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that merits the commendation of all, it must be imbursed. And, if the balance of the $11,000 the flexibility of the principles adopted by could be reached and made subject to the direccourts of equity, by which they are made to sub tion of the court, the appellant would be enserve the needs of each particular case. Ought titled to receive that also. But clearly he has not those principles to be applied here? It no enforceable claim whatever against the fund seems so to us. Under our law, William R. realized on the last sale of the property, and Parks, by being a successful bidder at the sale now in the hands of the present trustees to provided for by a decree in this cause, has, to serve the purposes of the trust under the will a certain extent, become a party to this action. of Mrs. Macpherson." His money has been paid into court and used See Eichelberger v. Hawthorne, 33 Md. 588, for the purpose of the action, under an honest and Re Dickerson, 111 N. C. 108, 15 S. E. 1025, mistake, it is true. Only one party to the action subdiv. III, d, 1; Martin v. Turner, 2 Heisk. secks any relief against him. The circuit judge 384, subdiv. III. d, 2. orders a new sale, without any provision being made for his (Parks') protection. This is error, d. Probate, guardians' and administrators' sales. and unust be rectified.” Property of infants was sold under foreclo.

1. Guardian's sales. sure for half of its value. It was held that a resale should be ordered upon security that the The weight of authority is that the purchaser property should produce 50 per cent advance, at a guardian's or partition sale of infant's and that the purchaser would be entitled to be land, where the sale is set aside as void, is enpaid out of the amount of such advance the in titled to be reimbursed or subrogated to the terest of his deposit and of the whole purchase amount of the purchase money paid. inone's which he had kept on hand, together So, in an action by a ward to set aside a with all reasonable costs and expenses. Dun- guardian's sale it was held that the minors can v. Dodd, 2 Paige, 99.

were bound by the acts of the guardian, and And a sale was set aside on the ground of that it would be inequitable to set the sale material errors which, if allowed to stand, aside unless the consideration paid should be would permit the purchaser to enjoy "an un refunded. Kendrick v. Wheeler, 85 Tex. 247, conscionable advantage" by the sacrifice of the 20 S. W. 44. The court said: "The acts of the property through the mistake of the receiver as guardian in dealing with innocent purchasers, to the number of cattle and the value thereof under lawful orders of the court, are binding upthat were sold. A resale was ordered, and it on the minors, in so far as they affect the rights was held that out of the purchase money the of such purchasers. Dancy v. Stricklinge, 15 former purchaser should be repaid the pur Tex. 557, 65 Am. Dec. 179; Clayton v. McKinchase price, with interest at 6 per cent and ex non, 54 Tex. 211. The purchaser at the guardpenses. Horse Springs Cattle Co. v. Schofield, ian's sale is not required to see to a proper 9 N. M. 136, 49 Pac. 934.

appiication of the purchase money, or that the So, in an action by infants claiming that a guardian executes his trust in a legal way in sitle was for $10,000, and was reported only for dealing with the fund after it goes into his $3,000, the sale was set aside, and the assignee possession." of a purchaser at mortgage foreclosure was held A sale made in orphans' court was ratified by entitled to be subrogated to the lien of the an order nisi, but never by final order. The mortgage paid by his money. But the decree executors made a deed, and charged themwas that a resale be had, and the holder of the selves with the purchase money, and distributed purchaser's certificate at the first sale be paid the surplus. Subsequently one of the distribuhis purchase money. Bruschke v. Wright, 166

tees had the sale set aside on the ground that Ill. 183, 57 Am. St. Rep. 125, 46 N. E. 813.

the executor was interested in the purchase. It' But where the confirmation was set aside, and

was held that the original purchaser was enthe oflìcer did not pay into court all of the pro

titled to be reimbursed out of the purchase cerds, relief out of the proceeds of a second sale money arising from the second sale to the full was denied the purchaser. In this case a sale of amount he had paid the executors on the orig. real estate was confirmed, and afterwards, on inal purchase. Eichelberger v. Hawthorne, 33 proof of fraud, was vacated, and the trustee Md. 588. The court said: “There is certainly was removed and required to pay into court the nothing to be found in this record tending to proceeds, but had defaulted to the extent of

