that merits the commendation of all, it must be the flexibility of the principles adopted by courts of equity, by which they are made to subserve the needs of each particular case. Ought not those principles to be applied here? It seems so to us. Under our law, William R. Parks, by being a successful bidder at the sale provided for by a decree in this cause, has, to a certain extent, become a party to this action. His money has been paid into court and used for the purpose of the action, under an honest mistake, it is true. Only one party to the action secks any relief against him. The circuit judge orders a new sale, without any provision being made for his (Parks') protection. This is error, and must be rectified."

Property of infants was sold under foreclosure for half of its value. It was held that a resale should be ordered upon security that the property should produce 50 per cent advance, and that the purchaser would be entitled to be paid out of the amount of such advance the interest of his deposit and of the whole purchase money which he had kept on hand, together with all reasonable costs and expenses. Duncan v. Dodd, 2 Paige, 99.

And a sale was set aside on the ground of material errors which, if allowed to stand, would permit the purchaser to enjoy "an unconscionable advantage" by the sacrifice of the property through the mistake of the receiver as to the number of cattle and the value thereof that were sold. A resale was ordered, and it was held that out of the purchase money the former purchaser should be repaid the purchase price, with interest at 6 per cent and expenses. Horse Springs Cattle Co. v. Schofield, 9 N. M. 136, 49 Pac. 954.

So, in an action by infants claiming that a sale was for $10,000, and was reported only for $5,000, the sale was set aside, and the assignee of a purchaser at mortgage foreclosure was held entitled to be subrogated to the lien of the mortgage paid by his money. But the decree was that a resale be had, and the holder of the purchaser's certificate at the first sale be paid his purchase money. Bruschke v. Wright, 166 III. 183, 57 Am. St. Rep. 125, 46 N. E. 813.

But where the confirmation was set aside, and the officer did not pay into court all of the proceeds, relief out of the proceeds of a second sale was denied the purchaser. In this case a sale of real estate was confirmed, and afterwards, on proof of fraud, was vacated, and the trustee was removed and required to pay into court the proceeds, but had defaulted to the extent of $1,000. It was held that the purchaser, who had paid his money to the trustee, and received only a part of it back, was not entitled to have the balance due him paid from the proceeds of a second sale made by another trustee. Kenaday v. Waggaman, 3 App. D. C. 412. The court said: "As to Kenaday, the decree denies his right to property of which he claims to be owner, and which is of the value of $11,000. He paid that sum for it in cash to Green as trustee. It is true that there are funds in the registry of the court below, which, in the event of the affirmance of the decree, can be paid over to him, and he be thus far reimbursed for what he paid to Green on the purchase of the property.' Kenaday v. Edwards, 134 U. S. 123, 33 L. ed. 856, 10 Sup. Ct. Rep. 523. The decree of the general term having been affirmed, the appellant did receive the money that was in the registry of the court, and was to that extent re

imbursed. And, if the balance of the $11,000 could be reached and made subject to the direction of the court, the appellant would be entitled to receive that also. But clearly he has no enforceable claim whatever against the fund realized on the last sale of the property, and now in the hands of the present trustees to serve the purposes of the trust under the will of Mrs. Macpherson."

See Eichelberger v. Hawthorne, 33 Md. 588, and Re Dickerson, 111 N. C. 108, 15 S. E. 1025, subdiv. III. d, 1; Martin v. Turner, 2 Heisk. 384, subdiv. III. d, 2.

d. Probate, guardians' and administrators' sales.

1. Guardian's sales.

The weight of authority is that the purchaser at a guardian's or partition sale of infant's land, where the sale is set aside as void, is entitled to be reimbursed or subrogated to the amount of the purchase money paid.

So, in an action by a ward to set aside a guardian's sale it was held that the minors were bound by the acts of the guardian, and that it would be inequitable to set the sale aside unless the consideration paid should be refunded. Kendrick v. Wheeler, 85 Tex. 247, 20 S. W. 44. The court said: "The acts of the guardian in dealing with innocent purchasers, under lawful orders of the court, are binding upon the minors, in so far as they affect the rights of such purchasers. Dancy v. Stricklinge, 15 Tex. 557, 65 Am. Dec. 179; Clayton v. McKinnon, 54 Tex. 211. The purchaser at the guardian's sale is not required to see to a proper application of the purchase money, or that the guardian executes his trust in a legal way in dealing with the fund after it goes into his possession."

