T 1813 THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW P7 W- i .' i. W. v.*,— ^it/»'KM&s... :,.-r-'^.^ ^:f^:'^jiM^iisiM^&t^i^^^ A TEE ATI SE ON THE LAW OP JUDICIAL AND EXECUTION SALES. By DAYID KOEEE. OF TUB lO-WA BAB. CHICAGO : CALLAGIIAN AND COMrANY. 1S73. Entered according to Act of Congress, in the year 1873, by DAVID RORER, In the Office of the Lil)rarian of Congress, at Washington. T ■5 <4 u. D c b i c a t i ri Hon. SAMUEL F. MILLEK, LL. D., ASSOCIATE .TlTSTICr, or THE supui:mt: (.ouht of tuk united states, AS AN EXriiESSION" OP THAT KESrECX AND UEOAKD WUICU AKE SO EMINENTLY DUE TO lUS GKEAT PERSONAL ■W'Or.Tn AND LEGAL LEAKMN", THIS VOI-TJME IS DECIfATEJ), r.T THE AUTIIOll. 735902 PREFACE. Pkriiai'S few brandies of tlic law arc ot more interest to the public than those of Judicial, and of Execution, Sales ; more especially of real property. The policy of these States, unlike that of Enghiud, has evcr}^'herc encouraged the distribution of landed property, not only by rendering it liable to change of ownership in fee, by ordinary bargain and sale, but also by sales on writs of execution, and on decrees of the courts. Hence, much of the landed wealtli of the country is held or claimed under titles and sales made by coercion of law. It is witli the hope that tliis first cfibrt to bring these subjects into a system, may in some degree lighten the labors of his professional brethren, and aid them in that con-ect administration of justice which is the true object of all courts and lawyers, that this Yolume, which was originally begun for the author's o^\^l convenient use, is brought before the public. A desire to compass tlie several subjects in as few words as practicable, and thereby save the labor of tedious re- search, has diminished the size of the work at tlie cost, in reality, of more care and labor than would have been otlicrwise requiretl. If it shall meet from courts and lawyers a favorable VI r K E F A C K . reception, the labors of tlic autlior wUl thcrcLv l»e moit; than repaid. The author desires, in conchision, to exjiress his great obligation to the Editor, J. A. L. WurrriER, Esq., of the Chicago Bar, lor the careful and able manner in which he has revised it fov and seen it through, the press. David Koker. BuKr.ixGTON, Iowa, 1S73. CONTENTS. TAET FIEST. TIIK XATUKK OF JUDICIAL AND OF EXECUTION SAXES. CHAPTER I. THE NATURE OF JUDICIAL SALES. TACK. I. Of Judicial Sales in General 3 II. Judicial Sales in Proceedings, purely «;i, rem 17 III. Judicial Sales in Proceedings, partly in rem and partly inper- sonmn — - - *-i CHAPTER II. THE N.VTURE OF EXFXUTION SALES. T. They are Ministerial Sales - - 2.") II. The Officer Selling is, in law, the Attorney of the Execution Debtor 28 III. There is no Warranty. T\\g x\\\(i caveat emptor ii])])\ics 29 IV. They arc within the Statute of Frauds "'0 V. Ellect of Subsequent Reversal of Judgments or Quashing the Execution SI PART SECOND. JUDICIAL SALES OF EEAL rKOPEUTY. CHAPTER III. JUUISDICTIOX OF THE COURT ORDERIXG THE SALE. T. The Jurisdiction is Local "•' II. Jurisdiction is Power to Hear and Determine 3:5 III. There must be Jurisdiction of the Subject Matter and of the Particular Case r,r. IV. Title Passes by Operation of Law 4.2 vui coN'n:NTS. CHAPTER IV. THE SALK. TAGE. I. IJy Avhom to be Mude 44 II. How to be Made - 4.") III. Who may not Buy - 50 IV. Koticc of Sale: Adjournment --- 5'2 V. Confirmation •''•'' Vr. When Title Passes S-' VII. When not Aided in Equity ..- - ^'-^ VIII. KotAllectcd by Reversal of Decree GO IX. How AUectcd by Limitation - G2 X. How Aflected by Statute of Frauds - C;J XL When Valid by Lapse of Time 01 XII. How Enforced against the Purchaser GO XIII. How Carried into Effect in fiivor of the Purcliascr C7 XIV. Ratification by the Party Affected GS CHAPTER V. JUDICIAL SALES TO EXi'OKCE LIENS ON KKAL I'KOriCKTV. I. Municipal Liens for Street Improvements TO II. Mechanic's Liens T.j III. IMortgagc Liens T8 IV. Vendor's Liens >' CHAPTER A'l. SALE OF LANDS IX PKOBATE FOK PAYMENT OF DEBTS. I. AV'hat Lands may be Sold - 01 1 r. What Debts Lands may be Sold to Pay O-""* III. Who may Conduct the Sale '•^T IV. Application to Sell— how and when to be made 98 Y. Within what Time Sale to be Made and Perfected by Deed... 119 \l. Not after repeal of the Law or abolition of the Court allowing the Order 1-*^ VII. Of the Oath of the Person selling -- 121 VIII. Sales merely Irregular, or in Irregular Proceedings, not void. 122 IX. Confirmation— the Deed— its Approval 12o CHAPTER VII. GUAllDIAN'S SALES AND SALES IN rHOCEEDINCJS LOU rAKTITION. I. Guardian's Sales - 1-4 II. Sales in Proceedings for Partition !"'> CONTENTS. IX CHAPTER VIII. PAOE. rURCIIASF.S Ijy I'EKSOKS COXCEKXED I\ SEI.LIXG loi CIIArTEK IX. THE DEED. I. By Whom to be Maile... ^^^ II. To Whom to be Made. I'!'* III. Wlien to be Made - - I'tJJ IV. Its Kecitals and Descriptions - I'l'*' V. Wliat Passes by it - - I'lS CHAPTER X. SETTING ASIDE SA].E. I. Tlic Power to set aside Sales 152 II. For Inadequacy of Price - l^i III. For Irregularity 150 IV. For ]\Iistalce and Misapprehension - - l^S V. For Surprise l-''^^ VI. For Fraud - - l-'iO VII. For Reversal of the Decree of Sale 101 VIII. Re-Salc - - 1^>1 CHAPTER XI. i:stoi'im:i. — waukaxty^- caveat ENirTOu. I. Estoppel -- •■ IG-i II. AVarranty --- IC" III. Caveat Emptor --- - 1G8 CHAPTER XII. COLI.ATEIIAI. IMrEACIIMEXTS — VOID JUDICIAE SALES — llETUUX OF rURCHASE MOXEY. I. When Impeachable Collaterally - - - - 1 ~0 n. When not Impeachable Collaterally 1'<'0 HI. Void Judicial Sales.. 1"-^ IV. Return of Purchase i\Ioncy l^"? TAET TIIIED. JUDICIAL S.U.r.S OF I'ERSOKAL TROrEKlT COErORATI-: FRAN- CHISES rROrEKlT AND STOCKS. S COJ^TENTS. CHAPTER XIII. JUDICIAL BALES OF TERSONAL rKOrEUTY. TAGB. I. lu Admiralty 179 II. At Law 183 CHAPTER Xiy. JUDICIAL SAT.KS OF CORPORATE FRAXCHISES, PROPERTY A'SD STOCKS. 187 PAET FOURTH. EXECUTION SALES OF KEAL TKOrEKTY. CHAPTER XV. ■\VUAT I>-TEREST IX LANDS MAY RE SOLD, AND IN WHAT ORDER. I. IIow Liable to Sale 105 II. Dower Lands-, 199 III. Undivided Interests - - - 199 IV. Equitable Interests -- .- 200 V. The Homestead - 201 VI. On Avliat Order Sale to be made 20,"i CHAPTER XVI. THE WRIT — THE LEVY — AND NOTFCE OK SALE. I. The Writ of Execution 20S IL The Levy 210 IIL The Notice of Sale and Return 213 CHAPTER XVII. TUE SALE. I. By Whom to be Made 2ir. IL How to be Made 217 III. Who may not Buy 227 IV. Sales Irregular, or under Irregular Process or Judgments 227 V. Bales made after Death of Execution Defendant 235 VI. Sales when there is a Valuation Law 240 VII. Sales at which the Execution Creditor is Purchaser 240 VIII. Sales made after licturu Day of the Execution. 248 IX. Sales to Third Persons, bona fide purchasers 249 X. Void Execution Sales 249 CONTIINTS. XI CHAPTER XVIII. THE DEKI). PAGE. r. By Wliom to be Made... 261 II. To Whom to be Made 2G1 III. When to be Made - SG."* IV. What Passes by it.... 2G0 V. Its Recitals - 275 VI. Its Relation - -- 270 VII. Priority 277 VIII. Registration 283 IX. Collateral Impeachment - 284 X. How Far Execution Defendant is Estopped by the Deed 287 CHAPTER XIX. SETTIXG SALE .A.SIDE. I. Power of the Court to set Sale Aside 289 II. For Inadequacy of Price - 290 III. For Misconduct in Selling 293 IV. For M istake, Irregularity, and Fraud 298 V. For Reversal of the Judgment 301 VI. Return of the Purchase Money 302 CHAPTER XX. REDEMPTION. I. The Right of Redemption 304 II. By the Execution Debtor oOG III. By Judgment Creditors 308 IV. By Mortgage Creditors 309 V. How and When to be Redeemed 311 VI. Eflectof Redemption 314 PAET FIFTH. EXKCCTIOX SALES OF PERSOXAL morERTY. CHAPTER XXI. THE WRIT. T. The Writ ---- 317 II. Its Lien - 310 (II. AVhatmaybe Sold 322 XU CONTENTS. CHAPTER XXII. THE LEW. PAGE. I. "When to be Made 328 II. How to be Made 329 III. ItsEtlect 831 IV. When Void, or Discharged 331 V. When it will be Set Aside 332 VI. Constructive Levy 332 CHAPTER XXIII. THE SALE. I. By Whom to be Made 333 II. How to be Made 33.j III. ItsEfTect: What Passes by it 338 IV. Void, and Voidable Sales 341 V. Who may not Buy 341 VI. Wlien the Officer may Rc-scll 343 CHAPTER XXIV. KXECCTIOX S.VLES OF COlVrORATE FKAXCHISES, rKOI'EliTY AND STOCK.S. I. At Common Law 344 II. By Statute 347 IIL Effect of Sale.... 351 PART SIXTH. ExiQirrrox fkom salk — ArPLiavTioN of tkoceeds. CHAPTER XXV. EXEjrrTIOX PROM SALE. I. The Policy of the Law 353 K. Its Legal Effect 354 in. Waiver Thereof 3G3 CHAPTER XXVI. Arrr.TCATiox of the i'uoceed3 370 INDEX TO CASES CITED. A. PAOE. Abbe V. Ward 31, 208, 24!) Al)bcrcronibe v. Hall 287 Abbott V. Slieplierd 250 Abby V. Dewey 293 AbdUl V. Abdi'll 118 Adams v. Cowherd 89 V. Dyer 211, 281 r. Jeflrics 41,104,106,110 V. Riser 217, 219, 254 V. Smith 303 Addison v. Crow 219 Adlum V. Yard ICG Agricultural Bank v. Burr 348 V. Wilson 348 Aiken v. Brucn 205 Alabama Conference v. Price 85, 3G, lOa Alexander v. Maverick 102 V. Nelson 37, 171 Allen V. Allen 125' V. Gault 15, 21, 130, 149 «. McCalla 329 V. Parish 227, 228 i). Phunmer 374i V. Saunders 200 Amant v. Alexandria and Pitts- burgh Transportation Com- pany 187, 344 Ambler v. Warwick 183 Am. Ins. Co. v. Oakley 48, 154, 155, 158, 159, 161, 290 Amherst v. The Montour Iron Co. 189 Amis V. Smith 25, 245, 3G1, 3G2 Anderson v. Brown 2G1 v. Clark 227, 285 i;. Foulk 158, 159, l')8 Andrews v. Scotten 4, 9, 10, 57 Ainsworth v. Greenlee 335 Anson v. Anson 309, 310 Anthony x. Wessell 2G2, 264, 268 Applegate v. Russell Aimant v. Turnpike R. Co. 346 Armors. Cochrane 7, 135, 183 Armstrong v. Jackson 227, 234, 285 V. McCoy 275 V. Sledge 373 PAGE. Arnold v. Fuller 328, 331 V. Ru-gles 348 V. Smith 13, 26, 63 Asliby V. Abney 284 V. Cowcll 154 Astor V. Miller 87 Atkins V. Kinnon 148 Atkinson v. M. & C. R. R. Co. 187, 188, 344 Attorney General v. Day 63 Austin V. Tilden 339 Avant V. Reed 29 Averill v. Wilson 235 Aymar v. RofY 125 Ayres v. Baumgarten 4, 15, 55,''56, 116, 141, 143, 153 B. Babbit v. Doe 42, 101, 103, 117, 122, 17G, 242 Bacon v. Conn. 153 Bagliy V. Reeves 371 Bailey v. Greenlcaf 87 Bains v. Morris 146 Buird V. Corwin 130 Baker v. Bradsby 123, 143, 144 V. Kingsland 95 V. Lorillard 126 Baldwin v. Hale 106 Ball V. Sliell 208 Baihmce v. Loomis 223, 294, 300 Bancroft v. Andrews 03 Bank v. Johnson 41 of Alexandria v. Taylor 154, 155 of Hamilton t\ Dudley 42, 43, 120, 121, 174 of Missouri ». Wells 232 of St. Mary «. St. John 351 of Tennessee t). Beatv 251 of U. S. V. Bank of Wash- ington 30 '0. Planters' Bank 34!» V. Tvler 276 V. Winston 202, 356 of Vertrennes v. Warren 312 Banker v. Caldwell 325, 326 XIV IXDEX TO CASES CITED. Banks c. Ammon •». Bales V. Evans Barber v Harris Barker v. Rollins Barklcy v. Screven Barnard v. Stevens Barnes v. Hayncs Barney v. j\IcCarfy t\ INIyers 1). Patterson Barrin,2jer ■». Burke TACTS. KiO 224 yio 273 357 285 210, 248 320 321 83, 205, 20G 30, 248 313 Barrintrton r. Alexander 134, 137 Barron^t'. ^Vest 180 Base V. Abell 134 Bates T. Kuddick 83, 205, 200, 309 V. Secley 200 Bay 7). Gllleland 293 Baxter ■». Brad))nry 104 Beaureffard v. !Ne^v Orleans 10, 17, 33, 37, 38, 39, 52, G5, 04, 100, 102, 104, 127, 179, 180 Beekman v. Lansing 329 Beelert;. Bnllett 235 Beers i\ Ilangliton 3G1 Beeson v. Beeson 51, 138 Bell V. Brown 81 T. Evans 279 Belmont v. Cowan SO Benedict ■». Burn el 355 V. ButterfielJ 51 V. Oilman 310 Bennett «. Duvcrgis 198 «. OAvens 174 Benningfield v. Eccd 174 Benson v. Cilley 39, 104 Benton v. AVoocl 225 Benz t\ nines 57, 293 Bergin v. McFarland 91, 97, 103, 149, 195 Bernal v. Gliem 200 Berry v. Grilletli • 218 V. Kelly 325 Bethel v. Bethel 49 V. Sharp 291, 293 Bettisen v. Budd 275 Bevan d. Ilayden 350 Bickley v. Blddle 109 Bii^'clow ». Wilson 311 Bi-rley v. Risher 45, 219, 330, 343 Billington i\ Forbs 159, 103 Bingham v. Maxey 107, 108, 109, 177 Binns v. Williams 301 Birdenbecker v. Lowell 372 liirdseye v. Kay 324, 340 Bisby V. Hall 190 Bishop V. Hampton 175, 170 Bizzle V. Hardaway 374 r.\nK. Black V. Brennan 183, 180 ■B. Meek 110 Blackmore v. Barker 00 Blair v. Marsh 89, 271, 338 Blain v. Stewart 201 Blake v. Davis 33 Blakely v. Abert 44, 47 Blanchard v. Dedham 349 Blane v. Carter 61 Blanton v. IVLarrow 833 Bleeker v. Bond 240 Blight?:. Tobin 290 Bliss V. Clark 201, 202, 203, 204, 205 V. Wilson 117, 177 Blood 1). Hayman 138, 157 Bloom V. Burdick 41, 42 Blossom ■». R. R. Co. 4, 44, 49, 53, 50, 141, 143, 145 Blount ®. Davis 204 Blyer v. Mulholland 80 BcSfils v. Fisher 15, 19 Bohart ■». Atkinson 107 Boston, Concord & Montreal R. 11. Co. V. Gilmorc 346 Bond V. Smith 95 Bondurant v. Ov/ens 271 Boraseu «. Wells 100 Borden v. The State 39, 104 Bostwitch V. Atkins 05 Boswell V. Sharji 37, 174 Bosworth V. Farcuholtz 209 Bozza V. Rowe 7, G4, 183 Bracket v. The Hercules 181 Bradbury v. Reed 123 Bradtord v. Limpus 293 Bradley v. R. R. Co. 78, 79, 80, 189, 190 V. O'Donnell 270 V. Snyder 3 Bradstreet v. Ins. Co. 180, 1«4 Brastield v. Whilaker 211, 321 Brasher v. Cortland GO Breckenridgc v. Dawson 107, 108 V. Holland 137 Brinkerhoff v. Thalhimcr 87 Bright v. Boyd 60 Briscoe v. York 307 Britton v. Johnson 134 Brobst V. Brock 83, 84, 151 Brodixman v. Wilcut 354 Brogiiill V. Lash _ 255 Bronson v. Kenzie 80, 83, 221, 304, 338, 354 Brooks V. Ratcliff 205 V. Rooney 213, 22D Brown v. Bedwiue 148 V. Edsou 33 v. Foster 94 INDKX TO CASES CITIO). XV Erowu V. Frost V. Gilinor V. Kirkman V. La 110 V. McKiij- 2o(j, V. Ec'dvvyne ■V. Parker V. Stewart V. Wyncoop Browne v. Smiley Brownson v. Hull Bruce v. Vogle Brush V. Ware Bryan v. Manning: Buchanan v. 'J'lacy Buck V. Colbatli Bullitt V. Winston Bunker ?;. Rand Burton v. Emerson 228, 240, Bunts V. Cole Burk V. Bank of Tennessee Burr V. Beers Burroughs v. Wright Burton v. Emerson Bush V. Cooper V. J^Iarshall Bussey v. Hardin 11 Buchtcr V. Dew 7o, Butler V. Emmet V. Haynes 209, 210, Butterfield v. AValsh 228, 2o0, 240, 241, 247, Bowdoin v. Jordan Bowen v. Bel! Boyee v. Smith Boj-d V. Ellis V. Longworth Bouuton y. Winslow Bouton V. Lord Bouts V. Cole C. PAGE. 157, IGl 158 85 329 250, 297 52, 53 237, 239 87 75 304 200 281 138 128, 148 275 3G1 329 222 241, 285 200 200 80 330 338 104, 105 100 , 55, 100 370, 374 08 237 239 249, 278 210 228, 284 325 290, 293 29 278 211 291 Carlisle v. Carlisle Carnan v. Turner Carpenter v. Doe Carr v. Hunt v. Wallace Carter v. Read V. Spencer V. Walker TAfJE. 219, 294 95, 96 228, 233 201, 294 164 250 205 148, 149 t). Wauffh 35, 30, 102,111,110 Cartney v. Reed 328, 331 Carver v. Jackson 104 C/'arwick v. Myers 335 Cary v. Bright 329 Case V. Denmorc 304 Cass V. Littleton 331 Cassamajor v. Stodc 153 Cassilly v. Rhodes 132, 150, 207 Catherwood v. Gapcte 245, 301 Catlin V. Jackson 229, 268 Cattell V. Gilbert 293, 294 Caullman v. Sayrc 48 Caveuder v. Smith 190, 198, 201, 227, 235 no Cawthorn v. ]\IcCraw Cazet V. Hubble Chadbouruc v. Mason V. Radcliff Chamberlain v. Lyle Chambers v. Thomas 210, Chapman v. Harnood Charless v. Lamberson Cheatham «. Brien Cherry ®. Woodlard Cliesapeake Bank v. McClel land Chick V. Willetts Ciiild ®. Hurst Chiklers v. Hart Childress v. Allen V. Hurst 50, 152 Childs ». Bernard 25£ V. ]\IcCliesney 237, 234, 235, 240, 248, 285 329 GG 210 11« 304 • )o, o34 30, 219 355 213 275 150 54 141 143 198 103 341 Cad runs v. Jackson 19 C! liiiman v. Coats 279 Caines v. Clark 210 Chittenden v. Rogers 370 Camden v. Loran 29 Cliristy v. Dyer 355 Campan v. Gillett 120, 174, 313 CI lurcli V. Ins. Co. 134, 138 Campbell v. Ayres 355 Ci pperly v. Rhodes 203 V. Blown 177, 178 C ty of San Francisco v. Pixley 295 V. Johnson 7, 55, 59 CI apworth v. Dressier 86 V. Knight 101, 131 CI ark V. Bell 60 «. Leonard 323 V. Blacker 103 V. Roger 330 V. Bojde 73 Canal Co. v. Boiiham 187, 344 V. Hoglo 119 120 V. Gordon 71, 73, 74 V. Holmes 103 Carey v. Dennis 90 V. Lockwood 284 V. Fulsom 205 V. Pinncy 302 V. Gregg 373 V. Potter 854 XVI IXDEX TO CASES CITED, PAGE. Clark V. Tliompson lOo, IIG, 170, 200 V. Watson 250, 29? Clemens v. Ranncls 259 V. lieynolds 250, 251- Clever v. Applejjatc 329 Clowes V. Dickenson 81, 82, 205, 225 Coatcs V. Loftus 100 Cobb V. Wood 08 Cochran v. Van Surley 17G Cockercll ■o. AVynn ' 284 Cockey v. Cole 55, 174 Cockney v. Milne 27G Coc V. Columbus 187 V. Columbus & C. R. K. Co. 344, 348 Coffee V. Coffee 9, 152, IGl, 183 Cohen V. Wagner 57, 154, 155, 157, 158 Cole ■». Gill 355 Coleman v. Bank of Hamburg 290 V. Lewis 2G9 T. Trabine 30 Collier v. Whipple 48, 53, 157, 102 V. Stonbaugh 240, 323, 341 Collins V. Farneswortli 101 Colvin V. Wood 230 Col well V. Carper 359 Combs V. Jordan 349 Commonwealth v. Fisher 209 -v. Tenth ]\[ass. Turnpike Co. 351 Comstock r. Crawford 101, 102, 111, 112, 122 28, v. Purple Concord Bank v. Greg Conger v. Converse Conrad v. Atlantic Ins. Co V. Harrison Conway v. Nolte Cook f. Dillon V. Fry V. Jenkins Cooper V. Galbraith '^ V. Bobinson V. Sunderland 30,38,62, 100, 101, 103, 121, 122, 170, 173, 175 21 290 159 2;il 279 83 343 32G 122 299 213 28, 228, 287 147 Corbel 1 v. Zoluff Coriel v. Hani Corlies v. Stafbridge Corwin v. IMerritt V. Benham Corning v. Hoover Corwitii V. State Bank Cothran v. McCoy Cotton V. Mar.sh Coutliway t. Berghaus Coviell c. Ham 98, 144 338 341 42 109 331 301 92 325 308, 313 240, 241 108 24- Covington v. Ingram 37, 171 Draw Bridge Co. v. Shepherd 192, 193, 194 Cox V. Joiner 228, 235, 285 V. Nelson 30 Coyne v Souther 29, 282 Craddock v. Riddlesbargcr 322, 324 Cradlebaugh v. Pritchett 131 Craig V. Vance 275 Cralie v. Meem 101, 115 Cramer v. Piedman 90, 310 Crane v. Hardy 228 Crawford v. Lockwood 303 Creighton v. Paine 07, 80 Creps V. Baird 29, 109 Cresson ^'. Stout 335, 337 Crippin v. Crippin 101 Crittenden v. Leitensdorfcr 209 Crooks V. Douglass 281 Crosby v. Elkader Lodge 201, 314, 315 V. N. W. Mauf-. Co. 75, 84, 88, 373 Crouch V. Eveleth 97, 99 Crondson v. Leonard 179, 180 Cruse V. Steffen 227 Crowley v. McConkey 106 Cummins v. Long 201, 202, 321, 35G Cunningham v. Felkner 227, 23G, 295 1). Schley 57 Curtis V. Ballaiih " 158 ■V. Millard 314, 315 v. Norton 27, 202 T. O'Brien 303 V. Root 331 1;. Tvlcr 80 Cutts r. Hoskins 122, 172 D. Dak in v. Hudson Daniel v. ]\IcHenry Darson v. Sheplierd Darwin «. Ilatlield Dater v. Troy Davenport v. Smith 11, 35, David V. Lent Davidson v. McMurtry 219, V. Waldeu ' 329; Davis «. Abbott V. Brandon V. Campbell 243. 289, V. He) big V. Maynard V. McVickers ■». Simpson V. Stewart 57, 42 292 373 149 301 102 258 254 330 218 144 297 171 347 221 134 143 INDFI?: TO CASES CITED. XVll TACT.. Davis V. Waruack 284 Davoe v. Fanninij; 50, 51, 130, 184, 135, 130, 137, 159, 160 Day V. Graham 153, 218, 221 Deadrick v. Smith 145, 152, 154, lljl V. Watkins GO, 145 Dean v. Frazier 29 V. Morris 29 DeCaters v. DcChamont 134 Dclovio i\ Boit 181 Den V. Stcelman 197 V. Kickman 249, 278 Dene,!i;re v. Haun 357 Dennis v. McCagc; 50, 134 Denny v. Hamilton 348, 349 Denton v. Livingston 348 Deposit Bank v. Berry 330, 331 Dequindre v. Williams 37, 171 Dovoe V Elliott 328 Dew 11. Despeaux 284 V. Farley 284 V. Moore 284 V. Wright 284 Dickinson ■?;. Bur2;e 296 V. Talbot 50 V. Thompson 200 Dickerman v. Burgess 221 Dickey v. Beaty 60 Dilkey v. Dickenson 373 Dills V. Jasper 142 Dingledine v. Horsliman 75 373 Dcbson v. Kacey 134 Dodge V. Maclv 319, 320 321 Doc r. Anderson 42, 102, 117 118 170 V. Bowen 42, 117, 176 V. Collins 242 304 338 V. Crocker 240 V. Hamilton 237 «. Harvey 117 174 V. Hoi man 241 V. Prarratt 272 V. Williams 148 d. .W'oody 200 Donaliue v. iVLcXulty 270 286 Doolittle V. Bryan 216 Dorsey v. Dorsey 134 V. Gassaway 165 Dougherty v. Hughes 311 V. Linthicum 269 293 Dowling V. Duke 123 Downing v. Palmetecr 22 Draine v. Smelser 289 292 Drake v. Collins 240 Draper v. Bryson 174, 213, 228, 229, 284 Drinkwater v. Drinkwater 42, 43, 91, 90, 101 Driver v. Spence Drury v. Cross Dubois V. Dubois V. McLean 95, 90, Dubuque v. Wootmi Duncan v. American Life Co. V. Forsyth e V. Saunders Dunn V. Frazier V. Meri'iweathcr 227, Durham v. Eaton 208 Duval V. Tlie Bank V. Losky I'. Speed Dygert v. Fletts E. 120, Ins. PAOE. 275 189 119 175 79 ili 283 259 290 209, 303 228, 285 237, 285 93 93 149 300 Eddy V. Knapp Eleriuger t). Moriarty 265, Elliott' i;. Piersol 37, 01, 103, 170, Ellis V. Craig V. Diddy V. Smith Elston V. Robinson Eltzroth v. Webster 364, Emery v. Vroman 129, Engleman v. Clark Epley r. Witherow Erb V. Erb 56, 59, Eschbach v. Pitts Erwin ». Dundas 195,209, 237, 250, 260, 280, 318, 319, Estes V. Booth V. Ashley 241, V. Davis 'V. Dendy V. Langdon 241, V. JNIatthewson V. McGIasson 247, 278, V. Monett V. Spurgin 57 V. Wilder Ewing V. Higby 109, 122, V. Hollistcr Executors of Stead v. Course F. Fairchild v. Chastellcux Falkner v. Davis Faris v. Banton Farmers' Bank v. Clarke Farran v. Dean Farrell v. Palmer Farrington v. King Field V. Arrowsmith 200, 95 244 286 171 87 167 283 355 305 130 29 164 150 71 320 30 242 213 107 2!)3 94 279 348 ,05 197 145 109 48 273 136 226 , 54 ,96 305 100 134 XVHl INDEX TO CASES CITED. Fielil r.. Dorris ■i\ Goldsby V. ]Milbuni Ficro 0. Bolts Finch D. Maiiln Fi.sliback v. Laue Fitch v. jVIiller V. AVitbcck Fithiiin 7\ Monl V. Parker 134, IGO, 227 Harrison v. Doe 246 v. Harrison 9, 10, 4, 57, 168 V. Kramer 201, 284 ■p. Maxwell 275 ■V. llapp 241 t\ Sipp 220, 245, 250 i Harshev v. Blackmare 170, 249 Hart-y.^Blight 154 V. Jevvett 85, 111 V. Hector 30, 250 Harlh v. Gibbs 29 Hartman v. Clarke 89, 90 Hartwell v. Bissell 323 Haryc}' v. Spalding 307 Hastings v. Johnson 255 Hathaway v. Valentine 101 Havely v. Loury 329 Hawkins v. Hawkins 102, 117, 118, 170 T. Miller 302 Ilayden v. Birney 324 V. Dunlap 235, 240, 289, 293, 298 Haynes r. Baker 200 V. Beach 148 (1. Breaux 343 r. Meeks 58,91,307,368 Hays V. Hate 141 T. Thode 314 XX INDEX TO CASES CITED. PARE. 810 165 009, 310 24'J, 278 353, 354, 355 2G8 Haywood v. Jiulson V. ]\Iuugei- Heard v. Hall Heimstrcet v. Winnie Heister v. Fortncr Helfensteiu v. Cave HoltVich V. Weaver Helm V. Duilcy T. Darby Hemstead v. liead Henderson v. Harrodetal V. Herotl 50, 57, G8, 143 Hendrickson v. U. K. Co. 284 Henry v. Fersjuson T. Hyde V. Keys V. Mitchell Herdraan v. Short Herod r. Bartley Herrick v. Graves 30, 22 Hershey v. Hershcy Hess V. Voss Ilewson V. Dcygert Heyer v. Deaves Hickenbotham v. Blacldedse lH<^lit V. Steamboat Henrietta "^ 179, 185 fliidretli v. Thompson 210, 237, 318 - — ■" ' 244 198 296 335 153 285 198 303 254 IIG 335, 330 230, 250, 297 90 130, 131 218, 219, 208 44,80 132 — >i, ^iO. Hill V. Baker v. Harris Hilton V. Williams Hinds 1'. Scott Hobson V. Doe Hoirau r. Lucas ■I). White Hof!:s V. WMlkins Hoyt V. Plolcomb Hold en v. Plnney Holenian v. Holeman Holiday v. Franklin Bank Holland v. Jones HoUoway v. Kichardson Holmes v. Beal V. Holmes t\ Kenibeu Homer v. Doe Homes v. Duncaster Hoosier v. Hall Hoolen v. H inkle lioppini^ V. Burnam Horbacii v. Riley Horn f. Tuft Horton v. Horton Hoskins v. Wilson Houi;li V. Canby House V. Sh'.nvaltcr Houts V. Showalter 330 15 284, 285 240 ;01, 371 How v. Starkweather 347, Howard v. Bugbee 304, V. Moore 119, Howell V. Baker 1). McCrecry Howett V. Selby 75, Hoy V. Allen 278, Hubbard i). Barnes 227, 223, 23G, 285, 301, 372 94 200 159 355 321 85, 280 75 42 02, 03 40, 47 ISO 117 283 293 211, 213, 227 270, 271 355 103 138, 157 118 150 132, 133, 207 348 305 140 290 100 373 279 IHibblc V. Eroadwell V. Vaughn Huberts. McCiiUum Huddlestone v. Garrett 210, Hudson V. Tibbetts Huger V. Huger Hutc,a'i»s V. Ketchum Husrlies v. Streeter 247, 29G, 203, 312, Hull V. Carnby Hultz V. Hackley 282, Hulupli V. Beescn Humphry v. Beeson V. Browne s. Humphreys Hundley v. Lyons Hunt V. Bullock 326, v. Greg2; V. Loucks 'V. Norton Hunter v. Hunter V. Stephensop V. Watson Huntingdon v. Grantland Hurd zj^Eaton 205, 207, Hushmacker «. Harris' Admr4o, Hurst V. Lithgrow V. StuU 4, 7, Hut ell ens v. Doe 31, 24G, 247, 250 Hutchius V. Barnett 242, 304, ■j;. Moses Hutchinson v. Moses Hutton V. Williams 64 Hyatt v. Spearman Hyde v. Farmer I. 286 303 279 284 250 125 275 339 323 283 284 275 330 196 87 34G 338 318 158 197 253 268 198 225 217 196 183 297 338 293 291 130 355 100 Iddings V. Bruen Iglehart v. Armiger 4, 7, Hveliieimer v. Chapman HliuM-worth v. Miltenberger Indiana Kly. Co. i\ Bradley Ingals V. Lord Ins. Co. V. Halleck 56, 210, V. Lcdyard 249, V. Miller 83, 205, Irwin r. Brian v. Jcffers 60, 134 183 91 343 243 323 250 278 22^ 210 161 INDEX TO CASK CITED. XXI ■V. I5artlett 227, 284 V. ]5iitoinan 197 «. I5()\ven 84 V. Urowu lol V. Bu.sli 2G1, 2G2, 287 V. Caldwell 341 X. Chamberlain 24!), 278, 283 «. Collins 3;54, o35, o42 •0. Davenport 74 V. Delaney 227 V. Hall 2(18 V. Jones 275 «. Luce 8o, 280 V. McConnell 27o V. Newton 217, 293 V. Post 283 V. Pratt 27.") V. Randall 2G1 V. Koberls 275 •23. Robinson 37, 98, 99, 119, 174 V. Rosevelt 227, 235, 2S4, 285, 294 V. Streeter 275 v. Terry 283 ©.Todd 128 V. Van Ualfsen 138 V. Vanderlieyden 285 V. Warren 141 t\ Williams 198,200 V. Youns; 213, 214 James v. Ilubbaixl 81 V. Kusiek 99 V. Plank road Co. 346, 347 v. Pontiac Plankroad Co. 344, 348 tj. Railroad Co. 191 ■V. Strattou 324 V. Tayhn- 147 Janncy v. Speddcn 8() January ?>. BradAjrd 200 Jarvis v. Kusiek 97 Jenners v. Uoe 223 Jennings v. Jenkins 93, 107 V. Kee (ii) Job V. O'Brien 200 Johns V. Johns 348 Johnson v. Adair 319 VAr.r.. TAOE. Irwin V. Sloan 373 Job ison V. Adleman 270 Isaacs V. Gearhart 219 V. Baker 258, 31G Iverson «. Loberi^ 'D. Bantock 203 GO, 122, 12G, IGl, 171, 180 V. Candago 311 V. Collins 91, 92, 101 J. V. Cranford 322 V. Crawley 2G8 Jackson v. Anderson 253, 327, 341 V. Harmoii 311 V. Babeock 35 V. Hart 200 V. Johnson 35, IIG, 159 V. Lynch 318 V. McLean 320 V. Stevens 250 Jones V. Ilallopelter 149 V. Peasley 321 V. R. R. Co. 289 V. Steamboat Commerce 184, 185, 18G V. Swan . 74, 77 V. Thomas 150, 2G7 Jourdan v. Bradshaw 275 Julian v. Beal 303 Kauftman v. Walker 150 Keeling v. Heard 24G, 308, 31G Kellosrg V. Grilhn 208 Kelly y. Abbott 307 y. Baker 358 '0. Chapman 70 V. Green 219, 275 Kemper v. Bazey 279 Ken/.ie v. Bron.son 240 Kershaw v. Thompson 15, 22, 23, G7, 80, 81 Kholert'. Kholer 149 Knight i'. Applegate 25J Kneetles v. Newcomb 353, 3G3, 3G5 Knowles v. Rablin 310, 311 Koehler v. Ball 55. 5G, 58, 59, 141, 143 Kruse v. Steffens 50, 134 Kidder v. Orcutt 197 Kilby V. Ilairiiin 213 Kilgore v. Peden 28, 30, 220 Kilgourc. Crawlbrd 131 Kiilam v. Janson 249 Kimball v. Cook 70 King V. Cushman 254, 335 V. Goodwin 253 V. Gunnison G3, G4, 107 t\ Kent 18 V. Masterton 143, 155 V. Piatt 48, 152, 154, 157, 158, 159, 101, 102 V. Tharp 290 V. Whitely 80 XXll IXDEX OF CASES CITED. Kimmcl t\ Stores Kiiiucy V. Knocbic r. Noble Kirk V. Yonbcrs: Kiser v. Iiudclick Kizer «. Sawyer TAGY.. •sr,o 227, 228, 285 218 27G, 277 218 l'J7 228 228! Lainq- v. Cnnningliam La Farce Ins Co. v. Ik'll Laight i). Pell 152, Lamb v. Buckmellcr V. Johnson r. Shays 201, 202, 35G, Lamkin v. Crawford Lamotlic v. Lcppott Land v. Hopkins Landers «. Brant 197, 198, 227 Landes v. Perkins Landrnm v. Hatcher Landsdown v. Elderlon Lane v. Fox V. Tiiompson 94, Lane: V. Waring Langwortliy «.~ Baker 99, Lansing v. Goelet V. McPiierson V. Qiiackenbiish Laport V. Todd Lapsley v. Brash cars Larned v. Allen Larsliley v. Cassell 292, Lathrop v. Brown 210, Latimer v. Union Pacific R. R. Co. Latrobc v. Herbert 57, Lattinger v. R. R. Co. Lauglilin v. Schuyler Laughman v. Thompson Loutz v. Worthington 53, 54, Laurence t\ Speed Lavalle v. Rowley 252, Lavertv v. Hall Law i-.'Smith 240, Lawrence v. Carnell V. Speed 213, Laws V. Thompson Lawson v. Jordan 371, Lazarus v. Bryson Leach v. Pine Leaton t. Stade Lee V. Gardner Lcedon v. Plymouth R. R. Co. 344, Lefevre v. Laraway 154, 158, IGl, Lemon v. Craddock 205 158 300 323 357 343 172 197 284 284 280 GO 240 105 29 100 80 1C3 r,03 2GG 338 251 293 281 259 15G 48 G5 8;]G 285 341 310 242 83 228 303 372 227 329 GG 09 346 1G3 2G4 Leonard v Taylor Leveiett ■?;. Armstrong Levi ®. Sliockley Levy V. Thompson Lewis V. Lewis V. Palmer V. Smith V. Thompson Lex V. Patten Lieby v. Parks Lieper v. Thompson Lightfoot 1). Lewis Li Hard v. Casey Lisliy V. Gardner 5C, 59, 141, Littell V. Scrantou Little v. Luntz 154, v. Lennctt52,101,121, Littler v. People Livingstone v. Nceley Locker v. Coleman Lockwood v. Mills Logsdon v. Spivey Long V. Burnett 36, 52, 97, 99, Long Dock Co. v. Mallory Loom is V. Riley Love V. Cherry V. Jones Lovel V. Powell 227, Lowry v. Coulter Loyd V. Maloue Lucas v. Doe Ludlow 1). Johnson V. Wade Lynch v. Baxter IS, Lyon V. McGufley Lytle D. Ciu. Manf. Co. M. ]^racon & West. R. R. Co. v. ker Macy V. Raymond 119, JVIcAflec V. Harris ]\IcBain v. McBain 27, JIcBride v. Longworth jMcBroom v. Rives ]\IcBurnie v. Overstrect IMcCall V. Elliott McCandish v. Kecne McCants v. Bee McCloud V. Hubbard j\[cClintock v. Graham McClure v. Englehart 264, 265, t\ Sutton McCollum v. LIubbert McConihe v. Sawyer PACE. 159 05 329 197, 198 113 253, 341 29, 276 201 350 GO 250 18 305, 306 14G, 150 349 155, 15G 123, 174 309 138 224 134, 135 329 100, 174 18G 131, 275 227 270, 271 284 285 329 157 159 237 104 105 121 174 1G7 1G8 88 374 373 Par- 192, 345 141, 146 258 2GG. 301 G2, 161 O lb 329 179 91, 101 134 322 o31 27G, 277 331 296 199 IXDEX TO CASES CTTKI). XXlll PAGE. McCoiHiell V. Brown 195, S27 V. Gibson 50, 134, 227 r. Smilli 23 McCormack v. Sullivan 33, lOG V. AIcMurtrie 2G8, 27G McCough V. Wellington 343 McCoy V. Morrow 1(5 McCracken v. Haywood 240, 338 McCread}' v. Brisbane 2(i5 McCulloh V. Dashiell 97 McCurdy v. Canning 199, 272, 274 McDonald v. Allen 94 i>I cE 1 ni u r ry 'j\ Ard i s 261, 2G4 McFadden v. Wortliington 228, 278 McGaher v. Carr 255 McGec V. Cherry 322 McGee v. Ellis 802, 339 «. Mellon 149, 105, 271 McGowan v. AVilkins G7, 80, 71 McGinty v. Herrick 253 McGuire v. Kouns 275 jMcInerny v. Bead 15, 70, 71, 73 JMcIntire ■«. Durham 213 Mejilton v. Love IGl McKinney v. Carroll 838 V. Lamplc}^ 823 McKniglit V. Gordon 25, 27, 28 McLaughlin v. Janney 120, 121, 174 V. Scott 217 V. Shields 258 McLain v. Upchurch 29, 27(i McLean v. Brown 302 Bank v. Flairg 218, 24G, £89 JIcLeod V. McCall ' 227 JVIcLosjan v. Brown CO, GG, IGI, 309 IMcMahon v. (Jreen :;20 IMcMullen v. Gable 290 AIcMillan v. Parsons 27G ^IcNiel V. Bean 371 IVrciSrutt V. Brand 3G] McPlierson v. Cunlilf 15, 17, 18, 10, "9,42, 102, 103, 104 i\ Foster 2!iG McWillianis v. Myers ^4 Madden v. Cooper IIG, 122 ;Maddox v. Sullivan ::l:! Maer v. Boothy 119 Magoun v. Ins. Co. 180 Malionev i\ Horan ^,"1] Major '«.' Deer 198, 2.S.S JIalony v. Fortune 304 j^Fan «." McDonald 157 JIanly v. Peitce 1:1 1 jSIaple V. Kussart GO, 1G5, ICG ^laples V. llow 45 V. Nelson 241 Mark y. Wil lard KU Marr v. Boothby 174 PAOB. Marsh v. Laurence 823 Marshall v. Cunningnani 820 V. McLean 2G9, 277 r. JMoore 82, 205, 207, 225 ]\Lirlin v. Davis 323 V. Drydcn 280 V. Hargadine 50 V. Jackson 200 V. McCargo 228, 285 V. I\Lirtiu 208 V.Starr 118 Marvin «. Taylor 73, 74, 75 Mascroi't v. Van Antwerp 214, 226 Mason v. Ham 119, 140, 174 V. ]\Iessenger 35 V. Osgood'4, G, 10, 55. 11G, 183 V. Payne 205, 207, 225 V. Thomas 803 V. Wait 12G, 127, 1G8 V. While 2G9 Massey v. Thompson 28, 283 V. Wescott 278, 279, 280, 283 i\Iassic V. Long 237 V. AVilson . 8t. 83, 205, 28G, 311 IMatlicson v. Ilearin 18 Matilda v. Lockridge 123 Matthews v. Clifton 2G5 V. Warne 373 Mattison v. Baucus 323 INIaurier v. Cook 2-:-7, 284 Jlaxwell V. Read 8G3, 306 May V. i\Liy 155, 157, 159 V. Raymond 146 V. Walters 210, 333 Mayliam v. Combs _ 85, 280 Mayor, etc., v. Colgate 70 Mechanics' Bank v. Merchants' Bank 350 Medhurst v. Wait 3, 11 IMeeker v. Evans 48, 217, 218 Meller v. Boardman 1G8 Mendenhall v. The Westches^r &Pliila. R. R. 189,190 Messer v. jMeycr 353 Mercer v. Doe 228. 233 Merrill v. Harris IIG, I7i Merritt v. Horne 35 V. Kiles 825 Merry v. Bcstwick 197, 307 Messenger t. Kinlncr 41 iMeyer v. Jleyer 8G0 Jlichoud V. Girod 50,51,68, GO, 128, 130, 134, 135, 130, 187, 139, 140, 157, 159, 100, 237 Miles V. Wheeler 50, 134, 138, 139, IGO XXIV tS'DEX TO CASICS CITED, PAGE. i^Iillcr's Exrs. t. Grccnbaum 19, 20 MilkT v. Finn 29, 109 T. Hull 157 ■p. Lewis 305 V. Miller 99, 115, 158 V. Sherry 174, 279, 8fi7 Million V. Riley 27G Mills «. Goodsell ;J42 V. Rosrers 295 Milton V. Love 301 Miner v. Cassat 210 Minnesota R. R. Co. v. St. Paul 4, 23, 24, 49, 55 Minor v. Herriford 329 M inter v. Dent 343 jMintnan v. Striker 329 Mitchel -y. Diinlap 134 V. liackett 330 V. Steamboat Magnolia ISO Mi.xer v. Sibley 290, 310 Mobile Cotton Press Co. v. Moore 293 Mockbec v. Gardner 1C8, 178 v. Mockbec Molia^vk Bank v. Atwater 48 Moline v. Webster 97 Monchat v. Brown 253, 341 Monroe v. Douglass 180 V. Thomas 344 Montgomery v. Barrows 219 Moore v. Detchnandry 287 V. Fitz 330 «. Gi'een 05 V. Kiel 30, 100, 102 ■e. Sl'.ultz 4, 9, 15, 17, 19, 55, 59, 183 ^. Stark 104,112 r. Tifman 143 r. Wiiite 94,95,99 «. The Widow 91,93 Moorland v. Kimberlin 342 Mortran t\ JLason 275 Morris v. Bradford 250 V. Bruce 254 V. II ogle 100, 102, 114, 174, 170 ^•. Ward 201, 203 Morrison v. Pruce 219 V. Dent 284 Morrow v. Brenizer 197 V. Weed 35, 37, 52, 100, 101, 102,103,111,121, 123, 174 Morsan r. Brnnliani 287 Mor.se V. Coold ij.l Morton r. Sloan J4G Mf>ss V. 3Ioor(! 329 Mount c. Vallee 149 Jl8 Preston v. Harrison 303 Prevost V. Gratz 50, 51 Price V. Johnson 33, 1G6 Prior v. Stone 355 Proctor V. Farnum 145 Pond V. Pullum 210 Pucket ?;. The United States 109 Pugh V. Callaway 329 v. Pugh 118 Purley t. Havs 03 Pursley«. Hays 35,120,171 Purzcv V. Scnier i3-4 XXVI INDEX TO CASES CITED. Q- Quackcnbiish v. Danks 338 Quiiicy Seiniiuuy v. Jasper 142 R. 311 2()0, 277 2oo, 256 205 210 Hand V. Hand Rankin v. Scott Ransom v. Williams Rathbone -o. Clark Rawley v. Hooker Ra\vUni::s v. Bailey 4, 15. 55, 5(5, m, lie, 141, 142, 143 Raj- V. Birdseye 320 V. Ilarconrt 329 Raymond v. Bell 103 V. Ewing 84 )!. Pauli 222, 290, 299 Read v.Fhc 178 V. Heasley 104, 1G7, 275, 288 Reardon v. Searccy 30 Rector V. Hart 293 Reddick v. The Bank 35 Redlield «. Hart 74 Redman v. B;dlamy 10(5 Reed v. Brooks 154, 290 V. Carter 293 V. Diveu 224, 289 'V. Pruyn 339 Reeder v. Barr 138 Reese i\ Burts 317 Reeves v. Sebem 320 V. Townscnd 35, 103, 289 Reichart » IMcCIure 270 Relle V. Bibb 225 Reminuton v. Linthicum 30,228,248 Remicic v. Butterfield 134, 138, 227 Requa v. Rea 00 V. Rhela 145 Revalk v. Kiaemer 201 Rew V. Wood 240 Revnolds v. AVilson 44,45,49,52,115,175 Rhode Island v. Massachusetts 35, 104, 105, 171 Rhodes v. ^IcConnaclc 359 V. iVIe.ironegal 322 V. Woods 331 Rlionemus v. Corwin 150 Rhorer v. Terrill 212 liicardv. Williams 99 Riccf. Cle-rhorn 139,227 V. Parkman 39, 104 Richards v. Holmes 53, 54, 304 Richardson v. Jones 134 liiclimond v. ^VJarston 302, 303 Ricks V. BIoumL 373 PAGl!. Riddle v. Bryan 270 Rider v. Alexander 209 Rid2;e Turnpike Co. v. Slover 34(J Ridgway v. Coles 42 Riogs». Dooley 228,285 Riiey v. McCord 173 Rindskolf v. Lyman 323 Riner v. Stacey 2. \ 333 Ringo V. Binns 50 Ringold V. Patterson 290 Rislev V. Richer 45 Riter"». Henshaw 29, 294, 303 Rizor V. Snoody 95 Robb V. Beaver 200, 273 V. Irwin 39, 104, 108, 109, 113 Robbius V. Bates 138 V. Butler 50, 134 Robert v. Casey 120, 129 Roberts v. Fleming 134, 137 V. Roberts 101, 1(52 Robertson v. Campbell 78 V. Dennis 305, 312, 313 Robinson v. Atlantic & G. W. R. R. Co. 212, 334 V. Martel 144 Rockncll V. Allen 29, 290 Rockhill ». Hauna 211,281 Rogers v. Brent 198 V. Dickey 277 «. Dill 120 «. How 107, 108 T. Jones 80 V. McLain 33 T. Smith 29 Rose V. Persse 73 Rosier v. Hale 304, 338 Ross V. Duval 301 V. Ross 348 V. Weed 221 Roth V. Wells 329 Rowland v. Goldsmith 372 Rowley v. Webb 47, 48 Runyon v. N. Ark. In. Rub. Co. 48, 110 Russell V. Gibbs 337 v. liichards 53, 54, 330 Rutherford ■;;. Greed 277 V. Haven 310 Ryan v. Dox 148, 174 S. Sackett v. Twining 15, 21 Saltmarsh v. Been 134 Saltonstall v. Riiey 39, 104, 147, 174 Samory v. Hebrard 198 Sample v. Barr 50 Sand V. Granger 175 INDEX TO CASKS CITED. XXVI 1 •PAGE. Siuifonl V. Granger !i<; San Francisco v. Picklev 200 V. Pirley' 29;] Satchcr v. Satclicr 17, 18, 3G, 87, 39, 104 Sauer v. Steinbaeur 217, 343, 330 Savao;e v. Best 270 Rcaniiiion v. Swartwout 239, 250 Schafrer«. Cadwallader 279 Sehneidcr ?j. McFarland 41 .Schnell v. Chicago 101, 114, 115, 123 Scliofield V. Bcsscnden 313 Schrader !■. Wolfin 325 Scliriver v. Teller 205 T. Lynn 57 Scott V. Freeland Go, G8, 128, 157, 107 Scriba v. Dean 202, 350 Scribner v. Lockwood 278 Scruggs V. Scruggs 2G2 Seaman v. Hicks 80 Sears v. Hanks 308, 309 r. Hyer 149 Sedgwick t. Fish 45, 80 Sellers ». Corwin 372 Sewell V. Costigan 4, 11 Sexton V. ]\Ionks 325 V. Wlieaton 285 Scvmore v. Milf. & Chil. Tnrn- i)ike Co. 344, 340, 347 Sluif'er V. Bolander 241, 242, 338 V. Gates Co Shannon v. Jones 324 Siiaw V. Gregoire SG V. Ho.-idley 75 V. SniCt 134, 138, 157 Sheldon v. Newton 15, 17, 33, 35, 30, 37, 38, 39, 42, 43, 94, 100, 102, 103, 104, 105, 110, 111, 134 ■v. Sobo 335 V. Wright 42, 147 Shclton ?). Codnian 190 «. Tiffany 17G, 177 Slie|)herd v. IJowe 228 Sherman v. Boyce 253, 341, 339 Sherry v. Denn 41 V. Nick of the Woods 224 Sliields V. Ashley 20 ». Bales 25,210,211 V. ]\liltenbergcr 258 Shirk ?;. Wilson '" 20,243,270 Slio.m.aker t. Ballard 258 Slirew V. Jones 202, 350 Shriveley v. Jones 150 Sliriver v. Lynn 24, 37, 55, 143, 148, 174, 170, 258 Shropshire v. Pnllen 254 Sibley v. Wells 42 PAGE. Silliman v. ]Ming 313 Silver v. Colfee 250 Simms v. Hampton 311 Simonds v. Catliu 24G Simpson v. Hart 35, 38, 102, 111 V. Simpson 227, 23n Singletary v. Carter 333 Singleton v. Herriott 179 Sipp V. Lawback Kio Sitzman v. Pacqucttc 151 Slade V. Van Vechten 332 Slicer v. Bank of Pittsburgh 05 Small V. Cromwell " 101 V. Hodgcn 2G4 Smiley •». Sampson 33, 35 Smith V. Allen 29, 270 V. Chew 123 V. Cockrill 257 •v. Colvin 208 ■V. Dutton ;!9 V. Greenlee 40 V. Hill 228, 229, 232 V. Hughes 329, 330, 331, 332 V. Ingles 1^0 T. Kelly 311 i\ ]\lcCutchen 259 i\ I\[oove 84 ■V. Mormon 228 V. Morrison 285 V. Jlorse 338 V. Piersc 225 V. Bace ®. Bandall V. Warden V. Winston Sneed v. Keardon Sncvely v. Lowe Snyder v. Stafford 120, 127 223. 309 IGG 210 SO, 275 109, 110 81,87,225 St. Bartholomew's Church v. Wood 258 Sohier v. Mass. Genl. Hos. 39, 104 South ». aiaryland 25 Southard v. Pope 219, 224, 305, 30G, 307 Southera Bank v. Humphreys 4, 37, 55; 01, 171 Sowards v. Pritchett 9, 52, 55, 57, 59, 183 Soye V. jVlaverick 93 Speer v. Sample 237, 239 S[)rott V. Reid 239, 241 Statlord v. Williams 205 Stambaugh r. Yates 340 Stanford Bank v. Ferris 323, 325, 347, 348, 351 Stansel v. Eoberts 85, 2S0 Stap V. Ph.el]is 310 Stapleton v. Longslaff 125 XXVlll INDEX TO CASES aXEI.. PAGE. Stark T. Bronn 40, 43 Stamp V. Irvine '3"o State V. Eads 70 V. The Franklin Bank 348 'c. Lais oG3 V. Lake 74 V. Lawson 266 «. IMelon-i-e 364, 365 V. JSIiclKiels 237 V. Pool 237 «. Romer 3G2 V. Salers 341 V. Salyers 213, 2o3, 371 V. Thackham 328 Bank of Missouri c. Tutt 351 Stead V. Course 48 Steele V. Hannah 371 Stein I'. Cliambliss 228, 236, 248, 314, 315 Sfetzman v. Pacqnette 42 Stepliens v. Barnett 341 ■V. Den ni son 246 V. ]\IcGrudcr 154, 161, 162 Stern v. Epstin 131 Stevenson v. Marony 203, 204, 293 Stewart V. Anderson 165 V. Freeman 278, 281 11. Garvin 64 «. G:\y 221 fl. Hamilton 251 V. Houston 235 V. Jones 344, 348 •y. Mai shall 289,290 V. Nelson 293 V. Severance 236, 248, 293 r. Stoker 208 Stiles V. Easley 316 St ill man v. Youn.<^ 43 Stimson c. Meed 66 V. Riir, 230, 284, 341 GO 247 249 101 344, 34(5 342 227 237 372 278 27 201 37 171 4 7,48 330 320 3G3 305 177 160 227 TAGE. Worth ini^toii v. McRobcrts 108 Worthy v. Johnson 157 Wortnian v. Skinner 98, 99 Wriglit V. Boone 249 V. Cantzon 143, 153, 103 V. Hollingswcrth Gl V. Marsh 103 V. Phelps 15 i\ Walbaugh 171 V. W^albauiu 122, 172, 209 ■V. Warner 103 V. Yetts 49 AVroe v. Harris 215, 21 G, 333, 334 Wyman v. Campbell 18 V. Ilociier 138 Yarborougli v. The State Bank 373 Yate3 V. Woodruff 152, 15(i Yeldell v. Stemmons 325 Yerbye. Hill 4,123 Yocom V. Bullitt 19s Yoder v. Stand iford 341 Young V. Alexandria & Western K. K. Co. 344 T. Bowver 178 r. Dowling 60, 14;> V. Keoffh 4, 55, 50, 110, 141, 142 r. Lorain 128, 101, 100, 108 V. Smith 26: Youngman v. Elinira & W. R. R. Co. 344 Judicial and Execution Sales. JUDICIAL AND EXECUTION SALES. PAET FIRST. NATURE OF JUDICIAL AND OF EXECUTION SALES. CIIAPTEE I. THE NATUEE OF JUDICIAL SALES. I. Ok Judicial Sales ix General. n. JtjBiciAL Sales ix Proceedings Pltrely in rem. III. Judicial Sales in Proceedings Partly in rem, and Par^.y i:\ iievsonnm. I. Of Judicial Sales in Gkxkkal. § 1. As a judicial act is one " supposed to be done 'pendente lite of some sort or other," ^ so a judicial sale, is, in contem- plation of law, a sale made ])endente lite; a sale in court, and the court is the vendor. § 2. It matters not to the contrary, that it is made tlirongli the instrumentality of a master, commissioner, or otlier func- tionary, appointed thereto by the conrt ; it is not valid or binding, and confers no right to the property sought to be sold, nntil confirmed by the court. By such confirmation, it is judicially made the act of the court, and is therefore a judicial sale. The master or commissioner, in conducting it, acts by anthoritv of, and as tlic instrument or agent of the conrt. §3. In the language of tlie court, in Bozza v. Boice — " the master is tlie mere instrument of the court, acts nndcr 1 :Mcaiuu-st t. Wait. 3 Burr. 12.59. 4 JUDICIAL AND EXECUTION SALES. its direetions, and is subject to its control, * '" * ''^' and his acts, under the decree when reguhir, are considered those of the chancellor — and that the biddings are not binding and can not be enforced, until approved by the court." ^ § 4. In Griffith v. Foioler^^ the case cited from IS Vermont, the learned Judge (Eedfield), speaking of sales in Admiralty, says — "But these cases bear but a slight analogy to sherifl^'s sales in this country or in England. Those sales are strictly judicial sales and are merely carrying into specific execution a decree of the court hi rem, which by universal consent binds the whole world." And again, in the same case, it is said: " It is plain, then, that a sheriff's sale is not a judicial sale." § 5. If the sheriff bo aj)pointed by the court, instead of a master or commissioner, to conduct the sale, as in the Minne- sota R. It. Co. V. St. Paul,'^ yet he sells by virtue of the decree, and not by virtue of his office of sheriff, and the sale is the sale of the court when confirmed. § G. In Williaiiison v. Berry, the United States Supreme Court chai-acterize a judicial sale as one " made under the pro- cess of a court having competent authority to order it, by an officer legally appointed and commissioned to sell." . But the court obviously refer here to the sale in a popular sense, or to that part of the transaction which consists of the doings of the master or j)erson conducting the sale, and not to »30 111. 198; Andrews -y. Scotten, 2 Blaud, G29; Williamson «. Berry, 8 How. 547 ; Southern Bank v. Humphreys, 47 111. 237, 63G ; Harrison v. Har- rison, 1 Mtl. Ch. Decs. 331; Mason v. Osgood, G4 N. C. 467; Hurst v. StuU, 4Md. Ch. Decs. 391; Sewell v. Costigau, 1 Md. Ch. Decs. 208; Moore «. Shultz, 13 Penn. St. 102; Vandeverev. Balcer,2'&. 121,120; Wagner ». Cohen, G Gill. 97 ; Iglehart v. Armigo, 1 Bland, 527 ; Mullikin v. Mullikin, 1 Bland, 538; Thorn «. Ingram, 25 Ark. 52; Freeman x. Hunt, 3 Dana (Ky.)> G21; Young 10. Keogh, 11 111. G42; Ayrcs v. Baumgartcn, 15 111. 444; Penn b. Heisey, 19 111. 297; Rawlings v. Bailey, 15 111. 178; Blossom v. R. R. Co. 3 Wall. 207; Minnesota R. R. Co. v. St. Paul, 3 Wall. 609, G40; Griffith v. Fowler, 18 Vt. 394. In Yerby v. Hill, 16 Texas, 377, 381, the court by Wheeler, .lustice, say : " His purchase is not complete, and no title vests until the action of tlie court, confirming the sale;" Ilalleck v. Guj', 9 Cal. 181, 195. MS Vt. 394. 2 Wall. GOO, G40. Tin: NATUKE OF JUDICTAL SALES. 5 that filial action of tlio court -wliicli alone confers validity, and wliicli terminates tlie sale by the judicial act of coniirination. For in the same connection the court saj " that such sales, until approved by the master and confirmed by the court, j^vc no title to a pnrchascr of an estate Mdiich he maj- have bar- gained to bny." 1 §7. In Williamson v. Berry," the court hold that the approbation of the master or person conducting the sale does not complete a title in a purchaser; but that this is only "one step towards a purchaser's getting a title." This language of the court fully bears us out in the assump- sion that in describing a judicial sale as one made under "the process of a court having competent authority to order it, by an officer legally appointed and commissioned to sell," they mean only that the proceedings up to the final confirmation are conducted by such officer until the bargain is agreed to, when the purchaser, " before he can get a title," (in the lan- guage of the court) " must get a report from the master (or person selling) that he approves the sale," and " that report then becomes the basis of a motion to the court, by the pur- chaser, that his purchase may be confirmed." "• It is equally clear, that by the term — " by an officer legally appointed and commissioned to sell," is meant an appointment and commission from the court, and not the ordinary minis- terial officers of law courts, as sheriffs, or marshals, in mere virtue of their commission. § 8. True it is, that the poAvcrs of the chancellor is such that he may dispense with many of the formulas attendant usually on judicial sales in his court, but this power of dis- pensation is not an attribute of inferior courts, acting under a limited chancery power conferred by statute. As, for instance, courts of probate, or others exercising probate jurisdiction in proceedings for sale of a decedent's lands, or the lands of a ^vard. Such tribunals may not dispense with, but must carry out all such requirements as the statute demands as indispensa- ' 8 How. 54G. ■' Ibul. = Ibid. 6 JUDICIAL AXD EXECUTION SALES. Lie to vrJidity, wliatever they may be. But omission as to siicli as arc directory only is merely error. ^ § 9. In Mason v. Osgood Ad?nV,^ the Supreme Court of Xortli Carolina hold the following to be the law in relation to a sale of lands by an administrator: "lie is a mere agent of the court to execute a naked j)Ower, and a purchaser acquires no right to the land nntil the sale is confii-med and title made, under an order of the court granting the power of sale," and that, " if the administrator fails to report the sale, the pur- chaser may aj^ply to the court by a motion in the cause for a rule to compel such return, so that the court may confirm the sale if it sees j)roper. '••' '■'' '•'■ In our case the sale was not confirmed, the j)laintiff has no right to the land, and no claim to equitable relief." The case cited from JSTorth Carolina Avas of a bill filed hi chancery to coerce a deed from an administrator by one who liad bid off the land at the sale, and who was refused a con- veyance by the administrator. The chancellor held that the remedy was by motion in the same court that ordered the sale."' § 10. In the case of ITaUech v. Ginj,'^ the Supreme Court of California use the following language in reference to the nature of administrator's sales of lands in probate: "The mode of sale is pointed out by express statute. When sold, the report of the sale is made by the administrator to the court, and unless confirmed by order of the court there is no binding sale, and no title can pass to the purchaser. To be valid, the sale must first be ordered by the court, and after- wards confirmed by it. The order for the sale and the order of confirmation are both judicial acts; and these two concur- ring make the sale a judicial sale, and, therefore, not within the statute of frauds." And again the court say: " It is true that there is a difference in the mode of enforcing a sale ordered by a court of chancery and that of a sale by order of the probate court. But this difiercnce in the mere mode docs '"Williamson t\ Bcny, 8 IIow. 54G. 2 04 X. C. 4GT, 408 3 Ibid. M) Cal. 181,195. THE NATUEE OF JUDICIAL SALES. i not atfcct the cliaracter of tlic sale itself. Wlien a sale is made under a decree in chancery the bidder may he committed for contempt if he refuses to comply with his bid." ''• '-^ ■'• ■'• " If we concede that the probate court can not commit the bidder for contempt when he fails to comply with his bid, this does not change the character of the sale." ^ § 11. In Ilurd V. Siull," the court say of a decree of sale for purchase money: " It was a proceeding in rem, and by the decree the land was condemned to pay the claim of the party who sold it, and in whom the legal title still remains. Although the court in the execution of this decree and others of a like nature employs a trustee, that officer is its agent, the court itself being the vendor, acting through the instrumentality of its agent. And in Glenn v. Clapp,^ the same court charac- terize such sales as " transactions between the court and the purchaser," In Yandever v. Balcer,"^ the Supreme Court of Pennsylva- nia say of an administrator's sale of lands that it is a '-judicial sale," and has been so ruled more than once. § 12. In a legal sense, the sale is made by the court itself in enforcement of its own orders and decrees, wherein is described the property to be sold. The person who conducts the same is merely the instrument, or means used by the court to bring about such executory agreement as the court closes, if satisfied therewith, by iinal act of confirmation, wliicli makes the court the vendor.^ Such sale is unlike a sheriff -s sale on ordinary common law, or statutory execution, which is a, ministerial, and not n judicial net; and in making which the law regards the officer, and not the court, as the vendor. « ' Htilleck V. Guy, 9 Cal. 181, 19G. ^ Hurst 1). Stull, 4 Md. Ch. 391, 393; Iglehart o. Aa-miffcr, 1 Bhmd, 527; Forcmau v. Hunt, 3 Dana, G23; Campbell v. Johnson, 4 Dana, 18C. 3 11G. antlj. 1, 8. * 18 Penn. St. 12G. 5 lb. and Foreman v. Hunt, 3 Dana, G22; Campbell v. Jolinson, 4 Duua. 186; Armors;. Cochrane, GG Pcun. St. 308. In the latter case the court characterize the person conducting the sale as "the mere organ of {\ie court, in making the sale." Bozza v. Rowe, 30 111. 198. « Gowan v. Jones, 10 S. and M. 104; Griffith v. Fowler, 18 Yt. 394. " On b .TLDIflAL AM) i:Xi;(UI!< >.\ SALKS. The decree for a sale, tlioiigli so far linal that an ai)peal v,-ill lie, is not linal but interlocutory, in such other respects, as it does not reach, contemplated by the proceeding, Avhich are only attained coiisklering Uic nature of sales uniler authority of the Court of Chancery, tlio lirst inquiry Avhich suggests itself is, Avho are the real parties to the contract V This very idea of a contract implies that there is one party able and willing to contract and another to contract with. It implies a perfect capacity and free will, in each of the parties to the agreement. To a con- tract of sale, made under a decree of this court, neither of the litigatini;- parties can be considered as the vendor; although they, with others, sucli as creditors, who may be allowed to come in afterwards, may be very materially interested in the sale. The plaintiff can not be considered as tlie vendor; because, oftcuer than otherwise, he has no title, always states his inability to sell, and prays the court to decree that a sale be made. "The defendant can not be the vendor; because he always positively refuses to part with his property, unless forced, or sanctioned in doing so by the power of the court. If, then, neither of the litigating parties can be seperately deemed to be tlie vendor, it is clear that they can not botli together be so considered. "But such sales arc always made by an agent; in England, by a master; in this State, by a trustee. Private contracts may be made and executed in person or by attorney; but the attorney is never considered as one of the contracting parties — he exercises no will or povrer of his own — he is merely the medium, or conduit, through which the will of the contracting l)arty is expressed. The master or trustee is the mere attorney of the court, acting under a specially delegated authority. And, in no case, is a master or trustee authorized to do more than to accept an offer or proposal to contract, which is of no sort of validity unless it be accepted, ratified and confirmed by the court. It is the court itself, for the lencfit of all inter- ested, therefore, wJio is tlie vendor in such cases? "But it maybe said, if the court be the vendor in sales made by its trustee, would it not follow, for the same reasons, that a court of common law must be considered as the vendor in sales made under its writ of fieri facias, by the sheriff? The cases are essentially different. Tlie Vv-rit of fieri facias is a general authority or command to the sheriff" to make so much money by sale from the personal estate of the defendant. By this writ the excHiutive officer of the court is commissioned to seize the whole, any part, or so much of the defendant's personal estate as may be neces- sary to raise the specified sum of monej'. No particular articles of ]iroperty arc ever designated. By statute, this power, given by the com- mon law writ over personal estate, has been extended over real estate. And the same writ, and nearly tlie same principles of law, now apply to Ijoth species of property. "The real or personal estate with which the Court of Chancery deals is, however, always in one form or other distincth' specified in tlie proceo*!- THE NATLTvE OF JUDICIAL SAI.ES. V by coiifirraatioii, thereby giving finality to the proceedings. The sale is not made by authority of the person in charge of it, but by authority and under control of the court, "which prescribes, or ought to prescribe the time, manner and condi- tions of the sale." ^ §13. AVlien an acceptable bidder is found, and an agree- ment as to terms is attained, then report thereof is made to the (•ourt, and the court coniirms it or not, at discretion.- Before such confirmation the j^urchase is so incomplete that a loss by fire falls on the vendor or owner, though it occur after acceptance of the bidding and after report of the sale.^ ings ; and the sale is made only because the court is asked to have it made 1o accomplish the objects of the suit. In the proceediuss at common law, from the commencement to the Jieri facias, no property is designated. At common law, the terms and manner of sale are regulated by law ; in chancery, they are regulated by the court. At common law if the sheriff, in seizing the property and making the sale, conforms to the established regulations applicable to all cases, (and he can sell in no other manner), the sale is final and valid as soon as it is made. But in chanceiy the sale is, in no case, binding and conclusive, until it has been expressly approved and ratified by the court. If it be made in a manner wholly different from that prescribed by the court, it may yet"" be sanctioned ; or, if it be made in all respects conformable to directions, it may still be rejected. And hence, it is obvious that in one case it is the Court of Chancery who is the real vendor, and in the other the sheriff, or executive ofticer of the court. "In an English case, which arose on a sale under the authority of the Court of Chancery, decided in the year 1721, in which the question was, whether the purchaser should be compelled to complete his purchase or not, the matter is spoken of as one perfectly settled. ' Upon a contract betwixt party and party,' says the chancellor, ' the contractor would not be decreed to pay an imreasonable price for an estate; so neither ought the court to bo, partial to itself, and to do more upon a contract Trmde mth itself, or carry that farther, than it would a contract betwixt party and party. On the other hand, the court might be said to have rather a greater power over a contract made with itself than with any other.' And in other cases of recent date, when the subject has been brought into view, the court has, ill like manner, been spoken of and considered as the vendor." Andrews r. Scotten, 2 Bland, 629. ' Moore v. Shultz, 13 Penn. St. 102; Coffee v. Coffee, 10 111. 141 ; Uarlan r. ]\Ierrill,3 Dana, 181 ; Sowards r. Pritcliett, 37 111. 517. * Williamson v. Bcrrj^ 8 How. 547 ; Harrison v. Harrison, 1 Md. Ch. 331 ; :\Ioore v. Shultz, 13 Penn. St. 502; Taylor v. Gilpin, 3 Met. (Ky.) 544; Sowards v. Pritcliett, 37 111. 517. ' Wagner v. Cohen, G Gill. DO, 102 ; E.rpaHe Minor, 11 Vcs. 550. 10 JUDICIAL AND EXECrXIOX SALES. §14. In Harrison v. Jlarrison^^ tlie court affirms tlie doctrine of Andrews v. Bcottoi, and say it is the well under- stood law, " that in sales made under authority of decrees in chancery, the court is the vendor, the trustee being the mere agent or attorney of the court, under a sjDCcial, delegated authority, and the true character of such a sale is that it is a transaction between the court and the purchaser; and a private sale, as well as a public sale, may be made if the court deems it advantageous. § 15. In the case of Jlarrison v. Harrison,- the court further say: "The differences are so many and material," be- tween sales by a trustee in chancery and sales on execution by a sheriff, " that it is impossible with safety to apply any one principle to them both. But the vital difference perhaps with reference to the question now under consideration is, that the sheriff's sale, if made conformably to law, is final and valid, and passes the title; whereas, chancery sales, the court being the vendor, are not binding and conclnsive, until approved and ratified by the court." And such, too, is tlie current of authorities. The court affirms the sale or not, at its discretion, and until affirmed, the supposed sale is no sale, and confers no rights. ^ But if the purchaser take and keep j)ossession it may become ratified and valid by lapse of time.^ It is not the sale of the officer or person charged with it, for apart from the conrt he has no power to sell. But when con- firmed, it is "the sale of the court. ^ ' 1 Mtl. Ch. Dec. 032, 333. "These sales are less expensive than Avlieu made on executions ; more time is allowed to make them ; the discretion of the court is exercised as to time, manner, and terms of sale; -whereas, on sales Ly a slieriff, all is l)j' compulsion, and no credit is allowed ; he can not offer one entire piece of property for sale in parcels; the adminis- trator can divide and sell as best subserves the interest of the heirs, and sell only so much as tlie emergency of the case requires." Griguon's Lessee v. Astor, 3 How. 343, 344. 2 1 Md. Ch. Dec. 335. =■ Taylor i;. Gilpin, 3 Met. (Ky.) 544; Williamson v. Berrj-, 8 How. 547; Jlason «. Osgood, 64 N. C. 404; Thorn t. Ingram, 25 Ark. 52. * Gowan «. Jones, 10 S. and M. 1G4. 5 lb. and preceeding cases cited. THE NATURE OF JUDICIAL SALES. 11 § IG. In Sewell v. Costujaiiy^ tlic s;uue doctrine is Iiolden. Tlie court say: "In fact, the sale made Lj liim(tlie trustee) is the sale of the court, he being the mere instrument or agent, by whose liands the court acts/' — "■' It is the sale of the court, and not his sale." §17. 