induce a court of equity to deny to this com$1,000. It was held that the purchaser, who plainant and purchaser the benefit of these had paid his money to the trustee, and received equitable doctrines, or those of like character

announced in Jones v. Jones, 4 Gill, 87, and in only a part of it back, was not entitled to have the balance due him paid from the proceeds of

the more recent case of McLaughlin v. Barnum, a second sale made by another trustee. Kenaday 31 Md. 425. lle purchased at a public sale for V. Waggaman, 3 App. D. C. 412. The court

a fair price, has paid the purchase money, and said: “As to Kenaday, the decree denies his

made improvements under the impression he

had obtained a good title, and the sale has been right to property of which he claims to be

vacated for no other conceivable reason than owner, and which is of the value of $11,000. because he agreed at the time, the executors, or He paid that sum for it in cash to Green as

one of them, should become interested in the trustee. It is true that there are funds in the purchase, or have some part of the land." registry of the court below, which, in the event

A sale of an infant's land in partition was of the aihrinance of the decree, can be paid over made cu parte instead of publicly. A resale was to him, and he be thus far reimbursed for what ordered, and the purchaser having conveyed his he paid to Green on the purchase of the prop- | interest, it was held that an account should be erty.' Kenaday v. Edwards. 134 U. S. 123, 33 L. taken of the amount paid to the guardian by ed. 836, 10 Sup. Ct. Rep. 523. The decree of the the purchaser, and of the rents and profits general term having been affirmed, the appel- since the attempted sale and the possession of lant did receive the money that was in the reg. the purchaser and those claiming under him, istry of the court, and was to that extent re and that the balance of the sum so paid, after

deducting the rents and profits, be a charge / plication of the equitable doctrine of subroga. upon the fund arising from the second sale tion." then ordered. Re Dickerson, 111 N. C. 108, So it was held that the minors were entitled 15 S. E. 1025.

to recover, subject to the purchaser's claim for Aud the purchaser was held entitled to have reimbursement, where a guardian's sale of sheep such sum as was paid to the mother as guard- under an order of the county court was invalid ian of the children repaid to him in an ac- because not confirmed, and the purchase money tion brought against him to set aside the sale, was applied to the payment of established where a guardian's sale was void, under Tenn. claims. Harrison v. Ilgner, 74 Tex. 86, 11 S. W. Code, § 3339, providing that no guardian, next 1054. friend, or witness, shall purchase at adminis- And a sale of real estate of a ward was made trator's sale, and, if they purchase, the sale while she was insane, and when there was suffishall be void, and the infant or married woman cient personal property. On leave obtained by may bring ejectment as if no sale had been the ward to redeem, it was held that the vendee made. Starkey v. Hammer, 1 Baxt. 438. In this of the purchaser should be reimbursed by the case the purchaser was one of the witnesses to redemptioner the amounts paid by the purshow that it was for the interest of the minors chaser to satisfy judgments which were claims that the land should be sold.

against the judgment debtor. Cosgrove v. Merz See Bone v. Tyrrell, 113 Mo. 175, 20 S. W. (R. I.) 37 Atl. 704. It was also held that the 796, and Douglas v. Bennett, 51 Miss. 680, vendee was entitled to be reimbursed for reinfra, holding that the purchaser must show pairs and improvements. that the guardian has made a proper applica

Guardians refunded the purchase money on tion of the fund.

the heirs recovering from the purchaser in ejectSome cases grant relief to the purchaser on ment because the sale was void, and then the a void sale, where it is shown that the ward guardians sought to hold the heirs responsible was benetited.

for the purchase money for which they had acSo, the purchaser was held entitled to reim. counted on a settlement. It was held that the bursement where a life tenant and guardian of heirs could not retain the property and hold an infant remainderman obtained an order of the guardians liable on a settlement, and, if the sale for a part of the property to improve the new guardian refused to ratify the sale, the remainder. The remainderman, who was not a former guardiaus might recover their money. party, after the death of the life tenant. Burleigh v. Bennett, 9 N. H. 15, 31 Am. Dec. brought a suit to recover. The sale was void 213. because the chancellor had only jurisdiction to And the purchaser at a guardian's sale which sell for reinvestment. Hays v. Bradley, 15 Ky. was void was held entitled to relief where the L. Rep. 387, 23 s. W. 372. This was on the ward had received his full share. Summers v. ground of benefiting the remainderman's estate. | Howard, 33 Ark. 490; Hatcher v. Briggs, 6

