In McIntyre v. Sanford, 89 N. Y. 634, it was held that N. Y. Code Civ. Proc. § 1440, as amended by Laws 1881, chap. 681, § 2. providing that, if the title of one claiming under a sheriff's deed sold on execution is adjudged void, a judgment shall have no force unless the plaintiff shall pay the amount paid on the sale, did not apply where the purchaser and the sheriff had fraudulently colluded; but in an equitable action to set aside the sale it was held that the plaintiff should refund to the purchaser the amount of the judgment with interest.

Under 2 N. Y. Rev. Stat. 326, § 62, providing that no guardian of any infant party to the suit shall purchase any lands except for the benefit of such infant, and that all sales contrary to this provision shall be void, a purchase of infant's property at a partition sale was held void, and the purchaser was held entitled to the purchase money paid and interest, but was denied costs or expenses and damages, as the purchase was void. Lefevre v. Laraway, 22 Barb. 167.

And in Mulford v. Bowen, 9 N. J. Eq. 797, where an administrator was a purchaser at his own sale through another party, and the heirs brought ejectment, it was held that the purchaser could maintain a bill in equity to restrain the ejectment suit until the equitable rights of the purchaser could be ascertained.

So, where an heir had recovered in ejectment property sold by an administrator under a decree of the orphans' court for the payment of debts, and the administrator was the purchaser through another party, and the sale was fraudulent and void as against the heir, and the heir brought a bill for an accounting and partition, it was held that the purchaser had no ground of complaint where he was allowed his advances with interest. Obert v. Obert, 12 N. J. Eq. 423.

In Barbour v. Morris, 6 B. Mon. 120, where land was sold under executions against the heirs and administrator, and the administrator colluded with the purchaser to prevent competition and to acquire the tract for their joint benefit, and the sale was set aside as fraudulent, in a suit in equity it was held that the complainant should only be granted equity upon the terms of doing equity, and that the purchaser should be reimbursed the amount of the judgments extinguished by the sale, deducting the amount of rents received.

A purchase by an administrator of a head right, under an order of the probate court allowing the administrator to take the land for his claim, was void, but it was held that the heirs must reimburse the purchaser before they could recover the land. Halsey v. Jones, 86 Tex. 488, 25 S. W. 696.

Purchase by guardian, see Campbell v. Laclede Gaslight Co. 84 Mo. 352, subdiv. III., d, 1; purchase by administrator, see Jayne v. Boisgerard, 39 Miss. 796, subdiv. III. d, 2.

IV. Relief by action against the debtor.

The weight of authority holds that the pur

of assumpsit, and may recover from him the money paid, on the sale being set aside. This rule is applied notwithstanding the purchaser may have paid the money under a mistake of law. But relief was denied in a purchase of chattels where the purchaser failed to obtain possession, and it was not shown that the sheriff had paid out the money.

So it was held that the purchaser could recover from the defendant in execution for whose benefit the purchase money had been paid, where property of defendant was sold at sheriff's sale, and the sale was invalid because the property was exempt as a homestead. It was further held that the purchaser had not waived his right by failing to plead in the ejectment suit, wherein he lost the property. Stone v. Darnell, 25 Tex. Supp. 430, 78 Am. Dec. 582. The court said: "Though a party may plead a demand in reconvention, he is not obliged to do so, nor is he precluded of his action by his failure so to plead."

In an action by a purchaser at a sheriff's sale against the defendant for failure of consideration, it was held that the purchaser was entitled to recover of the defendant the purchase money, where the sheriff had misdescribed the land, and the purchase money had been applied to the payment of the judgment. McLean v. Martin, 45 Mo. 393. The court said: "The plaintiff bought at a fair sale, and paid his money; that money was regularly paid to the creditor, and went to extinguish the judgment against the debtor. It was, then, so much paid for the use and benefit of the debtor. The debtor supposed that his land was sold, and surrendered it to the purchaser, who moved on it and made improvements. Afterwards, ascertaining the misdescription and finding the mistake, the debtor regains possession and now claims the land, and refuses to refund the money which the purchaser paid for his use, and which was applied to the discharge of his debts. In other words, he avails himself of the benefits of the payment, and holds onto the land besides. The claim is grossly inequitable and unjust, and ought not to be allowed, and I see no reason why the action is not maintainable."