1\\ Foreman v. JIurd," the Supreme Court of Ken- tucky draw the distinction between sheriif's sales at law and judicial sales as follows: "Sales under execution are made by an officer of the law, who is required by law, as well for the benefit of jDlaintiffs and defendants as others who may bo injured by his official defalcations, to give bond and good security for the faithful discharge of his duties," and remark that " the law is the only guide of the sheriff," that his sales are perfect and complete, and that the title passes to the pur- chasers without confirmation (ordinarily) of the court; but that "a commissioner appointed by the chancellor to sell is the mere ministerial servant and agent of the chancellor." That he has no guide but his instructions in the decree; gives no 1)ond; must report to the court; and that a sale, that is, an agreement to sell, made by liim is not valid " until it is sanc- tioned by the chancellor." It is in operati^'e until confirmed by the court. In Jjiissy v. Ilard'ui,^ it is liolden that "the liighest bidder at sales under decrees does not, like a bidder at sheriff's sales under execution, acf^^uirG any independent right to have the purchase completed; but is nothing more than a ])refcrred bidder, or proposer for the purchase, subject to con- firmation by the chancellor." § 18. We may add that a judicial sale is made j?(3;2'(r7(??2z;d lite; whereas, an execution sale is made after litigation in the case is ended; for, as we have before seen, a judicial act is some- thing done during the pendency of a suit.'^ The suit docs '1 Md. Ch. Dec. 208, 209. = 3 Dana, G21. == 2 B. Mon. 407. * Midliurst v. Waite, 3 Burr. 1262. In Girard Life Ins. Co. v. Farmers' and Mechanics' Bank, 57 Penn. St. 397, the court, in discriminating between an order of sale and a writ of execution, uses tlic following language : "The word execution has always been understood as meaning a icrit, to 12 JUDICIAL A2\D EXECUTION SAEES, not end witli tlic decree of sale; tlie proceeding still continues until final confirmation. So, tlic converse of the principle follows, that -what is done in p^us after litigation is ended, or after the cause is finally disposed of, if there were no adverse litigation, is not done judicially, and is not a judicial act, but is executive or else is ministerial. §10. Another remarkable distinction may here be noticed lictwixt judicial and executive sales. In some decrees for judicial sales the primary object of the order or decree is to feoll the property, and in such cases tlie sale can not be pre- vented, excej^t by judicial interference. But the writ of execu- tion, on judgments at law, or when issued on money decrees or orders to pay money, commands the officer to levy the money of the property of the debtor, and though a sale is the conse- quence of such levy if the money be not paid, yet the primary object of the Avrit is to get the money, and therefore its pay- ment to the officer holding the writ by the debtor prevents a sale. § 20. So likewise in some proceedings and decrees for judicial sales, as in mortgage foreclosures, decrees to enforce statutary liens, vendor's liens, and such other orders of sale as arc merely designed to enforce payment of a sum of money; as tlic primary object of the proceedings is to make the money, tlie debtor may put an end to the proceedings and prevent the sale by paying the amount. §21. In Griffith v. Bogart,^ Justice Geiet. speaks of an execution sale as a judicial sale. But by reference to that case it will be seen that it emanated from Missouri, where by the statute law execution sales at law are reportable to the court for confirmation. That the sale in question had been so reported and confirmed, as is shown by the learned justice; wherefore he says, '• the deed was acknowledged in open court according to law. At this time, all parties interested could and would have been lieard, to allege any irregularities in the proceedings tliat would justify the court in setting it aside. irivc possession of a tliiii,!;- recovered by judgment ordccrcc. It is clearly distiiifTuishablc from a mere order of sale." ' 18 How. u8, 101. THE NATURE OF JUDICIAL SAUiS. 13 * '" ''■'•' ■" T)\\t when objections are waived by tliem, and tlic judicial sale founded on these proceedings is confirmed by the court, it would be injurious to the peace of the community and the security of titles to permit such objections to the title to be heard in a collateral action." Here it is the judicial act of confirmation that gives judicial character to the sale. Such, too, is the case in Pennsylvania, and some other States. §22. Justice Stoky puts the distinction betwixt judicial and ministerial or execution sales, seemingly, upon the same ground. In Arnold v. Smith,^ which arose in reference to an administrator's sale of lands in probate in Rhode Island, the learned justice considers the sale within the statute of frauds, for that it is not a judicial sale, in as much as such sales in Rhode Island are not required by law to be confirmed by the court. § 23. And we think we will be generally borne out in the suffffestion that whenever execution sales are characterized fis judicial, they either have to be confirmed by law, or else the expression has been casually made. The characterizing them :is such very recently in head notes and indexes of books, of reports, is a mere matter of taste of the reporter, and of no authority. § 24. Though there be judicial acts from which no appeal will lie; yet, it is a general principle that appeals or error may be taken only from judicial acts and decisions. Tested by this general princii')le, sales under orders and decrees, by j^er- son designated by the court, are eminently judicial. § 25. jSTot only the decree or order of sale itself, but also the order of confirmation, wliich is the very essence of the sale, may be reviewed in an appellate court. The one conferring the power to sell ; the other giving validity to the sale when agreed upon. For, though the order of confirmation is ordi- narily a matter for the discretion of the court, yet it is such a reasonable and wholesome discretion that if abused or unwisely exercised the order may be appealed from. The New 1 ork Court of Appeals (Selden, Justice), in treating of the term ' 5 Z\raso:i C. C. 414, -420, 42G. 1-i oUDICIAL AXD EXECUTION SALES. judicial uses tlie following language: "Tlio lines Lctwccn the various departments are not and can not well be very pre- cisely defined, and there are many duties which may be with ccpial propriety referred to either. Duties of this class, and they are very numerous, necessarily take their character from tlie dei^artments to which they are respectively assigned. The same power which, when exercised by one class of officers not connected with the judiciary, would be regarded and treated as purely administrative, becomes at once judicial when exer- cised by a court of justice. This is shown by the definitions imiformly given of the word judicial. "Webster defines it thus : 'Pertaining to courts of justice, as judicial power;' and again: ' Proceeding from a court of justice, as a judicial determina- tion,' Keferring then to Bouvier, the learned Justice gives his definition as, ' Belonging to or eminating from a judge as such, the authority vested in judges,' The court then add that ' "Wliatever emanates from a judge as such, or proceeds from a court of justice, is, according to these authorities, judicial." ^ § 2G. But from tlie sherilTs sale, as such, made on execu- tion, no appeal lies. lie makes no judicial decision. It matters not to the contrary, that i\\c ^xrit oi fieri facias is a judicial writ." The sheriff who is to execute it is a minis- terial, or executive, ofiicer, and his acts in that respect are but ministerial. Xo appeal lies therefrom. Those acts and the sale growing out of the same, can only be questioned or assailed by some direct proceeding, except in those courts where the practice is to report the same for confirmation by the court, Avhicli are an exception to the general rule. In such cases, the sale is open to attack on the motion in court to confirm. And although when affirmed, they thereby partake of the character of judicial sales, notwithstanding their being made by the ministerial officer and on execution, yet these are excep- tional cases and give no judicial character to ordinary sales on execution, which stand or fall on their own validity and in which no confirmation is required. ' Matter of Heniy Hooper, 23 N. Y. G7, 82. « 3 Bac. Abt. Title, Judicial writs which He after judgment, G98. T[IK NATURE OF JUDICIAL SALES. lo Judicial sales occur in probate and in chancery proceedings for partition of real estate, where a division of the property cannot be made in kind.^ In guardian and administration sales of land in probate. ^ In mortgage foreclosures by equitable jjroceedings; proceedings to enforce vendors' liens ;3 in statutoi-y liens for street improvements made by municipal corporations;* and -sve may add, whenever a right or p roceed- ing is enforced, by a sale made by a judicial order or decree, under direction of the court as contradistinguished from sales on execution. AVheii the statute or local practice do not dispense with confirmation of such sales, the ofhcer, commissioner, or person conducting them, acts as the instrument merely of the court, without authority to bind creditors, debtors, or heirs, simply by his o\\Ti act, who are bound only by the action of the court, in final confirmation, the court alone having power to repre- sent and bind them.-'' § 27. In a certain classes of cases such sales, ndien per- fected, are said to confer ownership on the purchaser, by a right paramount to that of the heir, as owner." Thus in administration sales of real estate to pay debts of decedents, the court ordering them enforces a lien in law, ajits in the exercise of a right paramount to that of the heirs. Witliout law there are no heirs. Heirship is not a natural light. It is created by law, is different in different States, and iv. changed ' Sackot i\ Twining, G Harris, 202; Hilton v. Williams, 35 Ala. 503; Girard Life Ins. Co. t\Tlie Farmers' & Mechanics' Bank, 57 Pern. St. 388; Williams v. Case, 3 Bland, 215; Allen v. Gault, 3 Casey, 473. ^ Grignon's Lessee v. Astor, 2 How. 338 ; Moore v. Shultz, 13 Penu. St. 98. 2 Kershaw r. Thompson, 4 Johns. Ch. 610. * Ohio Life & Trust Co. v. Gordon, 10 Ohio (N. S,) 557, 505; Gould v. Garrison, 48 111. 258 ; Dillon, Municipal Corporations, Sec. 660 ; Mcln- erry v. Read, 23 low-a,' 410. * Moore v. Shultz, 13 Penn. St. 102. (The court have this power by law, subject to which rights of property are holden). Williamson i: Berry, 8 How. 547; Rawlings v. Bailej', 15 111. 178; Ajtcs v. Baumgarteu, and Wright V. Phelps, 15 111. 444. « Griguon's Lessee v. Astor, 2 How. 338; Bofils v. Fisher, 3 Rich. Eq. 1 ; Sheldon v. Newton, 3 Ohio (N. S.) 494, 504; McPherson v. CuudifF, 11 S. & U. 420. IG JUDICIAL AXn ICXICCUTION S.VLES. or varied from time to time. The same law-making power that creates it, vests the ])roperty in the heir subject lirst to the prior right of creditors of tlie decedent, if there be not other sufficient assets, to liave it sold for the payment of their debts, and also gives the court the paramount power of ascer- taining the debts and selling the property to i>ay the same; 30, also, for purposes of making partition. § 28. In Myer o). IfcDougal,^ this paramount lien of creditors upon the lands of a deceased debtor, or other his estate, for payment of their debts, is fully recognized by Walkek, Justice, in the following terms: "The devise of the land to Elizabeth ITayden, by Robert Ilayden, was subject to the payment of his debts; and the devisee and her grantees took and held the premises subject to such indebtedness, which operated as a lien upon them, and the creditors may enforce such lien by administration, from heirs or devisees." The court here cite McCoy v. Morroio'^ as to the same clTect, and to the point that the lien must be enforced within a reasonable time. § 29. A decree of sale, to effect a partition of interests, or to pay debts of a decedent, virtually takes possession of the estate, and vests it in the court, for the purposes of distribu- tion. ^ In the language of the court in William^ s C ase yx^t cited, " a decree for a sale to effect a partition, or to pay debts, virtually takes possession ot the estate, and vests it in the court for the purposes of distribution." § 30. Judicial sales properly speaking occur only in pro- ceedings wholy or partly in rcm.^ In this respect, they are widely contradistinguished from execution sales, at law, where the judgment is exclusively in 'personam^ and wherein the pale is that of the officer and not that of the court. § 31. Some judicial sales are in proceedings purely ^;i rem. ' Myers %. McDou^al, 47 111. 278, 280; IVIcCoy r. Morrow, 11 111. 519. - McCoy «. Morrow, 18 111. 519. 'William's Case, 3 Bland. 215; Beauregard v. New Orleans, 18 How. 497. 503. * Grignon's Lessee v. Astor, 2 How. 838; Beauregard v. New Orleans, IS How 497, 502, 503; Florintine v. Barton, 2 Wall. 210, 21G. THE NATURE OF JUDICIAL SALES. 17 Others are in proceedings partly in rem and pai'tly in per- sonam. In either case, the order, or decree of sale, is in rem; it is against the property itself. II. JuDicLVL Salics in Peoceedlngs Pltjely 1^ Ee^i. § 32. Proceedings purely in rem are where the court in its plenary power of the law, based on legislative will and the authority of the government, lays hold of and acts directly on the property itself, and transfers its ownership to the pur- chaser, by a title paramount to that of the owner, and " with- out regard to tlie persons who may have an interest in it."^ Such proceedings are not by virtue of any contract of the owner, express or imjjlied, but " are analogous to proceedings in admiralty," and "all the world are parties."^ "The estate passes to the purchaser by operation of law."^ § 33. The purchaser, it is said, claims not their title, but one paramount.* The paramount right of the government to seize or lay hold of the property of decedents and distribute it in kind, or else, if that be impracticable by way of parti- tion, tlien to sell the same and distribute the j^roceeds. Or by a still more stringent measure, if need be, to sell the same for payment of the ancestor's debts and distribute the proceeds to the extent of the debts among the creditors, to satisfy claims of a higher or paramount grade in law, than the claim of the heirs. In the case cited from Alabama, Satcher v. Satcher^^ the Supreme Court of that State use the following language in reference to sales in probate: "It is the settled doctrine in the decisions of this court, that the proceeding before the * Grignon's Lessee v. Astor, 3 How. 338; Eofil t. Fisher, 3 Rich. Eq. 1 ; Sheklon v. Newton, 3 Ohio (N. S.) 494; Beauregard -y. New Orleans, 18 How. 497, 503 ; Satcher i;. Satcher, 41 Ahi. 2G ; Florintine v. Barton, 2 Wall. 21G. - Ibid. 5 McPherson c. Cunliff, 11 S. & B. 428: Grignon's Lessee t. Astor, 2 How. 338; 3Bouvier, 131,132. ■1 Moore v. Shultz, 13 Pcnn. St. 102; Grignon's Lessee vi. Astor, 2 How. 319 ; Beauregard i). New Orleans, 18 How. 502. » 41 Ala. 26. 2 18 JUDICIAL AND EXECUTION SALES. probate court, for the sale of lands of a decedent, is in rem; that the jurisdiction of the court attaches upon a petition set- ting forth a statutory ground of sale ; and that the order of sale is not void, although the proceedings may abound in errors, if the petition contain the above stated jurisdictional allega- tions." And in the same case, the doctrine is still more definitely asserted so as to exj>ressly negative the necessity of notice or jurisdiction of the persons in interest, and say that " The proceedings in the probate court for the sale of decedent's lands is held, by a long chain of decisions not now to be ques- tioned, to be in rem; and therefore the validity of the orders can never depend upon the fact that the court has acquired jurisdiction of the persons of the parties. The requisition of notice is just as plainly and as positively made in the act of 1822, as as under any subsequent law. Under the act of 1822 the order of sale Avas not void on account of want of notice. It was so settled by the decisions of this court. We cannot decide to the contrary unless we disregard the doctrine of stare decisis and overturn decisions which constitute a rule of prop- erty under which millions of dollars worth of land are probably held."i And in Wyman v. Camjybell,^ a still earlier decision of the same- court, it is holden that " the proceeding of the orj)hans' court is m rein, against the estate of the intestate, and not in personam. The order by that court for the sale of real estate, so far as the question of jurisdiction is concerned, may well be compared to the condemnation of goods by a court of ex- chequer, Avhere jurisdiction attaches upon a seizure — it merely professes to divest the title of the ancestor without affecting the jDcrsons or other property of the heirs." § 31. The courts of Alabama thus very clearly recognize the paramount right of the government to act upon the title ' Siitchcr V. Satcher, 41 Ala. 26, 39; Kin.i? v. Kent, 29 Ala. 542; Matheson V. Hearin, 29 Ala. 210; Field v. Goldsby, 28 Ala. 218; Wyman v. Campbell, Porter, 219; McPlierson v. CunlilF, 11 S. & R. 430; Lightfoot v. Lewis, 1 Ala. 479. ' Porter, 219, 232; Lynch v. Baxter, 4 Texas, 431. THE NATUKE OF JUDICIAL SALES. 19 of the ancestor to tlie postponement of tlie Leir. In such cases there arc no adverse parties litigant. The rights of those previously interested in the property are transferred from the property to the fund produced by the sale.^ This is by the same right and power that enables the government to regulate descents, make distribution of estates, make j^artition, and to sell such property as is not divisablc in kind ; or may not be so distributed if personal. § 35. Such is the power of the government and courts in this respect, that the judicial arm reaches every possible inter- est. The rights of "unborn remainder men" and of persons "who are not before" the court, "maybe concluded;" the court "acts upon the property" and the rights of parties in interest, as before stated, are "transferred from the property to the fund." Such is the ruling and the language of the court in Bofil v. Fislier and kindi-ed class of cases. In the ease of Bofils the court say: "To say that the court could not under circumstances like these, convey away the fee, would be to assert a doctrine that would render conditional limitations and contingent remainders an intolerable evil to a growing and prosperous community." § 30. By such proceedings and sales, in probate, to pay a decedent's debts, where jurisdiction has attached, the pur- chaser, in some of the states, holds the lands freed from all liens and claims, save dower, in the resulting interest of decedent's heirs in the dower lands, and except such liens as are of such a character that the amount thereof cannot be rendered certain (as for instance, to supj^ose a case, a life an- nuity) so that the same may be paid off out of the proceeds of sale.- § 37. In probate sales to pay debts, this rule of paramount Bofil V. Fisher, 3 Rich. Eq. 1; Miller's Exrs. «. Greenbaum, 11 Ohio 4t. 486; Moore ». Shultz, 13 Penn. St. 98; McPherson «. Cunliff, 11 S. &R. t30. ^ Moore 'o. Shultz, 13 Penn. St. 103, 103; Grignon's Lessee ?;. Astor, 2 How. 338; West d. Townsencl, 12 Ind. 434; Western Penn. R. R. Co. b. Johnson, 59 Penn. St. 290, 294. In this last case the court say: "It is a familiar principle that a judicial sale extinguishes liens, not estates or interests of third persons." Cadruns «. Jackson, 52 Penn. St. 295. 20 JUDICIAL AND EXECUTION SALES. rig-lit ill tlie court extends to creditors and heirs only, and not to adverse claimants of title otherwise than throiiffh the heirs. 1 § 38. Though this plenary power of the proper court, over the real estate of a deceased debtor, may seem unwarranted and anomalous at the iirst view, yet is not more so than is the power which the law gives the administrator or executor over the personal effects, which he may sell and dispose of, for the payment of debts wdthout regard to the heirs, who are, never- theless, in either case, entitled to the property if there be no debts or it be not sold in the course of administration. We are not unmindful that the personality is said to vest in the executor or administrator. But not unconditionally; only for a purpose; and quere as to the administrator? For, if so, must it rest in abeyance until his appointment? Ilis title is more in the nature of authority to collect, preserve, and if need be, or the law require it, to sell. All which is without any notice to the heirs and is by force of the same law and law-making authority that decides who shall be heirs. The power to confer heirshij) implies power also to define the terms on which it shall be conferred. § 39. The doctrine laid down in Pennsylvania, that judicial sales discharge all liens susceptible of being ascertained to a certainty, is not to be understood as assuming to vacate or destroy, but rather to discharge the same out of the proceeds of sale according to priority so as to close the title to the purchaser. 2 And sales made in proceedings for partition being in their nature judicial sales, have the same eifect.^ ' Shields V. Ashley, 16 Mo. 471. ^ Girard Life lus. Co. v. Fftrmers' & Mechanics' Bank, 57 Pcuu. St. 388, 390, and see Miller's Exrs. «. Grcenhaum, 11 Ohio St. 48G. 3 Girard Life Ins. Co. v. Farmers' &, Mechanics' Bank, 57 Penn. St. 388, 39G, 397. In this case the court say on this subject: " We come then to the more general question, whether a sale in partition by writ discharges the lien of a mortgage on the undivided interest of one of the parties. A sale in partition is alwa3's for the purpose of enabling division. It is authorized only when it has been determined that the land, which is its subject, cannot be divided according to the command of the writ 'without prejudice to, or spoiling the whole.' When that appears, the law directs u sale in order to convert that which is impartible into an equivalent thr.t THE NATURE OF JLDICIAL SALES. 21 Ilcnce, the court held in the case of the Girard Life Ins. Co. tliat the sale in partition nnder tlic statute, though the statute males no provision to such efi'ect, discharged a prior mortgage lien upon the partitioned premises.^ is capable of distribution. Such a sale is eminently judicial— more strictly so than is a sale by a sheritt unaer an execution. It is made under an order of the court; its subject is in the hands of the court, and the pro- ceeds are necessarily brought into court for distribution. The act of 1799 requires that the moneys or securities realized from the sale ' shall be brought into court,' to be distributed. The Tvhole proceeding is more directly the act of the court than is any other sheriiTs sale, where the officer acts under instructions of the attorney, and where he may and often does distribute the purchase money of the property sold, without any supervision or direction of the court. That Orphans' Court sales in parti- lion are judicial sales, was decided in Sacket v. Twining, G Harris, 202, and recognized in Jacob's Appeal, 11 Harris, 477. I am not aware that it has been directly decided whether a sale in partition by writ in a common law court, is judicial or not, though Allen n. Gault, 3 Casey, 473, substan- tially rules that it is. But without any positive determination, it is impos siblo to doubt that it is to be so regarded. It certainly has- everything which in other cases is regarded necessary to make a sale judicial, and it is even less under private control than almost any other which is confess- edly such. Next it is to be observed that judicial sales in this state discharge all liens. This is a rule of almost universal application. There are, indeed, some exceptions to it, created by express statutory enactment, and others growing out of the peculiar character of the lien or encum- brance; but it has long been regarded as sound policy that property purchased at a judicial sale should pass into the hands of the purchaser clear of all mere liens. Exceptions to the rule are allowed only from necessity. If property be thus sold, the chances are greatly increased that It will bring its full value, thus benefiting alike the owners and lien creditors. Sales in partition have never been recognized as exceptional, and it is not easy to discover any reason why they should be. In them it is as much for the interest of the owners of the land and for holders of liens upon it, or parts of it, that purchasers shall not be compelled to look after incumbrances, as it is in any other judicial sale. And incumbrancers have the same notice that is given to them in ordinary cases of sales under a venditioni exponas. They have no reason to complain, therefore, if their liens be discharged from the land, and attached to its full equiva- lent the proceeds of the sale. Surely a sale in partition should not be taken out of the general rule which regulates judicial sales and their con- sequences without some controlling reason. Exceptions are not to be multiplied unnccessaril3^" ' Girard Life Ins. Co. v. Farmers' & Mechanics' Bank, 57 Penn. St. 388. The court, in this ease, quoting the language in Williard v. Norris, 22 JUDICIAL AND EXECUTION SALES. § 40. In Illinois it is liolden tliat a proceeding on Jiei'l facias to foreclose a mortgage under the statute, is a proceed- ing in rem and not in j)ersonam. In such case the practice is for the court to find the amount due against the defendant and order a sale of the mortfraf SALES. 31 class of cases are void db initio. There can be no valid sale "without a valid writ, and no writ is valid as an execution that is based on a void judgment. ^ § 64. Against mere irregularities, it is the policy of the law to sustain execution sales, as against the judgment debtor. § 65. In Indiana, when the execution plaintiff is purchaser at an execution sale, and the judgment is thereafter reversed, the sale is void under the statute;" and so likewise if the judgment be reversed only in part; as for costs, when the sale is made for both debt and costs. ^ § ^Q. In Ohio, under the appraisement law of 1541, sales at law on execution are required to be confirmed by the court. It is there holden that when the execution plaintiff is pur- chaser and has not conveyed the property away to a bona fide purchaser by the reversal of the order of confirmation, the sale becomes a " nullity " and the title is " divested " out of such execution purchaser.^ § 67. It is further held by the Iowa court, in Tivogood v. Franklin,^^ that the effect of the reversal is to avoid the sale and defeat the title in the hands of such execution purchaser, so buying with notice of appeal, and also the title of his grantee, who takes by purchase, under him, with knowledge, after the reversal of the judgment. Tlie latter result follows as a matter of course, as a grantor can confer on one having like notice with himself no better title than he himself has. § 68. In Iowa, it is provided by statute that bona fide ex- ecution purchasers of property, under a judgment that is subsequently reversed, shall not be affected in their title by such reversal.*' The courts of that state hold, however, that where an appeal is taken from a judgment, although there be no supersedeas ' Abbe v. y.^ood, 8 Mass. 79. - Hutchens v. Doe, 3 Ind. 528 ; Doe v. Crocker, 2 Carter, 575. = Hutchens- ». Doe, 3 Ind. 528. 4 McBain v. McBain, IG Ohio S. 337, 349. 5 27 Iowa, 239. « Revision of 1860, Sec. 3541. 02 JUDICI.iL AXD EXECUTION SALES, Dona given, ana tno piamiiif lakes execntiou anu purenascs thereon pending the appeal, that such execution purchaser is not, in reference to such a transaction, a hona fide purchaser; that he is not witliin the provisions of said section 354:1 of the Eevision, and that his grantee buying after reversal is in a like condition. ^ » Twogood V. Franklin, 27 Iowa, 239. PAUT SECOND. JUDICIAL SALES CF EEAL PROPERTY. CIIAPTEP III JURISDICTIOX OF THE COURT ORDERING THE SALE. I. The JutvISdictiox is Local. IL JuiiisDiCTiON IS Power to Hear and Determine. IIL There IMust be Jurisdiction op the Subject Matter and of THE Particular Case. IV. Title Passes by Operation of Law. I. The Jukisdiction is Loay.. § GO. Jurisdiction of real property can only be obtained by the tribunal of tlie country wherein tlie property is situated. Lands lying in one state cannot be readied or sold nnder an order, license, or decree, of a court of another and different state. The jurisdiction is local. The le:c loci rei sitcB gov- erns. ^ II. It is Powkk to Hear A>rD DETERiUNE a Cause. § TO. Jurisdiction in the court is power to " hear and determine" the particular cause involved. ^ If this power to > Watts «. Waddle, G Pet. 400 ; Story, ConQict of Laws, Sees. 19, 20, 538, 543; Nowler i>. Coit, 1 Ham. 519; Brown v. Edson, 23 Vt. 435; Ex parte Read, 3 Sneed (Teun.) 375; Rogers v. McLaiu, 31 Barb. 304; Tardy t. Morgan, 3 McLean, 358; McCormack v. Sullivan, 10 Wheat. 192; Wilkin- son V. Leland, 2 Pet. G27, 055; Price v. Johnson, 10 Ohio, St. 390; Blake V. Davis, 20 Ohio, 231 ; Lattinger v. R. R. Co. 43 Mo. 105. ^ United States ■y. Arredondo, G Pet. 709 ; Grignon's Lessee v. Astor, 3 How. 338 ; Beauregard «. New Orleans, 18 How. 502, 503 ; Wilder v. City of Chicago, 2G 111. 179, 182; Shelden v. Newton, 3 Ohio St. 494; Smiley r. Sampson, 1 Neb. 56, 70. In Grignon's Lessee v. Astor, the United States 3 (33) 34 .JUDICIAL AjST) execution SALES. hear and determine the particular case docs not exist in the court in point of law, then there can be no jurisdiction of the case. If it does exist, then to confer actual jurisdiction of the particular case, or subject matter thereof, the jurisdictional power of the court must be invoked or brought into action, by- such measures and in such manner as is required by the local law of the tribunal. When this is done, it is then coram judi- cis. If this be not done, there is, at least, error, if not wani of validity in the proceedings. § 71. The manner of conferring actual jurisdiction of the particular case is variously modified and regulated by thp Supreme Court say: "The power to hear and determine a cause is juris- diction ; if the petitioner presents such a case in iiis petition, that on a demurrer the court would render a judgment in his favor, it is an un- doubted case of jurisdiction; whether on an answer denying and puttinij in issue the allegations of the petition, the petitioner makes out his case, is the exorcise of jurisdiction conferred by the tiling a petition containing all the requisites, and in the manner required by law. 6 Pet. 709. Any movement by a court is necessarily the exercise of jurisdiction. So to exercise any judicial power over the subject matter and the parties, the question is, whether, on the case before the court, their action is judicial, or extra judicial, with or without the authority of law, to render a judg. ment or decree upon the rights of the litigant parties. If the law con^^rs the power to render a judgment or decree, then the court has jurisdiction what shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action by hearing and determining it. 12 Pet. 718; 3 Pet. 205. It is a case of judicial cognizance and the pro- ceedings are judicial. 12 Pet. 623. This is the line which denotes juris- diction and its exercise. In cases in personam, where there are adverse parties, the court must have power over the subject matter and the parties; but on a proceeding to sell the real estate of an indebted intestate there are no adversary parties, the proceeding is in rem, the administrator represents the land, 11 S. & R. 432; they are analogous to proceedings in the admiralty, where the only question of jurisdiction is the power of the court over the thing, the subject matter before them, without regard to the persons who may have an interest in it; all the world are parties. In the orphans' court and all courts who have power to sell the estates of intestates, their action operates on the estate, not on the heirs of the intes tate; a purchaser claims not their title, but one paramount. 11 S. & R 420. The estate passes to him by operation of law. 11 S. & R. 428. The sale is a proceeding in rem, to which all claiming under the intestate are parties, 11 S. & R. 429, which directs the title of the deceased. 11 S. & R. 430." JUDICIAL SALES OF KE.VL I'KOrEIiTY. 35 enactments of the different states in rco;ard to notice and mat- ters of practice, and wliicli sliould severally be conformed to as necessary to give validity to tlie proceedings. To effect tins the petition or plaint must be sucli as is sustainable on de- murrer. ^ § 72. But altliougli such conformity, as to notice and other matters of practice, may not appear to have existed from the record itself, yet if jurisdiction of the particular cause fully attached by such petition as is sustainable on demurrer, then the existence of notice and other incidental requirements will be inferred after judgment or decree; and the question in regard to the same will not be open to collateral inquiry. The record, including the presumptions in law, so arising therefrom, will be received, on collateral inquiry, as verity. ^ ' Morse v. Goold, 11 N. Y. 381; Jackson v. Babcock, IG K Y. 246; Gib- son t). Roll, 30 III. 173; Johnson i;. Johnson, 30 111. 215; United States v Arredondo, G Pet. 709; Reddick v. The Bank, 27 111. 147; Alabama Confer, cncc V. Price's Exrs. 43 Ala. 49; Grignou's Lessee -o. Astor, 3 How. 338 ; Goudy V. Hall, 30 111. 109 ; Whiting v. Porter, 33 111. 445 ; Mason v. Mes- senger, 17 Iowa, 2GS; Smily v. Sampson, 1 Neb. 5G, 70. = Morrow v. Weed, 4 Iowa, 77; Grignon's Lessee v. Astor, 3 How. 219; Reeves v. Townsend, 3 Zab. 396; Paul v. Hussey, 35 Maine, 97, 100; Fox v. Hoit, 13 Conn. 491; Wilson v. Wilson, 18 Ala. 176; Sheldon v. Newton, 3 Ohio, (N. S.) 495; Simpson v. Hart, 1 Johns. Ch. 91; Davenports. Smith; 15 Iowa, 213; Hart v. Jewctt, 11 Iowa, 376; Frazier ». Steenrod, 7 Iowa, 339; Myers v. McDougall, 47 111. 287; Carter v. Waugh, 43 Ala. 452; Mer- ritt V. Home, 5 Ohio St. 318; Rhode Island v. Massachusetts, 13 Pet. 657. The court, in the case of Grignon's Lessee v. Astor, add on this subject that, "The granting the license to sell is an adjudication upon all the facts necessary to give jurisdiction, and whether they existed or not is wholly immaterial, if no appeal is taken; the rule is the same whether the law gives an appeal or not; if none is given from the final decree, it is con- clusive on all whom it concerns. The record is absolute verity, to contra- dict whicli there can be no averment or evidence, the court having poAver to make the decree, it can be impeached only by fraud in the party who obtains it. G Pet. 729. A purchaser under it is not bound to look beyond (he decree, if there is error in it of the most palpable kind; if the court which rendered it have, in the exercise of jurisdiction, disregarded, mis- construed, or disobeyed the plain provisions of the law which gave them the power to hear and determine the case before them, the title of a pur- chaser is as much protected as if the adjudication would stand the test of a writ of error; so where an appeal is given but not taken in the time prescribed by law. These principles arc settled as to all courts of record 36 JUDICIAL AXD EXECUTION SALES. III. There :must not only ue Power to take Jurisdiction of tiie Subject Matiek, but tiiebe must be Actual Jui^isdiction of the Particular Case. § 73. The power of tlic court, as we liavc seen, over the proj)erty or subject matter referred to in the proceeding must 1)0 invoked over the particular case by a petition good upon demurrer: and so it must, bv personal notice, or service, where, l)y statute, the latter is essential to confer jurisdiction. ^ § 74. The action of the court and the notice of sale, as also the sale itself, must be of and concerning the same subject matter described in the petition. If the want of sueh con- formity appears, as if the petition be in reference to one tract of land, and the decree, sale, or notice of sale, be of another and different one, then no title will pass by the sale. The proceedings, so far as the sale is concerned, will be a nullity. In Frazier v. Steenrod^ the order of sale and the notice of sale were for entirely different tracts of land, and the court held the sale void, although the sale was of the tract described in the order, and the sale and deed had been approved by the probate court.- § 75. The principle of caveat emptor applies and the buyer must lookout for himself. ^ No mere error, however, or irreg- ularity, will affect the validity of the sale on collateral inquiry. The remedy for these is by appeal, if one be by law allowed ; and if not allowable, then the adjudication and proceedings arc ^v]ucl^ have an orii^iual general jurisdiction over any particular subjects; they arc not courts of special or limited jurisdiction; they are not inferior courts, in the technical sense of tlie term, because an appeal lies from their decisions." * Alabama Conference «. Price, 43 Ala. 40, and ante p. 33, u. 1 ; Cooper r. Sunderland, 3 Iowa, 114; Moore I). Kiel, 39 III. 250; Frazier ». Steenrod, 7 Iowa, 339 ; Torrance v. Torrance, 53 Penn. St. 505 ; Long v. Burnett, 13 Iowa, 28; Sheldon v. Newton, 3 Ohio (N. S.) 495; Stokes ■;;. Middleton, 4 Dutch. (N. .1.) 33; Gerrard «. Johnson, 13 Ind. G3G; Carter r. Waugh, 43 Ala. 453 ; Satcher n. Batcher's Admr. 41 Ala. 2G. ''Frazier v. Stecnrod, 7 Iowa, 340; Weed v. Edmonds, 4 Ind. 4G8; TThcat- ley ■». Tutt, 4 Kan. 195. '3 Vandevere v. Baker, 13 Pcnu. St. 12G. JUDICIAL SALES OF EE^UL, morERTY. 37 liiial, and so far as respects sucli errors or irregularities are valid ;^ then tlie record is absolute verity in all collateral jjro- ceedino-s if jurisdiction lias properly attached. ^ § 76. If the court bo one of general jurisdiction and the property be within its jurisdictional territorial limits, then it has poM'cr to take jurisdiction of the cause and of the subject matter. Or if it be a court of general jurisdiction, over sub- ject matter of only a limited description, yet its jurisdiction is general j^ro tanto, and the same power exists in the court, over such subject matter, when jurisdiction has actually at- tached, as if the court were a court of imrestricted general jurisdiction ; and the same presumptions then arise from the record as from the record of a court of full general jurisdic- tion. ^ And if there be no appeal, the adjudication is final. § 77. In either case, the court being thus clothed with legal capacity to take jurisdiction of the subject matter, then to give it actual jurisdiction and also jurisdiction of the particular case, whether in personam, or in rem, there must be filed a petition, or bill, or Avhat else stands in lieu thereof, correctly describing and identifying the property sought to be afiected, or sold, and also avering such facts as are necessary to the proper action of the court, "^ to enable it to make the ' Goudy V. Hall, 30 111. 109 ; Grignon's Lessee v. Astor, 3 How. 319, 340 ; Morrow «. Weed, 4 Iowa, 77; Thompson, v. Tolmie, 3 Pet. 1G9; Todd i\ Dowd, 1 Met. (Ky.) 38 ; Frazier v. Steenrod, 7 Iowa, 339 ; Pursley v. Hays, 23 Iowa, 128; Boswell «. Sharp, 15 Ohio, 447; Walker ■». Morris, 14 Geo. 333; Elliott v. Piersol, 1 Pet. 340; Dingledine v. Hershmau, 53 111.288; Beauregard v. New Orleans, 18 How. 497. 2 Grignon's Lessee v. Astor, 3 How. 340 ; Sheldon v. Newton, 3 Ohio St. 494; Beauregard v. New Orleans, 18 How. 341; Thompson v. Tolmie, 3 Pet. 1G5; Goudy v. Hall, 30 111. 109; Shriver's Lessee v. Lynn, 3 How. 43; Covington v. Ingram, C4 N. C. 123; Woods v. Lee, 31 La. An. 505; Southern Bank v. Humphrej-s, 47 111. 227; Parker v. Kane, 33 How. 14; Alexander r. Nelson, 43 Ala. 463 ; Dequindrc v. Williams, 31 Ind. 444. ^ Pursley V. Hays, 33 loAva, 1 ; Grignon's Lessee v. Astor, 3 How. 339 ; Beauregard v. New Orleans, 18 How. 503, 503. * lb.; Jackson v. Robinson, 4 Wend. 43G; Weed ». Edmonds, 4 Ind. 4G8; Finch «. Edmonson, 9 Texas, 504 ; Shriver's Lessee v. Lynn, 3 How. 43; Morrow v. Weed, 4 Iowa, 77; Elliott v. Piorsoll, 1 Pet. 340; Satcher r. Satcher's Admr. 41 Ala. 2G. oS JUDICIAL AND EXECUTION SALES. order of sale, and sale. The facts are sufficient, if good, on demurrer. § T8. If tlie proceedings be also in personam, witli intent to bind the person of the party proceeded against, as well as to act in rem upon the j^roperty, as is some times the case, then there mnst be, to make a personal judgment valid, per- sonal service on the o^vner of the property so as to get juris- diction of the person. Without such personal service or notice, if there be no appearance, any judgment or decree in jpersonmn will be void. But the judgment or decree in rem will be binding notwithstanding. § 79. If however the proceeding be purely in rem, then such other notice, if any, as is required by the local law, must be given, and this too in addition to the filing of a petition. Tlie latter is to confer jurisdiction of the particular case. But such notice will be inferred after decree if there is no statute requiring it to appear in the record and the contrary of its existence be not ascertainable from the record and proceedings of the ease, and jurisdiction shall have actually attached by a petition with proper averments and allegations sustainable on demurrer. ^ § 80. If the jH'oceedings be in rem for the sale of a dece- dent's lands, and no notice as a condition to the validity of the sale be by law required, then none is necessary to such validity, but only as against error, although a directory law may require notice. "The power of the court "^ is over the property, or ' Grignoii's Lessee 'v. Astor, 3 How. 319, 340 ; Simpson t. Hart, 1 Johns. Ch. 91 ; Cooper «. Sunderland, 3 Iowa, 114; Stokes «. Middleton, 4 Dutch. (N. J.) 32; Sheldon v. Newton, 3 Ohio St. 494. 2 In Beauregard ■». New Orleans, 18 How. 497, the court say : " And when the object is to sell the real estate of an insolvent or embarrassed succession, the settled doctrine is there are no adversary parties. The proceeding is in rem. The administrator represents the land. They are analogous to proceedings in admiralty where the only question of juris- diction is the power of the court over the thing — the subject matter before them — without regard to the parties who may have an interest in it. All the world are parties. In the Orphans' Court and all the courts which have power to sell the estates of decedents, their action operates on the estate, not on the lieirs of the intestate. A purchaser claims not their (itle, but one paramount. The estate passes by operation of law." JUDICIAL S.UJiS OF KEAL TKOrEUTV. 39 tiling, before it, ''without regard to the parties who may have an interest in it. All the world are parties." The estate passes then by operation of law. Tlie power of the law lays hold of it through the court and passes the title by a right paramount to the right of heirs ; ^ and as we conceive, a right which underlies all titles. The same right and power that enables the state to establish heirship and decide who shall be a dead man's heirs. That same power may well seize on, and fir:it apply the property to payment of the decedent's debts, and leave the heirship or inheritence to be of the residue only, and to be liolden b}^ a right which the law postpones until the debts are paid. § S 1. In Wisconsin, where the case of Grignoii's Lessee v. Astor originated, the state courts, seemingly, repudiate the rulings in that and its kindred cases, and hold that in proceed- ings in probate by an administrator for sale of a decedent's lands to pay debts, the record should show notice to the heirs at law to have been given according to the requirements of the statute; and that in the absence of such showing tlie sale cannot be sustained, even in a collateral proceeding. ^ ' Grignon's Lessee v. Astor, 2 How. 319, 338 ; Beauregard v. New Orleans, 18 How. 497, 503 ; Satcher «. Satclier's Admr. 41 Ala. 26 ; Sheldon v. New- ton, 3 Ohio St. 494; McPherson v. Cunliffe, 11 S. & R. 432; Perkins r. Fairfield, 11 Mass. 227; Saltonstall v. Riley, 28 Ala. 164; Paine v. Morland, 15 Ohio, 442; Robb «. Irwin, 15 Ohio, 698; Benson v. Cilly, 8 Ohio St. 614; Borden v. The State, 6 Eug. 519; Tongue v. Morton, 6 Har. & J. 23; Rice V. Parkman, 16 Mass. 328; Williamson v. Leland, 2 Pet. 657; Sohier ». Mass. Genl. Hos. 3 Gush. 487. ' Gibbs V. Shaw, 17 Wis. 197. In this case, Patne, J., delivers the opinion of the Supreme Court of Wisconsin in the following terms: "Without passing upon any of the other objections to the validity of the sale of real estate by the first administrator. Wells, we think that sale must be held void, because the record fails to disclose any notice to the heirs at law of the time and place of hearing the application. The statute required such notice to be given before any such application should be heard. Statutes of 1839, p. 317, Sec. 29. The record offered to sustain that sale contains no proof whatever that any notice was given. The only thing upon which it could be assumed is a fragment of a recital in the order granting the license, to the effect that it appeared to the judge that the notice had been 'published in the Wisconsin Enquirer,' but leaving blanks at all the places where the facts should have been specified, show- 40 JUDICIAL AXD EXECUTION SALES. § S2. But the previous case of Starh v. Brown, '^ referred to in Crlhhs V. Shcnv, as basis for tlie latter ruling, does not accord \vitli tlie latter. It is not in point. For although the court hold therein that to confer jurisdiction and make a valid decree and sale, the heirs must be made j)arties and must be brought into court bj notice or by some legal means or other; yet, the case in 12th AViseonsin, in which this ruling is made, ■was a case of foreclosure of a mortgage, brought against the administrator of the deceased mortgagor, in which the heirs at law were not made parties, while the case of Cr'tblsv. Shaiv was a proceeding in probate by the administrator to sell a decedent's lands under the statute for payment of debts. The court expressly draw this distiction betwixt the two cases, in delivering the opinion in Stark v. Broion, and decline to discuss or decide upon the correctness of the ruling in Grignoii's Lessee v. Astor.^ To illustrate which we subjoin in a note so much of the o-'oinion in Stark v. Broion as beai's ■upon that point. ^ ing such publication to liave been according to the statute. And -v\'ithout determining whether a complete recital of all the facts necessary to show a proper notice in an order granting a license by a probate judge would be sufficient to sustain the proceedings, in the absence of any other proof of notice in the record, it seems clear that such a recital as this cannot be so, it being evidently incomplete on its face, and failing to show or even recite the necessary facts. The question then is, whether an administra- tor's sale, under a license from the probate court, can be sustained where the record fails to show notice to the heirs at law as required by statute ? And we arc of the opinion that it cannot be. There may be some cases where it is intimated that such notice is not jurisdictional. But we regard the opposite doctrine as established by the weight of authority, and resting upon the soundest principles, and that it is also established that the rec- ords of probate courts must show jurisdiction in order to sustain their proceedings." ' 13 Wis. 582. =" Stark V. Brown, 12 Wis. 572, 582, 583. One class of these cases— sales in probate— rest on the paramount power of the courts and of the law; the other case— Stark ■». Brown— rests in a mortgage contract. '"'Counsel relied upon the case of Grignon's Lessee il Astor, 2 IIow. 319, as establishing the proposition 'that in a proceeding to sell the real estate of an indebted intestate, there are no adversary parties, the pro- ceeding is in rem, and the administrator represents the land,' etc. It is true that the court, in that case, asserted that doctrine, and held tliat the JUDICIAL SiMJ':S OF REAL IT.OrEliTV. 41 § 83. Now, the state court case, wliicli seemingly overruled Grignon's Lessee v. Astor, is not a parallel case; being a case for foreclosure of a mortgage it rested in contract and was prosecuted in the court of general chancery jurisdiction accord- ing to the practice in adverse litigation, whilst that of Grig- non's Lessee and its kindred cases are conducted in probate, nnder the special enactments conferring probate powers over the land of a decedent. § 84. ISTotwithstanding these rulings, some of which are by the highest court in the nation, and which we conceive to be the better doctrine, there are numerous decisions to the provision in tlie statute requiring notice to be given to tlie parties inter- ested before tlie court sliould pass upon the application, did not affect its jurisdiction. Wlietlier that is the haw or not in this state with respect to sales by administrators, wc shall not now attempt to decide. It is certainly not in conformity with a long list of adjudications that might be cited, among which are the following : Bloom v. Burdick, 1 Hill, 130; Sherry v. Denn, 8 Blackf. 542 ; Given v. McCarrol, 7 S. «& M. 351 ; Lessees of Adams V. Jeffries, 12 Ohio, 253; Messenger v. Kintner, 4 Bin. 97; Schneider v. McFarland, 2 Comst. 459 ; Bank v. Johnson and others, 7 S. & M. 449. But we do not feel called upon to discuss the correctness of that decision for the reason that it must be held to relate only to a proceeding by an administrator, under the statute, to sell the real estate for the payment of debts. When the court said that the administrator represented the land, they meant in that proceeding. And it would be entirely unwarrantable to say that they intended to assert that he represented it for all purposes, 60 that a foreclosure suit, to which he alone was a party, would divest the right of the heirs. There is a great difference between the two cases. In the one the statute expressly authorizes and requires him to proceed for the purpose of making a sale. The design is to pay the debts of the estate, which is one of his most important duties. In the other case it is conceded that there is no statute expressly requiring or authorizing him to be made a party to a foreclosure, and his character as a rejiresentative of the land for that purpose is sought to be derived entirely from the rights which the law gives him as to the possession and as to obtaining a license to sell on a certain contingency. Even if the case in 2d Howard should be held to establish the doctrine that on the direct statutory pro- ceeding by him to effect a sale for the payment of debts, he is to be considered as the representative of the land for all the parties interested, so that the judgment would not be void, though such other parties had no notice, we do not by any means think it can have that effect with respect to foreclosure suits, or any other, by wliich the title to property is sought to be affected." 42 JUDICIAL AISID KXECUnON SALES. contrary, wherein it is held that jurisdiction is in all cases alike necessary over both the subject matter of the proceedin<^ and of the persons of those in interest; and, therefore, decrees and sales without jurisdiction in some manner first obtained, as well of the j^erson, as of the particular case, are simply Yoid.i § 85. This question as to the necessity of j)ersonal jurisdic- tion in probate for sale of a decedent's lands came up in tlie Iowa Supreme Court, at December term, 1869, in Good v. Norley. ^ After great deliberation and a full investigation of the adju- dications, the court were equally divided as to whether juris- diction of the person of those in interest is necessary, under the Iowa statute, to the validity of an administrator's sale of lands for payment of a decedent's debts. By reason of sucli diversity of opinion the decree appealed from was affirmed, and, also, by one of the Justices deciding that jurisdiction had attached in the probate court over the persons of those now appealing to the Supreme Court. IV. TiTE TriLE Passes by Operation of Law. § 80. The title passes to the purchaser at judicial sale by operation of law.^ So it does from the ancestor to the heir,'^ ' French v. Hojt, 6 N. H. 370 ; Dakin v. Hudson, 6 Cow. 222 ; Babbit v. Doe, 4 Ind. 350; Doe v. Anderson, 5 lud. 34; Sibley v. Wells, 16 N. Y. 185; Doe v. Bowen, 8 Ind. 198; Bloom v. Burdick, 1 Hill. 140; Shelden «. Wright, 1 Seld. 518; Ridgway v. Coles, G Bosw. 486; Corwin v. Merritt, 3 Barb. 341; Stark v. Brown, 12 Wis. 572; Stelzman v. Pacquette, 13 Wis. 291 ; Gibson v. Shaw, 17 Wis. 197. 2 Good V. Norley, 27 Iowa, 188. (See a more particular statement of this case, post. c. IV, No. 4.) = 3Bouvier, 131, 132; McPherson v. Cunliff, 11 S. &R. 428; Grignon's Lessee v. Astor, 2 How. 338; Shelden v. Newton, 3 Ohio St. 494; Holloway V. Richardson, 13 111. 171. * Bank of Hamilton v. Dudley's Lessee, 2 Pet. 523 ; Drinkwater v. Drink, water's Admr. 4 Mass. 358; Shelden v. Newton, 3 Ohio St. 474; Holloway r. Richardson, 13 111. 171. JUDICIAL SALES OF EEAL rKOPEETY. 43 but subject first to the paramount right of government, through its courts, to apply it to pa;yTuent of ancestral debts, i without notice to anj one, if such shall be the legislative policy. § 87. Tlie government has the same power to direct the sale of lands for debts, before or after the owner's death, as it has to declare heirship by law, without which there would bo no heirship and no inheritence. We conceive that the power to do the one and the other, and also to make sales in partition, is found in a paramount right in government which underlies all title, and to which all title is subject, for the public good.^ ' Bank of Hamilton v. Dudley's Lessee, 3 Pet. 532; Newell v. Nowell, 8 Greenl. 223; Driukwater «. Drinkwater's Admr. 4 Mass. 358 ; Vansyckle v. Richardson, 13 111. 171 ; Wolf v. Robinson, 20 Mo. 459 ; Stillman «. Young, IG 111. 318; Sheldon v. Newton, 3 Ohio St. 494; (twice) Wilkinson v. Leland, 3 I'ct. 627; Watkins v. Holman, 16 Pet. 25; Gore v. Brazier, 3 Mass. 523. 2 In Vansyckle v. Richardson, 13 111. 173, the court say : " The real estate descends to the heir with this charge resting upon it. He cannot incum- ber or alien it to the prejudice of the rights of creditors. He acquires a vested, but not an absolute interest in the land. He takes a dcfeasable estate, liable to be defeated by a sale made by the administrator in the due course of administration. He has no just claim to the land until the indebtedness of his ancestor is fully discharged. He acquires an absolute title only to what remains af.er the debts ai-e extinguished." CHAPTEE IV. THE SALE. T. By -whom to be Madk. II. IIow TO BE Made. III. "Who may kot Btjy. IV. Notice of sale: Adjouunment. V. Coxfiumation. YI. When title Passes. VII. When kot aided ix Equity. VIII. Not affected by Reversal op Deciiee. IX. IIow affected by Limitation. X. IIow affected by Statute of Frauds. XI. When valid by lapse of Time. XII. IIow Enforced against the Purchaser. XIII. How carried into Effect in Favor of the Purchaser. XIV. Ratification by the Party Affected I. By avhom to be Made. § 8S. It is a general priiicij)le, applicable to all judicial sales, tliat they are to be conducted, unless diiFerently provided by statute, by a |)Grson designated for that purpose in the license, order, or decree, or under liis immediate direction and superintendence, but he may employ an auctioneer to cry tlie sale if it be done in bis presence. ^ § 89. "Sucli sales," says the court, in Blossom v. Hailroad Company ^^ "must be made by the person designated in the decree, or under bis immediate direction and super\dsion, but lie may employ an auctioneer to conduct tlie sale, if it be made in bis presence." § 90. And a subsequent part of tlie same decision tlie court ' "Williamson ■». Berry, 8 How. 495, 544 ; Blossom v. R. R. Co. 3 Wall. 205 ; Reynolds «. Wilson, 15 111. 394; Heycr v. Deaves, 2 Johns. Cli.154; Gould »;. Garrison, 48 111. 2G0. The decree must be conformed to and the statute regulatin.!? execution sales docs not apply. Blakcly t. Abert, 1 Dana, 185. = 3 Wall. 205. (44) THE SALE. 4:5 say: "Judicial sales arc always regarded as under the control of tlic court, subject to the power to set them aside, or to open the biddings at any time before the sale is confirmed, if there be proper ground for such interference;" and that " even after the sale is made, it is not final until a report is made to the court and it is approved and confirmed." ^ II. IIov/ TO DE Made. § 91. The sale is to be at public auction, and to the highest real bidder- unless it be otherwise authorized by the court, as is sometimes done. It must be for cash, unless the court order other terms, which it may do if deemed more beneficial to those in interest.'' But it must be for money, whether for cash in hand or on a credit. If the transaction should be for any other consideration it would be but a barter.* § 92. " Sale," say the Supreme Court of the United States, " is a word of legal import both at law and in equity. It means at all times a contract between parties to give and to pass rights of property for money, Avliich the buyer pays, or promises to pay, to the seller, for the thing bought and sold."^ In the same case, Williamsou v. Bernj^ the court, further, as to the manner of selling, say: " The usual mode of selling property under decree or order in chancery is a direction that it shall be sold with the approval of a master in chancery, to whom the execution of the decree 1 Ibid. ^ Veazic «. Williams, 8 Ho^y. 154; 2 Kent, Com. 537, 538. 3 Foster -B. Thomas, 21 Couu. 285; Reynolds «. Wilson, 15 III. 39G; Sedg- ■wick v. Fish, Hop. Ch. 594. * Sedgwick v. Fish, Hop. Ch. 594 ; Wilson «. Reynolds, 15 111. 394 ; Maples v. How, 3 Barb. Ch. 611; Foster v. Thomas, 21 Conn. 285; Williamson t. Berry, 8 How. 49G, 544; Noy, Max. Ch. 42; Bigley x. Eisher, 63 Penn. St. 155; Hushmackerw. Harris' Admr. 2 Wright, Pa. 498; Hilliard, Sales, 1230; Shep. Touch. 244. 'Williamsons. Berry, 8 How. 49G, 544; Noy, Max. Ch. 42, Risley r. Richer, 63 Penn. St. 155 ; Hushmacker «. Harris' Admr. 2 Wright, Pa. 498 ; Hilliard, Sales, 1230; Sedgwick v. Fish, Hop. Ch. 594. By the court: "The suggestion that credit may produce a higher price is equally appli. cable to all sales. But judicial sales arc not in general made on credit without the consent of parties." 