A guardian's sale was void, and the heirs Or. 31. brought ejectment, and the purchaser filed a So, a subvendee was held entitled to maintain bill to restrain the prosecution of the ejectment a suit in equity against the plaintiff in eject. until the purchase money and improvements ment for so much of the purchase-money fund were paid for. It was held that the complainant as came to her hands, and to hold the guardian in equity had the burden of tracing the fund to personally responsible for the residue if the sale some appropriation or use beneficial to the was set aside. Trousdale v. Maxwell, 6 Lea, wards. Douglas y. Bennett, 51 Miss. 680. The 161. In this case a guardian's sale of infant's court said :. "The doctrine of a court of equity land was void because the county court orderis, that the heir, who has received the price ing the sale had no jurisdiction. After the inof his real estate, sold by his guardian, cannot fant became of age she brought an action of hold on to the money and at the same time re. ejectment against the subvendee. The court cover the land on account of some defect in the said: "The party ejected by the infant would judicial proceeding under which it was sold. be entitled, by right of subrogation, to the exThe circumstances put him under an equitable

tent of the purchase money paid by him, with estoppel, and he must come to a fair account

interest, to the original purchase money, and to with the purchaser respecting the money. If

have the amount used for the infant's benefit, or he will retund the money, he may recover the

paid to the infant, declared a lien upon the land, or the chancellor may treat the money as

land." an equitable charge upon the land. Short v.

But in guardians' sales which are void some Porter, 44 Miss. 534 ; Jayne v. Boisgerard, 39

cases hold that the purchaser is not entitled to Miss. 799."

reliet where the sale is unnecessary, or the And the purchaser was held entitled to reim

guardian has wasted the proceeds ; and others bursement where the proceeds were applied to

refuse relief where the money is not used for

the benefit of the ward. It is held in Illinois the payment of proper debts.

that there is a difference in a suit in equity by In an action by a widow and heirs to set aside

an heir to set aside a sale and a suit in ejecta guardian's sale of real estate belonging to the

ment, as in the former the maxim that he who children, where the sale was set aside because

seeks equity must do equity is applied. This competition had been prevented, and the pur

equitable doctrine is applied in Texas in com. chaser had paid off the mortgage bearing 10 per

mon-law cases if the purchaser asserts an equicent interest, it was held that the purchaser table lien. was only entitled to 6 per cent. Devine v. Hark

So, in Reynolds v. McCurry, 100 Ill. 356, ness, 117 Ill. 145, 7 N. E. 52. In this case the

where a guardian, under a void decree of particourt said: "Paying the mortgage debt to the tion, sold the land of his ward and appropriated mortgagee was no more than paying the amount the money to his own use, it was held that the of it to the guardian, and was but paying appel- ward could maintain an action to set the sale lant's bid for the land. The payment was one aside without returning the purchase money. made in wrong, in the carrying out of a wrong- In tbis case there were ample assets to pay all ful purchase, and presents no case for the ap- the debts out of the personalty, and there was

re

no occasion for selling the land. The court The principle to be gathered from the cases said: "The land is sold, and the proceeds divid- on the subject seems to be that some act of the ed between the mother and guardian, and the ward after he reaches majority, such as receipguardian has long since squandered his share | ing the purchase money or a portion of it, or of the spoils. Not a cent of the money now re- the like, is essential to create an estoppel mains to be returned to appellees, and no part against him. This is the extent of the decision of it was ever expended for appellant's benefit, of this court in that case. No question was and yet it is insisted that, unless this money is raised, considered, or decided, as to the right of returned by appellant, equity will afford him a purchaser in good faith at a guardian's sale, no relief.”

which is void by reason of omissions or defects And it was held that the purchaser could not in the preliminary proceedings, to have the purrecover the purchase price in an action of eject- chase money, paid to the guardian and used by ment brought by the ward, as it was not shown him for the benefit of the ward, adjudged an that the purchase money was used for the bene- equitable charge on the land, to be paid before fit of the ward, where a guardian's sale was the purchaser shall be dispossessed thereof. Had void because it was not approved by the court. this question been made, we cannot say how it Bone v. Tyrrell, 113 Mo. 175, 20 S. W. 796. would have been decided."