So it was held that the purchaser could plead as an equitable set-off for damages the purchase money paid by him, where a purchaser under a void execution sale was sued in trespass by the defendant, who was insolvent. Geoghegan v. Ditto, 2 Met. (Ky.) 433, 74 Am. Dec. 413.

And it was held that the purchaser was entitled in equity to maintain an action against the judgment debtor for the amount of his purchase. Hawkins v. Miller, 26 Ind. 173. In this case a mortgage foreclosure was held void. The court said: "The judgment defendant was guilty of a wrong in refusing to pay his debt. He persisted in that wrong by allowing process to issue on the judgment against him. He stood by and took no steps to have the process set aside, and allowed the sheriff's sale to take place. The plaintiff in good faith paid his money, it is true, under a mistake of law, but the defendant got the benefit of that mistake; he remained in the possession of the land sold, and finally defeated the plaintiff in the suit to recover possession of the premises. Under such circumstances, this court is not inclined to look after fancied distinctions which have no foundation in reason."

A receiver of a partnership sued one of a firm, but before levy the property was fraudulently conveyed. Execution was levied upon the property, and the other partner became the purchaser. In a suit by him to set aside the fraudulent conveyance a decree was had setting it aside, and also the sheriff's sale to the plaintiff. On the question of subrogation, it was held that the purchaser was an ordinary vendee at sheriff's sale, and that the amount which he paid to the sheriff operated as a discharge pro tanto of the judgment, and that, the judgment being satisfied, there could be no substitution. It was further held that, as the money advanced on the void sale was paid to the use of the execution defendant, the administrator, and not the heir of plaintiff, was entitled to recover it. Richmond v. Marston, 15 Ind. 134. The court said: "The sheriff's sale being a nullity, the administrator of Marston may have the right, by suit against Richmond [the defendant], to recover the money paid to the sheriff on the void sale."

V.

But a purchaser was held not entitled to maintain a suit against the debtor for the amount paid, where an execution levy was made on the interest of the defendant in slaves, and the sale was void because the property was not in the possession of the sheriff. Brown Lane, 19 Tex. 203. This was because the purchaser did not get such possession or title as ever could have been matured into a good right, and it was not shown that the sheriff had paid the money, and it did not appear whether the purchaser gave a fair value, or bought on speculation at an unconscionable price. This was an action by a purchaser to recover an undivided interest in certain slaves. The validity of the sale was attacked, and the plaintiff then claimed judgment against the defendant for the amount he had paid, and which he alleged had gone to discharge the indebtedness of the defendant in the execution. The court said: "The extent to which our decisions go, so far, is that a bona fide purchaser, who has been sued to vacate his title, will not be required to abandon his possession and title, until his purchase money is refunded to him. It is necessarily implied in this, that the sale is such as to vest the possession, either actually or constructively, in the purchaser; that he paid money which was applied to the use of defendant; that he paid a fair price, such as would constitute a consideration in good conscience; and generally that he should not be a participant in any fraud connected with the sale."

Cases where the purchaser failed to secure the property because it was owned by a third person, and the purchaser sued the debtor, are not included in this note.

V. Relief by action against the creditor.

The weight of authority is that, in the event of the sale being set aside, and in the absence of other relief given by statute, the purchaser may recover the purchase money in an equitable action for money had and received against the creditor procuring the sale, on the ground of mistake and failure of consideration, and implied promise to return the same. The remedy against the creditor is also given in some states by statute. So where the creditor held another prior lien, and did not disclose it at the sale, the purchaser was held entitled to have the sale set aside, and the creditor was compelled to refund or release his lien. Relief was refused

where the remedy of subrogation was sufficient. So, the purchaser at a void execution sale was held entitled to recover, in an equitable action for money had and received, the amount of his purchase money from the party who procured the sale. Schwinger v. Hickok, 53 N. Y. 280. In this case on a foreclosure of a mortgage by publication a personal deficiency judg ment was taken without jurisdiction. The court said that knowledge of the invalidity of process "will not be imputed to the purchaser at such sale in order to make out that the payment was voluntary."

