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against the purchaser of the same land under aside on condition that the debtor pay to the execution sale for the deferred payments where purchaser the amount of the bid with 8 per cent the deed had not been put upon record. This interest, and the money which the purchaser execution sale was void under Ga. act 1847, $ 3, paid, and the interest on an existing mortgage. providing that when any judgment shall be and improvements, taxes, and insurance, less given on a purchase-money note, where titles the rents. Lurton v. Rodgers, 139 Ill. 554, 32 have not been made, but bond for titles has Am. St. Rep. 214, 29 N. E. 866. This was an been given, the obligor of the bond may file a action to set aside and redeem because lots deed of conveyance, and thereupon the same valued at $2,000 were sold on execution sale may be levied on and sold under said judgment. for $60, and because sold en inasse. It was held that the purchase should be set And where a levy was void for uncertainty. aside on complainant paying to the purchaser and the sale passed no title, it was held that, the amount paid by him. Upchurch v. Lewis, if the defendant was incompetent to consent to 53 Ga. 621.

the sale, and was not thereby estopped, his In another case arising under this statute, a administrator could not cancel the sheriff's vendor of a title bond, where part of the money deed and recover the land without accounting was paid, obtained a judgment against the ven- for so much of the purchase money as the indee on his purchase-money notes, although the testate had the benefit of, with interest. purchaser was willing to pay provided he could O'Kelley v. Gholston, 89 Ga. 1, 15 S. E. 123. obtain the title that he had contracted for. An So, reimbursement was made a condition execution sale was had of the property to a precedent in a suit against the purchaser under purchaser, ccmbining with the vendor to de- execution to enforce liens. It was held that, fraud the holder of the title bond. In an action as no judgment sustaining the execution was by the holder of the title bond to set aside the produced, on account of a mistake in the exe. sale, and for a specific performance, the court cution reciting a different judgment, the sale said : "If the purchaser has paid his bid, and should be set aside ; but, as the proceeds arisit has been appropriated to the payment of the ing from the sale of slaves were applied to the debt due by complainant to his vendor, he is en- discharge of the judgment debts of the plaintitled to be reimbursed, and he should be pro- tifi', it was held that he could not recover until tected to that extent in any decree that may be he had repaid that money. Dufour v. Cam. rendered." Brunson v. Grant, 48 Ga. 394. franc, 11 Mart. (La.) 607, 13 Am. Dec. 360.

So, on the principle that "he who seeks equity The same was held in a similar case. Donmust do equity," it was held that the com- aldson v. Rouzan, 8 Mart. N. S. 162. plainants would be required, as a condition And a purchaser in good faith, who paid the precedent, to refund to the purchaser so much money in discharge of the judgment, was held of the purchase money as came into their entitled to reimbursement before the relief hands. This was a suit by heirs against the sought by the bill would be granted, in an acpurchaser to set aside a sale made in partition by an infant to set aside a sale under tion under a decree by a court having no juris- execution issued after the death of the defend. diction of their persons, and for an accounting ant without revivor. Cook v. Toumbs, 36 Miss. of rents. It was also held that the purchaser 685. The court said : "But this is rather a was entitled to be refunded taxes paid by him. matter of defense, than a part of the complainChambers v. Jones, 72 111. 275. The court said : ant's case; and it would be entirely competent **They are seeking relief against defendant, and, for the court, under the bill as now framed, to if they have his money in their possession, aris- decree that the deed of the sheriff to Cook be ing out of the same transaction, it is but just set aside and delivered up to be canceled, upon they should restore it to him. The court will the appellant paying to him the sum of money not assist them to recover the possession of paid by him in discharge of the judgment. their land, and give them an account of the Such a course is not inconsistent with the scope rents and profits, while they still retain in their and prayer of the bill, and the court, in grant. hands the purchase money. The case of Kinney ing the relief sought, is competent to do so v. Knoebel, 51 lll. 112, is an authority for this upon such equitable terms as may be shown view of the law, and the principle of that case to be just and proper." would authorize the imposition of conditions And in a suit in equity to avoid a judgment upon which relief will be granted.