Chambers v. Jones, 72 Ill. 275, held that an Where a recovery was had by heirs in eject. infant defendant in partition, who received a ment because a partition sale brought by their part of the proceeds, seeking to set aside a sale, guardian was void, the court said: “Neither must tender the purchaser the purchase would the fact that he purchased the property money, on the ground that he who seeks equity for himself at the partition sale, and paid into must do equity. Referring to the purchaser, the the estates of these minors the full purchase court said: “On the failure of the title, as in money, effect a transfer of title to him. The this case, he would have no right to relief, as equity which is administered by the courts upon against the heirs; nor could he have a decree void sales of this character is not that of deagainst the land itself for the purchase money. creeing them valid. The most loat it can do is This is settled by Bishop v. O'Conner, 69 III. to decree a return of the purchase money, and 431, and need not now be discussed as a new order an account of rents, profits, and improvequestion ; but the defendant is asking no relief ments, and adjudge the land subject to a lien by cross bill or otherwise."

for the difference; and this is done only when At the suit of the holder of a life estate, a such equity is pleaded." Campbell v. Laclede county court ordered the sale of the remainder Gaslight Co. 84 Mo. 352. estate. The judgment was void for want of ju- In Wichita Land & Cattle Co. v. Ward, 1 risdiction, and the infant remainderman Tex. Civ. App. 307, 21 S. W. 128, where a ceived no benetit. After coming of age, the in- vendor's lien was enforced against a guardian, fant recovered in ejectment. It was held that and the ward had the sale set aside, it was held the purchaser could not maintain a bill in that the rents and profits were a proper offset equity for the purchase money, and for a lien, against the amount paid by tue purchaser. where the infants had received no benefit. Aber- A guardian's sale was void because of no nathy v. Phillips, 82 Va. 769, 1 S. E. 113. The notice given to the heirs, and the court had no court said: “The record clearly shows that jurisdiction. A petition by the heirs against the neither W. H. Phillips, who was only seven purchaser to quiet title was held sufficient, alyears old when the land was sold under the though the purchase money was not shown to decree of the county court, nor the then unborn have been tendered. Washburn v. Carmichael, Sallie B. Phillips, ever made any contract, di- 32 Iowa, 475. This was on the ground that the rectly or indirectly, with either of the appel- defendant might have received more than suffilants in reference to the land in question, or cient rents to reimburse him. ever received even one cent of the price paid. They cannot, therefore, on any principle of jus

2. Administrators' sales. tice or equity, be called on to make restitution.”

And a purchaser was denied a lien where he The weight of authority holds that, if an adonly pleaded estoppel against the wards. ministrator's or probate sale is void, in a pro

A guardian's sale was void because the record ceeding to sell the land to pay debts, the purfailed to show that he had taken the required chaser is entitled to restitution or subrogation statutory oath, and no title passed by the deed. for the purchase money, where the same is used It was contended that the wards, who were in- to pay debts against the estate. Neel v. Carson, fants at the time of the sale, and for whose 47 Ark. 421, 2 S. W. 107 ; Daquin v. Coiron, 6 benest it was claimed the land was sold by the Mart. N. S. 674 ; Donaldson v. Winter, 1 La. guardian and the proceeds applied for their 137; McGee v. Wallis, 57 Miss. 638, 34 Am. nurture and education, were estopped from Rep. 484 ; Carey v. West, 139 Mo. 146, 40 S. W. questioning the title. The appellate court 'af- 661; Cunningham v. Anderson, 107 Mo. 371, 28 firmed the judgment of ejectment. The chief Am. St. Rep. 417, 17 S. W. 972; Sharkey v. justice noted that since the opinion there were Bankston, 30 La. Ann. 891 ; Wilie v. Brooks, decisions found that minors could be estopped. 45 Miss. 542. Wilkinson v. Filby, 24 Wis. 441.

