*>f ^* ■ / UNIVERSITY OF CALIFORNIA LOS ANGELES r SCHOOL OF LAW LIBRARY W *-^ -^ /4-f-: t \. b'^A^_«•1,k...^■ '\... A . ^., VOID EXECUTION, JUDICIAL AND PROBATE SALES, -AND THE LEGAL AND EQUITABLE EIGHTS OF PUECHASEES THEEEAT, -AND THE- CONSTITUTIONALITY OF SPECIAL LEGISLATION VALIDATING VOID SALES, AND AUTHORIZING INVOLUN- TARY SALES IN THE ABSENCE OF JUDICIAL PROCEEDINGS. SECOND EDITION. By a. C. freeman, Author of Treatises on '■'■Judgments,'" '■'Executions,''^ "Cotenancy and Partition,^'' Etc. ST. LOUIS, MO.: WILLIAM H. STEVENSON, LAW rOHLISHER AND POIJLISHER OF THE CENTRAL LAW JOURNAL. ISSG. Entered according to Act of Congress, in the year 1877, by A. C. FREEMAN, In the office of the Librarian of Congress at Washington. Entered according to Act of Congress, in the year 188G, by A. C. FREEMAN, In the office of the Librarian of Congress at Washington. St. Louis, Mo.: Printed by TJie Central Law Journal. TABLE OF CASES. [The references are to sections.] A. Abbott V. Coburn, 4 Abbott V. Curran, 20 Ackley v. Dygert, 12, 17 Adams v. Jeffries, 15 Adams v. Morrison, 34 Adams v. NoiTis, 4 Adams v. Palmer, 61 Adams v. Smith, 49 Alabama Conference v. Price, 11 Ala. L. I. & T. Co. V. Boykin, 60 A Idi-ich V. Wilcox, 34 Alexander v. Miller's Ex., 25 Alexander's Heirs v. Maverick, 8 Allen V. Kellam, 10 Allen V. Shepard, 20 Ameth v. Bailey, 11 Anderson v. Foulks, 48 Anderson v. Green, 33 Anderson v. Turner, 9 Andrews v. Avery, 4 Andrews v. Roberts, 1 Andiews v. Russell, 57 Andrews v. Scotton, 1 Angle V. Spear, 54 Armstrong v. McCoy, 47 Arnold V. Cord, 49 Arrowsmith v. Harmonlng, 20 Ashurst V. Ashurst, 32 Atkins V. Kinnan, 11, 20, 47 B. Babbitt v. Doe, 16 Babcock v. Cobb, 22 Bagley v. Ward, 24 Bailey v. Brown, 9 Bailey v. Robinson, 33 Bank v. Beatty, 29 Bank v. Dudley, 30 Bank v. Trapier, 31 Barbee v. Perkins, 20 Barelli v. Ganclie 53 Barker, ex parte, 2, 10 Barnes v. Kenton, 41 Barnes v. Morris, 46 Barrett v. ChurchlU, 48 Barrett v. Garney, 4 Barron v. Mayor of Baltimore, 63 Barron v. Mullin, Bartee v. Tomkins,! Bartlett v. Judd, Bartlett v. Sutherland, Barton v. Hunter, Bassett v. Lockwood, Beach V. Walker, Beal V. Harmon, Beard v. Rowan, Beauregard v. New Orleans, Beckett V. Selover, Beel V. Green, Bell's Appeal, Bennett, ex parte, Benson v. Cilley, Bentley v. Long, Bentz's Est., Bethel v. Bethel, Bigelow V. Bigelow, Bigelow V Booth, Bishop V. O'Conner, Bithson v. Budd, Blackman v. Bauman, Blair, ex parte, Blair v. Campton, Bland v. Bower, Bland V. Muncaster, Bledsoe v. Willingham, Blodgett V. Hitt, Blodgett V. Hubart, Bloom V. Burdick, Blood V. Hayman, Bobb V. Barnum, Boggs V. Hargrave, Boland's Estate, Bolivar v. Zeiglar, Bompart v. Lucas, Boon v. Bowers, Bootli V. Booth, Boren v. McGeehe, Boring v. Lemmon, Boro V. Harris, Bouldin V. Ewart, Howen V. Bond, Bowen V. Jones, Boyce v. Sinclair, Boyd v. Blankman, Boykin v. Cook, Braddee v. Brownfleld, Branham v. San Jose, Bray v. Marshall, 11. 48 48 55 9 40 48 60 11 9 15 4, 5, 20 27 9 2 8,15 52 13 44 4 24 51, 5-i 47 22 9 30 53 9, 28, 33 26 16, 28, 53 53 12, 20, 22 41 47 49 11 48 11 68 60 23 45 48 39 13,14 29 60 1, 20, 33 48 57 49 41 11 TABLE OF CASES CITED. Bree v. Bree, 12 18 Collars V. McLeod, 29 Brenliamv. Davidson, 66 Collier's Admr. v. Windham, 24 Brenham v. Story, 72 Collins V. Montgomery, 31 Brevard v. Jones, 25 Comstock V. Crawford, 15 Brevoort v. Grace, 72 Conklin v. Edgerton, 9 Briglit V. Boyd, 53 55 Conyers v. Meiyeles, 54 Briiiton v. Scevers, 61 Oonover v. Musgrove, 44 Brobst V. Brock, 52 Cook V. Travis, 38 Brock V. Frank, 4 Cook V. Tourabs, 49 Bronnerv. Greenlee, 43 Cookerly v. Duncan, 60 Brooks V Kooney, 28 47 Cooley V. Wilson, 21 ,2S Brown V. r.rown, 20 Coon V. Fi-y, 11 ,12 Brown v. Aiinfstead, 9 Cooper V. Homer, 41 Brown v. Bond, 20 Cooper V. Reynolds, 5 Brown v Butters, 27 Cooper V. Sundei-land, 22 Brown v. Cliiistie, 30 Copehart v. Downey, 48 Brown v.Giimor, 44 Coppinger v. Rice, 4 Brown v. Hobson, 9 Corbitt V. Clenny, 41 Brown v. Lane, 49 Core V. Strichler, 44 Brown v. Redwyne, 8 Cornwall's Estate, 11 Bronsliton v. Bradley, 4 Corwin v. Merritt, 11,16 ,19 Bryan v. Hander, 11 Corwin v. Shoup, 50 Buchanan v. Tracy, 47 Corbitt V. Clenny, 46 Bnllai'd v. Hinkley, 36 Coy V. Downie, 16 Bull, Matter of, 68 Grain v. Rothermel, 40 Buiice V. Bunce, 18 ,2> Crane V. Guthrie, 36 Burbauk v. Simmes, 9 Cravens v. Moore, 2 Bnrcb v. Hantz, 33 Cromwell v. Hall, 20 Burdett v. Silsbee, 4 Crosby v. Dowd, 20 Burns v. Hatnilton, 48 49 Crouch V. Evelcth, 29 Burns v. I>eabetter, 48 Crowell V. Meconkey, 50 Burton v. Lies, 49 Crusoe v. Butler, 9 Buiton V. Spiers, 28 ,60 Curley's Succession, 27 .28 Bybee v. Ashbjs 29 Currie v. Stewart, 22 Byers v. Fowler, 21 Curtis V. Norton, 43 Byrd v. Turpin, 48 Cutts V. Raskins, 4 c. D. Caldcr v. Bull, 56 62 Dachmont v. Vaughan, 41 Caldwell V. Blake, 41 Dagger v. Taylor, 42 Campbell v. Brown, 16 ,48 Dakin v. Demming, 3 Campbell v. Knights, 22 Dakin V. Hudson, 16 Campbell v. P. S. I. Works. 38 Dale V. Medcalf, » 59 CasHv V. Gi'egory, 21 Davenport v. Sovil, 54 Casliion v. Farria, 48 Davenport v. Young, 6'l Chandler v. Moulton, 33 Davidson v. Davidson, 33 ,53 Chase v. Ross, 10 Davidson v. Koehler, 66 Clark V. Sawyer, 47 Davie V. Mc Daniel, 8 Clark V. Thompson, 16 , i7 Davis V. Brandon, 46 Clark V. Van Surlay, 66 68 Davis V. Gaines, 20 , 53 Clintfraan v. Hophie, 24 Davis V. Helbig, 66 Carpenter v. Pennsylvania, 62 Davis V. Kline, 47 Cariienter v. Sherfy, 46 Davis v. Menasha, 67 Carroll v. Olmstead, 66 Davis V. State Bank, 60 Carter V. vvauKh, 20 Davison v. Johonnot, 66 6') Castleman v. Relfe, 43 Dawson v. Litsey, 34 Chambers v. Cochran, 49 Dean v. Morris, 48 Chanibei'sv. Jones, 17 .29 53 De Bardelaben v. Stoudenmire , 10 , IS Chandler V. Northrop, 58 Deford v. Meroer. 50 Chapman v. Brooklyn, 49 De Forrest v. Farley, 21 Chapman v. Harwood, 46 Oe La Montagnie v." Union Ins. Co., 9 Cha^e V. Ross, 2 10 Delaney's Estate, 9 Chesnut v. Shane, 62 Delaplaine v. Lawrence, .39 Clu'snut V. Shane's Lessee, 60 Dennis v. Winter, 44 City of Portland v. City of Bangor, 62 Denny v. Mattoon, 61 ,M Clark V. Thompson, 17 Dentzel v. Waldie, 60 Clarke V. Van Surlay, 66 68 De Riemer v. De Cantillon, 55 Cochran v. Van Surlay, 68 ,72 Dickerson v. Talbot, 43 Cockf'V V. Cole. 44 Dickey V. Beatty, 55 C«)flndsay, 48 Howard v. Moore, 46 Howard v. North, 28, 30, 49, 52 Howe V. MeGiveru, 35 Howell V. Tyler, 33 Hotchkiss V. Cutting, 44 Houx V. County of Bates, 55 Hoyt V. Sprague, 66 Hudgens v. Jackson, 28, 45 Hudt-in V. Hudgin, 49, 53 Hughes V. Watt, 28 Humphrey v. Beeson, 47 Hurley v. Bai-nard, 8 Hurst V. Sitord, 24 Hutchinson v. Cassidy, 32 Hutton V. Williams, 1 Ikelheimer v. Chapman, 11 Irwin V. Scribner, 4 Islay V. Stewart, 48 Ives V. Ashley, 33 J. Jackson v. Bowen, 52 Jackson v. Crawfords, 11, 12, 14 Jackson v. Robinson, 10, 11, 20 Jackson v. SummerviUe, 54 Jackson v. Todd, 9 Jackson v. Williams, 9 Jacob's Appeal, 44 Jaggers v. Griffin, 48 Jarboe v. Colvin, 21 Jarvis v. Russick, 29 Jayne v. Boisgerard, 53 Jefferson v. Curry, 30 Jelks v. Barrett, 55 Jennings v. Jennings, 48 Jennings v. Kee, 50 Jennings v. Moses, 4 Jochumsen v. Suttolk S. B., 4 Johns v. Rome, 55 Johnson v. Bemis, 30 Johnson v Caldwell, 49 Johnson v. Cooper, 50 Johnson v. Johnson, 18 Johnson v. Fritz, 50 Johnson v. Jones, 11 Johnson v. Robertson, 49 Jones V. Clark, 41 Jones V. Edwards, 8 Jones V. Henry, 49 Jones V. Holingsworth, 43 Jones V. K. B. Assn., 39 Jones V. Levi, 17 Jones V. Manly, 53 Jones V. Perry, 65 Jones V. Warnoch, 48 Jones V. Taylor, 47 Jones V. Mortimer, 53 Journeay v. Gibson, 60 Julian V. Beal, 49 K. Kablo v. Mitchell, 43 Kane V. McCovvn, 30 Kane v. Paul, 4 Karnes v. Harper, 23 Kciarney v. Taylor, 60 KeiHi^e v.Plntard, 50 K(!ndall v. Miller, 9 K«opter v. Force, 54 Keith V. Keith, 47 Kenuard v. Louisiana, 62 TABLE OF CASES CITED. V Kennedy v. Clayton, 31 Kennedy v. Gaines, 17 Kezar v. Elklns, 23 Kibby v. Cbitwood, 67, 69 Kidwell V. Biummagim, 9 King V. Gunnison, 48 King V. Kent's Heirs, 13 Kingsbury v. Wild, 47 Kingston Bank v. Eltinge, 49 Kipp V. Bullard, 35 Kittredge v. Folsom, 4 Knott V. Stearns, 41 Koehler v. Ball, 44 Kostenbader v. Spotts, 48 L. Lafferty v. Conn, 28 Lambertson v. Merchants' Bank, 39 Lamothe v. Lippott, 41 Lane v. Dorman, 69 Lane v. Nelson, 58, 60 Larco v. Casaneuava, 9 Larmeler v. McGinty, 50 Latimer v. II. R. Co., 4 Laughnian v. Thompson, 48 Laws V. Thompson, 49 Lee V. Gardner, 50 Leggett V. Hunter, 68, 72 Leland v. Wilson, 45 Lewis V. Button, 4 Lewis V. Owens, 54 Lewis V. Webb, 67 Lew V. Riley, 53 Lieby v, Ludlow, 51 Lincoln V. Alexander, 58 Lindsav v. Jaffray, 7 Litc-hfleld V. Cudworth, 33, 34 Little V. Sinnet, 28 Livingston v. Cochran, 33 Loan Association v. Topeka, 56 Loekhart v. John, 22 Lockwood V. Stradley, 9 Loekwood v. Sturtevant, 34, 47 Lofland v. Ewing, 29 Logsdon V. Spevey, 30 Loudon V. Robertson, 48 Long V. Burnett, 10 Long V. Wellar, 20, 48 Longworth v. Goforth, 50 Louisville V. University, 62 Low V. Purdy, 9 Ludlow V. Park, 35 Lynch v. Baxter, 1 M. Macy V. Raymond, 30. 46 Waddoxv. Sullivan, 28 Ma ban v. Reeve, 55 Mainav. Elliott, 41 Maple V. Kussart, 50 Maple V. Nelson, 27 Mare v. Bradford, 28 Marr v. Bootliby, 30 Marr v. Peay, 9 Maitin v. Bonsach, 47 Martin v. Wilbourne, 47 Martin v. Tarver, 48 Mason v. Ham, 30, 46 Mason v. Osgood, 1, 43 Mather v. Chapman, 60 Matheson v. Hearin, 15 Matter of Bull, 68 Matter of Trustees of N. Y. P. E. Public School, 68 Maurr v. Parrish, 13, 18 Maxwell v. Goetschins, 58 Mayers v. Carter, 30 Mayor v. Horn, 61 Mays V. Wherry, 39 McAnulty v. McClay, 10 McArtliurv. Carrie, 32 McBain V. McBain, 43 McBryde v. Wilkinson, 55 McCaskey v. Graff, 54 MeCauley v. Harvey, 1* McCown v. Foster, 20 McUade v. Burch, 20 McDaniel v. Correll, 68 McFellv, Matter of, ' 28 McGavbck v. Bell, 21 McGeo V. Wallis, 53 McGhee v. Ellis, 49 McGill V. Doe, 38 McGuire v. Kouns, 47 McKeever v. Bait, 11, 12, 22 McKinney v. Jones, 22 McLaughlin v. Daniel, 52 McLaughlin V. Janney, 30 McLood V.Johnson, 50 McManus v. Keith, 48 McNair V.Hunt, 2S McNeil V. First Cong. Church, 4, 10, 68 McPherson v. Cundiff, 15 Mcllae v. Danner, 44 Mebane v. Layton, 35 Mebberly v. Johnson, 22 Mech. S. & B. Assn. v. O'Conner, 48 Meluias V. Pflsler, 22 Menges v. Dentler, 60, 01 Menges v. Wertman, 60, 61 Merrill v. Harris, 20 Merritt v. Home, 50 Merrit v. Terry, 45 Michael V. McDermott, 32 Mickel V. Hicks, 15 Miles V. Wheeler, 33 Milford V. Beberidge, 21 Miller V. Babcock, 2 Miller v. Jones, 2, 10 Miller V. Kalb, 54 Miller V. Miller, 10 Millis V. Lombard, 21. 41 Minnesota Co. v. St. Paul Co., 1, H Minor v. Selectmen, 2S Mitchell V. Bliss, 47 Mitchell V. Freedley. 50 Mitchell V. Ireland, 30 Moflitt V. Moffltt, 11. 13 Mohan V. Smith, 35 Mohr V, Manierre, 12, 15 Mohr V. Porter, 15 Mohr V. Tulip, 12, 50, 53 Monaghan v. Small, 48 Monahan V. Vandyke, 19 Monaique v. Monarque, 48 Monell v. Dennison, 4 Money v. Turnipseed, 20 Moody V. Butler, 21 , 43 Montgomery v. Johnson, 15, 20 Moore v. Greene, 43 Moore V. Neil, 41 Moore v. Philbrick, 4 Moore V. Starks, 8,17 Moore V. Wingate, 47 Moreau v. Branham, 55 Morgan v. Wattles, 33 Morr(!ll V. Ingle, 31 Morris v. Ilogle, 7. 11, 18 Morrow v. Weed, 13,20,28 Morton v. Welborn, 49 VI TABLE OF CASES CITED. Moses V. McFarlane, Mott V. Ackerman, Woiiut V. Valle, Mountour v. Purdy, Muffltt V. Muffltt, Muir V. Craig, Mulford V. Beveridge, Mulford V. Stalzenback, Muncie Bank v. Miller, Munn V. Burges, Munsonv. Newson, Murphy v. Hill, Murphy V. Teter, Murraj' v. Hoboken L. & I. Co., Murrell v. Roberts, Muskingum Bank v. Carpenter, Musselman v. Eshelman, Myer v. McDougal, Myers v. Davis, N. Neal V. Patterson, Neligli V. Keene, Nelson v. Carrington, Nelson v. Kountree, Newcomb v. Smith, Newman v. Samuel, NichoU V. Nlcholl, Nowler v. Coet, Norris v. Clymer, Norton V. Pettibone, Nugent V. Gifford, o. Ogden V. Walters, Opinion of the Judges, Osgood V. Blaekmore, Osman \. Traphagen, Osterberg v. U. F. Co.. Orton V. Noonan, Ovei-field V. BuUett, Overton v. Johnson, Owens V. Hart, Owen V. Slater, P. Paine v. Hoskins, Parker v. Nichols, Parmer v. Oakley, Pattee v. Thomas, Patterson v. Carneal, Patterson v. Lemon, Paty V. Smith, Payne v. Payne, Pearce v. Patton, Pearson v. Jamison, Peebles v. Watts' Admr., Peinberton v. McRae, Pennman v. Cole, Pennington v. Clifton, People V. Piatt, Perkins v. Dibble, Perkins v. Fairfield, Perkins v. Gridley, Perkins v. Winter, Perry v. Clarkson, Peteis V. Caton, Petiie V. Clark, Phelps V. Buck, Phillips V. Coffee, Phillips V. Dana, Piatt's Heirs v. McCuUougli's Piko V. Wassail, 49 9 12 28 28 49 17 20,41 60 33 4 31 33 62 23 41 33 20,41 20 32 44 9 61,62 n 60,61 22 4,51 66 60 9 47 65 34 39, 44, 46 48 69 9 12 35 48 20 22 22 12 34 21,41 68 9 60 29 9 37 24 49 62 47 22 42 15 30 30 9 10 47 30 Heirs, 46 44 Pincknev v. Smith, Piper V. Elwood, Potter V. Smith, Powers V. Bergen, Prater v. McDonough, Pratt V. Houghtaliug, Price V. Boyd, Price V. Johnson, Price V. Winter, Pryor v. Downey, Puckett V. McDonald, Pure V. Durall, Pursley v. Hays, K. 15 49 33 72 2S 20 49 4 17,21 10, 11, 58. 62 16 29 50 Ragland v. Green, 53 Randolph v. Bayue, • 5 Raborg v. Hammond, 4 Rawlings v. Bailey, 43 Rea v. McEachron, 43 Rector V. Hartt, 39 Reed V. Austin, 23 Remickv. Butterfleld, 33 Requa v. Holmes, 50 Reynolds v. Schmidt, 1- Reynolds v. Wilson, 2S Rheel v. Hicks, 49 Rice V. Parkman, 66 iiichards v. Rote, 58 Richardson v. Vicker, 48 Richmond V. IVIarston, 49,51 Rlcketts V. Ungaugst, 32 Riddle v. Hill, 48 Riddle V. Roll, 3:5 Riddle V. Turner, 24 Rigney v. Coles, 8 Rikeman v. Kolm, 24 Riley v. McCord, \ 4 Ritter v. Scammell, 41 Roberts V. Casey, 43 Robb V. Irwin, 15 Robbins V. Bates, 41 Robertson v. Bradford, 53 Robertson V. Johnson, 20,43 Robinson v. Martel, 9 Roderigasv. East River S. I., 2,4 Rogers V. Abbott, 55 Rogers V. Cawood, 30 Rogers V. Smith. 48 Rogers V. Wilson, 15 Rose's Estate, U Rose V. Newman, 29 Roseman v. Miller, 25 Root V. McFerrin, 8 Ross V. Luther, 25 Rozier v. Fagan, 69 Ruckerv. Dyer, 22 Ruckle V. Barbour, 46 Rule V. Broach, 16 Rummels v. Kaylor, 54 Kuuiwell V. St. A. Bank, 11, 12 Russell V. Rumsey, HO Ryden v. Jones, 33 Ryder v. Flanders, H Sackett v. Twining. 1 Salmond v. Price, 49, 51 Sands V. Lynham, 53 Sandford v. Granger, H Sargent v. Sturm, 49 Satcher v. Satchcr's Adra'r, 15 Satterlee v. Mathewsou, 62 Schaefer v. Causey, 63 TABLE OF CASES CITED. VII Savage v. Benliam, Schneider v. McFmlaud, Schnell V. Chic!if,'o, Scthindol v. Kecdy, Sohwinger v. Hickok, Scott V. Bentel, Scott V. Dunn, Scott v.Fieeland, Scott V. Gordon's Ex.. Sebastian v. Johnson, Selsbv V. Redlan, Seward V. DIdeen, Sexton V. Nevers, Shaefer v Gates, Shiu-key V Bankston, Shehan's Heirs v. Barnett's, Sheldon V. Newton, Sheldon v. Wright, Shelton V. Hamilton, Sheppard v. Rhea, Sherman v. Buick, Sherwood v. Fleming, Shoenberger v. School Directors, Short V. Porter, Shouk V. Brown, Shriver v. Lynn, Sibley V. Waffle, Sigonrney v. Sibley, Silian v. Coffee, Sinclair v. Jackson, Sittig V. Morgan, Sitzinan v. Pacquette, Smith V. Arnold, Smith V. Calligau, Smith V. Drake, Smith a v. Flournoy, Smith V. Finch, Smith V. Meldren, Smith V. Mundy, Smith V. Kandall, Smith V. Rice, Smith V. Schotts, Smith V. Warden, Smitli V. West, Snecd V. Hooper, Snevely v. Lowe, Snider v. Coleman, Snowhill V. Snowhill, Snvder v. Ives, Sohier v. RI. G. Hospital, 57 Soloman v. Peters, Southard v. Perry, Sharling v. Todd, Spaulding v. Baldwin, Specks V. Riggins, Speck v. Wohlien, Spellman v. Dow, Spragg V. Shriver, Spragins v. Taylor, Sprigg's Estate, Spring V. Kane, Stampley v. King, Stanlt^y v. Noble, Staples V. Staples, Stapp v. Toler, State V. Doherty, State V. Mewark, State V. Squires, State V. Stanley, State V. Towl, State V. Founts, State Bank v. Abbott, Steele's Ex. v. Moxley, Stevens v. Enders, Stevens V. llauser, S evenson'^ Heirs v. McReary, Stewart v. Griffith, 20 16,17 18 1 49 48 49, 53 33 33 29 60 8 49 2 53 68,69 Ifj 13,47 24 30 72 61 72 48, 53 60 44 16 6 23 68 50 10 1 60 33 11 47 39 30 28 2 27 50 43 9 15 53 66 55 , 66, 71 28 50 32 8 47 42 10 50 20 20 15,21 5,17 4 41 33 58 62 58, 62 50 43 29 54 9 58 38 8 6C Steward v. Pettigi-ew, Steward v. Stocker, Stewart v. Stokes, Stillwell v. Swarthout, Stockton V. Downey, Stoltz's Succession, Stow V. Kimball, Strain v. Murphy, Strong v. Beach, Stroble v. Smith, Strouse V. Drennan, Stuart V. Allen, Sumner v. Parker, Sutton V. Sutton, Suydam v. Williamson, Sw'an V. Wheeler, Swiggart v. Harber, Syndor v. Roberts, Sypert v. McCowen, Tanner v. Stine, Taylor v. Connor, Taylor v. Place, Taylor v. Galloway, Taylor v. Taylor, Taylor v. Walker, Tenney v. Poor, Temple v. Cain Terwilliger v. Brown, Tevis V. Pitcher, Thatcher v. Devoe The Monte Allegro, Thomas v. Le Baron, Thomas v. Pullis, Thompson v. Boardman, Thompson v. Davidson, Thompson v. Morgan, Thompson v. Munger, Thorn v. Ingram, Thornton v. McGrath, Thornton v. Mulquinne, Threlkelds v. Campbell, Thretf v. Fritz, Thur;vr iv'tjr. ;/ :')^*^) ^9 - '^ V •- ■ 6 lb., sees. 123, 127. VOID JUDICIAL SALES. § 8 great caro must be taken to sec that every act essential to jurisdiction has been performed,^ and performed in a proper manner.- No presumptions are indulged in favor of the jurisdiction of a court not of record. Its jurisdic- tion must always be shown affirmatively.^ According; to many of the authorities, it must be shown from the papers, files and proceedings in the case.* On the other hand, the fact that these show jurisdiction is not conclusive. They are not records importing absolute verity. They may be contradicted.^ The courts having the administration of the estates of the deceased or of incompetent persons, are, in some States, of general, and in others of limited or special jurisdiction. Probably, in the majority of the States, they are of the latter class. Where this is the case, he who claims title under these courts must show affirmatively (and generally from their records and files) the taking of every step essential to jurisdiction.''' Nothing will be presumed in his favor. But in several of the States these courts arc either courts of record, or are, by statute, placed on the same footing as courts of record, with reference to juris- diction, and are presumed to have acquired jurisdiction over all parties in interest, except where their records and proceedings indicate the contrary.^ The presumption in favor of jurisdiction may go further than merely rendering unnecessary the proof of the service * lb., sec. 517. 2Ib., sec. 521. 3 lb., sees., 517, 527. * lb., see. 518. 5 lb., sec. 517. 6 Gwin V. McCarroll, 1 S. & M. 351 ; Rigney v. Coles, G Bosw. 479; Fell V. Young, 63 111. 106; Taylor v. Walker, 1 Ilcisk. 734; Gibbs v. Shaw, 17 Wis. 201 ; Root v. McFerrin, 37 Miss. 17. ' Doe V. Boweu, 8 Intl. 197; s. C, 05 Am. Dec. 75S; Gerrard v. John- sou, 12 Ind. 636; Doe v. Harvey, 3 Ind. 104: Spauldiug v. Baldwin, 31 Ind. 376; Valle v. Fleming, 19 Mo. 454; s. C, 61 Am. Dec. 566; Tucker V. Harris, 13 Ga. 1 ; s. c, 58 Am. Dec. 488; Brown v. Rcdwyn, 16 Ga. 76; Wood v. Crawford, IS Ga. 526; Davie v. McDauiel,47 Ga. 200; Jones V. Edwards, 78 Ky. 6. § 9 VOID JUDICIAL SALES. of notice or of process. An inspection of the papers re- maining among the files of the court may not be rewarded by the discovery of any petition for the sale, or may dis- close the fact that some other essential writing is not to be found. Where the court is deemed to be one of general jurisdiction, the presumption is indulged that the missing document originally existed, and was suflicient in form, and \that it has been lost from the files. ^ If a long period has elapsed between the date of a judicial or execution sale and the time when its validity is questioned, the presumption that the court and its ofiicers did their duty is usually in- dulged, and the sale is upheld notwithstanding there is no direct or positive evidence of the existence of certain acts prescribed by law.^ ORDERS OF SALE IN PROBATE, AND HOW AUTHORITY TO MAKE MUST BE OBTAINED. § 9. Probate Sales without License of the Court; when Valid and when Void. — In execution and chancery sales, jurisdictional inquiries need to be prosecuted with much less care and frequency than in the consideration of sales made by executors, administrators or guardians. In a suit in equity, or an action at law, if the complaint discloses a cause which the court was competent to entertain and de- cide, and the record shows that jurisdiction was obtained over the persons of the defendants, it is generally safe to forego all further jurisdictional inquiries. But in probate proceedings, jurisdictional inquiries are material at almost every stage, and to be inattentive to them is to be guilty of rash imprudence. The application for letters testa- » Doolittle V. Holton, 28 Vt. 819: s. c, 67 Am. Dec. 745; Hurley v. Barnard, 48 Tex. 83; Alexander's Heirs v. Maverick, 18 Tex. 179; s. c, 67 Am. Dec. G93. 2 Seward v. Dideen, 16 Neb. 58; s. c, 20 N. W. Rep. 12; Whitman v. Fisher, 74 111. 