and sale on the ground of false claims by credit shall appear that either of the heirs has re- itors and an irregular sale, there being no ceived any portion of the proceeds of the sale, fraud charged against the purchaser, it was the court, with great justness, may decree a held that relief would not be granted where the restoration of the amount before adjusting the complainants did not offer to refund the money equities between the parties. The same may be

that had been paid for the property by innosaid of the taxes."

cent purchasers. Wilson v. Bellows, 30 N. J. So, an offer to reimburse was held to be a

Eg. 282. condition precedent in an action by heirs to have a sale made in partition set aside, where

An order granted a new trial on payment of

costs. An execution for costs and a sale there. the money had been distributed. Byars v.

under was void. In a suit by the defendant Spencer, 101 III. 429, 40 Am. Rep. 212. And the defendant in the execution was held

against the purchaser to cancel the deed as a entitled to relief only on condition that within

cloud on the title, it was held that he should thirty days he pay into court for the benefit of

pay the purchaser the money appropriated for the purchaser the

In amount of the judgment,

his benefit. Herndon v. Rice, 21 Tex. 455. costs, and interest, where a sale on execution of

this case the court draws a distinction between a homestead was held void for failure to follow an action by the purchaser to cancel his deed the requirements of the statute, and conveyed and recover the purchase money, and an action no title.

Bullen v. Dawson, 139 Ill. 633, 29bg the defendant to remove the ground of possi. X. E. 1038.

ble attack upon his title. The court said the And a sheriff's deed to the purchaser, and the latter “is a remedy es gratia, dependent upon deed from the purchaser to his wife, were set' the sound discretion of the court, and will never

The pur

be exercised without doing ample justice to both, by executors, a bankruptcy court having no jusides, so far as it is practicable."

risdiction ordered the sale of the individual A sale was made of the equity of redemption, property of the deceased member. and the holder of the first mortgage became the chaser acquired no title. He had paid the as. purchaser. The sale was set aside on account signee, who applied the purchase money to the of the ignorance and age of the defendant, who judgment lien. tendered the purchaser all the money due on In an action by heirs to recover land sold at his decree, and the costs. Campbell v. Gardner, a sheriff's sale, the court said : **The sale, if 11 N. J. Eq. 423, 69 Am. Dec. 598.

valid, devested the title of their ancestor, and The same rule was held to apply in actions to they cannot recover. But, whether valid or enjoin a judgment in ejectment where the re- not, it was a verred in the answer, and appears covery was had by reason of a void sale.

in proof, that the ancestor of the plaintiffs reA purchaser at an execution sale was defeated ceived the benefit of the proceeds of the sale, in an action of ejectment by the debtor, the applied to the satisfaction of the execution sheriff's deed being void. It was held, in an against him. And, under the decision of this action to enjoin this judgment, that the pur- court in the case of Howard y. North, 5 Tex. chaser had an equitable right to retain posses- 290, 51 Am. Rep. 769, the plaintiffs cannot resion of the land as security for his purchase cover the property without reimbursing the money, and the injunction should not be dis- purchase money paid, which went to the satissolved until he was reimbursed. Shepherd v. faction of the judgment against their ancestor. Melntire, 5 Dana, 574.

This is according to the plainest dictates of reaSo, in an action to enjoin a judgment in son and natural justice; and this they have not ejectment, it was held that the defendant should done, nor offered to do." Morton y. Welborn, be required to refund to the purchaser the 21 Tex. 772. amount paid. Henderson v. Overton, 2 Yerg. In Henry v. McKerlie, 78 Mo. 416, holding 394, 24 Am, Dec. 492. In this case after the that the purchaser acquired title, the court levy of an attachment the defendant died. А

said : “When the sale has not been approved, sci. fa. was run against the executor, and judg- no title, either legal or equitable, passes to the ment was taken by default. A sci. fa, was run purchaser. The equity open to him proceeds against beirs without naming them, and a judg- upon the assumption of a void sale, and is for ment rendered against the heirs. The land was a return of the purchase money, and reimbursesold to this purchaser. The plaintiff in the ment for the benefits received by the heirs, and origiual proceedings acquired the title of the for improvements which enhance the value of heirs, and then brought ejectment against the their land; the extent of this equity to be ascerpurchaser. The court said : *It is said de. tained by an account of his expenditures and fendant did not receive from the sheriff the receipts. This equity suspends the right of whole amount. It is his misfortune. Had he recovery until the amount coming to him shall let his void judgment rest it would not have be ascertained and paid. It is administered happened."