4G JUDICIAL A^^'D EXECUTION SALES. in that particular Las becii confided. It matters not wlictlicr the sale is j^ublic or private by a person authorized to make it, Not that the approbation of the master in either case com- pletes a title to the purchaser. It is only the master's approval of the sale, and is one step towards getting a title. Before how- ever, he can get a title, he must get a report from the master that he approves the sale, or that he was the best bidder, accordingly as the sale may have been made privately or at auction. That report then becomes the basis of a motion to the court by the purchaser that his purchase may be confirmed." 1 -x- ^ -h: § 93, The court then, after laying down certain premises not material to our immediate subject, adds, that "we have been thus particular," (in reference to the sale and the master's duties,) " for the purpose of showing the office of the master in relation to a sale, and what is meant by subjecting a sale to the approval of a master, and to show that such a sale until approved by the master and confirmed by the court, gives no title to a purchaser of an estate which he may have bargained to buy, We do not mean to say that such cautionary proceed- ings upon sales under decrees and orders in chancery may not be dispensed with by a special order of the chancellor to pre- termit them, but that such are the proceedings when no special order has been given," ^ § 94:. Several persons may join together and lawfully bid as a unit if done in good faith. " It is not every joint bidder or partnership among bidders at a sale under a decree in chancery (say the court in Holmes v. Holmes,) that is corrupt and fraudulent. Such joint or partnership bidding may be perfectly legitimate." ^ 'Williamson v. Berry, 8 How. 546. * Williamson v. Berry, 8 How. 54G. ^Holmes v. Holmes, 3 Rich. Eq. 61; Smith v. Greenlee, 3 Dev. 128; National Bank v. Sprague, 20 N. J. 159, 1G9. In the case of Holmes v. Holmes, it is said: "To render them unlawful and void, there must be a fraudulent intent to depress and chill the sale, to obtain the property at an under value, or to obtain other undue and unconscientious advantages. An estate might be offered for sale which neither of two joint bidders would be able separately to purchase. Or, it might be that neither of two joint bidders, though able as to pecuniary means, would desire to pur- THE SALE. 47 § 95. But combinations to advance or reduce the price of the property, and all by-bidding, is illegal and fraudulent. ^ A minimum price may be fixed and made public below wliicli the property will not be allowed to go, and if made public it will not be legally objectionable. But without being made public it is in itself fraudulent.^ § 9G. By-bidding is fraudulent. It deceives. It misleads. It involves a falsehood. In the language of the United States Supreme Court, in Veazie v. Williams,^ it "violates, too, a leading condition of the contract of sales at auction, which is that the article shall be knocked off to the highest real bidder without puffing," § 97. Tlie court will sometimes appoint a bidding to pre- vent an estate from going under value, on special showings to the court. 4 § 98. Judicial sales are in no wise subject to the operation of either valuation laws or redemption laws fixed by statute relative to sales at law on writs of execution,^ unless the statute declare them so. § 99. InWoods V. Monell,^ Chancellor Kent lays down the rule in execution sale, " that where a tract of land is in parcels, distinctly marked for separate and distinct enjojnnent, it is in general tlie duty of the officer to sell by parcels, and not the whole tract, in one entire sale. This rule had been j^rcviously asserted in lioicJey v. Webh, chase the whole of the estate offered for sale, though each would he desirous to become the owner of a part. Such persons, if not permitted to unite in their bidding would not enter into the competition at all. To adopt so stringent a rule as that contended for, in reference to sales in chancerj', would, in many instances, have the effect of diminishing, instead of enhancing the prices." ^ Veazie v. Williams, 8 IIow. 154; Holmes v. Holmes, 3 Eich. Eq. Gl. - Veazie v. Williams, 8 How. 153 ; 3 Kent, Com. 538, 539. Eoss on Sales, 311. 3 Veazie v. Williams, 8 How. 154; 2 Kent, Com. 538, 539. ♦ 2 Daniels Chy. 1448. 'Blakely v. Abcrt, 1 Dana, 185; Gould v. Garrison, 48 HI. 258. « 1 Johns. Ch. 505. 48 JUDICIAL AND EXECLTIOX SALES. ix^Executors of Stead v. Course, and is referred to by Chancellor Kent with aj)probation in AVoods v. Monell.^ § 100. Unless there be special reasons to the contrary, (or the court otherwise direct,) the sale, when made in parcels, should be made in such order as the debtor may desire." § 101. It is the duty of the person selling to sell in such order as will be likely to produce the largest amount for the smallest quantity of lands, in his best judgment. But he must exercise a sound discretion. Ordinarily, where a judicial sale of several lots or parcels of land is being made to satisfy a money decree, it is the duty of the referee or person conducting the sale, not only to sell in parcels, but to also respect the wishes of the debtor as to the order in which the lots should be sold, if there is no good reason to believe such order of sale will prove injurious. ^ § 102. And if the debtor and creditor cannot agree upon the order in which the property shall be sold, either party may apply to the court for instructions to the referee, and if deemed proper they will be given. ^ Such sales proceed under the control and supervision of the court, and it will " scrutinize the conduct of a party" placed in a position wdiere he may sacrifice the interest of another in a manner not easily to detect. " The unfortunate debtor," say the court, in King v. Piatt, " is not beneath its protection." And, "it will not tolerate the slio'htest advantaoje over him."^ § 103. " It is clearly competent for the court to 2:)rescribe the mode and terms" of sale, "provided it requires as much of the executor or administrator as the statute contemplates," and these requirements must be conformed to by the person ' Am. Ins. Co. v. Oakly, 9 Paige, 259 ; Wood «. Moncll, 1 Johns. Cli. 505 ; Pumyon V. N. Ark. In. Rub. Co. 4 Zabr. 473; Penn v. Craig, 1 Green. Ch. 495; Mohawk Bk. v. Atwater, 2 Paige, 54; Meeker v. Evans, 25 IlL 322; Rowley v. Webb, 1 Binney, Gl ; Executors of Stead v. Course, 4 Crauch, 309; Laughlin v. Schuyler, 1 Neb. 409. ^ King v. Piatt, 37 N. Y. 155. ' King V. Piatt, 37 N. Y. 155 ; Cauffman v. Sayre, 2 B. IMon. C09. ^Kingt). Piatt, 37 N.Y. 155, '- Ibid, and Collier v. Whipple, 13 Wend. 229, 230. THE SALE. 49 conductijig tlic salc.^ And so, also, in regard to tlic place of sale." If made at a different place than the one ordered, it will be invalid; tlie purchaser cannot enforce it, if opposed, and will not be compelled to perfect it if he oly'ects.^ And, quere, if even confirmation of a sale so made at an unauthoi'- ized place, will render it valid> If the manner and time of sale are not prescribed bj the decree, then they are vested in the sound discretion of the person or officer selling/' § 104. So far as the terms and conditions of sale are not regulated by the decree, the master or j)erson charged with the conduct of the sale may "adopt such means to prevent sham bidding " as have a tendency to promote fairness and to prevent fraud, and which may give confidence to f;iir and honest bidders as to their being justly dealt with." But all such regulations, as also the action and conduct of the person conducting the sale, are subject to the scrutiny of the court, whose judicial sanction thereof may be given, or denied, at discretion, and confirmation ordered or refused accordingly. § 105. A sale made under the statute of Indiana which submits the matter of selling in parcels to the judgment of the officer or person conducting the sale, will not be set aside by reason of the land not being sold in parcels, unless it be made to appear that the action of the officer was in that respect fraudulent. Unless it be made to appear that the officer selling acted otherwise than in accordance with his honest judgment, and in a fraudulent manner, the purchaser has aright to the benefit of his purchase.'^ § lOG. "When separate i)arcels of land are contiguous to ' Reynolds v. Wilson, 15 111. 394; Whcatly v. Tutt, 4 Kau. 195; Gould t. C.arrison, 48 111. 258; Williamson v. Beny, 8 How. 544. =■ Tally V. Starke, 6 Gratt. 339. = Tally V. Starke, G Gratt. 839; Bethel v. Bethel, G Bush (Ky.) G5, 09. •» Minnesota Co. v. St. Paul Co. 2 Wall. C09; Bethel ». Bethel, G Bush (Ky.) G5. " Blossom V. R. R. Co. 3 Wall. 19G, 208. '■ National Bank of the IMetropolis v. Sprague, 20 K J. Eq. 159, 1G5, IGG. ' Wright 13. Yetts, 30 Ind. 185, 183. 4 50 JUDICIAL AND ICXECUTIOX SALES. cacli otlicr, and being properly ofl'ered, no bid is received for tliem separately, they may then be sold together; but subject to the discretion of the court ordering the sale.^ III. Wno ]MAY KOT Buy. § 107. The person selling may not buy. Xor an}' person concerned or employed in selling, unless by leave obtained from the court. The rule is sweeping, and extends to all agents, commission- ers, trustees, guardians, administrators, executors, and others, whether selling under decree, or order of court, or otherwise, where others are interested in the property or in the proceeds of sale. They cannot be buyer and seller; bidder and crier; or combine other like incompatible capacities in one and the same transaction; common honesty and morality forbid it." § lOS. In M'lchoucL v. Girocl,^ the SujDreme Court of the United States characterize this principle in the following language: " The rule, as expressed, embraces every relation in which there may arise a conflict between the duty which the vendor, or purchaser, owes to the person M'itli whom lie is dealing, or on vrhose account he is acting, and his own indivi- dual interest." The general rule, the court say, "■ Stands upon the great moral obligation to refrain from placing ourselves in relations which ordinarily excite a conflict between self- interest and integrity." In such conflict the law interposes ' I'llartin v. Ilargadine, 46 111. 322. - Davoc V. Fanning, 2 Johns. Cb. 252; Miclioud «. Girod and others, 4 How. 555; Wormsley «. Wornislcy, 8 Wheat. 421; Ringo v. Biuus, 10 Pet 209; Oliver v. Piatt, 3 How. 033; Kruse v. Stcffens, 47 111. 114; McConnell T. Gibson, 12 111. 128; Thorp v. jMcCullum, 1 Gilm. 627 ; Pensonneau v. Bleakly, 14 111. 15 ; Wickliff v. Kohinson, 18 111. 145 ; Kobhins «. Butler, 24111.387; Dennis «. McCagg, 32 111. 429; Miles «. Wheeler, 43 III. 123. " The foct tliat the person entrusted by the law to make the sale becomes the purchaser, whether by direct or indirect means, creates such a pre- sumption of fraud as requires the sale to be vacated if application is made in proper time. The rule is regarded as firmly established by this court, and it is deemed unnecessary to review the authorities or to discuss ther reason of the rule." Kruse v. Stcffens, 47 111. 114, 115. ' Michoud V. Girod, 4 How. 503. Sec, also, Wormsley v. Wormsley, 8 Wheat. 421 ; Prevent v. Gratz, Wheat. 481. THE SALi:. 51 and proliiblts tlic party from selling to himself, and buying from liimsclf, that Avliich his duty requires him to sell for account of others. § 109. Such is the doctrine laid down in the case of Michoud V. Girod after a careful examination and review of the coniiict- ing cases, and which the court lay down as not only the rule in England, but that which, since the decision in Davoo v. F'anning,^ has triumphed " over all qualifications and relaxa- tions in the United States to the same extent that has becii achieved for it in England by the great chancellor. Lord Eldo]si." Such 25iirchases are now uniformly regarded by courts, both of law and equity, as not oiily against the policy of the law, as has been said, but also as against the law^ itself, and as totally inconsistent with fair dealing. They can in no case be maintained unless made by leave of the court, on formal aj)plication therefor. ^ § 110. One whose duty it is to discharge a debt, or any portion thereof, may not buy at a sale brought about by his own deriliction of duty in not paying as his obligation re- quires. Thus, where the cashier of a bank bought, at the sale for a debt which the bank was bound to pay for the debtor, it was held, that whether he purchased for himself, or for the bank, the sale could not stand. The court, in disposing of the cpies- tion, say: "The general interests of justice" require "that purchases made by persons holding a fiduciary situation in relation to the sale, should be set aside in all cases, if apj)lica- tion is made in a reasonable time," and that the purchaser could not be permitted to hold his purchase. ^ It were a fraud upon the debtor for those whose duty to him required them to pay the debt, to buy at a sale caused by their own default. ' 2 Johns. Ch. 252. * Michoud V. Girod, 4 How. 503; Wormslcyt«. Wormslcj-, 8 Wheat. 241; Prcvost V. Gnatz, G Wheat. 481; Benedict v. Butlcrficld, 11 Foster (]S". 11.^ 70 ; Beeson v. Becson, 9 Barr. 297. 3 Torrcv v. The Bank of Orleans, 9 Paige, 049. 52 JUDICIAL AND EXECUTION SALES. IV. Notice of Smju. Adjoukn^ient. § 111. The notice of sale, as to manner and time, must be such as the order and statute directs, and must correctly describe the proj^erty. If given difierent in manner, or for less time than required by the law or the decree, the sale will be void; and so, if there be a substantial misdescription of the prop- erty. ^ § 112. But if the discrepancy is not apparent in the pro- ceedings, or is not made to appear by other evidence, the ]:)resumption of law is, after the sale is confirmed, that no such discrepancy existed; and, therefore, this presumption, after confirmation, may not be rebutted in a collateral proceeding. - § 113. Notices by posting up in public places, are presumed to perish as soon as they have " discharged their ofiice." Tliere- fore, secondary evidence of them and their puii-)ort is admis- sible. -^ § 114. "Where notice "was given in the particular manner required, and there were no bidders, an adjourned sale made on a slightly variant notice, but from fair motives, was held valid. 4 § 115. I3ut if there is no jDarticular notice prescribed by the decree, then such reasonable notice should be given as will be calculated to give publicity and secure fair competition; and if the character of the notice given be of doubtful sufiiciency the court should refuse confirmation.-'' ' Reynolds r. Wilson, 15 111. C94; Frazier v. Stcenrod, 7 Iowa, 339. " Thompson «. Tolmie, 3 Pet. 157; Parker «. Kane, 23 How. 14 ; Beaure- gard «. New Orleans, 18 How. 497; Grignon's Lessee v. Astor, 2 How^ 319; Morrow ■». Weed, 4 Iowa, 77; Little t. Scnuett, 7 Iowa, 334; Long ij. Ben- nett, 13 Iowa, 28. ^ Brown v. Redwyuc, IG Geo. G7. * Farmers' Bank v. Clarke, 28 Md. 145. 5 Sowards v. Pritcliett, 37 III. 517, 524; Trustees of Schools v. Sncll, 19 III. 150. " It is 'I cherished object of courts to give stability to judicial sales, and at the same time, as far as possible, protect and guard the rights of the owner. In all such cases the chancellor is necessarily vested with a large discretion, and he must so exercise it as Avill promote justice and protect tlie rights of parties. And in the exercise of that discretion this court will not interfere if it seems to have been souudlj^ exercised." Sow- ards V. Pritchett, 37 111. 524. THE SALE. 5o § IIG. The officer malcing tlie sale inaj adjourn it, in tlie exercise of a reasonable discretion, witli honest intent and in good faith, and with a view to a faithful performance of liis duty (unless restricted by law).^ § 117. In the leading case cited, Blossom v. The R. B. ComjMny, the court say that such is the rule in execution sales at law, " and no reason is perceived why the same rule may not be safely applied in judicial sales made under the decretal order of a court of chancery." 2 And in Uichards v. Holmes^ they hold that a sale, " regularly adjourned, so as to give notice to all persons present of the time and place to which it is adjourned, is, when made, in effect the sale, of which previous public notice Avas given." ^ § lis. That the person or officer who is authorized to sell at public auction, after proper notice of the time and j)lace of sale, may regularly and legally adjourn the sale to a different time and a different j)lace, when in his fairly exercised discre- tion it shall seem necessary, in order to obtain a fair auction price for the property, is too well settled to remain a matter of doubt, subject always, however, to the scrutiny and wise discretion of the court ordering the sale, as to the confirma- tion thereof,'* § 119. In the language of the United States Sujn-eme Court, " If he has not this power, the elements, or many unexpected occurrences, may prevent an attendance of bidders and cause an inevitable sacrifice of the property. It is a power which every prudent owner would exercise in his OAm bekalf, under the circumstances supposed, and which lie may well be j)re sumed to intend to confer on another." And in the same case, "The courts of the several states have gone further in this direction than we find it necessary, though we do not intend to intimate any doubt of the correctness of their decisions. They 'Blossom v. R. R. Co. 3 Wall. 209; Collier ^•. ^Yliipplc, 13 Wend. 220; Brown «. Redwync, 16 Geo. G7. ■ Blossom «. R. R. Co. 3 Wall. 209. 3 18 IIow. 147; Tinkom v. Purdy, 5 Johns. 345; Russell v. Richards, 11 Maine, 371; Warren v. Leland, 9 j\Iass. 205; Lautz v. Worthiugton, i Barr, 153. * Richards v. Holmes, IS IIow. 147. 54 JUDICIAL AKD EXECUTION SALES. liave lield that a public officer, upon wliom a power of sale is con- t'eiTcd by law, may adjourn an advertised public sale to a different time and jjlace, for tlie purpose of obtaining a better price for the property. Thikom v. Purely, 5 Johns. 345; JRusscllv. liichards, 11 Maine, 371; Lautz v. Worthington, 4 Barr, 153; Warren v. Leland, 9 Mass. 265. ^ " § 120. The case of Hicliards v. Holmes arose on a sale by a trustee, under a deed of trust and not on a judicial decree. But the United States Supreme Court distinctly therein recog- nize the rule that otlicers selling under proceedings in court may adjourn the sale, and tlierefore the court assume that the trustee selected by the debtor himself may, by inference, do the same. But we would not be understood as claiming that the officer may, as a general rule, adjourn to a different place than the one named in tlie decree, if a place be named therein. Yet, even under such circumstances, sales have been allov.'ed and confirmed by the courts. ^ § 121. The notice of a judicial sale, if no time be fixed by the decree, should name the honr of the day at which the sale is to be made, or certain hours betwixt which it will take place, fixing the time in the ordinary business hours of the day; and the place of sale should be a convenient or public place, accessible to bidders, "When sale has been made under a notice which did not specify any hour or certain time of day for the sale, and tlie property was sold for a nominal sum, the sale was set aside.^ ' Richards v. Holmes, 18 How. 144, 147. - Farmers' Bank v. Clarke, 28 Md. 14o. = Trustees of Schools, etc., v. Sncll, 19 111. 15G. In this case, Skinnek, Justice, said : " This was a motion to set aside a sale of land made on foreclosure of a mortgage. The Circuit Court set the sale aside. The decree directed the master to sell upon four weeks' notice of the time, terms, and place of sale, published in a newspaper printed in the city of Pckin. The notice, published on the 4th of December, 1856, stated that the sale would be made on ' the 2d day of January next.' The proof showed that the property was sold at an enormous sacrifice. The notice as to the time of sale was insufficient. The 2d day of January included the astronomical period of a revolution of the earth upon its axis twenty- four hours. 2 Blackstone's Com. 141, and notes; 1 Cowen's Treatise, 297. The sale, therefore, might, consistently with the notice, have been maae TJIE SALE. 5.5 V. CoNFIItJIATIOX. § 122. Confirmation is tlie judicial sanction of the court. Until then ths bargain is incomplete. When made it relates back to the time of sale and " sup23lies all delects," ^ except those founded in defect of jurisdiction or in fraud. § 123. A sale of lands under a decree of a court not having jurisdiction of the subject matter is void and is not the less so for being' confirmed.- § 12-1. Until confirmed by the court, the sale confers no rights. Until then it is a sale only in a 230j)ular, and not in a judicial or legal sense. The chancellor has a broad discretion in the approval or disapproval of such sales. " The accepted bidder," (say the Supreme Court of Kentucky,) "acquires by the mere acceptance of his bid no independent right, as in the case of a purchaser under execution, to have his purchase completed;" but is merely a j^rcferred proposer, until con- firmation of the sale by the court, as agreed to by its " minis- terial agent." In the exercise of this discretion a proper regard is had to the interest of the parties and the stability of judi- cial sales. 2 By sanctioning tlie sale the courts make it their immediately before midnii^'ht of that daj^, and if it was so made, it is void- able. The object of a public sale is, by fairness and competition, to evolve the full value of the property exposed, and produce that value in the form of money. This can, as a general rule, only be done by making the sale at a convenient or public place, accessible to bidders, and during the ordinary business hours of the day. The notice shoiild have stated the hour of sale, or that the sale would be made between certain named hours of the business portion of the day. Decree affirmed." 1 Branch's Princt'ina, 28; Cockcy v. Cole, 28 Md. 27G; Kcelilcr r. Ball, 2 Kan. 160, 172; Williamson r. Berry, 8 How. 540. ^ Shriver's Lessee v. Lj-nn, 2 How. 43, 59, 69 ; 3 Bouvier, 415 ; Minnesota R. R. Co. «. St. Paul, 2 Wall. 609. ^Bussey v. Hardin, 2 B. Mon. 407; Taj^lor ». Gilpin. 3 Met. (Ky.) 544: Southern Bank v. Humphreys, 47 111. 227 : Williamson v. Berrj^ 8 How. 547; Thorn v. Ingram, 25 Ark. 52; Mason v. Osgood, 64 N. C. 4G7; Moore c. Shultz, 13 Penn. St. 102; Hays' Appeal, 51 Penn. St. 58; So wards v. Pritchett, 37 111. 517; Young v. Koogh, 11 111. 642; Ayres v. Baumgartner, 15 111. 444; Foreman c. Hunt, 3 Dana, 622; Campbell v. Johnson, 4 Dana, 186. In Hays' Appeal, 51 Penn. St. 61, the court say: " Even the highest bidder, whose bid has been returned to the court as the best oflcrcd, has acquired no right which debars the heirs or the counsel from endeavoring 6G JUDICIAJ. AND EXECUTION SALES. own. Tlierc is a difference between sucli sales and ordinary auction sales and sales by private agreement. In tbe latter, savs Daniel in bis Cbancerj Practice, " tlie contract is com- plete wlien tlic agreement is signed; but a different rule prevails in sales before a master. In sucb cases tbe purcbaser is not considered as entitled to tbe beneiit of bis contract till tbe master's report of tbe purcbaser's bidding is absolutely confirmed." Sucb is tbe rule wbetbcr tbe sale be by a master, commissioner, or otber person or functionary autborized by tbe court to conduct tbe sale. Tbe bargain is not ordinarily considered as complete until tbe sale is confirmed and tbe con- veyance is made.i § 125. Bat, altbougb tbere be no confirmation, if tbe deed be made and delivered, accompanied by possession of tbe premises, time may, and if sufliciently long will operate to confirm and ratify tbe sale, and will cure tbe title of tbe pur- cbaser. ^ § 126. Tlie court is clotbed witb an unlimited discretion to confirm a judicial sale or not, as may seem wise and just. Confirmation is final consent; and tbe court being tbe vendor, to have liis bid rejected and a resale ordered. It is their right to have as much obtained for the property as can be, and until a sale has been made and confirmed, they may seek for purchasers who are -willing to give more than was ofl'ered at the public auction. They may ask the court to open the biddings, to order a new exposure of the property at auction. His bid, though the highest, was but an olTer to purchase, subject to the approval or disapproval of the court, and in approving sales made in parti- tion it is the duty of the court to regard primarily the interest of the heirs." ' 2 Daniel, Ch. 1454; Rawlings v. Bailey, 15 111. 178; Blossom ». R. R Co. 3 Wall. 207 ; Childress v. Ilust, 2 Swan (Tenn.) 487 ; Williamson i>. Berry, 8 How. 496; Vallee vi. Fleming, 19 Mo. 454; Webster v. Hill, 3 Sneed (Tenn.) 333; Henderson v. Ilerrod, 23 Miss. (1 Cush.)434; Gowan ■?'. Jones, 10 S. & M. 1G4; Young v. Keogh, 11 111. G43; Wallace v. Hale, 19 Ala. 367; Robinson's Appeal, 02 Penn. St. 216; Ilaj's' Appeal, 51 Penn. St. 58; Koehler x. Ball, 2 Kan. 160, 172; Young v. Keogh, 11 111. 642; Ajvesv. Baumgartner, 15 111.444; Lisehy v. Gardner, 3 W. & Sergt. 314; Erb p. Erb. 9 W. & Sergt. 147; Webster v. Ilill, 3 Sneed (Tenn.) 333; Dickenson v. Talbot, 14 B. Mou. 60; Rawlings v. Bailey, 15 III. 178; Ayres v. Baumgart- ner, 15 111. 444. 2 Gowan v. Jones, 10 S. & M. 164. . THE SALE. 57 it may consent or not, at its discretion;^ but it cannot cliangc the terms of sale and tlien confirm. Sucli act would have no validity. ~ § 127. But confirmation, when made by the court, tliough subsequent to tlid day of sale, relates back to the date of the sale, if the date of sale is apparent of record or in the deed, and carries title as from that date.^ Confirmation cures all mere irregularities.'^ Such relation, however, as well as the validity of the transaction is dependant npon the jurisdiction of the court; for if the court has not obtained jurisdiction so as to enable it to decree, or having jurisdiction, and the sale be of lands not decreed to be sold or described in the decree, then, in either event, confirmation will not give validity; the sale will be void.^ § 128. The matter of confirmation rests so peculiarly npon the wise discretion of the court, in view of all the surround- ing facts and circumstances, to be exercised in the interest of fairness, prudence, and the rights of all concerned, that it is difiicult to come at any absolute legal rule on the subject other than that of a sound legal discretion. *5 § 129. Any mistake or misunderstanding between the per- sons conducting the sale and intended bidders or parties in interest, and any accident, fraud, or other circumstance by which interests are prejudiced without the fault of the injured party or parties, or by reason whereof property is sold at an under price considerably disproportioned to its real value, will be deemed sufiicient cause for refusing confirmation and for ordering a resale.'' And so, generally, whatever, and even 1 Ohio L. and T. Co. «. Goodin, 10 Ohio St. (N. S.) 557; Davis «. Stewart, 4 Texas, 223; Henderson v. Herrod, 33 Miss. (1 Cushm.) 434; Glenn v. Wotten, 3 Aid. Ch. Decis. 514; Andrews v. Scotten, 3 Bland, G43; Cunning- ham V. Schley, G Gill, 207; Harrison v. Harrison, 1 Md. Ch. Decis. 331. ^ Ohio L. and T. Co. v. Goodin, 10 Ohio St. (N. S.) 557; Benz «. Hines, 3 Kansas, 390. 'Evans v. Spurgin, 6 Gratt. 107; Wagner v. Cohen, G, Gill, 97. * Harrison v. Harrison, 1 Md. Ch. Decis. 831. ^ Schriver's Lessee v. Lynn, 3 How. 43 ; Tov.-nsend i\ Tallant, 33 Cal. 45. « Henderson v. Herrod, 23 Miss. (1 Cushm.) 434; Sowards v. Pritchett, 37 111. 517. ' Cohen v. Wagner, G Gill, 23G; Latrobe v. Herbert 3 Aid. Ch. Decis. 375. 5S JUDICIAL AKD KXECUTIOy SALES. less, than is snffieieiit to set a sale aside after its consummation will of course, upon the same principle, (if known,) cause confirmation to be denied. § 130. In California, where, it seems, that personal juris- diction of tliose in interest, is required in procuring decrees in probate for sale of a decedent's land by the administrator, it is held that without such jurisdiction the sale is void,i and will be so held in a collateral proceeding. So likewise is void any order of confirmation of such a sale, the order of sale itself being void.^ § 131. In an application of the administrator to sell lands of an estate wherein ho is also guardian of the heir, if personal notice to the heir is necessary by law, then the relations of administrator and guardian are antagonistic, and he cannot perfect a legal sale in acting for botli.^ § 132. The order of confirmation is in the nature of a final order, judgment or decree, and maybe appealed from.^ If there is jurisdiction, and the law allows no appeal, then it is final to the like extent as other judgments and decisions from which no appeal is allowed, are final. It cannot be assailed in a collateral proceeding. It is a judicial decision that the sale is properly made so far as facts aj^pear on the ofiicer's return. § 133. In some of the States, as in Kansas, the legal and tlie erpiitable jurisdictions and practice are so mingled into a " Townsend v. Tallant, 33 Cal. 45. "■'Townscnd v. Tallant, 33 Cal. 45. By tlic court: "Again, the defend- ants insist tliat the sale having been conlirmed by the probate court, can- not be collaterally attacked in this action, but that as against the plaintift" the confirmation is conclusive that the court had jurisdiction of both subject matter and parties. But if the order of sale was coram nonjudici, then the ' sale ' was no sale, and it could not be made valid and binding by any number of so-called confirmations. The sale being void, there was no subject matter upon which the order of confirmation could act. If the court had no jurisdiction to order the sale it had none to confirm it. Where there is no power to render a judgment, or to make an order, there can be none to confirm or execute it; or none at least without the help of legislation." 3 Townsend v. Tallant, 33 Cal. 4o ; Gregory v. Tabor, 19 Cal. 410 ; Ilaj^ncs r. Meeks, 20 Cal. 317. * Kcchler v. I5all, 2 Kansas, 100. THE SALE. 59 sort of livbrid system as to partake alike sometimes of each, and seldom exclusively of either. Thus, in that state, even in cases at law, instead of an ordinary writ of execution, an order of sale goes to the officer, partly under the control of the court and j^artly directed by statute, and tlie sale is to be reported for confirmation as well on legal as on equitable findings ; but when so reported, instead of being confirmable at the discre- tion of the court, the court is by statute required to confirm them, " if made in conformity to the provisions " of the statute. This renders the sale partly judicial and partly ministerial,^ and is a linding that the statute is complied with. YI. When the TriLE Passes, § 13-1. Tlie contract of sale is only executed so as to pass the title by payment of the money, and the execution and delivery of the deed, duly approved or confirmed by the court, as the practice may be.^ In the mean time, and until then, the title in administra- tion, executors and guardian sales remains in the ward or in the heirs, as the case may be, and in other cases it remains until then, in the former owner. ^ § 135. But if the deed be executed and delivered, and tlie consideration be paid, and the proceedings and sale are correct in all things other than rej)ort of the selling and order of con- firmation, yet tlie title, by long j)ossession of the premises, "without question of its validity, will ripen into a valid one by lapse of time, as is herein before stated."^ YII. AVhen kot Aided in Equfit. § 13G. A purchaser of real estate at a guardian's sale, whore 'Kcchler r. Ball, 2 Kansas, IGO, 172, 171; Chick y. Willetls, 2 Kansas, 384, 300. -Lischey v. Gardner, 3 W. and Sergt. 314; Williamson v. Berry, 8 IIow. 547; Moore v. Sliultz, 13 Penn. St. 102; Busscy -y. Hardin 2 B. Monroe, 407; Thorn v. Ingram, 25 Ark. 52; Sowards v. Tritchett, 37 111.517; Camp- bell V. Johnson, 4 Dana, 18G; Foreman v. Hunt, 3 Dana, G22. ' Ibid, and Erb v. Erb, 9 W. and Sergt. 147. * Gowan v. Jones, 10 S. and M. 104. GO JUDICIAL AND EXECUTION SALES, tliG sale lias not been reported, confirmed, or approved, as required by statute, will not be aided in eqnity by injunction against an action at law for tlie premises, nor by a decree con- firming tbe sale, or quieting title, altliougli sucli purchaser has paid the purchase money, i § 13 T. If an administration sale of lands be void at law, equity cannot ordinarily interfere to set np or maintain it,^ ^or has the purchaser a lien on the land on failure of title, which chancery can enforce against the heirs for the purchase money.-'' VIII, ISTOT AFFECTED BY EeVERSAL OF THE DeCEEE. § 138. The title acquired at a decretal sale of lands made by a court in the exercise of competent jurisdiction, is not rendered invalid by the reversal of the decree for mere irregu- larity or error, -i This, too, although the purchaser was a party to the suit in which the decree was made,^ N^or if notice be given to the purchaser at the time of the sale and before he purchased that an eftbrt would be made to reverse the decree. « § 139. In the case above cited from the first of Wallace, the Supreme Court of the United States lay down the rule to be, ^ Young c. Dowling, 15 111.481; Bright i\ Boyd, 1 Story, 478; Dickey V. Beaty, 14 Ohio St. 389. In Bright v. Boyd, Story, Justice, says : " 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 execu- tion, for otherwise the whole policy of the legislative enactments might be overturned. There may be exceptions to this rule, but if there be the present case docs not present any circumstances which ought to take it out of the general rule." ^ Lieby i\ Parks, 4 Ohio, 409, 493 ; Young v. Dowling, 15 111. 481 ; Bright V. Boyd, 1 Story, 478. = Lieby v. Parks, 4 Ohio, 409, 493. * Ward V. Hollins, 14 Md. 158 ; Irwin v. Jeffers, 3 Ohio, (N. S.) 389 ; Gos- som v. Donnaldson, 18 B. Monroe, 230; Gray v. Brignardello, 1 Wall. 627, C34; Clark v. Bell, 4 Dana, 20; Fergus v. Woodworth, 44 111. 374; Goudy V. Hall, 3G 111. 319; McLagan ®. Brown, 11 111. 037; Ivcrson v. Lobcrg, 20 111. 179. ' Gossom «. Donaldson, 18 B. Mon. 230. • Irwin V. Jcficrs, 3 Ohio, (N. S.) 389. THE SALE. 61 "that although the judgment or decree may bo reversed, yet all rights acquired at a judicial sale while the decree or judg- ment were in full force, and which they authorized, will he protected. It is sufficient for the buyer to know that the court had jurisdiction and exercised it, and that the order on the faith of which he purchased was made, and authorized the sale." With the errors of the court he has no concern. ^ This doctrine applies however to sales wdiere present power to make them is clearly given to the person selling by the decree or order of the court, and not to sales made on interlocutory orders not yet ripened into full authority to sell, and which contemplate and require further action of the court in refer- ence thereto before the authority to sell can be exercised. Sales under such interlocutory order before further action by the court are invalid and will not be protected from the effect of reversal even by a curative entry made nunc ^ro tunc." § 140. But where one only of several creditors, parties to the proceedings and entitled to the proceeds of sale, becomes the purchaser, applying only his own portion of the purchase money on his purchase, and paying the residue into court, and the same is distributed among the other claimants by a decree of distribution and paid over to them, some of whom are insolvent, it is holden in Ohio, that such ^^urcliascr, on a bill of review, is entitled to the j^rotection of the statute of that state of 1841, which provides, '' that if any judgment or judgments in satisfliction of which any lands or tenements belonging to the party hath or shall be sold, shall, at any time thereafter be reversed, such reversal shall not affect or defeat the title of the purchaser or purchasers; but in such case restitution shall be made of the monies by the judgment creditor, for which such lands or tenements were sold, with lawful interest from the day of sale." And in the same case ^ Gray v. Brisnardello, 1 Y/all. G3-4 ; Vorlices e. Bank of tlic United States, 10 Pet. 449; Blanc «. Carter, 4 Crauch, 338 ; Taylor v. Thompson, 5 Pet. 370; Wright v. Ilollingsworth, 1 Pet. 1G9; Elliott «. Piersol, 1 Pet. 340. " Gray -c. Brignardello, 1 Wall. C34, G3G; Southern Bk. t\ Humphreys, 47 111. 227. C3 JCDICIAL, AND EXECUTION SALES. an improper distribution of j^rocceds was afterwards corrected on bill of review. 1 § 141. In tlie case of McBride v. Longworth^- the pre- vious case of Jlubhell v. The Administrator of Broadwell^ was adverted to and approved, as not in conflict with the decision in McBride v. Longworth, as in the case from yth Ohio, the purchaser was the sole creditor; purchased in discharge of his own mortgage decree; received the entire proceeds, and was still the holder of the premises so purchased by him, and " no new rights had intervened." The court there held that such sole purchaser was to be regarded as a party merely and not as a iona fide j)urchaser; and that on reversal of the decree of sale the mortgagor had a right to redeem. That as " there were no other parties in interest but the mort- irafT-or and mortsrao-ee," and that "between them full justice could be done " after such reversal. IX. How Affected ey Statute of LiMrrA'noN. § 143. The special statute of limitations limiting the time to five years, or other term, in which the validity of sales in probate made at the instance of guardians and administrators may be questioned, is not construed to apply to such sales made under decrees or orders that are void for tlie want of jurisdiction of the court; or in cases where jurisdiction had not attached; nor to sales made as if by a guardian, by one assuming to be, but in reality not such. If the order be void, or if the sale be made by one having no authority whatever, nor semblance thereof, the statute will not apply. In all such cases tlie heir at law will not be estopped by tlie limitation of time named in the statute, from asserting his title. ^ ISTor will the statute apply to sales made before its enactment. ^ § 143. But the defendant, in an action for real estate, who ' McBride v. Longwortli, 14 Ohio St. 344, 351, 352. ' McBride v. Longwortli, 14 Ohio St. 349, 351, 352. » 8 Ohio, 120. •» Purley v. Hays, 22 Iowa, 1 ; Holmes v. Bcal, 9 Cush. 223; Chadbournc V. Ptadcliff, 30 Maine, 354. ' Cooper V. Sunderland, 8 Clarke, 14. TIIK SALE. Go makes titlo under an admlnistrator''s sale in probate and con- veyance, and having had possession for more than live years, the time limited in which to question such sales, and who pleads and relies on such limitation, will not be required in such action to first show a 'prima facie valid sale before he can take the benefit of the statute.^ § 144. To require the defendant to first establish a valid sale before he can liavo the benefit of the limitation, would effectually do aM^ay with the statute, for if the sale be shown to be valid, such showing is a full defense and the statute is useless. § 145. But ordinarily a defendant thus defending must show a sale in fact and a deed thereon, and that the same was confirmed by the court, so as to amount to color of title under which to claim the protection of the statute of limitation. ^ X. How Affected by the Statute of Feaeds. § 146. The prevailing rule is, that after confirmation, judi- cial sales arc not within the statute of frauds. Lord IIabd- ■\vicee seems to have first asserted this principle in the case of the Attorney General v. Bay? Ilis Lordship, in that case, lays down the rule that judicial sales, unlike ministerial sales of a sheriff on execution, are not within the statute of frauds, and, therefore, his Lordship declared that after the master's report and confirmation, he did not doubt the pr-^priety of car- rying into execution a purchase made by oral bid, although the purchaser had subscribed to no agreement. Judge Stoky assented to the same j^rinciple in Arnold v. SmitJi, but did not consider the sale involved in that case a judicial sale, for the reason, as he states, that in PJiode Island such sales are not by law required to be reported to the court for confirmation.'^ § 147. In New York it is held that if a judicial sale is within the statute at all, the report of the master or ofticer, or ' Holmes v. Bcal, 9 Cusli. 223; Vanclcave v. Millikin, 13 Iiul. lOo. " lla^lings V. Bailey, 15 111. 178; Vancleavc v. Millikin, 13 Ind. 105. 3 1 Vez. Scnr. 218; Brown, Statute of Frauds, Sees. G24, G25; King v. Gunnison, 4 Barr, 171. * Ainom V. Smith, 5 Mason C. C. 414, 420, 421. G4: JUDICIAL AND EXECUTION SALES. the memorandum of tlie auctioneer employed bv liim is suffi- cient to take it out.^ In Missouri the rulinsr is substantially the same as to the effect of the master's report.- In Alabama the sale is held to be out of the statute by confirmation, not before.^ These rulings, though some of them go further, sus- tain the principle laid down by Lord IIakdwicke, which is that after coniirmation the sale is out of tlie statute. In Pennsylvania and California, the authorities go to a still greater length, and the rule is, that judicial sales are not within the statute of frauds at all."* § 14S. In Illinois the ruling is, that administrator's sales are within the statute, and that even judicial sales by a master are not binding "until approved, by the court," which, of course, carries the inference that after approval or confirmation those made by a master are no longer within the statute. ^ XI. "VViiEN Valid ey Lause of Time § 149. There is a defense, founded alke in benevolence, equity, and sound policy. It is lapse of time. Time, which destroys all things else, serves but to render one's landed pos- sessions and titles more sacred and more secure. Time or accident destroy records and muniments of title, yet time itself, when sufficiently long, repairs the loss. Errors, irregu- larities, and judicial insufficiencies may intervene after a series of years to avoid a title and destroy a right; but time supplies the presumption that in the inception of the j)ossession tlie attributes of title were all right, a presumption growing out of long possession and out of the negligence of the adverse claimant in prosecuting his claim. Lenevolence and good conscience alike forbid the disturbance of possessions and lire- ' Ilageman v. Johnson, 35 Barb. (X. Y.) 200. The case here cited from New York was a case of sale on mortgage foreclosure. National Fire Ins. Co. V. Loomis, 11 Paige, 431. 2 Stewart v. Garvin, 31 Mo. 3G. ' Hutton V. Williams, 35 Ala. 503. * Fulton V. Moore, 25 Pcun. St. 4G8 ; Ilalleck v. Guy, 9 Cal. 181 ; King v. Gunnison, 4 Barr, 171. 5 Bozza V. Howe, 30 111. 198. THE SALE. 65 sides by demands, v/liicli if earlier presented, ini^ht possibly liave been explained away, § 150. Equity will discountenance tlieni wlien time has carried away those who are presumed to have had knowledge of the transactions and rights thus sought to be questioned, and will refuse such claimants equitable aid. A like refusal is also based on what is called "analogy" to limitations of statutes at law, where a less time has run than is ordinarily deemed curative in itself. ^ So, that in titles founded on judi- cial sales, if there be defects and irregularities, by lapse of time the presumption arises that in the inceiDtion of the title the deficiencies Avere all supplied, and that their evidences have passed away. But no length of time will within itself raise a jDresump tion in contradiction to an express showing of the record Thus, where the record and proceedings show affirmatively that a guardian ad litem did not, as such, or otherwise, appear in an action, and was not in any manner brought into couit in the course of the proceedings, and the proceedings arc fatally defective l)y means of sucli showing, mere lapse of time Avill not cure the defect, or raise a presumption contradictory to, the record in order to uphold a sale or to supply the deficiency. 3 § 151. The affirmative showings of the record are to be received as absolute verity. Presumptions will su])ply sucli irregularities only as do not involve the question of jurisdic- tion, and whereof the record is silent. ' 2 Story, Eq. Jiir. Sees. 1G20, 1G23 ; Slicer v. Bank of Pittsburgh, 16 ITot\. 571; Beauregard v. Kew Orleans, 18 IIow. 502; Newson v. WcDs, 5 McLean, 22; Shafer «. Gates, 3 B. Mon. 457; Gray*. Gardner, 8 M^-s. v599; Leverett «. Armstong, 15 Mass. 27; Scott «. Freeland, 7 S. & M. 409 ; Bostwitch v. Atkins, 3 Comst. 53 ; Laugliman v. Thompson, C S vfc M. 9; Mooro u. Green, 18 IIow. 69; Watts «. Scott, 3 Watts. 79; Evan? v. Spurgin, 11 Gratt. 615. ' Shaefer v. Gates, 2 B. Mon. 457, 458. 5 C6 _ JUDICIAL AND EXICCUTION SALKS. XII. IIow Enforced against the Pekciiaser, § 152. Hy the purchase, the purchaser at a judicial sale becomes a party to the proceedings in "whicli the sale is made.^ § 153. Iso^v, whoever makes liimself a party to the pro- ceedings of a court of general equity jurisdiction, and under- takes to do a particular thing under its decretal orders, may be compelled to j^erform what he has undertaken.- The proper tribunal to compel it is the same court, and by motion in the same cause in which the undertaking occurred. ^ This rule applies to purchasers at judicial sales in courts of chancery, and the proper method of compulsion is by attachment.^ § 15-1. Xor does it matter that there is a right, on default of payment, to re-sell the lands or bring suit; for the right is optionary, not with the purcliaser, but with the court or party selling. 5 The very j^oint was decided by Lord Eldon, in Leaton v. Slade,^ in which case the court said: " If you make out that the seller would have been at liberty to re-sell, that does not make out that he lets the other off." § 155. But such purchaser at a judicial sale may not be thus compelled to complete the sale if the title be defective, nor to 2)ay the consideration money until the defect, if there be one, is obviated; for although the rule caveat emptor applies after the sale is closed by payment of the purchase money and delivery of tlie deed, if there be no fraud, yet the buyer, if he ' Cazet D. Ilubblo, 3G N. Y. T?. G7T; Requa v. Eea, 2 Paige, 339; Declrick r. Watkins, 8 Ilunipli. 520. - Wood V. Maun, 3 Sumn. C. C. 318, 32G ; Gross v. Pearcy, 2 P. and II. (Va.) 483 ; Planter's Bk. v. Fowlcs, 4 Sneed, (Tenn.) 461 ; Blackmore v. Bar- ker, 2 Swan, (Tenn.) 340; Stimson «. Meed, 2 Rhode Island, 541; Cazet v. Hubble, 36 N. Y. 677. MVood T. Mann. 3 Sumn. C. C. 318, 325; Cazet v. Hubble, 36 N. Y. 677. ""Wood V. Mann, 3 Sumn. C. C. 318, 326; Landsdown i\ Elderton, 14 Ves. 512. In the matter of Yates, 6 Jones Eq. (X. C.) 212. Brasher ^•. Cortland, 2 Johns. Ch. 505. ^ Wood V. ]\Iann, 3 Sumn. C. C. 318; Cazet v. Hubble, 36 N. Y. 677. « 7 Yes. 265; Wood v. Mann, 3 Sumn. C. C. 331. THE SALE. G7 discover tlio detect beforeiiaiid, will not be compelled to com- plete tlio sale. ^ § 15G. And tliercfore if a rule be made against liim witli a view to enforcing compliance with liis bid, lie maj^, on appear- ance thereto, have an order of reference to inquire into and report the state of the title to the 2)roperty, and if the title prove to bo doubtful and incurably defective, he will not be coerced into completion of the purchase.- XIII. How Carried into Effect ix favor of Purciiash?. § 157. In judicial sales, by courts of ordinary general chancery jurisdiction, the better course is for the decree or order of sale to include also an order to put the purchaser into ])osscssion to save a resort to an action at law for that purpose. But whether there be such order inserted in the decree or not, the court has full power to enforce its sale by putting the pur- chaser into possession of the jDremises against the possession of a party to the suit, or any one holding under such party, who came into the possession during the pendency of the suit and refuses to render up the premises to the 2)nrchascr.2 § 158. The mode of proceeding is, first by a judicial order to the defendant in possession to deliver up the premises to the purchaser, according to the intent of the decree. Or when the decree of sale includes an order for possession, then a formal writ of possession or decretal order for possession is proper. If ineficctual, the next step is an injunction, and then a writ of assistance.^ § 159. Cut these summary methods of putting a purchaser ' Ormsby v. Terry, 6 Bush. (Ky.) 533. ' Graham v. Bleakie 2 Daly, (N. Y.) 55. ' Kershaw ■». Thompson, 4 Johns. Ch.GOO; Gowan v. Sumcvalt, 1 Gill and J. oil; 1 Bland, 3G3; Frelinghuysen v. Golden, 4 Paige, 204; Van Hook V. Thrograorton, 8 Paige 33 ; McGowan v. Wilkins, 1 Paige, 121 ; Creighton V. Paine, 2 Ala. 158 ; Planter's Bk. v. Fowlkes, 4 Sueed. (Tenu.) 4G1 ; Oliver v. Catou, 2 Md. Cli. Decis. 297; Trabuc v. Ingles, G B. Mon. 84; Applegate t. Russell, 25 Md. 317. Mvershaw v. Thompson, 4 Johns. Ch. GOO; Frelinghuysen v. Golden, 4 Paige Ch. 204; Van Hook i\ Throgmortou 8 Paige, 33; McGowan v. Wilkins, 1 Paige, 121 G8 JUDICIAL A^TD EXECUTION &AIJS. at judicial sale into possession, or of forcing liim to comply with Lis purchase, are not understood to be within the powers of a mere probate court making sales of a decedent's lands under the statute. The purchaser at such sales will be left to his remedy at law by action of ejectment, or whatever legal remedy by action stands in lieu thereof, in case, as in some of the States, the action of ejectment be abolished. ^ § 160. If, on the other hand, the purchaser at a sale of lands in probate, refuse to complete the purchase and pay the purchase money, then, instead of the coercive process which a chancery court of general jurisdiction might resort to, and which is not among the powers of the probate court, the property may be sold over again, and if for a less sum the administrator may recover the difference from such first pur- chaser, and if it amounts to more than what will pay the debts, the residue is a trust fund for the widow and heirs of the deceased. 3 XIY. IvATiFicAnoN i;y tue Party Affected, or by Lapse of Tevie. § IGl. Though a sale be not legally binding in the fii'st instance, yet it may become so by ratification, either express or implied, of the party whose property is sold.^ § 162. Thus a sale by guardian, of a ward's lands, is ratified, if the ward, when of full age, receive and accept the proceed«t of the sale with knowledge of the circumstances.^ And so of an acceptance by the heirs at law of their respectirc shares of the purchase money of land sold by the adminit!- trator of a decedent with full knowledge of the condition of things; they thereby ratify the sale and may not thereafter ' Butler V. Emmet, 8 Paige, 12, ' Cobb V. Wood, 8 Cush. 228; Mowry v. Adams, U Mass. 327. •' Michoud V. Girod, 4 How. 503, 561 ; Scott v. Freeland, 7 S. and M. 409, 420 ; Tooley v. Gridley, 3 S. and M. 493 ; Henderson v. ncrrod, 3S Miss. 434. * Scott V. Freeland, 7 S. and M. 409, 420. THE KALE. 09 contest its validity, ^ Tinless for fraud iinknowu to them wlien they received the proceeds. 2 § 163. Wliere the widow of an intestate sold the equitable interest of the deceased, in a parcel of land, without any authority, it was holden that the heirs at law, by receiving the purchase money affirmed and ratified the sale.^ ^ Lee V. Gardner, 3G Miss. 521 : Jennings v. Kce, 5 Ind. 257, 259 : Maple V. Kussart, 53 Penn. St. 348: Michoud v. Girod, 4 How. 503, 5G1. ' Michoud v. Girod, 4 How. 503. 'Jennings v. Kee, 5 Ind. 257, 259. OnAPTER Y. JUDICIAL SALES TO ENFORCE LIENS ON KEAL PROrERTT. I. IMuxiCTTAL Liens fok Street Imphovements. II. MECnANIC'S LlEXS. III. Mortgage Liens. lY. Vendor's Liens. I. Municipal Liens for Stkeet liirKOVE^iExxs. § IGi. Sales in .eqnitv for tlie enforcement of municipal liens on land, arising under ordinances or statutes for street improvements, are regarded as judicial sales. i If there be no special metliod provided for the enforcement of liens of a municipal corporation for street improvements, or if there be a method prescribed, but not prescribed as exclusive, then, in either case, the remedy may be sought and the enforcement had by decree and sale, in equity, on aj)plication by bill or 2)etition, npon the general principle of equity jurisdiction for the enforcement of liens. § 165. InMcInerny v. Beacl,^ the Supreme Court of Iowa, Dillon, Justice, lay do^\ii the rule in the following language: "We take a view of the matter which upholds the power granted and makes it effective, but which duly guards and preserves the rights of the property 0A\mer. The expenditure is declared to be a lien, and liens may be enforced in equity, and the power ' to collect ' given by the charter may be exer- cised by commencing an action in court to have the lien enforced." And again, in the same case, the court say the ;ity or corporation may, " if its right is not barred, commence a suit in equity to collect its tax and enforce its lien, we have no doubt, and it was so expressly adjudged in the case of the Mayor, etc., v. Colgate, above cited." ^ Oliio Life Ins. & Trust Co. v. Gibbon, 10 Ohio St. 557; Hamilton©. Dunn, 23 111. 259. 2 Mclnerny v. Road, 23 Iowa, 410; Mayor v. Colgate, 12 N. Y. 140. (70) .1I"I)ICIAL SALKS TO ENFOIICE LIKNS. 71 § lOG. And \VG may not regard the use of tlie word " action '' in tliis opinion as applied in its ordinary and original legal sense, and, therefore, as importing a proceeding at law, but rather in the extended sense in "svhich the Itcvision of Iowa has used it, alike in reference to both cfjuitable and legal jn-oceedings. This is clearly apparent by the subsequent reference to a "suit" in "equity" in the opinion of the learned judge. § 107. Such liens and sales are the creatures of the statute — are regulated thereby — and the power of the court is said to be limited to a confirmation or rejection of the sale when made, whether the sale be by virtue of a judgment at law or decree in chancery. The court cannot modify, but must con- firm or reject the sale. The principle, in either case, is the same. Tlie right and lien are purely statutory, were unknown to the common law and ordinary chancery jurisdiction. The statute in the several states is the judicial guide as to the extent and enforcement of such liens, although, in the A'ery nature of the case, the exercise of more or less of chancery powers is involved in the proceeding, as in addition to the ordinary judgment, if the proceeding be at law, an order or decree of condemna- tion and sale of j^i'operty specified and described therein is necessary. ^ § 1G8, In Ohio Life Ins. and Trust Co. v. GihLoii,^ arising on street imj^rovements, the sale was made on decree and under the appraisement law of that state. The ground and a build- ing thereon were appraised together and sold as an entirety. After confirmation of the sale and payment of the purchase money, it was discovered that there was less ground by three feet frontage than the quantity sold. It was holden that a cor- responding deduction from the price could not be made by the court. That there was no rule by which the discrepancy in ■ Ohio Life Ins. & Trust Co. v. Gibbon, 10 Ohio St. 557; Canal Co. v. Gordon, 6 Wall. 5G1, 5G8; Mclnerny v. Read, 23 Iowa, 410; Dillon, Muni- cipal Corps. Sec. 6G0. A personal action will, in some cases, lie for the money, as for instance an ordinary action at law where tlie party has petitioned for or otherwise acquiesced in the improvement, but this will not reach the lien. Eschbach v. Pitts, G Md. 71. ^ 10 Ohio St. 557. 72 JUDICIAL AXD EXECUTION SALES. value could be arrived at, as tlic purcliaser liad lost no part ol the building, but a part of the ground only wliicli lie had contracted for, and the whole had been appraised and sold together. Moreover, that were it otherwise, the court could only confirm, or vacate, the sale as it was made, and could not alter or modify it in any substantial particular. It miglit correct mistakes in computation and other errors, but not change the terms of the sale when made. In this case, tlie court say: " The purchaser gets, with his twenty-seven feet, all the improve- ments which entered into their estimate of the value of tlie entire lot. How much of this estimate was for the 'ground' and how much for the ' improvements ' docs not appear, and no computation could have ascertained it." Tlie court add, that the improvements " may have been A^ery valuable;" that there " was no previous measurement to ascertain the frontage of the lot, and no express reservation of a right to do so, before or at the time the money was paid, which was several days prior to filing the motion at special term, one month after the sale;" that "judicial sales should always be certain, and not subject to any future contingencies, so that all bidders may have equal advantages;" that the power of the court is " to confirm or set aside, but not to modify the sale or its terms;" that if " the sale ought not to be confirmed as it was made, the best, and only proper remedy, is a resale, with or without valuation, as justice may require."^ § 1G9. To enable a municipal corporation to enforce pay- ment of a tax levied for street improvements by judicial 2)ro- ceedings against the property or owner, the ordinance under which the proceedings are had, must liave been duly published as required by law. Until such publication no liability to pay is incurred. In the case of Duhuque v. Wootoji,- a suit in chancery, commenced by the city of Dubuque to enforce pay- ment for street improvements, the Supreme Court of Iowa held, that for want of such publication, the complainant was not entitled to relief. That court, Beck, Justice, say: "The publication required by tlie second section of the ordinance is ' Oliio Life Ins. & Trust Co. v. Gibbon, 10 Ohio St. 5G3, 5GG. ' Dubuque v. Wooton, 33 Iowa, 571, 574. JUDICIAL SALES TO ENFORCE LIENS. 