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against the purchaser of the same land under execution sale for the deferred payments where the deed had not been put upon record. execution sale was void under Ga. act 1847, § 3, providing that when any judgment shall be given on a purchase-money note, where titles have not been made, but bond for titles has been given, the obligor of the bond may file a deed of conveyance, and thereupon the same may be levied on and sold under said judgment. It was held that the purchase should be set aside on complainant paying to the purchaser the amount paid by him. Upchurch v. Lewis, 53 Ga. 621.

An

In another case arising under this statute, a vendor of a title bond, where part of the money was paid, obtained a judgment against the vendee on his purchase-money notes, although the purchaser was willing to pay provided he could obtain the title that he had contracted for. execution sale was had of the property to a purchaser, combining with the vendor to defraud the holder of the title bond. In an action by the holder of the title bond to set aside the sale, and for a specific performance, the court said: "If the purchaser has paid his bid, and It has been appropriated to the payment of the debt due by complainant to his vendor, he is entitled to be reimbursed, and he should be protected to that extent in any decree that may be rendered." Brunson v. Grant, 48 Ga. 394.

So, on the principle that "he who seeks equity must do equity," it was held that the complainants would be required, as a condition precedent, to refund to the purchaser so much of the purchase money as came into their hands. This was a suit by heirs against the purchaser to set aside a sale made in partition under a decree by a court having no jurisdiction of their persons, and for an accounting of rents. It was also held that the purchaser was entitled to be refunded taxes paid by him. Chambers v. Jones, 72 III. 275. The court said: "They are seeking relief against defendant, and, if they have his money in their possession, arising out of the same transaction, it is but just they should restore it to him. The court will not assist them to recover the possession of their land, and give them an account of the rents and profits, while they still retain in their hands the purchase money. The case of Kinney v. Knoebel, 51 II. 112, is an authority for this view of the law, and the principle of that case would authorize the imposition of conditions upon which relief will be granted. . . . If it shall appear that either of the heirs has received any portion of the proceeds of the sale, the court, with great justness, may decree a restoration of the amount before adjusting the equities between the parties. The same may be said of the taxes."

So, an offer to reimburse was held to be a condition precedent in an action by heirs to have a sale made in partition set aside, where the money had been distributed. Byars v. Spencer, 101 Ill. 429, 40 Am. Rep. 212.

And the defendant in the execution was held entitled to relief only on condition that within thirty days he pay into court for the benefit of the purchaser the amount of the judgment, costs, and interest, where a sale on execution of a homestead was held void for failure to follow the requirements of the statute, and conveyed no title. Bullen v. Dawson, 139 Ill. 633, 29 N. E. 1038.

And a sheriff's deed to the purchaser, and the deed from the purchaser to his wife, were set

aside on condition that the debtor pay to the purchaser the amount of the bid with 8 per cent interest, and the money which the purchaser paid, and the interest on an existing mortgage, and improvements, taxes, and insurance, less the rents. Lurton v. Rodgers, 139 Ill. 554, 32 Am. St. Rep. 214, 29 N. E. 866. This was an action to set aside and redeem because lots valued at $2,000 were sold on execution sale for $60, and because sold en masse.

And where a levy was void for uncertainty. and the sale passed no title, it was held that, if the defendant was incompetent to consent to the sale, and was not thereby estopped, his administrator could not cancel the sheriff's deed and recover the land without accounting for so much of the purchase money as the intestate had the benefit of, with interest. O'Kelley v. Gholston, 89 Ga. 1, 15 S. E. 123. So, reimbursement was made a condition precedent in a suit against the purchaser under execution to enforce liens. It was held that, as no judgment sustaining the execution was produced, on account of a mistake in the execution reciting a different judgment, the sale should be set aside; but, as the proceeds arising from the sale of slaves were applied to the discharge of the judgment debts of the plaintiff, it was held that he could not recover until he had repaid that money. Dufour v. Camfranc, 11 Mart. (La.) 607, 13 Am. Dec. 360.

The same was held in a similar case. Donaldson v. Rouzan, 8 Mart. N. S. 162.

And a purchaser in good faith, who paid the money in discharge of the judgment, was held entitled to reimbursement before the relief sought by the bill would be granted, in an action by an infant to set aside a sale under execution issued after the death of the defendant without revivor. Cook v. Toumbs, 36 Miss. 685. The court said: "But this is rather a matter of defense, than a part of the complainant's case; and it would be entirely competent for the court, under the bill as now framed, to decree that the deed of the sheriff to Cook be set aside and delivered up to be canceled, upon the appellant paying to him the sum of money paid by him in discharge of the judgment. Such a course is not inconsistent with the scope and prayer of the bill, and the court, in granting the relief sought, is competent to do so upon such equitable terms as may be shown to be just and proper."