147; Stevenson's Heirs v. McReary, 12 S. «fcM. 9; s. c, 51 Am. Dec. 102. VOID JUDICIAL SALES. § 9 mcntary, or of administration, the citation to the parties in interest, the hearing of the proofs and the order made thereon, correspond substantially to the complaint, the issue and service of process, and the trial and judgment at law. But here the case at law ends, while the case in probate is but scarcely commenced. What makes the probate pro- ceeding still more perilous is, that a clear case of jurisdic- tion at this stage is not sufficient to support subsequent pro- ccediniTs tendinjr to divest the title of the heirs. At each subsequent stage, where the interest of the heir is sought to be affected, petitions and citations are usually exacted ; and, in most courts, are treated as being jurisdictional in their nature. In some circumstances an executor, admin- istrator, or guardian, may sell property without obtaining leave from the court. Where the statute has not adopted a different rule, " the whole personal estate of the testator or intestate rests in his executor or administrator;" ^ and *'an executor or an administrator has an absolute power of disposal over the whole personal effects of the testator or intestate, and they cannot be followed by creditors, much less by legatees, either general or special, into the hands of an alienee. The principle is, that the executor or adminis- trator, in many instances, must sell in order to perform, his duty in paying debts, etc., and no one would deal with him if liable afterwards to be called to an account." ^ Where the common law rules upon the subject still prevail, a guar- dian, though not vested with any estate in the personal 1 Lomax ou Executors, (2d ed.) 3G7; Goodwin v. Jones, 3 Mass. 518; S. e., 3 Am. Dec. 173; Hayes v. Jackson, 6 Mass. ir)2; Sneed v. Hooper, Cooke, 200; s. c, 5 Am. Dec. 691; Petrie v. Clark, 11 S. & R. 377; S. C, 14 Am. Dec. 636, and note. 2 Lomax on Executors, (2d ed.) 560; Overfield v. Bullitt, 1 Mo. 749; Williamson v. Branch Bank, 7 Ala. 906; Bland v. Muncaster, 24 Miss. 62; Nugent V. Gifford, 1 Atk. 463. An administrator may sell, without an order of court, a term of 999 years, for that is personalty (Petition of Gay, 5 Mass. 410) ; but not the estate of a mortgagee, for that is realty. Ex parte Blair, 13 Met. 126. (2) § 9 VOID JUDICIAL SALES. property of his ward, has an ample power of disposition over it.' * 'Though it be not in the ordinary course of the guardian's administration to sell the personal property of his ward, yet he has the legal right to do it, for it is entirely under his control and management, and he is not obliged to apply to court for direction in every particular case. The question as to the due exercise of the power arises between the guardian and his ward ; and I apprehend that no doubt can be entertained as to the competency of the guardian's power over the disposition of the personal estate, including the choses in action, as between him and a Sona/cZe purchaser." 1 So an executor might, at com- mon law, and may, under the statutes of most of our States, sell real estate devised to him by the testator, or over which the will gives him a power of sale.^ The power of a testator to authorize his executor to sell his real or personal estate without applying to court for permission, is generally conceded, though in some of the States such sales must be reported to and approved by the court.^ The nomination of certain persons as executors, and investing them with power to sell the testator's real estate at their discretion, and without any license from the court, indi- cates that the testator has unusual confidence in the fidelity and sagacity of the persons so nominated and empowered. This unusual and somewhat irresponsible authority may, in the judgment of the testator, be safely and even advan- tageously conferred on the executors named in the will, but 1 Field V. Schieffelin, 7 Johns. Ch. 153; s. C, 11 Am. Dec. 441 ; Tuttle V. Heavy, 69 Barb. 334; Tyler on Infancy and Coveture, 261-2; Thomp- son V. Boardmau, 1 Vt. 3G7; s. c, 18 Am. Dec. 684; Truss v. Old, 6 Kand. 556; S. C, IS Am. Dec. 748. 2 1 Lomax on Executors, (2d ed.) 384, 402, 560, and authorities in the next citation. SDelaney's Estate, 49 Cal. 77; Jackson v. Williams, 50 Ga. 553; Dur- ham's Estate, 49 Cal. 491; Crusoe v. Butler, 36 Miss. 170; Bartlett v. Sutherland, 24 Miss. 395; Going v. Emery, 16 Pick. 107; s. C, 26 Am. Dec. 645; Payne v. Payne, 18 Cal. 291; Larco v. Casaneuava, 30 Cal. 567; Cal. Code C. P., sec. 1561. VOID JUDICIAL SALES. § 9 it is hardly probable that he would wish to sec any other persons invested with it. Hence, where persons named as executors and invested with powers of sale have declined, or been unable to act, it has been held that the special con- fidence rej)osed in them by the will could not be vested in any other person, and that the administrator with the will annexed had no power to make sales, except by permission of the court. 1 That, in some cases, a power of sale, vested by the will in an executor, does not, in the event of his death, resignation or failure to qualify, vest in the admin- istrator with the will annexed is established by a very decided preponderance of the authorities, and is, perhaps, not necessarily inconsistent with any of the cases. If the executor is merely invested with a discretion to sell if he thinks best so to do, this discretionary power cannot be ex- ercised by an administrator with the will annexed.^ If, on the other hand, executors be directed to sell, so that it v/ould be impossible to accomplish the designs of their test- ator otherwise than by a sale, it is quite clear that he did not choose them for the purpose of having the benefit of their judgment in determining whether or not there should be any sale; and there seems to be no reason why his direction to sell may not be executed by part of his execu- cutors, if some of them fail to qualify, or, after qualifying, from any cause become incompetent to act,^ or by an administrator with the will annexed, in case all the execu- tors should resign or become disqualified or unable to 1 Tippett V. Mize, 30 Tex. 361 ; Brown v. Hobson, 3 A. K. Marsh, 380; S. C, 13 Am. Dec. 187; Lockwood v. Stnidley, 1 Del. Ch. 298; s. c, 12 Am. Dec. 97; Couklin v. Edgerton, 21 AVeud. 430; Dunning v. Ocean Nat'l Bank, 61 N. Y. 497; s. c, 19 Am. Rep. 293; Cooke v. Piatt, 98 N. Y. 35. 2 See authorities in preceding citation. ^Taylor V. Galloway, 1 Oh. 232; s. C, 13 Am. Dec. 605; Zebach v. Smith, 3 Bin. 69; s. C, 5 Am. Dec. 352; Marr v. Peay, 2 Murph. 84; S. C, 5 Am. Dec. 521; Nelson v. Carriugton, 4 Muuf. 332; s. c, 6 Am. Dec. 519. § 10 VOID JUDICIAL SALES. act.i Except where authorized to do so by a will, or by some statute, neither an administrator, an executor, nor a guard- ian can sell real estate without a license or order of sale from the court. A sale made without such license or order of court is not a mere error or irregularity which must be objected to by some proceeding in the court where the license ought to have been sought and granted; and, which, if not so objected to, is waived or ratified. It is a pro- ceeding without any legal support. A conveyance made in pursuance of it has no force whatever. It may be shown to be void when collaterally attacked. In fact, no attack, collateral or otherwise, need be made.^ The claimant under the sale could not show a prima facie case. In many of the States the power of guardians, executors and adminis- trators over personal property does not extend to its trans- fer without leave of the court. An attempted transfer, made without such leave is, in such States, void.^ § 10. Petition for Order of Sale must be by a Person Competent to Present it. — We now pass to the most numerous class of probate sales — those which must be sanc- tioned by a pre-existing order of court. This order must, in turn, be supported by certain pre-existing facts. In 1 Peebles v. Watts' Admr., 9 Dana, 103; Kidwell v. Brummagim, 32 Cal. 438; Steele's Ex. v. Moxley,- 9 Daua, 139; Galley v. Prather, 7 Bush. 1(57; Gaiiies v. Fenter, 82 Mo. 497; Bailey v. Brown, 9 R. I. 79; Brown v. Armistead, 6 Rand. 594; Evans v. Chew, 71 Pa. St. 47; Mott V. Ackerman, 92 N. Y. 539. 2 Tippett V. Mizc, 30 Tex. 361 ; Beard v. Rowan, 1 McLean, 135; Rob- inson V. Martel, 11 Tex. 149; Low v. Purdy, 2 Lans. 422; Anderson v. Turner, 3 A. K. Marsh. 131; French v. Currier, 47 N. H. 88; Hite v. Taylor, 3 A. K. Marsh. 353; Goforth v. Longworth, 4 Oh. 129; s. C, 19 Am. Dec. 588; Jackson v. Todd, 1 Dutch. 121 ; Gelstrop v. Moore, 26 Miss. 206; s. c, 59 Am. Dec. 254; Bell's Appeal, GO Pa. St. 498; Evans V. Snyder, 64 Mo. 516. 3 Kendall v. Miller, 9 Cal. 591; De La Montagnie v. Union Ins. Co., 42 Cal. 291; Wells v. Challin, GO Ga. G77. Where there is a valid order of sale, the sale of any parcel of land, in addition to the lands described in such order, is without any authority of law, and is, therefore, abso- lutely void. Biirbank v. Semmes, 99 U. S. 138. VOID judicial" sales. § 10 fact, the order of sale bears more resemblance to a judg- ment obtained in a new action, than to an order made in a pre-existing proceeding in which jurisdiction has already been acquired. To obtain an order of sale, a petition or complaint must be filed, a citation or notice must be issued and served, and a complete adversary yjroceeding conducted. Any jurisdictional defects in this proceeding are as fatal as if connccte(^ with the original grant of administration. And, what is worse, defects, which, in actions at law, would be treated as mere errors, are, in probate proceedings, counted as incurable jurisdictional infirmities. If a com- plaint in an action at law, or in a suit in equity, does not state facts sufficient to entitle the complainant to relief, its deficiency must be pointed out, or a judgment or decree is likely to be entered, which, though revcrsable on appeal, is valid until so reversed. If the complaint were filed by some one having no capacity to maintain the suit or action, that incapacity would be called to the attention of the court in some manner; or, if that were not done, a judgment would probably be entered in favor of plaintiff, and this judgment would not be void. But the presentation of a petition in probate by a person authorized to so petition, is a jurisdictional fact. If it be presented by some one not qualified to present it, there is no jurisdiction — no power to hear and determine it. If the court erroneously grants the prayer of the petition, there need be no appeal — the order is void and cannot support a sale.^ In the case of two or more acting executors or administrators, a petition for an order of sale, preferred by any less than the whole, is irregular, but probably is not so worthless that the court can base no valid action upon it.^ If the petition is by a 1 Miller V. Miller, 10 Tex. 319; Washington v. McCaughan, 34 Miss. 304. 2 Fitch V. Witbeck, 2 Barb. Ch. IGl; Gregory v. McPherson, 13 Cal. 578; Downing v. Kugar, 21 Wend. 178; s. c, 34 Am. Dec. 223. See, as sustaining petitions by one ailfninistrator onl}% Jackson v. Robinson, 4 Wend. 437; De Bardelaben v. ytoudenniire, 48 Ala. G43. § 11 VOID JUDICIAL SALES. person acting as administrator, but who has never qualified as such/ or is a special administrator not authorized by law to present the petition or make the sale,^ or it appears from the whole record of the probate proceedings that his appointment was illegal, then the license and the sale based thereon are both void.^ The authority of a guardian or administrator, is confined to the State by whose courts he was appointed. Hence, he cannot be authorized to sell property situate in another State.* A sale made by a foreign guardian, or by a parent in his capacity of natural guardian,^ or by one who falsely represents himself to be a guardian,'^ or by one who has ceased to be guardian,^ is void. If the statute requires the application for a guardian's sale to be filed in the county in which the ward resides, or in case he resides out of the State, then in the county in which the land sought to be sold lies, the filing in the proper county has been held to be jurisdictional, and, therefore, a prerequisite to a valid order of sale.^ § 11. There must he a Sufficient Petition for liicense to Sell — ^Wliat Petitions are Insufficient. — As, in an action at law, the declaration should aver the facts entitling the plaintiff to judgment, so in a petition in probate, for authority to sell property, the matters necessary to justify the sale must be set forth. In truth, this necessity seems to be more imperative in the case of the petition than in that of the declaration. The judgment of a court of law 1 Pryor v. Downey, 50 Cal. 389; s. c, 19 Am. Kep. 650. 2 Long V. Burnett, 13 la. 28. 3 Frederick v. Pacquette, 19 Wis. 541 ; Sitzman v. Pacquette, 13 Wig. 291 ; Chase v. Ross, 30 Wis. 2G7 ; Sumner v. Parker, 7 Mass. 79 ; Withers V. Patterson, 27 Tex. 501 ; Ex parte Barker, 2 Leigh. 719; Miller v. Jones 2G Ala. 247 ; Allen v. Kellam, 09 Ala. 442. See cmte, sec. 2. '•McAnulty v. McClay, 10 Neb. 41S; s. C, 19 N. W. Rep. 200. 6 McNeil V. F. C. S., 4 W. C. Rep. 421. « Grier's Appeal, 101 Pa. St. 412. ' Phelps V. Buck, 40 Ark. 219. * Spellman v. Dow, 79 111. GO. VOID JUDICIAL SALES. §11 can rarely, if ever, be treated as void, because pronounced upon an insufficient complaint. An order in probate must be supported by a petition sufficient in substance to show a legal cause for the order. A license to sell, granted without any petition therefor, is void.i p^t a mere petition is not enouo-h. The statutes of each State designate the contin- gencies in which the real estate of a deceased or incompe- tent person may be ordered to be sold. The probate courts have no power to license a sale in the absence of these con- tingencies. The statute prescribes the limit of the judicial authority. Action beyond this limit is not irregular or erroneous merely — -it is non-judicial. If the causes of sale designated by statute are too few, relief must be sought from the legislature. An order of sale made to accomplish a purpose not sanctioned by statute, or based upon a neces- sity not recognized by statute, is, in legal effect, coram non judice. It cannot justify a sale made in pursuance of its directions. 2 The theory of the law is, that the probate courts have no general authority to dispose of the estate in process of administration; that their power of disposition is special and limited, and that he who relies upon the power must disclose a state of facts sufficient to call it into being. It is also essential that the petition state a sufficient cause of action. The order of the court is based upon the petition, and cannot draw its support from beyond the peti- 1 Alabama Conference v. Price, 42 Ala. 39; Wyatt's Admr. v. Rambo, 29 Ala. 510; s. c, 68 Am. Dec. 89; Teverbaugb v. Hawkins, 82 Mo. ISO; Ethell V. Nichols,! Idaho, (n. S.) 741 ; Finch v. Edmoudson, 9 Tex. 504. But in Withers v. Patterson, 27 Tex. 499, and in Alexander v. Maverick, 18 Tex. 179, s. c, G7 Am. Dee. 695, it was intimated that the absence of a petition might not be fatal, and so decided in Rumrill v. St. A. Bank, 28 Minn. 202. 2 Bompart v. Lucas, 21 Mo. 598; Farrar v. Dean, 24 Mo. 16; Newcomb V. Smith, 5 Oh. 448: Withers v. Patterson, 27 Tex. 499; Strouse v. Dren- nan, 41 Mo. 298; Beal v. Harmon, 38 Mo. 435; Il Mulford V. Beveridge, 78 III. 455. § 18 VOID JUDICIAL SALES. process on an infant heir is required. The court must ap- point a guardian ad litem. But if no guardian ad litem is appointed, and the general guardian is served with process and appears and represents the minor, the proceedings are not void.i In Mississippi, if the guardian of a minor petitions for the sale of the lands of his ward, no notice need be given the latter. A summons must issue to the co-heirs, and also to three of the nearest relatives of the minor livino-in the State. The omission to summon these relatives is fatal to the subsequent proceedings.^ § 18. The Notice Must be Given in the Manner Pre- scribed by Statute, or it is Inoperative. ^ — If it attempts a description of the land sought to be sold, the description must be correct. A license to sell one tract of land, founded on a notice, designating a different tract is void.* If a statute direct notice to be given by personal service, unless publication thereof is ordered by the court, a publication is, in the absence of such order, inoperative. ^ If a copy of the petition and account are required to be served, the service of a summons in their stead is unauthorized and, therefore, void.*^ If a publication is directed to be made in a specified newspaper for four weeks, it cannot be made in that paper for three weeks, and in another paper the remain- ing week.'^ If the return day named in the order to show cause, though fixed by the court, is not a day on which it can by law be made returnable,^ or is not sufficiently dis- tant to permit the giving of the notice for the full time 1 Price V. Winter, 15 Fla. 6G. 3 Stampley v. King, 51 Miss. 728. 3 Herdman v. Short, 18 111. 59; Gibson v. Roll, 27 111. IDO; Morris v. Hogle, 37 111. 150; Schnell v. Chicago, 38 111. 383; Bree v. Bree, 51 111. 3G7. *Frazicr v. Steenrod, 7 la. 339; s. c, 71 Am. Dec. 447. Contra Maurr v. Tarrish, 26 Oh. St. G36. 5 Halleck v. Moss, 17 Cal. 339. 6 Johnson v. Johnson, 30 111. 223. 7 Townsend v. Tallant, 33 Cal. 45. 8 Haws V. Clark, 37 la. 355. VOID JUDICIAL SALES. §11) prescribed by law, the subsequent proceedings based on such order to show cause are void.^ Ordinarily, there is a wide distinction between the effect of process defectively served and process not served at all; and this distinction, to some extent at least, applies to proceedings in probate. Hence, it has been held that, under a statute requiring the notice of application for an order of sale to be personally served on a minor, a return showing service by reading the notice to the minor and leaving a copy with his father, is sufficient to maintain the jurisdiction of the court over such minor, because the case " is not one of no notice, but of defective service of notice." ^ § 19. The Notice Must be Given for the Time Pre- scribed. — The publication of a notice for a shorter time than that sanctioned by law is void, and can impart no validity to a sale or other subsequent proceeding resting upon it.^ This is true, although the time is shortened by an order of court in a case where the statute does not give the court that power.* If a statute requires the notice to be published tor three successive weeks, the first publica- tion to be six weeks before the presentation of the petition, and the notice, as published, designates a day for the presen- tation less than six weeks from the date of the first publi- cation, the notice is void, and cannot be made valid by presenting the petition at a later day than that specified in the notice.^ No notice need be given to persons in adverse possession, unless the statute directs it.^ Giving notice to a person acting in one capacity seems not to affect him when claiming in another capacity. Hence, a consent ejiven . » Stilwell v. Swartbout, SI N. Y. 109. 2 Bunce v. Bunce, 59 la. 532. 3Towusendv. Tallant, 33 Cal. 45; Corwin v. Merritt, 3 Barb. 341; Monaban v. Vandyke, 27 111. 155 ; Havens v. Sberman 42 Barb. G3G. Con- tra, by statute, Woods v. Monroe, 17 Micb. 245. * Havens v. Sberman, 42 Barb. G3G. 8 Gibson V. Roll, 30 111. 178. « Yeomans v. Brown, 8 Met. 51. § 20 VOID JUDICIAL SALES. by a woman as guardian of minors was held not to preju- dice her claim as widow of the decedent.^ § 20 The Order of Sale and Its Effect as an Adju- dication. — If, upon hearing of the petition, the court is satisfied that a proper case exists, it will enter an order or license for the sale of the land. If the court had jurisdic- tion, this order, until vacated or reversed, is binding upon all parties in interest. The purchaser under it is in no danger of losing his title by proof being made that the order was erroneously given. It cannot be collaterally attacked for error, fraud or irregularity, if the court had jurisdiction. 2 When jurisdiction is once obtained over a proceeding, the decision of the court is always conclusive on the parties which it keeps within the limits of its juris- diction, unless reversed upon appeal, or by some other pro- ceeding sanctioned by law for the purpose of correcting errors of proceeding or decision. This rule applies to courts of inferior, limited or special jurisdiction, as well as to those of the highest rank and most comprehensive authority. When a court grants an order of sale, and in pursuance of such order the prop'^rty thereby authorized to be sold is sold, the purchaser, to maintain his title, is not required to re-establish the facts which the court must have found to be true before it entered such order, nor yet to defend the legal conclusions which the court drew from such facts. If any errors were committed, as in the admis- sion or rejection of evidence, or in making findings of 1 Helms V. Love, 41 Ind. 210. 2 Freeman on Judgmeuts, sec. 319a; Stow v. Kimball, 28 El. 93; Beckett v. Selover, 7 Cal. 215; s. c, 68 Am. Dec. 237; Farriiigton v. King, 1 Bradf. 182; Spragins v. Taylor, 48 Ala. 520; Jackson v. Robin- son, 4 Wend. 437; Boyd v.Blaukman, 29 Cal. 19; Myer v. McDougal, 47 111. 278; Carter v. Waugh, 42 Ala. 452; Morrow v. Weed, 4 la. 77; s. C, 66 Am. Dec. 122; Atkins v. Kinnan, 20 Wend. 241; s. C, 32 Am. Dec. 534: Mulford v. Stalzenback, 46 111. 303; Savage v. Benham,17 Ala. 119; Sprigg's Estate, 20 Cal. 121 ; Giddings v. Steele, 28 Tex. 750; Gurney's Succession, 14 La. An. 622; Hatcher v. Clifton, 33 Ala. 301 ; Walker v. Morris, 14 Ga. 323 ; Barbee v. Perkins, 23 La. An. 331 ; Gordon v. Gor- don, 55 N. H. 399. VOID JUDICIAL SALES. § 20 fact, express or implied, not warrauted by the evidence, or in reachinor conclusions not warranted by the facts found, the remedy of any party prejudiced thereby was by motion for new trial, or by some other revisory or appellate pro- ceeding. Failing to resort to this remedy, the order of sale must be respected, and cannot be destroyed by any collat- eral assault.^ Hence, the sale cannot be nullified by proof that there was no necessity therefor, nor by any other proof which involves a re-examination of the issues necessarily involved in the order of sale.