73 undonLtedly necessary in order to fix the liability of tlie tax- payer, for, by the terms of the ordinance, tlie tax is declared to be due and payable after the j^nblication is completed. We do not think the tax can become 'due and payable' until this requirement is complied with. The city has chosen to iix this condition to its right to enforce the tax, it must be complied with." II. MEcnAxic's LiiizvS. § ITO. Mechanic's liens are of modern date, and are crea- tures of the statute.! Though given by law, the enforcement of them usually involves the exercise of equitable powers, however in form of law merely such proceedings may be con- ducted. Tlius the courts have held that the proceeding itself, when not otherwise required by the statute, should be in chancery or according to equity principles and practice." § 171. In the case of Hamilton v. Du?in, the Supreme Court of Illinois, Beeese, Justice, lay down the rule that '- suits to enforce ' such liens ' although l)y statute placed on the common law docket, are yet preceedings in chancery, and governed by the rules of that where they apply and where the act giving the lien has not prescribed different rules."^ They are regarded in Connecticut as conferring the same rights as a morto-ao-e.^ § 172. In the case of Canal Co. v. Gordo7i,^ the court say: " They were unknown to the common law and equity juris- 13rudence both of England and of this country. They were clearly defined and regulated in the civil law.^ "Where they exist in this country they are the creatures of local legislation They are governed in everything by the statutes under which ' Canal Co. v. Gordon, G Wall. 5G1, 571, " Hamilton v. Dunn, 22 111. 259; Rose v. Persse, 20 Conn. 256; Goodman V. White, 2G Conn. 317, 319, 329; Mclnerny v. Read, 23 Iowa, 410. = Hamilton v. Dunn, 22 111. 259, 2G1; Clark v. Boyle, 51 111. 104; Marvin V. Taylor, 27 Ind. 73. * Goodman v. White, 2G Conn. 317, 319, 320. » 6 Wall. 5G1, 571. « Domat, Sees. 1742, 1744. 74 JUDICIAL AXD EXECUTION S.VLES, tliej arise." This was a case coming up on appeal in cliancerv from tlie decree of tlie circuit court of the United States for the northern district of California. It involved the question as to whether the mechanic's or builder's lien for constructing one section of a canal flumes and acqueducts, attached to the whole canal or only to the section on which the work was bestowed. The Supreme Court held that the lien attached only to the section on which the work was done. That court says: "The lien is given to contractors and laborers upon the ditch or flume 'which they may have constructed or rejoaired, -;v -A -;v -;;- -;!• ^q ^]jq extent of the labor done and materials furnished.' The work of Gordon was all done upon the upper section. lie had nothing to do with the lower section. So far as he was concerned and for all the purposes of this litigation they were distinct and independent works. A different prin- ciple would j)i'oduce confusion and lead to serious evils." ^ § 173. By analogy to the general doctrine of relation, such sales and conveyances made thereon bear relation to the time of the inception of the lien if the statute be conformed to, and such date be agreed and fixed by the order or decree of sale as against subsequent lien-holders and purchasers.- § 174. In Indiana the practice is to render a judgment at law for the debt against the owner of the property who was such at the time of executing the work, and also to make a decree in equity against the property itself, condemning it to be sold for the amount found due to the plaintiff. Thus the proceeding, as is necessarily the case where the proceeding is in personam as well as i?i re?n, becomes a mixed one of law and equity. 3 § 175. In such cases it follows that if the amount be not realized on the decree, a writ of ordinary execution can go against the proj)erty generally of the defendant to enforce the j^ersonal judgment for the unsatisfied residue of the judg- ment. A sale on the latter would be a ministerial one, whilst ' Caual Company v. Gordon, Wall. 572. ^Jackson v. Davenport, 20 Johns. 537; Jones v. Swan, 21 Iowa, 18-1; Redfield i\ Hart, 12 Iowa, 355; State v. Lake, 17 Iowa, 215. 'Marvin v. Taylor, 27 Ind. 73. JUDICIAL SALES TO E^TFOECE LIEXS. 75 a sale on the decree in equity would 2:)artake of tlic character of a judicial sale. § 170. To make a %'alid sale of lands under a decree to enforce a mechanic's lien, all persons in interest in the prem- ises are to be made j^arties. Tlierefore if the debtor who procured the work to be done upon the premises convey the property to a lona fide purchaser after the execution of the work, and before commencement of proceedings to enforce the lien, and the conveyance be recorded, (or come otlierwise to the knowledge of the creditor,) the grantee must be made a party defendant, else he will not bo affected in his riglits under his conveyance by the decretal sale.^ § 177. In the leading case cited from Indiana, the decree expressly reserved the rights of all j^ersons not made parties to the suit, but such would be the general efiect without the reservation. A party in interest (not buying lis ])(^ndcns) must have his day in court in adversary proceedings. § 178. As betwixt a Y^xor mortgage lien and a mechanic's lien on one and tlie same property, the rule in Illinois is to give the mechanic's lien its ]yro rata j)roportion of tlie increased value caused to tlie proj)erty by the imj)rovement when the fund arising from the sale is insufficient to satisfy both. ISTot the cost of the improvement, but such j^art of the proceeds of the sale as bears a just j)roportion to the increase thereof caused by the betterments placed on the property by the mechanic. 2 And in the same state, as betwixt two or more mechanic's liens against the same property, and of equal priority, the proceeds of sale are equally distributed among them. 3 § 179. In ISTevada it is held that a purchase and deed under a mortgage foreclosure and sale, made and j)erfected before proceedings were commenced for enforcing a mechanic's lien on the same premises, carries the title as against the pur- » Marvin ■«. Taylor, 27 Intl. 73; Brown «. Wyncoop, 2Blackf. 230; IIol- land I'. Jones, 9 Ind. 495; Shaw v. Iloadlcy, 8 Blackf. IGo. ■^ Crosby v. N. W. Manf. Co. 48 111. 481 ; Ilowctt r. Selby, 54 III. 151 ; Dingledine -y. Hersliman, 53 111. 280. 8 Buchter «. Dew, 39 111. 40. 70 JUDICIAL AND EXECUTION SAI.ES. cliascr Tinder tlic mechanic's lien, when in the proceedings to enforce it the purchaser nnder the mortgage decree was not made a defendant, although the mortgage deed be junior in ]-)oint of date to the inception of the lien of the mechanic. For, by the purchase and deed under the decree foreclosing the mortgage, the legal estate passed to the grantee in such deed, and could not be divested by the sale under the mechanic's lien without having made the mortgage purchaser a party so as to give him a day in court, and an opportunity to contest the lien of the mechanic. ^ § 180. Nor does it matter that the deed under the mortgage sale was made to an assignee of the purchaser. The effect is the same as if made to the purchaser himself. " Tlie sheriff had a right, on sufficient evidence of the assignment of the certificate of sale, to make the deed " to the assignee. 3 The same principle as to priority is asserted in Illinois, under the statute respecting mechanic's liens. In Williams V. Chajjman and others,^ the court say: "The right of those not made parties are not affected by the decree, or any proceed- ing under it;" and hold that the purchaser, in that case, under a mortgage foreclosure not having been made a party to the suit on the mechanic's lien, had the superior title even if the mechanic's lien were the oldest, though it was not. § 181. In Iowa, the lien of the mechanic attaches from the commencement of the work. It continues without any effort to perpetuate it until ninety days after the work is completed and materials furnished. AVithin the ninety days it is the duty of subsequent incumbrancers to ascertain if such lien exists. In default thereof, the lien of the mechanic will over- ride such incumbrances originating within the ninety days. "Within the ninety days the mechanic must file with the clerk of the court notice of his lien and the amount thereof. After that time, and after such filing, such notice is notice to sub- ' The Matter of Smith, 4 Nevada, 254; but see State v. Eads, 15 Iowa, 114, where the contrary doctrine is substantially holden. 2 The Matter of Smith, 4 Nev. 254, 260. 3 Williams v. Chapman, 17 111. 423; Kimball v. Cook, 1 Gilm. 427; Kelly c. Chapman, 13 111. 534. JUDICIAL SALES TO LNI'^ORCE LIENS. 77 sequent ineunibraiiccrs, and thej take subject to tlic mechanic's lien. Omission to iile the notice will jiostpone the mechan- ic's lien in favor of sach subsequent incumbrancers and purchasers.! ITot, however, if they otherwise have notice of the lien." § 182. In the same state it is held that the erection of such a structure on land at the request of the purchaser thereof, who is in possession under a contract of purchase wliich is yet executory, and is never afterwards completed by payment of the purchase money and procurement of a conveyance, entitles the mechanic to a lien against the building so erected. ^ Such is the ruling under the statute which declares that, " The lien for the things aforesaid, or work, shall attach to the buildings, erections, or improvements, for which they were furnished or the work was done, in preference to any lien," etc., and that such building may be " sold under execution, and the purchaser may remove the same." § 183. In Iowa, judgments given for mechanic's liens arc cnforcible by special execution. By statute such special execution is to conform to the judg- ment; and the sale shall be made as on ordinary writs of execution.* The statute also declares that the " lien shall attach to the building, erections, or improvements, for which they were furnished or the work was done, in preference to any prior lien, or incumbrance, or mortgage upon the land upon wliich said building, erections, or improvements have been erected or put, and any person enforcing such lien may have such build- ing, erections, or improvements sold under execution, and the purchaser may remove the same within a reasonable time thereafter." Under this statute it is holden that a sale on special execution running against a house and ground, issued on a mechanic's lien, judgment entered against the house alone ' Jones V. Swan, 21 Iowa, ISl. ^ Noel V. Temple, 12 Iowa, 27G, 281. 3 Stockwell V. Carpenter, 27 Iowa, 119. * Revision of 18G0, Sec. 18G4. 78 JUDICI.VL AKD EXKCUTIOX SALES. is voidi in a contest between tlic piircliaser under iLe special execution and a prior mortgagor. 2 § 184-. On a proceeding to enforce by foreclosure sucli prior mortgage, tlie court will treat the execution sale as void, and will provide for discliarge of tlie mechanic's lien out of the proceeds of the mortgage sale; and although the priority of the mechanic's lien attaches only to the house or proceeds of sale tliereof, yet if the court award to such lien a general priority of payment from the proceeds of both house and o-round, it is not a matter of such error as the holder of the mechanic's lien can complain of. If tliere be error, the error is in his favor. ^ III. MOKTGAGE LffiXS. § 185. Foreclosure sales in equity of mortgaged premises are an innovation on the original remedy of the mortgagee. lie had a right at common law, on breach of condition, to take possession of the property, and to a prudent use of the same, but subject to an accounting for the rents and profits thereof. He was moreover bound to deliver back possession when out of such income the debt, interest and charges were satisfied. Or, as an alternative remedy, he might proceed by bill in chancery and foreclose the debtor's equity of redemption by a decree cutting off the right to redeem and vesting in the mortgagor the entire property and estate. * This latter is termed a strict fore- closure. This procedure, however, was liable to impose great hardship on one or other of the parties, as the property might be of much less or much greater value than the amount of the mortgage debt. If the former, tlio creditor got too little, and if the latter, he got too much for his debt. The creditor being now the owner of the property might sell the same. If by fair sale, the amount produced was less than his debt, he could then proceed, according to some rulings, on his bond, at ' Wilson V. Heutcr, 29 Iowa, 17C. '' Ibid. 3 Ibid. *4 Kent, Com. IGG, 1G7; Bradley v. JX. R. Co. 3G Tcnu. St. 141, 150, 151 ; Kobcrtson v. Campbell, 2 Call. 428. JUDICIAL SALKS TO KXFOKCli LIENS. (9 law, a<^aiiist his debtor for the residue. To obviate these results, and assure a more equitable adjustment of the rights of parties, the most of the American States adopted the system of foreclosure and sale in chancery and causing the fund to be brought into court and applied on the debt, interest and costs, and the overplus, if any, to be paid over to the mortgage debtor ;i but in case of a deficiency in amount to discharge the debt, interest and costs, the residue of the debt remained against the debtor for M'hich he was proceeded against at law by an action, judgment, and execution sale if other property were found. A still further progress was then made in many of the States to avoid the suit at law by allowing a decree or judgment in the same proceeding for the remaining balance of the debt and awarding execution thereon, thus avoiding circuity of action. Sales in each of these proceedings in chancery (but not sales on the judgment and execution for the residue,) are judicial sales. Of these only it is our purpose, under this head, briefly to treat. Mortgage sales, on WTit of scire facias and other proceedings at law, and in proceedings of a mixed nature, under various statutory innovations as adopted in some of the States, do not properly come under our present title. They are not purely judicial sales. Some are purely ministerial, and others again are of so dubious a char- acter, though made in obedience to judicial decrees as at most to be but quasi judicial. As for instance, where the enforce- ment is by sj)ecial writ of execution issued to the sheriff, and no report or confirmation of the sale being by law required. § 1S6. In Pennsylvania and some other of the States, equi- table foreclosure and sale does not exist, unless a trust be con- nected with the mortgage and be abused. 2 The procedure is at law by scire facias or other legal process. ^ § 187. But the poAvers of courts of equity to decree a fore- closure and sale of mortgaged premises in general, on a j^roper case made by bill or petition, and to enforce such decree by ' Story, Eq. Jur. Sec. 103j ; Bradley v. R. R. Co. 3G Penn St. 147, 1848. "Bradley v. R. R. Co. 3G Penn. "^ St. 141, 148; Willurd v. Norris, 'Z Rawle, 56. ' Bradley v. R. R. Co. 3G Pcnn. St. 141, 151. 80 JUDICTAL AjS'D EXECUTION' S.W.KS. judicial snie, and distribute or order the application of tlic proceeds, is now finally establislied in most of tlie States. ^ § ISS. Mortgage sales in equitable proceedings are ordi- narily made for cash; but by consent of parties the court will sometimes order the sale to be made on a credit; and may, on complainant's request alone, so direct as to the amount of the debt and interest of the complainant. In the case of Sedgwick V. Fish, the court say, " Judicial sales are not, in general, made on credit without the consent of the parties." ^ § 189. The proper person to make them, where there is no statutory regulation to the contrary, is a master or commis- sioner, appointed by the court and designated in the decree.^ They must be made by him in person, and not by deputy, but lie may depute another person to make the same, if such deputed person act in his immediate presence and under his control.'^ § 190. The purchaser will not bo forced to complete the purchase when the sale was not made at his risk, and he cannot be placed in possession without resorting to an action of eject- ment, or where he cannot have a clear title. ^ § 191. After the sale the court, when necessary, will retain control of the case to the perfecting of tlie ends of justice, and will coerce, by proper process, the delivery of possession of the premises to the purchaser, in case the mortgagor or any person claiming, or coming in under him subsequently to the commencement of the suit, withhold the same from the pur- chaser. Tlie court will not, in such case, leave the purchaser to his remedy at law.*' ^ Story, Eq. Jur. Sec. 102j; Brownson v. Kinzic, 1 How. 318; Lansing i\ Goclet. 9 Cow. 34G ; 4 Kent, Com. 181 ; Rogers v. Jones, 1 McCord, Ch. 231 ; PanncU v. The Bank, 7 liar, and J. 202 ; Bradley «. R. R. Co. 36 Penn. St. 141, 148. » Sedgwick v. Fish, Hopkins, Ch. 594. ^ Heyer v. Deaves, 2 Johns. Ch. 154. "• Heyer v. Dcavcs, 2 Johns. Ch. 154. * McGowan v. Wilkins, 1 Paige, 120; Seaman v. Hicks, 8 Paige, 655. •Suffern v. Thompson, 1 Paige, 450; Williams v. Waldo, 3 Scam. 2G4; Kershaw v. Thompson, 4 Johns. Ch. 609; Frelinghuysen v. Colden, 4 Paige, 204; Van Hook v. Throgmorton, 8 Paige, 33; Crcighton v. Payne, 2 Ala. 158; McGowan, v. Wilkins, 1 Paige, 131. JUDICIAL SALi:S TO ENFORCE LIENS. 81 § 192. TIio proper remedy is first an order, in case of dis- obedience thereof, then an injunction, and. if need be, a writ of assistance.^ Sncli proceedings, liowever, will not be awarded, usually, to a purchaser from the purchaser at the judicial sale, nor as against one entering though during the pendency of the suit, yet not entering under the mortgage debtor, or other party defendant to the suit.- § 193. In case there be a judgment or judgments against the mortgage debtor, prior in date to the mortgage, and a lien on the premises, then such judgments are to be first extin- guished out of the proceeds of the mortgage sale.^ § 19i. If there be conflicting claimants to the proceeds of a sale, tlic court should settle the priorities and rights of the parties before the sale is made, which it will do, on application for that purpose. Such a course not only enables the parties and the master or person selling to act intelligibly as to application of the fund, but also enables the interested parties to bid with knowledge of their rights as to receij)t of the pro- ceeds.-* § 195. In case a part of the mortgaged lands be sold by the mortgagor after date of the mortgage, then equity charges the residue in the hands of the debtor with the whole debt, as in favor of the purchaser, or purchasers, and on foreclosure thereafter such residue is first to be sold, under the decree, before resorting to the part conveyed away by the debtor, ^ If several portions be so sold by the debtor after making the mortgage then by some of the authorities, the piece last sold by the mortgagor is the first to be sold under the decree, and so on in succession, each piece successively, in the inverse order of their sale by the debtor, until the whole are exhausted or ' Kershaw v. Thompson, 4 Johns. Ch. 009; Frclinrrhuysen v. Colden, 4 Paige, 204 ; Van Hook v. Throgmorton, 8 Paige, 83 ; McGowan v. Wilkins, 1 Paige, Vdl. " Van Hook v. Throgmorton, 8 Paige, 33. ' Bell ». Brown, 3 Har. and J. 484. * Snyder v. Staflord, 11 Paige, 71. 5 Massie y. Wilson, 16 Iowa, 390; McWilliams v. Myers, 10 Iowa, 335; Clowes v. Dickenson, 5 Johns. Cli. 235; James v. Hubbard, 1 Paige, 22G; Gill V. Lyons, 1 Johns. Ch. 447. G 82 JUDiaAI- AND EXECUTION SALES. the decree and costs are satisiicd. "With tliis exception, liow- ever, tliat so long as any part still remains in the debtor, siicli part so remaining unsold by him is to be disposed of under the decree before either one of the portions conveyed nwaj by him can be sold under the decree. For as long as any part remains the property of the debtor equity charges it with tlie debt to tlie exemption of the part sold, as between the debtor and his vendee; and the vendee of the residue or of any part thereof takes it subject to such equity, and yet with a like equity in his favor as between him and his vendor to have the residue, if any, belonging to his vendor sold first. ^ § 19G. In the language of the chancellor, in Cloioes v. Dlcl'enson, each subsequent purcliaser in turn "sits in tlie seat of his grantor and must take tlie land with all its equitable burdens." And so likewise in regard to subsequent incumbrances of the mortirao-ed estate. The incumbrances vestins; last will first be postponed, and so on in succession in an order inverse to their respective dates, in like manner as above stated in reference to sales of the mortgaged property in parcels." § 197. But by other authorities the contrary is holclen, both in reference to subsequent sales and subsequent incumbrances of mortgaged premises, and the ruling is that although in case the mortgage debtor only dispose of a part of the mortgaged premises, the mortgagor is in equity to look to the remainder of the mortgaged property still held by the debtor for satis- faction of his debt, as far as it will go, before following the property disposed of; yet, in case it be all sold or incumbered Stuydevant «. Hall, 3 Barb. Cii. 151; ]\[arshall v. Moore, 3G 111. 321; Clowes V. Dickenson, 5 Johns. Ch. 235. " That wlicre tenants in common, mortgaged for a joint debt due from both, for the j^ayment of which debt both -were ecfually liable as between themselves, and afterwards made partition, and aliened their several shares in different parcels, the share of the premises set off" to each was chargeable primarily with one-half of the debt and costs, and should be sold to raise that half in the inverse order of the alienation of the several portions thereof." Ratliboue v. Clark, Paige, Ch. G19. "" Stuydevant v. Hall, 2 Barb. Ch. 151 ; Conrad v. Harrison, 3 Leigh, 532; Ins. Co. V. Miller, 1 Barb. Ch. 353. JUDICIAL SAU-:3 TO JIXFOKCK LTKXS. 83 l>j liiiii subsequently to tlie mortgage, tlien those taking under lihn, though taking at different dates, hold their several inter- ests subject equally to the mortgage debt in 2:)roportion to the respective values of their several interests. In other ^'ords, that they arc to contribute cqiually and not in the inverse order above referred to, and that their several interests are equally liable to the extent of their proportionate values, or in the whole, if necessary, for the mortgage dcbt.i The former ruling of liability in the inverse order of dates of pur- chase or incumbrance, seems to us the more correct and equitable, as not leaving the rights of subsequent purchasei-s and incumbrancers dependent on the subsequent conduct of the mortgage debtor as to selling the mortgaged estate. § 19S. Every community has power to declare the legal obligation of contracts being made within its jurisdiction, and may impose such conditions, restrictions, and exemptions, v.-Ithin constitutional limits, as may be most politic, as to all contracts made in the future. Hence mortgage sales are to conform to the laws in force at the date of the contract, so far as regards valuation and redemption laws.- § 190. The sale under a mortgage decree confers title only as against the j^arties to the suit. Tlie proceeding cannot be enforced to cut oif subsisting equities of incumbrancers who have not had their day in court as parties to the proceedings resulting in the sale.^ § 200. In case of a sale under representations that the property is clear of incumbrances, and it transpires that incumbrances actually exist, the i:)roper course is for the court to order the incumbrances to be removed by so much of the proceeds of the sale as shall be necessary to eifcct the removal thereof, so as to make good to the purchaser an unincumbered estate, according to the terms of his purchase."* In Brolst v. llroch, the Supreme Court of the United States Bates V. Ruddick, 2 Iowa, 423; Massic v. Wilson, IG Iowa, 091; Barney V. Myers, 28 Iowa, 427. 2 Bronsoa v. Kcnzie, 1 IIow. 311, 321, 319. ^ Ilaincs v. Beach, 3 Jolins. Cii. 459. * Lawrence t. Carnoll, 4 .Johns. Ch. 512. S'l JUDICIAL AKD EXEaiTION SALES. hold that an irregular, judicial sale, that is even void for "want of notice as to the mortgagor, made at the instance of the mortgagee, passes to tlie purchaser all tlie rights of the mort- gagee, although it may not bar the mortgagor's equity of redemption. § 201, Tlie purchaser having paid the purcliase money ■would seem to he subrojcated to all tlie rig-hts of the mort- gagee as creditor, leaving the right to redeem still in the mortgagor.! The sale being made by procurement of the mortgagee he is estopped to deny its validity. § 202. In Illinois the rule of priority as betwixt a mortgage lien and lien of a mechanic, where the mortgage lien is the senior, is to ascertain the value of the premises at the time the mechanic's lien accruecl, and the comparative value thereof as increased by the betterments made by the mechanic, and then in the decree of sale, give priority to the mortgage as to that proportion of the fund arising from the sale, which represents its comparative interest, and to the mechanic's lien priority as to the amount that represents the increased value caused by the improvements to the premises. § 203. The lien of the mechanic, so far as its priority is concerned, is commensurate only with the increased value of the property, and, in that respect, is not to be measured " by the cost of the material or labor actually furnished."- § 20i. In Kansas an unrecorded mortgage, or mortgage made and recorded for the wrong land by mistake, takes prior- ity over the mere lien of a junior judgment on the lands really agreed to and intended to have been subjected to the mortgage. Such mortgage may be reformed and the lien of the judgment before sale on such judgment will be postponed to that of the ' Brobst V. Brock, 10 "Wall. 0:34; Gibert v. Coolc}^ Walker, Cii. 404; Jack- son V. Bowen, 7 Cow. 13. - Croskey v. K ^V. M. Co. 48 111. 481. Sec also Raymond v. Ewing, 2G 111. 343; Smith v. Moore, 2G III. 390; Norlli Pros. Church v. Jcvuc, 33 111. 219. JUDICIAL S-VLES TO PIMFORCE LIENS. 85 mortgage.^ And so docs an unrecorded mortgage in Illinois overreach a prior judgment lien "witli notice.^ § 205. Under tlie Ohio Statute of 1831, a recorded junior mortgage takes precedence against an unrecorded senior mort- gage; and so does an execution sale, under a judgment junior to an unrecorded mortgage. A purchaser at such execution sale, or at such junior mortgage sale, takes the superior title over the senior unrecorded mortgage, although the purchase be made with full knowledge of the existence of the unrecorded senior mortgage. Such unrecorded instrument in Ohio, though valid as between the parties when such validity does not affect the rights or interests of third persons, is, by the statute of Feb. 22, 1831, void as to third parties until filed for record.^ § 206. "Wliere a mortgagor sells and conveys the mortgage premises with a stipulation in the deed that the vendee shall pay off the mortgage debt as a part of the purchase money to be paid for the premises, it is liolden under the statute of Mis- souri that the mortgagee cannot, in a statutory foreclosure, extend the remedy so as to include the rendition of a judg- ment against the vendee for the amount so agreed by him to be paid. The Missouri statute is not comprehensive enough for such a proceeding; it provides for merely a foreclosure at law against the property and the original mortgage debtor. Any judgment rendered therein against the vendee personally, is not only void, but an execution sale and conveyance there- under are also void, and may be so treated in a collateral pro- ' Swarts V. Steerc, 2 Kansas, 23G; Gouverneur v. Titus, 6 Paige, Cli. 347. ^ Williams v. Tatnal, 29 111. 553. But in Ohio the reverse is the rule, under the statute of 1831; see, Pt. 2 Chap.vii. title Priority; and Fordick V. Barr, 3 Ohio St. 471 ; and Brown v. Kirkman, 1 Ohio St. IIG; White v. Denman. 1 Ohio, 110 'Stansel e. Roberts, 13 Ohio, 148, 156; Fosdick v. Barr, 3 Ohio St. 471; Holiday v. Franklin Bank, IG Ohio, 533; White v. Denman, IG Ohio, 59; Jackson v. Luce, 14 Ohio, 514; Mayham v. Combs, 14 Ohio, 428; Stansel v. Pioberts, 13 Ohio, 148. Before the recording act of 1831, the recording of mortgages was placed on the same footing as absolute deeds ; and notice of a mortgage, though unrecorded, operated to prevent priority of the subsequent judgment lieu or junior mortgage. The ruling then was different. Fosdick v. Barr above cited. SG JUDICIAL AND EXECUTION SALES. ceeding.i If tlio mortgagee would, in one and the same suit, seek a remedy by foreclosure against tlie mortgagor, the property, and against the vendee as on his agreement to pay the purchase money, or part thereof, as the case may be, he must resort to the concurrent remedy of a foreclosure in chancery, making the vendee a party and seeking his remedy against both the land, the mortgagor, and his vendee.^ § 207. The equitable powers of a chancery court, when once in possession of the case, and jurisdiction has attached by ])roper service, are sufficiently broad and searching to reach all the equities and all the rights and liabilities of all the parties, and will settle, dispose of, and enforce the whole in one suit.^ § 208. In JS^ew York the j^ractice is, on a bill in chancery, filed to obtain satisfaction of a mortgage, to decree not only as against the mortgagor for papnent of the mortgage debt and sale of the land, but also for payment as against any other person who may have become surety for, or have assumed to pay the debt. This is done under the provisions of the jSTew York statutes. This statutory foreclosure in Kew York is a proceeding in chancery, and in addition to the ordinary decree of foreclosure tlie court renders a personal judgment against the vendee of a mortgagor, upon the equitable undertaking that by virtue of his contract with the mortgagor, rests upon him to pay the amount, and which inures to the benefit of the mortgagee by subrogation, and which will thus be enforced to avoid circuity of action should tlie land not sell for the amount of the mortgage debt.'^ § 209. AVlien the foreclosure is for interest only, or for one or more over-due installments of principal payable in install- ments, whilst others yet remain unmatured, the court will ' Fitliian v. Monks, 43 ^Mo. 502; Jjuiney v. Spcddcn, SS Mo. D9o; Shaw '. Greenleaf, 7 Wheat. 46, 50; "VVatson v. Wells, 5 C(Min. 408; Greenup v. Strong, 1 Bibb, 590; Hundley e. Lyons, 5 JIumf. 842; Pierce v. Gates, 7 Blackf. 1G2. SS JUDICIAL AKD EXECUTIO:^- SALES. § 212. This lien can only be enforced in equity;^ and a sale in cliancery to enforce a vendor's lien is a judicial sale. § 213. Sucli lien overrides a meclianic's lien where the debtor has only an executory contract of purchase. And so it will if the purchase is executed, provided the mechanic works with notice that the purchase money is unpaid. 2 § 214. The court assert the preference of the vendor's lien in Stoner v. J^ef,^ after reviewing former cases, in the fol- lowing language: " Now, although as decided in Zt/o/i v. IfcGtiffeij, 4 Barr, 126, a mechanic's lien upon an equitable estate attaches to the subsequently acquired legal estate, which takes place by opera- tion of law, yet it does not thereby take precedence of the vendor's claim." The court say: " The latter had an estate upon whicli the former had no lien, and when lie transmitted it to his vendee lie never let go his grasp upon his purcliase money." § 215. If a vendor sell land by a contract merely executory and on a credit, retaining the legal title as security for the purchase money, and then takes judgment at law for the pur- chase money, and executes and sells the land generally to satisfy the judgment, the purchaser, under the execution, takes the whole title, legal and equitable, to the land, leaving no interest tlierein whatever in either vendor or vendee, unless there be riglit of redemption in the judgment debtor.-* § 21G. And if on such judgment the vendor cause to be * 2 Story Eq. Jur. Sec. 1217 ; Pierce v. Gates, 7 Blackf. 1G2. » Stoner v. Neff, 50 Peun. St. 258. * 50 Penn. St. 261. Wc are aware that in Lyon «. McGuffey, 4 Barr, 120, it is liolden that the mechanic's lien has preference of the vendor's judg- meut for the purchase money ; but the decision in that case is put upon the omission of the vendor to file his judgment as by law required within ten days after parting with his title, by which omission the vendor lost his priority. Lyon v. McGuftey, 6 Barr, 126, and Stoner v. Neff, 50 Penn. St. 258, 261. In Illinois, as we have seen, the court apportions the pro- ceeds of sale, where the mortgage lien is the oldest, betwixt the two, according to their respective equity, taking into consideration the increased value of the property occasioned by the betterments added thereto by the mechanic. Ante, and Crosky v. N. "W. M. Co. 48 111. 481. * Pittsburgh & Steubenvillc R. R. Co. v. Jones, 59 Penn. St. 433, 436, 437. JCDiaAL SALliS TO ENFOIICE LIENS. SO executed and sold the equitable right only of the vendee or judgment debtor, then the sale will be valid to extinguish or transfer such right, and the purchaser will stand in the place of the vendee, if a third person, although there be no statute authorizing such proceedings. ^ § 217. Bj statute in Iowa, it is j^rovided that " when part . or all of the purchase money remains unpaid after the day fixed for payment, whether time is or is not of the essence of the contract, the vendor may file his petition asking the court to require the purchaser to ])erform his contract, or to foreclose and sell his interest in the property."^ And so may his assignee if he assign the note given for the purchase money. Thereupon the court may decree a rescission of the contract, or may by decree of foreclosure, as in case of a mortgage, cause the premises to be sold for pa^nnent of the unpaid pur- chase money. § 218. In case a note, or other security, is taken for such purchase money, the right to thus foreclose will follow the note into the hands of an assignee or indorser thereof, if so agreed by the vendor, or, without such agreement, by analogy to the equitable principle by which security for the payment of a debt passes with the debt to the assignee thereof.^ § 210. Under the provision of the Iowa statute the vendor, where he retains title to the property sold, may file his ]ietition on default of payment, tender a deed, and proceed for the two- fold purpose of a judgment i?i personam on the note or debt for the purchase money, and a decree of foreclosure declaring ' GastoQ ». TVhite, 4G Mo. 486. 2 Revision of 18G0, Sees. 8G71, 3G72; Blair v. Marsh, 8 Iowa, 144; Pierson e. David, 1 Iowa, 34; Page «. Cole, G Iowa, 154; Ilartman ?;. Clarke, 11 Iowa, 510. ' Blair & v. IMarsli, 8 Iowa, 144, 147. In Adams v. Cowherd, the Supreme Court of Missouri assert the rule as follows: "The doctrine in those states, in which it is admitted to be law, that the assignee of a note given for the purchase money does not acquire l)y such assignment the lien which the vendor himself had, has no application in cases where the vendor retains the legal title. It is only applicable where the vendor makes a full conveyance which passes away absolutely his legal title. This seems to be well settled law. 1 Lead Cas. Eq. 274, 275." Adams v. Cowherd, 30 Mo. 458. 00 JUDICLU. AND EXECUTION SALES. such judgment a lien on tlie land, and ordering it to be sold to satisfy the judgment and costs; and there will be no missjoinder of causes of action or remedies.^ § 220. Such foreclosure as of a mortgage being provided for bj statute, is of a mixed nature of law and equity; is not purely either a legal or a chancery remedy or procedure; but partakes of the nature of each. It is a union of the powers of both law and equity jurisdictions. ^ § 221. But the remedy of the vendor is not confined to the proceeding provided by tlie Iowa statute. lie may proceed at law exclusively, taking a judgment in jpersonavi for the debt;^ or he may jiroceed by the mixed procedure and juris- diction for a judgment in ])er8onain at law, and a decree of foreclosure in rem against the land, with an order of sale of the same to pay the judgment;'* or he may, at his election, proceed purely under the statute for a foreclosure and sale of the land by a proceeding in rem, partaking partly of law and partly of chancery jurisdiction in its nature ;S or he may pro- ceed by original bill in equity for a specific ^performance of the contract just as if no statutory provisions were ever enacted on the subject. These several remedies are concurrent and neither of them is exclusive. The statutory remedy being merely cumulative, docs not extinguish the others. ■ Ilartman v. Clarke, U Iowa, 510. ^ Cramer v. Redman, 9 Iowa, 114; Ilartman v. Clarke, 11 Iowa, 510. ' Hershey v. Hersliey, 18 Iowa, 24. ■• Ilartman v. Clarke, 11 Iowa, 510. * IIersb?y r,. Ilerslicy, 18 Iowa 24; Cramer v. Uedman, 9 Iowa, 114. CnAPTER VI SALES OF LANDS IN ITtOBATE FOR PAY]',IENT OF DEBTS. I. Yv'uAT Lands jiay be Sold. II. What Debts Lands mat be Sold to Pay. III. Wire MAY Conduct the Sale. IV. ArPLTCATiOK to Sell — How and "VViiex to be Made. V. WiTiiLN What Time Sale to be Made, and Perfected. VI. Not After Repeal of the Law, or Abolition of the Court Allowing the Order. VII. Of the Oath op the Person Selling. VIII. Sales Merely Irregular, or in Irregular Proceeding, not Void. IX. Confirmation — The Deed — Its ^Vitroval. I. "What Lands may be Sold, § 222. Sales in probate for payment of a decedent's debts can, as a general rule, only be made of those lands, or interests therein, whereof the debtor dies seized. ^ The law fixes the statns of property and renders it liable to sale or not, as may be enacted, for the payment of the owner's debts, whether such owner be living or dead, and if made liable, also regulates the method of subjecting it to sale. It follows, therefore, that in the absence of statute law renderin'-'- lands liable to sale in probate for the payment of debts, no such sales can be made.^ § 223. In Texas, it has been held that head right certificates for land are such an interest in real estate as may be sold by ^ Torrcuce v. Torrence, 53 Perm. St. 505, 511, 512; Williard v. Nasou, 5 Mass. 240, 244; Johnson i;. Collins, 12 Ala. 022; George tJ. Williams, 26 Mo. 190; McCandish v. Keene, 13 Gratt. G15. ^ Ticknor t). Harris, 14 N. H. 272; Drinkwatcr v. Driulcwater, 4 Mass. 358; Bcrp:in «. McFarland, 6 Foster (N. H.) 53G; Moore «. The Widow, 11 Humpli. 512 ; Pelletreau ti. Smith, 30 Barb. 494 ; Washington c. McCaughan, 34 iSIiss. 304; llayncs «. Mceks, 20 Cal. 228; Petit r.^Pclit, 32 Ala. 283; Ikelheimcr «. Chapman, 32 Ala. GTO. 02 JUDICIAL AIST> KXECUnOX SALES. the administrator under an order in probate for payment of a decedent's debts. ^ § 224. In Alabama, it is held tliat lands purcbased from tlie United States in the name of the widow and heirs of a decedent, and with the monies of the estate, under a pre-emp- tion right which had enured to the decedent in his life time as a settler on the public lands, are not liable to sale in probate for payment of the decedent's debts. Nor can the investment be treated in a court of equity as a trust so as to enable the creditors to follow the fund and subject the lands in a court of equity. The pre-emption right descends, under the act of Cono-ress, to the widow and heirs and not to the creditors or to the administrator. The court, Goldthwaite, Justice, say, that " such a trust would be directly against the policy of the pre- emption acts, as the bounty of the government was obviovsly intended for the settler and his heirs. A construction, there- fore, which would make him or them trustees for the person advancing the purchase money, is not to be tolerated, as it would, in effect, transfer the bounty of the government from the settler to the lender of the money." § 225. In the case above referred to from Alabama, the court were disposed to regard the investment of the monies of the estate as a payment to the w^idow and heirs, and, therefore, as not calculated to create a trust w^rc the question ruled under the pre-emption laws out of the way. If regarded as a payment, then, however liable to refund for pajmieut of debts, such pa^mient would not create a lien on the lands in which the monies were invested, but would create only a personal liability for the amount. If, however, the monies of the estate be diverted from their ordinary course by the administrator and be vested in realty by him, it seems that in whosesoever name it may be, that creditors and heirs would alike be able, on ordinary principles of equity, to treat the investment as a trust for their benefit or for either, as the necessities of the ease should require. And such seems to be the doctrine in Tennessee, where the ruling is contrary, to some extent, to ' Soyc V. Maverick, 18 Texas, 100. 2 Jolinson V. Collins, 13 Ala. 322, 337; Cotlirau v. McCoy, 33 Ala. G5. SALES OF I,iVKDS IN TKOBATE. 93 that in Alabama. The heirs in Tennessee are regarded as lidd- ing lands in trust for the j)ajment of debts of a decedent, where monies of the estate are invested in lands in their name and will be so considered to the extent of the debts, as far as the property will go towards payment of the same, if there bo no other fund for payment thereof But in such cases the jurisdiction is in the ordinary court of general chancery juris- diction and not in the court of probate.^ § 226. In the case of Ifoore v. The Widoiv,^ tlie Supreme Court of Tennessee say: "By our law all the real estate of a deceased debtor, whether of a legal or equitable character, is liable to satisftiction of his just debts, subject to the widow's right of dower, which has preference over the rights of credit- ors. II. Humph. 512." § 227. In Alabama, if, at his death, the decedent is seized of an inchoate title (other than a government pre-emption) to lands, such interest may be sold in probate for payment of debts. 3 § 228. In Massachusetts the jurisdiction of the probate court is, by statute, extended so as to enable it to subject to sale for payment of debts, lands fraudulently conveyed away by the debtor in his lifetime* But this is contrary to the gen- eral rule in the several states. Prior to this statute the con trary seems to have been the law in Massachusetts.^ § 229. In VaugJian v. Holmes,^ the Supreme Court of Alabama say that if the question was before them for the first time they should bo disposed to hold that the probate court could not, under the authority given it for the sale of lands, direct the sale of an inchoate equity like the one then under consideration; but that the rule was too firmly established to allow a departure therefrom. 1 Moore v. The Widow, 11 Humph. 512. ^ Ibid. ' Vaushau v. Holmes, 23 Ala. 593 ; Perkins v. Winters, 7 Ala. 855 ; Duval I'. The Bank, 10 Ala. GOG; Duval v. Losky, 1 Ala. 708; Jennings v. Jenkins, 9 Ala. 285. * Norton v. Norton, 8 Cush. 524. ' Bancroft v. Andrews, G Cusli. 403. 22 Ala. 593. 91 JUDICIAL AND EXECUTION SALES. § 230. Tims it is settled in Alabama tliat cqiiitaLlc interest or title to lands, or inclioate interest therein of any kind, may be sold in j)robate for payment of debts, on application and proper showing of the administrator, and that the pnr- chaser will take the title of the decedent,' Vvdiatevcr it may be, and will in that resj^cct stand in lieu of the heirs. ^ § 231. The 2)ower to subject lands of a decedent for pay- ment of debts, conferred on the courts, is holden to be remedial, and applicable " as avcII in relation to estates where the dece- dent had died before as after its enactment." ^ § 232. In McDonald v. Allen, ^ it is said that, " Upon the death of a debtor, his estate, of whatever description, stands for the payment of all his general creditors alike." The executor or administrator is a trustee for the creditors and for the lien, to administer and apply the proceeds under the order and as the instrument of the court; and the order of sale can ordinarily only be made on his application. The contrary, we liave seen, is the rule as to application in Texas. The order, when made, operates not on the ]oersons of the heirs, but on the paramount title of the ancestor on which the debts operated as an implied lien.^ § 233. But sales in probate may not be made of a decedent's lands, to pay debts which arc not presented within the time allowed by statute for presentation of claims.'' § 23-i. The administrator or executor must interpose the statute in such case in bar of claims, and may not Avaive it.*' § 235. And though it has been held that he is not bound to plead the general statute of limitations in bar of debts pre- sented for allowance, and that sales of lands ma}' be made to ' Evans v. Mattliewson, 8 Ala. 99. "■ Fitzhugli V. Fitzhugli, G 13. Mon. 4. =■10 Ohio St. 297; Sheldon v. Newton, 3 Ohio St. 494; Lane r. Thonii> son, 43 N. H. 320. * Sheldon V. Newton, 3 Ohio St. 494; Grignon's Lessee v. Astor, 2 IIcw. 319; Beauregard v. N. Orleans, 18 How. 502. " Jlogan v. White, 1 N. 11. 208; Nowell v. Nowcll, 8 Greenl. 220; FitcL V. Witbeck, 2 Barb. Ch. IGl; Moore v. White, G Johns. Ch. 3G0; Brown ». Foster, 7 Humph. 373. « Brown v. Foster, 7 Humph. 373; Ilogan v. Wliilc, 11 X. H. 208. SALES OF LANDS IN I'lIODATE. 05 pay debts so subject to be bared; yet in some cases it is belil that any one or more of tlie heirs may interpose t]ie general statute to bar claims and prevent sales of their patiimonial lands. ^ II. What Dkcts Lands ok a Djcckdent iUY le Sold to Pay. § 23G. As sales of land under the statute to jjay a decedent's debts can only be made in probate, as a general rule, of land whereof he died seized; so, by a like rule, the lands of a decedent can only be sold to pay such debts as he owed at the time of his death, and was legally liable to pay." § 237, In other words, they cannot be sold to pay costs or expenses of the administration, or liabilities created or incur- red by the administrator. Such a sale would be illegal and void. 3 ' Moore ?). White, G Jolins. CIi. 3G0, 380; Kizor v. Snoddy, 7 Incl. 442; Bond 1}. Smith, 2 Ala. GGO. 2 Torrencc v. Torrencc, 53 Pcun. St. 505, 511,513; Dubois t\ McLcau, 4 McLean, 48G, 489; Carnan v. Turner, G liar, and J. C5 ; Baker v. Kings- land, 10 Paige Ch. 36G; Farrar ». Dean, 24 3Io. IG. 'Dubois ■«. McLean, 4 ]McLcan, 48G, 489; Sumner v. Williams, 8 Mass. 199, 200; Farrar v. Dean, 24 Missouri, IG; Wood «. Byington, 2 Barb. Cli. 387; Fitch v. Whitbeck, 2 Barb. Ch. IGl ; Carnan v. Turner, G Har. and .7. G5. In Farrar v. Dean, the Supreme Court of Missouri, in the delivery of their opinion, held the following language: "The administrator has no power over the real estate, except so far as to hold it for the payment of the debts of the deceased; and when there are no debts the lands descends to the heirs, or escheats to the State; and it is not in the power of the administrator to hinder this legally; nor can the probate court direct or order a sale of real estate for the costs accrued after the administration begins, and only because it did begin. Such costs are not debts due by the deceased, nor debts at the time of the death of the intestate." * * * And again, in the delivery of the same opinion: "It is bcj-ond doubt that the debts to be paid by the sale of the real estate of a deceased person, were debts and liabilities of that person only — debts due or to become due by him. No one ever imagined that the legislature designed to place the power in the hands of the administrator to create the debt, and then to sell the real estate of the decedent to pay for it. When there is no debts there is no law to sell the real estate. The administrator cannot procure, in such a case, an order for its sale without a violation of law." * * * * "We must hold such sales invalid." Farrar i\ Dean, 24 Mo. IG, 18, 19, 20. 96 JUDICIAL AXD EXECUTION SALIiS. § 23S. Kor to pay costs of suit recovered against tlie admin- istrator or estate, nor other cost not incurred by deceased during Ids life time.^ But if a valid sale be made for the l)ona fide purj)oses of paying debts, and there remains of the proceeds a surplus fund, then this remnant may be applied to pay costs, charges and expenses of administration, or of litiga- tion, under discretion of the court.- § 239. 1\\ Dubois v. JfcZean,^ the court illustrate the prin- cijDle of the text in the following terms: "Again, the only debt shown to support the sale in 1S28, was one of two hundred and fifty-seven dollars, contracted by the executors in August, 1824. ^ * ^' ''^ The land was sold, not for a debt of Dubois, but for a debt contracted by the executors. '•■■ ^' It is no answer that this debt was contracted by the executors in due course of administration, and for the benefit of the estate." § 2-iO. So far as the estate is concerned, this supposed debt was not a debt, but only a liability, as costs, arising incidentally in the course of administration, and whether rightfully or wrongfully incurred, was not one for which, under the ordinary statutes, real estate may be sold. § 241. In the language of the court, in Carnan v. Turner,'^ to sul)ject lands of a decedent for payment of debt, by an order of sale in probate, " the claimants must prove themselves creditors of the deceased ancestor." § 242. The debt must be, as is held in Wood v. Byincjtony' a " debt due from the testator." And in the more recent case of Sanford v. Gran(/er,'^ it is holden that Wood v. Byington, is authority for saying, " that the costs awarded against execu- tors can in no event be a charge on real estate in the hands of the heir." § 243. The individual lands of a decedent cannot be sold to pay a copartnership debt until after the individual debts of the 'Sandford v. Gran^tjer, 12 Barb. 392; Farrar v. Dean, 24 Missouri, IG, Wood V. Byington, 2 Barb. Ch. 387; Carey «. Dennis, 13 Md. 1. ^ Drinkwater «. Drinkwatcr, 4 ]\[ass. 358, 359. 34 McLean, 489. * G liar, and J. Go, G7. '2 Barb. Ch. 387. « 12 Barb. 392, 403. SALKS OF LANDS IN PltOBATE. 97 decedent arc all satislied and the copartnership assets are oxliaustcd.i § 2tt'l. The individual creditors have a right to he first paid out of the individual assets; and copartnership creditors have the same preference as to the copartnership assets. AVhen the latter are all exhausted, then if the copartnership debts be not all paid, the creditors of the copartnership may pursue the individual property of the deceased member or members of the copartnership, may cause their claims to be allowed in probate, and in default of personal assets the administrator may obtain a license or decree for sale of lands to pay the same; but not until the individual debts of the decedent are all provided for.^ III. Wno MAY Conduct tue Sale. § 245. Under the common law lands were not sold by pro- ceedings in probate for payment of debts. ^ § 246. Under the enactments of the several American States, in which such sales are made, they are conducted and made under the supervision and approbation of the court by the executor or administrator; and in nearly all cases on his appli- cation. A stranger, the sheriff as such officer, or other person, cannot, in probate, be authorized to sell. Their sale would be void.-^ And so of a special administrator. ^ § 247. In Long v. Burnett^^ the Supreme Court of Iowa, Lowe, Justice, in treating of the powers of a sjDCcial adminis- trator, in reference to sales of land in probate say, "His func- tions are limited to a few described duties, in relation to the preservation of the personal assets, and these cease as soon as a regular administrator is appointed. lie cannot be sued. The statute of limitations docs not run against the creditors ' Moline «. Webster, 2G 111. 233, 239. 2 Pahlman v. Graves, 20 111. 405: 1 Story Eq. Jur. Sec. 075; 3 Keut, Com. 04; Wilder ■». Keller, 8 Paige, 107; Story, Part. Sec. 303; McCulloh v. Dashiell, 1 Harris & Gill, 9G; Moline «. Webster, 20 111. 239. = Bcrgin v. ]McFarlaiul, Foster, N. H. 530. * Croucli v. Eveletli, 12 Mass. 503; Swan », "\Vlieeler, 4 Day, 137; Jarvis tJ. Kusick, 12 Mo. 03 ; Long 'o. Burnett, 13 Iowa, 28 * Long «. Burnett, 13 Iowa, 28. « 13 Iowa, 28, 33, 34. 98 JUDICI-iVL AXD EXKCUTION SALES. of the estate during tlie period of Lis agency. lie is simply an agent, and not an administrator, lie lias no power to settle the estate; mnch less power to sell land for any pnrpose. It was no more competent for the judge of probate to grant liim license to sell land than that of any third person. His act in doing so was extra judicial and void. The Judge's power over real estate of deceased persons is derived through the medium of regular administration. This was wanting in the case before us. Hence the jurisdiction did not, as it could not, under the circumstances, attach." The court then lay down the rule, in that case, that for such want of a regular adminis- trator, and of jurisdictional power in the probate court making the order of sale, such sale should be treated as void in a collateral proceeding. That " the j)ower to grant a license to sell real estate to pay debts does not arise till a petition, as the law directs, is presented by a legal administrator." That '"when such a petition is presented, jurisdiction over that particular subject is acquired, and the subsequent proceedings, although those of a court of inferior and limited powers, will be presumed as regular and conclusive as those of courts of general jurisdiction, and shall not be collaterally assailed." § 248. A sale of lands in probate, based on a special act of the legislature authorizing such order and sales, is to be made by the administrator, and when made Avill be holden to have been made by him in his capacity of administrator, and not Ha a commissioner of the courts. ^ § 249. But although no one but the administrator or execu- tor may be authorized by order in probate to sell ; yet, quere, if any one or more of several executors or administrators of an estate may not be empo'wcred by such order to sell instead of their whole number. - IV. Ai'i'LicATiox TO Sell : How, axd in avhat Ti:Mr: to be Made-. § 250. As no one but the executor or administrator can, ■ Corbell i). Zcluff, 12 Gratt, 22G, 335. ^.Jackson v. Ivobiuson, 4 Wend. 437; "Woitman v. Skinner, 1 Bcaslcy, (N. J.) 538. salilS of lands in I'lioiJATi:. 90 uiulcr tlio statute, as a general rule, be aiitborized in probate to sell the lands of a decedent for payment of debts, ^ so it follows, as a general rule, that the application for the order to sell is to be made by the executor or administrator, wliicli over there be. § 251. But to this rule there arc some exceptions. In Texas an heir, legatee or creditor, must join in the applicatioii under the act of February 25th, 1843. Prior to tlie passage of that act the administrator alone might app]3\- § 252. It is held that where there arc several administrators (tr executors of an estate any one or more of them may apply, and may be authorized by the court of probate to sell.^ § 253. In Iowa the term administrator is by statute nuidc to apply alike to executors and administrators. -^ § 25-1. The apjilication of the administrator or executor for an order of sale of lands to pay debts must be a timely one,^ and the court are the judges in all cases of the reasonableness of the time, when no time is iixed by law.'' § 255. In some cases, one year from the grant of adminis- tration has been adjudged a suitable time within which to apply."? I3ut Ave apprehend that there are cases in M'hich one year would not be a reasonable time. Mucli depends upon the time allowed for presenting and ]n-oving up debts, and for settling the estate. The court are to judge, if there be no time limited, taking all circumstances into consideration. ' Cluipt. IV. Xo. 3 ; Crouch v. Eveletli, 12 ]\rass. 503 ; Swan v. Wheeler, 4 Day, 137; .James t\ Kusick, 13 Mo. G3 ; Floritinc ■». Barton, 3 Wall. 210, 216; Long r. Burnett, 13 Iowa, 28; Palmer v. Palmer, 13 Gray, 330. ' Miller v. Miller, 10 Texas, 319. ^Jackson v. Robinson, 4 Wend. 43G. But see to the contrary, Grei^ory V. ]\IcPhcrson, 13 Cal. 5G3; Wortman v. Skinner, 1 Beasley, (N". J.) 538. * Berision of 18G0, Sec. 2333. ^ Moore «. White, G .Johns. Ch. 37G; Ricard t\ Williams, 7 Wheat. 59, 115; Smith v. Button, 4 Shep. 308; Langworthy v. Baker, 23 111. 484. * iloore V. White, .Johns. Ch. 37G; Jackson v. Robinson, 4 Wend. 436, 442. ■ Moore v. White, G Joluis. Ch. 37G, 377. 100 JUDICIAL AND EXECUTION SALES. In Palmer v. Palmer'^ four years is held not to be nn unreasonable time in wliicli to make the application to sell. § 250. Orders of sale made after an unreasonable length of time from the grant of administration, and sales made thereon, are lield to be absolutely void.^ § 257. In ILjde v. Parmer,^ it is held that three years, under the statute, is the time limited in wln'ch to pass the title by a sale of lands in probate, as against a hojia fide purchaser from the heirs, and that after that time the land is diseharffed Irom the statutory lien, and that tlie functions of the probate court over tlie same then cease. § 258. The application should be accompanied with a show of diligence on the j^art of the administrator in lirst adminis- tering and exhausting the j^ersonalty.^ § 259. If one order of sale prove insutiicicnt, as to the sum raised, another order or orders may be made, as may be neces- sary, from time to time." The debts should first be allowed of record; but if omitted the entry may be made mine pro iunc.^ % 260. The a]ip]icativ)U must be by petition, identifying the lands intended to be sold, and setting forth whatever under die statute is required to give the court jurisdiction of the particular case aiid subject matter thereof, which should be so set forth as to be good u])on demurrer.'^ § 201. The action of the court or decree, the notice of sale, and the sale itself, must all conform to the same subject matter ' 13 Gray (]Mass,) :]2G. - Langwovth v. Cakcr, 23 111. 4S1. ^1 Barb. 75; Fitch i-. AVitljeck, 2 Barb. Ch. IGl ; Furguson i\ Biwvn, 1 Bradf. 10. ^ Furguson v. Brown, 1 Bradf. 10. '■> Farringtou n. King, 1 Bradf. 182. « Farrington v. King, 1 Bradf. 182, 191, 192. '' Grignon's Lessee r,. Astor, 2 How. 319; Beauregard v. Xew Orleans, 18 IIow. 592; Alabama Conference «. Price, 42 Ala. 39; Cooper 'o. Sunderland, 3 Iowa, 114; Moore v. Neil, 39 111. 25G; Frazier t\ Steenrod, 3 Iowa, 330; Long v. Burnett, 13 Iowa, 28; Sheldon v. Newton, 3 Ohio (N. S.)495; Coates «. Loftus, 4 Mon. 444; Gcrrard r. Johnson, 12 Ind. G3fi; Morris®. Ilogle, 37 111. 150; Morrow ?). "Weed, 4 Iowa, 77; Florentine i?. Barton, 2 AVall. 210, 21G; Gregory v. McPherson, 13 Cal. 5G2, 570. SALTCS OF I,A^;DS IN TKOBATE. 101 or land dcsci'il)C'(l in the petition as the hind sought to be sokh IS^o title will pass if the j^etition be in reference to one tract of land, and the decree, sale, or notice of sale, be in reference to another and different one.