upon the theory that the title has not passed In Andrews v. Richardson, 21 Tex. 287, the to the purchaser, but that he has a charge or purcbaser at judicial sale brought suit to enjoin lien for his outlays and improvements incurred a writ of possession against his tenant, issued by him in good faith.” by a justice, and the defendants sought to avoid And reimbursement to the purchaser was held the sale on the ground that there had been no a condition precedent in an action by an adminappraisal. The plaintiff in replication asked istrator of one partner against the purchaser that, if the sale was invalid, he should be rein- to recover the property, where there was a valid stated in his original decree of foreclosure, and judgment against partners and after the death have execution. The court held the sale was of one of the partners there were an execution valid, but said that, if it was not, the plaintiff levied upon the estate of the deceased partner would be entitled to the relief sought if he was and a sale. Bailey v. White, 13 Tex. 114. The the owner of the judgment, and, if not, he court said: "Under the circumstances of this would be entitled to be reimbursed the money case, the court, on general equity principles and he had paid.

in the discharge of equity jurisdiction, clearly In some states the practice is to administer had a right to make the decree, and could have equitable relief in common-law courts; and so prescribed the time within which it should be it is held in Missouri and Texas that a recovery paid, and that plaintiff should not have execuof the property from the purchaser on a void tion of his writ of possession until it was paid." sale will be granted only on condition that the But reimbursement was denied in the folpurchaser is reimbursed the purchase money ap- lowing cases on account of the pleadings, or plied to plaintiff's debt.

the failure to follow the proper practice : An execution sale was made after the execu- Executors made a mortgage without procur. tion became dead and no vend. exp. issued. In ing an order of the probate court, and a fore. an action of trespass to try title, by the pur- closure sale failed to pass title. In an action chaser, the equitable doctrine was applied, and against the vendee of the purchasers to recover it was held that he was entitled to recover the the property the court said: "If the money purchase money paid, in the absence of fraud. bid for the land on sale made on foreclosure was Johnson v. Caldwell, 38 Tex. 217. The court actually paid, and a valid debt of the estate held that the equitable doctrine that a pur- thus satisfied, appellants cannot be permitted chaser should not be compelled to restore prop


recover the land without refunding the erty without being reimbursed was applicable, money, although the sale was null.

No ques. and should have been applied when the sheriff's tion as to the right of appellee to have such deed was ruled out in evidence.

money as may have been so paid was made by So, in an action by the heir the defendant was pleadings or the evidence, and, as the judy. allowed possession until the payments could be ment will be reversed, and the cause remanded, ascertained by a reference. French v. Grenet, on account of matters before referred to, such 57 Tex. 273. In this case, after a member of a pleadings may hereafter be filed, and such an firm died, and his estate was being administered issue tried as will enable the court below to ad

just any equities that may exist between the blended system, the plaintiffs should have parties." Smithwick v. Kelly, 79 Tex. 564, 15 averred their willingness to pay the amount of S. W. 486.

the execution, with interest thereon; or the Three executions of different priority were in defendant should have claimed, provided his the sheriff's hands, and he sold the property title were declared invalid, that he should not levied upon to the third execution creditor, who be compelled to restore possession until the purpaid off the first judgment and credited his debt, chase money which he had paid for the benefit and the sheriff returned the execution unsatis of the plaintiffs, and by which the judgment fied for failure to pay the bid. A sale was then against them had been discharged, should be had on the second execution, and it was held reimbursed, and be indemnified." Howard v. that the first purchaser was entitled to an in North, ý Tex. 290, 51 Am. Dec. 769. junction to restrain a deed until reimbursed So, where an advance bid on a master's sale what he had paid on the first execution. Carn was made, and a resale was ordered, it was ahan y. Yerkes, 87 Ind. 62. The court said: held that the purchaser was entitled to have his “The payment of the Potts judgment operated original bid canceled, and the cash paid refor the benefit of the appellees. It removed a funded, and his notes given up and canceled, lien which was prior to the Cook judgment, un and he should have taken an order to that ef. der which they purchased, and, had it not been fect ; but where he allowed the money to remain so removed, they would have been compelled to in the hands of the commissioner, and it was pay it.