And in Chapman v. Brooklyn, 40 N. Y. 372, which was a suit by the purchaser against the city under a judicial sale for taxes, which was void because the lots sold were not owned by the persons named as the owners, it was held that the purchaser could recover, applying the principle that, when the consideration appears to be valuable and sufficient, but turns out to be wholly false, then a promise resting on this consideration is no longer obligatory, and the party paying money can recover it back.

And in Ward v. Southerland, Peck (Tenn.) Appx., where the sale was void, the purchaser was held entitled to maintain a bill in equity against the plaintiff in execution to recover the purchase money on the ground of misstatements of the plaintiff in execution, and that the money was paid under a mistake. In this case the creditor obtained a judgment, and after the death of the debtor issued a sci. fa. against the heirs without any executor, and on return of the sei. fa. had the execution awarded against the heirs, and then sold the judgment to the purchaser on the representation that they acquired a good title, and the plaintiffs then purchased at the execution sale.

And where a sale was had in partition, and no guardian ad litem had been appointed for an infant defendant, the purchaser was discharged from his bid, and held entitled to his costs, as there was no fund out of which he could be paid. It was held to be proper practice to compel the complainants to pay them in the first instance. Kohler v. Kohler, 2 Edw. Ch. 69.

So a purchaser of land having paid the purchase money, and the sale having been set aside, was held entitled to a return of the money from the parties by whom it was received. Salter v. Dunn, 1 Bush, 311. The court said: "But in the case of Bowman v. Melton, 2 Bibb, 151, this court held, where a mortgagee obtained a judg ment of foreclosure and sale of the mortgaged property, and it was afterwards ascertained that the mortgagor did not own the property and the purchaser lost it, that the mortgagee was bound to refund the money to the purchaser. In such cases the property is sold at the instance and by the procurement of the plaintiff, and by his proceedings for that specific purpose, which is not the case under execution, when the levy and sale is the act of the officer of the law."

After an administrator's sale the purchaser learned for the first time that a building on the land was partially on other land, and did not belong to the estate. The administrator retained $100, the first payment, and resold the land after acquiring a quitclaim deed for the land covered by the building. In an action by the purchaser against the administrator it was held to be no defense that the defendant had accounted for the money to the probate court as belonging to the estate where he had knowledge of plaintiff's claim. This Was on the

chaser was entitled to recover irrespective of the statute.

The

ity of the defendant to perform relieved the plaintiff from the forfeiture."

A sale under execution was made of the equity of redemption; but the fact that the judgment creditor held a mortgage also was not disclosed, although he was present at the sheriff's sale. It was held that the purchaser had a right to maintain an action to set aside the sale, and to require the creditor to refund the purchase money or release his mortgage. Wolford v. Phelps, 2 J. J. Marsh. 31.

And where the court required a bond conditioned for the repayment into court of the purchase money in the event of the confirmation of the sale being reversed, and on the execution of the bond the marshal paid the complainant from the purchase money received, and the case was reversed, it was held that the purchaser whose money had been wrongfully appropriated to the satisfaction of the judgment could maintain an action upon the bond. Lamb v. Ewing, 4 C. C. A. 320, 12 U. S. App. 11, 54 Fed. 269. In this case the judgment creditors were nonresidents, and the court said: "When, under these circumstances, the court was asked to pay out the money in its hands, it was at once apparent that by so doing the court, in the event the judgment was held void, would be deprived of the power to cause restitution to be made to the proper parties, because both the fund and the parties might be beyond its control. To avoid this the court required the parties to execute the bond in question, whereby they became bound to repay the money in case the judgment against Lamaster should be held to be void, and thus the court continued its power to compel restitution to be made in case the right thereto should arise. We find nothing in the action of the circuit court in this particular which was illegal in itself, or which imposed upon the judgment creditors burdens of such a nature as to render the bond of no effect."

And where the order of confirmation was vacated the court said that, if the judgment creditor received $30 from the purchaser, respecting which there was no finding, he became the debtor to the purchaser to that amount, and the purchaser might have a right to be compensated out of the money collected upon the judgment. Deputron v. Young, 134 U. S. 241, 33 L. ed. 923, 10 Sup. Ct. Rep. 539.