^ § 2G2. The petition should also show the death of the dece- dent ;2 that the land sought to be sold was owned by him at his decease; 3 should show the state of the personal assets, and the insufficiency thereof to pay the debts ;'i and all such other matters, if any, that by local statute may be required. It must likewise be sworn to as may by statute be required.'' It is not necessary, as a general rule, to specify the several debts, yet a statement of the aggregate amount is required. ^ § 2G3. In Tennessee, a report showing the state of the assets is first to be made and affirmed by the court as a basis for the application.'' ' Frazier t>. Stcenrod, 7 Iowa, 3-10; Weed v. Edmonds, 4 Ind. 408; Williams v. Blair, 25 Miss. 78. In SclincU v. Chicago, 38 111. 382, there is I'uling seemingly to the contrary, but in that case the land sold was the same as the description in the petition, whereas the order of sale was that the land described in the petition be sold, naming it by a wrong number. ;Vnd if application be made and exhausted by a decree and sale of real estate to pay the then known debts of a decedent, and afterwards other debts appear against the estate requiring a further sale for their payment, then there must be a ncAv application for such additional decree and sale, substantially as if none before had ever been made. Gilchrist's Admr. t. Ilea, 9 Paige Ch. GG. 2 Comstock V. Crawford, 3 Wall. 39G, 403; Florintine v. Barton, 3 Wall. 210, 216 ; Grifljth v. Frazier, 8 Crauch, 9, 23. In Illinois it should give also the names of the heirs. Turney v. Turney, 24 111. 625. 3 Wood V. Nason, 5 Mass. 243, 358; McCandish v. Kern. 13 Gratt. G15; Johnson «. Collins, 12 Ala. 322; George v. Williams, 26 Mo. 190, 193; Drinkwater v. Drinkwater, 4 Mass. 354; Hathaway v. Valentine, 14 Mass. 500; Griffith v. Frazier, 9 Cranch, 23. * Van Nostrand ■p. Wright, Hill & D. (N.Y.) 2G0; Small v. Cromwell, lb. 154; Cralle v. Meem, 8 Gratt. 190; Gregory v. McPherson, 13 Cal. 562; Crippin v. Crippin, 1 Head. (Tenn.) 128. * Cooper v. Sunderland, 3 Iowa, 114, 137, 138; Babbitt v. Doe, 4 Ind. 355; Thornton v. Mulquinne, 12 Iowa, 549, 554; Parker ». Nichols, 7 Pick, 111, IIG; Campbell v. Knight, 2G Maine, 244; Little v. Sennett, 7 Iowa, 324; Jlorrow V. Weed, 4 Iowa, 77. « Collins V. Farnesworth, 8 Blackf. 575. '' Frazier v. Pankej-, 1 Swan (Tenn.) 75. 102 JUDICIAL AND EXECUTION SALES. § 264. In Mississij)pi, the personal estate must first be found insufficient to pay the debts; and this fact is required to be found bj the verdict of a jury, before any order for the sale of a decedent's lands can be made.i And if the personalty be wasted by the administrator, by reason of which the per- sonal assets are insufficient to pay the debts, it does not follow that there is to be a sale of tiie realty for that purpose; but the remedy, in such case, is against the administrator and his sureties on their bond. The heirs may set up such waste, and tliereby prevent an order of sale.^ § 205. Some of the cases vest the jurisdiction in an applica- tion by the administrator to sell a decedent's lands on a proper petition alone ;3 others on notice and petition.^ In either case, when jurisdiction has attached, the decree is regarded as an adjudication of all previous questions, both as to jurisdic- tion and merits, and as shutting out all subseqnent inquiry into the same, or as to their sufficiency, except on an appeal.^ In all cases the power of the court to decree and sell is the creature of the statute, and its requirements must be con- ' Turner v. Ellis, 24 Miss. 173, 179. '- Turner v. Ellis, 24 Miss. 173, 180 ; Paine «. Pendleton, 32 Miss. 320. ' Grignon's Lessee v. Astor, 3 How. 3G9, 338 ; Beauregard v. New Orleans, 18 How. 502, 503. See Part 1st. Chap. 2, notes, and George v. Watson, 19 Texas, 354, 370, 371; McPliersou v. Cundiff, 11 Sergt. & E. 422; Alex- ander 1). Maverick, 18 Texas, 179. * Morrow «. Weed, 4 Iowa, 77; Davenport v. Smith, 15 Iowa, 213; Frazicr r. Steenrod, 7 Iowa, 339 ; Myers v. McDonald, 47 111.278; Moore r. Xeil. 39 111. 25G; Morris v. Hogle, 37 111. 150; Hawkins v. Hawkins, 28 Ind. GG; Stow V. Kimball, 28 111. 108 ; Doc v. Anderson, 5 Ind. 33. But the notice need not name the heirs by name under the statute in Illinois. Stow v. Kimball, 29 111. 93. So much of Turney v. Turney, 24 111., as rules differ- ently is disavowed. ^Grignon's Lessee v. Astor, 2 How. 319; Morrow «. Weed, 4 Iowa, 77, 87 ; Sheldon v. Newton, 3 Ohio (N. S.) 495 ; Simpson v. Hart, 1 Johns. Ch. 91; Beauregard v. New Orleans, 18 How. 502; Carter 'P. Waugh, 42 Ala. 452; Paul v. Ilussey, 35 Maine, 97; Comstock v. Crawford, 3 Wall. 39G. And if there be on file a defective or insufficient notice, purporting to be the one given, yet where the decree states that " notice according to law was given of the pendency of the cause," it will be intended that such was the case, and that other proof Avas received thereof by the court. Moore v. Neil, 39 111. 25G. SALES OK LANDS IN" I'KOBATi:. 103 fonncd to; sucli- coniorinitv, liowever, is presiiincd to have existed after decree, where jurisdiction lias attached. § 2C0. In a probate proceeding in rem, by an administrator or execntor for the sale of a decedent's lands to pay debts, if no notice is required by the statute, then none need be given ; such proceeding is the creature of the statute ;i and it is suffi- cient if the statute be conformed to. If notice be left to the discretion of the court, then a reasonable notice will be neces- sary, to avoid reversal on error. § 267. If notice or other thing be by the statute or local practice required, and the statute or local decisions declare tlie decree, or sale invalid if conformity to such requirements does not in the record appear to have existed, then such conformity must appear from the record, in order to support the sale.- But if such statute be only directory, then, although notice is necessary to avoid error on an appeal, yet it is not absolutely essential to the validity of the decree and sale, when they are questioned in a collateral proceeding. The presumption of law is, after decree and sale, that the statute was conformed to; and the proceedings are binding, if the jurisdiction of the court had attached over the particular case, by a j^etition good ujion demurrer. 3 Kor does it follow that the proceedings are not binding, where the statute is but directory, even if it appear that notice is wanting; for though the omission may be error, yet if not reversed, or set aside, the decree is binding, even if it appear from the record tliat such notice had not ' Bergin «. McFarland, G Foster (N. H.) 530; Clark «. Thompson, 47 111. 25, 28; Florentine c. Barton, 2 Wall. 210, 210. - Guy «. Pierson, 21 Ind. 18; Gelstrop v. Moore, 20 Miss. 200; Coopers. Sunderland, 3 Iowa, 144, 137, 138; Thornton v. Mulquinnc, 12 Iowa, 549, 554; Babbit v. Doe, 4 Ind. 355. '^ Morrow «. Weed, 4 Iowa, 77; Shelden v. Newton, 3 Ohio, (N. S.) 405; Reeves «. Townsend, 2Zab. 390; Wilson ». Wilson, 18 Ala. 170; Clark «. Blacker, 1 Ind. 215; Paul ». Hussey, 35 Maine, 97; Fox «. Hoit, 12 Conn. 491; Raymond v. Bell, 18 Conn. 81; AYright v. Warner, 1 Doug. 384; Grignon's Lessee «. Astor, 2 How. 319 ; ^McPherson v. Cunliff, 11 Sergt. & R. 422; Clarke v. Holmes, 1 Doug. 390; Elliott v. Piersol, 1 Pet. 328; Thomp- son D.Tolmie, 2 Pet. 157 ; Vorhees v. The Bank, 10 Pet. 473 ; Wright ». ]Marsh, G. Green, 111; Florentine v. Barton, 2 Wall. 210, 210; George v. Watson, 19 Texas, 354. iOi JUDICIAL AKD EXECUTION SALES. been given ; for the power of the conrt is over the property songht to be affected by the order, or decree, when the case is in rem^ " witliout regard to the parties who may have an inter- est in it. All the world are parties." By the decree and sale, " the estate passes by operation of law." The conrt lays hold of, and passes the title, by a right paramonnt to that of the heirs. It does this under the same authority that confers the heirship: Tlie authority of the legislature, which has full power to control the property of decedents.^ Such seems to be the settled rule of decision in the Supremo court of the United States, in the absence of a positive statute declaring sales void if notice bo required, and does not from the record, appear to have been given ; and such we conceive to be the more correct doctrine. The same power that confers heirship may postpone it, and hold the property first liable for the decedent's debts, and as a consequence may confer the power to so apply it on the probate court without notice to the intended heir, whose right attaches to the reiddue and not to the estate generally, in its unadmini stored condition. True the legal title descends to the heir at once, as it can not be in abeyance; but so descends, subject to a prior lien in law for the ancestor's debts — a lien ^vhicli the power that creates both it and the heirshij), may enforce in its o^vn way. The probate court acts upon the title of the ancestor, subject to which action the lien takes title. " The administrator repre- sents the land," 2 and no notice is ordinarily necessary to the validity of the sale in proceedings hi rem. ' Florentine v. Barton, 3 "Wall. 210. - Moore v. Stark, 1 Ohio St. 369; Grignon's Lessee®. Astor, 2 How. 319; Bcanregard «. N. Orleans, 18 How. 497; "Williamson v. Leland, 2 Pet. G5T; Batcher v. Batcher's admr. 41 Ala. 2G; Sheldon v. Newton, 3 Ohio, St. 494; McPherson ®. Cunliff, 11 Sergt. & R. 432; Perkins v. Fairfield, 11 Mass. 227; Saltonstall «. Eiley, 28 Ala. 1G4; Paine v. Moorland, 15 Ohio, 442; RohbB. Irwin, 15 Ohio, 698; Benson v. Cilley, 8 Ohio, St. 614; Borden V. The State, 6 Eng. 519 ; Tongue v. Morton, 6 Har. & J. 23 ; Rice v. Park- man, 10 Mass. 328; Sohier v. Mass. Gem. Hos. 3 Gush. 487; Ludlow's heirs v. Johnson, 3 Ohio, 500; Adams v. Jeffries, 12 Ohio, 253; Voorhees t\ Bk. United States, 10 Pet. 473; United States v. Aredondo, 12 Pet. 709; Rhode Island i\ Mass. 12 Pet. 718; Stow v. Kimball, 28 111. 93; Florentine SALES OF LANDS IN I'EOBATE. 105 § 2GS. This question of notice and personal jurisdiction in probate sales eame before the Iowa Supreme Court in Good v. Norley, at December term, 1869. Good filed a petition in cliancery in the District Court of Polk county to quiet title to V. Barton, 2 Wall. 210, 216; Lane v. Thompson, 43 N. II. 320. In Sheldon V. Newton, above cited, the supreme court of Ohio review the subject of such sales, and of judicial sales generally, with great ability, and say: " 1. A settled axiom of the law, furnishes the governing principle, by which these proceedings are to be tested. If the court had jurisdiction of the subject matter, and the parties, it is altogether immaterial how grossly irregular, or manifestly erroneous, its proceedings may have been ; its final order can not be regarded as a nullity, and can not therefore be collaterally inipeaclied. On the other hand, if it proceed without jurisdiction, it i3 equally unimportant how technically correct, and precisely certain, in point of form, its record may appear; its judgment is void to every intent and for every purpose, and must be so declared by every court in which it is presented. In the one case the court is invested with the power to determine the rights of the parties, and no irregularity or error in the exe, cution of the power, can prevent the judgment while it stands unreversed, from disposing of such rights as fall within the legitimate scope of its adjudication; wliile in the other its authority is wholly usurped, and its judgments and orders, the exercise of arbitrary poAver, under the forms but without the sanction of law. The power to hear and determine a cause, is jurisdiction; and it is coram judice whenever a case is presented which brings this power into action. But before this power can be affirmed to exist it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected ; that such complaint has actually been preferred ; and that such person or thing has been properly brought before the tribunal to answer the charge therein contained. When these appear the jurisdiction has attached; the right to hear and determine is perfect; and the decision of every question thereafter arising is but the exercise of the jurisdiction thus conferred; and whether determined rightfully or wrongfully, correctly or erronously, is alike immaterial to the validity- force, and effect of the final judgment, when brought collaterally in ques, tlon. United States i;. Aredondo, G Pet. 709; Rhode Island «. "Mass. 12 Pet. 718. We wholly dissent from the position taken in argument, that the jurisdiction of the court, or the effect of its final order, can be made to depend upon the records disclosing such a state of facts, to have been shown in evidence, as to warrant the exercise of its authority. To adopt the language of the court, in answer to the same position, in Voorhees v. The U. S. Bank, 10 Pet. 473 : 'We cannot hesitate in giving a distinct and unqualified negative to this proposition, both on principle and authority too well and long settled to be questioned.' It was distinctly repudiated in the early case of Ludlow's heirs v. Johnson, 3 Ohio 5G0; and has been 106 JUDICIAL AND EXECUTION SAXES. a tract of land, claiming that in 1852 it was purcliased at a sale thereof, in probate, for payment of debts, made under order in probate by the administrator of John IS^orley, deceased. That a deed therefor was duly executed and by the court no less positively denied in every subsequent case, including Adams v. Jeflries, 12 O. R. 253. The tribunal in whicb these proceedings were bad, was a court of record of general common law and chancery jurisdiction; and while it is true, that in the exercise of this particular authority, it may be regarded as a tribunal of special and limited powers prescribed by statute, it is still to be remembered that it was the tribunal created by the constitution with the exclusive jurisdiction over probate and testamentary matters, and had no one single characteristic of those inferior coi;rts and commissions to which the rule insisted upon has been applied by the English and American courts. All its proceedings are recorded and con- stitute records, in the highest sense of the term, imparting absolute verity, not to be impaired by averment or proof to the contrary, and conclusively binding the parties, and all who stand in privity Avith them. The distinc- tion is not between courts of general and those of limited jurisdiction, but between courts of record that are so constituted as to be competent to decide on their own jurisdiction, and to exercise it to a final judgment without setting forth the facts and evidence on which it is rendered, and whose records when made import absolute verity ; and those of an inferior grade, wlaose decisions are not of themselves evidence, and whose judg- ments can be looked through for the facts and evidence which are necessary to sustain them. McCormick «. Sullivant, 10 Wheat. 199 ; Gris- wold V. Sedgwick, 1 Wend. 131; Baldwin v. Hale, 17 J. R. 273; Grignon's Lessee v. Astor, 2 How. 341 ; 2 Bin. R. 255 ; 4 lb. 187. Orphans' courts, and courts of probate, when constituted courts of record, have uniformly been held of the former description. Thompson v. Tolmie, 2 Pet. 165 ; Grig- non's Lessee V. Astor, supra; 11 Serg. & Rawle, 429; 11 Mass. 221. In respect to them, when it appears that they have proceeded with jurisdic- tion over the subject matter and the parties, we fully agree with the supreme court of Pennsylvania in saying: 'If the purchaser was respon- sible for their mistakes in point of fact, after they had adjudicated upon the facts, and acted upon them, those sales would be snares for honest men ; ' and with the supreme court of the United States, in affirming that the reasons upon which their decisions have rested 'are founded on the oldest and most sacred principles of the common law. They are rules of property, on which the repose of the country depends; titles acquired under the proceedings of courts of competent jurisdiction must be deemed inviolable in collateral actions, or none can know what is his own; and there are no judicial sales around which greater security ought to be placed, than those made of the estates of decedents, by order of those courts to whom the laws of the States confide full jurisdiction over the subjects.' The purchaser is bound to look no further back than the order S.VLES OF LANDS IN PPwOBATE. 107 approved; but that the same was lost before recording. In tlie proceeding in probate under Vvdiich the sale occurred, the administrator made the widow (whose dower had already been assigned) and the infant heir — the only child of tlie decedent — of the court, made in a proceeding which the law lias empowered it to entertain, and with the proper parties, or subject matter before it. All else, we are bound to presume in favor of its action; and neither in judg- ment of law, nor in fact, is it to be treated with the least distrust. The proper application of this principle disposes of all the exceptions taken to these proceedings, arising after the jurisdiction of the court should liave attached. * * * * As it is not denied that the court was invested with power to entertain the proceeding, and as the lands were situated within the limits of its jurisdiction, it only remains to consider whetlier notice to the heirs was indispensible to the jurisdiction of the court; and if so, whether such notice was substantially given. These questions can only be answered in the light of a proper construction of the act of Feb- ruary 11th, 1824, (3 Ch. Stat. 1308,) under which these proceedings were had. From a very early period in our history, lands have been made assets, in the hands of executors and administrators, for the payment of debts ; but at no time could they be converted into money for this purpose until the personal property was exhausted, nor without the special leave of the proper court of probate. Prior to the passage of the act of 1824, the leave was obtained upon the petition of the personal representative, showing a deficiency of personal assets. No parties defendant was re- quired to be made, and the proceeding througliout was wholly ex 'parte and strictly and technically in rem. That act effected no further change than to require ' the person having the next estate of inheritance of the testator or intestate,' to be made defendant to the petition. What elTect did this have upon the proceeding? Did it make it an adversary proceeding in personam in such sense as to make actual notice to the heir indispensible to the jurisdiction of the court? These questions have not been answered in any of the cases that have been decided, and they are not of easy solu- tion. As the interests of the owner of the property sought to be appropri- ated are involved in either form of proceeding, neither is supposed to be pursued without notice to him. Proceedings in rem have their own essen- tial and distinguishing characteristics. They are usually brought to enforce some liability which the thing itself has incurred — the law treating the thing itself as the debtor or delinquent, or some specific lien upon it. Tlie seizure of the thing and taking it from the possession of the owner and into the custody of the law, is deemed to be implied notice to liim, and while the proceedings were confined to the pursuit of personal prop- erty, was often quite as ellectual as actual notice by the service of a summons wouUl liave been. Other means for giving notice were usually prescribed, but a fixilure to comply with them only goes to the regularity of the proceeding, and has never been held necessary to give the court 108 JUDICI-^VL AND EXECUTIOX SALES. defendants, and asked for the appointment of a guardian ad litem for tlio infant. A guardian ad litem was appointed. The guardian appeared in person and the widow by an attor- ney, and severally waived notice and filed answers, consenting jurisdiction. When the property charged with the liability is talceii into (lie custody of the law and brought witliiu the power of the tribunal, and the judgment spends its whole force upon the property,— creating no per- sonal liability upon the owner — it has never been doubted that a judgment of condemnation was effected to vest a perfect title in the purchaser, how- ever irregularly or erroneously the court may have proceeded. But when the liability is not upon the thing and it is seized only to secure and satisfy such judgment as may be recovered against the owner, there is much diffi- culty in seeing how the proceeding can be said to be in rem, or how a judgment in personam can be rendered vmtilthe party has been personally brought into court by such notice as the law may have provided. I do not doubt that the validity of judgments strictly in rem, may, by positive pro- vision of law, be made to depend upon the service of process or other notice upon the owner; but in the absence of such expressed legislative intention, the omission to serve the process or give the notice, makes the proceeding only erroneous, but not void. The thing itself being in the custody of the law and within the power of the court, is subject to its action and effectually disposed of by its judgment. The proceeding authorized by the act of 1824, tested by its nature and essential qualities would seem to be clearly enough a proceeding in rem. Upon the death of the owner the law charged his debts as a specific lien on all his property, real and personal, and held it subject to their payment. The legal title to the real estate, it is true, descended to the heir, but it descended to him subject to this paramount lieu. The executor or administraior was a trus. tee alike for creditors and heir, and the order of sale upon his petition operated on the estate and not on the heir; and the purchaser by operation of law, took the paramount title of the ancestor and did not claim through or under the heir. 2 How. 338; 11 Serg. & Rawle^ 430. The heir was required to be made a party to the proceeding with a view to his having notice; but it is nowhere intimated that a fiiilure to give the notice should deprive the court of jurisdiction over the property. I am, therefore, strongly inclined to the opinion that such an omission goes only to the regularity of the proceeding and not to the jurisdiction of the court; and that its final order can only be set aside for irregularity or reversed on error, and cannot be treated as a nullity in a collateral action. The pro- ceeding was distinctly declared to be in rem in the case of llobb v. Irwin's Lessee, 15 O. R. G98 ; and, although Read, J., in his dissenting opinion, cliaracterizes it as a 'nickname,' in the case of Paine's Lessee v. Moore- land, 15 O. R. 435, decided at the same term, he not onlj' concurred with the court, but delivered their opinion in holding proceedings in attaelimcnt to be ill rem, in which jurisdiction was acquired bj'thc seizure of property, SALES OF LANDS IN TKOBATP:. 109 to tlie sale of tlie property. An order of sale was accordingly made and tlio property was sold, deed executed, and by the court approved. To set up this title and to quiet the same, the petition in chancery in Polk District Court was filed. To and thiit a jiul^i^ment rendered without notice could not be treated as a nullit}^ although such proceedings are founded upon no liability or lien, resting upon the property itself; have adversary parties and are consum- mated by a judgment ia personam, and the statute expressly declaring that the suit shall be dismissed at the cost of the plaintiff, if the notice is not given. " But it does not become necessary to place this case upon that ground, as the court are of the opinion that notice was given In such manner as substantially complied with the law. This, we think, has been in effect settled for more than by the court of last resort in the state. The statute provided for no particular form of process or mode of giving notice to the defendants. The necessity of giving any notice is only to be inferred from the ftict that the heirs are required to be made defendants. Tliis omission in the law had to be supplied by a course of practice in the sev- eral courts invested with the jurisdiction, and it is in no way surprising that entire uniformity was not secured. This fact demonstrates the pro- priety of upholding any form of notice that afforded a reasonable oppor- tunity to the heirs to interpose their objection to the sale. In the case of minor heirs the practice was general to serve the process upon the general guardian, or a guardian ad litem, or to permit an appearance without by cither. The correctness of this practice was first drawn in question in Ewing'3 Lessee v. Higbj', 7 O. R. 198, part 1. In that case the heirs were minors, and two of them were not named in the petition; but their guard- ians, during its pendency, entered their appearance. The court held them bound by the order of sale, and decided that the proceedings could not be collaterally impeached. And in Ewing v. Hollister, 7 O. R. 138, part 2d, the same order was affirmed on writ of certiorari. In Robb v. Irwin's Lessee, no process was served or issued, but the court appointed a guard- ian ad litem for the infant defendants, who appeared and answered. This was held sufficient to give the court jurisdiction and the title of the pur. cliaser was protected. In Snevely v. Lowe, 18 O. R. 3G8, one of the minor lieirs was not made a party to the petition, nor was any process issued or served. A guardian ad litem was appointed who filed an answer for the minor heirs, without specifying whether for those named in the petition alone, or for all the minor heirs of the decedent. But the court construed the answer to include them all, and held the proceeding effectual to trans- mit the title to the purchaser. Thus has the Supreme Court of the state, from the first to the last, uniformly decided that an actual service of pro- cess upon the minor heii's was not necessary to give the court jurisdiction, or even to the regularity of the proceedings. That it was enough that a guardian, either especially appointed for the i)urpose, or having the care no JUDICIAL AND EXECUTION &AIAlS. tliis jietitioii one of the defendants answered. The others made default. The District Court decreed in favor of the petitioner, according to tlie prayer of the petitioner, and Maiy Norley, the defendant who had appeared and answered, appealed. On this state of the case the cause came uj) for hearing on the appeal, and the judges of the Supreme Court were divided equally on the question as to whether personal jurisdiction of the infant defendant was essential in the probate v. urt to the validity of the decree and sale. Wright, Justice, was of opi- aad custody of the infants, person or estate, was before the court whe.n, the order was made. That it was not even indispensable that tlie infant should be named as a party in the petition ; and without directly affirming that the court could obtain jurisdiction, without having him in some way before them, I must think that the case of Snevcly v. Lowe can be sup- ported on no other grounds. In my opinion it cannot be upon reasons assigned in the opinion. These decisions have stood as the law of the state for more than twenty years. During all that time they have con- stituted rules of property, and upon the faith of them men have invested their money. If ever an urgent case for the application of the maxim stare decisis existed, this is one. It is not enough that we should doubt their correctness, or that we should decide differently, if the question was now for the first time presented. It must be made to appear clearly and unquestionably that the rules of law have been violated, and the rights of the parties disregarded, before Ave could justify ourselves in questioning their authority. No such case is made ; the question was a doubtful one, and has been settled, and one plain duty is to let it remain settled. In no one of these cases has the court gone further than the Supreme Court of the United States in Grignon's Lessee v. Astor, 3 How. 335, as will be seen by a particular examination of that case. I have not referred to the case of Adams v. Jeffries, 12 O. E. 253, cited and relied upon by the plaintifTs counsel, because the order of sale there involved was not made under the act of 1824, but under that of 1831, which specially provided the mode in which service should be made. These principles seem to us conclusively to settle the case in hand. In this case the heirs were all made parties to the petition, and service of process was regularly upon the guardian appointed for them. If the court had power to appoint them a guardian, it had power to bring him into court in this manner; and if he was in court when the order was made, the jurisdiction of the court over him and those he represented cannot be questioned. It is true he filed no answer, nor docs the record show that he accepted the appointment; but the want of an answer could not affect the jurisdiction, and we are bound to pre- sume the court were advised of his acceptance of the trust before proceed- ing to make the final order in the case." Shelden r. Xewton, 3 Ohio St. 494. SAf.ES OF LANDS IN rUOBATE. Ill nion, liowcvor, tliat there was jurisdiction of tlio person, and, tlicrelbre, as well as for account of the division of the court, the decree appealed from was affirmed, and the sale, as a legal result of such division, was held valid. ^ § 2G9. When jurisdiction has fully attached, by petition, if notice be not a condition to the validity of the proceedings, or by petition and notice, when such notice is thus required as a condition to validity, then, after decree, all things else as to regularity of the proceedings and necessary to their validity, is presumed; and after confirmation are no longer open to col- lateral inquiry." § 270. Again, in Fiorentliis v. Barton,^ the Supremo Court of the United States, adhering to all its former decisions on this subject. Justice Grier, delivering the opinion, hold the following language: "The petition of the administrator set- ting forth that the personal property of the deceased is insuffi- cient to pay such debts, and praying the com't for an order of sale, brought the case fully within the jurisdiction of the court. It became a case of judicial cognizance, and the proceedings are judicial. The court has power over the subject matter and the parties. It is true in such proceedings there are no adversary parties, because the proceeding is in the nature of a proceeding in re?n, in which the estate is represented by the administrator, and, as in a jn'oceeding in rem in admiralty, all the world are parties." § 271, In the same case the court say that in making the order of sale the probate court are "presumed to have adjudged every question necessary to justify such order or decree, viz.: the death of the owner; that the petitioners were his adminis- trators; that the jDcrsonal assets was insufficient to pay the ' Good V. Norley, 27 Iowa, 188. ^ Morrow ■;;. Weed, 4 Iowa, 77, 87 ; Carter v. Waugli, 42 Ala. 452 ; ]\[j-ers V. McDonald, 47 111. 278; Frazier v. Stcenrod, 7 Iowa, 339; Hart v. Jewett, 11 Iov,-a, 27G; Davenport v. Smith, 15 Iowa, 213; Shelden ?;. Newton, 3 Ohio (N. S.) 495 ; Simpson v. Hart, 1 Johns. Ch. 91 ; Grignon's Lessee v. Astor, 2 How. 319, 340; Fox v. Iloit, 12 Conn. 491; Paul v. Ilussej, 35 Maine, 97; Goudy v. Hall, 80 111. 313; Moore v. Neil, 39 III. 25G, 202; Comstock V. Crawford, 3 Wall. 39G. ' 2 Wall. 21G. 112 JUDICLVL A^'D ]:XECU'nON SAL1-:S. debts of the deceased; that the private act of assemhly as to the manner of sale was within the constitutional powers of the Legislature, and that all the provisions of the Kv/ as to notices, which are directory to the administrators, have been complied with." § 272. The conrt moreover holds substantially and expressly, in the same case, that such order, whether correct or incorrect, is final and binding, nnless reversed for error, and is every- where, in every court, binding in every collateral proceeding; and that a purchaser under the same is not bound to look further than the order of the court, or to " inquire into its mistakes." That the court ordering the sale is not bound to enter all things on its record; and that "a diiferent doctrine" would render " titles under a judicial sale worthless and a ' mere trap for the unwary.' " § 273. The court thus reafSrm the doctrine and the case of Grignoii's Lessee v. Asior, and so they do again in the case of Comstock V. Crawford ^'^ wherein the same principles are reiterated and affirmed, as in Florentine v. Barton, above referred to; and the latter case is cited and relied on as in point. § 271. But the ruling is uniform that in chancery proceed- ings, in a regular court of chancery, if it appear affirmatively, Avhere there are litigant parties, that there was no service of notice on the defendant, and there be no appearance, a decree and sale disposing of the defendant's rights are void.^ In Ohio, it is said that the appointment of a guardian ad litem for minor defendants is to enable them to defend and is after they are in court, in a regular chancery cause, and not to bring tliem in. 3 Bat in the probate court, in administrations, the property is assets in tlie control of the court, first for pay- ment of debts; remainder to the heirs. The latter are not absohitely necessary as parties, unless made so by express statute as a condition to validity of tlie decree. § 275. And where by statute, in proceedings in probate by ■ 3 Wall. 390, 40G. ' Moore X. Starks, 1 Ohio St. 3(59. ' Ibid. S-VLES OF LANDS IN I'EOBATE, 113 an administrator to sell a decedent's lands for the payment of debts, the heirs are required to be made parties and no parti- cular mode is prescribed for making them such, the law is complied with ])y the appointment of a guardian ad litern for infant heirs, so tar as to them J § 2TG. J^otwith standing the diversity of decisions and statu- tory regulations of the different states upon this subject, we think the following conclusions are borne out as general prin- ciples by the rulings of the courts in relation to sales of lands in probate for payment of debts: First — That all pro^^erty of a decedent, which was liable to execution sale while he lived, is subject to an implied lien in favor of his creditors for pay- ment of his debts at his death, which lien is paramount to the rights acquired by bequest or by heirshij). Second — The enforcement of this lien is ao-ainst the title of the ancestor or testator, as the case may be, and may be enforced in any man- ner which the law-making j^ower may prescribe. Third — That both legatees and heirs take subject to this lien, and also subject to this paramount power of the state to enforce the lien in its own way, before its benefits, conferred on the heirs and permitted to be conferred by will upon legatees, shall unconditionally and absolutely inure to them. Fourth — That in the proceedings to enforce such lien by sale of lands, juris- diction over the particular case and lands must attach by a petition good npon demurrer. Fifth — That if, by statute, no notice to the heirs of legatees be required, then none need be given. The power of the court is over the property and title of the ancestor. Sixth — That if by law a notice is required, and the law in that respect is directory only, then the omission thereof, though error for which a decree will be reversed, will not invalidate a sale thereon if the decree is permitted to stand; but if it is not apj)arent whether notice was given or not, then in such case, after decree, the law presumes the notice to have been given, and a sale thereon is valid. Seventh — That if by law a notice is required, and the law provides that unless it appear from the records to have been given, then it * Robb y. Irwin, 15 Ohio, G89; Lewis t. Lewis' Adrur. 15 Ohio, 715. 114: JUDICIAL AND ILXECUTION SALES. must SO appear from the records, else the decree and sale will be void. Eighth — That where notice is required, as in either of the cases above stated, if it aj^pear that there was what stands for notice, and that it was in the right case as to the lands described and against the right persons, if notice be required to the persons, that the proceedings and sale will be valid in that respect, although the notice or service thereof be irregular or defective, for the matter after decreu is res judicata and at most but error of judgment. § 277. If notice of application be by law required, then the petition must be presented at the term of court named, in the notice; but not necessarily on the first day of the term. The term in law is but one day in that respect. If a term inter- vene, that is, if the notice be of one term, and the petition be not presented then, but is presented at the succeeding term, it is coram iion judice, and the proceeding will be void.^ There cannot be a continuance of the application until the petition is filed, for until then there is no cause to continue. The pro- ceedings, if a term intervenes without a petition being filed, abate by operation of law. Any subsequent proceedings based thereon are void.- § 278. But if the 2:)etitioii be presented at the term desig- nated in the notice, and the case be docketed, and continued l)y the court until the next term, and such facts appear of record, then the action of the court at such subsequent term will be of like validity as if had at the time the petition is ])resented.3 By failure to file the application at the time " Schiicll V. Chicago, 38 III. 382; Morris v. Hoglo, 37 III. 150; Turncy r. Turnoy, 24 111. 625 ; Goudy v. Hull, 10 111. 31G. "" Scfmell V. Chicago, 38 111. 394. ^Schncll V. Chicago, 88 111. 382. In this case the court say: "The ques- tion then is, was suck presentation of the petition at the September term, Avhcn notice liad been given, it -would be presented at the August term, a compliance with the statute, and if not such compliance, does it not render the proceedings void ? This question has already been determined by this court. The case of Turncy and others v. Turncy's Admr. 24 111.. G25, is in point. In that case notices was given by the administratrix; that she would apply by petition to the circuit of Jo Daviess county, at the July term, 1847, for an order to sell the real estate of the intestate. The petition was not fded until the following September term, and this court SALES OF LAXDS IN I'KOB.VTi:. 115 dcsigiiatod in the notice the proceedings abate, and to gi\-c tlic court proper jurisdiction, where notice is required, anew notice is necessary.! § 279. As a pre-requisite to making the order of sale, tlie claims of the creditors should first be adjudicated so as to exliibit or show what is'chargeable against the lands.- And in some of the States the petition is required to state the names of the heirs, or else the order or decree will be ^-oid.3 Unless the proceedings be entitled against the unknoioii heirs, under tlie statute, and it be therein stated that the heirs are unkno^vn.■t § 280. It is held in New Hampshire that if the sale be void, a new order and sale inay be made, although the proceeds of the first sale went to the creditors. ^ § 281. In Mississippi it must affinnatively appear in the proceedings that the statntory requirements are conformed to, else the sale will be void.^ § 282. In Texas the application is to be made bj^ a creditor, heir, or legatee. An order of sale made on the application of the administrator alone, is invalid to confer title by sale under it, and if a sale be made thereon, it will be set aside on appli- cation for that purpose, although a lapse of more than five years time intervene between the time of such application and tlie day of sale.'' § 283. The court has power to order the sale to be made on a credit and may prescribe the terms thereof. ^ § 284. The order of sale must bo confined to the lands held that the failure to file the petition at the time specified in the notice and petition, and to have the cause docketed at the July term, abated the proceeding, and before any other steps could be taken the heirs and parties in interest should have been again brought in to court by another notice, as if none had been previously given. 'Turney v. Turncy, 24 111. G25; Schncll v. Cliicago, 38 111. C82. = Cralle v. Mccm, 8 Gratt. 49G. = Tally v. Starke, G Gratt. 339 ; Guy v. Pierson, 21 Ind. 18. * Guy «. Pierson, 21 Ind. 18. "■ Wilson ®. Bergin, 8 Foster, (K II.) 90. " Getstrop ». Moore, 2G Miss. 20G. ' Miller v. Miller 10, Texas, 319. 8 Reynolds t. Wilson, 15 111. 304. lie JUDICLVL AND EXECUTION SALES. described in the petition as those wliicli it is desired to sell. ^ The order may be that the sale be public, or that it be private, at the discretion of the court. ^ Ko more land should be sold than is required to pay the debts, unless the sale of part only will injure the residue.^ But selling a larger quantity will not always invalidate the salc^ § 285. In Illinois the court must have jurisdiction of the persons of the heirs in proceedings by an administrator to sell the land of a decedent to pay debts, and a decree made on the mere answer of the guardian ad litem, where no such jurisdic- tion had attached, is void, and so is a sale made thereon. ^ § 2SG. But if the court obtains jurisdiction of the case, and the subject matter and parties thereof, where jurisdiction of the persons is required, it matters not that errors or irregularities may intervene in the course of the proceedings. They will neither be void, nor will the court, for such irregularity or errors, without other cause, set the sale aside. <» The sale, when confirmed, will be valid, irrespective of mere irregularities or ciTors in the proceedings. So, too, in Arkansas; mere irregu- larities will nofe vitiate the j^roceediugs or the sales.'' When the sale is confirmed by the court, all anterior questions arising collaterally, are precluded. But, until confirmation, the sale is incomplete and confers no rights. ^ § 2ST. The purchaser at an administrator's sale of lands in probate is not bound to look behind the decree more than to see if there was jurisdiction in the court making it of the subject matter and of the j^arties in interest. § 288. And though the sale be for the payment of debts some of vrhicli were fraudulent and the administrator may ' Williams v. Childress, 25 Miss. 78. ^ Ex parte Couzins, 5 Grcenl. 240. 3 Black V. Meek, 1 Ind. 810; Merrill v. Harris, G Foster, (N. H.) 142. " Runyon v. Rubber Co. 4 Zabr. 469. 'Clark V. Thompson, 47 111. 2.'5; Herdraan v. Short, 18 111. 59; Johnson T. Johnson, 30 111. 215. Carter v. Wangh, 42 Ala. 452; Madden v. Cooper, 47 111. 802. '' Thorn v. Ingram, 25 Ark. 52. 8 Mason «.♦ Osgood, G4 N. C. 4G7; Rawlings v. Bailey, 15 111. 178; Ayrcs V. Baumgartucr, 15 111. 44-1, 44G; Young v. Kcogh, 11 111. G42. SALES OF LANDS IN IT.OBATE, 117 have been i^urty to tlicir fraudulent admission, yet such circum- stance will not avoid the sale in collateral proceedings when a portion of the claims were just; at most it would only be void- able after confirmation, in a direct proceeding in chancery to set it aside. ]^or will it alter the case if the purchaser have notice of or participate in the fraud. After confirmation the remedy is, in eithec case, by original bill. The sale cannot be attacked successfully in a collateral proceeding.'^ § 289. It is well settled in Indiana, first upon general prin- cij^les, and subseqiiently under the statutes of that State, that a sale of the realty, by an administrator, without notice to the licir, though ordered and confirmed by the court, is absolutely void.- This is not only upon the general principle that to give validity to the proceedings the court must have jurisdic- tion of the parties by service or appearance, as well as of the subject matter, 3 as originally liolden in that State previous to the enactment of 1843. But, as ruled subsequently under said statute which declares that the petition must state the names and age of the heirs or others in interest, if known, and if unloiown, that such want of knowledge should be stated. That no order of sale shall be made without notice to such heirs or others in interest; personal notice if residents of the State, and by publication if non-residents.''- § 290. But every reasonable intendment or presumption is made in favor of the proceedings where the record comes col- laterally in question and there is no disclosure whatever in the same negativing jurisdiction of the person. ^ § 291. And where the petition for leave to sell lands of minor heirs was filed, and a guardian ad litem for the heirs appointed all at the same time, without actual notice to the ' Myers «. McDouga], 47 III. 278. 5 Hawkins «. Hawkins, 28 Ind. 70, 71 ; Babbitt v. Doe, 4 Ind. 355 ; Doe v. Anderson, 5 Ind. 33 ; Doe v. Bowen, 8 Ind. 197 ; Gerrard v. Johnson, 12 Ind. 636; Wart r>. Finley, 8 Blackf. 335-, Bliss «. Wilson, 4 Blackf. 169, « Hawkins ©. Hawkins, 28 Ind. 60, 71. * Hawkins v. Hawkins, 28 Ind. 70. ^ Hawkins t. Hawkins, 28 Ind. 00, 71 ; Homer v. Doe, 1 Ind. 130; Doc «. Ilarvej', 5 Blackf. 487. lis JUDICIAL AXD EXECUTION SALES. heirs, but in wliicli proceeding the guardian ad litem appeared and answered admitting the truth of the petition, and the court ordered a sale which was made and confirmed, it was holden that though tlie order of sale was erroneous, it was not a nullity, and that the sale and purchase under it were valid. ^ § 292. Where, however, in a like case, under the act of 1843, the general guardian of the minor heirs appeared and filed an answer stating that he neither admitted nor denied the mattei*s charged in the petition, and waived service of notice on his wards, the court decreed an order of sale npon such petition and answer, and the sale was made, it was held that the sale and the order of sale were nullities when the same came in cjuestion in a collateral proceeding." § 293. The infencj of the heirs does not excuse the service of process or notice on them, where the statute makes notice necessary to the validity of the proceeding. ^ Such service being omitted, seems not to render the order void, where a guardian ad litem is appointed and appears for the minors; still, as w^e have seen, its omission is error.* § 294. Where a creditor of a deceased debtor would other- wise have a right to an order in probate for sale of the realty to pay his debt, but has been prevented by destruction of tlie records by fire or by other circumstances not arising from any fault of his own, from enforcing his claim by administrator's sale of the realty, and the estate of the decedent still remains unsettled without any evidences or basis in the probate court of assets or data from which to procure a settlement, decree of sale or payment, such creditor may, upon the general prin- ciples of equity jurisdiction, obtain relief in the ordinary court of chancery by bill in equity, and a decree for the sale of the real estate to pay his debt in a direct proceeding against the lieirs for discovery of assets and for relief; and in such case ' Tliompson x. Doc, 8 Blackf. 33«. ' Doe v. Anderson, 5 Ind. 33. 5 Hawkins v. Hawkins, 28 Ind. G6, 72 ; Hougli v. Cauby, 8 Blackf. 301 ; Peoples V. Stanley, G Ind. 410; Martin v. Starr, 7 Ind. 224; Pugh «. Pugh, Ind. 132; Abdill -y. Abdill, 9 Ind. 287. 4 Thompson v. Doe, 8 Blackf. 33G. SALT'S OK LANDS IN riiOBATE. 119 eio-lit years is not deemed an unreasonable time in vrliicli to commence sncli proceedinoj.^ § 295. But it is also held in Xew York, that although sufB- cieut time has elapsed between the grant of administration and the time of the application to the surrogute's court for the order of sale to cause the court to reject the application, that never- theless if the court grant the order, it is but error, and can be corrected only by appeal. Tliat until reversed the proceeding will be valid, and being so, of course a sale, in accordance with it, and in other respects sufficient, would also be valid. The erroneous judgment of the surrogate, given in a proceeding wherein jurisdiction has attached, will not be void, and cannot be' treated as such in a collateral proceeding. The court hav- in<> obtained iurisdiction its order is not a nullitv." V. WrrniN avhat Time the Sale is to ee Made and Pee- FECTED BY DeED. § 29G. The general ruling is, that where the life, or validity of the license to sell is limited to one year, or other time, the sale must be made and perfected within the limited time.^ In Michigan, however, a sale was made on the last day limited by law, and the deed was executed eighteen days thereafter, and the court held the same to be valid. '^ § 297. Though there be no limit of time by law in which to sell a decedent's lands to pay debts, yet the power may ^ Clark V. Iloglc, 52 111. 427. And one creditor alone may file such bill. lb. and 1 Story, Eq. Jur. 003, Sec. 54G. * Jackson v. Robinson, 4 Wend. 43G. But this decision was made previous to the passage of the revised statutes limiting the time to three years. Tlie statutory limit is arbitrary and cuts off the power of the surrogate at the end of the time limited. If there be a remedy afterward, it must be under suitable circumstances in a court of general chancery jurisdiction. ^ Marr v. Boothy, 19 Maine, 150; Mason v. Haiu, 36 Maine, 573; Macy U.Raymond, 9 Pick, 385; Welraan ij. Lawrence, 15 Mass. 326, 329 ; Chad- bourne «. Ratcliff, 30 Maine, 354, 359; Dubois v. Dubois, 4 McLean, 480, 489. * Howard v. Moore, 2 Mich. 226. 120 JUDICIAL AKD EXECUTION SALES. expire by analogy to tlie statute of limitations. ^ But where circumstances require it, an ordinary court of chancery, having jurisdiction of the subject matter, Avill not be restricted by the time allowed in probate. ^ § 298. In the case of Clarh v. Ilogle,^ the ordinary court of chancery jurisdiction, assumed jurisdiction and aiforded relief by decree and sale of real estate of a decedent at the suit of creditors who had been prevented by accident and burning of the j)robate records from obtaining satisfaction of his debt by proceedings and sale in probate in the ordinary manner. In that case the proceedings was a direct one by bill in equity against the heirs of the decedent; and though the term of eight years had. intervened, chancery did not consider that a sufficient time to preclude the creditor under the circumstances of the case. In such cases, equity courts have jurisdiction upon the general principles of affording relief against acci- dents. YI. I^OT AFfER KePEAL OF THE LaW OR ABOLITION OF THE Court Ailow^ixg the Order. § 299. The power to make or carry out the sale, or to enforce the decree, ceases with the abolition of the court in wliich the decree is made in case such court be abolished by law between the time of making the decree and the completion of the sale. In such case no authority remains to j)erfect tlie same, or to enforce the decree.* § 300. And so a sale under an order or decree made after repeal of the law under which the proceedings and decree were had. Tlie repeal of the law, if there be no saving clause, puts an end to the authority of the decree, and the sale is void.^ § 301. It follows from these principles that if the decree itself be made under a supposed law, but which was then Dubois V. McLean, 4 McLean, 48G; la re Godrey 4 Marsh, 308. 2 Clark V. Hosle, 52 111. 427. s Clark V. Hogle, 52 111. 427. ^ aSIcLau.i^hliu v. Janney, 6 Gratt. 609, G14. ' Perry v. Clarkson, IG Ohio, 571 ; Campan v. Gillctt, 1 Man. (Mich.) 41C; Bank of Hamilton v. Dudley, 2 Pet. 494. SALES OF LANDS IN PliOBAlT:. 121 already repealed and had ceased to exist, both the decree and any sale made thereon are void.^ § 302. In the case of McLaiighlm v. Janney,^ the court hold the following langnage: "It wonld be a solecism, in law, to assert that persons appointed by a court to act as its commis- sioners can exercise that authority as commissioners of that court after the court itself has been abolished, or has ceased to exist." § 303. And in the Bank of Hamilton v. Dudley ^^ that very learned Justice, ]\LiEsnALL, says, in reference to the effects of a repeal : " If the law which authorized the court to make the order be repealed, the power to sell can never come into existence." § 304. Thus it is well settled that abolishing the court, or repealing the law before enforcement of the order or decree, destroys the power to execute it, if there be no saving clause, and terminates the j^i'oceedings. VII. The Oath. § 305. AVhen, by law, an oath is required to be taken by the administrator or executor, in reference to selling, it should be taken before fixing the time and place and giving notice of sale, and not merely before the act of selling, or the execution of the deed. The taking of the oath in such cases should be the first step taken in proceeding to sell.'* § 30G. If the law requiring the oath is only directory, and it does not appear from the proceeding whether it was taken or not, then the presumption of law is that it M-as taken, if juris- diction had attached; and the question will not be open to collateral incjuiry.s And so, too, though the validity of the proceedings are, under the statute, dependent on the taking of ' Ludlow «. Wade, 5 Ham, 494. ' G Gratt. 609, G14. 3 2 Pet. 492. « Parker 'o. Nichols, 7 Pick. Ill, IIG; Cooper ^^ Sunderland. 3 Iowa, 114; Campbell t. Knight, 2G Maine, 244; Thornton ®. Mulquinnc, 12 Iowa, 549, 554; Little v. Sennett, 7 Iowa, 324; Morrow «. Weed, 4 Iowa, 77. ' Voorhees v. U. S. Bank, 10 Pet. 449, 47G, 477. lfJ3 JUDICIAL AInD execution SALES. tlic Ocatli, if it do not appear wlietlier it was taken or not, and jurisdiction Lad attaelied, tlien the presumption is tliat the oath was properly taken. ^ § 307. But where, by statute or by the settled rulings of the court, it is requisite to the validity of the sale, that from the records and proceedings it shall appear that the requisite oath has been taken, then if from the records and proceedings it docs not appear to have been taken, there is in such case no intendment of law to lielp out the proceedings, but the sale made therein is void and will be so treated when collaterally drawn in question,- excej^t such validity as may be given to it by long and uninterrupted j^ossession and by lapse of time. YIII. Sales Merely Irregulak, oe in Irregular Proceed- ings, NOT YoiD. § SOS. A mere irregularity in the proceedings, or in the manner of selling or conducting the sale, if there be no want of jurisdiction in the court, will not avoid a sale of lands in probate by an executor or administrator for j)ayinent of a decedent's debts. ^ § 309. ITor can the validity of the sale, in a collateral pro- ceeding, be made to depend upon the regularity of the adminis- trator's appointment, if the appointment be mere error as in a wrong county under a law that is only directory.^ But otherwise if the law inhibit such appointment.^ § 310. If the sale be reported and approved by the court, then it may not be impeached collaterally for any irregularity ' Voorliees v. U. S. Bank, 10 Pet. 449, 470, 477. ^ Cooper V. Sunderland, 3 Iowa, 114, 137, 138; Thornton v. Mulquiune 12 Iowa, 549, 554; Babbitt v. Doe, 4 Ind. 355. 3 Van Syckle v. Richardson, 13 III. 171; Freeland v. Dazey, 25 111. 294; Madden v. Cooper, 47 111. 359, 3G2; Iverson v. Loberg, 26 111. 179; Matilda t). Lockridge, 53 111. 503; Ewing ■?;. Higby, G Ohio, 472; Grignon's Lessee V. Astor, 2 How. 319; Comstock v. Crawford, 3 Wall. 39G; George v. Wat- son, 19 Texas, 354; Succession of Guerney, 14 La. An. G32; Gregory v. McPherson, 13 Cal. 174, 5G2. * Wright «. Walbaum, 39 111. 554; Schncll v. Chicago, 38 111. 382; Cook r. Fry, 2 Mich. 500. ' Culls V. Iloskins, 9 Mass. 543. SALES OF LANDS IX ITvOBATE. 123 or insiifRcicney in tlie notice given of the sale. If tlie probate court err in atljudicating the notice to be a sufficient one, when in truth it is not in legal compliance with the law, this error is to be corrected on appeal and cannot be taken advantage of in a collateral proceedings involving title under the sale.^ In Morrow v. Weed,^ the Supreme Court of Iowa, Woodwajrd, Justice, say: " If this were admissible, then every question relating to the sufficiency of a notice and of its service, too, in any of the courts, could be bought up and reviewed in the same manner." IX. CoxFntMATiON — The Deed — Its ArrKovAL. g 311. In some states the practice is to confirm the sale by order in probate of record, and therein direct the execution of the deed.=^ In others the usual course is for the administrator or executor to execute the deed and report the saine with the sale for approval; and, thereupon, if acceptable to the court, an order approving the deed is made and is endorsed upon the deed."^ § 312. If the administrator or executor die before carrying the order into eftect by a complete sale, his successor should complete the sale and make the deed, or else apply to the court lor orders in that resj)ect. ^ ' Morrow v. Weed, 4 Iowa, 77 ; Little v. Sennctt, 7 Iowa, 024, o3ij. " 4 Iowa, 91. MVclls V. Miller, 22 Texas, 302; Dowling v. Duke, 20 Texas, 181; Brad- bury V. Reed, 23 Texas, 258; Smith v. Chew, 35 Miss. 153; Hallick v. Guy, 9 Cal. 181, 195; Yerby v. Hill, 16 Texas, 377. * Wade V. Carpenter, 4 Iowa, 3G1, 3GG ; Morrow v. Weed, 4 Iowa, 77. 5 Baker v. Bradsby, 23 111. G32. This case was in reference to a sale of slaves, but the principle applies with still greater force as to land. CHAPTEE YII. GUARDIAN'S SALES, AND SALES IN PROCEEDINGS FOR PARTITION. I. Guardian's Sales. II. Sales in Proceedings for Partition. I. Gua-rdian's Sales. § 313. In England, tlie king being sovereign, is by tlie common law regarded as tbe universal guardian of all infants or minors.^ Hence tliis authority was an attribute of the judiciary, when, as was the case originally, the king held the courts himself in person. § 314. It followed that when the judicial power was trans- mitted from the king in person to the judges by him appointed to hold tlie courts in his stead, that this attribute of guardian- ship then devolved upon the courts, whence it eventually cen- tered in the chancellor, whose court is always oj^en. Wliether by usurpation as by some jurists contended," or by legitimate means, as alleged by others,^ is no longer material. Suffice it to say it was there firmly lodged, and the chancery court came to be regarded as guardian of the interests of all minors.