Under the circumstances, equity would, lost by the death of the commissioner and inperhaps, keep this judgment and its lien on solvency of his estate, he must bear the loss and the land alive for the benefit and security of the look to that estate for reimbursement. Head appellant. But the pleadings and record are v. Moore, 96 Tenn. 358, 34 S. W. 518. not in such a condition as that the appellees The exceptional cases where restitution was can in tbis action be compelled to pay the sum denied are those relating to probate sales, proso advanced by the appellant for their benefit, ceedings against nonresidents, and fraudulent as the condition upon which the deed to the ap sales, for which see infra. pellant for said land should be enjoined. It would be granting to the appellant relief which

c. Subrogation. he has not asked, and which the facts set up in the answer would not justify. Had the ap

1. Generally. pellant disclaimed any right to the land by The weight of authority is that a purchaser virtue of the sale made by the sheriff to him, at a void judicial sale is entitled to be subroand asked that the money advanced by him for gated to the lien of the creditor where the sale the purpose of paying off the Potts judgment is set aside. The doctrine of subrogation is also should be refunded, he might, perhaps, have derived from the civil law. See Domat, Civil been entitled to affirmative relief."

Law, pt. 1, book 3, 8 6, art. 1785 :

“The purSo, in Kuddell v. Sparks, 79 Tex. 308, 15 S. chaser of an estate, employing the price of his W. 239, it was said that, if the purchaser had purchase for the payment of the creditors to a claim for purchase money which had been ap whom the estate was mortgaged, is substituted plied to the payment of the judgment, and there. to their right to the value of what he pays after lost his property in an ejectment suit be them. For, by paying them with the price of cause the levy was on a homestead, he should their pledge in order to secure it to himself, have set up his claim there for reimbursement.

he preserves it to himself for the value of what It was held that he could not thereafter set it he pays them, against other subsequent credit. up as a set-off against an execution for officer's ors, although they be prior to his purchase." costs in a suit to try title, as they have no con So, a sale of property of an insolvent cornection.

poration to a reorganized corporation under a A sale of land under execution eight years decree in equity was held void because there after the death of the defendant was void be was no service on any officer of the corporacause there was no administrator. In an ac. tion. St. Louis & S. Coal & Min. Co. v. Sandov. tion of trespass to try title, where no equitable al Coal & Min. Co. 111 Ill. 32. relief was asked by either of the parties, it After this decision a bill was filed (116 Ill. was held that the rule that the purchase money 170, 5 N. L. 370), alleging that the new compaid for the land at the void sale must be re pany had advanced money to pay off the debts paid before title will be decreed to the heirs of the old, and asking that the ejectment suits did not apply. Fleming v. Ball, 25 Tex. Civ. be enjoined, and that equitable claims of the App. 209, 60 S. W. 985. The court said: new company be adjusted. It was held that "Whoever showed the superior legal title to the the new company was entitled to be subrogated land was entitled to a judgment, notwithstand to the rights of creditors notwithstanding its ing facts may have existed which, if properly | deed was void. pleaded and proved, would have entitled plain Attention is here called to Milwaukee & M. tiffs to some affirmative equitable relief should R. Co. v. Soutter, 13 Wall. 517, 20 L, ed. 543, it appear that appellee held the superior legal which was a trustee's sale, and therefore not title."