A judgment and execution were declared void in proceedings instituted by the judgment creditor. It was held that the purchaser under such execution sale could maintain an action against the creditor for the purchase money, under Mont. Comp. Stat. 1887, Code Civ. Proc. § 347, providing that, if a purchaser of real property sold under execution be evicted in consequence of irregularity in the proceeding concerning the sale, he may recover the purchase price paid, with interest, from the judgment creditor. Elling v. Harrington, 17 Mont. 322,

Where a purchaser brought suit to rescind the sale, and ten years had elapsed in endeavoring to perfect the title, it was held that the sale should be set aside, and the purchaser relieved; and the case was remanded to the court below that an accounting be had and taken between the parties, of the sums due and chargeable to each on account of the said sale, and for every proceeding according to the principles of equity. Myers v. Nourse, 5 Fla. 516.

But in Holt v. Bason, 72 N. C. 308, a sale was made under an execution levied on lands of the testator on a judgment against an executor. A creditor by a prior judgment against the testator was the competing bidder. Thereafter an administrator de bonis non, by order of the court, sold the land for assets, and realized an insufficient amount to pay the prior judgment. The first purchaser sued the first judgment creditor for inducing a void purchase of land by his bidding. It was held that it was a question for the jury. The court said: "The plaintiff does not ask to be subrogated to the rights of Swepson, who has his money and is the only party benefited, for the obvious reason that prior judgments will exhaust the fund before the Swepson judgment is reached. Scott v. Dunn, 21 N. C. (1 Dev. & B. Eq.) 425, 30 Am. Dec. 174. Nor does he bring his action under Rev. Code, chap. 45, 27, against the defendant in the execution, because the estate is insolvent, and can afford him no relief. Laws v. Thompson, 49 N. C. (4 Jones, L.) 104. Nor yet can he bring his case within Saunderson v. Ballance, 55 N. C. (2 Jones, Eq.) 322, 67 Am. Dec. 218. where the part owner of land stands by and sees it sold by a trustee as the land of another, and permits the purchaser to pay for it and take a deed, under the belief that he is getting a good title. But Holt is a purchaser at execution sale. The rule there is that the sheriff sells only the interest of the defendant in the execution. If the defendant has an interest, well and good; if he has none, it is the purchaser's own look out, for he buys at his peril, and. as a general rule, he is entitled to no relief as against creditors. In this case it would seem that the plaintiff, by his own showing, was guilty of gross neglect of a plain duty."

A foreclosure was had, to which the grantee owning the legal title was not a party, and a personal judgment was rendered against the mortgagor by publication. The sale was void, and it was held that the purchaser could not maintain an independent action against the plaintiffs in the foreclosure for money had and received, but that he must seek relief in the foreclosure suit, and on his application the court could direct the sale to be set aside, and satisfaction canceled, and authorize a supplemental bill for a resale to be filed and conducted in the names of the complainants in that suit for the plaintiff's benefit. Boggs v. Fowler, 16 Cal. 559, 76 Am. Dec. 561.

In Abadie v. Lobero, 36 Cal. 390, where it was held that a purchaser at a sheriff's sale was not entitled upon his own motion, made in his own name, to have the judgment upon which the order of sale was issued vacated, and himself substituted as plaintiff, it was said: "It is true a dictum is found in Boggs v. Fowler, 16 Cal. 566, 76 Am. Dec. 561, to the effect that, upon the application of a purchaser, the court may not only direct the sale to be set aside and

the satisfaction canceled, but also 'authorize a supplemental bill for a resale of the premises to be filed and conducted in the names of the complainants in that suit,' for the benefit of the purchaser; but no authority is cited for the latter proposition, and none, going so far, has fallen under our observation."