A sale made in orphans' court was ratified by an order nisi, but never by final order. The executors made a deed, and charged themselves with the purchase money, and distributed the surplus. Subsequently one of the distributees had the sale set aside on the ground that the executor was interested in the purchase. It' was held that the original purchaser was entitled to be reimbursed out of the purchase money arising from the second sale to the full amount he had paid the executors on the original purchase. Eichelberger v. Hawthorne, 33 Md. 588. The court said: "There is certainly nothing to be found in this record tending to induce a court of equity to deny to this complainant and purchaser the benefit of these equitable doctrines, or those of like character announced in Jones v. Jones, 4 Gill, 87, and in the more recent case of McLaughlin v. Barnum, 31 Md. 425. He purchased at a public sale for a fair price, has paid the purchase money, and made improvements under the impression he had obtained a good title, and the sale has been vacated for no other conceivable reason than because he agreed at the time, the executors, or one of them, should become interested in the purchase, or have some part of the land."

A sale of an infant's land in partition was made ca parte instead of publicly. A resale was ordered, and the purchaser having conveyed his interest, it was held that an account should be taken of the amount paid to the guardian by the purchaser, and of the rents and profits since the attempted sale and the possession of the purchaser and those claiming under him, and that the balance of the sum so paid, after

deducting the rents and profits, be a charge upon the fund arising from the second sale then ordered. Re Dickerson, 111 N. C. 108, 15 S. E. 1025.

And the purchaser was held entitled to have such sum as was paid to the mother as guardian of the children repaid to him in an action brought against him to set aside the sale, where a guardian's sale was void, under Tenn. Code, § 3339, providing that no guardian, next friend, or witness, shall purchase at administrator's sale, and, if they purchase, the sale shall be void, and the infant or married woman may bring ejectment as if no sale had been made. Starkey v. Hammer, 1 Baxt. 438. In this case the purchaser was one of the witnesses to show that it was for the interest of the minors that the land should be sold.

See Bone v. Tyrrell, 113 Mo. 175, 20 S. W. 796, and Douglas v. Bennett, 51 Miss. 680, infra, holding that the purchaser must show that the guardian has made a proper application of the fund.

Some cases grant relief to the purchaser on a void sale, where it is shown that the ward was benefited.

So, the purchaser was held entitled to reimbursement where a life tenant and guardian of an infant remainderman obtained an order of sale for a part of the property to improve the remainder. The remainderman, who was not a party, after the death of the life tenant. brought a suit to recover. The sale was void because the chancellor had only jurisdiction to sell for reinvestment. Hays v. Bradley, 15 Ky. L. Rep. 387, 23 S. W. 372. This was on the ground of benefiting the remainderman's estate. A guardian's sale was void, and the heirs brought ejectment, and the purchaser filed a bill to restrain the prosecution of the ejectment until the purchase money and improvements were paid for. It was held that the complainant in equity had the burden of tracing the fund to some appropriation or use beneficial to the wards. Douglas v. Bennett, 51 Miss. 680. The court said: "The doctrine of a court of equity is, that the heir, who has received the price of his real estate, sold by his guardian, cannot hold on to the money and at the same time recover the land on account of some defect in the judicial proceeding under which it was sold. The circumstances put him under an equitable estoppel, and he must come to a fair account with the purchaser respecting the money. If he will refund the money, he may recover the land, or the chancellor may treat the money as an equitable charge upon the land. Short v. Porter, 44 Miss. 534; Jayne v. Boisgerard, 39 Miss. 799."

And the purchaser was held entitled to reimbursement where the proceeds were applied to the payment of proper debts.

plication of the equitable doctrine of subrogation."

So it was held that the minors were entitled to recover, subject to the purchaser's claim for reimbursement, where a guardian's sale of sheep under an order of the county court was invalid because not confirmed, and the purchase money was applied to the payment of established claims. Harrison v. Ilgner, 74 Tex. 86, 11 S. W. 1054.

In an action by a widow and heirs to set aside a guardian's sale of real estate belonging to the children, where the sale was set aside because competition had been prevented, and the purchaser had paid off the mortgage bearing 10 per cent interest, it was held that the purchaser was only entitled to 6 per cent. Devine v. Harkness, 117 Ill. 145, 7 N. E. 52. In this case the court said: "Paying the mortgage debt to the mortgagee was no more than paying the amount of it to the guardian, and was but paying appellant's bid for the land. The payment was one made in wrong, in the carrying out of a wrongful purchase, and presents no case for the ap

And a sale of real estate of a ward was made while she was insane, and when there was sufficient personal property. On leave obtained by the ward to redeem, it was held that the vendee of the purchaser should be reimbursed by the redemptioner the amounts paid by the purchaser to satisfy judgments which were claims against the judgment debtor. Cosgrove v. Merz (R. I.) 37 Atl. 704. It was also held that the vendee was entitled to be reimbursed for repairs and improvements.