^ § 315. This authority as to administrative matters, came to be conferred on others selected and appointed by the chancellor, from time to time, for infants generally, as necessity should require, and. as ultimately regulated by act of parliament, chancery, however, retaining and maintaining its supervisory power over both guardians so appointed and over their wards and. their interests both moral and pecuniary. This, too, even * Bac. Abt. Vol. 4; Title, Guardian, C. 2 Co. Lit. 128; note IG. * Fonblanque, Eq. 228, n. a. * Bac. Abt. Vol. 4; Title Guardian, C. (124) guakdian's sale. 125 to tlic extent of superceding tlie autliorltj of the parent for the interest of the child. ^ § 310. Now, such being the powers of tlie king, the parlia- ment, and the courts under the crown, not only as to England, but as to the colonies also, they legally devolved uj)on the several sovereign States, legislatures, and courts of the several repub- lican commonwealths established by the American revolution, and as a part of their common inheritance, and also upon the new States, their legislatures, and their courts subsequently established. § 317. Although in the American States the administrative powers and duties as to appointment of guardians, their ordi- nary supervision and accountability, and the administration of the ward's interests and. care of his person is conferred and regulated by statutes conforming to the local policies of the several States, yet the uncircumscribed overruling supervisory jurisdiction of the chancellor still exists.^ This power is to be exercised upon the great princii)les of equity whenever necessity calls for it for the protection of the infant from all abuse of his rights in property and in person when wielded by the chancellor as a judge of the court of general chancery jurisdiction and by the probate courts of inferior jurisdicton to tlie extent and in the manner specified and regulated by the legislative enactments of the several States, in each State, according to the lex loci thereof. § 318. In some of the States it is held that a court of general chancery jurisdiction has full power to decree a sale of a minor's lands when deemed best for his interests. ^ AVhilst in some others it is said that though chancery may exercise such a power over the estates of minors that it will not be done to the disj)0sal of a future interest except under extraordinary •Bac. Abt.; Title Guardian, C. Whitfield v. Ilale, 12 Ves. 492. Ex, -parte Warner, 4 Brown, Cli. 101. •^ 2 Story, Eq. Jur. Sec. 1389, 1840, 1341, 13oG; Ex parte Crumb. 2 Johns. Ch. 439; Matter of Andrews, 1 Johns. Cli. 99; Allen v. Allen, 2 Litt. 97; Aymar v. Rofl', 3 Johns. Ch. 49. ' Williams v. Harrington, 11 Ind. GIG ; Matter of Salisbmy, 3 Johns. Ch. 047; Hugcr v. linger, 3 Des. 18; Stapleton v. Longstaff, 3 Des. 22; Will- iams v. Harrington, 11 Ircd. GIG; Ex jmrte Jcwett, IG Ala. 409. 12G JUDICIAL AND EXECUTION SALES. circumstances, and not in any case for the mere pur])0£C of increasing tlie present interest of the adult owner. ^ § 310. Again, in others, the converse of this principle is asserted, and it is held that the general powers of chancery do not extend to the decreeing a sale of an infant's real estate for the mere purpose of bettering his pecuniary condition or gen- eral interests.2 Formerly the ruling in Virginia, under the Rct of February IS, 1853, was the other way.^ § 320. But whatever the general jjowers of the chancellor may be, those of the courts of probate are such only as arc conferred by statute,* and must be exercised in conformity to, and only for the causes allowed by the statutes of the respect- ive States. § 321. Yet, if jurisdiction shall have attached such con- formity vrill be inferred, in most cases, after decree and sale; for although they are courts of limited powers, yet their juris- diction is general to the extent conferred over the ]3articular subjects by statute.'' § 322. In some cases it is held that the proceedings by guardian in probate for a sale of a ward's lands are adversary, and that there must be notice, or Avhat answers in lieu thereof.'' In others it is adjudged that they are in rem; that the action of the court is on the property itself, the proceed- ings not adversary, and that no notice, or what may answer instead thereof, is required.'' § 323. But in the latter class of cases, the court of probate ' Matter of Jones, 2 Barb. Ch. 22. ^Falkner «. Davis, ISGratt. Gol; Rogers i\ Dill, G Hill, 415; Baker t\ Lorillard, 4 Comst. 257; Williams' Case, 3 Bland Ch. 18G; Picrso v. Trigg, 10 Leigh, 40G. 2 Faikner v. Davis, 18 Gratt. G51. * Wade B. Carpenter, 4 Iowa, 3G1; Gilmorc v. Bogcrs, 41 Pcnn. St. 120; Fitch u. Miller, 20 Cal. 352; Robert v. Casey, 25 Mo. 584; Palmer u. Oak- ley, 2 Dong. (Mich.) 433. ^ United States v. Arcdondo, G Pet. 709; Iverson v. Lobcrg, 2G 111. 170; Thompson v. Talmie, 2 Pet. 157; Pursley v. Hays, 22 Iowa, 1; Mycr v. Douglass, 47 111. 278. « Townsend v. Tallant, 33 Cal. 45. ' Mason «. Wait, 4 Scam. 127; Smith c. Race, 27 111. 387; Grignon's Lessee v. Astor, 2 How. 319. CUAKDIA.\'S i^AI.K. 127 will protect the wiircrs riglits by rcr[uiring notice, or by causing ;i defense to be interposed by a proper guardian ad litem it* there shall be apparent cause to apprehend that the guardian is abusing his trust. ^ But if, on suggestion as amicus curia, it shall aj^pear that there be reason to apprehend an abuse of trust, then the court will appoint a guardian ad, litem. Otherwise the j)roceedings to sell a ward's real estate, by his guardian in probate, are not necessarily adversary, as against the ward under ordinary circumstances. - § 324. In the case of SmitJi v. Jiace,^ the court ath'ert to their previous decision in Sturms' case, 25th Illinois 390, wherein they held that the minor heirs should have been made parties to the proceeding or suit of their guardian, and qualify the doctrine there asserted in the following language : " We are aware that the views here expressed are not in accord- ance with those announced T?i re Sturyns, 25 111. 390. In that case it was improperly said that the minors were not par- ties to the original suit, and their interest could not be affected by the sale of their land by the guardian. In that we went too far, according to the case of Mason v. WaitP In the cases of Mason v. Wait, and Smith v. liace, the Illi- nois supreme court go to the full extent of the cases of Grig- noil's Lessee v. Astor, and of Beauregard v. New Orleans, on the subject in cases of sales by guardians by proceedings in probate, and hold that as the Illinois statute docs not require those in interest to be made parties that the action of the court without regard to parties is within its jurisdiction in such cases and is valid. § 325. The court in their discretion might grant the license to sell in the alternative — so as to authorize the sale to bo made privately or at public vendue, under the statute of Maine of 1S2G.* But under the statutes of 1S40, all sales of lands in that state made by orders, of court are to be at public auction.^ ' Smith c. Race, 27 111. 387; Mason 'c. Wait, 4 Scam. 127. s Mason «. Wait, 4 Scam. 127; Smith fi. Race, 27 111. 387. s Smith V. Race, 27 111. 380, 392, 393. ^ Expaiie Cousins, 5 Grconl. 240. ' Ibid. 128 JUDICIAL A^'D exp:cution sales. § 32G. A deed of -warranty executed by a guardian for liis ward's lands, made under decree of the court and sale thereon, carries only such title as the ward has at the time. Sucli war ranty binds the guardian in his individual capacity. ^ § 327. To sustain a guardian's sale of his ward's real estate the authority of tlie guardian to sell must first be shown, by production of the decree or license of the court, or such exem plification thereof as may be proof thereof, before the deed can be given in evidence. lie cannot sell without such order. 3 § 328. A sale and conveyance of the whole interest nomin- ally, of lands, by order in j^robate on apj^lication of the guardian of one only of several owners, carries title to tiie share represented by the ward of such guardian, and to no more. The proceedings do not affect the interest of the other owners. 3 § 329. The guardian in socage Jias no power to sell his ward's real estate under order in probate, after the ward attains the age at which such guardianship terminates by law. A sale made after the termination of such guardianship is void, and confers no rights whatever on the purchaser.^ § 330. If the ward after attaining his majority receive the proceeds of a sale of his real estate made by his guardian during his minority, under order of court, the same being its full value, it is an aflSrmance of the sale, even though the guar- dian be the purchaser, if received with projDer knowledge of all tlie circumstances; but such reception of tlie purchase money will be construed so as not to j)rejudice the M^ard, if it appear that he acted without due precaution or 2)roper loiowl- edge, or was influenced by threats.^ § 331. The general rule is that a guardian or other person selling in the relation of trustee cannot purchase at liis own ' Young V. Lorain, 11 111. G24. ■^ Jackson v. Todd, 1 Dutch (N. J.) 121. ' Bryan v. Manninfj;, C Jones, Law, (N. C.) 034. * Perry's Lessee v. Brainard, 11 Ohio, 443. ' Scott «. Freeland, 7 S. & M. 409; Michoud r. Girod, 4 How. 503, 553, Sec ante, p. G8, n. 4. guardl^k's salk. 129 sale. lie cannot blend the cliaracters of both seller and buyer so as to unite them in himself. § 332. "VVliere neither the law nor the order of sale ex- pressly require a report to be made at the lirst term after granting the order, but the law being silent on the subject and the order merely requiring a report to the next term of the court, it will be construed to mean the next term after the consumation of the sale. And if by law no confirmation of the sale, or approval thereof, or of the deed, be required, then no such approval or confirmation is necessary to the validity of the sale, especially after great lapse of time. Xor will the failure of the guardian to comply with the order of court in making report of the sale, under such circumstances and lavr, invalidate the sale, when neither the law or the order of court make its validity dependent on such subsequent act of the guardian. "To hold the title of the purchaser (say the court) dependent upon the return and report of the guardian, is to hold him resjDonsible for a matter over which he has no control. lie can look to the order of court and see whether there is authority to sell, and if so, how far tliat authority is restricted ; but when he sees an order, and that the terms upon \rhich the power to sell depends have been complied Avith, he is not responsible for the subsequent misconduct of the guardian. His title cannot and ought not to be invalidated by matters liappening subsequent to its vesting. We might as ^vell require him to see to the application of the purchase money. Un- doubtedly where a title cannot be consumated without certain acts being done, and an approval of the court of those acts the case is difierent. The sales of administrators under the statute are of this character. Eut no provision is made in the guar- dian law of 1825 to secure the supervision of the court over tho sale; none Avhich looks to an approval by the court, as a preliminary to the jmrchaser's title." ^ § 333. A decree in probate for the sale of a Avard's lands to raise a certain amount of money is necessarily to be con- strued to mean that amount and the costs. ^ ■ Robert V. Casey, 23 ^In. 584. » Emery v. Vronian, 10 AVis. (>89, 700. S) 130 JUDICIAL AND EXECUTION SAI,ES. § 334. And if a larger sum be raised by such sale tlian the decree calls for or allows, and the sale be made in parcels, yet the illegality will not afiect the sale of those parcels that were sold before the aggregate of the j^roceods amounted to an excess of the sum to be raised.^ § 335. If the lands are sold in different order than that directed in the license or decree, the defect, if it be one, is cured by the action of tlie court in confirming the sale, for, in the language of the Supreme Court of Wisconsin, " the same court from which the order emanated had in its discretion the power to modify it or to dispense with its strict performance in the particular named. Tliis was done by the order of con- firmation."- II. Sales in I^ioceedings foe Paktition. g 33G. Sales of land by order of the court in proceedings for partition are judicial sales. ^ As such they must be rej)orted to the court for confirmation, and until confirmed they are of no effect. 4 § 337. On failure of the purchaser to comply with the terms of the sale, if the land be re-sold by order of the court and sell for a less price then at first, tlie original oAvner or the commissioners selling may sue for and recover of the first purchaser the loss on the re-sale. ^ § 338. A court of equity may partition part in hind and sell other parts of lands as may seem for the best interests of tlie jxarties.*' § 330. Tlie purchaser inider a sale in 2")artition takes a con- clusive title against the parties to the suit,'' and against their grantees by conveyance made during the proceedings. ^ ' Emery v. Vroman, 19 Wis. G89, 700. 2 Ibid. ••' Ilutton V. Williams, 3d Ala. 503. * Ilutton V. Williams, 35 Ala. 503; IIcss v. Voss, 53 III. 472. ' Ilutton V. Williams, 35 Ala. 503. •^ Haywood v. Judson, 4 Barb. 228. ■^ Gates V. Irick, 2 Rich. 593; Allen v. Gault, 27 Pcnn. St. 473. 8 Baird v. Corwin, 17 Tenn. St, 4G2; Miclioud v. Girod, 4 IIow. 503, 5D9; Davoue v. Fanninir, 2 Johns. Cli. 253. SALES FOli I'AKTITIOX. 131 § 310. If, wliilst proceedings arc pending for tlic partition of lands licld in common, a creditor of one of tlie tenants in common obtain a judgment against liis debtor, tlic creditor so obtaining judgment lias no other or better riglit than has his debtor in the subject matter of the proceeding, and cannot require the sale in partition to be made for cash, so as to meet the cash demands of his judgment. ^ And so in Illinois the lien of a mortgage given bj one of the parties to partition proceeding during the pendency of such proceedings, follo:vs the interest Avhen set off of the jxarty giving the mortgage.- § 311. In Illinois it has been held that in sales in partition under the statute, proof of the notice of sale should be filed and made to appear in the ^proceedings v/ith a copy of tlie notice;^ but, in the same state, in partition sales in the ordi- nary court of chancery, it is holdcn that the chancery court need not, as it does not proceed under the statute, conform to the statute in this respect. "* § 342. In sales in proceedings for partition all persons in interest, including lien holders against the property and holders of liens against separate shares or interests, are, in Illinois, required to be made parties, and that too -whether the interest be a present and certain or a contingent one. Thus, having before it the parties in interest both as coparceners and credit- ors, the court will then declare the rights and interest of eacli of the parties and make such decree as will protect the same. The money arising from the sale should be brought into court and applied by tlie order of the court where it belongs, and the several liens should be displaced and replaced by their several shares of the funds arising from the sale, and the residue distributed to the proper owners, so as to dispose of the whole matter and give the purchaser a clear title. ^' § 313. Decrees of sales in partition should not only ascer- ' Stern V. Epstin, 14 Kicli. Eq. 5; Craaicbaugli v. Pritchett, 8 Ohio St. G4C. =" Loomis V. Riley, 24 111. 307; JM.mly i-. Pettec, 38 111. 12S, 133 3 Hess V. Voss, 52 111. 473, 479; Tibbs r. Allen, 29 111. 53.j. * Hess V. Voss, 52 111. 473, 479. " Kil2;our v. Crawford, 51 111. 249. 132 JUDICLVL AND EXECUTION SALES. tain and declare the relative riglits or interests of tlie 2:»artics and give sueli judgment as may sustain tlie same, but should describe the land to be sold and the sale of land not included in the order of sale, although included in the application, is error. If there be minors interested in the suit they must be made j^arties by process and actual service. The better author- ity is that appointment of guardian ad litem to defend for them without such prior proofs and service is without unau- thorized and is error for which a decree will be reversed, as is also the omission to find the several relative interests, and also the selling of lands not described in the decree. For such sale of lands not decreed to bo sold and for proceeding without making the minors parties, the sale, it is believed, though affirmed, will be void.^ § 34:-i. In Ohio, sales in proceedings for partition do not carry to the purchaser the growing crops situate npon the premises. The court say: " Sales made in partition are sub- ject to regulations entirely similar to those which govern sales on ordinary execution. The lands m«st be appraised and can- not be sold for less than two-thirds of their appraised value ; and the same considerations Avhich forbid ns to hold that the growing crojos pass to the purchaser in the one case, forbid it in the other." ^ In Iloiits v. Showalter the court say, Bkixk- ERHOFF, Justice: ""When an appraisement is made, it cannot he foreseen when a sale will be efiected. It is not for the interest of any party, nor for the public interest, that the land should thenceforth lie waste; then there may have been no crop sown or j)lanted, but when the sale comes to be made there may be growing crops put into the ground in the mean- time. If these passed by the sale it would be unjust to the debtor, for they could not have been valued." § 345. Thus it is that in Ohio, although in partition sales no interest of a debtor is involved, yet, as the statute of that state requires appraisement in partition sales as in sales on execution, it follows that the same objection arises in the one ' Ilickcnbolham v. Blackledge, 54 111. 31G, 018. 2 Ilouts V. Showalter. 10 Ohio St. 124, 137; Cassilly v. Rhodes, 13 Ohio St. 88. SALES FOB rAETITIOX. 133 case as in tlie other to allowing the growing crops to pass by the sale. That is the impracticability of fixing their valua- tion, whilst without valuation they cannot, with the realty, bo sold.i ' Houts V. Showalter, 10 Ohio St. 124, 127. CIIAPTEE YIII. PURCHASES BY PERSONS CONCERNED IN SELLING. § 34:0. The policy of the hiw forbids, as conducive to fraud and inimical to fair dealing, the purchase by masters, trustees, executors, administrators, guardians, and all others, at their own sales, as also all agents, public and private, who are con- cerned in selling, whether such purchase be direct or indirect; and if made, such sales will be set aside on application of the parties interested.^ When the person selling is willing to give ' Lockwood D. Mills, 39 111. 602; Sheldon v. Newton, 3 Ohio, St. 494; Tony V. Bank of Orleans, 9 Paige. G49; Kruse v. Steffen, 47 111. 113; Michoud 1). Girod, 4 How. 503 ; Wormsley v. Wormsley, 8 Wheat. 421 ; Davone v. Fanning, 2 Johns. Ch. 253 ; Church v. Ins. Co. 1 Mason C. C. 345 ; Remick v. Butterfield, 11 Foster, (N. H.) 70; Shaw v. Swift, 1 Cranch. 565 ; Rcihardson v. Jones, 3 Gill. & J. 1C3 ; Ward v. Smith, 3 Sandf. Ch. 593 ; Dob- son ». Racey, 3 Sandf. Ch. 60; Haddix v. Haddix, 5 Litt. 302; Dorsey®. Dor- scy, 3 Har. & J. 410 ; Davis v. Simpson, 5 Har. & J. 147 ; Base v. Abeel, 1 Paige. 393; DeCatcrs v. DeChamont, 3 Paige, 178; Purzey v. Seuier, 9 Wis. 370; Torry v. The Bank, 9 Paige, 648; Iddings v. Bruen, 4 Sandf. Ch. 223; Field V. Arrowsmith, 3 Humph. (Tenn.) 442; Wilson v. Troup, 3 Cow. 19G; :McCants v. Bee, 1 McCord, Ch. 389; Britton v. Johnson, 2 Hill, 434; Salt- marsh «. Been, 4 Porter, 283 ; Miles v. AVhceler, 43 111. 123 ; Harris v. Parker, 41 Ala. 604 ; Roberts v. Fleming, 53 111. 196 ; Griffin v. Marine Co. 52 111. 130 ; Pewrouneau «. Bleakley, 14 111. 15; Tcrrill «. Anchauer, 14 Ohio, St. 80; Swazey «. Burke, 12 Pet. 11 ; Robins v. Butler, 24 HI. 387 ; Dennis v. McCagg, 32 111.429; Lockwood ®. Mills, 39 111. 602; Forbs v. Halsey, 26 N. Y. 53; Barrington «. Alexander, 6 Ohio, St. 189; Mitchel «. Dunlap, 10 Ohio, 117; Glass v. Grcathouse, 20 Ohio, 503; Rice v. Cleghorn, 31 Iud.80, In Kruse v. Steffen, the supreme court of Illinois lays down the law of this subject in the following terms: "As a general rule, a person acting in a fiduciary capacity, cannot be permitted to purchase property at his own sale. And in such case it does not matter whether the purchase is in the name of the person conducting the sale, or in the name of another for his use. McConnel v. Gibson, 13 111. 138. And in such a sale, even where there is no fraud, the sale will be set aside if the party in interest shall apply in a reasonable time for that purpose. Thorp v. IMcCullum, 1 Gilm. 037. The fact that the person entrusted by the law to make the sale, (134) rUECnASES by TERSONS COXCERXED IX SELLING. 135 more for tlic property than any one else, he should apply to the court for leave to become a purchaser. The court in their discretion may permit it.'^ § 3i7. The supreme court of the United States hold that all such sales are "fraudulent and void and may be so declared. "2 Thev say: "Tlie general rule stands upon our great moral obligation to refrain from placing ourselves in relations which ordinarily excite a conflict between self interest and integrit3\ It restrains all agents, public and private." That " it therefore prohibits a party from purchasing on his own account, that which his duty or trust requires him to sell on account of another, and from purchasing on account of another, that which he sells on his own account. In effect he is not allowed to unite the two opi^osite characters of buyer and seller, because his interests when he is selling or buying on his own account are directly conflicting with those of the person on whose account he buys or sells." That, "he cannot be at the same time vendor and vendee." And, "that no rule becomes the purchaser Avlietlier by direct or indirect means, creates such a presumption of fraud as requires the sale to be vacated if application is made in proper time. * * * * This rule is regarded as firmly estab- lished by this court, and it is deemed unnecessary to review authorities or to discuss the reason of the rule." 47 111. p. 114, 115. In Lockvy-ood v. Mills, 39 111. 603, the same court assert the rule as follows : " The evidence shows that Green was creditor, administrator, auctioneer and purchaser, at the sale, thus having it in his power to strike down the property at his own price, and we see as the result of representing all these relations to the estate, that 960 acres of land were sold for the sum of $1,134. The evidence shows the land embraced in the deed to Lockwood, worth from six to ten dollars per acre. If they Avere worth eight dollars per acre, that would give $3,840, while they sold but for $000; and if the whole 9G0 acres were worth the same per acre, their value would be $7,680, and they onl}- brought $1,134. A large compensation for acting as creditor, administrator, crier and purchaser at his own sale. The rule is well established in equity, that the simple fact the purchase by asignees, trustees, commis- sioners, executors, or administrators at their own sales, renders the sales invalid and it will be set aside by the court." 39 111. 008. ' Michoud «. Girod, 4 How. 558; Ai-mor v. Cochrane, 66 Pcnn. St. 308, 311. He should report the bid and apply for leave to give more. Davoue V. Fanning, 2 Johns- Ch. 252, 261. - Michoud V. Girod, 4 How. 503, 553. 13G JUDICIAL AiST> EXECUTION SALES. is better settled than tliat a trustee cannot become a purcliascr of the trust estate." ^ § 34S. "An executor or administrator is in equity a trustee for heirs, legatees, and creditors." ^ Davoue v. Jb\cnnin(j was the case of an executor for whose wife a j^urchase was made by one Hedden at pnblic auction hona fide, for a fair j^rice, of a part of the estate which Fanning administered, and the prayer of the bill was that the purchase might be set aside and the premises re-sold. The case was examined with special refer- ence to the right of an executor to buy any part of the estate of his testator. And it was affirmed, and we think rightly, that if a trustee or person acting for others, sells the trust estate and becomes himself interested in the purchase, the cestuis que trust are entitled, as of course, to have the purchase set aside and the property re-ex230scd to sale under the direc- tion of the court. And it makes no difference in the application of the rule that a sale was at public auction, hona fide and for a feir j^rice, and that the executor did not purchase for him- self, but that a thii'd person, by j^revious arrangement with the executor, became the purchaser to hold in trust for the seperate use and benefit of the wife of the executor who Avas one of the cestuis que trust, and who had an interest in the land under the will of the testator. The inquiry in such case is not whether there was or was not fraud in fact. The purchase is void and will be set aside at the instance of the cestuis que trust, and a re-sale ordered on the ground of the temiptation to abuse, and of the danger of imposition inaccessible to the eye of the court. "\Ve are aware that cases may be found in the rej)orts of some of the chancery courts in the United States, in which it has been held that an executor may purchase, if it be without any property of his testator at open and public sale for a fair price, and that such purchase is only voidable and not void as wo hold it to be. But with all due respect for the learned judges who have so decided, we say that an executor is in equity a trustee for the next of kin, legatees and creditors, ' Miclioud V. Girod, 4 IIow. 555. Sec also Wormley i\ Wormlcy, SWhcat. 421. " Michoud V. Girod, 4 IIow. 553, 554. rUKCHASKS liY I'EKSOXS CONCERNED IN SELIJNG. 137 find tliat we have been nnable to find any one well considered decision with other cases, or any one case in the books to sustain the right of an executor to become tlie purchaser of the prop- erty which he represents or any portion of it, though he has done so for a fair price, without fraud, at a public sale.''^ And again, in the same case, as if to put aside all questions in refer- ence the general ty of the doctrine asserted by it, the court say: " TVo have thus shown tliat those purchases are fraudulent and void from having been made i^^^^'^'^^i^^'positam 'personam^ and if they Avere not so on that account, that they are void by the rule in equity in the courts of England, and as it prevails in the courts of equity in the United States."- " The rule as expressed embraces every relation in which there may arise a conflict between the duty which the vendor or purchaser owes to the person with whom he is dealing, or on whose account he is acting and. his own individual interest."" It is the same whether the sale be made with or without the sanction of judicial authority, where the person selling rej^re- sents that in which others are interested ; and releases by those in interest made in ignorance of the circumstances will not bind them.^ § 340. In some of the state courts such purchases are regarded as conveying the legal title in trust for those inter- ested in the estate sold, yet so iar void in equity that they will be set aside at the instance of the certui qtie trust, without other cause than the single fact of the purchase being by or for the trustee or person selling.* § 350. In others it is liolden that although thus hold in trust and the sale is liable to be set aside as against the pur- chaser, within a reasonable time, that such sale is valid in favor ' Miclioud v. Girod, 4 How. S.liG, 557. ^ Ibid. miclioud T. Girod, 4 How. 503, 553, 559; Roberts v. Fleming, 53 111. 19G; Barrington v. Alexander, 6 Ohio, St. 189. ^ Davoue c. Fanning, 2 Johns. Ch. 253; Harkrider -y. Harvey, 3 Ind. 104, 105; Glass v. Greathouse, 20 Ohio, 503; Swift v. Swift, 1 Ind. 565; Breck- cnridge ■c. Holland, 2 Blackf. 377; Terrill v. Auchaur, 14 Ohio St. 80. In Ohio an appraiser of the property in probate sales is prohibited to bid by statute. Ibid. Barrington v. Alexander, 6 Ohio St. 189. 13 S JUDICIAL AXD EXECIJTION SALES. of a Ijonafidc purcliaser under him before avoidance and vdtli- out notice of liis tlms liaving pnrcliased at Lis own sale.^ But if the 2>i'inciple that a grantee is bound by the recitals con- tained in the title deed of his grantor is applicable to these sales, it is difficult to conceive by what rule of law there may be l}ona fide 2>T-^i"t^hasers, under such circumstances, except where the trust is a secret one." § 351. In yet another class of decisions, though the legal title is suj^posed to pass by the sale and conveyance, and though it is not exj)ressly holden that the title is thus held by the grantee in trust for his cestui que trusty yet it is -holden that such sales are void in equity at the election of those inter- ested in the property sold, and will, witliin a reasonable time, on their application, be set aside. -^ § 352. And it is further held in some of these cases tliat if, on a re-sale, the property should not sell for as much as before those interested therein may elect ^o affirm the first sale and hold the trustee to his bargain. § 353. It matters not, so far as tlie equitable effect is involved, whether the purchase be made directly by and in the name of the trustee or indirectly in the name and through the intervention of another person.* In the case of Miles v. Wlieeler the lands of infant heirs being sold in probate by the administrator were fraudulently purchased for himself through tlie agency of another person as bidder. Tlie sale was in 1S4I. The administrator occupied the premises until his death, wliieli occurred in 1S59. In ISGl the lieirs whose property had thus been fraudulently sold filed their bill in equity for a convey- ance of the property and for an account of rents and j)rofits * Wyman ^^ Hooper, 2 Gray, 141; Clooa «. Ilayman, 13 Mot. 231; Eol>- bins «. Bates, 4 Cusli. 100. ^ Brush W.Ware, 15 Pet. 93, 111, 112,113; Rccder «. Barr, 4 Ohio, 458 ; "Willis «. Buclier, 3 Biun, 455; Livingstone «. Nceley, 10 Jolins. 374; "Wormley v. Wormley, 8 Wheat. 421. =■ Shaw «. Swift, 1 Incl. 5G5; Ttemick v. Butterficld, 11 Foster (X. II.) 70; Wyman v. Hooper, 2 Gray, 141; Jackson «. Van Dalfsen, 5 Johns. 44; Blood v. Hayman, 13 Met. 231 ; Hoskins t\ Wilson, 4 Dev. & Batt. 243 ; Beeson v. Bceson, 9 Barr (Penu.) 279. * Church t. Ins. Co. 1 Mason C. C. 341 ; Miles t. Wheeler, 43 111. 123. I'UECIIASKS BY I'EnSOXS CONCEKNim IN SELLING. 139 against the devisees of tlie deceased administrator or fraudulent ])urcliaser. ISTotwithstanding the lapse of time which had intervened it was holdcn tliat they were entitled to r(ilicf. ^ § 354, An administrator, who was also one of the heirs, confessed judgment against the estate and sulTered the lands to be sold on execution, the jiurchaser being the attorney of the plaintiff, and openly avowing at the sale that he was buy- ing merely to secure the debt, and afterwards, without making any payment, deeded the land for the amount bid to the administrator in his personal right, receipting the same after making such deed on the execution, was holden not to be a Itona fide purchaser, and it was also holden that the deed to the administrator from the execution purchaser was not a Ijona fide conveyance as against th.e other heirs. The Supreme Court of the United States use the following language in disposing of the case: "In making the purchase Eoss (the attorney) seems, in effect, to have acted as the agent of the adminis- trator, and it was proper for the jury to inquire whether the transaction was not fraudulent. If the administrator suffered the land to be sold through the agency of Eoss wdth the view of securing the title to himself, to the exclusion of the other heirs of his father, the proceeding was fraudulent and void; and Eoss could not be considered a honafide purchaser against the legal and equitable rights of the plaintiffs, he not having paid the jDurchase money, the deed which he executed to Ormsley (the administrator) is not a Jjona fide conveyance."- § 355. The two opposite characters of seller and purchaser cannot be united in tiie same person, unless by thQ j)Gi'iiiission of the court first obtained ;''^ hence, a trustee, commissioner to sell, executor, administrator, guardian, or other person selling or conducting the sale, are incapable of j^urchasing at tlicir own sales; sales so made to' themselves are holden by the Supreme Court of the United States to be void. That court ' Miles V. Wheeler, 43 111. 123. - Swazey v. Burke, 12 Pet. 11. In this case the attornej- Miicn he bid in the lartds declared his readiness to allow the heirs to redeem, and that the only object of the purchase was to secure the client's debt. ^ Michoud X. Girod, 4 How. 503, 557. 140 JUDiaAL AND EXECUTION SAEES. say: ''We arc aware that cases may be found in wliicli it lias been lielcl tliat an executor may pnrcbase, if it be Avithont fraud, any property of bis testator at an oj)en and public sale, for a fair price, and tliat sucb purchase is only voidable and not void, as we bold it to be."i That court holds such sale as absolutely void. § 356. A sale of real estate situated in Ehode Island, by an executrix, under a license granted by the probate court of New Hampshire, is void, and the deed is inoperative; but con- firmation by act of the Ehode Island Legislature renders it valid." ' Miclioud V. Girod, 4 How. ij03, 557. " Wilkinson v. Leland, 2 Pet. G27, 053. CHAPTEE IX. THE DEED. I. By wnoM to be Made. ir. To WHOM TO BE MaDE. III. WhEX TO BE JMaDE. IV. Its Recitals axd Descriptioxs. V. What passes by it. I. Br WHOM TO BE Made. § 357. Althougli tlio sale, in a popular point of viev;', is Bupposcd to liavc been made wlicn tlie bargain is closed; yet, in a legal sense, the sale is not complete until the deed is delivered.! Therefore, it follows that as making of the deed is part of the act of selling, the person appointed to sell is the only one who can make the deed. Tlie sale is not perfected until confirmation thereof and delivery of the deed; and in some cases, as where approval of the deed by the court is also required, then only by the additional act of approval. - § 358. A contrary doctrine is alleged by Justice Catox,^ in Jackson v. Warren, to exist in Illinois. His Honor treats of the subject as follows: " In England the practice is to keep the biddings open at a master's sale, so that any person may advance on a bid received by the master, which he reports to the court, so, until a final confirmation of the sale, no one can be considered as a purchaser, but a mere bidder; but under !^[acy V. Raymond, 9 Pick. 285 ; Lischey v. Gardner, 3 W. and Scrgt. 314 ; 3 Daniel, CIi. 1474; Rawlings v. Bailej^, 15 111. 178; Blossom i\ R. R. Co. 8 Wall. 207; Child «. Hurst, 2 Swan, 487; Robinson's Appeal, G2 Pcnn. St. 21G; HaysB. Hate, 19 Ala. 3G7: Koehler «. Ball, 3 Kansas, IGO; Valleei-. Fleming, 19 Mo. 454; Williamson v. Berry, 8 How. 49G. 2 Macy v. Raymond, 9 Pick. 385; Rawlings v. Bailey, 15 111. 178; Young V. Keogli, 11 111. G43; Ayres v. Baumgartner, 15 111. 444; Blossom v. R. R. Co. 3 Wall. 205. ' 33 111. 331. (141) 142 JUDiaAL AND EXECUTION SALES. our practice at sucli sales, a valid and binding contract of sale is made Avlicn the liammcr falls. In tlic absence of fraud, mistake, or some illegal practices, the purchaser is entitled to a deed on the payment of the money." Tliis decision, so far as relates to the binding eft'ect of the sale at the fall of tlic liammer, seems to bo in direct conflict with the j^revious deci- sions in that State of Young v. Keogh, ^nd liawUngs v. Bailey, as also the subsequent decision of Dills v. Jasper, and the Quincij Seminary v. The Same, wherein the same doctrine is avowed as is laid down by us above. ^ ♦ § 350. Though the English practice of lveej)ing open tlie biddings at a judicial sale for an advanced bid until confirma- tion, may not, in the States, be the general practice, yet it is Youug V. Keogh, 11 111. G42; Eawlings t\ Bailey, 15 III. 178; Dills v. Jasper, 33 111. 2G3. lu tlie latter case. Justice Beckwitii, delivering the opinion of the court, saj's: "A master in chancery, exposing property for sale, should receive bids for it and report the largest one to court for its approval. "While such is the correct practice, we do not intend to say that if it is not followed we should hold the sale void. If the order upon which he acts contains especial directions in regard to requiring a deposit, they should he followed; hut in case no such directions are given, the master may, in his discretion, require a part or the whole of a bid to be deposited Avith him ; or he may entirely dispense with such deposit. A bidder is not allowed to retract his bid after its acceptance by the master, if it is approved by the court within a reasonable time; but a bid, or Avithout a deposit, although it is accepted by the master, does not become an absolute contract until it is approved by the court. The bidder at such a sale merely agrees to purchase the property upon the terms named by him if the same are approved by the court; and until the bid is reported, and the report is confirmed, the sale is incomplete, and the bidder is under no obligation to complete the purchase. In this country the master usually requires the amount of the bid to be deposited with him at the time of its acceptance, or immediately thereafter; and on failure to do so, the master may reject the bid, and may again e.\pose the property for sale; or he may report the bid to the court, together with the failure of the bidder to make a deposit. The master should not take the responsibility of rejecting a bid after it has been once accepted by him, where there is danger of loss to the parties in so doing, because he may render himself liable for it. After the court has approved of the bid, it may summarily require the bidder to pay the amount thereof, or it may order the property to be re-sold at the bidder's risk and expense; and if, upon a re-sale, it does not bring the amount of the bidder's liability, the court may summarily enforce the payment of the difference." THE DEED, 143 believed that, as a general rule, an advanced bid, materially increasing tlic amount, will either be received by the court or else cause a re-sale and re-opening of the biddings to be ordered at any time before final coniirmation of the sale. ^ § 360. As to the necessity of such coniirmation, in some shape or other, there can be no doubt, as a general rule, thongh the j)ractice may vary in different places; in proceedings in a court of ordinary chancery jurisdiction usually by formal order of confirmation, if not also by an order approving the deed;^ and in . probate and orphan's courts, whose proceedings are directed by statute, but which also, at the same time, in making sales of real estate, exercise a limited chancery jurisdiction in some States by mere approval of the deed, but which in all cases must depend upon the local statutory requirement, if there be such, and if not, then confirmation or approval of sale should appear of record in accordance with the general rule, so as in some shape or other to show the approval or confirmation of the act by the court. § 3G1. ^VHiere an administrator obtains a license to sell the I'oal estate of a decedent for payment of debts, and dies before tlie confirmation of the sale, his successor may go on and com- ])lete the transaction, if previous proceedings be regular, without any further order of the court for that j^urposc, just as in case of any other business of the estate. ^ § 3G2. The license must be considered as inuriug to the ' Norton v. Norton, 2 Brad. (N. Y.) 200; Davis v. Stewart, 4 Texas, 223; Hays' Appeal, 51 Penn. St. 58 ; Cliilders v. Hart, 2 Swan, (Teun.) 487 ; Wright V. Cantzon, 31 Miss. 514; King v. IMasterton, 16 N. Y. 174, -Moore V. Titman, 33 111.358,307, 3G9; Sliriver v. Lynn, 3 How. 43; Blossom V. K. R. Co. 3 Wall. 207; Vallee v. Fleming, 19 Mo. 454; ^Vebster V. Hill, 3 Sneed, (Tenn.) 333; Henderson v. Herrod, 23 INHss. 424; Walace V. Hale, 19 Ala. 3G7; Robinson's Appeal, G2 Penn. St. 21G; Hays' Appeal, 51 Penn. St. 58; Kohler v. Ball, 2 Kansas IGO; Gowan v. Jones, 10 Smede and 31. 164; Ayres v. Baumgartuer, 15 111. 444; Rawlings v. Bailey, 15 HI. 178; Young v. bowling, 15 111. 481. ^ Baker v. Bradley, 23 111. 632; Gridley v. Philips, 5 Kansas, 349; Peter- man V. Watkins, 19 Ga. 153; or in Georgia, the administrator de bonis ?ion, may he ordered by the same court granting the license to execute, or com- jilete the sale. Ibid. So, likewise, in Kansas, Gridley v. Philips, 5 Kansas, 349. 144 ^UDICTAL AXD EXECUTION SALES. uclministrator, or official capacitj', and not to the person of liini ■who fills the place of administrator. If the new administrator has doiihts, lie can apply to the court for instruction, or to a court of equity for relief; but if to the latter, then the heirs must be made parties. Should the new administrator, (or administrator de hoiiis noil) refuse to proceed, then the pur- chaser may coerce a deed i]i chancery, if he has in no way lost his rif^hts as such. § 363. On a sale of lands of a decedent by the administrator in probate, the deed to the i^urchaser cannot be executed by the administrator through an agent. ^ It is an act that can only be j)erformed by an administrator. § 304. If the nghtful administrator be within the probate jurisdictional limits the court can enforce the making of the deed. 2 Ent if he leave the State, the proper course is to vacate his letters, appoint a successor, and by order in probate cause such successor to execute the proper conveyance to complete the sale. It is not within the jurisdiction of an ordinary chancery jurisdiction to decree a title. The sale must be per- fected through the probate court. ^ § 365. Where the county court in Virginia was empowered by special act of Assembly to decree a sale of a decedent's lands by the administrator, and decreed accordingly, it was holden that the deed sliould be by the administer as such, and not as a commissioner.** § 366. An administrator ^>r6> tcm. cannot execute a deed of conveyance of a decedent's lands without pro]X?r order and authority from the court especially allowing him so to do; such deed is inadmissible in evidence and passes nothing-.^ § 367. In Mississippi the ruling is, that an administrator de Jjonis non cannot execute a deed of land sold by his prede- cessor." ' Gridloy x. Pliilips, o Kansas, G4f). '' Ibid. = Gridley x. Philips, 5 Kansas, 340; Baker v. Bradley, 23 111. G32 * Corbell x>. Zeluff, 12 Gratt, 22G. ^ Robinson x. Martcl, 11 Texas, 140. * Davis «. Brandon, 1 How. (Miss.) 154. TIIE DEED. 145 § 3CS. A married woman wlio is a guardian can convey tlie estate of lier ward hy deed, nnder a judicial sale, without being joined by lier husband in the deed.i In Missouri, a sale and conveyance by one of two administrators is good, the sale being otherwise regular. ^ But the contrary doctrine prevails in California.^ II. To Whom to he ]\Lvde. § 369. Ordinarily the conveyance is to be made to the pur- chaser, if not desired by him to be made to some one else; but in judicial sales, as the whole matter remains under the con- trol of the court until the delivery of the deed,* and the purchaser, by his purchase, becomes a party to the proceedino-s and is, therefore, in court,^ the court has full power, at his request, to order the deed to be made to another person as grantee in his place on full payment of the purchase money. A deed to such other person, made under such sale and sub- stitution, if otherwise sufficient, will be valid;''' "without prejudice, however, to any equities, rights, or liens, which may have become vested before such assignment of his bid,"^ and subject to all equities or liens which, in the meantime, may liave vested as against the original purchaser. ^ § 370. So, in a sale made by an administrator, made under an order of court, and license to sell real estate of a decedent, the deed may be made to the assignee of the purchaser and will bo valid, as to any objection on that account.^ Likewise in cases of judicial sales generally, i^ ' Palmer v. Oakley, 2 Doug. (Mich.) 4;];3. - Vallee v. Fleming, 19 Mo. 454, 404. 3 Gregory v. McPlierson, 13 Cal. 5G2. * Blossom V. U.H. Co. 3 Wall. 207: Deadrick v. Watkins, 8 Humph. 520; Dcadrick v. Smitli, G Humph. 138; Requa v. Rhela, 2 Puige, 339. •■ Blossom V. R. R. Co. 3 Wall. I!)f5, 207. « Williams v. Harrington, 11 Ired. GIG; Proctor v. Farnum, 5 Paige, 014. ' Proctor V. Farnum, 5 Paige, 014. 8 Ibid. ' Ewing V. Higby, 7 Ham. 178. '" Voorhees v. The Bank, U. S. 10 Pet. 478, 479. 10 146 JUDICIAL, A'SB EXECUTION SALES. III. When to be Made. § 371. So soon as tlie sale is confirmed by the court and the purchaser lias jDcrformed on his part the requirements resting on him by the terms of sale as to the purchase money, he then becomes entitled to a deed. The sale, however, in some cases, as for instance sales in probate, is not yet completed until the deed be approved by the court. ^ If the sale be on a credit, then the right of the purchaser to a deed before full payment depends on circumstances and terms of sale.^ ^ 372. If the order of sale is to remain in force only a limited term, then the deed must be executed and delivered within that time. Otherwise it will be void.^ But in Michigan there is a contrary ruling.'* § 374. In the case cited of J/«?/ v. Ba7/mo?id,^ the ques- ' Lischcyy. Gardner, 3 Watts & Sergt. 314; Morton v. Sloan, 11 Humph. 278. ^ Bains v, Morris, 4 Ired. 22. 3 Mason v. Ham, 36 Maine, 573; Macey v. Raymond, 9 Pick. 287; Well- man V. Lawrence, 15 Mass. 320. ^ Howard v. Moore, 2 Micli. 226. 5 9 Pick. 285. PerGuriam: A fixtal objection to the maintainance of this action arises out of the delay in the sale. The license was to he in force one year. It was not questioned in the argument that if the land had not been put up at vendue within the year the deed would have been ineffectual ; but it was said that, as in popular estimation the land was sold within the year, the delivery of the deed after the year expired was sufficient. We tliink this construction cannot prevail. The object of the Legislature was, that the sale should be concluded and the deed delivered within the year. Otherwise there might be a complete evasion of the statute and the estate be kept open for twenty j^ears. No property passed until the deed was given, and until then, in a legal sense, there was no sale. And though the popular sense may be the true one where the act of the Legislature does not relate to a technical subject, j^et it being here the object to limit the time of sales and prevent estates from being kept open longer than is necessary, the legal sense seems to "be the proper one to be adopted. It is said, however, that if the land is bid off within the }'ear, but the deed is not given, a bill in equitj^ will lie to enforce a specific performance of the contract, and so it would be absurd to give a different construction of the statute in a writ of entry. Our construction might be incorrect, if a bill in equity would lie after the expiration of the 5'car. But a court of equity would not decree a useless act, a specific perform- ance where the party could not perform. If the statute had said expressly THE DEI^D. 147 tion as to when the sale is completed arose incidentally in regard to an administrator's sale. The statute of Massachu- t=etts required the sale to he made within one year from the granting of the order of sale. The deed was delivered after the year had expired. Tlie court held that the power to make it had expired; that the sale was not complete until the deli veering of the deed, and that as it was not delivered within the year, the proceedings were void, and that the grantee took nothing under the deed. The statute of Massachusetts has since been altered by the act of 1840 in respect to the time of completing the sale. But the principal in that case adjudged that the sale is only completed by delivery of the deed, is not affected thereby. ly. Its Eecitals axd Descriptioxs. § 375. Mere misrecitals in the deed as to the order of sale or previous proceedings will not invalidate the conveyance and title, if enough appears from the whole record, deed, and pro- ceedings to clearly identify the real case and show the true facts and circumstances under which the deed is made. ^ § 37G. 'Nov will the misnomer of an executor or executrix, who makes the sale, by describing him or her as administrator or administratrix. 2 § 377. In Iowa, the term administrator is, by statute, made to mean as well executor as administrator. ^ § 378. The necessity of reciting the order or decree in the deed, depends mainly on the statutes and local practice in the several States. In New York, Illinois, and others of the States, tliat llie deed should be given within the j^ear, a decree of specific per- formance after the year would be nugatory; and so tlie case depends on the construction of the statute. Nor is there any need of allowing more than a year for the delivery of the deed If the party who bids off the land demands his deed within the year and it is refused, he has his action at law for damages, and that is sufficient ' Thomas v. LaBarron, 8 Met. (Ky.) 355 ; Shelden v. AVriglit, 1 Selden (X. Y.) 497; James v. Taylor, 7 Texas, 2-iO; Saltonstall c. Rile}', 28 Ala. 164. - Cooper V. Robinson, 2 Cush. 184. ^ Revision of 18G0, Sec. 233. 148 JUDICIAL AKD EXECUTION SALES. it is held essential to tlic validity of the deed. i Wliilst in Georgia, Texas, and some others of the States, it is holdeii sufficient if the order be referred to and identified. ^ Doubtless the safer course is to i-ecite the order or decree in the deed at length and with accnracy. After confirmation it is held that prior defects as to description are remedied if there be an accurate description in the sale, order of confirmation, and the deed. 3 Y. What I'Asses by rr. § 379. However the proceedings and deed may be as to regularity and sufiiciency in other respects, yet the deed can only pass the title to such property as is authorized to be sold by the decree* § 3S0. A sale of a tract of land generally, by the guardian of one only of two owners, on a decree made in proceedings in which no reference is made to the other owners or his rights, and to which proceedings he was not a party, carries to the purchaser only the title of such guardian's ward and docs not affect the interests of the other ouTiers.^ § 381. The deed, under a mortgage foreclosure and sale, carries the title and entire interest of both mortsfaijor and mortgagee.^ But not against subsisting equities of those not made parties to the proceeding.'' § 382. It is a well establislied principle that in adversary proceedings, the deed under a judicial sale cames title only as against parties to the suit, and that "though a purchaser dis- covering a defective title at a proj^er time, might be relieved from his pureliase," yet, he cannot "be permitted, whilst hold- ing on to his purchase, to insist upon having his title perfected ' Atkins V. Kinnon, 20 Wend. 241 ; Doc t. Williams, 1 Scam. 323. - Brown v. Eedwinc, IG Ga. 07. s Williams v. Harrington, 11 Ired. Gl(3. ^ Shrivcr v. Lynn, 2 How. 43; Neil v. Huglics, 10 G. and J. 7; Ii3-an v. Box. 25 Barb. 440. * Bryan v. Manning, G .Tones (N. C.) 334. 6 Carter v. Walker,^2 Ohio St. 339. ■> Haynes t. Beach, 3 John?. Ch. 450. THE DEED. 149 by tlie application of the ])roceeds of tlie sale to the extinguish- ment of the ckiras of incumbrances not parties to the suit."i Such is tlie ruling and the language of the Maryland High Court of Chancery in Duval v. Speed, 1 Md. Ch. Decis. 235. § 3S3. The widow's dower is not ordinarily affected by an administrator's or guardian's sale in probate, although it appear that the order was made on her application, and no express reservation of dower be made in the sale or deed.^ In Missouri, however, under the code of 1825, it was otherwise.^ But if she sell and convey with warranty, she will, by her deed, though made as administrator or as guardian be " completely estoi3]3ed" from claim of dower. "^ § 384. In New Hampshire an administrator of an insolvent estate is invested by the statute with a special and limited estate in the realty. The right to the rents and profits, and to possession until administration be closed or the land be sold by order of court. In Bergin v McFarland, in that State, it is liolden that a deed of the administrator so imperfect in itself, or in the proceedings under which made, that it will be inoperative to carry the fee as against the heirs, will neverthe- less protect the grantee as against the heirs during such time as the estate is not fully administered, for which time the administrator, if no deed were made, would be entitled to the possession, the rents, and the profits.^ § 385. In Pennsylvania it is held that " nothing can be sold (on sales in partition) but the title, which is vested in the parties to the proceedings."*' § 386. A mortgage made by a coparcener, pending proceed- ings for partition, is overreached by the proceedings in parti- tion, which vest the entire estate in the purchaser at partition sale unencumbered by the mortgage. ' ^ Duval V. Speed, 1 Md. Ch. Decis. 229, 235 ; Klioler v. Klioler, 1 Edw. Ch. 577 ; Darwin v. Hatfield, 4 Sandf. 468 ; Carter v. Walker, 2 Ohio St. 339. 2 Jones V. Ilallopclter, 10 S. and R. 320; Owens v. Slater, 20 Ala. 547. = Mount V. Vallee, 19 Mo. G21. * McGee v. Mellon, 23 Miss. 585. '■" Bergin v. McFarland, G Foster, (K 11.) 533. « Allen i\ Gault, 27 Penn. St. 473. ■" Sears v. Hyer, 1 Paige, 483 150 JUDICIAL AXD EXECUTION SALES. § 387. "Wliere by law, lands are to be valued before selling, in judicial or execution sales, tlie growing crops thereon situated do not pass to the piu'chaser by the sale and deed. The reason given is that the valuation is but of the lands, and that they must sell for a certain proportion of their value or not at all. Thus, in Ohio, wliere such is the law, requiring lands about to be sold on execution, or in proceedings in par- tition, it is settled that on a sale and deed in partition of lands in that State, having at the time of sale growing crops thereon such crops do not pass to the purchaser. ^ § 388. And so the emblements or growing croj)s of a tenant in possession of mortgaged premises under the mortgagor do not, uj)on general principles, pass to the purchasers at a judi- cial sale on foreclosure of the mortgage. " Tlie annual crops are saved to the tenant under the common iiile relating to emblements, because the termination of the lease is uncertain. The elder jurists find abundant reason for the doctrine, in the protection the law owes to agriculture." Such is the rule in reference to a tenant under 'the mortgagor, l)ona fide such, irrespective of appraisement laws. Tlie courts regard the growing crops as personality.- § 389. But although (as we have just seen) the emblements do not, as a general rule, pass to the purchaser at judicial (or at execution) sale; and although the sale is not completed un- til the execution and delivery of the deed:^ § 390. Yet, the occupying tenant or debtor in possession, cannot prolong his occupancy or have the right to gather in the fruits of his labor by putting in a crop, or seeds, after the sale at the biddings and before confirmation and conveyance of the jDremises, unless the same be put in by consent of tlie purchaser. In Parlcer v. Storts, involving a judicial sale on mortgage foreclosure, the court say: — "His own unauthorized acts after the sale cannot be allowed to impair the rights of the purchaser, and mast be done at his own peril," Such is the 1 House «. Showaltcr, 10 Ohio St. 124. 127 ; Parker v. Storts, 15 Ohio St. 351, 355 ; Jones v. Thomas, 8 Blackf. 428. "^ 4 Kent, Com. 73; Casselly ». Rhodes, 12 Ohio, 88. " Lisehey v. Gardner, 3 Watts. & Sergt. 314; Erb v. Erb, 9 Watts. & Scrgt. 147; Parker v. Storts, 15 Ohio St. 351. THE DEED. 151 doctrine liolden in Parher v. Starts.) in Oliio, wherein the court SHj, in reference to past decisions in that state on the subject, tliat they are '' Avholly unaffected by the opinion " in this case of Parker v. Starts. ^ "An irrcgukr or void judicial sale" say the United States supreme court in Brolst v. Brock, " made at the instance of tlie mortgagee, j^asscs to the purchaser all the rights the mort- gagee, as such, had." § 391. There being no service on the mortgagor in the case above cited, the judgment was holden to be void as to him, and therefore it did not cut off his equity of redemption, nor did the sale. Had the judgment been authorized by service and erroneously entered, yet it Avould have been valid until reversed or set aside, and. a sale under it would have carried the full title of both mortgagor and mortgagee, except the equity of redemp- tion of the mortgagor. But being made at the instance of the jliortgagee and purporting to be a sale of the lands and whole interest covered by his mortgage, the mortgagee is estoped to deny that all his rights passed by the sale; and the purchaser having paid the mortgage debt, is subrogated to the mortga- gee's rights. 3 § 392. In making title under an administrator's sale of lands by virtue of a decree in probate, the appointment or autiiority of the administrator to act as such must be shown. " Tiie whole record from and including the appointment of the administrator, down to and inclnding the sale of the real estate is but one continuous record; audit must all be considered as before the court and the parties upon application to sell and confirm the sale of the real estate." ^ § 393. And where the aj^pointuient of the administrator is a void act, so is the sale of real estate that he may make, like- wise void and of no effect. This too, notwithstanding a decree autlioriziug the sale and a subsequent order of confirmation thereof.'* ' Parker «. Storts, 15 Ohio St. 351, 35. - Brobst i\ Brock, 10 Wall. 519, 534; Gibert v. Coolcj', Walker Cb. 494; Jackson v. Brown, 7 Cow. 13. =■ Frederick «. Pacquctte, 19 Wis. 541 ; Sitzman v. Pacquette, 13 Wis. 291. * Frederick v. Pacquette. 19 Wis. 541 ; Sitzman v. Pacquette, 13 Wis. 291. CHAPTEE X. SETTING ASIDE SALE. I. The Power to Set Aside Sales. II. For Inadequacy of Price. III. For Irregularity. IV. For Mistakes and for Misrepresentatiok. V. For Sltiprise. VI. For Fraud. VII. For Reversal of the Decree. VIII. Re-sale. I. The PowiiK TO Set Aside Sales. § 3'9J:. Courts of equity and courts exercising equity powers over particular subjects liave a " general supervision over tlieir process, and more especially over the particular sales ordered by their decrees and made by their special agents or commis- sioners," which supervision is effected sometimes by bill or by petition and sometimes by raotion,i or by the court itself, on ' Coffey «. Coffey, 10 111. 