So purchasers were held entitled to maintain a Referring to this case in Blodgett v. Hitt, 29 bill against the administrator, in the nature of a Wis. 169, the court said: “The defendant of- creditor's bill, and were entitled to substitution fered to show that the purchase money, paid for the debts which were paid by the money of for the land to the guardian, was expended by the purchaser under a void decree. Hull v. him for the benefit of the plaintiffs.

It | Hull, 35 W. Va. 155, 29 Am. St. Rep. 800, 13 was claimed that, if such purchase money was S. E. 49. The court said : “Principles of justice used for their benefit, the plaintiffs were es- demand this, and courts of equity have raised topped to deny the validity of such sale and up this principle, a being of their creation, conveyance. This court held, and in my opinion called 'substitution,' unknown to common-law held correctly, that such fact would not, of it- forums, to accomplish the ends of justice; and self, constitute an estoppel upon the plaintiffs. I know of no more signal instance to exemplify

was

the disposition, as well as the power, of equity | timating the value of Confederate money at the to adopt means to accomplish right, than this time of the payment, with interest, after charof substitution, accorded purchasers under void ging hiin with rents and allowing for improveproceedings, whose money has gone to satisfy ments and repairs. Martin v. Turner, 2 Heisk, liens good against the debtor."

384. So, restitution was allowed the purchaser in An administrator's sale was void, and the an action brought by heirs to set aside and re proceeds were applied to the debts, removing deem from an execution sale because the ex them as charges upon the personal estate, and ecutor, not having power to sell certain lands, maintaining an infant heir. Where restitution used a judgment to effect their sale, and sold to the purchaser was not tendered, an action thein on masse for less than their value. It was or ejectment by the heir was en joined. Robertheld that, as complainants were seeking relief son v. Bradford, 73 Ala. 116. in equity, and the purchase relieved the estate In Bland v. Bowie, 53 Ala. 152, the court from an indebtedness, and gave a surplus to the said: “We do not doubt that it is competent for executor for the benefit of the heirs, they were the purchaser, at any time after he discovers compelled to refund the purchase price as a con that the proceedings for the sale are void, to dition precedent to their redeeming. Kinney v. resort to a court of equity to compel the heir Knoebel, 51 111. 112.

or devisee to elect the ratification or the reIn Bishop v. O'Conner, 69 Ill. 431, toe case scission of the contract of purchase. If the purof Kinney y. Knoebel, 51 Ill. 112, was dis chase money has been paid and distributed to tirguished, as subrogation in that case the heirs, or applied by the personal represent placed on the ground that it was a bill filed to ative to the payment of debts, a court of equity set aside a sale and to be permitted to redeem, would compel a conveyance of title from the and when equity was sought, relief would only heirs, if they could not successfully impeach the be granted upon doing full equity. Also in fairness of the sale. Bell v. Craig, 52 Ala. 215. that case the purchase was upon condition that It is impossible that injury can result to the he could use the debts against the estate for vigilant purchaser, and it cannot be allowed him paying his bid.

to rescind at pleasure the contract of purchase, In Smith v. Knoebel, 82 Ill. 392, which was a which the heirs may be willing to confirm." subsequent appeal of Kinney v. Knoebel, 51 Ill. In Dorman v. Lane, 6 mi. 143, it was said 112, where the same doctrine was affirmed, it that a sale under a void authority was also was held that the executor held the land as se void, and the purchaser could recover back the curity for the debts, that the land sold for more purchase money. In this case, it was held that than the debts, and that the heirs must pay the an application by an administrator to sell land whole purchase money in a suit to redeem. could not be allowed where fifteen years had

So it was held that the purchaser was en-elapsed after an order allowing his claim, and titled to an equity which would prevent a re the land had previously been sold under an act covery in ejectment until reimbursed, where the of the legislature to pay the same debt, and the record of the probate court failed to show an proceeds had been received by him, but the act order authorizing the sale which had been made, had been declared unconstitutional, and that but the lard had been sold above its appraisal sale was void. value, and the proceeds were applied to the re In Woodstock Iron Co. v. Fullenwider, 87 liet of other lands of the heirs. Evans y. Sny Ala. 584, 13 Am. St. Rep. 73, 6 So. 197, it was der, 64 Mo. 516.