within the scope of this note, and which was A tract of land was levied on under execu

a similar case, except that the purchase by the tion, and only part was sold, sufficient to satisfy new corporation was held fraudulent as to credthe execution. It was held that the sale was

itors, and it was denied subrogation which it void, as the statute authorizing a sale of less claimed for having paid $450,000 on a prior than the whole tract levied on had been re mortgage. pealed. In an action of ejectment against the In Bruschke v. Wright, 166 Ill. 183, 57 Am. purchaser the court said: "We have repeated St. Rep. 125, 46 N. E. 813, a foreclosure sale ly determined that the legal and equitable was set aside at the instance of heirs, and a rights of parties litigant, in relation to the sub resale was ordered. It was held that a purject-matter of a controversy, should, as far as chaser at foreclosure sale and his assignee practicable, be set up and determined in a single would be subrogated to the rights of the mort. suit. In the due order of pleading, under our gagee.

Subrogation is also allowed on the ground | gated to the lien of the judgment paid with the that the purchaser has paid a debt under a purchase money. colorable obligation, and that he should be pro So, the assignee of the purchaser was held entected. This was held where a mortgage sale titled to subrogation where the defendant in an by school commissioners was void for want of execution sale on liens died on the day of sale, notice, and the heirs of the mortgagor recovered and the sale was held void because the revivor from the subvendee, who recovered on his war was premature. The executrix of the defendant ranty from the purchaser. Muir v. Berkshire, became the assignee of the purchaser, and paid 52 Ind. 149.

the judgment and debts, and in a suit by the So, on the ground that it was the policy of heirs the sale was held void. Forst v. Davis, the law to protect bidders at public sales, a 101 Ky. 343, 41 S. W. 27. purchaser was held entitled to be subrogated to A sheriff represented that land would be sold the rights of the state in the mortgage, where subject to redemption, under Indiana act 1861 a sale made by an auditor under a school-fund (which was afterwards held inoperative), and mortgage was set aside. Willson v. Brown, the land only brought one third of its value. S2 Ind. 471. The court said: “The principal | It was held that the sale should be set aside at objection urged against the sufficiency of the the instance of the execution defendant, and complaint, which is that the plaintiffs were vol the purchaser was allowed a lien upon the land unteers, occupying no such relation either to to be enforced by execution. Seller v. Lingerthe mortgage debt or the property sold as to man, 24 Ind. 264. The court said : “The case entitle them to be subrogated to the rights of of Banks y. Bales, 16 Ind. 423, cited by, the apthe state, may be regarded as fully answered pellee, is not in conflict with this authority. by the case of Muir v. Berkshire, 52 Ind. 149. The power possessed by the court to secure to We are not disposed to restrict the scope of the the purchaser the return of his money, by dedecision in that case. A sound public policy | creeing a lien for the same upon the land struck forbids that a purchaser at a public sale, who off by the sheriff, would seem to render a tender has in good faith paid the amount of his bid, of repayment of the sum by the execution de. in discharge of the decree, judgment, or other fendant unnecessary." lien by virtue of which the sale was made, In Banks v. Bales, 16 Ind. 423, land worth should be deemed a mere volunteer, and should $300 was sold under an execution not exceeding be denied any equitable relief in case the sale $33. In an action to set aside a sheriff's sale proved to be invalid, merely because he had no because the entire tract was sold without being personal interest to protect, and made the pur- offered in parcels, the complainant had tendered chase for the sake of the investment only. Bid the amvunt paid by the purchaser before he ding should be encouraged, to the end that prop commenced his suit, but he failed to bring the erty may not be sacrificed for less than its money into court. It was held that a tender worth."

was not necessary in a suit to set aside a So, subrogation was allowed on the ground sheriff's sale. This was because the court had that the bidding was itself a meritorious act, the power to decree a lien in favor of the purand created an equity, and it was the policy chaser. See Seller v. Lingerman, 24 Ind. 264, of the law to give the greatest security to bid 8upru. ders at judicial sales compatible with the equi And where a sheriff's sale was set aside beties of the parties, where a purchaser was held cause of sale en masse, it was held that the purto have a prior lien on the land for the pur chaser satisfying the judgment was entitled in chase money paid by him before an appeal, and equity to be subrogated to the lien of the judg. the judgment thereafter was appealed from and ment. Mcllany v. Schenk, 88 Ill. 357. reversed, and the sale set aside. Miller v. Hall, An execution sale was made after appeal bond 1 Bush, 229.