^ There are some cases which appear to permit a re-examination of the legal conclusions drawn by the court in ordering the sale. Thus, sales were held void in one instance, because ordered to raise funds to pay debts barred by the statute of limitation,^ and in an- other because the order did not show any necessity for the sale.* If these and kindred cases can be maintained upon principle, it must be on the ground that the petitions and orders were so deficient in essential elements that they did not disclose any case calling for judicialaction, and, there- fore, left the court without jurisdiction, according to the decisions cited in section eleven. The form of the order is different in the different States. In California, it "must describe the lands to be sold and the terms of the sale."^ In Massachusetts, it need not designate which part of the testator's lands are to be sold.^ In Texas, an order to sell all the lands of a decedent 1 Myers v. Davis, 47 la. 325; Fleming v. Bale, 23 Kans. 88; McDade v. Burcb, 7 Ga. 559; s. C, 50 Am. Dec. 407; Long v. Weller, 29 Gratt. 347; Grayson V. Weddle, 63 Mo. 523; Pratt v. Houghtating, 45 Mich. 457; Weyer v. Second Nat'l Bank, 57 lud. 198; Gardner v. Mawney, 95 111. 552; Merrill v. Harris, 20 N. II. 143; s. C, 57 Am. Dec. 359. 2 Bowen v. Bond, 80 111. 351 ; Allen v. Shepard, 87 111. 314; Myers v. Davis, 47 la. 325; Arrowsmith v. Harmoning, 42 Oh. St. 254; Davis v. Gaines, 104 U. S. 386; Abbott v. Curran, 98 N. A'. GG5; Cromwell v. Hull, 07 N. Y. 209. » Heath v. Wells, 5 Pick. 139; s. c, 16 Am. Dec. 383. * Wyatts V. Rambo, 29 Ala. 510; S. C, 68 Am. Dec. 89. 8 C. C. P. of Cal., sec. 1554. 8 Yeomaus v. Brown, 8 Met. 51; Norton v. Norton, 5 Gush. 524. § 20 VOID JUDICIAL SALES. was thought to be proper/ while a license for the sale of so much as would raise $1,500 (it appearing that the decedent held 34,000 acres) was regarded as of very questionable validity .2 In Alabama, a license to sell must designate the place of sale.^ In Texas, the direction of the statute that the order of sale contains a description of the property to be sold was held to be directory merely.* In Georgia, the order may be to sell " all the real estate of the decedent," without any further attempt at description.^ In Arkansas, the fact that the order contains no description does not render it inopera- tive, if it appears to be granted on a certain petition and that petition contains a full and adequate description.*^ In California, "the order of sale must be in itself sufficient; and to make it so, the description of land to be sold must be sufficiently definite and certain, without reference to any extraneous matter. "'' Hence, the description •' twenty-one acres of the Ranch La Golita, beino; the share of a tract of thirty-one acres allotted to said minors by a decree of the district court of Santa Barbara county, in a suit in partition wherein the guardian herein and mother of said minors was plaintiff and said minors were defendants," is fatally defect- ive. Giving the number of the lot and block without naming the village or city is insufficient,^ but land may be described by abreviations in common use, as " Sec. 12, T. 17, R. 21," if the county is named ;^ and the mentioning of *' ninety-one acres of the southwest corner " of a desig- nated tract, where the decedent owned only that number of acres in such tract, was held to be sufficient. ^*^ 1 Wells V. Polk, 36 Tex. 120. 2 Graham v. Hawkins, 38 Tex. G28. 3 Brown v. Brown, 41 Ala. 215. * Robertson v. Johnson, 57 Tex. 62. s Doe V. Henderson, 4 Ga. 148; s. c, 48 Am. Dec. 216. 6 Montgomery v. Johnson, 31 Ark. 74. 7 Hill V. Wall, 4 W. C. Rep. 503; Crosby v. Dowd, 61 Cal. 557. ** Herrick v. Ammerman, 21 N. W. Rep. 836. 9 Wright V. Ware, 50 Ala. 549; Money v. Tnrnipsced, 50 Ala. 499. »o Bloom V. Burdick, 1 Hill, 130; s. C, 37 Am. Dec. 299. VOID JUDICIAL SALES. § ^1 CHAPTER III. SALES VOID BECAUSE OF ERRORS OR OMISSIONS SUBSEQUENT TO THE JUDGMENT OR ORDER OF SALE. SECTION. 21. General Rule Regarding the Effect of Irregularities. 22. Failure to give Additional Bond, or to take Oath Concerning the Sale. 23. The Necessity of a Valid Execution, or Order of Sale. 24. The Times when an Execution may not Issue. 25. Writs of Execution must be Sufficient in Form. 2G. Sales in the Absence of Levies. 27. Sales without Inquisition or Appraisement. 28. Sales without Notice. 29. Sales, by Whom may be Made. 30. Sales made at an Improper Time. 31. Sales made at an Improper Place. 32. Sales not at Public Auction. 33. Sales to Persons Disqualifled from Purchasing. 34. Sales to Raise More Money than was Authorized. 35. Sales of Property not Liable to Sale. 3G. Sale of Different or Less Interest. 37. Sale of Unlocated Part. 38. Sales of Property in Adverse Possession. 39. Sales en masse. ' 40. Sales Infected by Fraudulent Combinations and Devices. 41. Purchaser's Title not Affected by Secret Frauds. § 21. General Rule Regarding- Irregnlarities. — When a judgment or order of sale has been pronounced, it must next bo enforced. The authority which pronounces it is judicial. That which enforces it is chiefly mini.sterinl. In § 21 VOID JUDICIAL SALES. the exercise of this ministerial authority, various errors of commission or of omission are likely to occur. We shall devote this chapter to a brief and, necessarily, imperfect enumeration of those ministerial errors, on account of which a judicial, execution or probate sale may be adjudged void. With respect to judicial and execution sales, "the general principle to be deduced from the authorities is,, that the title of a purchaser, not himself in fault, cannot be impaired at law nor in equity by showing any mere error or irregularity in the proceedings. Errors and irregulari- ties must be corrected by a direct proceeding. If not so corrected, they cannot be made available by way of collat- eral attack on the purchaser's title. "^ Probate sales, we are sorry to say, are generally viewed with extreme suspi- cion. Though absolutely essential to the administration of justice, and forming a portion of almost every chain of title, they are too often subjected to tests far more trying than those applied to other judicial sales. Mere irregulari- ties of proceeding have, even after the proceedings had been formally approved by the court, often resulted in the over- throw of the purchaser's title. In fact, in some courts, the spirit manifested toward probate sales has been scarcely less hostile than that which has made tax sales the most precarious of all of the methods of acquiring title. In other courts, however, probate sales are treated as indul- gently as other judicial sales.^ It is sometimes said that a 1 Freeman on Executions, sec. 339; Freeman on Cotenancy and Parti- tion, sec. 548; Winchester v. Winchester, 1 Head, 460; Whitman v. Tay- lor, 60 Mo. 127; Hedges v. Mace, 72 111. 472; Cooley v. Wilson, 42 la. 428; DeForest v. Farley, 62 N. Y. 628; Byers v. Fowler, 12 Ark. 218; S. C, 54 Am. Dec. 271 ; Syduor v. Roberts, 13 Tex. 598; s. C, 65 Am. Dec. 84; Millis v. Lombard, 19 N. W. Eep. 187; Wallace v. Loomis, 97 U. S. 146; Fitzpatrick v. Peabody, 51 Vt. 195; Casey v. Gregory, 13 B. Mon. 505; S. c, 56 Am. Dec. .581; Walker v. McKnight, 15 B. Mon. 467; s. C, 61 Am. Dec. 190. 2 Harris v. Lester, 80 HI. 307; Price v. Winter, 15 Fla. 60; Mulford v. Beveridge, 78 HI. 455; Patterson v. Lemon, 50 Ga. 231; Gage v. Schroder, 73 HI. 44; Spring v. Kane, 80 111. 580; Goodbody v. Good- body, 95 ill. 450; Moody v. Butler, 63 Tex. 210. VOID JUDICIAL SALES. § 22 sale made under a decree must pursue the directions therein contained, that a departure from these directions renders the sale void.^ But to invoke this rule, the departure must be of a very material character; and must, we think, be a departure which has not been approved by a decree of con- firmation entered in the court which ordered and had super- vision of the sale.^ § 22. Failure to Give Additional Bond, or to Take Oath Concerning the Sale. — The granting of a license to sell real estate imposes a duty and also a pecuniary respon- sibility on the guardian or administrator, in addition to the duty and responsibility otherwise attached to his office. This duty is to use his best efforts to make an advantageous sale of the propert3^ This responsibility is to properly account for and pay over the proceeds of the sale. To in- sure a greater fidelity in performing this duty, some statutes have prescribed an oath to be taken before entering upon any of the proceedings necessary to precede the sale. To provide against any misappropriation of the proceeds of the sale, the statutes very generally exact an additional bond from the guardian, executor or administrator. The fact that a sale was made, or that the time or place thereof was selected in advance of the taking of this oath, has, in every case coming wnthin our observation, been decided to be fatal to the purchaser's title. ^ The same conclusion has been reached in several cases where sales were made without the giving of the additional bond.* In most of the cases 1 Williamson v. Berry, 8 How. (U. S.) 544; Jarboe v. Colvin, 4 Bush. 70; Cofer v. Miller, 7 Bush. 545. 2 Welch V. Louis, 31 111. 44G; McGavock v. Bell, 3 Caldw. 512. 3 Campbell v. Knights, 26 Me. 224; s. C, 45 Am. Dec. 107; Wilkinson V. Filb5s24 Wis. 441 ; Parker v. Nichols, 7 Pick. Ill ; Blackmau v. Bau- man, 22 Wis. Gil ; Williams v. Eeod,5 Pick. 480; Cooper v. Sunderland, 3 la. 114; s. C, GG Am. Dec. 52; Thornton v. Mulquinue, 12 la. 549. * Wiley V. White, 3 Stew. & P. 355; Currie v. Stewart, 2G Miss. G46; Babcock v. Cobb, 11 Minn. 347; Rucker v. D5'er, 44 Miss. 591 ; Perkins V. Fairfield, 11 Mass. 22G; Coliea v. State, 34 Miss. 179; Hamilton v. Lockbart, 41 Miss. 4U0; Washington v. McCaughan, 34 Miss. 304; Wil- § 22 VOID JUDICIAL SALES. where sales were held void for the failure to take the oath or to give the bond, they had been confirmed by the court. In Indiana and Pennsylvania, the failure to file the additional bond is an irregularity merely. After the confirmation and the payment of the money, this failure cannot avoid the sale.i In New York, the filing of the original bond, on the granting of letters of administration, is not a jurisdictional matter. 2 The issue of letters without it is valid. The failure of a master in chancery to file his bond, cannot be raised in a collateral suit to avoid a sale made by him and confirmed by the court.^ In Indiana, a sale made without giving the bond required, cannot be avoided collaterally when made by a guardian, if he has duly accounted for the proceeds. If, on the other hand, such proceeds have been lost to the ward, owing to the omission of the bond, he may treat the sale as void.* It thus appears to be the duty of the purchaser in that State either to assure himself that the requisite bond has been given, or else to take measures looking to the proper application of the proceeds of the sale. In some of the States the legislature has, by statute, declared that probate sales shall not be avoided on account of ♦' any irregularity in the proceedings, provided it should appear: 1, that the executor was licensed to make the sale by the county court having jurisdiction; 2, that he gave a bond that was ap- proved by the judge of the county court, in case a bond was required, upon granting a license; 3, that he took the oath therein prescribed; 4, that he gave notice of the time and place of sale as therein prescribed; and, 5, that the liams V. Morton, 38 Me. 47; s. C, 61 Am. Dec. 229; Williamson v. Wil- liiuuson, 3 S. & M. 715; s. c, 41 Am. Dec. G36. For application of a similar rule in partition suits, see Freeman on Cotenancy and Partition, sec. 4G6. 1 Foster v. Birch, 14 Ind. 445; Lockhart v. Jobn, 7 Pa. St. 137. 2 Bloom V. Burdick, 1 Hill, 130; s. c, 37 Am. Dec. 299. 3 Nicboll V. NicboU, 8 Pal. 349. * McKeever v. Ball, 71 lud. 398. VOID JUDICIAL SALES. § 23 • premises were sold accordingly, and the sale confirmed by the court, and that they were held by one who purchased them in good faith." ^ These statutes, -while professedly in the interest of purchasers in good faith at probate sales, probably operate to the contrary, as they seem to recognize five classes of irregularity as fatal, when only the first of the five was clearly and necessarily fatal, independent of such statute. In States controlled by these or similar statutes, we see no escape from the conclusion that a sale, made in the absence of the bond required by law, or the order of the court, is void. But, unless supported by some statute, the decisions declaring that the failure to give such bond nullifies the sale, are not sustainable at all. The jurisdiction of the court is in nowise connected with the o-ivinof of the bond ; and the omission of such bond is manifestly a simple irregularity affording sufficient reason for refusing to approve the sale, but of no consequence to a purchaser in good faith, except in so far as it may lead the court to withhold its approval of his purchase.^ § 23. The Necessity for a Valid Execution. — Though a judfTUient at law be entered, no officer has any authority to enforce it without a writ of execution. A sale, when no such writ had issued, would, unquestionably, be void. In chancery, the decree of sale may of itself constitute a suf- ficient authority for its own execution.^ The usual custom in chancery is to deliver a certified copy of the decree to the person charged by the court or by law with the duty of making the sale. Under the practice for the forclosurc of morto-a"^es in California, the sheriff is authorized to proceed on receiving an execution or a certified copy of the decree. 1 Meluis V. Pfister, 59 Wis. 194. 2 Wyman v. Campbell, G Porter, 319; s. c, 31 Am. Dec. 677; Palmer V. Oakley, 2 Doug. (Mich.) 433; s. C, 47 Am. Dec. 41 ; Bunce v. Bunce, 59 la. 533; Watts v. Cook, 24 Kans. 278; Mobberly v. Johnson, 78 Ivy. 273; McKiuuey v. Jones, 55 Wis. 39. 8 Karnes v. Harper, 48 111. 527 . § 24 VOID JUDICIAL SALES. If he acts in the absence of both, his acts are void.^ Some of the statutes require copies of orders of sale in probate to be delivered to the administrator or guardian as his au- thority to sell, and others contain no direct provision on the subject. We have never known of a sale being ques- tioned on the ground that no copy of the license to sell had been delivered to the administrator. An execution is in- valid and cannot support a sale, unless it is issued out of a court,^ and by an officer^ competent to issue it. It must also be on a judgment capable of enforcement by execution. The judgment must not be void nor satisfied.* The defend- ant in execution must also be a person or corporation against which an execution may issue. ^ The execution must not be forged, either wholly nor in any material part.^ § 24. The Times Wlien Execution May Not Issue. — By some statutes a plaintiff's right to execution does not exist immediately after the entry of the judgment, but remains in abeyance a specified period of time. The issue of exe- cution before the expiration of this time is, in most States, a mere irregularity, not of sufficient gravity to render the 1 Heyman v. Babcock, 30 Cal. 367. • 2 Freeman on Executions, sec. 15. After a court has been abolished, an execution purporting to be issued out of it is a nullity. Harris v. Corriell, 80 111. 54. 3 Freeman on Executions, sec. 23. * lb., sees. 19 and 20. That a sale under a satisfied judgment is void, is affirmed in French v. Edwards, 5 Saw. C. C. 260; Drefall v. Tuttle, 42 la. 77; Finley v. Gant, 8 Baxter, 148: Wood v. Colvin, 2 Hill, 566; s. c, 38 Am. Dec. 588; Frost v. Yonker's S. B., 70 N. Y. 560; Doe v. Inger- soll, 11 S. & M. 249; s. c, 49 Am. Dec. 57; Murrell v. Koberts, 11 Ired. 424; s. C, 53 Am. Dec. 449. In some States, such sales are upheld in favor of innocent purchasers. Van Campen v. Snyder, 3 How. (Miss.) 66; s. C, 32 Am. Dec. 311 ; Hoffman v. Strohecker, 7 Watts, 86; s. c, 32 Am. Dec. 740; Keed v. Austin, 9 Mo. 722; s. c, 45 Am. Dec. 336; Boren v. McGeehee, 6 Porter, 432; s. c, 31 Am. Dec. 095. A purchaser buyiug at a sale under a satisfied judgment, with notice of facts sufficieut to put him upon inquiry, unquestionably gets no title. Kezar v. Elkins, 52 Vt. 119; Weston v. Clark, 37 Mo. 573. '' Freeman on Executions, sec. 22. 6 lb., sees. 23, 47; Silvan v. Coffee, 20 Tex. 4; s. c, 70 Am. Dec. 371. VOID JUDICIAL SALES. § 24 sale void.^ The same rule is usually applied to writs issued contrary to agreement or pending a stay of execution. They will be vacated on motion. But if the defendant takes no steps to obtain their vacation, or to set aside sales made thereunder, the latter will be treated as valid."^ This remark is equally true of writs issued and sales made in disobedience of injunctions.^ At common law, execution could not regularly issue after a year and a day subsequent to the entry of judgment, without a revivor by scire facias. A writ issued in violation of this rule is not void.* So, at common law, an execution could not regularly issue without revivor of the judgment by scire facias^ after the death of a sole plaintiff or of a sole defendant. The issue of a writ, in violation of this rule, is a more serious matter than its issue on a dormant judgment. If an execution is issued and tested after the death of a sole plaintiff, the authori- ties are very evenly divided upon the question whether it is void or irregular only.^ But if it issues and bears teste, after the death of a sole defendant, the authorities almost, but not quite unanimously, adjudge it void.<^ But the death of one of several plaintiffs or defendants neither suspends nor destroys the right to issue execution."^ 1 Freeman on Executions, sec. 25; Stewart v. Stocker, 13 S. & K.. 199; S. c, 15 Am. Dec. 589. But in Massachusetts a premature writ is void. Penniman v. Cole, 8 Met. 496. 2 Freeman on Executions, sees. 2G, 33 ; Swiggart v. Ilarber, 4 ;]cam. 364; S. c, 39 Am. Dec. 418. 3 Rikeman v. Kohn, 48 Ga. 183; Bagley v. Ward, 37 Cal. 121. * Freeman on Executions, sees. 21), 30; Riddle v. Turner, 52 Tex. 145. Contra, Godbold v. Lambert, 8 Rich. Eq. 155; s. c, 70 Am. Dec. 192; Hoskius V. Helm, 4 Litt. 309; S. C, 14 Am. Dec. 133. 6 Freeman on Executions, sec. 35. 6 lb., sec. 35: Clingman v. Ilophie, 78 III. 152; Welch v. Rattern, 47 la. 147; Collier's Admr. v. Windham, 27 Ala. 291 ; s. c, 62 Am. Dec. 767. In other cases writs so issued were adjudged to be voidable only, andnotvoid. Shelton v. Ilaniilton, 23 Miss. 496; s. C, 57 Am. Dec. 149; Harrington v. O'lleilly, 9 S. >fcM. 216; s. C, 48 Am. Dec. 704. 7 Freeman on Executions, sec. 36. With respect to the effect of the death of a party after the issue of execution, see ib., sec. 37. § 25 VOID JUDICIAL SALES. If an execution issue after a judgment is pronounced and before its entry by the clerk, the writ is not void. If necessary to maintain proceedings taken under the writ, the court would doubtless order the entry of the judgment nunc pro tunc.^ If, however, the writ issues in anticipation of a judgment not yet ordered by the court, or upon a judg- ment of confession not yet perfected by the clerk, a more serious question arises. In such a case the writ, at the time of its issue and until the judgment is pronounced or perfected, is unquestionably void; and it seems that no validity can be infused into the writ by the subsequent rendition of the judgment.- In some of the States, execu- tions may be issued by the clerk of a superior court upon transcripts of judgments of justices of the peace. The substantial performance of the various acts designated by statute, with respect to the transcript and the filing thereof, appear to be essential to the issuing of the writ and the maintainance of titles founded upon it.^ The issue of a venditioni exponas when a fieri facias was ordered is a nullity. "The clerk has no power to issue any other writ than that prescribed in the judgment,"* § 25. Writs of Execution Must be Sufficient in Form. — The necessity for a writ of execution cannot be answered by a writ, called by that name, but substantially defective in form. It must at least purport to proceed from some competent authority ; must show what judgment it is designed to enforce, and must direct the ofiicer to execute or satisfy the judgment.^ But there are various formal matters usually embodied in writs of execution, and in • respect of which an error or omission is not necessarily fatal. Thus, a mistake or omission in designating the 1 Graham V. Lynn, 4 B. Mon. 17; s. c, 39 Am. Dec. 493. 2 Hathaway v. Howell, 54 N. Y., 97; s. c, on second trial, 6 Thomp. &C., 453; 4 Hun. 270. 3 Bigelow v. Booth, 30 Mich. 622. 4 Hurst V. Liford, 11 Ueisk. G22. * Freeman on Executions, sees. 39-41. VOID JUDICIAL SALES. § 2(j return dny,^ or in the attesting clause,- are not of sufficient consequence to defeat an execution sale. In some courts an execution, without a seal (where one is retjuired) is void; in others it is irregular merely.^ The most frequent mistakes in the issue of writs arc made in attempting to describe judgments. The name of the plaintiff or of the defendant may be incorrectly stated, or the amount of the judgment may vary from the sum for which execution issues. These mistakes and variances are amendable. If no amend- ment is made, and no objection to the form of the writ is interposed by a motion to quash or vacate it, it must be treated as valid, unless the variance is so great that it ap- pears not to be issued upon the judgment which is produced in its support.