said: "Where land of a decedent is sold by the Heirs brought suit to recover land where the probate court for the payment of debts, or for property of their ancestor was sold by the reg distribution, and the proceeding is void for istrar of wills, but not under the order or by want of jurisdiction, or otherwise, and the purthe direction of the judge. This sale was in cbase money, being paid to the administrator, is valid, under La. “Old Code, p. 174, art. 127,” | applied by him to the payment of the debts of providing that the judge shall cause the prop the decedent's estate, or is distributed to the erty to be sold. It was held that the plaintiff heirs,---while the sale is so far void as to concould recover, but should not have possession vey no title at law, the purchaser nevertheless until the rents, profits, and improvements were acquires an equitable title to the lands, which determined. Elliott v. Labarre, 2 La. 326. will be recognized in a court of equity. And he

In a later report of this case (3 La. 541) it may resort to a court of equity to compel the was held that, if the sum paid for the land by heirs or devisee to elect a ratification or rescisthe party evicted extinguished a debt of the sion of the contract of purchase. It is deemed owner of the land, the latter must allow it, unconscionable that the heirs or devisees should without interest, as this was compensated for reap the fruits of the purchaser's payment of by fruits.

money, appropriated to the discharge of debts, And a purchaser was held entitled to a lien which were a charge on the lands, and at the before he could be ejected, where the notice of same time recover the lands." administrator's sale failed to give time or place. in Brandon v. Brown, 106 Ill. 519, the exThere was no notice given of the petition to ecutor made a sale under an order of the county sell, and the sale was void. The purchase money court to pay debts, and before the money was paid was applied to the payment of mortgages, used the heirs recovered the property in ejectdebts, and administration. Blodge.t v. Hitt, 29 ment on the ground of want of jurisdiction of Wis. 169.

the county court, and the executor refunded the A sale to pay debts of an intestate, and for money to the purchaser, but refused to charge distribution, was held void for want of juris himself with the same in the county court. It diction of the county court, as no process was was held that, if the heirs disaffirmed the sale, served on the minors, or answer filed in their they must return the purchase money. behalf. It was held that the purchaser, whose An administrator's deed was supposed to be money was used by the administrator to pay void in an action of ejectment brought by heirs. debts, was entitled to have the value of the The defense was that the purchase money was payraent made by him refunded and, if not paid used to pay debts. It was held that the answer in a reasonable time, to be paid by a resale, es should contain a prayer that an account be

an

on

taker, and that the sum found to be due the the heirs, that application of the money exdefendant should be declared to be a lien upon onerated their property pro tanto. It went to the land ; and the judgment of the court should relieve encumbrance the land. They be that the plaintiff should have possession would not be permitted to recover back the land upon paying the defendant the sum so found for the reason that the probate decree and sale to be due. This was not done in the present were invalid, and, therefore, did not devest their case, and in this particular the answer of the title, except upon the condition that they redefendant was defective. Sims v. Gray, 66 Mo. store to the purchaser his money, or, rather, to 613.

the extent of the cash payment.” It is a general rule that where the debts paid And a purchaser of property under execution from the proceeds of the sale were a charge on was held to have the right in equity, on the rethe land, and the administrator's sale is void, covery of the property from him by a superior the purchaser will be held entitled to restitution title, to be substituted for the creditor, and to or subrogation. McDonough v. Cross, 40 Tex. have his purchase money refunded by the de251 ; Caldwell v. Palmer, 6 Lea, 652; Fisher v. fendant in the execution, where the execution Bush, 133 Ind. 315, 32 N. E. 924; Galveston, was against administrators, out of the assets of H. & S. A. R. Co. v. Blakeney, 73 Tex. 180, 11 the estate. McLaughlin v. Daniel, 8 Dana, 182. S. W. 174; Merselis v. Vreeland, 8 N. J. Eq. The court said: “According to the principle re575.

peatedly recognized by this court, he has an So, where an administrator's sale was void, equitable right to be substituted in the place of although one parcel of land sold for enough to the creditor, and to have the amount so paid discharge all debts, the purchaser was held en refunded to him out of the estate. His equity titled to a vendee's lien for money which he had rests not upon the ground of his want of knowl. paid on his bid, and which had gone to release edge as to the title of the slave, but on the land from the burden of the intestate's debts. ground of his having discharged a judgment Jones v. French, 92 Ind. 138.