Guardians refunded the purchase money on the heirs recovering from the purchaser in ejectment because the sale was void, and then the guardians sought to hold the heirs responsible for the purchase money for which they had accounted on a settlement. It was held that the heirs could not retain the property and hold the guardians liable on a settlement, and, if the new guardian refused to ratify the sale, the former guardians might recover their money. Burleigh v. Bennett, 9 N. H. 15, 31 Am. Dec. 213.

And the purchaser at a guardian's sale which was void was held entitled to relief where the ward had received his full share. Summers v. Howard, 33 Ark. 490; Hatcher v. Briggs, 6 Or. 31.

So, a subvendee was held entitled to maintain a suit in equity against the plaintiff in ejectment for so much of the purchase-money fund as came to her hands, and to hold the guardian personally responsible for the residue if the sale was set aside. Trousdale v. Maxwell, 6 Lea, 161. In this case a guardian's sale of infant's land was void because the county court ordering the sale had no jurisdiction. After the infant became of age she brought an action of ejectment against the subvendee. The court said: "The party ejected by the infant would be entitled, by right of subrogation, to the extent of the purchase money paid by him, with interest, to the original purchase money, and to have the amount used for the infant's benefit, or paid to the infant, declared a lien upon the

land."

But in guardians' sales which are void some cases hold that the purchaser is not entitled to relief where the sale is unnecessary, or the guardian has wasted the proceeds; and others refuse relief where the money is not used for the benefit of the ward. It is held in Illinois that there is a difference in a suit in equity by an heir to set aside a sale and a suit in ejectment, as in the former the maxim that he who seeks equity must do equity is applied. This equitable doctrine is applied in Texas in common-law cases if the purchaser asserts an equitable lien.

So, in Reynolds v. McCurry, 100 III. 356, where a guardian, under a void decree of partition, sold the land of his ward and appropriated the money to his own use, it was held that the ward could maintain an action to set the sale aside without returning the purchase money. In this case there were ample assets to pay all the debts out of the personalty, and there was

no occasion for selling the land. The court said: “The land is sold, and the proceeds divided between the mother and guardian, and the guardian has long since squandered his share of the spoils. Not a cent of the money now remains to be returned to appellees, and no part of it was ever expended for appellant's benefit, and yet it is insisted that, unless this money is returned by appellant, equity will afford him no relief."

And it was held that the purchaser could not recover the purchase price in an action of ejectment brought by the ward, as it was not shown that the purchase money was used for the benefit of the ward, where a guardian's sale was void because it was not approved by the court. Bone v. Tyrrell, 113 Mo. 175, 20 S. W. 796.

Chambers v. Jones, 72 Ill. 275, held that an infant defendant in partition, who received a part of the proceeds, seeking to set aside a sale, must tender to the purchaser the purchase money, on the ground that he who seeks equity must do equity. Referring to the purchaser, the court said: "On the failure of the title, as in this case, he would have no right to relief, as against the heirs; nor could he have a decree against the land itself for the purchase money. This is settled by Bishop v. O'Conner, 69 Ill. 431, and need not now be discussed as a new question; but the defendant is asking no relief by cross bill or otherwise."

re

At the suit of the holder of a life estate, a county court ordered the sale of the remainder estate. The judgment was void for want of jurisdiction, and the infant remainderman ceived no benefit. After coming of age, the infant recovered in ejectment. It was held that the purchaser could not maintain a bill in equity for the purchase money, and for a lien, where the infants had received no benefit. Abernathy v. Phillips, 82 Va. 769, 1 S. E. 113. The court said: "The record clearly shows that neither W. H. Phillips, who was only seven years old when the land was sold under the decree of the county court, nor the then unborn Sallie B. Phillips, ever made any contract, directly or indirectly, with either of the appellants in reference to the land in question, or ever received even one cent of the price paid. They cannot, therefore, on any principle of justice or equity, be called on to make restitution."

And a purchaser was denied a lien where he only pleaded estoppel against the wards.

A guardian's sale was void because the record failed to show that he had taken the required statutory oath, and no title passed by the deed. It was contended that the wards, who were infants at the time of the sale, and for whose benefit it was claimed the land was sold by the guardian and the proceeds applied for their nurture and education, were estopped from questioning the title. The appellate court affirmed the judgment of ejectment. The chief justice noted that since the opinion there were decisions found that minors could be estopped. Wilkinson v. Filby, 24 Wis. 441.