was filed. The judgment was valid, but the exSo, under the principle that the policy of the ecution and sale were invalid. The purchaser, la w and the rules of equity will protect the who was attorney for the plaintiff in the propurchaser, he was held entitled to be subrogated ceedings, and who was guilty of no fraud, was to the mortgagee to the extent of the purchase held not entitled to hold the property until remoney applied to the mortgage debt, where, un imbursed, but was held entitled to subrogation. der a decree of foreclosure, the mortgaged prop Burns v. Ledbetter, 54 Tex. 374. The court erty was sold and the sale confirmed, and the de said: "Owing to the manner in which Ledbet. cree was subsequently vacated for defects in ter came into the possession of the property. the order of publication. Johnson v. Robertson, and the fact that he was attorney of record 34 Md. 165. The court said: “The purchaser for the plaintiff, in the judgment, and the should be protected so far that, if he has paid further fact that the money paid by him only the purcbase money, and it has been applied to liquidated the judgment in part, we are of the the payment of the mortgage debt, or so far as opinion that he is not entitled to hold posseshe has paid and applied the purchase money, sion of the property until he is reimbursed. It he should be subrogated to the mortgagee, and is more consonant with justice and right to subthe mortgage, to the extent of such payment, rogate him to the lien of the original judgment, treated as assigned to him. This plain justice with order of sale, for the amount he is enand equity would seem to require.”

titled to recover of appellee Burns on account And a purchaser was held entitled to be sub of the payment on the judgment made with his stituted to the lien of the plaintiff to the ex. money." tent and for the amount he had paid to the On a subsequent appeal in this case (56 Tex. plaintiff on his deed, subject to a credit of rents 282) the court said: “Ledbetter was the atand profits, where a decree enforcing a vendor's | torney of the judgment plaintiff, but was not lien was void because the debtor resided within for that reason precluded from recovering back the Confederate lines, and the creditor within money paid without consideration. His posithe Federal lines, and a sale thereunder was tion can scarcely be such as to give him less void. Haymond v. Camden, 22 W. Va. 180. rights than the plaintiff. The cases are numer

And it is held that the purchaser on execu ous in this state in which equitable relief, pred. tion sales which are void, is entitled to be subro. icated on these rights of the judgment plain

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tiff or the purchaser, has been liberally extend

2. Out of proceeds of resale,


And in an action to try title, the purchaser In some cases the sale was set aside, and of the land at sheriff's sale under a valid judg. the purchaser was protected, by simply direct. ment which was a lien on the land was held ing that out of the proceeds of the second sale entitled to be subrogated to the lien of the his purchase money be returned to him. This original judgment where the sale was ineffec was under the general principle that equity tive for want of proper description. Jones V. will afford relief, and will protect the purchaser. Smith, 55 Tex. 383. In this case the purchaser But it must have been upon the theory that was liable on his warranty to the defendant. the purchaser is subrogated to the lien of the The court said: "Under such circumstances, creditor for his advances, although this equi. Smith had the right to be subrogated to the lien table principle is only noticed in one of the of the original judgment upon the land, for the cases explaining a prior decision in the same amount he bad paid in the discharge of the state. same. Nor were his rights materially affected A sale was void because made without notice by the fact that he did not get possession of to occupants as required by Iowa Rev. 1860, the land under his purchase. If he or his ven $3318. providing that, if a defendant is in dee was in possession, the appellants could not possession of part of land levied on, the officer disturb that possession until they had refunded having execution shall serve the defendant with the money paid by him in discharging the judg. written notice mentioning time and place of ment; and, if not in possession, he would be sale, and sales made without the notice may be entitled to be subrogated to the lien of that set aside. It was held that a resale should be judgment."