141; Deadrick v. Smith, G Humph. 138; King v. Piatt, 37 N. Y. 155; Laight v. Pell, 1 Edw. Ch. 577; Yates -». Woodruff, 4 Edw. Ch. 703. In the case of Coffey v. Coffey, Scates, Justice, delivering the opinion of the court, says : " The only question of any importance in the case is, whether there is such unfairness and fraud in the sale as to Avarrant the decree setting it aside. Of this we have no doubt. The plaintiff, with liis brothers and sisters, had, or pretended to have, a claim of title to one of these tracts, adverse to petitioners. Under these circum- stances, if he desired to become a bidder, it was essential to fairness towards petitioner that he should conceal or forbear to assert his adverse claim, whatever consequence might result therefrom to his interest. It is not competent for him to assert his claim to the premises by a public announcement at the biddings, with a threat to litigate it with any pur. chaser, and then enter into competition in the biddings and purchase at an under value, occasioned by the depreciation his own conduct had pro- duced. If it were essential for the protection of his claims to give notice and make it known at the sale, he thereby disqualified himself to bid or become a purchaser of this adverse title at such sale. He shall not be allowed to depreciate or destroy the value of the land b}^ denying the title, then buy it at a depreciation thus produced, and claim to be a fair pur- (152) SETTING ASIDE Sx\.LE. 153 its o'wn motion, as universal guardian of all infants, if tlie chaser. Such is proven to have been his conduct in this case. A witness desired to purcliase the tract claimed, and would have paid more for it than plaintiff gave had not this claim been made. So he would for the otlicr, to which no claim was made, if he could have purchased with it the piece claimed. Its value depended in part upon its connection with tliat piece. Another witness, though he had no money to bid, yet desired the land, and actually purchased the same of plaintiff before he bid on it at an advance of some five hundred dollars, on time. These facts show such fraud upon and injury to the rights and interests of defendant as call for correction from the court, in the exercise of a sound legal discretion of its powers of disapproving and setting aside sales under its orders; and we think that discretion properly exercised in this case. The objec- tion taken to the proceedings by motion is not sustainable. The case is essentially different from the case of Day «. Grayham, 1 Gilm. 435. Courts of law have a supervision over the execution of their process, and yet maj^ not, as in that case, properly afford relief by setting aside sales made under it, but leave the party to his bill in equity. Courts of equity have a like general supervision over their process, and more especially over tiie particular sales ordered by their decrees and made by their special agents or commissioners. So far is this carried under the English practice that the sale, until confirmation by the Chancellor, is treated merely as a bid, and subject to a proposition of advance. 6 Vessey, 513; 8 ibid, 214. We have not adopted the rule to this extent (15 111. 4-17,) but the power, right, and duty of the court to supervise, protect, and preserve the parties from all fraud, unfairness, and imposition, is of universal application here. Ayres v, Baumgartner, 15 111. 447; 2 Paige, 99,339; 3 ibid, 97; 9 ibid, 259; 1 Edw. Ch. 577; 5 Humph. 355; 4 ibid, 372; 2 B. Monroe, 497; 3 Dana, G20; 1 Smede & Marsh, Ch. 522; 23 Miss. 445. And this is w^ell put in Cassamajor r. Stode, 1 Sim. Rev. Sta. 381, (1 Eng. Ch. 382,) upon the ground that the purchaser does, by the act of purchase under a decree, submit liimself to the jurisdiction of the court as to all matters connected with that character. This is sometimes done by bill, as in Bacon et al. •». Conn, 1 Smede & Marsh, Ch. 348; by petition, as in Henderson v. Harrodetal, 23 Miss. 451; 2 Paige, 100; 9 ibid, 260; 3 ibid, 94; 15111. 144; and sometimes by motion, 3 Dana, 015; 2 B. Monroe, 408; 5 Humph. 355; 2 Paige, 240; 1 Edw. Ch. 578 ; 4 ibid, 703. The case before us is a proper one for a motion. The sale by plaintiff to the witness Reynolds, before the bidding, docs not present the case of an innocent purchaser who is entitled to be made a party by bill or petition, but is a part of the evidence of the fraudulent conduct of plaintiff in forestalling competition. Decree (setting aside sale) affirmed." Though the English practice of opening the biddings for reception of a higher bid, when offered, does not prevail in Illinois, yet it is by no means unusual in the courts of some others of the states. Childress v. Hurst, 2 Swan (Tenn.) 487; Hay's Appeal, 51 Penn. St. 58; Wright V. Cautzon, 31 Miss. (2 George) 514." 154 JUDICIAL AND EXECUTION SALES. interest of infants demand it.^ They may reject, set aside, or confirm sales, and order resales, at discretion, as equity and the ends of justice may require. ^ § 395. The grounds on which sales are usually sought to be set aside are, inadequacy of price; irregularity; mistake or misapprehension; surprise; frauds; and for reversal of decree of sale. These will he considered in their order, § 39G. In Deadrick v. Smith^ the Supreme Court of Ten- nessee hold the following language as to the power of courts over their o^vn judgments, decrees, and sales: "Every court must have an inherent power of enforcing its judgments and decrees; and surely tp no tribunal can this power more prop- erly belong than to the chancery court. It has under its control all the sales made by its order until final disposition is made of the cause. It can set aside the sale altogether, or open the biddings, or make any other order that may be necessary for the enforcement of the decree." The court add that the pur- chaser is a party to the proceedings ; must have a final order to make his purchase effectual, and is under the control of the court for enforcement of the purchase against him. II. For Inadequacy of Peice. § 307. If there be no fact or circumstance relied on to set a sale aside but inadequacy of price, then the inadequacy must be such as in itself to raise the presum23tion of fraud, or else the sale will not be disturbed. ^ § 398. But if in addition to such inadequacy there be any appearance of unfairness, or any circumstance, accident, or ' Lefevre v. Lar.way, 23 Barb. 1G7; 2 Story, Eq. Jur. Sec. 1334. - Deadrick v. Smith, G Humph. 138; Stephens v. McGruder, 31 Md. IGS; Hay's Appeal, 51 Pena. St. 58 ; King v. Piatt, 37 N. Y. 155. 2 G Humph. 14G. * West ». Davis, 4 McLean, 241; Cohen «. Wagner, G Gill. 236; Ashby v. Cowell, 1 Busby, Eq. 158 ; Lefevre v. Laraway, 22 Barb. 1G7 ; Strong v. Caton, 1 Wis. 471; Hart v. Blight, 3 Mon. 273; Reed v. Brooks, 3 Litt. 127, Little V. Luntz, 2 Ala. 256; Girt v. Frazier, 3 Litt. 118; Am. Ins. Co. r. Oakly, 9 Paige. 259 ; Bank of Alexandria i). Taylor, 5 Cranch, C. C. 314, Furgus V. Woodworth, 44 111. 374; Trip v. Cook, 26 Wend. 143; Strong v. Caton. 1 Wis. 471. SEITIXG ASroE SALE. 155 occurrence in relation to the sale of a character tending to cause such inadequacy, then the sale will be set aside ;i but inadequacy of price is still the main ground of disturbing the sale, 2 for if the price were full value, or even a j)assable one, then the objectionable facts or circumstances have worked no evil. § 390. In the leading case here cited under this head, his honor Judge McLean holds the following language on the subject of setting aside judicial sales for mere inadequacy of price: "There does not appear to be, in the present case, any irregularity, mistake, or fraud. Tlie only objection urged is, that the property sold for less than its value. "We cannot sav that this inadequacy is so striking as to authorize the setting aside of the sale.^ § 400. In the case of Little v. Luntz,^ the Supreme Court of Alabam.a hold the following language on the same subject: " TVe are therefore of opinion, that when a stranger is the pur- chaser at a mortgage sale, it will not be set aside for mere inadequacy of price, no matter how gross, unless there is some tmfair practice at the sale, or unless those interested are sur- prised without fault or negligence on their part; and in no case of this descrijDtion after a confirmation, unless fraud cau be imputed to the purchaser which was unknown to those inter- ested at the time of confirmatiou of the sale." § 401. It may be accepted as a general rule, that when the cause alleged is fraud, the application to set aside, if after con- firmation, then the court must be satisfied that the fraud was unknown to those complaining at the time of confirmation. § 402. The prevalence, at the time of sale, of an infectious disease, to such extent as to remove many peoj)le, susj^end business, and prevent the ordinary ^probability of a reasonable ' Cohen v. Wagner, 6 Gill, 238; Gist v. Fraziei-, 2 Litt. 118; i^Iay v. May, 11 Paige, 201; Bank of Alexandria v. Taylor, 5 Craucli, C. C. 314. ' Cohen v. Wagner, G Gill. 230. ' West V. Davis, 4 McLean, 241, 242. See also Trip v. Cook, 2G Wcnil. 142. 4 2 Ala. 2G0, 261 ; Am. Ins. «. Oakley, 9 Paige, 239 ; King v. I^Iasteraon, 16 N. Y. 174. 156 JUDICIAL AJSTD EXECUTION SALES. competition at the sale, will, in connection witli inadequacy of price, be cause for setting tlie sale aside, and for ordering a re- sale. ^ III. Foe Irbegulaeity § 403. A judicial sale is made under tlie order or decree of tliG court and by virtue thereof. The person conducting it should be clothed with a copy of the order or decree, duly authenticated, designating the land to be sold. Though sales otherwise properly made, will not be adjudged void for reason of such order not having issued, if such sales are made in con- formity to the record of the order ;2 yet if the order or decree be to sell on receiving the order, than a sale on receipt of an informal order which omits the description of the land and was not directed to any one, though not actually void, will be set aside for irregularity on j)roper application. ^ § 404. Insufficiency of description and inadequacy of 2:)rice combined, will be cause for setting a sale aside. ^ § 405. So for irregularity, when made after an appeal is taken and ajDpeal bond filed. ^ § 40G. Likewise for any misunderstanding resulting in inadequacy of price.*' § 407. So, also, if made by a different master than the one mentioned in the decree.' § 408. So a mortgage sale will be set aside on bill of review if the mortgagor die during suit and the heirs be not made parties and there also be junior mortgagees who were not parties.^ § 409. And a sale made at an improj^er time, or under any ' Littell V. Luntz, 2 Ala. 25G. 2Rlionemus i\ Corwin, 9 Ohio St. 3G6; Ins. Co. v. Ilalleck, G Wall. 55G. 3 Rlionemus v. Corwin, 9 Ohio St. 36G. 4 Kauffman v. Walker, 9 Md. 229. " Chesapeake Bank v. McCleHand, 1 Md". Ch. Dccis. 328. <= Latrobe v. Hesbert, 3 Md. Ch. Decis. 375. ' Yates 1). Woodruff, 4 Edw. Ch. 700. 8 Shriveley v. Jones, G B. 3Iou. 274. SFfTING ASIDE SALE. loT other circumstances tlian tend to render it inequitable, will be set aside to protect the rights of parties not in fault, i § 410. But a sale will not ordinarily be set aside, after con- firmation and distribution of the proceeds. ^ § 411. Likewise a mortgage sale for a price greatly inade- quate and much less than the mortgage debt, will be set aside if made w^ithout the knowledge of the creditor. ^ § 412. A sale made on a different day than the one stated in the notice of sale is void and should be set aside. ^ § 413. So if the property be purchased by the person con- ducting the sale, if so purchased wdthout leave of the court, it is such an irregularity, aside from the question of fraud, as will cause the sale to be set aside. ^ § 414. In Michaucl v. Girod, the Supreme Court of the United States review the whole subject of purchases by trustees and others at their own sales, and hold such to be in all cases void.'' § 415. Under the statute in Illinois, if the petition of the guardian for sale of the ward's lands fail to state the ward's residence, and to make a proper case for decree, a sale made in proceedings thereon, will, for such irregularity, be set aside.'' § 416. So if, for reasons not his fault, a mortgagor ftiil to attend the sale, and the mortgagee buy in the land at a greatly inadequate price, the sale will be set aside, ^ but not for inade- . quacy alone. ^ § 417. For any negligence or mistake of the officer selling • Brown v. Frost, 10 Paige, 243; Collier x. Whipple, 13 Wend. 224; Kin- X. Piatt. 39 N. Y. 155. - Stiner's Appeal, 5G Peiin. St. 9. 3 May v. May, 11 Paigey^Ol. " Miller v. Hull, 4 Denio. 104. 5 Blood x. Hayman, 13 Met. 231; Man x. McDonald, 10 Humph. 275 ; Hoskins x. Wilson, 4 Dev. and B. 243; Scott x. Freeland, 7 S. and M. 409 ; Worthy x. Johnson, 8 Ga. 23G ; SIuiav v. Swift, 1 Ind. 565 ; Michoud x. Girod, 4 How. 503, 553. * See ante, p. 5 n. 3. '■ Loyd X. Malone, 23 111. 43, 47. ^ Tripp V. Cook, 26 Weed, 143. ^ Tripp V. Cook, 20 Wend. 143; Cohen v. Wagner, G Gill, 236; Wcstovcr t'. Davis, 4 McLean, 241,212. loS JUDICIAL AXD EXECUTION SALES. resulting iu an injury to tlie parties in interest tlic sale will be set aside. 1 § 418. A sale made on application of tlie administrator alone where the law required the heirs or others to join in such application is irregular and will be set aside, and if allowed te remain, it is void.^ § 419. And a sale of land a second time by the same admin- istrator will be set aside at the personal cost of such adminis- trator. 3 § 420. So a sale of lands on a mortgage decree, when the mortgage of a minor's lands was made by his guardian, will be set aside if a full defense be not made by the guardian to test the validity of the mortgage.* lY. For Mistake and Misappbehension. § 421. A sale will be set aside for misapprehension caused by a purchaser or others interested in the sale, or by the per- son conducting it. ^ So likewise if the auctioneer, not hearing a higher bid, strike off the property to a lower bidder.*' So if the property of infants be sacrificed by the neglect, fraud or misapi)rehension of their guardian, they will be relieved by setting aside the sale and by a re-sale.''^ The order of re-sale may be made on the court's own motion, as guardian of all infants. ^ Y. FoK Sdkpkise. § 422. Sales of real estate under orders and decrees will be set aside for surprise when an injury or an unfair advantage result therefrom. » Am. Ins. Co. v. Oakley, 9 Paige, 259 ; King v. Piatt, 37 N. Y. 155. ' Miller V. Miller, 10 Texas, 319. = Hunt V. Norton, 12 Texas, 285. 4 Curtis V. Ballagh, 4 Edw. Ch. 635. * Laigbt «. Pell, 37 N. Y. 577, 578; Lefcvrc v. Laraway, 22 Barb. 167; Anderson v. Foulk, 2 Har. & G. 34G; Strong v. Caton, 1 Wis. 471 ; Gordon v. Sims, 2 McCord, Ch. 157; Brown v. Gilmor, 8 Md. 322; Veeder v. Fonda, 3 Paige, Ch. 97. 6 Gordon v. Sims, 2 McCord, Ch. 159; Cohen v. Wagner, 6 Gill. 236. ' Lefevre v. Laraway, 22 Barb. 167 ; Curtis v. Ballagh, 4 Edw. Ch. 635. 8 Lefevre v. Larawaj', 22 Barb. 167. SETTING ASIDE SALE. 159 § 423. If a complainant in a decree give such assurances of postponement or delay of sale, (tliougli not witli intent to deceive) as induces the debtor without other negligence on his part to omit raising means for the j)resent to meet the debt, and a sale be made for a price greatly inadequate, it will be set aside for surprise and a re-sale will be ordered. ^ But not after long or unreasonable delay in making the application, and when other parties have acquired an interest in the pro2:>erty under the sale. 2 § 424. But a sale ought not to be set aside and a re-sale ordered for the benefit of those interested in the fund arising from the sale merely to j)rotect them, they being adults, from the consequences of their ovm. negligence or ignorance, when by proper diligenoe on their part the matter complained of might have been avoided. ^ VI. Foe TiiAUD. § 425. It is a principle well settled in law that fraud viti- ates all instruments and proceedings, including judgments, orders, and decrees, and sales made thereon or by virtue thereof.* § 42G. If not absolutely void, they will be avoided or set aside at the instance of the injured party if application be made within proper time.^ § 427. Sales, as well judicial as others, will be set aside by the courts where fraud is made to appear, (and in some cases) even after confirmation thereof.** § 428. If the person conducting a judicial sale purchase at * Strong V. Caton, 1 Wis. 471 ; Williams v. Dale, 3 Johns. Cli. 291 ; Griffitli V. Hadlcy, 10 Bosw. 587. " Leonard v. Taylor, 12 Mich. 398. 3 Am. Ins. Co. v. Oakley, 9 Paige, 258, 260, 2G1. * Hoit V. Holcomb, 3 Foster, (N. H.) 554; Michoud v. Girod, 4 How. 503. 5 Michoud V. Girod, 4 How. 503; Concord Bank v. Greg. 14 N. H. 331 ; Davoue v. Fanning, 2 Johns. Ch. 252; Loyd v. Malone, 33 111. 43; Neal u. Stone, 20 Mo. 294. * Anderson v. Foulke, 2 Har. & G. 346, 357; Billington v. Forbs. 10 Paige, 487 ; King v. Piatt, 37 N. Y. 155 ; Garrett v. Moss, 20 111. 549 ; Johnson v Johnson, 40 Ala. 247; May v. May, 11 Paige, 201. IGO JUDICIAL AND EXECUTION SALES. Ins own sale, it is a fraud for which the sale will be set aside on motion to the same court in which the sale is ordered, if appli- cation be made before confirmation; and if after confirmation, then the proceeding to set the sale aside is by petition or bill in chancery. §429. The rule is the same if the person selling procure the purchase for himself or for his benefit through a third party. And though some authorities treat such sales as not voidable, by others they are held to be absolutely void. The latter is the ruling in the Supreme Court of the United States.^ § 430. A purchase by the attorney of the execution plain- titf at a price greatly inadequate, will be cause for the most vigilant scrutiny, in to every circumstance which might aftect the fairness or demonstrate the unfairness of the sale. Even the jDurchase by the attorney alone (without such inadequacy,) has been considered good cause for setting aside the sale, as being against " the policy of justice." ^ In Bussy v. Ilardi?i,'' the court say: (referring to Howell v. McGreenj^ 7 Dana. 389 and 390, and to Foremcm v. IRmt, 3 Dana. 622;) "it is said, that a sale at which the attorney purchases at a grossly inade- quate price, should be considered as per se, in the twilight between legal fraud and fairness, and that slight additional facts exhibiting a semblance of unfairness would be sufiicient to vitiate the sale or make the j)urchaser a trustee," The court adds. " If there be any ground for such a distinction as we think there is, it rests upon the superior knowledge of the right, and of the subject of sale Avhich the attorney has by reason of his connection with the suit, and upon the presumed influence which he has over the time and manner of the sale and over the person who makes it, by reason of his representing the party for whose interest primarily, the sale is to be made." ' ^Miclioud V. Girod, 4 How. 503; Davouc «. Fanning, 3 Johns. Cli. 253; Wormslcy «. Wormsley, 8 AVheat. 421 ; Mile.s v. Wheeler, 43 111. 123; Harris r. Parker, 41 Ala. G04; Borasen «. AYclls, 4 Green, (N. J.) 87; Swazey v. Burke, 12 Pet. 11. « Busy V. Hardin, 2 B. Mon. 407. 1 Ibid, 4db, 410. SETTING ASroE SALE. 161 VII. For Heversal of the Decree of Sale. §431. Where the sale is to a third -person aiid I)07ta Jide purchaser, and has been fully completed by confirmation, con- veyance and payment, it will neither be avoided nor will it be set aside by reason of a subsequent reversal of the decree. This rule is so generally recognized as to scarcely require authorities to support it. In the language of the Illinois Supreme Court, " If the court has jurisdiction to render the judgment or to pronounce the decree, that is, if it has jurisdiction over the parties and the subject matter, then upon principles of uni- versal law, acts performed and rights acquired by third persons, under the authority of the judgment or decree, and while it remains in force, must be sustained, notwithstanding a subse- quent reversal. 1 VIII. Ee-Sale. § 432. A re-sale will ordinarily be ordered wiien the sale is set aside for fraud, irregularity, mistake, surprise, inadequacy of price, or for such other cause as does not involve a want of jurisdiction or power to sell in the court, if the sale is set aside before confirmation. ^ § 433. And in some cases the first purchaser, being in fault, will be liolden for the discrepancy in amount between the first and second sale, if the second sale be for a less sum than the fii'st one, 3 § 434. In Maryland, under the code or statute, if the sale be partly on a credit and the purchaser fail to meet the deferred ' Goudy«. Hall, 36 111. 319. Sec also McLagaii i). Brown, 11 111. 523; Young ». Loraiae, 11 111. 037; Iverson v. Loborg, 26 111. 179; Fitz Gibbon V. Lake, 29 111. 165 ; McJiltou v. Love, 13 111. 480 : Peak v. Sliasted, 21 111. 137; Grignon's Lessee v. Astor, 2 How. 340; McBride v. Longworth, 14 Ohio St. 350; Irwin v. Jeffers, 3 Ohio St. 389. " Stephens w. McGruder, 31 Md. 168; Deadrick v. Smith, G Humph. 138; King V. Piatt, 37 N. Y. 155 ; Hay's Appeal, 51 Peun. St. 58 ; Lefevre v. Lara- way, 22 Barb. 107; Am. Ins. Co. v. Oakly, 9 Paige, 259; Post ?;. Leet, 8 Paige, 337; Brown v. Frost, 10 Paige, 243; Coffey ». Coffey, 16 111. 141; Roberts v. Roberts, 13 Gratt. (Va.) 039. 3 Mullin V. Mullin, 1 Bland. 541; Stephens v. McGruder, 31 Md. 108. 11 162 JUDICIAL AXD EXECUTION SALES. pajmcnts wlien due, then on application of the master or other person conducting the sale, the sale may be set aside and a re-sale oi-dered at the risk of tlie jBrst purchaser; or the court, under its equity powers, (if of general chancery jurisdiction,) may compel a compliance or specific performance on the part of the purchaser at its discretion, in view of all the circum- stances of the case and as may best subserve, in its opinion, the interests and rights of the parties. ^ Such, however, is the g-eneral law aside from statute. § 435. The making of a judicial sale, in jSTew York, is under control of the court, and if the parties in interest, creditor and debtor, cannot agree as to the order in which property shall be offered for sale, either party may apply to the court for instruc- tions to the referee in that resjiect.- § 43G. When valuable j)roperty is sold by the i-eferee in a different order from that requested by the debtor, whose prop- erty is being sold, and there is reason to believe that selling in the order requested by the debtor would have resulted in a benefit, and there are circumstances tending to prevent com- petition at the sale, a re-sale will be ordered. § 437. And so where the inclemency of the weather was such as to i3re\'ent the attendance of bidders, the purchaser being the only one present and she residing at the place of sale, it was held that the sale should be set aside, and a re-sale was ordered.-' § 438. If it become apparent to the court from the face of the proceedings, or otherwise, that the rights of minors have been illegally invaded or compromised, the covirt will, on its o^vn motion, set aside or decline to confirm the sale, and will order a re-sale of the property without waiting to be invoked so to do. It is in such case the duty of the court, in the exercise of its high powers as guardian of all minors, to pro- ' Stephens v. McGruder, 81 Md. 1G8. * King V. Piatt, 37 N. Y. 155. In this case the court justly say that, " Occupj'ing the position of advantage it beliooved the plaintiffs to pursue tlicir remedy with scrupulous care, lest they should inflict an injury on one wlio was comparatively powerless." See also to this point Collier v. Whipple, 13 Wend. 229. " Roberts v, Roberts, 13 Gratt (Va.) 039. siaTixG ASIDE saij:. 1C3 tcct the iiitd'csts of those whom cc|uity makes the special objects of its carc;i and the purchase of the j^i'opertj hy the ii'uarclian ad litein of an infant owner is a case loudly callinir for such interference. 2 § 430. The biddings may be opened and a re-sale ordered, at the discretion of the court, on terms, at any time before the confirmation of the sale, in case there be an acceptable advance oflered on a greatly inadequate price. ^ § 440. The petition to reopen the bidding should state the proposed amount of the advance upon the former bid.'^^ § 441. Before conlirmation an offer of ten per cent, and costs of increase is sometimes deemed sufficient to cause an order of re-sale to be madc^ ' Lcfcvrc V. Laraway, 23 Barb. 1G7; Lansing v. ^IcPlicrson, 3 Jolms. C'li. 424; Billington v. Fovbs, 10 Paige, 487. * Lcfc-\Te V. LaraAvaj^, 23 Barb. IGl. " Cliildress v. Ilurst, 3 Swan (Tcnn.) 487; Hay's Appeal, 51 Tcuu. St. 58; Wright V. Cautzon, 31 Miss. 514, 517. * Wriglit V. Cautzon, 31 Miss. 514, 517. " Ilorton V. Ilorton, 3 Brad. (N. Y.) 200. CHAPTEE XI. ESTOPPEL — WARRANTY — CAVEAT EMPTOR. I. ESTOrPEL. II. Warraktt. III. Caveat Emptok. I. ESTOITEL. § 442. Sales, as well judicial and on execution, as otliers, may be so made, or made under sucli circumstances as will prevent tlie owner of the property from questioning tlieir validity, tliougli the sales be in other respects defective, or even void. And thus the claimant is subjected to an estoj)pel. In such cases title is conferred on the purchaser by estoppel. § 443. If one so far countenance the sale of his ovm. property as to stand by and see it sold by the sheriff, or other officer, as the property of, and on execution against another, without objecting to the sale, he will be estopped to deny the validity thereof, 1 as against a honafide purchaser. § 444. Estoppels not only bind "parties but privies in blood and estate." 2 § 445. "What estops the ancestor estops the heir, and that which estops the original party estops also those claiming under him, in whatever right they claim. § 446. In Bush v. Coojyer,^ the United States Supreme Court hold the following language in reference to estoppels which run with the land: " Estoppels which run with the land, and work thereon, are not mere conclusions ; they pass estates and constitute titles; they are muniments of title, assuring it ' Eplcy v. Witlieiwv, 7 Watts, 1G3; Carr v. Wallace, 7 Watts, 394; Read f. Ileasley, 3 B. Mon. 2o4. = Bush «. Cooper, 18 How. 85 ; Baxter v. Bradbury, 20 ]\Iaine, 2G0 ; Carver V. Jackson, 4 Pet. 85 ; Mark v. Willard, 13 N. II. 389 ; White v. Patten, 24 Pick, 324. ' 18 How. 85. (104) ESTOrPKL. 165 to tlic 2)urcliascr. Tlicir operation is liiglily beneficial, tending to produce secnrity of titles." § 447. This case was that of a mortgagor, with warranty implied in law, who bonght in the premises afterwards on exe- cution sale, based on a judgment lien which was older than the mortgage. The Suj^reme Court of Louisiana, as also that of the United States, held that he was estopj)ed to sit up his execution deed against the eifect of his mortgage, was estopped by his ^van•anty from " denying that he was seized of the particular estate at the time of makino; '' the mortc'ao-e. In short, that a mortgagor, or grantor, cannot buy in a superior title and enforce it against those claiming under his own deed of warranty. ^ § 448. The recital in a deed, or assertion of o^mership, or other fact, upon the strength of which another is induced to commit liis interest, or to buy, will estop the person making such recitals or assertions, from denying the truth thereof, or asserting a claim inconsistent therewith. § 449. If one entitled to dower in lands of a decedent sell them under proceedings in probate as administrator, and convey by deed of Avarranty, she is thereby estopped from afterwards claiming dower in the lands so sold and conveyed.- Otherwise, however, if she convey without warranty.^ § 450. The obtention of an injunction by a widow and heirs to prevent sales of a decedent's lands on judgments at law until the same can be sold by proceedings in probate, in course of administration, will estop them from objecting that they were not notified of such proceedings in j^robate afterwards prose- cuted for the sale of such lands."* § 451. A husband and wife being seized of real estate as tenants of the entirety, the husband died leaving a will by which all his real estate was directed to be disposed of by sale, and the proceeds to be applied in a certain way, but not authorizing ' Bush V. Cooper, 18 How. 82, 85 ; Van Rcnscllear v. Kearney, 11 How. o22 ; Stewart v. Anderson, 10 Ala. 504 ; Dorsey «. Gassaway, 2 Harr. & J. 411. 'McGee r. Mellon, 23 Miss. 585; Maple v. Kussart, 53 Penn. St. 348; Stroble v. Smith, 8 Watts, 208; Heard v. Hall, 16 Pick. 457. 2 Sipp V. Lawback, 2 Harr. 443; Owens v. Slater, 2G Ala. 547. * Simmons' Estate. 19 Penn. 439. ICG JUDICLiL AXD EXECUTIOM SALES. auy one to make tlie sale. The lands -were sold by order of tlio orj)lians' conrt, including that which had been held by the Inisband and wife as tenants of the entirety. The ■widow encouraged the jinrchaser to buy at such sale and herself received part of the purchase money. It was held that although the widow was invested with the ownership in fee as survivor of the husband, that nevertheless she was estopped from setting up title to the property, she having encouraged the purchaser to buy the same as belonging to the estate of the decedent. ^ § 452. In ejectment by the purchaser under a mortgage foreclosure, the mortgagor is estopped from denying his own title at tlie date of the mortgage, and is also estopped from setting up an outstanding title to the premises in a third person. He cannot execute a deed of mortgage on property and then deny his right to that of which he thus assumed to be the owner.- § 453. A ward is not estopped by the deed of liis guardian, thouo-h made with warrantv. The warrantv binds the OTardian personally. ^ § 454. jSTor is a purchaser of lands at a judicial sale made under a void decree estopped to deny the title of those as whose land it is sold.^ § 455. The receipt of a widow or by a ward, after such ward attains to his majority, of their portion of purchase money of ^ ]\raple V. Kussart and others, 53 Pcnn. St. S48. In this case the court say: "The proof is that slie urged tlie purchasers to buy that the property might remain in the family, and it was at her request they bought. They paid the purchase money, $G,410, and it tvas distributed to the widow and heirs." And that, "It is a maxim of common lionesty, as well as of law, that a party cannot have the price of land sold and the land itself." * * " If one receive the purchase money of land sold, he affirms the sale, and he cannot claim against it whether it was void, or only voidable ; Adlum r. Yard, 1 Rawle. 163; Wilson v. Bigger, 7 W. & S. 1G2; Crowley r. McConkey, 5 Barr. 1G8; Stroble v. Smith, 8 Watts, 280; Smith v. Warden, 7 Harris, 424. And the court also held, "That the fact that in sales of this kind, the maxim caveat svpior applies, docs not avoid the estoppel." = Redman «. Ballamy, 4 Cal. 247; Bush v. JMarshall, G IIow. 288; Tarter V. Hall, 2 Cal. 2G3. 3 Young n. Lorain, 11 111. 024. * Price V. Johnson, 1 Ohio St. 390. WARRANTY. 1G7 lands sold by an administrator or guardian, under proceedings in probate, will estop tliem from disputing the validity of the sale, if received with full knowledge of their rights and of all the circumstances, and so likewise does the receijit of the pro- ceeds of such sale vested in other property.^ § 45G. If a party request or direct the officer to sell lands us his, and, being present at the sale, do not dissent, he is regarded as assenting, is estopped from denying the title of the pur- chaser. - § 457. In Penii v. Ileheij'^ the court say: "It is a princi- ple, that though in general, estoj^pels are odious, as preventing ii party from stating the truth, yet they are favored when they promote equity. Comyn's Dig. title Estoppel. The aj)plica- tion of this j)rinciple does not depend, as we understand it, upon any suj^posed distinction between a void and a voidable sale. If the sale be one or the other, receiving the money or its proceeds in other valuable property with a knowledge of the facts, touches the conscience of the party and therefore establishes the right of the party claiming under the sale, in one case as well as in the other." II. Warra>;tv. § 4.5S. It is a well settled princijile that in judicial sales there is no warranty.^ Tliis principle, as a general rule, holds good as to all those sales of real property (they being in char- acter judicial sales) made in equitable proceedings, under the 'Ellis X. Diddy, 1 Smith, Ind. 354; Stroble t. Smith, 8 Watts, 280; Bohart t. Atkinson, 14 Ohio, 328; Scott v. Frechmd, 7 S. & M. 409; Penn i\ Ileisoy, 19 III. 295. * Read v. Ilcaslc}-, 2 B. Mon. 254, 257. 3 19 111. 295. * The Monte Allegre, 9 Wheat. GIG; United States n. Duncan, 4 McLean, GOG; Owens Z5. Thompson, 3 Scam. 502; Lynch r. Baxter, 4 Texas, 431; Williams 11. McDonald, 13 Texas 322; Freeman «. Caldwell, 10 Watts. 9; King V. Gunnison, 4 Barr. 171; Fox x. Mcnsch, 3 Watts. & Sergt. 444; Jennings x. Jenkins, 9 Ala. 285; Rogers x. How, G Rich. (S. C.) 3G1; Breck- enridgc -y. Dawson, 7 Ind. 383; Halleck t\ Gray, 9 Cal. 181; Sumner r. Williams, 8 Mass. 1G2; Bingham v. Maxey, 15 111. 295; Evans v. Dendv, 2 Spccrs. (S. C.) 9. IGS .TUDICIxVL AND EXECUTION^ SALES. direction and control of tlie courts, usually denominated mort- gage sales,^ guardian's, executor's, and administrator's sales,- sales for enforcement of vendors, and statutory liens, ^ and sales in proceedings for partition.^ In short, in all sales made under suj)ervision and control of tlie courts on decrees in equity or on decrees made in tlie exercise of equity powers, ^ there is no war- ranty; the purchaser takes what he gets.*' The officer, trustee, or person executing the deed is the mere " agent or instruinent " of the court;" is not liable for defect of title or insufficiency of the proceedings;^ nor at all, except for fraud, ^ unless he conveys with warranty, and then the covenat of warranty binds him personally and him only.^ '^ In TltG Monte Allcgre more particularly referred to under the next head thib rule is plainly asserted by the Supreme Court of the United States, and it is the general doctrine in most if not all of the states, and of the common law.^ ^ III. Caveat EMrroE. § 450. The rule of caveat emptor applies in all its rigor to judicial sales of real property.^- ^ Ante, pp. 22, 24. - Mockbec?). Gardner, 2 liar. & 6. 170 ; A'andever t. Baker, lb. 12G ; Lynch ». Baxter, 4 Texas, 431. ' Ohio Life & Trust Co. t. Goodiu, 10 Ohio St. 557. ^ liOgers t). Ilocn, Eich. 301 ; Young v. Loraiue, 11 III. 024. '■" United States v. Duncan, 4 McLean, 007. « The Monte Allegre, 9 Wheat. GIG. ' Mullikiu «. Mullikin, 1 Bland, 541; Harrison v. Harrison, 1 Md. Ch. Dccis. 331 ; Vandcver t. Baker, 13 Penn. St. 321, 120. « Mockbee v. Gardner, 2 liar. & G. 170. 'J Ibid, 175. '» Young «. Lorain, 11 111. 024; Breckcnridge r. Da^vson, 7 Ind. 383; Sumner «. Williams, 8 Mass. 102; Meller v. Boardman, 13 S. & M. 100; Mockbee v. Mockbee, 2 Har. & G. 175. " The Monte Allegre, 9 Wheat. GIG. 1= The Monte Allegre, 9 Wheat. GIG ; Lessee of Convin v. Benham, 2 Ohio (N. S.) 30; Owsley «. Smith, 14 Md. 153; Mason «. Wait, 4 Scam. 127; Worthington v. McRoberts, 9 Ala. 297 ; Fox v. Mensch, 3 Watts. & Sergt. 444; Mellen v. Boarman, 13 S. & M. 100; Lynch «. Baxter, 4 Texas, 431 ; Bingham v. Maxey, 15 111. 295; Vandcver v. Baker, 13 Penn. St. 124, 120; Anderson t. Foulk, 2 liar. & G. 340 ; Thompson t. Monger, 15 Texas 523 ; CAVTLVr EMFIOE. 1G9 § 4G0. The Supreme Court of the United States hold tliat "generally in all judicial sales the rule caveat emjjtor must necessarily api^ly from the nature of the transaction; there being no one to whom recourse can be had for indemnity against any loss which may be sustained. Is there then (they ask) any- thing peculiar in the powers of a court of admiralty that will authorize its interposition, or justify granting relief to which a party is not entitled by the settled rules of the common law?" They say, "we know of no such j)rinciples."i § 4G1. Though tlie case in whicli this doctrine is thus broadly asserted was a case in admiralty, it will be seen that the decision was avowedly ])ut upon the principles of the com- mon law. The same case is expressly referred to, and the same principle re-asserted by the United States court of claims in the case of PucJcet v. T/ie United States." § 4G2. In the absence of misconce]3tion and of fraud, the buyer must look out for himself. He buys at his own risk, both as to title and as to quality, The rule does not apj)ly how- ever in case there be fraud. ^ And it has been, liolden in Penn- sylvania that the rule applies only to open defects; that as against secret defects in a title, a purchaser wall be protected. "^ liickley v. Biddle, 33 Penn. St. 27G ; Strouse v. Dreman, 41 Mo. 289 ; Waldcn V. Gridlcy, 36 111. 523. The doctrine is stated in Illinois in the following terms : "Appellant when he purchased at the administrator's sale acquired such title only as was then vested in the heirs of Strain. If it was then subject to the lien of Walker's judgment, he acquired it with that impurity and to preserve his title lie must clear it from the incumbrance." Walden V. Gridley, 30 111. p. 532. Creps ®. Baird, 3 Ohio St. 277 ; Corwin v. Benham, 2 Ohio St. 36; Miller v. Finn, 1 Neb. 255. ' The Monte Allegre, 9 Wheat. OIG. ^ 4 Am. L. Reg. 459, 460. " Bingham v. Mancey, 15 111. 295. * Banks v. Amnion, 27 Penn. St. 173. CHAPTER XII. COLLATERAL IMPEACHMENT— VOID JUDICIAL SALES— RETURN OF PURCHASE MONEY. I. When Lmpeachable Coixatehally. II. AVhen Not LMrEACiiAiiLE Collateiially. III. Void Jcdictal Sales. IV. Return of Purchase Moxey. I. When iMrEACiiACLE Collatkijallv. § 4G3. TliG principle is well settled, not only in tlic Supreme Court of tlic United States, but in the State Courts generally, that if there is no jurisdiction the proceedings are void; they are a nullity and confer no right; are no justification, and will be rejected when collaterally drawn in question. ^ § 4:64:. If a court acts without authority its judgments and orders are nullities, and are not voidable only but are absolutely of no efiect, and cannot bar a recovery or defense asserted in opposition to them even prior to their reversal. ^ § 465. And though the court has jurisdiction, if from any cause the sale or deed be really void, then the objection is good when made in a collateral proceeding.^ II. AViIEN ]S^0T iMrEACHAULE CoLLATEKALLV. § 40G. It is equally Avell settled in the Supreme Court of the United States that if the subject matter be within the juris- diction of the court and is brought before them by proper petition, the validity of the proceedings being brought in * Thompson v. Tolmie, 2 Pet. 157; Sbriver's Lessee v. Lynn, 2 How. 43; Wilkerson v. Lcland, 2 Pet. G27; Clark v. Thompson, 47 111. 27; Morris v. IIog:le, 37 III. 150; Swigart v. Harber, 4 Scam. G6. * Thompson v. Tolmie, 2 Pet. 157; Shriver's Lessee v. Lynn, 2 How. 43; Elliott V. Picrsol, 1 Pet. 328; jMorris v. Ilogle, 37 HI. 150. ' Cooper V. Siuuledand, 3 Clarke (Iowa) 114; Frazicr r. Steenrod, 7 Iowa 34G. (170) ^VHKN KOT i:MrEAOII^UJLK COLLATKR-UXY. ITl question collaterally, they are not void but merely voidable. Errors and irrof^ularities, and all other deficiencies, if any there be, must be reached and corrected by some direct proceeding, either before the same court or in an apj)ellate one, and such too is the general doctrine.* § 467. Wlien a court has obtained jurisdiction it is compe- tent to decide every question arising in a cause, and whether decided correctly or incorrectly, the decision until reversed is binding not only in the same, but in every other court, ^ § 468. If the jurisdiction over the subject matter appears on the face of the proceedings in which a sale is made, the errors or mistakes, if any there be, cannot be examined when brought up collaterally. ^ § 469. Where debts have been regidarly ju-oven and allowed against the estate of a decedent, and lands sold on proper * Thompson v. Tolmie, 2 Pet. 157; Parker t. Kane, 22 How. 14; Alexan- der V. Xelson, 42 Ala. 4G2; Dnquindre v. Williams, 31 Ind. 444; Southern Bank -y. Humphreys, 47 111. 227 ; Woods t'. Lee, 21 La. 505; Covington v. Ingram, 64 N. E. 123 ; Iversod v. Loberg, 26 111. 179. In the case last cited, Iverson v. Loberg, the Supreme Court, Justice Caton, say: "We are obliged to aflBrm this judgment, much against our inclination. The sale was no doubt a great outrage, and we should as at present advised, not hesitate to reverse the proceeding were it directly before us. But here it comes up collaterally, and we cannot disregard that proceeding unless it Avas void for want of jurisdiction. We cannot hold that such was the case. The petition stated enough to require the court to act in the prem- ises — to set it in motion, and that was sufficient to give the court jurisdic- tion, and whatever was done under it was not in the exercise of an usurped power, but of one conferred bylaw, and although the court may have exer- cised that power erroneously, its orders and decisions are binding till reversed. If we are to look into any errors in that proceeding, it must be brought before us by writ of error." (26 111. 182.) * Elliott t\ Piersol, 1 Pet. 328; Parker ®. Kane, 22 How. 14; Grignon's Lessee v. Astor, 2 How. 319; Davis v. Helbig, 27 Md. 452; Wright v. AVal- baugh, 39 111. 554; Iverson t\ Loberg, 2G 111. 179; Fithian i\ Monks & Brooks, 48, Mo. 502 ; Florentine v. Barton, 2 AYall. 210, 216. ^ Thompson «. Tolmie, 2 Pet. 157; Pursley ». Hays, 22 Iowa 1; United States t'. Aredondo, 6 Pet. 709; Grignon's Lessee v. Astor, 2 How. 319; Ex parte Watkius, 3 Pet. 205; Rhode Island v. Massachusetts, 12 Pet. 718; Phil. & Trenton P. R. Co. t\ Stimson, 14 Pet. 448; Thomas «. La Barron, 8 Met. 355; Iverson v. Loberg, 26 111. 179; Wcincn v. Hciutz, 17 111. 257; Florentine r. Barton, 2 Wall. 210, 216. 1(15 JUDICIAL AisD EXECUTION SAI>ES. application of tiie administrator to pay tlie same, as appears by tlie record, then parole evidence cannot Le received in a collateral proceeding to sliow that no debts ever existed against the estate. If the allowance of the debts and the sale were bronght about by fraud, then the remedy is in a direct proceed- ing in a court of general equity jurisdiction; but the jurisdic- tion and record of the probate court cannot be collaterally impeached. 1 § 470. In an action of ejectment involving the effect of an administrator's deed of lands sold for payment of debts in probate, the regularity or legality of the administrator's ap- pointment, when the court had jurisdiction, cannot be inquired into. "Whether the apj)ointmeiit be regular or irregular the person apj)ointed becomes, at least, the administrator de facto, and being such the matter cannot be questioned in a collateral proceeding. 2 § 471. In the case above cited the case of CidU v. Uoshins, 9 Mass., is referred to and regarded as unsatisfactory; but it is not precisely in point with the question which was raised in Illinois. The Massachusetts case rested on an appointment by the probate court of a contrary county to the one in which the decedent died, an act absolutely prohibited by the Massachu- setts statute. Hence the Massachusetts court treated the appoint- ment as simply void, as an act in violation of law and not as irregularity or mere error. ^ § 472. It follows, therefore, that if the court in probate liavc jurisdiction properly of the subject matter of the applica- tion, by j)etition properly presented, and of the persons of the ' Lamothe v. Leppott, 40 Mo. 143. In this case the court say: "The record sliows that the probate court had full jurisdiction, and the pre- sumj^tion is in favor of its proceedings, and it is not comijetent to attack the record by parole in this collateral manner. If the allowances were procured by fraudulent and false means and pretences, unjustly and to the injury of the estate and the parties interested, a court of equity, on a proper showing of the facts, might afford a remedy; but in a proceeding wholly collateral a party cannot be permitted to introduce oral testimony to falsify the record, when it plainly appears that the court whose record is thus sought to be impeached had jurisdiction." 2 Wright V. Wallbaum, 39 111. 554; Tiiley v. McCord, 24 Mo. 2G5. ° Cutts V. Iloskins, 9 Mass. 543. AVIIEX KOT IJIPEACIIABLE COLLATEELY. 173 parties in interest, if the statute so requires tliem, the sale, when made and confirmed, may not be imj)eached in a collateral proceeding, although it may have been made to pay not only a larger amount than was necessary, but also for the payment of claims, some of which were fraudulent in point of fact, and if the purchaser himself be not a party to the fraud; for after conveyance and confirmation the sale can only be assailed by a direct proceeding in chancery by original bill, when complete jurisdiction is obtained by the court making the sale.^ § 473. "We do not conceive, however, that these principles, though well settled, can override positive statutory require- ments as to things made necessary, or as a pre-requisite, to the validity of judicial sales by the legislation of the several states, but take it to be a general rule that where jurisdiction of the case never actually attached, as for want of notice or other cause, and whereby statute sales are declared void, or may not be made unless certain things appear to have been done, then a deficiency in respect thereto cannot be supplied by intend- ment or presumptions of law, nor upon the principles of res ^judicata. Yet, when such statutes are merely directory in defining the course to be pursued, then if the court had by law jurisdiction of the subject matter and jurisdiction of the case actually attached by filing a j^etition, or petition and notice, if notice was required, and such was exercised by the court by adjudication and order or decree, then by intendment of law all questions in regard to such statutory requirements, and as to questions necessary to be adjudicated in arriving at the conclusion attained, are put at rest by the decision and arc binding as res judicata until reversed for error, or set aside by a direct proceeding; and that in the former class of cases sales are void and will be so treated when collaterally dra^vn in question; 2 and that in the latter class they are only voidable, ' Mj'cr V. McDougal, 47 111. 278 ; Moore y. Nicl, 39 III. 256. In this case the court hold that it is not required to make valid an administrator's sale in probate that he should report the same to the court ; but such is not the current of authorities. ' Cooper v. Sunderland, 3 Iowa, 114; Thornton v. Mulquinnc, 12 lo-^va, 540; Townsend u. Tallant, 33 Cal. 45. 174: JUDICIAL AXD executio:n" sales. and the remedy to avoid them is by an appeal or else hy a direct proceeding to set them aside. ^ III. YoiD Judicial Sales. § -it-i. Jurisdiction, as we have seen, being indisj^ensable to the validity of judicial proceedings, it follows that the first great essential to the validity of judicial sales is jurisdiction in the court making the sale. Without this the sale is void." § 475. If the court making the order of sale be abolished by law before the final consummation of the sale, then the proceedings end with the court, and a conveyance resting on such circumstances is void.^ So if the law under which the proceedings are being had is repealed before the order or decree is executed, a sale made afterwards is void.* § 476. Likewise sales made at a great and unreasonable length of time after making the order or decree, and sales made after the lapse of such time as is by statute allowed for the order to remain in force, are void.^ § 477. So a sale of lands not included in the decree is as to such lands void." § 478. And an administrator's sale of lands to raise funds merely to pay costs and expenses is void, though by order of ' Morrow v. Weed, 4 Iowa, 77; Little v. Sennett, 7 Iowa, 324; Long v. Burnett, 13 Iowa, 28 ; Parker v. Kane, 22 How. 14 ; Voorhees v. Jackson, 10 Pet. 449; Griffin v. Bogart, 18 How. 158; Draper v. Bryson, 17 Mo. 71; Grignon's Lessee v. Astor, 2 How. 242; Miller v. Sherry, 2 Wall. 237; Doc V. Harvey, 3 Ind. 104; Bennett v. Owens, 8 Eng. 177; Saltonstall v. Riley, 28 Ala. 1G4; Benningfiekl v. Reed, 8 B. Mon. 102; Field «. Goldsby, 28 Ala. 218; Tomlinson v. McKay, 5 Gill. 256; BosAvell v. Sharp, 15 Ohio, 447; Merrill v. Harris, G Foster, 142 ; Jackson v. Robinson, 4 Wend. 440 ; Cockcy V. Cole, 28 Md. 27G. ■ Shriver's Lessee v. Lynn, 2 How. 43 ; Morris v. Hoglc, 37 111. 150. ' McLaughlin -y. Janncy, G Gratt. G08. * Ludlow V. Wade, 5 Ham. 494; Campau v. Gillett, 1 Mann. (Mich.) 41G; Perry v. Clarkson, IG Ohio, 571 ; Bank of Hamilton v. Dudley, 2 Pet. 492. 'Marr'U. Boothby, 19 Maine, 150; Wclman v. Lawrence, 15 Mass. 326; Mason V. Ham, 36 Maine, 573. 6 Shriver's Lessee v. Lynn, 2 How. 43 ; Ryan v. Dox, 25 Barb. 440. VOID JUDICLVL S.VLES. 175 court. ^ Likewise a sale is void if made on different notice tlien that ordered in tlie decree." § 479. In Iowa, it is provided hy statute that a guardian's sale of a ward's lands under order or decree of court shall " not be avoided on account of any irregularity in the proceedings, provided it shall appear : First — That the guardian was licensed to make the sale by a court of comj)etent jurisdiction. Second — That he gave bond (approved) in case one was required by the court granting the license. Third — That he took the oath pre- scribed by the statute. Fourth — That he gave notice of the time and place of sale, etc. Fifth — That the premises were sold accordingly at public auction, and are held by one who l)urchased them in good faith." The Supreme Court of that state construe these provisions to mean that " the sale shall not be avoided for any irregularities, except" in the foregoing- particulars, and therefore that it " may be avoided on account of irregularities" in said particulars; that is, if it does not appear that said requirements were complied with.^ And where it did not appear from the record that the administrator making the sale took the oath so required, the sale was holden to be absolutely void.^ § 480. In the same state where the notice of application for order of sale was for one tract of land and the license to sell, notice of sale, and deed, were of another and difll^-ent tract, the court held the sale void for want of jurisdiction to grant the license to sell.^ § 481. A sale made in probate without petition or notice, or other means of conferring jurisdiction, though a decree be made on tlie report of the administrator, is void and parol ' Dubois V. McLean, 4 ^McLean, 48G; Summer v. Williams 8 Mass. 200; Saud v. Granger, 12 Barb. 392 ; Bishop v. Hampton, 15 Ala. 7G1 ; Tanner v. Dean, 24 Mo. 10. - Glen V. Wotten, 3 Md. Ch. Decis. 514; Eeynolds v. Wilson, l.j 111. 394. 3 Cooper V. Sunderland, 3 Clarke (Iowa,) 114, 137, 138; Thornton v. Mul- quinne, 12 Iowa, 549, 554. * Ibid. ^ Frazicr v. Stccnrod, 7 Clarke, (Iowa,) 330. 17G JUDICIAL AND EXECUTION SALES. evidence may not snpplv tlie defect if contradictory to the record. ^ § 482. But, altliough tlie funds arising from the sale are required to be applied in a particular manner, yet it is not incumbent on a lonafide purchaser nnless required of bim by the statute to see them so aj)plied.2 § 4S3. A sale made on a void decree in proceedings of fore- closure of a mortgage is absolutely void. In HarsJiey v. Black- riiarr,^ where there was neither actual or constructive service of the original process nor voluntary appearance by defendant, but an unauthorized attorney appeared and answered for the defendant, the court, on application to vacate or relieve from a sale in such proceeding held that the decree of foreclosure was nullity, and that the sale was void. § 484. The sale in this case was made on a species of special execution under the statute, but the principle is equally appli- cable if the sale were on the decree itself. The statutory execu- tion is but a substitute for the decree in the hands of the officer, and describes the property to be sold. In Mississippi it is lield that there must be notice of application to all the heirs in an administrator's order of sale, or else the order and sale are void.^ And so, too, the sale is void if made without the necessary bond. § 485. Such, also, is the ruling in Indiana. \\iHaioTdns v. HaicMns,^ the doctrine is fully declared that a sale of real estate by an administrator on an order obtained without notice to the heirs is void, although confirmed by the court. In tliis case the court say: " It is settled in this state that a sale of real estate by an administrator, w^ithout notice to the heirs, though it be ordered and confirmed by the court, is void. Babbitt v. Doe, 4 Ind. 355; Doe v. Anderson, 5 id. 33; Doe v. Bowen, 8 ' Bisliop V. Hampton, 15 Ala. 761 ; Tlioruton v. Mulquinuc, 12 Iowa, 549. "^ Cochran v. Van Surlay, 20 Wend. 3G5. ^ 20 Iowa, IGl; and see, Shelton v. Tiffin, 6 How. 1G3. In the latter case theU. S. Supreme Court say, the judgment must be " considered a nullity," and " did not authorize the seizure and sale " of the property. * Hamilton v. Lockliart, 41 Miss. 4G0. » Hawkins v. Hawkins, 28 Ind. GG. KETURX OF THE TURCIIASE M0N]:Y. 177 id. 197; Gerrard v. Johnson, 12 id. G3G; Wort v. Finlj, S Blackf. 335; Bliss v. Wilson, 4 id. 1G9." § 4SG, The case cited from G Howard, Shelton v. Tiffany, in which a judicial sale was declared void, was in reference to a sale made in an adversary proceeding without notice, when on general principles, notice was required. It is parallel, however, witli the Indiana cases, cited above, in this, that by statute in Indiana, actual notice is required, in probate jiroceedings, to sell lands. Such, too, is the ruling in Mississippi. In pro- ceedings in 2)robatc, to sell lands, want of notice avoids the sale.i IV. Iletukx of the PuRcrixiSE Money. § 487, The better authority seems to be, that one buying at judicial sale, Avhere the principle of caveat emptor prevails, is not entitled to relief, (except as for mistake or fraud,) on tailure of title to the proj)erty purchased, after comj)letion of sale and payment of the purchase money.- § 488. In Ohio it is held that the purchase money paid upon a void sale of a decedent's lands, constitutes Jio charge "upon the land in the hands of the heirs, nor can it be recovered of the heirs. 3 § 489. In Yirginia the contrary has been held as to the charge against the land. In Hardin v. Iltidgins,^ it was holden that on fiiluro of title the purchaser should be subro- gated to the rights of the creditor, and that the j)urchase money paid by the purchaser became a lien on the land as it was originally a charge thereon. And so in Mississippi,^ § 490. Uut, in a late case in Yirginia, where one purchased land at judicial sale, with knowledge of facts which render the sale inoperative, and whose purchase was confirmed without ' Gwiu V. McCniToll, 1 S. & M. 3.j1 ; Campbell v. Brown, G How. 230. = The Monte Allegrc, 9 Wlica. GIG; Bingham v. Mancey, 15 III. 295; and see, Ante. Pt. 1st Chap. 9, iS'o. 4, of this work, where the authorities are leferred to more numerou.sl3'. '^ Nowlcr V. Coit, 1 Ham. 519. * 6 Gratt. 320. ' Grant v. Loyd, 12 S. & ]\[. 191. 12 ITS JUDICI^Vl, AND EXECUTION SALES. objection on liis part, it was held tliat he ^vould not be relieved on tlic mere gronnd of failure of titleJ Yet, querc? If tlio pnrcliase money is still in the hands of the administrator, and the purchaser has bought without knowledge of the defects, if equity, on feilure of title, will not cause tlic money to be refunded." § 491. In Tennessee it is held that tlie money may be reco^■- ered back before conveyance is made, on discovery of a defect in the title. ^ And in Mississippi, where the sale j)TOved to be void for want of authority in the administrator to mal^e it, tlic court allowed that fact in evidence for defendant in an action against for the j^nrchase money to show failure of considera- tion.'^ And so in the same state, where an executor's sale was set aside for fraud after payment by tlie pui'chaser, the court allowed him a lien for the money on the premises. ^ § 402. And so in Maine, in the case of a void judicial sale, it was held that the purchaser had his action against the guardian for recovery of his money back, the invalidity of the sale being caused by the omission of the guardian to give tli(> bond whicli was required by the statute before selling. ° But in the case cited from Maine, it seems that the deed contained covenants of warranty. The language of tlic court is, that '" it can be recovered back of the guardiaii uj^on his covenants in the deed, or in an action for money liad and received l>yhim for their benefit." ' Yonng X. Bowycr, 9 Gratt. oOO. - Mockbec «. Gardner, 2 Ilarr. & G. 17G, 177. Such is tlie intimation of Archer, Justice, in the case just cited; but, for as much as it Avas not made to appear -wlictlicr tlie purcliasc money Avas still in the administra- toi''s hands or not, the court made no absolute ruling on that point. s Read r. Fite, 8 Humph. 328. ■* Campbell r. Brown, (i How. Miss. 230; Lau.irhmau r. Thompson, G S. & jr. 259. /Grant v. Lloyd, 12 S. & M. 191. * "Williams r. Morton, 38 Maine, 47, 51. PART TIIIllD. JUDICIAL SALES OF PERSONAL PPOPERXr, COR- POPATE FPANCniSES, PPOPEPXr AKD STOCKS. CKAPTEP XIII. JUDICIAL SALES OF PERSONAL PROPERTY. T. IX ADMir.AI/l'Y. II. At Law. I. Ix AD^nilAI.TV. § 491. Judicial sales of personal property occur whenever and in whatever court such proj^erty^is seized or laid hold of liy judicial process and decree i)i rem^ and is sold on such decree, without regard to personal judgment against the owner. Sales in admiralty in proceedings in rem arc strictly such. In the language of the learned Justice, Pedfield, they "are strictly judicial, 1 and are merely carrying into sjDCcific execu- tion a decree of the court in rem, which, by universal consent, binds the whole world."- If jurisdiction has attached, then bv such sale the property passes to the j^urchascr by operation of law; " all the world arc parties," and arc bound thereby. ^ ' Griffith ». Fowler, IS Vt. 390, 394. •■' Griffith v. Fowler, 18 Vt. 390, 394; The Monte Allcgrc, 9 Wheat. GKJ: lli^ht i\ Steamboat Henrietta, 4 Iowa, 472, 475 ; Phegley «. Tatuni, 33 Mo. 40 1 ; The ]Mary, 9 Crauch, 126, Story, Confl. Laws, Sees. 592, 508 ; The Mary Anne, Ware C. C. 104; Croudson «. Leonard, 4 Cranch, 434; Gclsou r. lloyt, 3 Wheat. 