And in a suit in equity to avoid a judgment and sale on the ground of false claims by creditors and an irregular sale, there being no fraud charged against the purchaser, it was held that relief would not be granted where the complainants did not offer to refund the money that had been paid for the property by innocent purchasers. Wilson v. Bellows, 30 N. J. Eq. 282.

In

An order granted a new trial on payment of costs. An execution for costs and a sale thereunder was void. In a suit by the defendant against the purchaser to cancel the deed as a cloud on the title, it was held that he should pay the purchaser the money appropriated for his benefit. Herndon v. Rice, 21 Tex. 455. this case the court draws a distinction between an action by the purchaser to cancel his deed and recover the purchase money, and an action by the defendant to remove the ground of possible attack upon his title. The court said the latter is a remedy ex gratia, dependent upon the sound discretion of the court, and will never

A sale was made of the equity of redemption, and the holder of the first mortgage became the purchaser. The sale was set aside on account of the ignorance and age of the defendant, who tendered the purchaser all the money due on his decree, and the costs. Campbell v. Gardner, 11 N. J. Eq. 423, 69 Am. Dec. 598.

The same rule was held to apply in actions to enjoin a judgment in ejectment where the recovery was had by reason of a void sale.

A purchaser at an execution sale was defeated in an action of ejectment by the debtor, the sheriff's deed being void. It was held, in an action to enjoin this judgment, that the purchaser had an equitable right to retain possession of the land as security for his purchase money, and the injunction should not be dissolved until he was reimbursed. Shepherd v. McIntire, 5 Dana, 574.

A

So, in an action to enjoin a judgment in ejectment, it was held that the defendant should be required to refund to the purchaser the amount paid. Henderson v. Overton, 2 Yerg. 394, 24 Am. Dec. 492. In this case after the levy of an attachment the defendant died. sci. fa. was run against the executor, and judgment was taken by default. A sci. fa. was run against heirs without naming them, and a judgment rendered against the heirs. The land was sold to this purchaser. The plaintiff in the original proceedings acquired the title of the heirs, and then brought ejectment against the purchaser. The court said: "It is said defendant did not receive from the sheriff the whole amount. It is his misfortune. Had he let his vold judgment rest it would not have happened."

In Andrews v. Richardson, 21 Tex. 287, the purchaser at judicial sale brought suit to enjoin a writ of possession against his tenant, issued by a justice, and the defendants sought to avoid the sale on the ground that there had been no appraisal. The plaintiff in replication asked that, if the sale was invalid, he should be reinstated in his original decree of foreclosure, and have execution. The court held the sale was valid, but said that, if it was not, the plaintiff would be entitled to the relief sought if he was the owner of the judgment, and, if not, he would be entitled to be reimbursed the money he had paid.

In some states the practice is to administer equitable relief in common-law courts; and so it is held in Missouri and Texas that a recovery of the property from the purchaser on a void sale will be granted only on condition that the purchaser is reimbursed the purchase money applied to plaintiff's debt.

An execution sale was made after the execution became dead and no vend. exp. issued. In an action of trespass to try title, by the purchaser, the equitable doctrine was applied, and it was held that he was entitled to recover the purchase money paid, in the absence of fraud. Johnson v. Caldwell, 38 Tex. 217. The court held that the equitable doctrine that a purchaser should not be compelled to restore property without being reimbursed was applicable, and should have been applied when the sheriff's deed was ruied out in evidence.

So, in an action by the heir the defendant was allowed possession until the payments could be ascertained by a reference. French v. Grenet, 57 Tex. 273. In this case, after a member of a firm died, and his estate was being administered

risdiction ordered the sale of the individual property of the deceased member. The purchaser acquired no title. He had paid the assignee, who applied the purchase money to the judgment lien.

