cash payment, a personal execution should small amount. The purchaser was held entitled be rendered against her for the balance. to the amount paid and interest and taxes, subCharleston L. & M. Co. v. Brockmeyer, 23 W. | ject to rental value. Howlett v. Garner, 50 S. Va, 635.

chasers were to be discharged and their deposits authority, is that a judicial or execution sale returned, including costs, out of the proceeds will not be set aside at the instance of the debtof the lots directed to be sold. Spring v. Sand- or, or the purchaser will not be ousted from ford, 7 Paige, 550.

possession without refunding to him his purIn Aspinwall v. Balch, 4 Abb. N. C. 193, it chase money which has been applied to the was held that, if the property bought at a benefit of the debtor. This is on the ground foreclosure sale was materially damaged by fire that "he who seeks equity must do equity." before the deed was delivered, the purchaser and the same relief has been had in common would not be obliged to accept it. In this case law cases where the distinction between com. the damage was not material, but it was held mon law and equity has been abolished. This that, if the plaintiffs in the foreclosure action principle is derived from the Roman law, as did not repair the building within a reasonable shown by Justice Story in the case of Bright time, or give adequate compensation, the pur- v. Boyd, 1 Story, 478, Fed. Cas. No. 1,875, saychaser could renew his motion to be discharged, ing: “Where a bona fide possessor or purchasand for a return of his deposit.

er of real estate pays money to discharge any And a purchaser was relieved from his bid existing encumbrance or charge upon the estate in a sale under partition instituted under the having no notice of any infirmity in his title, Revised Statutes, when such proceedings had he is entitled to be repaid the amount of such been abulished by the Code. It was held that payment by the true owner, seeking to recover the purchaser was entitled to have his deposit the estate from him. Dig. lib. 6, title, 1, L. 65 ; repaid, and to an order directing the petition- Pothier Pand. lib. 6, title 1, note 43. ers to pay costs and expenses, to be a charge So, the purchaser losing title is allowed by upon the petitioners' interest in the land. Re subrogation a lien on the interest of the debtor Cavanagh, 14 Abb. Pr. 258.

in the land, on the principle that equity will In other states, where the sale is set aside subrogate the party extinguishing the lien to the practice is to direct the return to the pur- the rights of the lien holder, and will protect chaser of the purchase money paid, where it him to that extent. The question of reimbursehas not been distributed. This was held in ment or subrogation arises from the nature of the following cases : Levy v. Riley, 4 Or. 392; the relief sought, the pleadings in the case, and Dula v. Seagle, 98 N. C. 458, 4 S. E. 549; the possession of the land. Shields v. Allen, 77 N. C. 375 ; Smith v. Brit- The exceptional cases in regard to the restitain, 38 N. C. (3 Ired. Eq.) 347, 42 Am. Dec. tution to the purchaser of the purchase money, 175 ; Dumestre's Succession, 40 La. Ann, 571, or his right to subrogation, occur in probate or 4 So. 328; Lee v. Texas & N. 0. R. Co. 22 Tex. guardian sales, where the purchase money was Civ. App. 501, 55 S. W. 976 ; Hyman v. Smith, not used to extinguish liens, in some cases ap13 W. Va. 744; Edney v. Edney, 80 N. C. 81; plying the principle of caveat emptor where State Bank v. Green, 10 Neb. 130, 4 N. W. 942 ; subrogation was denied. Preston y. Fryer, 38 Md. 221.

In some cases relief was denied where the Aiter a decretal sale a deficiency execution proceedings were void, as in attachment prowas issued without authority of law, because ceedings, or a personal judgment on publication there was on file a supersedeas bond staying only, and there was no judgment to support the proceedings, and the execution invalid.

lien. The purchasers of the property were held en- There were other cases where relief was detitled to a return of the purchase money paid, nied on account of the pleadings or parties, or with legal interest. State Bank v. Green, 10 where another remedy was suggested. Neb. 130, 4 N. W. 942. And a purchaser at a master's sale which was

b. Reimbursement. confirmed appealed from the order of confirmation. The sale was set aside on appeal, and The weight of authority is that reimbursethe purchaser in the meantime had paid her ment to the purchaser will be imposed as a conbond. It was held that she was entitled to have ditlon precedent in actions to set aside executhe purchase money returned with interest, and tion and judicial sales, and in actioas of ejectthat she was not liable for the fees of the ap- ment in states allowing equitable defenses, pellant's attorneys, the commissioner and the where the money of the purchaser has extinclerk. Ilall v. Dineen, 26 Ky. L. Rep. 1017, 83 guished debts which were a charge on the land. S. W. 120.

This is ou the principle that he who seeks equity On a bill to enforce a mechanic's lien against must do equity, or on the principle of compenthe separate real estate of a woman, a decree sation, or on what is known as an equitable lien of sale was made. The decree was reversed on allowed the purchaser to secure his advances. the ground that against a separate estate it Keeping these principles in view, the courts should have provided for the application of have established a broad equitable principle that rents and profits, and not for a sale of the cor- the purchaser will not be compelled to restore pus, and the sale set aside. It was held that

C. 1, 27 S. E. 533.

So where a sheriff's sale under execution of III. Relief by reimbursement or subrogation. an inde inite interest in an estate was held

void. Penn v. Spencer, 17 Gratt. 85, 91 Am. a. Generally.

Dec. 375. The general rule, according to the weight of A purchaser under a title bond brought suit


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