* An execution not issued in the name of the people of the State, nor directed to the sheriff, is amendable, and a sale thereunder is valid. ^ - § 2G. Sales in the. Absence of Levies. — When a judicial sale is made by virtue of an order or license of sale, no levy is necessary. The same rule holds good with respect to execution sales of real estate, where the judgment itself is a lien on the real property of the defendant. Personal property must be levied upon, or in some way subjected to the control of the officer, before a valid sale can be made under execution. As between the parties, the defendant can waive a levy. "With respect to real estate, upon which 1 Freeman on Executions, sec. 44; Brevard v. Jones, 50 Ala. 221 5 Youugblood V. Cunningham, 38 Ark. 571. 2 Freeman on Executions, sec. 45 ; Douglas v. Haberstro, 88 N. Y. Gil ; Ross V. Luther, 4 Cow. 158; S. C., 15 Am. Dec. 341. 3 Freeman on Executions, sec. 46; Roseman v. Miller, 84 111. 297; Taylor v. Taylor, 83 N. C. 116; Woolford v. Dugan, 2 Ark. 131; s. c, 35 Am. Dec. 52. and note. * Freeman on Executions, sees. 42, 43; Harlan v. Harlan, 14 Lea, 107; Haskius v. Wallet, 63 Tex. 213 ; Alexander v. Miller's Ex., 18 Tex. 893 ; s. c, 70 Am. Dec. 314; Wilson v. Campbell, 33 Ala. 249; s. c, 70 Am. Dec. 586. * Ilibberd v. Smith, 50 Cal. 511. § 28 VOID JUDICIAL SALES. a levy has neither been made nor waived, tlie authorities are very evenly divided as to the validity of an execution sale, some claiming that it is irregular merel}^, others that it is void.^ § 27. Sales Witliout Inquisition or Appraisement. — Some statutes require an inquisition or appraisment of real estate to precede its sale under execution, and seek to avoid the great sacrifice sometimes attending compulsory sales by forbidding any sale which does not realize a certain propor- tion of the appraised value. Sales made without any ap- praisment, or for a less proportion of the appraised value than authorized by law, are usually, but not universally, held void,^ In many of the States, administrators and guardians are required to have property appraised before selling it. In Missouri and Louisiana, sales made in contravention of these statutes are thought to be void;^ but we apprehend that they should be declared voidable merely ; and, if confirmed by the court, as entirely valid.* . § 28. Sales Void for Want of Notice of Sale Some notice ol the time and place of sale, and of the property to be sold, is obviously essential to the realization of its value. This notice is commonly required to be given by the statutes regulating judicial, execution and probate sales. Whether a compliance with this requirement is a prerequisite to the power to sell, is uncertain. Undoubtedly a sale, without first giving the proper notice, would not be confirmed if the defect were known to the court. It would be vacated 1 Freeman on Executions, sec. 274; Gordon v. Gilfoil, 99 U. S. 168; Bledsoe v. Williugham, 62 Ga. 550; "Wood v. Auijustiue, 01 Mo. 46; Elliott v. Knott, 14 Md. 121; s. c, 74 Am. Dec. — . 2 Freeman on Executions, sees. 284, 285 ; Maple v. Nelson, 31 la. 322 ; Brown v. Butters, 40 la. 544. A 5ale under a forged waiver of inquisi- tion is void. Zuver v. Clark, 104 Ta. St. 222. 3 Strouse v. Drennan, 41 Mo. 298 ; Curley's Succession, 18 La. An. 728. But a sale in probate to pay debts is not void in Louisiana, because for less than the appraisement. Stoltz's Succession, 28 La. An. 175; Ilerr- man v. Fontelieu, 29 La. An. 502. 4 Bell v. Green, 38 Ark. 78. VOID JUDICIAL SALES. § 28 on motion, while the court has power to annul it by that kind of proceeding.^ Concerning execution sales, ♦* a very decided preponderance of the authorities maintains this proposition : That the statutes requiring notice of the sale to be given are directory merely, and that the failure to give such notice cannot avoid thb sale against any purchaser not himself in fault." ^ With respect to executors', ad- ministrators' and guardians' sales, the authorities are more evenly divided. On the one hand, they maintain that the giving of notice for the time, and substantially in the man- ner directed by statute, is indispensable to a valid salc."^ On the other hand, they insist that the existence of the notice and its sufficiency are legitimate subjects of inquiry, when the sale is reported for confirmation, but not after- wards.* There seems to be more reason for sustaining probate sales, made upon insufficient notice or Avithout any notice whatever, than for sustaining sales so made upon execution, because the latter are not usually brought before the court 1 Glenn v. Wootten, 3 Md. Ch. 514; Matter of McFeely, 2 Kedf. 541 ; Helmer v. Rchm, 14 Neb. 219; Eeynolds v. Wilson, 15 111. 394; s. c, 60 Am. Dec. 753. 2 Freeman on Executions, sec. 2SG; Ware v. Bradford, 2 Ala. 676; S. C, 36 Am. Dec. 427; Brooks v. Rooney, 11 Ga. 423; s. c, 56 Am. Dec. 430; Solomon v. Peters, 37 Ga. 255; Howard v. North, 5 Tex. 290; S. C, 51 Am. Doc. 709; Draper v. Bryson, 17 Mo. 71 ; S. c, 57 Am. Dec. 257; Minor v. Natchez, 4 S. & M. 002; s. C, 43 Am. Dec. 4SS; Burton v. Spiers, 92 N. C. 503; Maddox v. Sullivan, 2 Rich. Eq. 4; s. C, 44 Am. Dec. 234, and note; Smith v. Randall, Cal. 47; s. c.,65 Am. Dec. 475. Contra, Hughes v. Watt, 26 Ark. 228; Lafferty v. Conn, 3 Sneed, 221 ; Hcrrick v. Ammerman, 32 Miun. 544; Prater v. McDonough, 7 Lea, 070; Henderson v. Hays, 41 N. J. L . 387. 3 Thomas V. Le Baron, 8 Met. 303; Curley's Succession, IS La. An. 728; Blodgett V. Hitt, 29 Wis. 109; Mouutour v. Purdy, 11 Miun, 384; Gcrnou v. Bestick, 15 La. An. 097; Hobart v. Upton, 2 Saw. C. C. 302. * Morrow v. Weed, 4 La. 77; s. c, 66 Am. Dec. 122; Little v. Siuuett, 7 la. 324; Minor v. Selectmen, 4 S. & M. 602; Bland v. ^liincaster, 24 Miss. 62; s. C, 57 Am. Dec. 102; Hanks v. Neal, 44 Miss. 212; 3IcNair V. Hunt, 5 Mo. 301 ; Coolcy v. AVilson, 42 la. 428; Iludgeus v. Jackson, 51 Ala. 514; Moffit v. Moflit, 69 111. 641. § 29 VOID JUDICIAL SALES. for confirmation, while the former arc reported to and con- sidered by the court, and are not to be approved unless the proceedings are fair and regular. To attack a probate sale after confirmation, for the purpose of showing the absence of or defects in the notice, involves the re-examination of an issue which has been once heard and determined by a court of competent jurisdiction, and the re-examination of which ought therefore to be forbidden. § 29. By Wliom tlie Sale May be Made. — AVhen a sale is to be made under a decree in chancery, the court may appoint some one as its agent or commissioner and invest him with power to make the sale.^ A sale under execution must be made by a sheriff or constable, unless he is dis- qualified to act. So an administrator's sale must be made by or under the direction of the administrator. The court cannot appoint some other person to make the sale.^ Nor can an executor appoint some person in his stead to exercise a power of sale contained in the will.^ An administrator's or commissioner's sale, at which he was not present, and conducted by his agent, is voidable, if not void.* It seems to always be essential that the person making a sale in an ofiicial capacity be at least an ofliccr de facto, and as such authorized to act in the particular case. A sheriff or con- stable has no authority to act under a writ directed to another sheriff or constable, and a sale made by him is void.^ So a sale made by an ex-sheriff, in a case where the sheriff in office ought to have acted,^ or by the sheriff in ofiice where the ex-sheriff ought to have acted,^ is without author- ^ Freeman on Executions, sec. 291. 2 Crouch V. Evelcth, 12 Mass. 503; Swan v. Wheeler, 4 Day, 137; Jarvis v. Kussick, 12 Mo. 63 ; Kose v. Newman, 2G Tex. 131 ; State v. Founts, 89 lud. 313. 3 Pearson v. Jamison, 1 McLean, 197. 4 Chambers v. Jones, 72 111. 275; Sebastian v. Johnson, 72 HI. 2S2, SBybee v. Ashby, 2 Gilm. 151; s. C, 43 Am. Dec. 47; Gordon v. Camp, 3 Pa. St. 349; s. c, 45 Am. Dec. G47. 6 Bank of Tenn. v. Bcatty, 3 Suecd, 305; s. C, 65 Am. Dec. 58. 7 Purl v. Duvall, 5 IL & J. 69; S. c, 9 Am. Dec. 490. VOID JUDICIAL SALES. § 30 ity of law and void. The division of a county after the levy on an execution does not devest the sheriff levying the writ of power to make the sale.^ A sheriff is incompetent to execute a writ to which he is a party. A sale made by him under a judgment in his favor is a nullity .^ The rule pronouncing sales void when conduced by officers having no authority to make them, may operate harshly in some instances, but it is justified by on the ground that the officer is know^n not to be acting for himself, but as an agent, and that it is always the duty of a person, dealing with one who assumes to act as an agent, to ascertain, at his peril, the existence of the latter' s authority. § 30. At AVhat Time a Sale May be Made. — Of course no judicial or execution sale ought to take place at any other time than that fixed by the notice of sale ; and the notice of sale ought not to fix upon any time prohibited by law. A sale made in violation of this rule will, no doubt, be vacated or refused confirmation if the irregularity is suo-o-ested to the court at the ptoper time. It is not, how- ever, void in most States.* In Texas, a sale made at a time different from that allowed by law cannot be collaterally attacked after its confirmation.* But if the irregularity be not 'thus cured by confirmation, the sale is void.^ It is always essential that a sale be made under a valid, subsist- ing authority. A sale made when such authority had been destroyed by lapse of time would everyw^here be treated as void. If the statute, under which a license to sell is granted, limits the operation of the license within a designated period, a sale outside of the prescribed limit is a nul- » Lofland v. Ewing, 5 Litt. 42 ; s. c, 15 Am. Dec. 41. 2 Collais V. McLeod, 8 Ired. 221; s. C, 49 Am. D^c. 37G; Bowen v. Jouc?!, i;5 Ired. 25. 3 Freeman on Executions, sec. 287. Contra, Ma}^ers v. Carter, S7 N. C. 14G. * Brown v. Christie, 27 Tex. 75. 5 Peters V. Caton, G Tex. 550; Tippett V. Mize, 30 'I'ex. 3G5; Howard V. North, 5 Tex. 290; s. C, 51 Am. Dec. 7G9. § 31 VOID JUDICIAL SALES. lity.^ In some instances licenses to sell have been held to have lost their vitality through lapse of time, although the statute had not directly prescribed any such limit to their power.^ If the act under which an order of sale has been granted is repealed, or the court in which it was entered is abolished, its legal vitality is destroyed, and it cannot support a subsequent sale.^ An execution cannot be legally levied after the return day thereof, and if a levy is attempted after such return day and is followed by a sale, both the levy and sale are void.* But, by the common law, the levy of an execution creates a special property in the sheriff, and by virtue of such property he may proceed to sell after the return day of the writ, as well as before. This is unquestionably true with respect to personal property. A levy on real estate, however, creates no special property therein, and great contrariety of opinion has developed con- cerning the power of officers to make sales thereof after the return day of writs on levies made before such time. The weight of the authorities favors the validity of such sales.^ § 31. Sales Made at an Improper Place are sometimes held to be irregular merely, but more frequently are ad- judged void.^ Execution sales of real estate must be made 1 Macy v. Raymond, 9 Pick. 285; Marr v. Bootbby, 19 Me. 150; Mason v. Ham, 3G Me. 573; Williamson v. Williamson, 52 Miss. 725. 2 Wellmau v. Lawrence, 15 Mass. 326. In this case the sale was made fifteen years subsequent to the license. 3 McLaughlin v. Janney, 6 Gratt. G09; Perry v. Clarkson, 10 Oh. 571 ; Bank v. Dudley, 2 Pet. 493. 4 Jefferson v. Curry, 71 Mo. 85; Logsdon v. Spevey, 54 111. 104. 6 Freeman on Executions, sec. lOG; Blair v. Compton, 33 Mich. 414; Wyant V. Tuthill, 17Neb. 495; s. c, 23 N. W. Kep. 342; Johnson v. Bemis, 7 Neb. 224; Kane v. McCown, 55 Mo. 181 ; Phillips v. Dana, 3 Scam. 551; Pettingill, v. Moss, 3 Minn. 222; s. c, 74 Am. Dec. 747; note to Young v. Smith, 7G Am. Dec. 81. Contra, Sheppard v. Rhea, 49 Ala. 125; Paine v. Iloskins, 3 Lea, 284; Smith v. Mundy, 18 Ala. 182; S. C, 52 Am. Dec. 221 ; Rogers v. Cawood, 1 Swan. 143; s. c, 55 Am. Dec. 739; Mitchell v. Ireland, 54 Tex. 301 ; Williamson v. Williamson, 52 Miss. 725. ^ Freeman on Executions, sec. 289; Murphy v. Hill, 77 Ind. 129. VOID JUDICIAL SALES. § o2 in the county where it is situate, and by an officer of such county ;i but a commissioner in chancery may be authorized to sell real estate beyond the limits of the county in which he was appointed. ^ Personal property, capable of being examined and inspected, must, if possible, be at or near the place of sale. Bidders must be permitted to view it, and, by the exercise of their various senses, to Judge of its character and value. Any other rule would tend to a wanton sacrifice of the property. Hence, a sale of personal property, at a place w^here it cannot be examined or seen, is a nullity.^ § 32. Sales Not at Public Auction. — Execution sales must be made at public auction. Probate and other judicial sales are generally controlled, in this respect, by the direc- tions contained in the license or decree. Whenever, by law or by direction in an order of sale, property is required to be sold at public auction, a private sale thereof is invalid.^ There are cases which seem to sustain the view that an execution sale cannot be made, unless there are bidders or by-standers present other than the officers conducting the sale and the parties to the suit ; and that a sale made to the judgment creditor, when there is no one present but himself and the sheriff, is a nullity .^ The decision was placed upon 1 Freeman on Executions, sec. 289; Morrell v. Ingle, 23 Kans. 32; Menges v. Oyster, 4 W. & S. 20; s. c. 39 Am. Dec. 56; Thacker v. Devol, 50 Ind. 30. 2 Bank V. Trapier, 2 Hill Ch. 25. 3 Freeman on Executious, sec. 290; Collins v. Moutgoniery, 2 N. & McC. 39; Kennedy V. Clayton, 29 Ark. 270. Co?i8; Lockwood v. Stunlevant, 6 Conn. 373. The two cases last named are limited in Watson v. Watson, 10 Conn. 77. 2 Kingsbury v. Wild, 3 X. H. 30. 8 Dufour V. Camfranc, 11 :Mart. G07; s. c, 13 Am. Dec. 300. *Taimer v. Stine, IS Mo. .")S0; s. C, 59 Am. Dec. 320; Martin v. T.on- sach,Gl Mo. 5r)G. 5 Buchanan v. Tracy, 45 Mo. 437; Strain v. Murphy, 49 lud. 337, § 48 VOID JUDICIAL SALES. CHAPTER V. THE LEGAL AND EQUITABLE RIGHTS OF PURCHASERS AT VOID SALES. SECTION. 48. Purchaser's Eight to Resist the Paymeut of His Bid. 49. Purchaser's Right to Recover Money Paid. 50. Purchaser's Right to Urge Acts of Ratification as Estoppels in His Favor. 51. Purchaser's Right to Subrogation Denied. 52. Purchaser's Right to Subrogation Affirmed, under Execution and Chancery Sales. 53. Purchaser's Right to Subrogation Affirmed, under Probate Sales. 54. Purchaser's Right to Subrogation, where he is Guilty of Fraud. 55. Purchaser's Right to Aid of Equity in Supplying Omissions and Correcting Mistakes. § 48. Purchaser's Right to Resist the Payment of His Bid. — If the purchaser at a void execution or judicial sale, be so fortunate as to discover the true character and effect of the sale, prior to the actual payment of the purchase price, he will, of course, seek to avoid making such pay- ment. No doubt the bidder at a void sale is entitled to be released from his bid. " The purchaser at a partition sale is entitled to the whole title partitioned. If, from any irregularities or defects in the suit or in the proceedings, the purchaser would not, by completing his bid and receiving his conveyance, become invested with the whole title with which the court assumed to deal, then he will be released from his bid. Hence, if jurisdiction has not been acquired VOID JUDICIAL SALES. § 48 over one of the co-tenants, the purchaser will be released."' So, in purchases under execution sales, the purchaser can- not be compelled to make payment, if the proceedings are so defective, in any respect, that they cannot divest the title of the judgment debtor.^ Every purchaser has a right to suppose that, by his purchase, he will obtain the title of the defendant in execution, in case of execution sales, and of the ward or decedent in the case of a guardian's or administrator's sale. The promise to convey this title, is the consideration upon which his bid is made. If the judg- ment or order of sale is void, or if, from any cause, the conveyance, when made, cannot invest him with the title held by the parties to the suit or proceeding, then his bid, or other promise to pay, is without consideration, and can- not be enforced. He may successfully resist any action for the purchase money, whether based upon the bid or upon some bond or note given by him.^ In Mississippi, however, he cannot avoid paying the purchase price of per- sonal property of which he has obtained, and still retains possession by virtue of the sale.* The distinction between void sales and defective titles must be kept in view, to avoid any misapprehension of the rights of one who has purchased at an execution or judicial sale, without, in fact, obtaining anything. If he obtains nothing because of a defect in the proceedings, he can defeat an action for the amount of his bid. If, on the other hand, the proceedings are perfect, 1 Freeman on Cotenancy and Partition, sec. 547. 2 Freeman on Executions, sec. 301. 3 Laughnian v. Thompson, 6 S. & M. 259; Campbell v. Brown, G How. (Miss.) 230; Bartee v. Thompkins, 4 Sneed, 623; Todd v. Dowd, 1 Met. (Kj^) 281; Barrett v. Churchill, 18 B. Mon. 387; Washiuj^ton v. McCaughan,34Miss. 304; Riddle v. Hill, 51 Ala. 224; Verdin v. Slocum, 71 N. Y. 345; Goode v. Crow, 51 Mo. 212; Boyliin v. Cook, Gl Ala. 472; Burns v. Lcdbetter, 56 Tex. 282; Dodd v. Neilson, 90 N. Y. 243; Threft V, Fritz, 7 111. App. 55 ; Short v. Porter, 44 Miss. .533 ; note to Burns v. Hamilton, 70 Am. Doc. 580. < Washington v. McCau-jhan, 34 Miss. 304; Martin v. Tarver, 43 Miss. 517; Jaggers v. Grilliu, 43 Miss. 134. § 48 VOID JUDICIAL SALES. but the defendant, or waixl, or decedent, had no title to be sold nor convc3'cd, the purchaser is nevertheless bound by his bid. Caveat emptor is the rule of all execution and judicial sales. Each bid is made for such title as the de- fendant, ward or decedent may have, and is, therefore, binding;, whether either had title or not.^ *' But the better rule is that, in equity sales, the purchaser is entitled to re- ceive a title free from equities and incumbrances of which he had no notice ; and if, by the sale, he will not receive such title, he will not, on his making objection, be com- pelled to complete his purchase, but will be released there- from, unless the title can be made good, or other just relief awarded." ^ The time for making objection is when the sale is reported for confirmation. The confirmation is bind- ing on the purchaser, and after that he is precluded from objecting that the title was imperfect or incumbered, and thus avoiding the payment of his bid.^ ^ Freeman on Executions, sec. 301 ; Freeman on Cotenancy and Par- tition, sec. 547; Osterberg v. Union Trust Co., 93 U. S. 424; McManus V . Keith, 49 111. 389 ; Short v. Porter, 44 Miss. 533 ; Bassett v. Lockard, GO 111. 1G4; Boykiu v. Cook,Gl Ala. 472; England v. Clark, 4 Scam. 48G; Boro V. Harris, 13 Lea. 3G; Holmes v. Shafer, 78 111. 578; Dunn v. Frazier, 8 Blackf. 432; Rodgers v. Smith, 2 Ind. 520 : Dean v. Morris, 4 G. Greene, 312; Islay v. Stewart, 4 D. & B. IGO; Eichardson v. Vicker, 74 N. C. 278; Bollius v. Henry, 78 N. C. 342. The rule was applied against purchasers at probate sales in Worthington v. McEoberts, 9 Ala. 297; Jennings v. Jennings' Admr., Id., 291; Owen v. Slatter, 26 Ala. 547; S. c, G2 Am. Dec. 745; Byrd v. Turpin, 62 Ga. 591; Colbert v. Moore, 64 Id. 502;.Tilley v. Bridges, 105 111. 330; London v. Robertson, 5 Blackf. 270 ; Cogan v. Frisby, 36 Miss. 185 ; Thompson v. Munger, 15 Tex. 523; S. c, 65 Am. Dec. 176; Burns v. Hamilton, 33 Ala. 210; s. C, 70 Am. Dec. 570; Jones v. Warnock, 67 Ga. 484; King v. Gunnison, 4 Pa. St. 171. 2 Xote to Burns v. Hamilton, 70 Am. Dec. 575, citing Scott v. Bentel, 23 Gratt. 1 ; Bolivar v. Zoigler, 9 S. C. 237 ; Monaghan v. Small, 6 S. C. 177; Kostenbader v. Spotts, 80 Pa. St. 430; Edney v. Edney, 80 N. C. 81 ; Monarque v. Monarque, 80 N; Y. 320; Hunting v. Walter 33 Md. GO. 3 Osterberg v. Union Trust Co., 93 U. S. 424; Dresbach v. Stein, 41 Oh. St. 70; Mechanics' S. & B. A.ssu. v. O'Conuer, 29 Oh. St. G5I ; Barron v. MuUin, 21 Minn. 374 ; llolnios v. ^haver, 78 111. 578 ; Thomas v. David- VOID JUDICIAL SALES. § 49 § 40. The Purchaser's Right to Recover Back Money Paid. — Whoever piiys out money on account of a purchase made at a void sale, parts with a valuable consideration, for which he acquires nothing. The question then arising, is: Has the purchaser any remedy? and, if so, what is the rem- edy, and to what cases may it be applied with success? "Where the plaintiff is the purchaser, he may, ia most States, upon failure of his title, in effect vacate the apparent satis- faction produced by the sale, and obtain a new execution.^ If the title fails through defects in the proceedings, arising from the neglect or misconduct of the sheriff, the purchaser can sustain an action on the case against that officer.^ Where a purchase is made under a decree in equity, and such decree is reversed for a jurisdictional defect in the proceedings, or where the title fails because the grantee of a mortgagor was not a party to a foreclosure, the plaintiff has the right to prosecute further proceedings. In the case first named, he may have the process properly served, and thus give the court jurisdiction to proceed. In the second named case, he may apply to the court, have the sale vacated, the satisfaction cancelled, and then, by supple- mental bill, bring in the proper parties, and have the prop- erty re-sold. In either case the purchaser may, by apply- ing to the court in the original suit, have the proceedings conducted for his benefit, though in the name of the origi- nal plaintiff.