In an action by heirs to recover land sold at a sheriff's sale, the court said: "The sale, if valid, devested the title of their ancestor, and they cannot recover. But, whether valid or not, it was averred in the answer, and appears in proof, that the ancestor of the plaintiffs received the benefit of the proceeds of the sale, applied to the satisfaction of the execution against him. And, under the decision of this court in the case of Howard v. North, 5 Tex. 290, 51 Am. Rep. 769, the plaintiffs cannot recover the property without reimbursing the purchase money paid, which went to the satisfaction of the judgment against their ancestor. This is according to the plainest dictates of reason and natural justice; and this they have not done, nor offered to do." Morton v. Welborn, 21 Tex. 772.

In Henry v. McKerlie, 78 Mo. 416, holding that the purchaser acquired title, the court said: "When the sale has not been approved, no title, either legal or equitable, passes to the purchaser. The equity open to him proceeds upon the assumption of a void sale, and is for a return of the purchase money, and reimbursement for the benefits received by the heirs, and for improvements which enhance the value of their land; the extent of this equity to be ascertained by an account of his expenditures and receipts. This equity suspends the right of recovery until the amount coming to him shall be ascertained and paid. It is administered upon the theory that the title has not passed to the purchaser, but that he has a charge or lien for his outlays and improvements incurred by him in good faith."

And reimbursement to the purchaser was held a condition precedent in an action by an administrator of one partner against the purchaser to recover the property, where there was a valid judgment against partners and after the death of one of the partners there were an execution levied upon the estate of the deceased partner and a sale. Bailey v. White, 13 Tex. 114. The court said: "Under the circumstances of this

case, the court, on general equity principles and in the discharge of equity jurisdiction, clearly had a right to make the decree, and could have prescribed the time within which it should be paid, and that plaintiff should not have execution of his writ of possession until it was paid."

But reimbursement was denied in the following cases on account of the pleadings, or the failure to follow the proper practice:

Executors made a mortgage without procur ing an order of the probate court, and a foreclosure sale failed to pass title. In an action against the vendee of the purchasers to recover the property the court said: "If the money bid for the land on sale made on foreclosure was actually paid, and a valid debt of the estate thus satisfied, appellants cannot be permitted to recover the land without refunding the money, although the sale was null. No question as to the right of appellee to have such money as may have been so paid was made by pleadings or the evidence, and, as the judg ment will be reversed, and the cause remanded, on account of matters before referred to, such pleadings may hereafter be filed, and such an issue tried as will enable the court below to ad

just any equities that may exist between the parties." Smithwick v. Kelly, 79 Tex. 564, 15

S. W. 486.

Three executions of different priority were in the sheriff's hands, and he sold the property levied upon to the third execution creditor, who paid off the first judgment and credited his debt, and the sheriff returned the execution unsatisfied for failure to pay the bid. A sale was then had on the second execution, and it was held that the first purchaser was entitled to an injunction to restrain a deed until reimbursed what he had paid on the first execution. Carnahan v. Yerkes, 87 Ind. 62. The court said: "The payment of the Potts judgment operated for the benefit of the appellees. It removed a lien which was prior to the Cook judgment, under which they purchased, and, had it not been so removed, they would have been compelled to pay it. Under the circumstances, equity would, perhaps, keep this judgment and its lien on the land alive for the benefit and security of the appellant. But the pleadings and record are not in such a condition as that the appellees can in this action be compelled to pay the sum so advanced by the appellant for their benefit, as the condition upon which the deed to the appellant for said land should be enjoined. It would be granting to the appellant relief which he has not asked, and which the facts set up in the answer would not justify. Had the appellant disclaimed any right to the land by virtue of the sale made by the sheriff to him, and asked that the money advanced by him for the purpose of paying off the Potts judgment should be refunded, he might, perhaps, have been entitled to affirmative relief."

So, in Ruddell v. Sparks, 79 Tex. 308, 15 S. W. 239, it was said that, if the purchaser had a claim for purchase money which had been applied to the payment of the judgment, and thereafter lost his property in an ejectment suit because the levy was on a homestead, he should have set up his claim there for reimbursement. It was held that he could not thereafter set it up as a set-off against an execution for officer's costs in a suit to try title, as they have no connection.

A sale of land under execution eight years after the death of the defendant was void because there was no administrator. In an action of trespass to try title, where no equitable relief was asked by either of the parties, it was held that the rule that the purchase money paid for the land at the void sale must be repaid before title will be decreed to the heirs did not apply. Fleming v. Ball, 25 Tex. Civ. App. 209, 60 S. W. 985. The court said: "Whoever showed the superior legal title to the land was entitled to a judgment, notwithstanding facts may have existed which, if properly pleaded and proved, would have entitled plaintiffs to some affirmative equitable relief should it appear that appellee held the superior legal title."