In Wood v. Genet, 8 Paige, 137, which was an action by a purchaser against a feme covert for the surplus money received by her husband on a sale on a judgment against her as heir, and where it was held that she could not be made personally liable although the sale was found to be invalid, it was said that the bill was not framed to obtain relief under 1 N. Y. Rev. Laws 1813, p. 504, providing that, if any purchaser of lands upon any execution shall be evicted on account of any irregularity in the proceedings, such person may have a writ out of chancery to the supreme court, who shall warn the party or parties at whose suit, or for whose benefit, the lands were sold, as the party against whom the execution issued, or their heirs, executors, or administrators, to show cause, and may award the plaintiff judgment in execution against him who ought to repay the same. And the court further said that 2 N. Y. Rev. Stat. 376, §§ (68) 72, which was in force at this time, gave to the purchaser, who was evicted by reason of the reversal of the judgment upon which the real estate was sold, a remedy against the party for whose benefit the same was sold, in a suit at law to recover back the purchase money with interest.

VI. Relief by action against the sheriff.

It seems that the sheriff is liable to any party injured in consequence of a breach of any of the the duties connected with his office. This is applied to the right of the purchaser, and it is held that he may recover from the sheriff the purchase money where the sale is avoided by reason of irregularities of the officer conducting the same; but, where the purchaser had actual knowledge of the irregularities, it is held that he cannot maintain the action.

In Hightower v. Handlin, 27 Ark. 20, a sale was set aside because the execution was void, and the sale was made six days after the execution should have been returned. The court said: "While it is not incumbent upon bidders and purchasers, at judicial sales, to inquire into any irregularity which may have been permitted by the court rendering the judgment, or the clerk in issuing the execution, if it is regular upon its face, yet, if for any cause the proceedings of either should be declared void, by competent authority, he could not take anything by reason of such sale, but would have recourse upon the sheriff, who made the sale, for the money he paid at it."

So, where property was not seized at all, and the purchaser was evicted on the ground that the sheriff's sale was a nullity, it was held that the sheriff must indemnify the purchaser. Friedlander v. Bell, 17 La. Ann. 42.

And a purchaser of a runaway slave sold by a sheriff was held entitled to recover damages where the sale was invalid because not advertised as required by law. Fleming v. Lockhart, 10 Mart. (La.) 308.

A purchaser at an execution sale under a judgment void because rendered against a deceased party was held entitled to recover from

had not been paid to the plaintiff in the execution. Bragg v. Thompson, 19 S. C. 572.

A sheriff under execution sold real estate, and the purchaser paid into the sheriff's hands $620. and then refused to complete the purchase on the ground that the sale was irregular, and the sheriff resold the property to another party. The first sale having been set aside as irregular. an action was brought by the purchaser against the sheriff. This was held to be an action for the nonpayment of money collected upon execution, within N. Y. act 1871, chap. 733, § 2, excepting such actions from the operation of that statute which required actions against sheriffs to be brought within one year from the time the cause of action accrued. It was further held that the sheriff could not retain the expenses of the sale. Bowne v. O'Brien, 5 Daly, 474.

But where the purchaser had notice of the irregularities of the sale he was refused relief against the sheriff.

He

A sheriff held several executions of different priorities, and sold the property under the prior execution for enough to satisfy the first two executions, but, instead of satisfying the second execution, applied the money to a junior execution, and resold another piece of land under the execution which should have been satisfied. This sale was vacated in a suit brought by the execution defendant against the purchaser, and it was held that the purchaser could not maintain an action on the sheriff's bond to recover the purchase money of such second sale. State ex rel. Sage v. Prime, 54 Ind. 450. In this case the court said: "But in the case at bar the purchaser under the execution issued on the next to the oldest judgment, which was next to the oldest lien on the real estate of the judg ment defendant, had actual and constructive notice of all the facts. He was the purchaser at the sales made by the sheriff under the execution issued on the oldest judgment, which was the oldest lien on said real estate. knew, therefore, or had the means of knowing. and was bound to know, that the proceeds of such sale were sufficient to satisfy, not only the said oldest judgment, but also the said next oldest judgment. He knew, also, or had the means of knowing, and was bound to know, that the surplus of the said proceeds of such sales were in law applicable to, and by law satisfied, the said next oldest judgment. When, therefore, at the sheriff's sale under the execution issued on the said next oldest judgment. the said purchaser bid off and paid for the said parcel of said real estate sold thereunder, he knew, or had the means of knowing, and was bound to know, that the said next oldest judgment had been by law paid off and satisfied, and the said sale thereunder was an absolute nullity. In such a case as this, it is very clear to our minds that the purchaser cannot, nor can the assignee of his certificate of purchase, by any possibility, have any cause of action against the sheriff or his sureties, on his official bond, for the recovery of the purchase money. This conclusion is in entire harmony with the doctrine of the case of State ex rel. Wilber v.