^ In New York and Tennessee, if the proceed- 9on, 76 Va. 344; Ilickson v. Eucker, 77 Va. 135; Long v. Weller, 29 Gratt. 347; Threlkeldsv. Campbell, 2 Gratt. 198; S. C.,44 Am. Dec. 384; Capehart v. Doweiy, 10 "VV. Va. 130; Farmers' Bauk v. Peters, 13 Bush. 501 ; Ilousley v. Liudscy, 10 Ileisk. G51 ; Auderson v. Foulks, 2 II. & G. 31G; Farmers' Bank v. Martin, 7 Md. 342; S. C, Gl Am. Dec. 350; Bas- sett V. Lockard, GO El. 164; Cashipn v. Fania, 47 Mo. 133. 1 Freeman on Executions, sec. 54 ; Sargent v. Sturm, 23 Cal. 359 ; Piper V. Ehvood,4 Den. 1G5; Adams v. Smith, 5 Cow. 280; Watson v. Reissig, 24 111. 281. 2 Sexton V. Ncvers, 20 Pick. 451. ^ Boggs V. Ilargrave, 16 Cal. 559; Burton v. Lies, 21 Cal. 87; Johnson V. Robertson, 34 Md. 1G5; Cook v. Toumbs, 36 Miss. G85; lludgin v. § 49 VOID JUDICIAL SALES. ings are utterly void, the purchaser may recover from the plaintiff the amount paid upon the latter's judgment. ^ In Texas, if a sale under a valid judgment be void for defects in the proceedings, the purchaser is entitled to the property, unless the defendant will reimburse him for the amount he has paid toward satisfying the judgment.^ In Kentucky, Indiana, Illinois and Texas, if the defendant in execution has no title, he may be compelled, by proceedings in equity, to reimburse the purchaser for the amount contributed by means of the purchase, to the satisfaction of the judgment.^ But we think the better rule is that, unless proceeding upon the ground of fraud or misrepresentation, or some other well known ground, a purchaser at an execution sale cannot, by any independent action, recover of either of the parties the amount of his bid.* Such an action is, neces- Hudgiu, 6 Gratt. 320; s. c, 52 Am. Dec. 124. See, also, Scott v. Dunn, 1 D. & B. Eq. 425. 1 Chapman v. Brooklyn, 40 N. Y. 372 ; Schwinger v. Hickok, 53 N. Y. 280; Henderson V. Overton, 2 Yerg. 394; s. c, 24 Am. Dec. 492. The principle upon which these cases profess to proceed is, that a party may recover moneys paid where there is a total failure of consideration. This principle is sufficiently sujiported by the authorities (Moses v. McFar- lane, 2 Burr. 1009; Eheel v. Hices, 25 N. Y. 289; Kingston Bank v. Eltinge, 40 N. Y. 391;) but we doubt its applicability to execution sales. 2 Johnson v. Caldwell, 38 Tex. 218; Howard v. North, 5 Tex. 290; s. C, 51 Am. Dec. 789. A person seeking to cancel a sheriff's deed as a cloud upon his title, must, in Texas, first repay the amount for which the property was sold by the sheriff. Herndon v. Eice, 21 Tex. 457 ; Morton v. Welborn, 21. Tex. 773; Brown v. Lane, 19 Tex. 205. 3McGhee V. Ellis, 4Litt. 245; s. C, 16 Am. Dec. 124; Muir v. Craig, 3 Blackf. 293; s. C, 25 Am. Dec. Ill; Warner v. Helm, 1 Gilm. 220; Price V. Boyd, 1 Dana, 43G; Hawkins v. Miller, 2G lud. 173; Preston v. Harrison, 9 Ind. 1; Jones v. Henry, 3 Litt. 435; Dunn v. Frazier, 8 Blackf. 432; Pennington v. Clifton, 10 Ind. 172; Richmond v. Marston, 15 Ind. 134; Julian v. Beal, 20 Ind. 220; Howard v. North, 5 Tex. 290; s. C, 51 Am. Dec. 769; Arnold v. Cord, 16 Ind. 177; Taylor v. Conner, 7 Ind. 115. 4 Branham v. San Jose, 24 Cal. 585; Boggs v. Hargrave, 16 Cal. 559; Salmoud v. Price, 13 Oh. 368; s. C, 42 Am. Dec. 204; Laws v. Thomp- son, 4 Jones, 104; Ilalcombe V. Loudermilk, 3 Jones, 491; The Monte Allegre, 9 Wheat. 616; Burns v. Hamilton, 33 Ala. 210. VOID JUDICIAL SALES. § 50 sarily, founded upon a mistake of law. The purchaser is sure to base his chiim upon the fact that he mistook the Icfijal effect of the proceedings in the case, or of the defend- ant's muniments of title. And it is well known that a mis- take of law is not a sufficient foundation for relief at law or in equity. The rule of caveat emj)tor unquestionably applies to judicial sales; and "u^e know not how this rule can co-exist with another rule requiring one of the parties to indemnify the purchaser in the event of a failure of the title. In a few of the States, purchasers have been given a statutory remedy. ^ The purchaser at a void execution sale may, by the payment of his bid, wholly or partly discharge some lien or claim on the property purchased. The ques- tion then arising is this: Has he the right to hold the property until the amount thus paid is refunded to him? The consideration of this question is reseiTed for a subse- quent section.^ § 50. Ratification of Void Sales by the Acts of the Parties in Interest. — As a general rule, a confirmation or ratification cannot strengthen a void estate. " For con- firmation may make a voidable or defeasible estate good, but cannot operate on an estate void in law." ^ If this rule be one of universal application, then there can be no neces- sity for considering the question of ratification in connection with void judicial sales. But this is one of those rules which are so limited by exceptions, that the circumstances to which it may be applied are scarcely more numerous than those from which its application must be withheld. There can now be scarcely any doubt that void judicial sales are within the exceptions, and are unaffected by the rule.* ^ C. C. P. of Cal., sec. 70S; Ilalcombe v. Louderniilk, 3 Jones, 491; Chambers v. Cochran, IS la. 160. 2 See sees. 51-53. 3 Bouvier's Law Die, title " Confirmation." * Maple V. Kussart, 53 Pa. St. 348; Johnson v. Fritz, 44 Pa. St. 449; Deford v. Mercer, 24 la. 118; Piu'sley v. Hays, 17 la. 310; Johnson v. Cooper, 56 Miss. COS. § 50 VOID JUDICIAL SALES. These sales nicay be ratified either directly or by a course of conduct -which estops the party from denying their valid- ity. Thus, if the defendant in execution, after a void sale of his property has been made, claims and receives the sur- plus proceeds of the sale, with a full knowledge of his rights, his act must thereafter be treated as an irrevocable confirmation of the sale.^ In a case decided in Pennsyl- vania, a judgment was recovered against the administrator of an estate. The heirs of the decedent were not parties to the action in which this judgment were recovered, and were, therefore, under the laws of that State, unaffected by it. Under this judgment, writs were issued, and lands of the decedents levied upon, condemned and sold. They pro- duced funds more than sufiicient to satisfy the judgment. The surplus was paid to the heirs. One of the daughters having brought ejectment for the lands, the supreme court, in discussing and determining her rights, said: *' She was perfectly acquainted with the fact that she had not been served with process to make her a party to the judgment on which the sale was made, and that she had not voluntarily made herself a party to that proceeding without process ; and there is no evidence to repel the presumption that she was equally well acquainted with the rules of law which entitled her to disregard a sale made under such a judg- ment, as having no operation whatever upon her rights, unless she did some act which, on principles of equity and common honesty, might estop her from impeaching it. As she was not a defendant in the execution, she had no right, in that character, to receive any part of the money, after payment of the creditor's claim. Ilcr only title to the money depended upon the effect of the proceedings in di- vesting her estate in the lanil, and converting it into money, 1 Stroble v. Smith, 8 Watts, 280; Headen v. Oiibre, 2 La. An. 142; Sittig V. Morgan, 5 La. An. 574: McLeod v. Johnson, 28 Miss. 374; Southard v. Terry, 21 la. 488; State v. Stanley, 14 Ind. 409; Crowell v. McCoukey, 5 Pa. St. 1G8. VOID JUDICIAL SALES. § 50 by passing her title to the purchasers. Upon this ground alone could she make any claim to the money, in law or equity. The receipt of her share of the money was, there- fore, an affirmation that her title had passed to the pur- chasers by virtue of the sheriff's sale; and she cannot be received to make a contrary allegation now, to the injury of those who paid their money on the faith of the convey- ance. Where a sale is made of land, no one can be per- mitted to receive both the money and the land. Even if the vendor possessed no title whatever at the time of the sale, the estoppel would operate upon a title subsequently acquired." It was held by this court, at the late sitting in Harrisburg, that " equitable estoppels of this character apply to infants as well as adults, to insolvent trustees and guardians as well as persons acting for themselves, and have place as well, where the proceeds arise from a sale hy authority of laio^ as where they spring from the act of the 'party}- The application of this principle does not depend upon any supposed distinction between a void and voidable sale. The receipt of the money, with the knowledge that the purchaser is paying it upon an understanding that he is purchasing a good title, touches the conscience, and, there- fore, binds the right of the party in one case as well as the other." 2 Perhaps it is not essential that the defendant in execution should have directly received any part of the pro- ceeds of the sale. If he knows of the sale, makes no objec- tions thereto, and permits the proceeds to be applied to the 1 Commonwealth v. Shuman's Admr., 6 Harris, 346; McPherson v. Cunliff, 11 S. & R. 42G; s. c, It Am. Dec. 642; "Wilson v. Bigger, 7 W. «& Ser. Ill ; Stroble v. Smith, 8 Watts, 280; Benedict v. Montgomery, 7 W. & Ser. 238; s. c, 43 Am. Dec. 230; Martin v. Ives, 17 Ser. & R. 364; Crowell V. McConkey, 5 Barr, IGS; Hamilton v. Hamilton, 4 Barr, 103; Dean v. Connelly, 6 Barr. 239 ; Robinson v. Justice, 2 Pa. Rep. 19 ; Share V. Anderson, 7 Ser. & R. 48; s. C, 10 Am. Dec. 421 ; Furness v. Ewing, 2 Barr, 479; Adlum v. Yard, 1 Rawle, 163; S. C, 18 Am. Dec. 008. 2 Smith V. AVarden, 19 Pa. St. 429. § 50 VOID JUDICIAL SALES. payment of his debts, he will, at least in Pennsylvania, be precluded from denying its validity .^ If lands be sold at a partition or other chancery sale, no co-tenant, who has claimed and received his share of the proceeds, can deny the validity of the partition. He cannot be allowed to re- tain the money and regain the land.^ The same principle applies to sales made by guardians, administrators and ex- ecutors. A ward or heir may elect to affrm a void sale, and thus entitle himself to the proceeds.^ When a valid election is once made, it cannot be revoked. The ratifica- tion by a ward or heir of a sale, made by an administrator or guardian, may be made also by receiving the proceeds of the sale.* Of course, this ratification cannot be accom- plished through the action of a minor, or of any person not competent to act for himself.^ If the person whose prop- erty was sold be a minor, he cannot ratify the sale until after he becomes of lawful age. Nor can anj^one ratify for him during his minority. No act done or sanctioned by his guardian can bind him as a ratification; nor will he be held to affirm the sale merely on the ground that, daring his minority, the proceeds were applied to his use or for his benefit,^ nor because such proceeds were accounted for by the administrator in his settlements with the estate, no part being paid over to the heir.^ In Missouri and Wisconsin, 1 Spragg V. Shriver, 25 Pa. St. 282; s. c, 64 Am. Dec. 698; Mitchell v. Frecdley, 10 Pa. St. 208; Maple v. Kussart, 53 Pa. St. 352; Williard v. Williard, 56 Pa. St. 128. 2 Tooley v. Gridley, 3 S. & M. 493 ; s. C, 51 Am. Dec. 628; Merritt v. Home, 5 Oh. St. 307; s. c, C7 xim. Dec. 298. 3 Jenuings v. Kee, 5 Ind. 257, 4 lb.; Lee v. Gardner, 26 Miss. 521; Parsley v. Hays, 17 la. 310; Deford v. Mercer, 24 la. 118; "VVilsou v. Bigger, 7 AV. & S, 111 ; Handy V. Koonan, 51 Miss. 166; Parmelee v. McGinty, 52 Miss. 475; Walker v. Mulvean, 76 111. 18; Corwin v. Shoup, 70 I11.24G. fi A feme covert may affirm a void sale by receiving the proceeds, Kenipe v. Pintard, 32 ^liss. 324. e Requa V. Holmes, 26 N. Y. 338; Wilkinson v. Filby, 24 Wis. 441 ; Longworth v. Gofurth, Wright, 192. , ? Towusend V. Talk'ut, 33 Cal. 45. VOID JUDICIAL SALES. § 51 the receipt of the proceeds of a guardian's sale by a minor after coming of age, or by a lunatic after becoming sane, does not operate as an afErmance of the sale.^ The hard- ship of this rule is very materially ameliorated, in the States named, by the adoj)tion of another rule, under which a Sona ^Repurchaser of lands sold at a void judicial sale is entitled to retain, in many cases, a charge or lien on the property, for the amount paid by him. It is essential to every valid ratification, that the ratifying acts were done with a full knov/ledge of the facts constituting the transac- tion to be ratified. ^ § 51. Right of Purchasers to he Suhrogated to the Liien Discharged, Denied. — A judicial or execution sale is usually made for the purpose of satisfying some lien or charge on the property sold. After such sale is made, and the amount of the bid paid, the owner of the property, if he can avoid the sale, will not only retain the property which was originally his, but will also have its value enhanced by the amount paid to remove the charge or lien therefrom. According to natural equity, it is clear that the owner ought not to thus to profit by the sale, and that the purchaser ought to be subrogated to the rights of the holder of the charge or lien. There is some doubt whether the equity which is, in fact, administered by the courts, en- forces, in this case, what we deem to be the dictates of nat- ural equity. In a case decided in Indiana, an execution sale w^as made under a valid judgment, but the sale itself was inoperative, on account of a non-comi)liance with the appraisement law. The purchaser, however, claimed that he was entitled in equity to be subrogated to the rights of the judgment creditor. The supreme court, in denying the claim, said: " Can the doctrine of subrogation be applied to the case made by the record? This is the main inquiry » Valle V. Flemiug, 19 Mo. 454; s. c.,61 Am. Dec. 56G; Mohr v. Tulip, 40 Wis. Gi;. ^ Dolargue v. Cress, 71 111. 3S0. § 51 VOID JUDICIAL SALES. in the case. We are not advised of any direct adjudication on the point involved in this question; but there are vari- ous authorities to the effect that ' it is only in cases where the person paying the debt stands in the situation of a surety, or is compelled to pay in order to protect his own interest, or in virtue of legal process, that equity substi- tutes him in place of the creditor, as a matter of course, without any special agreement. A stranger paying the debt of another, will not be subrogated to the creditor's right, in the absence of an agreement to that effect ; payment by such person absolutely extinguishes the debt and security.' ^ This exposition being correct, and we think it is, we are unable to perceive any ground upon which the decree, so far as it subrogates the plaintiffs to the rights of the judg- ment creditor, can be maintained. The position of Marston was that of an ordinary vendee at a sheriff's sale, and noth- ing more. There is, indeed, nothing in the case in any desrree tendinsc to show that the protection of his interest required, or even induced, the purchase. Pie purchased the land and paid for it voluntarily ; we must, therefore, hold that the amount which he paid to the sheriff operated as a discharge, ^ro ^a?i^o, of the creditor's judgment; and that judgment being thus satisfied, there could be no substitu- tion." ^ The quotation we have just made, very fairly rep- resents the reasoning of those courts, which bold that the purchaser at a void execution or judicial sale cannot be sub- roo-ated to the rights of the holder of the lien which his payment has contributed to discharge. It nuist be con- fessed that the reasoning is in consonance with the general law of subrogation. This general law affords no encourage- ment to one person, who voluntarily discharges the debt of another. Such a person is styled a volunteer. His acts are without compulsion, and he is, therefore, not classed with those persons who are compelled, as sureties or other- ' 1 Leading Cases in Equity, 113, and authorities there cited. 2 llicbuiond v. Marston, 15 liid. 13(5; s. c, 42 Am. Dec. 204. VOID JUDICIAL SALES. § 52 wise, to discharge obligations on which others are primarily responsible. The purchaser at a void judicial sale acts under a mistake of law; and this, as is well known, is rarely, if ever, recognized as sufficient to induce the interposition of courts of equiiy. Purchasers at void probate sales have also been judged not to be entitled to subrogation to the rights of the creditors whose claims their purchases had discharged, 1 but the right of purcha-sers at a void judicial sale, whether in probate or . chancery to subrogation, is steadily gaining ground, and is now established by the de- cided preponderance of authority, as will appear from the following sections. § 52. Right of Purcliasers at Execution and Chancery Sales to Subrogation, Affirmed. — We pass now to the authorities in conflict with those cited in the preceding sec- tion. From these authorities it will be seen that the risfht of purchasers at void sales, to be subrogated to the claims they have discharged by their payments, is very generally recognized in this country. In Kentucky, a slave named Jack, was sold under execution against an estate, and was purchased by Enos Daniel. The slave was subsequently recovered from Daniel in an action of detinue^ under a title paramount to that of the decedent. Daniel then com- menced a suit in chancery to be subrogated to the rights of the holder of the judgment under which the sale had been made. The case was, therefore, one in which the title had failed, not from any defect in the sale or judgment, but because the defendant in execution was not the owner of the property. The court, nevertheless, sustained the claim for subrogation, saying: ^'Admitting that Enos Daniel knew that Jack belonged to Mary McLaughlin, and was not sub- ject to execution against the estate, this, in our judo-niont, presents no legal impediment to his claim upon the estate iNowler v. Coit,l Oh. 23G; s. c, 13 Am. Dec. 640; Salmoiid v. Price, 13 Oh. 3GS; Lieb v. Ludlow, 4 Oh. 4G9; s. c. Bishop v. O'Coiiner, G9 111. 431. The rule iu tills State has been changed by statute. § 52 VOID JUDICIAI^ SALES. for the amount of Clark's demand paid by him. The slave was sold as the property of the estate, under the process of law; he purchased him, and by his purchase and execution of a sale-bond to Clark, he satisfied and extinguished that amount against the estate, and for which it stood responsi- ble. And, according to the principle repeatedly recognized in this court, he has an equitable right to be substituted in place of the creditor, and to have the amount so paid re- funded 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 reim- bursed out of the estate." ^ In South Carolina, a plaintiff, at his own sale, purchased the interest of the defendant in certain personal property. There were older writs in the hands of the officer making the sale, and the proceeds were exclusively applied to those writs. The sale turned out to be void. The plaintiff's judgment was subsequently paid; but he was not repaid the purchase money, which had been applied to the extinction of elder claims. In these circum- stances, it was held that his " claim is that of a junior cred- itor, who has paid prior debts, and he must be substituted in the place of the senior creditors, and subrogated to all their rights." 2 In Louisiana and Texas, if an execution sale is void for some irregularity of proceeding, but is made under a valid judgment, and the proceeds of the sale are applied to the satisfaction of the judgment, the defendant cannot recover the property from the purchaser without first repaying the amount ])aid at the sale.^ When a void sale is made under proceedings to foreclose a mortgage, * McLauglilin v. Daniel, 8 Dana, 183. 2 Beutk-y v. Long, 1 Strub. Eq. 52; s. c, 47 Am. Dec. 523. 8 Howard v. North, 5 Tex. 31G; s. c, 51 Am. Dec. 709; Dufour v. Cam- franc, 11 Mart. 610; s. c, 13 Am. Dec. 3G0. VOID JUDICIAL SALES. § 53 there seems to be no doubt that the purchaser succeeds to the title and rights of the mortgagee, and may enforce them as the mort2:a(jee could have done, but for the sale.^ § 53. Right to Subrogation Affirmed in Favor of Pur- cliasers at Probate Sales. — The cases in which the equitable rule of subrogation has been most frequently invoked with success, have arisen under sales made by administrators, executors and guardians. Thus, in North Carolina, a bill in equity was filed, showing that a sale of lands had been made to plaintiff by the defendant, as executor; that in a trial at law the sale had been declared void for want of authority in the executor to sell ; that the purchase money has been paid to the defendant; that $108 of this money remained in the hands of the executor, and the balance thereof had been applied to the payment of the debts of the testator. The bill prayed that the $108 be refunded, and that as to the balance of the purchase money, the plaintiff might stand in the place of the creditors whose claims it had satisfied, and that the land be sold for the payment thereof. The following is from the opinion of the court : *' The claim of the plaintiff's to be substituted to the cred- itors, whose demands they have satisfied, is supported, we think, by well settled principles. By the laws of this State, real as well as personal property is liable for debts of every description ; but personal property is the primary fund for their satisfaction. It is alleged that the personal assets were insufficient for the discharge of all the debts. "Whether this be the fact or not, can only be ascertained by taking an account of the assets and of the administration of them. If, in taking the account, the fact should be established as alleged, then it follows, from the doctrine sanctioned in the cases of Williams v. "Williams," and Saunders v. Saunders,^ ^ Brobst V. Brock, 10 Wall. 519; Jacksoa v. Boweu, 7 Cow. 13; Gilbert V. Cooley, Walker's Ch. 494. 