ordered, and, if an advance bid was made, the And the purchaser was allowed the money property should be resold, and the amount paid and a lien on the land where the execution was by the first purchaser refunded to him. Jenirregular because issued on a judgment which sen v. Woodbury, 16 Iowa, 515. had been destroyed by fire without substitution, In Fleming v. Maddox, 32 Iowa, 493, re. and the property brought but a small propor-ferring to the case or Jensen v. Woodbury, 16 tion of its value, and the sale was set aside. Iowa, 515, it was said: "This order can be Beckham v. Medlock, 19 Tex. Civ. App. 61, 46 explained and justified only upon the theory S. W. 402.

that the purchasers had acquired an interest in So, where a judgment was reversed on appeal, the judgment, and been subrogated to the rights and the debtor recovered the land from the pur of the creditor. And this doctrine is just and chaser's grantee, it was held that the latter was reasonable, and to our minds entirely applicable entitled to a lien upon the land for the amount to this case." paid to the sherily, with interest. O'Brien v. Applying the doctrine of subrogation, a purHarrison, 39 lowa, 686, 12 N. W. 256, 13 N. chaser was held entitled to have the credit on W. 764. In this case the plaintiff had tendered the judgment set aside to the extent of his bid. the defendant this sum. Iowa Code, $ 3199, and a resale of the land for the purpose of provided that property acquired by a purchaser indemnifying him, where an execution debtor in good faith under a judgment subsequently after a sale paid off the judgment, and then had reversed shall not be affected by such reversal ; the sale set aside on the ground of irregularity. but it was held that the purchaser, not having Fleming v. Maddox, 32 Iowa, 493. The court paid the full amount of his purchase money, said: “It is said by the counsel that defendant was not a purchaser in good faith.

had a right to pay off the judgment, and preBut subrogation was denied where suit was vent a further sale of his property. This we not brought by the proper party.

concede. But he should have paid to the purA receiver of a firm had a judgment against a chasers the amount of their bids, and not to member of the firm. A levy was made on land the plaintiff, who already had received satis. notwithstanding he had conveyed the same. The faction." purchaser's heirs brought a suit to set aside And in a foreclosure judgment an interpleadthe conveyance as fraudulent. The same was er was adjudged to have a prior lien. An order set aside, and also the sheriff's sale to the pur of sale was issued by him without notice to chaser. It was held, on a prayer for subroga- plaintiff. A new sale was ordered, and it was tion, that the voluntary purchase discharged held that out of the proceeds of that sale there the creditor's judgment, and there could be no be paid to the prior purchaser the amount paid substitution. It was held, also, that the admin by him as purchase money of the land, and that istrator could not be subrogated to the lien, the balance due the interveners be then satisbut that the heirs might, on proper procedure, fied, and the remainder be paid to plaintiff in obtain relief. Richmond v. Marston, 15 Ind. the judgment below. Elam v. Donald, 58 Tex. 134.

316. In Muir v. Berkshire, 52 Ind. 149, the court A judicial sale was set aside where the mas. said: “We are aware that there are some dicta ter withdrew the land from sale and readverin the case of Richmond v. Marston, 15 Ind. tised without order of the court or consent of 134, which would seem to take a narrower view the parties. It was held that, the purchase of the right of subrogation than we have ex money having been appropriated to pay charges pressed in this opinion ; but that case differed on the land, the purchaser should be protected, in its premises from this ; besides it was decided and that a second sale should not be had unless upon another ground. Subsequent decisions of a greater bid was made, and, if so, he should be this court, however, fully support, as we think, repaid what he had paid in, and his deed, bond, the principles governing us in this opinion." and mortgage should be canceled. Tompkins v.

See Boggs v. Fowler, 16 Cal. 559, 76 Am. Dec. Tompkins, 39 S. C. 537, 18 S. E. 233. The court 561; Abadie v. Lobero, 36 Cal. 390,--subdiv. V. said: "The purchaser bas paid into court $1,

The exceptional cases where subrogation was 625 of his money, a large part of which has denied are those relating to probate sales, pro been appropriated to the purposes of the action ceedings against nonresidents, and fraudulent under the decree of court. Now, if there is one sales, for which cases see infra.

thing over others in our system of jurisprudence

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