against the estate, for which it stood chargeSo, the purchaser at an administrator's sale able, by a purchase of property made under the was held entitled to be subrogated to the extent coercive process of the law; and, therefore, has of the purchase money applied in the extin- equitable right to be reimbursed out of the esguishment of a mortgage on the property. Vallé tate." v. Fleming, 29 Mo. 152, 77 Am. Dec. 557. This

And subrogation was allowed the purchaser was an action of ejectment by heirs. The court where a guardian filed a bill against an exsaid: “It is immaterial under what form the ecutor to subject land devised to the payment equity in such cases is administered, -whether of his debt, without making devisees parties. under the name of compensation, as it was done The sale did not pass a legal title. Hudgin v. in the case of Bright v. Boyd, 1 Story, 478, Fed. Hudgin, 6 Gratt. 320, 52 Am. Dec. 124. This Cas. No. 1,875, or under the name of substitu was on the equitable ground that the purchaser, tion, as in the case of Hudgin v. Hudgin, 6 on disaffirmance of the sale, was entitled to be Gratt. 320, 52 Am. Dec. 124, or, as it is some substituted to the rights of the creditor, and times more conveniently effected, by reviving that the land should be charged with the the encumbrance, which the purchase money amount of the debt paid by him. has extinguished in permitting it to be used as In Bishop v. O'Conner, 69 Ill. 431, the case a shield against a recovery at law. Peltz v. of Hudgin v. Hudgin, 6 Gratt. 320, 52 Am. Dec. Clarke, 5 Pet. 482, 8 L. ed. 199."

124, was distinguished, as there the testator exAnd in an action of ejectment by heirs to re pressiy charged the land with the payment of cover from the purchaser at an administrator's debts, and, the debts having been paid by the sale on the ground that it was void, it was held purchaser from funds arising from the sale by error to strike out the defendant's answer, the executors, the heirs were required to refund pieading, as in Vallé v. Fleming, 29 Mo. 152, to the purchaser the money he had paid the 77 Am. Dec. 557, his equitable claim. Jones v. executor, and which had been applied to the Manly, 58 Mo. 559.

encumbrance. In Bishop v. O'Conner, 69 Ill. 431, it was And the purchaser is held entitled to relief said that in the case of Vallé v. Fleming, 29 Mo. where it is shown that the purchase money had 152, 77 Am. Dec. 557, the purchase

at

been applied for the benefit of the estate and administrator's sale was subject to a mortgage, heirs, and the sale was set aside. and the purchase money was applied to the An administrator, under an order of the prosatisfaction, and the purchaser was subrogated bate court, made a void sale of the homestead to the rights of the mortgagee. The correct to pay debts. It was held that the heirs, in an ness of the decision was doubted.

action against the purchaser to recover the A sale was void because the administrator land, should offer to restore the purchase money failed to give bond. The purchaser had paid which they had received, and which had been one third in cash, which was used to pay a judg-applied for their benefit. Stephenson v. Marment lien. There was no formal rescission, but salis, 11 Tex. Civ. App. 162, 33 S. W. 383. a resale, and the first purchaser bought part In Stults v. Brown, 112 Ind. 370, 2 Am. St. of the land. In a suit by him to obtain a Rep. 190, 14 N. E. 230, it was said that a preference, it was held that the purchaser was purchaser at an administrator's sale which had entitled to be reimbursed, out of the estate, the been set aside was held entitled to enforce a sum of money which he had advanced and could vendee's lien against the land for the amount recover by bill in equity. Short v. Porter, 44 of the purchase money which had been used for Miss. 583. The court said: “But the equity of the benefit of the estate, and to an order re. the complainant rests upon the further impreg- quiring the administrator to resell the land for nable ground that he, supposing that he was the payment of his debt. But relief was deacquiring the title of the heirs of intestate, at nied in this action, which was a suit for specific the sale made by the administrator, made a cash performance. The administrator then filed his payment of dollars, which was actually claim against the estate for the amount paid, used and applied by the administrator

to

and was defeated. Thereafter he brought an. discharge a preferred lien on the land. As to other suit on the same matter against the heirs.

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