Salyers, 19 Ind. 432, although the facts of the two cases are somewhat dissimilar."

Cases where the purchase is by the creditor are not intended to be included in this note.

VII. Summary.

The purchaser is released from liability on

where there is a resale to hold him liable for a deficiency on failure to comply with his bid, if he has been led to believe that the first sale was abandoned, or where proper steps are not taken to hold him liable. In England, Ireland, Canada, and in New York and some other states, the practice in judicial sales is to allow the purchaser to show before confirmation that the title is defective, and thereupon his deposit will be returned and the sale set aside. On setting a sale aside, or on a recovery in ejectment from the purchaser at a void sale, he is generally allowed reimbursement or subrogation. This is on the broad equitable principle that, having advanced money under a colorable right to pay the debt of another, he is entitled to be recompensed; and in working this out other equitable principles are applied,-"that he who seeks equity must do equity," and what is called the doctrine of "compensation," and "substitution," which is commonly known as subrogation. In states which keep common-law and chancery practice distinct, the remedy is for the purchaser to have the judgment in ejectment enjoined until reimbursed. But where the relief is granted in common-law courts he should set up and claim a lien for the purchase money in the event of eviction. The remedy of reimbursement or subrogation is also usually allowed in cases where guardians' and administrators' sales are held void. Some states deny relief in this class of cases, unless the purchase money was used to pay claims which were a charge on the land, as in Illinois, Michigan, and Ohio. So relief is denied in some cases where the money

is not traced to a use beneficial for the estate: but in others it is held that the purchaser is secure if the money is paid to the guardian. In some states relief is provided by statute; but in New York such a statute attempting to transfer the title to the purchaser on the nonreturn of the purchase money was held unconstitutional. It seems that where sales are had on personal judgments taken against nonresidents on publication service the purchaser is not entitled to restitution or subrogation. So where the purchaser is a party to a fraudulent combination to procure the property at a sacrifice by preventing bidding. But in the latter case relief has been granted in some cases without discussing the question of fraud, and without noticing the cases that refuse relief. The purchaser is held entitied to maintain an action in equity in the nature of assumpsit against the debtor where the purchase money was used to extinguish a debt of the defendant, and the sale is held void. And in the absence of statutory relief it seems that the purchaser may maintain an equitable action for money had and received, against the creditor procuring the sale. This remedy is given by statute in some cases. Where the sale is invalid by reason of negligence on the part of the sheriff, and the purchaser had no notice of the same, the sheriff may be liable to him in damages for the purchase money.

Cases where the creditor is the purchaser, and cases of ordinary tax sales, are not intended to be included in this note. I. T.

OF APPEALS, SEVENTH CIRCUIT. the District of Indiana dismissing a bill filed to enjoin defendants from making use of complainant's stock quotations. Reversed.

Statement by Baker, Circuit Judge:

On final hearing, appellant's bill to enjoin appellees from purloining its continuous quotations was dismissed for want of equity.

Appellees discuss the questions whether the quotations are property, and whether, if so, appellant lost its proprietary right by its method of giving them out; but that part of the case is ruled in this court by the decisions in Illinois Commission Co. v. Cleveland Teleg. Co. 56 C. C. A. 205, 119 Fed. 301, and Sullivan v. Postal Teleg. Cable Co.

61 C. C. A. 1, 123 Fed. 411.

There is, however, one further matter that requires presentation and decision. It pertains to the defense that appellant has no standing in a court of equity for either

F. W. Dodge Co. v. Construction Information Co. 60 L. R. A. 810,

As to property right in article capable of being used for gambling purposes, see also, in this series, Gulf, C. & S. F. R. Co. v. Johnson, 1 L. R. A. 730, and Edwards v. American Exp. Co. 63 L. R. A. 467.