Referring to this case in Blodgett v. Hitt, 29 Wis. 169, the court said: "The defendant offered to show that the purchase money, paid for the land to the guardian, was expended by him for the benefit of the plaintiffs. It was claimed that, if such purchase money was used for their benefit, the plaintiffs were estopped to deny the validity of such sale and conveyance. This court held, and in my opinion held correctly, that such fact would not, of itself, constitute an estoppel upon the plaintiffs.

The principle to be gathered from the cases on the subject seems to be that some act of the ward after he reaches majority, such as receiving the purchase money or a portion of it, or the like, is essential to create an estoppel against him. This is the extent of the decision of this court in that case. No question was raised, considered, or decided, as to the right of a purchaser in good faith at a guardian's sale, which is void by reason of omissions or defects in the preliminary proceedings, to have the purchase money, paid to the guardian and used by him for the benefit of the ward, adjudged an equitable charge on the land, to be paid before the purchaser shall be dispossessed thereof. Had this question been made, we cannot say how it would have been decided."

Where a recovery was had by heirs in ejectment because a partition sale brought by their guardian was void, the court said: "Neither would the fact that he purchased the property for himself at the partition sale, and paid into the estates of these minors the full purchase money, effect a transfer of title to him. The equity which is administered by the courts upon void sales of this character is not that of decreeing them valid. The most that it can do is to decree a return of the purchase money, and order an account of rents, profits, and improvements, and adjudge the land subject to a lien for the difference; and this is done only when such equity is pleaded." Campbell v. Laclede Gaslight Co. 84 Mo. 352.

In Wichita Land & Cattle Co. v. Ward, 1 Tex. Civ. App. 307, 21 S. W. 128, where a vendor's lien was enforced against a guardian, and the ward had the sale set aside, it was held that the rents and profits were a proper offset against the amount paid by the purchaser.

A guardian's sale was void because of no notice given to the heirs, and the court had no jurisdiction. A petition by the heirs against the purchaser to quiet title was held sufficient, although the purchase money was not shown to have been tendered. Washburn v. Carmichael, 32 Iowa, 475. This was on the ground that the defendant might have received more than sufficient rents to reimburse him.

2. Administrators' sales.

The weight of authority holus that, if an administrator's or probate sale is void, in a proceeding to sell the land to pay debts, the purchaser is entitled to restitution or subrogation for the purchase money, where the same is used to pay debts against the estate. Neel v. Carson, 47 Ark. 421, 2 S. W. 107; Daquin v. Coiron, 6 Mart. N. S. 674; Donaldson v. Winter, 1 La. 137; McGee v. Wallis, 57 Miss. 638, 34 Am. Rep. 484; Carey v. West, 139 Mo. 146, 40 S. W. 661; Cunningham v. Anderson, 107 Mo. 371, 28 Am. St. Rep. 417, 17 S. W. 972; Sharkey v. Bankston, 30 La. Ann. 891; Wilie v. Brooks, 45 Miss. 542.

So purchasers were held entitled to maintain a bill against the administrator, in the nature of a creditor's bill, and were entitled to substitution for the debts which were paid by the money of the purchaser under a void decree. Hull v. Hull, 35 W. Va. 155, 29 Am. St. Rep. 800, 13 S. E. 49. The court said: "Principles of justice demand this, and courts of equity have raised up this principle, a being of their creation, called 'substitution,' unknown to common-law forums, to accomplish the ends of justice; and I know of no more signal instance to exemplify

taken, and that the sum found to be due the defendant should be declared to be a lien upon the land; and the judgment of the court should be that the plaintiff should have possession upon paying the defendant the sum so found to be due. This was not done in the present case, and in this particular the answer of the defendant was defective. Sims v. Gray, 66 Mo.

613.

It is a general rule that where the debts paid from the proceeds of the sale were a charge on the land, and the administrator's sale is void, the purchaser will be held entitled to restitution or subrogation. McDonough v. Cross, 40 Tex. 251; Caldwell v. Palmer, 6 Lea, 652; Fisher v. Bush, 133 Ind. 315, 32 N. E. 924; Galveston, H. & S. A. R. Co. v. Blakeney, 73 Tex. 180, 11 S. W. 174; Merselis v. Vreeland, 8 N. J. Eq. 575.

So, where an administrator's sale was void, although one parcel of land sold for enough to discharge all debts, the purchaser was held entitled to a vendee's lien for money which he had paid on his bid, and which had gone to release land from the burden of the intestate's debts. Jones v. French, 92 Ind. 138.