A tract of land was levied on under execution, and only part was sold, sufficient to satisfy the execution. It was held that the sale was void, as the statute authorizing a sale of less than the whole tract levied on had been repealed. In an action of ejectment against the purchaser the court said: "We have repeatedly determined that the legal and equitable rights of parties litigant, in relation to the subject-matter of a controversy, should, as far as practicable, be set up and determined in a single suit. In the due order of pleading, under our

blended system, the plaintiffs should have averred their willingness to pay the amount of the execution, with interest thereon; or the defendant should have claimed, provided his title were declared invalid, that he should not be compelled to restore possession until the purchase money which he had paid for the benefit of the plaintiffs, and by which the judgment against them had been discharged, should be reimbursed, and he indemnified." Howard v. North, 5 Tex. 290, 51 Am. Dec. 769.

So, where an advance bid on a master's sale was made, and a resale was ordered, it was held that the purchaser was entitled to have his original bid canceled, and the cash paid refunded, and his notes given up and canceled, and he should have taken an order to that effect; but where he allowed the money to remain in the hands of the commissioner, and it was lost by the death of the commissioner and insolvency of his estate, he must bear the loss and look to that estate for reimbursement. Head v. Moore, 96 Tenn. 358, 34 S. W. 518.

The exceptional cases where restitution was denied are those relating to probate sales, proceedings against nonresidents, and fraudulent sales, for which see infra.

c. Subrogation.

1. Generally.

The weight of authority is that a purchaser at a void judicial sale is entitled to be subrogated to the lien of the creditor where the sale is set aside. The doctrine of subrogation is also derived from the civil law. See Domat, Civil Law, pt. 1, book 3, § 6, art. 1785: "The purchaser of an estate, employing the price of his purchase for the payment of the creditors to whom the estate was mortgaged, is substituted to their right to the value of what he pays them. For, by paying them with the price of their pledge in order to secure it to himself, he preserves it to himself for the value of what he pays them, against other subsequent creditors, although they be prior to his purchase."

So, a sale of property of an insolvent corporation to a reorganized corporation under a decree in equity was held void because there was no service on any officer of the corporation. St. Louis & S. Coal & Min. Co. v. Sandoval Coal & Min. Co. 111 Ill. 32.

After this decision a bill was filed (116 Ill. 170, 5 N. E. 370), alleging that the new company had advanced money to pay off the debts of the old, and asking that the ejectment suits be enjoined, and that equitable claims of the new company be adjusted. It was held that the new company was entitled to be subrogated to the rights of creditors notwithstanding its deed was void.

Attention is here called to Milwaukee & M. R. Co. v. Soutter, 13 Wall. 517, 20 L. ed. 543, which was a trustee's sale, and therefore not within the scope of this note, and which was a similar case, except that the purchase by the new corporation was held fraudulent as to creditors, and it was denied subrogation which it claimed for having paid $450,000 on a prior mortgage.

In Bruschke v. Wright, 166 Ill. 183, 57 Am. St. Rep. 125, 46 N. E. 813, a foreclosure sale was set aside at the instance of heirs, and a resale was ordered. It was held that a purchaser at foreclosure sale and his assignee would be subrogated to the rights of the mortgagee.

tiff or the purchaser, has been liberally extended."

And in an action to try title, the purchaser of the land at sheriff's sale under a valid judgment which was a lien on the land was held entitled to be subrogated to the lien of the original judgment where the sale was ineffective for want of proper description. Jones v. Smith, 55 Tex. 383. In this case the purchaser was liable on his warranty to the defendant. The court said: "Under such circumstances, Smith had the right to be subrogated to the lien of the original judgment upon the land, for the amount he had paid in the discharge of the same. Nor were his rights materially affected by the fact that he did not get possession of the land under his purchase. If he or his vendee was in possession, the appellants could not disturb that possession until they had refunded the money paid by him in discharging the judgment; and, if not in possession, he would be entitled to be subrogated to the lien of that judgment."

And the purchaser was allowed the money and a lien on the land where the execution was irregular because issued on a judgment which had been destroyed by fire without substitution, and the property brought but a small proportion of its value, and the sale was set aside. Beckham v. Medlock, 19 Tex. Civ. App. 61, 46 S. W. 402.