2 2 Dev. Eq. G9; s. C, 22 A. D. 729. 3 2 Dev. Eq. 2G2. § 53 VOID JUDICIAL SALES. that the defendant Dunn would have a right in a court of equity to be subrogated to those creditors who have been paid by his advances. As between Dunn and the plaintiff, if their money were yet in his hands he could not retain it with a safe conscience, and would be obliged to refund it. And it seems to us clear, that if he could rightfully reclaim it from his co-defendants, he might be compelled to assert this right, or permit the plaintiffs to assert it in his name, in order that it might be refunded. The court would do this upon the same principle by which the surety, on making satisfaction to the creditor, becomes entitled to demand every means of enforcing payment which the creditor himself had against the principal debtor; a principle which, when traced to its origin, is founded on th3 plain obligations of humanity, which bind every one to furnish to another those aids to escape from loss which he can part with without injury to himself. * * * The doctrine of substitution, which prevails in equity, is not founded on contract, but, as we have seen, on the principles of natural justice. Unquestionably, the devisees are not to be injured by the mistake of the executor, as to the extent of his power over their land ; but that mistake should not give them unfair gains. The executor was not an officious intermedler in paying off the debts of the testator, and his erroneous belief that he could indemnify himself in a par- ticular way, should not bar him from obtaining indemnity by legitimate means. It is not a question here, whether a mistake of law shall confer any rights, but whether such a mistake shall be visited with a forfeiture of rights wholly independent of that mistake." ^ In the case of Valle v. Fleming's Heirs ,2 a void adminis- trator's sale had been made, and the proceeds thereof applied to the payment of a mortgage existing on the lands sold. 1 Scott V. Dunn, 1 Dev. & Bat. Eq. 427; s. C, 30 Am. Dec. 174, and note. 2 20 Mo. 152; s. c, 77 Ain. Dec. — . TOID JUDICIAL SALES. § 5.- Ejectment was subsequently brought, to which the purchas- ers filed an equitable defense, and prayed to be subrogated to the rights of the mortgagees. Judge Napton, in deliver- ing the opinion of the court, referred to the equity maxims, both of the common and of the civil law, as well as to the decisions of the American courts, and concluded as follows : "Nothing could be more unjust, we may repeat, than to permit a person to sell a tra'ct of land and take the purchase money, and then, because the sale happens to be informal and void, to allow him, or, which is the same thing, his heir, to recover back the land and keep the money. Any code of law which would tolerate this would seem to be liable to the reproach of being a very imperfect, or a very inequita- ble one. "We think that, upon well established principles of equity law, the owner of the land should, if he wishes to get it back, repay the purchase money which he has re- ceived, or which he will receive if he gets the land. This may be done upon the compensation doctrine of courts of equity, with which, as it is settled on all hands, it is not inconsistent, if we regard the claim of the owner under such circumstances, as the Eoman law treated it, as a case of fraud or ill faith. But whether this equity be adminis- tered under the name of compensation, or by substituting the purchaser in the place of the creditors whose debts he has paid, or by giving him the benefit of the mortgage which his money has paid off, is not material. The answer put in by the defendants should not have been stricken out, and in order that the answer may be reinstated, and the case may be tried ui)on these equitable principles, the judg- ment is reversed, and the case will be remanded." ^ 1 Valle's Heirs v. Fleming's Heirs, 29 Mo. 164; s. C, 77 Am. Dec. — . Judge Seott dissented in a vigorous and well written opinion, saying, among other things: ''The defendants are volunteers and strangers in relation to the plaintiffs. No man can make another his debtor without his consent. Nor can nuy man pay ;i, debt of another without his author- ity, and claim it of him. This is an important priuciple necessary to be § 53 VOID JUDICIAL SALES. Nor is the claim to subrogation confined to those cases ■where a mortgage or some other record lien has been paid off by the sale. The estates of deceased persons are liable to be sold for the payment of the debts of the decedents, whether such debts are liens or not. If, by a sale of the lands of a decedent, his debts are paid, and it turns out that the sale is void, the purchaser has the right to be subrogated to the claims which he has, by his purchase, paid ; and he has also the right to retain possession of the property as security for the repayment of the sums to which he is entitled. The case of Blodgett v. Hitt,^ discusses more thoroughly than any other with which we are familiar the rights of purchasers under void probate sales. We copy so much of the opinion of the court as is devoted to this subject : <* The evidence on this subject is, that the defendant bid off the land at the administrator's sale for $305 ; that out of this sum he paid the Boyd mortgage, amounting to nearly $250, and that he paid the balance of the purchase money to the administrator. The whole of the purchase money was applied to the payment of the mortgage, of other debts against the estate, and of the expenses of administration. The land in question stood chargeable with the payment of such mortgage debts and expenses. The payments made by the defendant, on account of his purchase, enured to the benefit of the owners of the land. There is no manner of doubt but the defendant purchased the land, and paid his money therefor, in pertectly good faith, supposing that he was obtaining the whole title thereto; and there is no pre- tense that he had any actual notice of the defect in the pro- ceedings before the sale, which invalidates his title. The question then is, whether, under such circumstances, the de- fendant is entitled to be repaid the money which he has paid preserved, and it is one which has had its influence in all cases in which it has been involved." 129 Wis. 182. VOID JUDICIAL SALES. § 53 in ofood faith to relieve the land from incumbrances, before he can be turned out of possession thereof. Suppose, for illustration, that the liabilities against the estate of Pearlcy P. Blodo-ctt, after the personal estate was exhausted, were just $305, for the payment of which the land, which the administrator attempted to convey to the defendant, was chargeable. The interest of the heirs of Blodfi^ett in the land was precisely that sura less than a full and perfect title thereto. That is to say, the creditors of the intestate owned an equitable interest therein to the amount of $365, and the heirs were the owners of the residue. Now, when the defendant, supposing in good faith that he was thereby obtaining a title to the lands, paid those debts and took a conveyance of the land from the administrator, and when it turns out that, by reason of the failure of the administra- tor to perform and fulfill an essential prerequisite to a valid sale, the defendant gets no title by such conveyance, and the heirs recover the land, it must be admitted that there is no justice in giving the land to heirs, cleared of the in- cumbrances which the defendant has paid, without requiring them to repay the sums thus paid by him for their benefit. Otherwise, the heirs would recover a greater interest in the land than they inherited, by the sum of $365, and the de- fendant would be out of pocket to that amount, paid by him for their benefit. The fact that the purchase money, paid by the defendant, only cancelled a small percentage of the indebtedness against the estate, does not change the principle. But the question is not alone — what is the natural and inherent justice of the case? but it is — are the principles and rules of equity jurisprudence, as recognized and enforced by courts of equity, sumciently broad and com- prehensive to reach the case and compel the heirs to repay the sums which the defendant has thus paid for their benefit, before they will be permitted to take possession of the land in controversy? AYe are of the opinion that this latter question must be answered in the aliirmative, both upon § 53 VOID JUDICIAL SALES. principle and by authority. A brief reference will be made to a few of the leading cases, wherein it has been so held. <'Hudgia V. Hudgin,^ was a case where a person, by will, charged his lands with the payment of his debts. After his death, a creditor procured an order from the proper court for the sale of some portion of the lands thus made charge- able with the debts of the testator. The lands were sold, and the proceeds applied to the payment of such debts. The sale and conveyance, executed pursuant thereto, were sub- sequently held void, and, in ejectment brought by some of the devisees of the land against the purchaser at such sale, or the person claiming under him, the devisee recovered judgment. The defendant in the ejectment, filed his bill in equity and obtained an injunction, restraining proceedings upon such judgment, and, upon proof of these facts, the court of appeals of Virginia directed a decree declaring the purchase money, so paid by the complainant, or his grantor, on such void sale, and the interest thereon, after deducting therefrom the rents and profits of the land while occupied by the purchaser or his grantee (exclusive of improvements made by them respectively), to be a charge oja. the land, and providing that, unless the same should be paid by the devisees within a reasonable time, the land be sold for the satisfaction thereof, on terms to be prescribed for the purpose. This case is decided upon the principles that the purchaser, whose money has paid the incumbrances upon the land, has the right to be substituted to the rights of the creditor whose debt he has paid ; and, because equity will not permit such creditor or incum- brancer, lawfully in possession, to be disturbed therein until his debt or incumbrance is fully satisfied, it will not permit such purchaser, who has paid the incumbrance in good faith, and is thereby subrogated to the rights of the 1 G Grat. 320; s. c, 52 Am. Dec. 124. VOID JUDICIAL SALES. § 53 creditor, to be disposscssd until he is reimbursed for the moneys so paid by him. "Valle's Heirs v. Fleming's Pleirs,^ is to the same effect. This is a very important and interesting case, and will jus- tify a somewhat extended notice. The action was in the nature of ejectment. The plaintiffs claimed, as heirs of Valle, who died, seized of the lands in controversy in the action. The defendants were in possession under certain conveyances, executed to their ancestor and his grantors by the administrators of the estate of Valle, pursuant to a sale of the land under an order of the proper court. In a former litigation these conveyances had been adjudged to be null and void by the supreme court of Missouri. In their answer the defendants alleged, as an equitable defense and counter-claim, that their ancestor and his grantors pur- chased the lands in good faith, and paid therefor $50,000, which moneys the administrators applied to the payment and satisfaction of a mortgage upon said lands, and, per- haps, other lands of which Valle died siezed. The defend- ants claimed that, notwithstanding the apparent and tech- nical payment and extinguishment of such mortgage, equity would, under the circumstances, treat it as still subsisting and unsatisfied, for the protection of the purchasers from the administrators, or their grantees, and would subrogate such purchasers or grantees to all of the rights of the mort- gagee, treating them as assignees and purchr.sers of the mortgage, for a valuable consideration by them paid. They also claimed that they were, in fact and in equity, in pos- session of the land in controversy as assigns of said mort- gage, and fully entitled to set up the same against any per- son attacking their rights or possession thereto. The court below rejected these views of the case, and struck out from the answer such ccpiitable defense and counter-claim; but the supreme court reversed the judgment below for that 1 29 Mo. 152; s. c, 77 Am. Dec. — . § 53 VOID JUDICIAL SALES. reason, and in a very able opinion by Judge Napton, a majority of the court fully sustain the theory of the defend- ants, and they were entitled to the equitable protection of the court as mortgagees in possession under an unpaid morto-a^-e, and that their possession could not be disturbed until an account should be taken and the sum ascertained to be equitably due to them on the mortgage fully paid. In that case Judge Scott, delivered a dissenting opinion, wherein he claims that the views of the majority of the court are unsustained by the cases; that the decision creates a new equity, or rather injects a new principle into the equity jurisprudence of the country ; and, further, that the defend- ant's ancestor and his grantors, who paid their money under a void sale and conveyance, were mere volunteers ; and, because a man may not pay the debt of another with- out his authority and claim it of him, the learned judge concludes that, the defendants (who had succeeded to all of the rights of the original purchasers) could not be subro- gated to the rights of the mortgagee, and recover of the heirs, or out of the land, the money which was thus volun- tarily paid on a void conveyance. It is believed that both these positions are untenable. That this is no new equity — one first recognized and asserted in that case — is abund- antly shown by a reference to the cases cited in the major- ity opinion. Some of those cases will be hereinafter men- tioned. Again, the lands having been purchased of the administrator in good faith, and at a sale which had been ordered to be made by the proper court, and the purchasers havino- paid a valuable consideration for the laud, in the belief that they were obtaining a good title thereto, it Can- not be said, in any reasonable or just sense, that they were mere volunteers. On the contrary, they paid their money at the request and by the procurement of the administra- tors ; and, inasmuch as the administrators were charged by law with the duty of converting the assets and paying the debt, it may well be held that they were the representatives VOID JUDICIAL SALES. § 53 of the heirs, to the extent that the hitter shoukl be hehl bound by such request, and should not be heard to allege that the purchasers, whose money went to pay the incum- brance upon the land, were mere volunteers. The judge also speaks of the distinction between trusts and powers, and sa^'s that because the administrators have nothing but a mere power, without an interest, the land cannot be affected by their conveyance thereof, unless the power is executed pursuant to the terms of the statute by which it is conferred. In this the learned judge is doubtless correct, as he would have been had he said further, that where, as in that case, a power is [created by law, equity will not relieve asrainst a defective execution of it. But the result of these principles is not that a purchaser in good faith at an administrator's sale is not entitled, in a case where the conveyance to him has been adjudged void, to be repaid by the heir, or out of the land, the money paid by him for such void conveyance, and applied inpayment and satisfac- tion of incumbrances upon the estate, but only that the power having been defectively executed, the conveyance is void, and a court of equity has no jurisdiction or authority to heal the defect and make it valid. *'The foregoing case was decided mainly upon the author- ity of the case of Bright v. Boyd.^ This is, perhaps, the leading case on the question under consideration. Boyd, the defendant, had recovered judgment, in an action of ejectment, for certain premises in the possession of Bright, the complainant; whereupon Bright filed his bill inequity against Boyd, alleging that he was in possession of the premises in controversy, by intermediate conveyances from the administrator, with the will annexed of the estate of John P. Boyd, the father of defendant, but that the title under the administrator's deed had failed, or rather that the same conveyed no title by reason of the failure of the 1 1 Story, 478, and 2 lb. 605. § 53 VOID JUDICIAL SALES. administrator to comply with certain requirements of the law, which were held to be essential to the validity of the sale; and that the complainant, or those under whom he claimed in good faith, and believing that the deed from the administrator conveyed a good title to the premises, had made valuable and permanent improvements thereon. The object of the bill was to make the value of such improvements a charge upon, and to enforce payment therefor out of the premises which the defendant had recovered in the ejectment suit. The defendant, Boyd, made title to the land as devised under the will of his father. On proof of these allegations, Justice Story, before whom the cause was heard, after great deliberation and research, gave the complainant the relief prayed in the bill, and, in the absence of any statutory provision on the sub- ject, held the broad doctrine that, * a hona fide purchaser for a valuable consideration, without notice of any defect in his title, who makes improvements and meliorations upon the estate, has a lien or charge thereupon for the increased value, which is thereby given to the estate beyond its value without them, and a court of equity will enforce the lien or charo^e ao^ainst the true owner, who recovers the estate in a suit at law against the purchaser.' *' The princi})le there asserted is precisely the same as that involved in the question under consideration in this case. In both cases, if the land is held chargeable, it is because the money of the purchaser under the void sale has been paid in good faith, and expended to increase the value of the estate. It is quite immaterial whether this was done by paying off incumbrances, or by making permanent and valuable improvements. In either case, the value of the inheritance is increased by the expenditure, and, as already observed, the plainest principles of justice demand that the heir or devisee should ro))ay the money thus innocently expended for his benefit, to the extent that he has been benefitted thereby. The opinion of Judge Story, in Bright VOID JUDICIAL SALES. § 53 V. Boyd, is exceedingly learned and able, and will well repay careful perusal and study. He traces the principle which he applied there to the Koman law, and shows that it has been adopted into the laws of all modern nations which derive their jurisprudence from the Roman law, and demonstrates, by reference to the writings of Cujacius, Pothier, Grotius, Bell, Puffendorf, Eutherforth and others, and by arguments which seem conclusive of the question, that 'such principle has the highest and most persuasive equity, as well as common sense and common justice, for its foundation.' We are not aware that the authority of that case has ever been shaken, or its correctness ever suc- cessfully assailed. " Before dismissing the case of Bright v. Boyd from our consideration, I may be permitted to transcribe a passage from the opinion, to show how identical in principle that case is with the present one, and also to show the views of the eminent jurist who wrote the opinion upon the precise question involved in this case. Judge Story there says that *it cannot be overlooked that the lands of the testator now in controversy were sold for the payment of his just debts, under the authority of law, although the authority was not regularly executed by the administrator in his mode of sale, by a non-compliance with one of the ])rereq- uisites. It was not, therefore, in a just sense, a tortious sale ; and the proceeds thereof, paid by the purchaser, have gone to discharge the debts of the testator, and, so far, the lands in the hands of the defendant (Boyd) have been relieved from a charge to which they were liable by law. So that he is now enjoying the lands free from a charge which, in conscience and equity, he, and he only, and not the purchaser, it seems to me that plaintiff, claiming under the purchaser, is entitled to reimbursement, in order to avoid circuity of action, to get back the money from the administrator, and thus subject the lands to a new sale, or, (7) § 53 VOID JUDICIAL SALES. at least, in his favor, in equity to the old charge. I con- fess myself to be unwilling to resort to such a circuity in order to do justice, where, upon the principles of equity, the merits of the case can be reached by affecting the lands directly with a charge to which they are ex mquo et bono in the hands of the present defendant, clearly liable. ^ *' After what has been already said, concerning the rule of the civil law on this subject, we should expect to find the courts of Louisiana asserting and enforcing that rule. Accordingly, we find, in Dufour v. Camfranc,^ the follow- ino- language: ' It has been proved that the proceeds aris- ino- from the sale of the slaves were applied to the dis- charge of the judgment debts of the plaintiff, and the courts are of opinion that he cannot recover in the suit until he repay that money. * * * Nothing could be more unjust than to permit a debtor to recover back his property because the sale was irregular, and yet allow him to profit by that irregular sale to pay his debts.' It w^ill be readily inferred from the foregoing extracts, that the action w^as brought to recover certain slaves, which the defendant had purchased at a sheriff's sale upon an execu- tion, which sale, it was afterwards held, was void and transferred no title to the slaves to the purchaser, but the proceeds of the sale went to pay judgment debts against the plaintiff. * * * We hold, therefore, that the whole purchase money, paid by the defendant for the land in con- troversy, and the interest thereon, less the mesne profits of the land (exclusive of the improvements placed thereon by him) during his occupancy thereof, is a lien and charge upon the land, and that the plaintiffs cannot have restitu- tion of the land claimed by them until the amount of such lien and charge is paid." ^ 1 1 Story, 193. 