So, the purchaser at an administrator's sale was held entitled to be subrogated to the extent of the purchase money applied in the extinguishment of a mortgage on the property. Vallé v. Fleming, 29 Mo. 152, 77 Am. Dec. 557. This was an action of ejectment by heirs. The court said: "It is immaterial under what form the equity in such cases is administered,-whether under the name of compensation, as it was done in the case of Bright v. Boyd, 1 Story, 478, Fed. Cas. No. 1,875, or under the name of substitution, as in the case of Hudgin v. Hudgin, 6 Gratt. 320, 52 Am. Dec. 124, or, as it is sometimes more conveniently effected, by reviving the encumbrance, which the purchase money has extinguished in permitting it to be used as a shield against a recovery at law. Peltz v. Clarke, 5 Pet. 482, 8 L. ed. 199."

And in an action of ejectment by heirs to recover from the purchaser at an administrator's sale on the ground that it was void, it was held error to strike out the defendant's answer, pleading, as in Vallé v. Fleming, 29 Mo. 152, 77 Am. Dec. 557, his equitable claim. Jones v. Manly, 58 Mo. 559.

In Bishop v. O'Conner, 69 Ill. 431, it was said that in the case of Vallé v. Fleming, 29 Mo. 152, 77 Am. Dec. 557, the purchase at administrator's sale was subject to a mortgage, and the purchase money was applied to the satisfaction, and the purchaser was subrogated to the rights of the mortgagee. The correctness of the decision was doubted.

A sale was void because the administrator failed to give bond. The purchaser had paid one third in cash, which was used to pay a judgment lien. There was no formal rescission, but a resale, and the first purchaser bought part of the land. In a suit by him to obtain a preference, it was held that the purchaser was entitled to be reimbursed, out of the estate, the sum of money which he had advanced and could recover by bill in equity. Short v. Porter, 44 Miss. 523. The court said: "But the equity of the complainant rests upon the further impregnable ground that he, supposing that he was acquiring the title of the heirs of intestate, at the sale made by the administrator, made a cash payment of dollars, which was actually used and applied by the administrator to discharge a preferred lien on the land. As to

the heirs, that application of the money exonerated their property pro tanto. It went to relieve an encumbrance on the land. They would not be permitted to recover back the land for the reason that the probate decree and sale were invalid, and, therefore, did not devest their title, except upon the condition that they restore to the purchaser his money, or, rather, to the extent of the cash payment."

And a purchaser of property under execution was held to have the right in equity, on the recovery of the property from him by a superior title, to be substituted for the creditor, and to have his purchase money refunded by the defendant in the execution, where the execution was against administrators, out of the assets of the estate. McLaughlin v. Daniel, 8 Dana, 182. The court said: "According to the principle repeatedly recognized by this court, he has an equitable right to be substituted in the place of the creditor, and to have the amount so paid refunded to him out of the estate. His equity rests not upon the ground of his want of knowledge as to the title of the slave, but on the ground of his having discharged a judgment against the estate, for which it stood chargeable, by a purchase of property made under the coercive process of the law; and, therefore, has equitable right to be reimbursed out of the estate."

And subrogation was allowed the purchaser where a guardian filed a bill against an executor to subjec land devised to the payment of his debt, without making devisees parties. The sale did not pass a legal title. Hudgin v. Hudgin, 6 Gratt. 320, 52 Am. Dec. 124. This was on the equitable ground that the purchaser, on disaffirmance of the sale, was entitled to be substituted to the rights of the creditor, and that the land should be charged with the amount of the debt paid by him.

In Bishop v. O'Conner, 69 Ill. 431, the case of Hudgin v. Hudgin, 6 Gratt. 320, 52 Am. Dec. 124, was distinguished, as there the testator expressiy charged the land with the payment of debts, and, the debts having been paid by the purchaser from funds arising from the sale by the executors, the heirs were required to refund to the purchaser the money he had paid the executor, and which had been applied to the encumbrance.

And the purchaser is held entitled to relief where it is shown that the purchase money had been applied for the benefit of the estate and heirs, and the sale was set aside.

An administrator, under an order of the probate court, made a void sale of the homestead to pay debts. It was held that the heirs, in an action against the purchaser to recover the land, should offer to restore the purchase money which they had received, and which had been applied for their benefit. Stephenson v. Marsalis, 11 Tex. Civ. App. 162, 33 S. W. 383.

In Stults v. Brown, 112 Ind. 370, 2 Am. St. Rep. 190, 14 N. E. 230, it was said that a purchaser at an administrator's sale which had been set aside was held entitled to enforce a vendee's lien against the land for the amount of the purchase money which had been used for the benefit of the estate, and to an order requiring the administrator to resell the land for the payment of his debt. But relief was denied in this action, which was a suit for specific performance. The administrator then filed his claim against the estate for the amount paid, and was defeated. Thereafter he brought another suit on the same matter against the heirs.