So, where a judgment was reversed on appeal, and the debtor recovered the land from the purchaser's grantee, it was held that the latter was entitled to a lien upon the land for the amount paid to the sheriff, with interest. O'Brien v. Harrison, 59 Iowa, 686, 12 N. W. 256, 13 N. W. 764. In this case the plaintiff had tendered the defendant this sum. Iowa Code, § 3199, provided that property acquired by a purchaser in good faith under a judgment subsequently reversed shall not be affected by such reversal; but it was held that the purchaser, not having paid the full amount of his purchase money, was not a purchaser in good faith.

But subrogation was denied where suit was not brought by the proper party.

A receiver of a firm had a judgment against a member of the firm. A levy was made on land notwithstanding he had conveyed the same. The purchaser's heirs brought a suit to set aside the conveyance as fraudulent. The same was set aside, and also the sheriff's sale to the purchaser. It was held, on a prayer for subrogation, that the voluntary purchase discharged the creditor's judgment, and there could be no substitution. It was held, also, that the administrator could not be subrogated to the lien, but that the heirs might, on proper procedure, obtain relief. Richmond v. Marston, 15 Ind. 134.

In Muir v. Berkshire, 52 Ind. 149, the court said: "We are aware that there are some dicta in the case of Richmond v. Marston, 15 Ind. 134, which would seem to take a narrower view of the right of subrogation than we have expressed in this opinion; but that case differed in its premises from this; besides it was decided upon another ground. Subsequent decisions of this court, however, fully support, as we think, the principles governing us in this opinion."

See Boggs v. Fowler, 16 Cal. 559, 76 Am. Dec. 561; Abadie v. Lobero, 36 Cal. 390,-subdiv. V. The exceptional cases where subrogation was denied are those relating to probate sales, proceedings against nonresidents, and fraudulent sales, for which cases see infra.

2. Out of proceeds of resale.

In some cases the sale was set aside, and the purchaser was protected, by simply directing that out of the proceeds of the second sale his purchase money be returned to him. This was under the general principle that equity will afford relief, and will protect the purchaser. But it must have been upon the theory that the purchaser is subrogated to the lien of the creditor for his advances, although this equitable principle is only noticed in one of the cases explaining a prior decision in the same state.

A sale was void because made without notice to occupants as required by Iowa Rev. 1860, § 3318. providing that, if a defendant is in possession of part of land levied on, the officer having execution shall serve the defendant with written notice mentioning time and place of sale, and sales made without the notice may be set aside. It was held that a resale should be ordered, and, if an advance bid was made, the property should be resold, and the amount paid by the first purchaser refunded to him. Jensen v. Woodbury, 16 Iowa, 515.

In Fleming v. Maddox, 32 Iowa, 493, referring to the case or Jensen v. Woodbury, 16 Iowa, 515, it was said: "This order can be explained and justified only upon the theory that the purchasers had acquired an interest in the judgment, and been subrogated to the rights of the creditor. And this doctrine is just and reasonable, and to our minds entirely applicable to this case."

Applying the doctrine of subrogation, a purchaser was held entitled to have the credit on the judgment set aside to the extent of his bid. and a resale of the land for the purpose of indemnifying him, where an execution debtor after a sale paid off the judgment, and then had the sale set aside on the ground of irregularity. Fleming v. Maddox, 32 Iowa, 493. The court said: "It is said by the counsel that defendant had a right to pay off the judgment, and prevent a further sale of his property. This we concede. But he should have paid to the purchasers the amount of their bids, and not to the plaintiff, who already had received satisfaction."

And in a foreclosure judgment an interpleader was adjudged to have a prior lien. An order of sale was issued by him without notice to plaintiff. A new sale was ordered, and it was held that out of the proceeds of that sale there be paid to the prior purchaser the amount paid by him as purchase money of the land, and that the balance due the interveners be then satisfied, and the remainder be paid to plaintiff in the judgment below. Elam v. Donald, 58 Tex. 316.

A judicial sale was set aside where the master withdrew the land from sale and readver tised without order of the court or consent of the parties. It was held that, the purchase money having been appropriated to pay charges on the land, the purchaser should be protected, and that a second sale should not be had unless a greater bid was made, and, if so, he should be repaid what he had paid in, and his deed, bond, and mortgage should be canceled. Tompkins v. Tompkins, 39 S. C. 537, 18 S. E. 233. The court said: "The purchaser has paid into court $1.625 of his money, a large part of which has been appropriated to the purposes of the action under the decree of court. Now, if there is one thing over others in our system of jurisprudence