2 11 Martin, 607, (2 Cond. La. Eeports, 234) ; s. c, 13 Am. Dec. 864. 3 Blodgett V. llitt, 29 Wis. 1S2. Tlie following cases are in harmony with the one just cited: Bright v. Boyd, 2 Story C. C. 605; Mohr v. VOID JUDICIAL SALES. § 53 The more recent decisions have been in favor of recog- nizing and enforcing the chiims of purchasers at void sales, by whose purchase moneys have been realized, and when realized have been applied in payment of liens upon the property purchased, or of claims which, though not secured by any specific lien, were enforceable against the assets of the estate, and for the paj^ment of which the lands in con- troversy might have been sold. The heirs will not be permitted to recover the property unless they reimburse the purchaser for the moneys paid by him, and which have benefitted them by discharging claims against the estate.^ Tulip, 40 Wis. 66; Grant v. Loyd, 12 S. & M. 191 ; Levy v. Riley, 4 Org. 392; Short v. Porter, 44 Miss. 533; Williamson v. Williamson, 3 S. & M. 715; s. c., 41 Am. Dec. 63G; Douglass v. Bennett, 51 Miss. 680; Hudgin V. Hudgiu, 6 Gratt. 320; S. C., 52 Am. Dec. 124; Winslow v. Crowell, 32 Wis. 639; Dunbar v. Creditors, 2 La. An. 727; Stockton v. Downey, 6 La. An. 581 ; Kagland v. Green, 14 S. & M. 194. "If the sale be void or voidable, the lien of the administrator continues; and it would seem equitable that the purchaser, who has paid the debts of the estate, shoidd have a lien on the estate for his purchase money." Haynes v. Meeks, 10 Cal. 110; s. c, 70 Am. Dec. 703. A purchaser has no claim against the heirs nor their estate for purchase money which he fails to show has been applied for their benefit. Jayne v. Boisgerard, 39 Miss. 70(j. lu Illinois, if application is made to a court of equity to set aside a sale, the relief will not be granted, unless the complainants do equity on their part, and refund so much of the purchase money as may have come into their possession. Chambers v. Jones, 72 111. 275. If the money paid by the purchaser has been applied to the extinguishment of liens on the property purchased, he is entitled to be subrogated to such liens. Kin- ney V. Knoebel, 51 111. 112. But where, in a probate sale, the money is paid to discharge debts not secured by any specific lien, the purchaser is without redress. Bishop v. O'Conner, 51 HI. 437. 1 Schaefer v. Causey, 8 :Mo. App. 142; s. c, 76 Mo. 3G5; Jones V. Manly, 58 Mo. 559; Evans v. Snyder, 64 Mo. 517; Sharky v. Bank- ston, 30 La. An. 891 ; Hatcher v. Briggs, 6 Org. 31 ; Sands v. Lynham, 27 Gratt. 291; s. €., 21 Am. Rep. 348; Snider v. Coleman, 72 Mo. 568; Davis v. Gaines, 104 U. S. 386; Barrelli v. Gauche, 24 La. An. 321; Gaines v. Kennedy, 53 Miss. 103 ; Ilill v. Billingsly, 53 Miss. Ill ; ^kCee V. Wallis, 57 Miss. 638; Jouct v. Mortimer, 29 La. An. 207; Davidson v. Davidson, 28 La. An. 2u9; Bland v. Bowel, 53 Ala. 152; Goodman v. Winter, 64 Ala. 410; liobertsou v. Bradford, 73 Ala. 116. § 55 VOID JUDICIAL SALES. § 54. Right to Subrogation, Wlien Purchaser is Guilty of Fraud. — It is a familiar principle, that whoever seeks equity must come with clean hands. Nearly all the cases in which relief has been granted to purchasers at void sales, have proceeded upon the express ground that the purchaser had acted in good faith, and in ignorance of the irregular- ity by which his title was impaired. Certainly in all such cases the purchaser's good faith ought to be regarded as material. In Pennsylvania, if a purchaser be guilty of a fraud, on account of which his purchase is adjudged void, he cannot reclaim his purchase money. He, in effect, for- feits it to those whom he sought to defraud, for they may retain the money and recover the estate. ^ In Mississippi, on the other hand, a fraudulent purchaser may assert the same equities as one who has acted in good faith .^ § 55. Purchaser's Right to the Aid of Equity in Sup- plying Omissions and Mistakes. — In every case where a purchaser has, in good faith, made and complied with his bid, his equities are of a very persuasive character, and usually appeal to our sense of justice more strongly than the equities of him who seeks to avoid the sale without placing the purchaser in statu quo. In many cases, it is apparent that the vice which renders the sale a nullity has not, in fact, operated to the detriment of him whose prop- erty was sold. All the parties may have supposed the pro- ceedings to be regular; the biddings may have been spirited ; the price realized may have equalled, or, perhaps, exceeded the value of the property ; the proceeds of the sale may have all been applied in the manner directed by law, and still some act or omission, unnoticed at the time, may render the purchaser's title utterly void at law. In such a case, our sense of justice revolts at the thought that he may 1 McCaskey v. Graff, 23 Pa. St. 321 ; s. c, 62 Am. Dec. 336; Gilbert v. Hoffman, 2 Watts, 66; s. c, 26 Am. Dec. 103; Jackson v. Sumnierville, 13 Pa. St. 359. 2 Grant v. Loyd, 12 S. & M. 191. VOID JUDICIAL SALES. § 55 be without redress. "VVe naturally expect that equity -vvill interpose to supply the omission, or that, on such terms as may be Just, it will enjoin the parties in interest from availing themselves of an error which clearly has not impaired their rights. But, on seeking relief, we are at once confronted with the reminder that, " in cases of defect- ive execution of powers, we are carefully to distinguish between powers which are created by private parties and those which are specially created by statute ; as, for instance, powers of tenants in tail to make leases. The latter are construed with more strictness, and, whatever formalities are required by the statute, must be punctually complied with, otherwise the defect cannot be helped, or, at least, may not, perhaps, be helped in equity, for courts of equity cannot dispense with the regulations prescribed by statute, at least where they constitute the apparent policy and object of the statute." ^ Perhaps this language, owing to the author's timidity of expression, may not necessarily dispose of the purchaser's claim for relief. The other authorities are more decisive, especially with regard to execution, judicial and probate sales. Thus, in a case decided by Judge Story, it appeared that an administrator's sale had been regularly licensed, and that all the require- ments of the statute had been respected, save that requir- ing a bond to be given and approved prior to the sale. The judge, in his opinion, said: *'Upon this case, coming out on the trial of the action at law (a writ of entry), the court held that the giving of the bond was, by law, an essential prerequisite to the sale; and, it not having been complied with, the sale was consequently valid and passed no title to the purchaser. It is now argued that however correct this doctrine may be at law, yet, in a court of equitj'', the omis- 1 Story's Eq. Jur. sec. 96. See lb., sec. 177; 1 Lead. Cas. in Eq., 4th Am. Ed. 379; Freeman on Executions, sec. 332; Tiernan v. Beani,2 01i. 4G.j; s. c, 15 Am. Dec. 557; Ware v. Johnson, 55 Mo. 500; Moreau v. Bruuham, 27 Mo. 351 ; McBr5-(lo v. Wilkinson, 29 Ala. G02. § 55 VOID JUDICIAL SALES. sion to give the bond, within a stipulated time, ought not to be held a fatal defect, but it should be treated as a mis- take, or inadvertence, or accident properly remediable in a court of equity. We do not think so. The mistake was a voluntary omission, or neglect of duty, and in no just sense an accident. But, if it were otherwise, it would be diflScult, in the present case, to sustain the argument. This is not the case of the defective execution of a power created by the testator himself, but of a power, created and regu- lated by statute. Now it is a well settled doctrine that, although courts of equity may relieve against the defective execution of a power created by a party, yet they cannot relieve against the defective execution of a power created by law, or dispense with any of the formalities required thereby for its due execution ; for, otherwise, the whole pol- icy of the legislative enactments might be overturned. There may, perhaps, be exceptions to this rule, but if there be the present case does not present any circumstances which ought to take it out of the general rule. Therefore, it seems to us that the non-compliance with the statute pre- requisites, in the present case, is equally fatal in equity as it is in law."^ In Illinois, certain heirs recovered a judgment in eject- ment for lands purchased at a guardian's sale. The defect in the purchaser's title was the omission of the guardian to report the proceedings under the order of sale. The pur- chaser then filed a bill to enjoin the execution of the judg- ment in ejectment, and for general relief. The supreme court decided that the bill must be dismissed. Caton, J., in delivering the opinion of the court, considered and ap- proved the views expressed by Judge Story in his Commen- taries, and also in Bright v. Boyd, both of which have been quoted in this section. He further said: "If chancery may interfere and dispense with one of the requirements of the statute it may with another, and thus in its unlimited dis- 1 Bright V. Boyd, 1 Story C. C. 4SG. VOID JUDICIAL SALES. § 55 crction it may fritter away the whole statute. It is seri- ously claimed that, because the purchaser purchased in good faith, and paid the full value of the property to the guardian of the owners, thereby an equity is raised in his favor and against them, which the court will enforce. Equities do not arise upon statutory acts without the volition of those against whom the equity is charged. Suppose this guard- ian, seeing that a case existed which would require the cir- cuit court to order a sale of the infant's estate, and, in ignorance of the law, but in all honesty, had sold the estate for its full value, and without an order of court, to a pur- chaser who, in good faith, supposed he was getting a good title, in that case the purchaser's equity would be just as strong as in the equity in this case ; and, should we now hold that the purchaser here acquired an equitable title, which should be enforced against the heir, it would be equally our duty, when the supposed case arises, to compel a conveyance to the purchaser, and then the entire statute would be gone. But the truth is, the purchaser at these statutory sales gets no imperfect equitable title Avhich may be perfected in chancery ; he gets the whole title which the infant had, or he gets no title whatever." ^ As equity will not supply an act omitted inadvertently or otherwise, so it will not correct a mere mistake, nor re- lieve the purchaser from the consequences of a mistake. Thus, if by mistake part of a tract intended to be embraced in an order of sale is omitted therefrom, or if a tract alto- eether different from the one intended, is inserted therein, and the error passes unnoticed until after the sale, equity cannot relieve the purchaser, nor give him the tract which he supposed he was buying, and which the administrator or other officer intended to sell.^ In Iowa, this rule seems to 1 Young V. Bowling, 15 111, 481, 485. 2 Dickey V. Beatty, 14 Oh. St. 389; Mahan v. Eeeve, 6 Blackf. 215; Ward V. Brewer, 19 111. 291 ; Rogers v. Abbott, 37 lud. 138; liunnels v. Kaylor, 95 Ind. 503; Reepferv. Force, SG lud. 81. § 55 VOID JUDICIAL SALES. be ignored. A judgment was entered in that State for the sale of a part of several lots of land. From the execution and other proceedings subsequent to judgment, one ot these lots was omitted. After the sale and delivery of the deed, the purchaser discovered the omission. By a proceeding in equity, he succeeded in setting aside the sale and the satis- faction of the judgment thereby produced, and obtained leave to issue a new execution in conformity with his judg- ment.^ This case, it will be seen, did not validate a void sale. It did, however, give relief, which ultimately proved as effectual ; for it gave the right to make a sale of prop- erty which had not been sold at all. Where a mistake, made in describing property in a mortgage, has been carried into the proceedings for foreclosure, so that a piece of land has been throughout improperly designated, the mortgagee is not without redress. He may, notwithstanding the judgment and sale, at least where he is the purchaser, maintain an action to reform the mortgage, and to foreclose it as reformed. The technical objection to this proceeding is, that the mortgage has already became merged in the judgment of foreclosure, and no longer exists for the purpose of being reformed. To this objection, this reply is generally made: "The reformed mortgage is not merged in any decree, for there is no decree for the sale of any premises described in the mortgage, as corrected and reformed. The decree may be satisfied at least pro tanto to the amount of the sale ; but the decree was based on the mistaken, and not the true, mortgage i the sale was of land not embraced in the true mortgage; no money or other valuable thing was ever re- ceived by plaintiff; the whole proceeding is infected by the original mistake, and is, therefore, baseless, unsubstantial and nugatory." ^ Relief will be granted against all persons claiming under the mortgagor, who do not stand in the ^ Snyder v. Ives, 42 la. 157. 2 Davenport v. Sovil, G Oh. St. 4G5; Conyers v. Mericles, 75 Ind. 443; State Bank v. Abbott, 20 Wis. 599; Blodgett v. Ilobart, 18 Vt. 414. VOID JUDICIAL SALES. § 55 position of purchasers or incumbrancers in good faith, for value, and without notice.^ Where some person other than the mortgagee has become the purchaser under the fore- closure, we presume his remedy must be by a suit seeking to be subroorated to the mortiijaffee's right to have the mort- gage reformed and foreclosed, according to the description intended by the parties. It seems certain that such pur- chaser cannot reform the morto;airo, the decree of forc- es o ' closure and sheriff's deed in one suit;^ and while he has equities of a very high character, they certainly do not entitle him to treat his purchase as a complete and binding acquisition of lands which have never been ordered sold, which no officer had any authority to sell, and which, there- fore, could never have induced that competition among intending bidders which would have attended a sale by a proper description and based on unquestionable authority. "While equity will not usually aid the defective execution of a statutory power, we judge that this rule cannot prevail where all the prerequisites prescribed by law have been observed, but the purchaser has either received no conve}'- ance or one which is not such as he is entitled to receive. In this case, the parties whose property was sold will be enjoined from availing themselves of the omission,^ or the officer will be compelled to perform his duty by executing a conveyance in proper form.* J Strang v. Beach, 11 Oh. St. 283. 2Miller V. Kolb, 47Ind. 220; Lewis v. Owen, 64 Ind. 446; Angle v. Spear, 66 Ind. 488. 3 Wortinan v. Skinner, 1 Beas. 358; De Riemer v. De Cantillou, 4 Johns. Ch. 85. '' ble of assenting to a sale of his re.il estate in such a man- ner as to bind himself. And no guardian is permitted, by the same law, to determine when the estate of his ward ouffht and when it ouffht not to be sold. In the contcm- plation of the law, the one has not sufficient discretion to judge of the propriety and expediency of the sale of his estate, and the other is not to be intrusted with the power of judging. Such being the general law of the land, it is presumed that the legislature would be unwilling to rest the justification of an act authorizing the sale of a minor's estate upon any assent which the guardian or the minor could give to the proceeding. " The question, then, is, as it seems lo us, can a ward be deprived of his inheritance, without his consent, by an act of the legislature, which is intended to apply to no other individual ? The fifteenth article in the bill of rights declares that, no subject shall be deprived of his property ' but by judgment of his peers or the law of the land.' Can an act of the legislature, intended to authorize one man to sell the land of another without his consent, be ' the law of the land,' within the meaning of the constitution? Can it be ' the law of the land ' in a free country? If the question proposed to us can be resolved into these questions, as it appears to us it may, we feel entirely confident that the representatives of the people of this State will agree with us in the opinion we feel ourselves bound to express on the question submitted to us: That the legislature cannot authorize the guardian of minors, by a special act or resolve, to make a valid conveyance of the real estate of his wards. "^ The supreme court of the State of Tennessee, in the year 183G, delivered an opinion in full accord with that of the judges of New Hampshire. In 1825, the legislature of the first named State passed an act authorizing the guardians of certain minors therein specified to sell certain lands in • 1 Opinion of the Judges, 4 N. H. 572. § 6G VOID JUDICIAL SALES. the best m.inner they could, and declaring that the assets to be produced by such sale should be assets for the payment of the debts of the ancestor of the minors. Under this act a sale was made. Some years afterwards a bill was brought by the minors against the grantee of the purchaser, to recover possession of the lands sold, and also for an account- ing for the rents and profits. The legislative sale was adjudged void, because it deprived the minors of their prop- erty without due process of law, and because the act pur- porting to authorize it was a usurpation of the authority of the judiciary.^ § C)G. The Constitutionality of Special Laws Author- izing Sales Sustained. — Notwithstanding the decisive stand taken by the courts of New Hampshire and Tennessee against special statutes authorizing sales by guardians, such statutes have been sustained in other States so frequently, and in such varying circumstances, that their constitution- ality is now almost free from doubt. In 1792, Asaph Rice, by a resolve of the general court of the commonwealth of Massachusetts, was authorized to sell and convey certain real estate, of which he was tenant by courtesy, and of which his children were seized in fee of the remainder expectant on the death of their father. A sale was made by virtue of the authority conferred by this resolve. After the death of the father, the children, by a writ of entry, sought to recover their inheritance. Parker, C. J., delivered the opinion of the court, in the course of which he said: " If the power by which the resolve authorizing the sale in this case was passed were of a judicial nature, it would be very clear that it could not have been exercised by the legisla- ture without violating an express provision of the constitu- tion. But it does not seem to us to be of this description of power; for it was not a case of a controversy between party and party: nor is there any decree or judgment 1 Jones V. Perry, 10 Yerg. 59; s. C, 30 Am. Dec. 430. VOID JUDICIAL SALES. § OG affecting the title to property. TIic only object of the authority granted by the legislature, was to transmute real into personal estate, for purposes beneficial to all who were interested therein. This is a power frequently exercised by the legislature of this State, since the adoption of the constitution, and by the legislatures of the province and of the colony while under the sovereignty of Great Britain, analogous to the power exercised by the British parliament, time out of mind. Indeed, it seems absolutely necessary for the interest of those who, by the general rules of law, are incapacitated from disposing of their property, that a power should exist somewhere to convert lands into money. For, otherwise, minors might suffer, although having prop- erty it not being in a condition to yield an income. This power must rest in the legislature of this commonwealth, that body being alone competent to act as the general guardian and protector of those who are disabled to act for themselves. It was undoubtedly w^ise to delegate the authority to other bodies, whose sessions are regular and constant, and whose structure may enable them more easily to understand the merits of the particular applications brouo-ht before him. But it does not follow that, because the power has been delegated by the legislature to courts of law, it is judicial in its character. For aught we see, the same authority might have been given to the selectmen of each town, or to the clerks or registers of the counties, it being a mere ministerial act, certainly requiring discretion, and sometimes knowledge of the law for its due exercise, but still partaking in no degree of the characteristic of judicial power. No one imagines that, under this general authority, the legislature could deprive a citizen of his estate, or impair any valuable contract in which he might be inter- ested. But there seems to be no reason to doubt that, upon his application, or the application of those who properly represent him, if disabled from acting himself, a beneficial chano-e of his estate, or a sale of it for purposes necessary ^ QQ VOID JUDICIAL SALES. and convenient for the lawful owner, is a just and proper subject for the exercise of that authority. It is, in fact, protecting him in his property, which the legislature is bound to do, and enabling him to derive subsistence, com- fort and education from property which might otherwise be wholly useless during that period of life when it might be most beneficially enjoyed."^ If it be conceded that an infant, lunatic or other person, incompetent to act for him- self, is in need of ready money for his sustenance, or for any other pressing necessity, of course the conversion of his estate into money would be authorized by any tribunal having competent authority. Legislative licenses author- izing a sale under such circumstances are generally sus- tained. ^ Nor is any necessity required to support the exercise of this legislative authority. It seems to be suffi- cient that the sale is one to which the incompetent person might, if sui juris, probably give his assent. Hence, a special statute may be supported if, without any apparent necessity, it sanctions the conversion of real into personal estate. This conversion is presumed to be beneficial to the minor, or, at least, not to be a destruction of his rights of property.^ Acts have been sustained which authorized guardians to convey lands sold by the ancestor of their wards ; * or which empowered the guardian of a lunatic to sell the lands of the latter to pay off an incumbrance thereon ;5 or which authorized guardians to convey real estate for the purpose of effecting a compromise with persons 1 Rice V. Parkman, 16 Mass. 329. 2 Stewart v. Griffith, 33 Mo. 23; Davidson v. Koehler, 7G Ind. 412; Iloyt V. Sprague, 103 U. S. 613. 3 Carroll v. Olnistead, 16 Oh. 251; Dorsey v. Gilbert, 11 G. & J. 87; Davis V. Ilelbig, 27 Md. A')2; Tlmrston v. Thurston, 6 R. I. 296; Snow- hill V. Snowhill, 3 N. J. Eq. 20; Brenham v. Davidson, 51 Cal. 352; S<;hier v. Mass. Gen'l Hospital, 3 Cush. 483; Norris v. Clymer, 2 Pa. St. 284 ; Clark v. Van Surlay, 15 Wend. 436. 4 Estep v. ITutclinian, 14 S. & R. 435. fi Davison v. Johonnot, 7 Met. 388; s. C, 41 Am. Dec. 448. VOID JUDICIAL SALES. § 67 claiming adversely to the minors. ^ The case last cited determined the constitutionality of an act passed by the legislature of Missouri in the year 1847. This act recited that certain adverse claims existed to a tract of land in the city of St. Louis; that the parties in interest had agreed upon a compromise, to accomplish which mutual deeds of quit-claim were essential ; and then the act authorized the guardians of designated minors to execute the conveyances necessary to consummate the compromise. Such a convey- ance was executed, and was upheld, though it was subse- quently ascertained that the minor's title was valid, and that of the adverse claimants unfounded — the court saying: "It is a question of power, and whilst it is conceded that the legislature has no power to transfer A's property to B, or to authorize anyone else to do so — supposing A and B to be adults and competent to transact their own affairs — the legislature may authorize the guardian, father or mother of a lunatic, infant or idiot, to transfer the estate of the minor, lunatic or idiot. It will be observed that the title of Pclagie, and her daughter Antoinette, was a disputed one. That the claimants under Mackay and Eutgers, really had no valid title, is not important. This was ascertained after the decision of this court, in the case of Norcum v. D'Oench, but it was a matter of conjecture before. The adults had an undoubted right to compromise. If the legislature has power to authorize third persons, guardians, fathers, moth- ers, etc., to convey the undisputed title of an infant, with- out regard to insuring the proceeds for the benefit of the infant, why should they be deprived of the right to author- ize the compromise of an unsettled claim? " ^ § G7. Acts Authorizing Sales by Administrators; Con- stitutionality of, Affirmed. — The cases cited in the preced- ing section affirmed the constitutionality of laws authorizing sales to be made by the guardians or parents of persons ' Thomas v. Pullis, 56 Mo. 217. 2 Ibid. § 67 VOID JUDICIAL SALES. incapable of acting for themselves. We shall now refer to cases involving the legislative delegation of a like authority to administrators. The weight of the authorities is to the effect that the power may be conferred on an administrator as well as on a parent or guardian.^ In considering the validity of a sale made under an act of this character, the supreme court of the United States said: "On principle, this process is sustainable. On the death of the ancestor, the land owned by him descends to his heirs. But how do they hold it? They hold it subject to the payment of the debts of the ancestor, in those States where it is liable to such debts. The heirs cannot alien the lands to the preju- dice of the creditors. In fact and in law they have no risht to the real estate of their ancestors, except that of possession, until the debts shall be paid. As it regards the question of power in the legislature, no objection is per- ceived to their subjecting the lands of the deceased to the payment of his debts, to the exclusion of his personal property. The legislature regulates descents and the con- veyance of real estate. To define the rights of debtor and creditor, is their common duty. The whole range of reme- dies lies within their province. They may authorize a guardian to convey the lands of an infant ; and, indeed, they may give capacity to the infant himself to convey them.' The idea that the lands of an infant which have descended to him, cannot be made responsible for the pay- ment of the debts of the ancestor, except through a decree of a court of chancery, is novel and unfounded. So far from this being the case, no doubt is entertained that the legislature of a State have the power to subject the lands of a deceased person to execution in the same manner as if 1 Doe V. Douglas, 8 Blackf. 10; s. c, 44 Am. Dec. 732; Kibby v. Chit- wood, 4 Mon . 91 ; s. c, 16 Am. Dec. 143; Williamson v. Williamson, 3 S. & M. 715, 745; s. c, 41 Am. Dec. 636; Gannett v. Leonard, 47 Mo. 205; Holman's Heirs V. Bank of Norfolk, 12 Ala. 369, 415; Herbert v. Herbert, Breese, 354; s. c, 12 Am. Dec. 192; Todd v. Flom-noy, 56 Ala. 99; Watson v. Gates, 58 Ala. 647; Tindal v. Drake, 60 Ala. 170. VOID JUDICIAL SALES. § 68 he were living. The mode in which this shall be done is a question of policy, and rests in the discretion of the legisla- ture. The law under which the lot in dispute was sold, decides no fact binding on creditors or heirs. If the administratrix and Brown have acted fraudulently in pro- curing the passage of this act, or in the sale under it, relief may be given on that ground. But the act does nothing more than provide a remedy, which is strictly within the power of the legislature."^ § 68. On Wliom Power of Sale may be Conferred by Special Acts. — It does not appear to be necessary that the person authorized by a special act of the legislature to sell the property of another should be an administrator or guardian by regular appointment of the courts of the State where the sale is to be made, nor, indeed, that he should have any official character \yhatever, nor that he should be a relative of the person for whom he is authorized to act. His authority rests on the special act, and not on his other relations with the incompetent person. The legislature of the State, wherein the land lies, may authorize its sale and conveyance by an administrator residing and appointed in another State or by her attorneys.- In Kentucky, an act was sustained which, after reciting that no one would admin- ister of the estate of a deceased person, appointed three commissioners with power to sell so much of such estate as would be necessary to pay his debts. -^ An act of the legis- lature of California, approved May 6, 18(31, purported to authorize Mary Ann Paty Daley, the mother and guardian of Francis "William Paty, a minor, to sell any or all of his real estate. In November, prior to the passage of this act, Mrs. Daley had been appointed guardian of her son by the probate judge of Plymouth county, in the State of ]\Iassa- 1 Watkins V. Holman, 16 Pet. 62. 2Holman's Heirs v. Bank of Norfolk, 12 Ala. 369, 415; Watkins v. Holman, 10 Pet. 25; Boon v. Bowers, 30 Miss. 24G. 3 Shehau's Heirs v. Barnett's Heirs, Mon. 593. § 68 VOID JUDICIAL SALES. chusetts. In May, 1856, she received a like appointment from the chief justice of the Hawaiian Islands. She was never appointed guardian in California. She made sales and conveyances under this act. These sales were declared void, not on the ground that the statute was unconstitu- tional, but because she had never been appointed guardian in California. *' The statute," said the court, "does not purport, in any part of it, to nominate Martha Ann Paty Daley guardian of the infant ; it simply assumes that she is, or — when the sale shall be made — will be guardian of his estate; exercising the ordinary functions, and charged with the ordinary responsibilities of guardians. The power was given to her in her capacity as guardian, and not as an indi- vidual; as she failed to secure an appointment as guardian, the attempted sale was void." ^ Frequently property is vested in trustees for the benefit of persons incapable of acting for themselves. When this is the case, the legisla- ture may authorize sales and conveyances to the same extent as when property is in the hands of administrators or guard- ians. In 1802, Mary Clark devised certain lands to Ben- jamin Moore, and two other persons, in trust: 1st, to receive the rents, issues and profits thereof, and pay the same to Thomas B. Clarke during his life; 2d, after the death of Thomas B. Clarke, to convey the premises to his lawful issue in fee; 3d, if he should not have lawful issue, then to convey the premises to Clement C. Moore. In 1814, the legislature, upon the petition of Thomas B. Clarke, and with the concurrence of the trustees named in the will, and of Moore, the contingent remainderman, passed an act authorizing the sale of a portion of the real estate for the pur]3ose of creating an inco^ne for the benefit and support of Thomas B. Clarke, his family and children; the princi- pal, after his death, to be paid according to the trusts in the will of Mary Clarke. In 1815, a further act was passed 1 Paty V. Smith, 50 Cal. 159; McNeil v. First Cong. Society, 4 W. C. Kep. 424. VOID JUDICIAL SALES. § 68 reciting that Mooro, the continf^ent remainderman, had con- voyed his interest to Thomas B. Clarke, and *' authorizing Clarke to do and perform every act in relation to the prop- erty, which the act of 1814 had directed might be performed by trustees to be appointed by the chancellor; but no sale was to be made by Clarke until he procured the assent of the chancellor; and when a sale was made, the proceeds were to be invested, and an annual account of the principal rendered, but the interest Clavke was authorized to apply to his own use and benefit^ and for the maintenance and educa- tion of his children.^ ^ Sales were made under these acts. The constitutionality of these acts was discussed in the hisfhest courts of the State and of the nation, and was always sustained. It was held: 1st, that it was competent for the legislature to change the trustees appointed by the will of Mrs. Clarke, and to vest their powers in Thomas B. Clarke; 2d, that it was equally within the power of the leg- islature to provide for the sale of the interest of the children of Clarke, in order that they might at once have the benefit of the estate for their better support and education during the most helpless period of their lives. ^ The litigation aris- ing under the will of Mrs. Clarke and these special acts of the legislature was carried on, in various courts and forms, during nearly half a century ; and has occasioned the most exhaustive discussions, both of the power of the legislatures, by special acts, to authorize the sale of the property of per- sons incapable of acting for themselves, and of the nature and effect of such sales when conducted under the super- vision of judicial authority.^ The power which is competent 1 Clarke v. Van Surlay, 15 Wend. 436 ; Leggett v. Hunter, 19 N". Y. 445 2 Clarke v. Van Surlay, 15 Wend. 436; Sinclair v. Jackson, 8 Cowen 543; Cochran v. Van Surlay, 20 Wend. 365; s. C, 32 Am. Dec. 570; Wil- liamson v. Berry, 8 How. (U. S.) 495; Towle v. Forney, 14 N. Y. 423 Williamson v. I. P. Congregation, 8 How. (U. S.) 505; Suydam v. Wil liamson, 24 How. (U. S.) 427; Williamson v. Ball, 8 How. (U. S.) 566 Williamson v. Suydam, 6 Wall. 723. (10) § 68 VOID JUDICIAL SALES. to chanf^e trustees and provide for the sale of property in which infants are interested, can deal with like efficiency with property given for the purposes of charity ; ^ or which is vested in trustees, or other persons, for the henefit of persons not in esse? In the case of Lincoln v. Alexander,^ the defendants sought to maintain their right to the possession of real property which had been distributed to plaintiffs by the probate court, by proving a sale to them by the plaintiff's mother, acting under the authority of a special statute directing her to make such sale, and to retain and use the proceeds for the maintenance of plaintiffs who were then minors. It appeared that, prior to the enactment of such statute, the stepfather of the minors had been appointed their guardian, and had assumed the management and taken possession of their estates. The plaintiffs recovered chiefly, we presume, on the ground that while there is a guardian fully competent to act, the legislature cannot, by special statute, divest him of his powers, or some portion thereof, and confer them on some other person, though there are intimations in the opinion that the sale of the property of minors cannot be authorized, in the absence of special cir- cumstances, not here shown to exist. The court said: " In Brenham v. Davidson,* the statute which was under review in that case, conferred the power of sale on the guardian of the minor, and the sale was to be approved by the probate court. The proceeds of the sale were to be reinvested for the benefit of the minor; and, moreover, no sale was to be made unless the mother of the minor, who held an undivided interest in the property, united in the sale and conveyance. Under these circumstances, we held that the case was one not provided for by the general law, » Matter of Trustees N. Y. P. E. Pub. School, 31 N. Y. 592. 2 Matter of Bull, 45 Barb. 334; Leggett v. Hunter, 19 jST. Y. 445. 3 52 Cal. 485; s. C, 28 Am. Eep. 639. < 51 Cal. 352. VOID JUDICIAL SALES. § 68 to authorize the real estate of the minor to bo converted into money by the guardian, if the probate court approves the sale. But, in the case at bar, the minors had a duly quali- fied and acting statutory guardian at the time of the passage of the special act, and the general law provided an appro- priate method by which the probate court could order a sale of the real estate of the minors by the guardian, if a sale was necessary for their education and support. The special act conferred the power of sale, not upon the guard- ian, but upon the mother of the minors, who was not their guardian, and had no interest in the property. Nor were any conditions imposed upon her, except that she should first execute a bond, to be approved by the probate judge, conditioned that the proceeds of the sale should be appro- priated to the support and education of the minors ; and that the sale should not be valid unless confirmed by the probate court previous to the execution of the deed. In treating of the rights and powers of statutory guardians of the estate of minors, Mr. Schouler, in his treatise on Domestic Relations (p. 471), says: * The recognized principle is, that such guardians have an authority coupled with an interest, not a bare authority ; ' and such we under- stand to be the well settled rule. The statute under con- sideration, attempts to take the estate of the minors out of the hands of their guardian, and to withdraw it from the control of the probate court, which, under the general law, had ample authority to order it be sold, and the proceeds to be applied to the support and education of the minors. It wholly ignores the rights and powers of the guardian, who had an authority coupled with an interest ; withdraws the estate from the jurisdiction and control of the probate court, which that court might rightfully exercise under the general law ; and attempts to substitute another person for the guardian, with authority to dispose of the estate abso- lutely, on no other condition than those already mentioned. No adjudicated case has been called to our attention, in § 69 VOID JUDICIAL. SALES. which the exercise of such a power by the legislature has been upheld. In his work on Constitutional Limitations, at page 98, Judge Cooley, in discussing legislation of this character, says: * The rule upon this subject, as we deduce it from the authorities, seems to be this : If the party standing in the position of trustee ^ applies for per- mission to make the sale, for a purpose apparently for the interest of the cestui que trust, and there are no adverse interests to be considered and adjudicated, the case is not one which requires judicial action ; but it is optional with the legislature to grant the writ by statute, or to refer the case to the courts for consideration, according as the one course or the other, or considerations of policy, may seem desirable.' But, in the present case, it does not appear that the application was made by a party * standing in the position of trustee,' and there were ' adverse interests to be considered and adjudicated,' to-wit: those of the guard- ian. Upon the face of the act there is nothing to show that the legislature was informed that a general guardian of the estates of these infants had actually been appointed. It is fairly to be presumed that they were ignorant of that fact. At all events, in view of the facts now found by the court below, the act cannot be permitted to operate, since, under the circumstances, it would be judicial and not legis- lative in its character, and for that reason unconstitutional." § 69. Of Special Acts Authorizing the Sale of Lands to Pay Debts. — As the estate of an ancestor descends to his heirs, subject to the right of the creditors of the former to compel such estate to contribute to the payment of their claims, a special act to authorize the sale of property for the payment of such claims seems to be one of the most defensible acts of special legislation; and so it is, if the validity and existence of the claims be conceded. But special acts to raise funds for the payment of debts have been more persistently and plausibly assailecl than acts for any other purpose short of ostensible confiscation. If such VOID JUDICIAL SALES. § 6P an act is so expressed as to preclude the parties in interest from disputing the validity of the debts, it is unquestionably void, because it is a usurpation of judicial authority. In 1827, the legislature of Illinois, by a special act, authorized John Lane to sell so much of the lands of the late Christo- pher Robinson, deceased, as should prove sufficient to raise the sum of $1,008.87, and interest and cost of sale. The proceeds of the sale were to be applied to the extinguish- ment of the claims of said Lane and one John Brown for moneys advanced and liabilities incurred on account of Robinson's estate. This act was held to be clearly beyond the authority of the legislature, because the existence of the indebtedness from Robinson's estate to Brown and Lane, and the consequent right of Brown and Lane to sat- isfaction out of the proceeds of the estate, could only be ascertained as the result of a judicial investigation, which the legislature was incompetent to conduct. The act was also thought to contravene the constitutional provision, that *' no freeman shall be disseized of his freehold, but by the judgment of his peers, or the law of the land." ^ The supreme court of Illinois has now taken a position far in advance of that assumed in the case just cited, and will not tolerate any special legislation authorizing the conveyance of real estate to pay debts, unless such debts have first been judicially established. In 1823, the legislature of that State authorized John Rice Jones, administrator of Thomas Brady, deceased, to sell and convey lands, the proceeds to be assets in the hands of the administrator, to be appropri- ated to the payment of the debts of the deceased, and the balance, if any, to be distributed between his children. Of this act, and a sale made by its authority, the court sai