24G, 313; French t>. Hall, 9 N. IL 137; 3 Kent, Com. 132; Penhallowp.Doane,3 Dall. 8G; 3Bac. Abt. 74; Benedict, Adm. Sec. 3G4, 434; The Commander-in-Chief, 4 Wall. 52; McCall c. Elliott, Dudley (S. C.) 250: Singleton v. llcrriott, Dudley (S. C.) 254. ' Grignon's Lessee v. Astor, 2 How. 338; Beauregard v. Xew Orleans, IS flow. 497, 502, 403; Benedict, Adm. Sec. 304, 434. (179) ISO JUDICLVL AXD EXECUTION SALES. § 405. Ill admiralty cases purely in rem the jurisdiction is exclusively in the courts of the United States. ' If the prop- erty he within the territorial jurisdiction of the court and there he the proper lihel, information, or plaint, to confer jurisdiction of the particular case, and it he actually seized upon the ju'ocess of the court, then whatever action, decision, or sale, is had in respect to it is binding on all tlie world, and will be so regarded in every other tribunal and country, unless set aside 6r reversed by some appellate tribunal competent to review the same." And though it is liolden in many cases of high authority that such validity will not be conferred unless there be notice to the parties interested in the property seized, so that they may defend such interest;^ yet, in proceedings in rem, the notice is served on the thing, '^ and it is questionable, except as to foreign courts, whether the omission, where the proceedings are in personam also as well as in rem, will amount to more than mere error and cause for reversal of judgment against the same, if jurisdiction over the proi:)erty has by proper proceedings and seizure actually attached.^ Eut for a judgment in 2'>crsonam, want of notice is want of validity. 'The Belfast, 7 Wall. 024; Brighlly Dig. 24 ; Stratton «■. Jarvis, 8 Pot. 11; Mitchell t. Stcamhoat Magnolia, 4.j 310. G7; Phcgley v. Tatum, 33 Mo. 4G1. -The Siren, 7 Wall. 102; The Propeller Commerce, 1 Black. 5S1; The PiCindeer, 2 Wall. 385, 388, 403; Phegleyw. Tatum, 33 Mo. 4G1; Story, Confl. of Laws, Sees. 502, 503 ; Croutlson v. Leonard, 4 Crauch. 434 ; Monroe v. Douglass, 4 Sandf. Ch. 180; Whitney v. Walsh. 1 Cush. 29; Grant r. McLachlin, 4 Johns. 34; The Mary Anne, Ware C. C. 104; Holmes v. Tlemsen, 20 Johns. 229; Barrow «. West, 23 Pick. 270; Peters v. Ins. Co. 3 Sumner C. C. 389; Magoun x. Ins. Co. 1 Story C. C. 157; Williams •». Arm- royd, 7 Cranch, 423; Bradstrcot t. Ins. Co. 3 Sumner C. C. GOO; 2 Greenleaf Ev. Sec. 541. ■•' Bradstreet v. Ins. Co. 3 Sumner C. C. 600 ; ^lonroe v. Douglass, 4 Sandf. CIi. 180; Story, Confl. of Laws, Sec. 592 . * Benedict Adm. Sec. 3G5. '- AVilliamsB. Armroyd, 7 Cranch, 423, 003; Grignon's Lessee v. Astor, 2 How. 338; Beauregard v. New Orleans, 18 How. 407; Iverson v. Loberg,2G 111. 182; Thompson x. Tolmie, 2 Pet. 1G7; Parker %\ Keene, 22 How. 14; U. S. V. Arrcdondo, G Pet. 700 ; The Globe, 2 Blatch. C. C. 427. IN ADMIRALTY. 181 § 49G. Bciiiir made by order of the court such sales arc not within the statute of frauds.^ § 497. The form of proceedings in courts of admh-alty in matters of ordinary admiralty jurisdiction is in conformity to the civil and maritime law; but the powers exercised in dis- pensing justice and settling rights of projDorty are those of courts of equity; and justice is administered upon equity principles.- Therefore in their orders and decrees in proceed- ings in rem the courts act upon the thing or property itself, which is the subject matter of the proceeding ;3 and sales thereon are judicial sales, as is herein before stated, in their strictest sense. § 498. The principle is fully settled that the seizure and sale of vessels in cases purely in admiralty, in the courts of admiralty, by proceedings hi rem, divests all j)rior liens and claims whatever; and that the holders thereof must look to the fund in court arisinc: from the sale for such riojlits as the nature of their claims may command, which fund is subject to dis- tribution by the court.'* § 499. In such proceedings and sales against the i^roperty itself, the validity of the sales does not depend upon any per- sonal judgment against the owner or master, but the proceed- ing is purely in rem, and of which the United States court have exclusive jurisdiction in admiralty cases. The decree is against the property itself, and all the world are barred by the decree and sale.'' § 500. In Williams v. Armroyd,'^ that great jurist, Mar- shall, Chief Justice, holds the follow^ing language on the subject of force of sales in admiralty: " It appears to be set- ' The Monte Allegre, 9 Wheat. CIG. - Plummer ti. Webb, 4 Mason, 380, 387; 1 Kent Com. 354: •, Delovio v. Boit, 2 Gallison, 398; 1 Briglitly Dig. 25; 3 Grceulcaf, Evid. Sec. 389; Benedict, Adm. Sec. 358. ^ Benedict, Adm. Sec. 359. * Remnants in Court, Olcott, 383; Bracket v. The Hercules, Gilp. IS-i; Harper v. The New Brig, Gilp. 530; The Amelia, 6 Wall. 18. 5 The Mary Anne, Ware C. C. 104; The Siren, 7 Wall. 153; Williams ». Arraroyd, 7 Cranch, 433; Benedict, Adm. Sec. 304. « 7 Cranch, 433, 433, 434. 1S3 JUDICIAL AND EXECTTION SALES. tied in tills country tliat the sentence of a competent court, proceeding i}i rem^ is conclusive in respect to thing itself, and operates as an absolute change of the property. By such sentence the right of the former owner is lost, and a complete title given to the person who claims under the decree. No court of co-ordinate jurisdiction can examine the sentence. The question, therefore, respecting its conformity to general municipal law can never arise, for no co-ordinate tribunal is capable of making inqniiy." This case involved title u.nder a government sale of vessel and cargo made at St. Martins, by an order of decree of the Governor; and although such decree was repudiated by our government as in violation of interna- tional and maritime law, yet as Congress liad not gone so far as to declare the sale void and require it to be so treated in our courts, the Supreme Court felt bound, on principles of maritime law, to treat it as of binding force and to recognize the validity of the sale. Upon this branch of the subject the learned judge, in the same case, gives the opinion of the court in the following terms: "The sale was made on the applica- tion of the captor, and the possession of the vendee is a con- tinuance of his possession. The capture is made by and for the government, and the condemnation relates back to the cap- ture and affirms its legality." Then again in the same case the court remark that, " If an erroneous judgment binds the property on which it acts, it will not bind that property less because its error is apparent. Of tliat error advantage can be taken only in a court which is capable of correcting it."^ § 501. In maritime cases, in the United States court, it matters not to the contrary tliat the sale be made on a species of execution and by the ordinary ministerial officer, the sale is nevertheless a judicial sale. The WT-it is but a statutory method of executing the decree or judgment of condemnation and^ order of sale;" unlike the ordinary execution it points out the ' Williams v. Armroyd, 7 Cranch, 423, 433, 434. 2 Conk. Dig. 1st Ed. 388; Act of Congress, March 2, 1799, Sec. DO. In England the sale is by a commissioner of the court. Abbott on Shipping, 1G3 In the United States coiu'ts by the marshal. lb. 1C3. Griffith v^ Fowler, 18 Vt. 390, 394. AT lAW. 18:5 property to be sold. No levy is necessary and the proceeds of sale arc to be returned into court to be disposed of as that tribunal may directs The officer is the mere agent of the court to carry its order and authority into efl'ect.- II. At Laav. § 502. And so proceedings in the state courts for tlie enforcement of liens and pledges against boats and vessels, and other j^er^^onal property, not maritime in their nature, are Avithin the ordinary equity poTrers of chancery courts, whether such liens rest upon express contract or arise by implication of law. To that end such courts, on application by bill or petition, if equity shall require it, will decree a sale of the property to satisfy the debt, and will cause such decree to be carried into effect by the appointment of a commissioner or master to conduct the sale, and he is to produce in com-t the fund arising therefrom, subject to the final order of the court.-' § 503. Such proceeding being in rem, the jurisdiction (unless so enlarged by statute) does not extend to the making of any personal order or decree against the owner of the prop- erty in case the fund arising from the sale be insufficient to satisfy the demand.'^ § 504. Some of these cases are kindred in their nature to admiralty cases, as for instance proceedings '?;i rejji against water crafts, under state laws, to enforce liens or else to obtain and enforce liens against such crafts for material and supplies furnished in home ports, which do not come within the admi- ralty jurisdiction of the United States. ' The Phebe, Ware C. C. 854; Andrews v. Wall, 3 How. 5G8, 573; Act of Congress, March 2, 1790, Sec. 00; Conklin Digest, 1st Ed. 388; The Siren, 7 Wall. 152. * Hurst V. Stull, 4 Md. Ch. Dec. 391, 393; Inglehart v. Armgs., 1 Bland. 527; Mason v. Osgood, 64 N. C. 467, 468; Bozzai\ Rowe,30 111. 198; Armor tJ. Cochran, G6 Penu. St. 308; Coffee v. Coffee, 16 111. 145; Moore v. Shultz, 13 Penn. St. 103; Sowards v. Pritchett, 37 111. 517. = Black V. Breuuan, 5 Dana (K). 311, 313; 2 Story Eq. Jur. Sec. 1033; 4 Kent Com. 139; Ambler v. Warwick, 1 Leigh. 495, 205, 207, 2 Ililliard oii Mortgages, Appendix No. 1, Sec. 38. * Black V. Brennan, 5 Dana (Ky.) 311, 312. 184 JUDICIAL AND EXECUTION S.ULES. § 505. The eftect of sucli proceedings and sale thereof varies ill the several states under the impress of local law. But there are certain principles that run alike through the whole. The vessel must be within the territorial jurisdiction of the court or jurisdiction cannot be obtained; and being so within such jurisdiction, then jurisdiction over the thing actually attaches by corporal seizure thereof under the process of the court, and continues only during such corj^oral restraint and possession, unless released under some provision of law, as on forthcoming bond or other similar provisions. ^ § 506. In such ^proceedings in rem under state laws, it matters not whether the proceedings purport in form, to be at law or in chancery, or in neither one or the other exclusively, as in some modern creations of pleadings. In either case the order of condemnation and sale is made and is executed in the exercise of more or less equity power, and the sale being made by express adjudication of the court pointing out the property to be sold is judicial in its character. The property is already in custody of the court by tlie original seizure, and judgnaent of condemnation, and sale. JSTo new levy is necessary; and whether the sale be conducted by the sheriff or by a master, the result is the same. It is the carrying out the order of the court, and not the exercise of any separate authority irrespect- ive of such order and ministerial in character. § 507. A hona fide purchaser of personal property, at a sale purely judicial, as one made on a seizure, condemnation and order of sale of a water craft in proceedings in rem, under the .statute for enforcing claims agains boats, takes the title to the property in Ohio, free from all ordinary liabilities. The seiz- ure on process creates a lien, and the proceedings perfected by condemnation and sale cuts off all existing claims or mere liabilities which are not in themselves liens entitled to priority.^ The case last cited was a proceeding under the Oliio statute, which gives the creditor the right to proceed against the owner or master of a water craft, "or the craft itself," and provides for its seizure and detention, and for its subsequent sale ou ' Bnidstrcct v. Ins. Co. 3 Sumner C. C. GOO. "^ Jones x. Steam Boat Commerce, 14 Ohio, 408. AT LAW. 185 execution to satisfy tlio judgment of tlie court. The Supreme Court of Oliio say: "From the time of this seizure a lien is created, the property is bound and may be sold on execution." The court remark that this construction of the act aids " the vigi- lant creditor, by allowing to him the same advantage that one secures to himself, by making a levy on personal property." And that " the lien first attaching by virtue of the seizure will be first satisfied, and so on in the order of priority," if the proceeds of sale are more than the amount of the first lien and costs. "The first judicial sale (say the court) then, must pass the entire interest and vest in tlie purchaser a perfect title." \ § 508. In the case of Phegley v. Tatum,'^ cited from Mis- souri, the Supreme Court of that state recognizing the rule in Admiralty courts of exclusive jurisdiction of maratime liens, and that all the world are bound by their action in rem upon such subjects, denies that there is any analogy between such and suits prosecuted in the state courts of that state to enforce liens a2:ainst boats and vessels under the local statute. The court say, of sales in the regular court of Admiralty: "Such sales are not made for the benefit of every particular creditor, but for the benefit of all persons interested." - '^ "''' " The proceeding is entirely in rem and all the world are bound by it." Whereas, the benefits of the Missouri statute "are con- fined to ]3ersons in Missouri, or making contracts in Missouri;" and the " efiect of a sale under the Missouri law," is to " divest only the liens existing unaer that law." Therefore, that as sales in Missouri do not afiect the liens of strangers resident in Illinois or other states, but as against such persons operate only as would private sales, so, on the other hand, like sales under the statutes of other states are not maintainable in Mis- souri, as against liens existing under the statute of Missouri. Such too is virtually the ruling in Iowa, in reference to liens arising under the laws of Missouri. § 500. Under the Ohio statute the claim against the water craft is not j^a^ so a lien, nor does tlie statute make it a lien ; ' Jones X). Steam Bocit Commerce, 14 Oliio, 411, 112. * Phegley v. Tatum, 33 Mo. 401, 460, 407 ; Ilight v. Steam Boat IleuricUa, 4 Iowa, 437, 475. ISG JUDICIAL A.MD EXECUTION SALES. Ijiit merely provides a way by wliicli a lien may be obtained. That is by seizure on process in accordance with the provisions of the statute. § 510. Whether such seizure and sale will cut off prior liens already existin^^, is not expressly determined in the case above referred to ; but the court declare such sale to be unlike a pri- vate sale, wherein the purchaser takes only the interest of the vendor and holds the property as the vendor lield it in all pur- chases where the purchaser bad notice of a claim against the same at the time of his private purchase. The claim follows the boat in whomsoever hands the vessel goes, whether l)y pri- vate sale or hire and is capable to be matured by judicial proceedings into a lion against it. But claims that arc not so matured are cut olf by a seizure and judicial sale, just as a prior attachment over-reaches a subsequent one. In the language of the court: "The judicial sale is the act of the law."^ § 511. This equitable jurisdiction extends only to the enforce- ment of the lien, 2 and does not authorize any order or decree against the person. § 512. In cases of bailment where the lien is for benefits bestowed or labor performed on the property, the expenses of subsequent keeping attach to the liability and become a part of the lien, whenever the party has a right to retain possession as security for liis demand. He lias " a lien upon the property itself for the re-imbursement of bis reasonable expenditures in keeping and providing for it, though he keep it merely for bis own security." 3 In the enforcement of the lien judicially by decree and sale, these additional expenditures will be in- cluded and satisfied as if part of the original liability, so far as they are reasonable, necessary and just. Or when the prop- erty is expensive to keep or is perishable, it may be sold under interlocutory order and the funds be held to answer the final decree.'^ ' Jones V. Steam Boat Commerce, 14 Ohio, 408, 413; Waverley v. Clcmcats 14 Ohio, 28,37. - Bhick V. Brennan, 5 Dana (Kj-.) 311, 312; Long Dock Co. v. Malloiy, 1 l]eash;y, 94, 9(;. =" Bhick V. Brennan, 5 Dana (Ky.) 311, 312. * Black V. Brennan, 5 Dana (Ky.) 313 ; Long Dock Co. c.Mallory, 1 Boas. 94. CIIxiPTEE XIV. JUDICIAL SALES OF COKPOIIATE FRANCHISES, mOPERTY AND STOCKS. § 513. Though the corporate riglit to operate a rail road and receive the earnings and tolls, may result from a judicial sale and purchase under a decree of foreclosure and sale on a mortgage, yet, by such decree, foreclosure and sale, the cor- porate existence and franchise of such company will not pass to the purchaser. That is, " The ca23acity to have 2:)erpetual succession under a special name, and in an artificial form, to take and grant property, contract obligations, and sue and be sued by its corporate name, as an individual," are "franchises belonging to the individual stockholders," and will not pass to such purchaser; that although the company "may be divested of its property, together with the franchise of operating and making profit from the use of its road, its corporate existence survives the wreck and endures until the states sees fit to terminate it by a proper proceeding."^ § 514. In the case of Canal Co. -y. Bonliain^^ the court hold as follows in reference to forced sales of such interests. See- GRt^NT, Justice: "The spirit of the decision in Amant v. Alex- andria and P'dtsljurglh Transportation Company^ seems to be that privileges granted to corporations to construct turnj^ike roads, canals, etc., are conferred with a view to public use and accommodation, and that they cannot voluntarily deprive them- selves of the lands and real estate, and franchises which arc necessary for that ^^urpose; nor can they be taken from them by execution, and sold by a creditor, because, to permit it, would > Atkinson v. The M. and C- R. R. Co. 15 Ohio, 21, 36; Coe v. Columbus, Plqua and Ind. R. R. Co. 10 Ohio St. 373 ; Canal Co. ^. Bonhani, 9 W. & S. 27; Amant d. New Alexandria and Pitts. Transportation Co. 13 S. & R. 210. 2 Canal Co. t\ Bonham, 9 Watts & Scrgt. 27, 28. (187) ISS JUDICIAL AND EXECUTION SALES. tend to defeat the whole object of the charter by taking the improvements out of the hands of the corporation and destroy- ing their use and benefit." ^' " * "•• " Tlie remedy for creditors, in such case," say the court, is by sequestration, as was suggested by Chief Justice Tilghman, and lias since been provided for by statute. § 515. And where, as in Ohio, it is by the constitution pro- vided that "the general assembly shall pass no special act conferring corporate powers," it is liolden that a special act of assembly declaring that such mortgage sale shall carry the coi'ijorate franchise to the purchaser, is unconstitutional and void ; and that though the right to operate the road and receive the proceeds thereof would pass thereby, the sale being regular in other respects; that yet, the corporate capacity and existence still remained in the stockholders, and that the attempt by such act of assembly to confer the corporate capacity of the debtor corporation on the purcliasers at such judicial sale was tantamount to an attempt to create a corporation by special enactment, and was then inoperative and void. That what the general assembly cannot do directly, it cannot do indirectly. The court say, aside from this act of assembly: "It is certain that the mortgagees, as such, were invested with no corporate capacity, and it is equally certain that a mere purchase at the sale would have invested them with none." So that, without the enactment it could not pass, and that it would not pass by the enactment wdiich in itself was unconstitutional and void.^ § 51G. But in Pennsylvania, under somewhat similar condi- tions, the ruling is the contrary. There, the act of assembly, after conferring power to mortgage the property and franchise, declared that, " in the event of a sale being made of the estate, right, and franchises of said company, under or by virtue of the provisions of any mortgage created under this or any other act, the purchaser or purchasers, their associates and assigns, shall thereupon become a body politic or corporate under the name of the "Westchester Direct Iiailroad Company, and, as such, be entitled to succeed to all the estate, right, and privi- Atkinsoii v. M. C. R. R. Co. 15 Ohio St. 21, 30, 38. SALES OF COKPORATK FKA^'C1IISKS, KIC, ISO leges of said company."'' The court held that a mortgage so made under said act, carried "with it the right to have the mortgaged property and franchise sold on nonpayment of the debt according to the terms of the obligation.^ § 517. Where, through the fraudulent acts and procure- ment of the directors of a railroad company, its franchises, road, and rolling stock were sold at judicial sale, under a mort- gage decree for a nominal sum compared with their real value, and thereby the just claims of other creditors were to be cut off and their interests sacrificed, it Avas held by the Supreme Court of the United States that the purchasers at the mortgage sale, who had in the meantime despoiled the road by taking up and selling the material at great profit, should be " held liable as trustees" to the injured creditors, "for the full value of tlie property purchased " at the mortgage sale, after deduct- ing tlicrefrom the amount of the judgment at the day of sale paid by them and under which they bought." § 51 8. A judicial sale under a mortgage decree of foreclosure of a railroad and its franchises will not carry title to the mere easement or right of way of the road at places where the damages for the same, though assessed, have not been paid, although the mortgage deed bo of subsequent date to the taking and occupancy of the easement. Until paid for, the right to the easement does not vest in the company, and conse- cpiently there could be no title in the company to the easement at the date of the mortijaiye to which the mortixas^e lien could attach as against the original land owner, or as against his prior right to enforce compensation for his damages for right of way. 3 § 519. Although as a general principle in Pennsylvania, the courts will not assume chancery jurisdiction to decree a mort- gage foreclosure, or a foreclosure and sale on a mortgage,^ yet they will do so in cases of insolvency, bankruptcy, or death of ' Mcndcnhall v. Tlic Wostchcstcr and Phila. R. R. CG Pcnn. St. 145 and 147, n. - Driiry v. Cross, 7 Wall. 299. 3 Western Penn. R. R. v. Johnson, 59 Ponn. St, 290. ■* Bradley v. The Chester Valley R. R. CO I'enn St. 141, -155 ; Amherst v. The ]Montonr Iron Co. C5 Penn. St. SO. 190 ■ JUDICIAL AXD KXECUTION SALES. the mortgagor/ and will also "take jurisdiction of a trust created in a mortgage, and will compel trustees to execute whatever jjowers have been vested in them for the benefit of creditors, even to the sale of the mortgage premises on a proper case made. 2 § 520. But that default to pay the interest, merely, on its unmatured mortgage bonds, by a railroad company, does not authorize a decree comj)elling the trustees in the mortgage to exercise their powers of sale and sell the road and franchises of the compan}^, when their power to sell is in the mortgage based upon the maturity of and defiiult to pay the bonds. ^ § 521. In the case oiJfendenhall v. Westchester and PTiila- delpliia It. R.^'^ the court say: "We have already indicated the general rule drawn from the civil law, that nothing can be conveyed in mortgage except things which may be sold. Tliis is the reason why a railroad corj)oration, holding its franchise for public use, although its tolls are for the private benefit of the stockholders, can neither sell nor mortgage its franchises." (That is apart from statutory authority so to do.) " But when the legislature authorized it to execute a mortgage" to secure a debt, such mortgage "carries with it a right to have the mortgaged property and franchise sold on non-payment of the debt, according to the terms of the obligation." And more especially, "where, as in the case before us, tlie road is unfinished, and there are no tolls or other means of collecting the debts by sequestration." § 522. Under the statute in Wisconsin, a railroad company becomes the owner in fee of the real estate taken for right of way, or on which to construct its road; and by the laws of that state the rolling stock of such company is a fixture to such realty, and is a part thereof. §523. Judgments at law are by hivr, iu that state, liens upon the real estate of judgment debtors. Hence it follows that a judgment in that state against a railroad company is a lien ' Mendenhall ■». Westchester and PliiLa. R R 30 Penn. St. 145, n. = Bradley r. The Chester Valley K. \\. 3G Perm. St. 141, 155 = Ibid. ♦ 36 Penn. St. 145, ii. SALi-:s OF coRroiiATi-: ia^\.xcniSEg, etc. 11)1 upon sucli real estate and fixtures of the comj^any, and tliat a sale thereof nnder a decree in chancery, to satisfy such judg- ment and conveyance inade in pursuance thereof, (the sale being confirmed by the court,) carries to the purchaser title to the whole interest of the company, as fully as it existed at tlie time of the rendition of such judgment. ^ § 524. A mortgage sale of the rail road was set aside at the suit of judgment creditors, as fraudulent and void, where the foreclosure was nominally for an amount greatly in excess of the real indebtedness, the notice of sale was of a similar character. The mortgagee acting as auctioneer, and as such bid in the property for certain of the bond liolders and directors who had made the mortgage. The Supreme Court of the United States, Kelson justice, hold the following language in reference to the transaction: " It needs no authorities to show that such a sale cannot bo upheld without sanctioning the grossest fraud and injustice to the mortgagor and its creditors." " The deccj^tive notice was calculated to destroy all competition among the bidders, and indeed, to exclude from the purchase every one except those engaged in the perpetration of the fraud. The sale therefore must be set aside and the Milwaukee and Minnesota ComjDanv be perpetually enjoined from setting up any right or title under it, the mortgage to remain as security for the bonds in tlie hands of Ijona fide holders for value, and that the judgment creditors the complainants be at liberty to enforce t]ieir judg- ments against the defendants therein, subject to all prior liens or incumbrances." 2 § 525. The enforcement of judgments at hnv against j^rivatc corporations, and the carrying out the rights of execution pur- chases on sales of the right to take tolls, where such sales are allowed by statute on execution against such corporations, arc fit subjects of equity jurisdiction. § 520. Such jurisdiction results from the incompetency of courts of law to afibrd suflicient or certain relief. Tlic nature ' James V. Railroad Co. G Wall. 730. " James v. Railroad Co. G Wall. 752, 73.";. 192 JUDICIAL A2sD EXECUTION SALES. of tlie interest to be readied, is sncli, IVoui tlieir intangil^ility as to ])reclude the ordinary remedy of corporeal possession Avliich results from execution sales of goods and chattels and of real estate. On sucli sales of goods and chattels, j^ossession of tlie property is delivered to the purchaser by the officer sell- ing; and on sales of the realty, the jDurchascr has his action at law for possession of the property. But on execution sale (if such sales be permissable) of a franchise, a mere easement, or the right to take tolls, no such possibility follows ; and a court of law is incompetent to put the purchaser into possession of the fruits of his purchase.^ § 527. In Covington Draw Bridge Co. v. Shepherd,^ the Supreme Court of the United States, Cateon Justice, say of the power of the court of law to meet out a suitable remedy in such cases, that, "One thing however is plainly manifest, tliat the remedy at law of these execution creditors is exceed- ingly embarrassed, and we do not see how they can obtain satisfaction of tlieir judgments from this corj)oration (owning no property but this bridge) unless equity can afford relief." § 528. In the case of The Macon &. Western Hail lioad Co. V. Parker, the Suj^reme Court of Georgia hold the follow- ing language in reference to the same subject: "The whole history of equity jurisprudence does not not present a case which made the interposition of its powers not only highly expedient, but so indispensably necessary in adjusting the rights of creditors to an insolvent estate, as this did."^ § 520. In such cases, when there is not tangible property subject to levy and sale belonging to the company, a court of equity will give relief by appointing a receiver to take charge of and manage the corparate property; receive the tolls and income of the corporation from whatever source they may emanate, and account for the same to the court to the end that they be applied to the extinguishment of the judgments and ' Covington Draw Bridge Co. v. Shepherd, 21 How. 112; Macon & "Wes. tern R. R. -». Parker, 9 Geo. 878. "" 21 How. 124. = Macon & Western R. R. «. Parker, 9 Geo. 393, 394; Covington Draw Bridge Co. t. Shepherd, 21 IIoav. 123. I SALES OF CORrORATE FliAKCIIISES, la-C. 193 cxcctitioiis existing against the company, according to tlieir resjiective riglits; first defraying the costs, cliargcs and expenses of the operation and proceedings out of the same.^ In tlie case of The Covington Draw Bridge Co. v. Shepherd, there were two judgment creditors holding judgments in the circuit court of the United States, for the District of ALabama. The one sold and bought in on execution the right of the corpora- tion to the tolls of the road; but finding his purchase ineffectual as to any more than a nominal satisfaction of the writ, and leaving him no means of obtaining actual payment, he joined with the other judgment creditor in a bill in chancery for the appointment of a receiver to take charge of the franchise and corporate property and operate it in satisfaction of their de- mands. A decree was accordingly entered granting the relief prayed for; from this decree the case went to the United States Supreme Court, which affirmed the decree of the court below. " § 530. The corporation and franchise to take toll were created by act of the legislature of Indiana. By the law of said state it is enacted that, " the property, rights, credits, and effects of the defendants are subject to execution." ^ But not the lands until the rents and profits for a term of years are first oflered. Under this state of the law "the tolls, under the idea that they were rents and profits of the bridge (say the court) were sold for one year according to the forms of the law. The tolls of the bridge being a franchise and sole right in the corporation, and the bridge a mere easement, the corpor- ation not owning the fee in the laud at either bank of the river or under the water, it is difficult to say how an execution could attach to either the franchise or the structure of the bridge as real or personal property. This is a question that this court may well leave to the tribunals of Indiana to decide, on their own laws should it become necessary." The Supreme Court, after reviewing the whole subject, then add in conclu- sion, that " all that we are called on to decide in this case is, ' Covington Draw Bridge Co. v. Shcplicrd, 21 IIo^y. 112. « Ibid, 125. ^ 2 Revised Stats. 1853. 13 1^^ JUDICIAL AND EXECLTIOX SMJ-S. that the eourt below had j^ower to cause possession to be taken of tlie bridge, to appoint a receiver to collect tolls and pay them in to court, to the end of discharging the judgments at law, and our opinion is, that the power to do so exists, and that it was properly exercised. i ' Covington Draw IJridge Co. v. Slicplicrd, 21 IIow. 124, 12o. TAET FOmiTH. EXECUTION SALES OF EEAL PEOPEETY. CIIAPTEE XY WHAT INTEREST IN LANDS MAY BE SOLD, AND IN WIIxVT ORDER. I. How Liable to Sale. II. DowEii Laxds. III. UNDIVIDED IXTEFvESTS. IV. Equitable Interests. V. The Homestead. VI. In What Order Sale is to be Made. I. IIow Liable to Sale. § 53 L Lands were never liable to execution sales at com- mon law. Tlic remedy of the creditor was against tlic rents and 2)rofits. First by the T\Tit of levari facias, and subse- quently by writ of elegit. Tlie latter ^vas given by statute of Westminster, 2-13 Elizabeth. ^ § 532. ISText came tlie statute of George II., subjecting lands to execution sale in the American colonies and others. In Bergin v. McFarland,'^ the conrt holds the following lan- guage in reference to this statute, Bell, JTustice: "By an early British statute, lands in the colonies were subjected equally with personal estate of the debtor to the payment of debts. Stat. 5, George II.; Prov. Stat, of K IL, 1T71, p. 233. And by very early statutes both of Massachusetts and of this pro- ' Gantlcy's Lessee t'. Ewinc;, 3 How. 714; McConnell r. Brown, 5 Men. 480; Erwin v. Dimdas,4 IIow. 58, 77; Bergin v. ISIcFarland.G Foster (N. II.) 536; 3 Bac. Abt. C. G4; 4 Kent, Com. 429. • 6 Foster (N. II.) 53G. (195) 196 JUDICIAL AND EXECC'llON SALES. \'incc, power was conferred upon executors and administratora to sell the real estate for payment of debts, in case the proper courts, upon application, should deem the same necessary or proper." There were like statutes in Pennsylvania of early date. Hence the origin of selling lands for debt in the American colonies and states, a practice continued in most of the states at the present time varied only in manner and effect by local regulations. In some, hovrever, the writ of elegit, and in others the remedy by extent, are resorted to. AVith these latter remedies we have nothing in this work to do. § 533. In some of the states the lands are not only liable to execution sale, if there be not personal property found, but the debtor at his option may require their sale on execution in lieu of the personalty. 1 § 534. In others, if there be not personal property found, then the land is levied on, and the rents and profits are appraised for a certain term fixed by statute, and for such term are offered for sale upon the writ. If they do not command the amount of the debt, then sale is made of the land itself - § 535. But the various and diversified statutory regulations in the several states are too numerous to come within the scope of our title and purpose, and will, therefore, not be fol- lowed out. § 536. The more prevalent rule now is, that in those states where execution sales are made of the realty, every legal inter- est of the debtor not exempt by statute is subject to levy and sale, including those that are contingent, in reversion and in remainder. '"^ Also rent charges,* and leases. ^ And in some * Tuttlc «. Wilson, 24 111. 559; Pitts v. McGic, 24 Ill.GlO; Cavender r. Smith, 1 Iowa, 306. * Gantley's Lessee v. Ewing, 3 How. 707. ' Humphreys v. Humphreys, 1 Yeates, 427; Wiley v. Briclgmaii, 1 Head, (I'cnn.) 08; Smith v. Ingles, 2 Oregon, 43, 45. * Hurst V. Lithgrow, 3 Yeates, 25. * Bisby V. Hall, 3 Ham. 449; Shelton v. Codman, 3 Cusli. 318. EXECUTION SALES OF HEAL I'lJOPEUTY. 197 of tlic states, mere ecj[iiitlcs.i But the interest must be in the land itself and not a mere permit to occupy. ^ § 537. In Iowa, under the statute, pre-emption rights are hoklen to be sul)ject to execution sales. =^ And in several of the states an " entrj or survey " of lands is such an " inchoate and incomplete legal title," as is subject to execution sale.'^ § 53S. Likewise are equity of redemption ;5 but not the statutory right to redeem from execution sale.^ But an inter- est arising under a resulting trust is liable to execution sale."^ fhe ]3urchaser at execution sale has no such interest before expiration of the time allowed for redem-'3tion as may be levied and sold.** § 539. The law is well settled in Louisiana that an execution creditor who would avoid a fraudulent sale of lands made by his debtor, or by a proceedings in probate, must first bring his bill and set aside the sale for the fraud, before he can levy and sell the lands on his execution. § 54:0. The Sui^reme Court of the United States in disposing of this subject, say: "The judgment creditor is not permitted to treat a conveyance from the defendant in the judgment, made by authentic act, or in pursuance of a judicial sale of the succession by a probate judge, as null and void, and to seize and sell the property which had thus j^assed to the vendee. The law requires that he shall bring an action to set the alienation aside, and succeed in the same before he can levy his execution. And so firmly settled and fixed is this "Foot V, Cobin, 3 Johns. 2iG; Kizer c. SaTvycr, 4 Kun. 503 ; Jackson r. Eateman, 2 Wend. 570; Evans v. Wilder, 5 JMo. 313. * West Peun. R. li. Co. v. Johnson, 59 Penu. St. 294; Morrow r. Bronizcr, 2 Ilawle, 188; Thomas ■;;. Simpson, 3 Barr. G9. * Levy V. Thompson, 4 How. 17. ^ Landers v. Brant, 10 IIow. 348; Land t\ Hopkins, 7 Ahi. 115; Thomas V. Marshall, Hardin, 19. ^ Waters v. Stewart, 1 Caines Cas. 47 ; Watkins v. Gre.sior}', G Blackf. 113 ; Hunter v. Hunter, Walker, 194; Phelps v. Butler, 2 Ham. 224; Porter v. Millet, 9 Mass. 101; Taylor v. Cornelius, GO Penn. St. 187, 195. « Watson V. Reissig, 24 111. 281; Merry v. Bostwick, 13 HI. 398. ^ Foot-B. Colvin, 3 Johns. 21G; Jackson v. Bateman, 2 Wend. 270; Evan.3 r. AViUler, 5Mo. 313, 321. « Den r. Stcelman, 5 llalst. 193; Kidder c. Oreutt, 40 .Maine, 589. 19S JUDICIAL AND EXECUnON SALES. principle iii the jurisprudence of Louisiana, as a rule of prop- erty and as administered in tlie courts of that state, tliat even if the sale and conveyance by authentic act or in pursuance of a judicial sale are confessedly fraudulent and void, still no title passes to tlie 2)^^i*C'haser under the judgment and execu- tion." Tliat " in eifect the sale, if permitted to take place, is null and void, and passes no title." Tlic United States Supreme Court recognize this principle as running through all the books of that state. 1 § 54:1. A claim of land not based upon either right or pos- session is not an interest in the realty, or subject to execution sale. 2 § 542. Lands held in trust by an executor to pay a testa- tor's debts are equitable assets and are not liable to execution sale in proceedings against the heirs or against the executors.^ The trust must be executed; the proper tribunal will enforce its execution if need be, and will sec to the faithful application of the proceeds. § 543. Lands held by purchaser of the United States before the issuance of the patent, are suljject to execution sale, as also to judgment liens. "^ § 544. When the patent issues, the title under the sherifl"*s sale relates back to the date of the entry, and so does the gov- ernment patent, and title vests in the execution purc-haser by such relation.^ § 545. "There is no rule better founded in law, or reason, or convenience," (says the learned author of Cruise on Iieal ' Ford V. Douglass, o How. 143. Sec also Hcnrj^ v. Hyde, 5 Martin (N. S.) 633; Yocom v. Bullitt, 6 Martin, 324; Peet®. Morgan, G Martin, 137; Childress v. Allen, 3 La. 477; Bennett v. Duvergis, 5 La. 124 ; Samory t\ Hebrard, 17 La. 558. 2 Hagaman v. Jackson, 1 Wend. 502; Major v. Deer, 4 J.J. Marshall, 585. 3 Helm v. Dailey, 3 Dana, 185. * Huntingdon v. Grantland, 33 Miss. 453 ; Landes i\ Brant, 10 How. 348, 374; Levi v. Thompson, Morris (Iowa) 235; Cavender v. Smith, 5 Iowa, 157; Kogers v. Brent, 5 Gilm. 573; Jackson v. Williams, 10 Ohio, 09. " Landes i:. Brant, 10 IIow. 348, 372, 373, 374; Cavender r. Smith, 5 Iowa, 157. EXECUTIOX SALES OF JIKAL I'KorKKTY. 190 Property,) " than tliis; that all tlio several parts and ceremonies necessary to complete a conveyance shall be taken together as one act and operate from the substantial part by relation."^ 11. Dow Eli Lands. § 54G. The right of dower may not be sold on execution before assignment or possession thereof.- § 547. But dower lands held by actual possession of tlic tenant in dower may be levied and sold, and the possessory right will pass, and so will the growing crops, by the sale, if there be no redemption allowed by law.^ § 54S. And so the possessory interest of a husband in dower lands already assigned to his wife as the widow of a former husband.* III. UxDn'IUED IxTEIIEST. § 549. Xeithcr the interest of husband or wife, where they are tenants of the entirety in lands, can be sold on execution so as to pass aw^ay title that may be enforced during their joint lives, or against the survivor after the death of one of them. During their lifetime husband and wife are tenants of the entirety of lands conveyed to the two jointly and each arc seized of the whole. On the death of cither the entirety remains in the survivor and such survivor becomes the sole owner of the whole estate in the land.^ So no separate pro- ceeding against one of them, during their joint lives, will by sale affect the title to the property as against the other one as survivor, or as against the two during their joint lives. ^ ^Neither party to such tenancy can sell or convey their interest, for it is incapable of being separated. The husband and wife being ' 5 Cruise, Real Prop. 510, 511. " Nasou V. Allen, 5 Greeul. 479; Goocli v. Atkins, 14 3Iass. 378; Graham V. Moore, 5 liar. (Del.) 318; Pennington v. Yell, G Eng. 212. = Pitts V. Ilcndrix, G Geo. 452. * JSIcConihc v. Sawyer, 13 N. II. 3G9. » 3 Bl. Com. 182; 4 Kent, Com. 3G2. «Frcuch V. Mehan, 5G Pcnn. St. 2SG ; McCunlv v. Cannin"-. G4 Ponr, St. 89. 200 JUDICIAL AND EXECUTION SALES. one,^ tlicrcfore each are seized of the whole; and what one cannot himself sell cannot be sold on execution against him." § 550. How far this species of tenancy has been aflected by statutory enactment of any of the states, it is not our purpose liere to enquire. TV. Equitaule Interest. § 551. A title merely equitable, without possession, may not be sold, ordinarily, on execution. If subject tliercto it is by statutory enactment.^ § 552. But " possession of land, (in the language of Swan, Justice,) is an estate therein which may ripen into a right of possession and property," and " if a judgment debtor is in possession of land, it maybe levied upon and sold."'^ ' 3 El. Com. 182; 4 Kent, 3C2. - French v. Melian, 56 Penn. St. 280 ; Gentry v. Wagstafl', 3 Dcv. 370. In French v. Mchan, the court liold that " it is well settled that if an estate in land be given to the husband and wife, or a joint purchase be made by Ihem during covcture, they are not properly joint tenants or tenants in common, for they are but one person in law and cannot take by moieties They are both seized of the entirety, and though the husband may have the absolute control of the estate during his life, and may convey or mort- gage it during that period, neither can alienate au}^ portion thereof with- out tlie consent of the other, and the survivor takes the whole. Johnson V. Hart, G W. & S. 319; Robb v. Beaver, 8 id. Ill; FairchikU. Chastelleux, IBarr, 176; Clark v. Thompson, 3 Jones, 274; Stuckey «. Keefe's Exrs. 3 Casey, 397; Martin v. Jackson, 3 id. 504; Bates -». Seeley, 10 Wright, 348. " If the wife survives the husband she takes the estate discharged of his debts, for the reason that she does not take it under or through him, but by virtue of the paramount grant in the original conveyance. And though the husband's interest may be sold under execution daring coveture, (Stoebler v. Knerr, 5 "Watt. 181.) yet if his creditors levy upon the estate in liis lifetime, and sell it as his propcrtj^, the wife may recover it on his death in an action of ejectment. Brownson v. Hull, IG Vt. 309." We may add here that if a sale as against the husband, on execution against him can affect the possession during the joint lives of the husband and wife, it can only be so, upon the principle that during that time her possession is merged in his. French v. Mehan, 56 Penn. St. 288, 289. 3 Hayncs v. Baker, 5 Ohio St. 253; Thomas v. Marshall, Hardin (Ky.) 30; Tyrec v. Williams, 3 Bibb. 366; Allen v. Saunders, 3 Bibb. 94; January v. iinulford, 4 Bibb. 560. * Ilayncs v. Baker, 5 Ohio St. 353; Jackson v. Williams, 10 Ohio, 69. EXECUTION SALES OF REM. rHOrEKTr. 201 § 553. In Indiana, by statute, lands fraudulently conveyed away by a judgment debtor are subject to execution sale, with- out first being uncovered in equity from the fraud. § 554. And so lands holden in trust for another may be levied and sold for the debt of the person for whose benefit they are held.^ § 555. In Iowa, by statute, equitable interests in tlie realty are liable to execution sale, and judgments are liens thereon. 2 In the case here cited the court say: "Tlie question involves no principle not heretofore settled by this court. First — It lias been held that the interest of the judgment debtor in real estate is vendible upon execution, and the judgment itself operates as a lien thereon. Harrison v. Kramer et al., 3 Iowa, 543; Blain v. Stewart, 2 Iowa, 378." And in Harrison v. Kramer et al., the Supreme Court of Iowa hold that "a judg- ment is a lien upon the real estate of the defendant, and by real estate is meant all right thereto and interest therein, equitable as well as legal. "^ \'. TUE HOMESTI^AD. § 550. Though judgments at law are ordinarily a lien on the lands of judgment debtors, yet they are not so as to the lands occupied as a homestead; and if the homestead be aban- doned by sale, conveyance, and delivery of possession by the debtor whilst a judgment exists against him, the lien thereof does not attach to the premises, but the grantee takes a clean title to the same so far as regards the judgment, and an execu- tion sale thereof under the judgment is void.^^ * Tcvis V. Doe, 3 IncL 129, 131. " Crosby v. Elkader Lodge, IG Iowa, 399, 40.j ; Ilarrisou y. Kramer, 8 Iowa, 543 ; Blain v. Stewart, 2 Iowa, 378. ^ Harrison v. Kramer, 3 Iowa, 543, 5G1. The title, when perfected h\ patent, to lands sold on execution when the estate w^as but inclioate, inures to the benefit of the execution purchaser, and by relation invest.^ him witli the fee. Cavender v. Smith, 5 Iowa. 157. •* Morris v. Ward, 5 Kan. 239; Lamb v. Shays, 14 Iowa, 5G7; Cummins t;. Long, IG Iowa, 41; Revalk v. Krsemer, 8 Cal. 6G; Wiggins «. Cliance, 44 111. 175; Green v. Marks, 25 111. 221; Fishback v. Lane, 36 111. 437; Bliss ^. Clark, 39 III. 590. 202 .iUDICLVL A2>ID EXECUTION SMACS. § 557. Tlic same doctrine is licld in Iowa. The lien bei'ng the creature of the statute, it can only apply where the statute applies it. The law giving the lien and the law granting the homestead are to be construed together. ^ A judgment lien can only be co-extensive with the right to enforce it.^ § 557. In the case cited from 5th Kansas, the subject is discussed by Judge Valentine with equal ability, and the same conclusion is arrived at as by the Supreme Court of ' Lamb v. Shays, 14 Iowa, 5G7; Cummins v. Long, IG Iowa, 41. - Scriba v. Dean, Marshall, Justice, 1 Brock. IGG ; Bank of U. S. v. Win- ston, 2 Brock. 252 ; Shrew «. Jones, 2 McLean, 78 ; Lamb v. Shays, 14 Iowa, 5G7; Bliss v. Clark. 39 111. 590. The learned court in Iowa, BALDWrs', Justice, dispose of this subject in the following forcible language: "The section in relation to the liens of judgments of the Supreme and District Courts, and the one giving to the owner of the homestead the exemption, were passed by the Legislature at the same time ; the one giving to the judgment creditor a lien on the lands of the defendant, and the other denying Iiim the right to enforce it so far as the homestead is concerned. The right of the judgment to seize or to enforce his judgment by selling the lauds of the debtor exists only by force of the statute, and is regulated altogether by its provisions. The lieu of a judgment upon lands in this state being conferred by statute, it can only have such force as is given thereby, and it can only attach and become effective in the manner, at the time, and upon the conditions and limitations imposed by the statute itself. A lien without the power to enforce it carries with it no advantage to the owner thereof. It cannot be enforced as against the homestead, because it is exempt from judicial sale. It is inoperative and cannot be otherwise as long as the homestead is used as a home. Construing the two sections together, having been passed at the same time by the Legis- lature, we think that it could not have been designed that the lien should ever attach uj^on property that Avas declared exempt from judicial sale. This exemption exists only so long as the homestead is occupied and used as a home. The moment it ceases to be used as such, the lien attaches, the same as it attaches against property acquired by the judgment debtor after the judgment is rendered, and the priority of liens can be determined in the same manner. If, therefore, this lien does not attach so as to be effective against the owner, how can it affect the rights of a purchaser of the homestead propertj^ ? The right of exemption continues until the sale and delivery of the deed to the vendee, and the lien cannot attach until after sale and delivery, nor until after it ceases to be occupied by the owner. Prior to this the vendee's riglits become absolute." Lamb r. Shays, 14 Iowa, 5G9, 570. i;x]':cuTiON sales of kicai. rKorjajxv. 203 lowa.i XliC same is substantially the niliii Ilocldiill v.. Ilanna, 15 How. 189, 195, 19G, 197; Adams v. Dyer, 8 Jolins. 347, 350; Waterman v. Ilaskin, 11 Johns. 228; llalstcad v. Ilaskin, ib. ' Bouton V. Lord, 10 Ohio St. 454. t Brasficld r. AVhitakcr, 4 Hawks, 309. 212 JUDICIAL AND EXECUTION S.il.ra. orty, it cannot be immediately readied by the execution, the amount of the writ may, in such case, be made out of the ]M'operty of the surety. The creditor is not bound to remove the obstacles that prevent a levy of the principal's property. ^ § 5S3. Property placed by a court of competent jurisdiction in the hands of a receiver, whether rightfully or wrongfully so ])laced, is in legal custody, and is not subject to execution. " To permit it to be levied and sold," say the Supreme Court of Pennsylvania, "would at once raise a conflict of jurisdic- tion."^ § 584. In Minnesota, it is held that where a judgment is a lien upon real property, no formal levy of an execution emanat- ing from such judgment is necessary to be made on such prop- erty as preliminary to execution sale thereof; and that the ])rovision of the statute of that state which declares that " until a levy property is not affected by the execution," applies to a levy upon personal property only.^ § 585. That court hold also that where a lev}'- is required the sheriff is not bound to return the particular facts consti- tuting the levy; that the general return that he "levied upon " property, is sufficient, and cannot be disputed except in a pro- ceeding directly against the officer or his sureties for a false ]-eturn.-^ § 586. A levy grossly excessive will be deemed fraudulent, and a sale thereon will be set aside ; and where on such levy a sale of lands en masse is made, without its appearing that the land was first offered in less parcels, the inference will not arise that sucli was the course pursued by the officer, but rather the reverse thereof." § 587. A levy of property of the value of eight hundred dollars for a claim of twenty-one dollars is grossly excessive Clicatham v. Brien, Head. (Tenn.) 5.j2. "■ Robiiisou V. Atlantic & G. W. K. li. Co. GG Pcun. St. IGO, 1G2; 3 Story, Eq. Jur. Sec. 83^. = Tallies v. Brawley, 3 I^Iiiin. 277; Folsom v. Carli, 5 Minn. 833, 337. * Tallies v. Brawley, 3 Minn. 277; Tvliorcrr. Terrill. 4 Minn. 407; Folsom V. Carli, 5 Minn. 333." ^ Cook V. Jenkins, 30 Iov,u, 452. KXKCUTION SALES OF KEAL ritOrEKlT. 213 and oppressive. In the language of tlie court, in Cooh f. Jenkins,''- it is "a fraud in fact upon defendant," and "we know of no principles of equity that will sustain proceedings which work such gross injustice and oppression, except in cases where innocent parties claim rights under them." III. The Kotice of Sale, and Eetukx. § 5SS. " The purchaser depends on the judgment, the levy, and the deed. All other questions are between the parties to the judgment and the officer selling."^ § 5S9. It matters not then, as respects the rights of a lona fide purchaser at sheriff's sale, whether there be a legal notice of the sale,3 or a return of the officer scliine:.* And thouc direct- ory only. CHAPTER XVII. THE SALE. I. By wnoii TO EE Made\ II. How TO BE Made. III. Who May kot Buy. IV. Sales Ikregulak, oil U^■DEIl Ikkegul.m: Phoces.s or Judo- MENTS. Y. Sales Made After Death of Executiox Defexdant. VI. Sales whex there is a Valuation Law. Vll. Sales at Avnicii the Execution Creditor is Purchaser. Vlll. Sales Made After Return Day op the Execution. IX. Sales to Third Persons; Bona Fide Purchasers. X. Void Sales. I. By v/iiom to ee Madk. § 502. If the direction of tlie writ is simply to tlic sheriff or officer as sncli, then it may be executed by himself or by his deputy; but if directed to the officer by his personal name, as well as by his title, then he ranst execute it himself in person.^ In the case cited from 2d "Washington, the court say: "This is a writ directed to the sheriff, which means as well the deputy as the high sheriff. It is a Avrit, and all writs may be executed by a deputy sheriff. It is not a judicial act; it is not a case excepted from the .general authority given to deputy sheriffs, and, therefore, I can see no reason why he may not execute the inquisition."^ § 593. In the same case the court lay down the general rule to be, in the absence of statutory regulation to the contrary, that where the " process " is directed to the sheriff generally, and not by his name, if the high sheriff be not required by the command of the writ to go in person, he may act by ' 8 Bac. Abt, Uudcrslieriff, G7G; Wroc v. Harris, 3 Wash. C. C. 120; Til- lotson V. Cheatham, 3 Johns. G3. MYroe v. Uarris, 3 Wash. C. C. 120, 127; Tillotson v. Cheatham, 2 Johns. G3. (215) 21 G JUDICIAL AXD EXECUTION SALr:S. dcpiit}'. ^ The term " j^rocess " iTsed by the court is a coiniDrc- licnsivc term,' broad enough to cover cases of executions gen- erally. The execution of an clerjit is referred to by the court as v.-itliin the powers of the deputy, which, as to the exercise of power, very nearly corresponds with the act of selling on execution, where the latter practice prevails. § 594. A sheriff cannot sell on an execution in which he is plaintiff, nor in liis own behalf, where he has purchased the benefit of the writ.^ § 595. Under the act of Congress of 1789, it is held by the United States Supreme Court that a United States marshal may proceed to sell lands on execution after his removal from office if the writ was in his hands at the time of his removal, and that the sale will be valid, if in other respects unexcep- tionable. Tlie writ, in the particular case referred to, was a venditioni exponas and was in the possession of the officer at tlie time of his removal. % 59G. The act referred to reads, in this respect as follows: " Every marshal or his deputy, when removed from office, or when the term for which the marshal is appointed shall expire, shall have power notwithstanding to execute all such precepts as may be in their hands, respectively, at the time of such removal or expiration of office," etc., and it is held by the United States Supreme Court, iji the same case, that the act of May 7th, 1800, does not repeal the clause in that of 1798, above recited; that in respect to the same subject it is merely cumulative in the remedy afforded.^ § 597. The case of Miner v. Cassat^ was an action of eject- ment involving the validity of the marshal's sale in the case previously cited of DooliUle v. Bryan^ as to the power of the marshal to complete execution of a writ in his hands after removal from office. The state court of Ohio, conforming its ' Wroc V. Harris, 3 Wash. C. C. 120, 127, 128; Tillotson «. Cheatham, 2 Johns, G:3. - Riner v. Staccy, 8 Ilumpli. 288; Chambers v. Thomas, 3 A. K. Marsh. 53G; ]V[ay v. Waters, 1 McCord, 470. 3 Irwia'W. Brian, 14 How. 5G3; Minor v. Cassat, 3 Ohio St. 108. ■» 3 Ohio St. 198. ICXECUTION SALES OF KI'LiL I'KOI'EETV. 217 decision to that of the United States Supreme Court, sustained the power of the ex-marshal to sell, and held the title under the marshal's sale valid in the action of ejectment. The Supremo Court of Ohio affirmed the decision of tlic court below, thereby holding the ruling of the United States Supremo Court on the subject conclusive. § 598. By the constitution of our respective state and fed- eral judiciaries, the United States Court is the proper and controling tribunal to decide upon the effect of the enforce- ment of its own process. Hence its decision was rightly defer- red to by the state court. II. How TO BE MAr>E. g 599. Execution sales are to be made at public auction;' for money in hand," and to the highest unconditional bidder. ^ They must be made by the officer himself or by his geiieral deputy, as we have seen under the last preceding head. § COO. When the land is divided into several separate par- cels, though of one and the same tract, tlie several tracts can- not bo sold together as in a body, but must be sold separately with suitable identity of the several lots. If sold in the aggre- gate, the court, on motion, will set the sale aside. " Sales iu mass of real estate held in parcels are not to be countenanced or tolerated."-* § 601, And so, if the tract be an entirety, it is the duty of ' 3 Bouvier, 581. '■^ Noy, Miii'. Ch. 43 ; Mumford v. Armstrong, 4 Cow. 5o3 ; GrifRu ■». Thompson, 2 How. 244; Swope v. Adery, 5 Ind. 213; Williamson v. Berry, 8 How. 544; Iluslimaclier v. Harris, 2 Wrip;lit, 498; B'lglcy v. Rislier, (J3 Pcnn. St. 152; Sauer «. Steinbaeur, 14 Wis. 70. = Swopo V. Adery, 5 Ind. 213. '' Jackson v. Newton, 18 Johns. 355; McLaughlin v. Scott, 1 Bin. 61; Wheeler v. Kennedy, 1 Ala. 292 ; Adams v. Kiser, 7 Dana, 208 ; Garrett v. Moss, 20 IlL 549; Tyler v. Wilkinson, 7 Ind. 450; Phelps -y. Conover, 25 111. 309; Meeker v. Evans, 25 111. 322; Piel v. Brayer, 30 Ind. 332; Winters V. Buford, G Coldw. 328. In Indiana, selling in parcels is required by statute, and is alike applicable to mortgage sales or sales on execution. 30 Ind. 332. 218 JUDICIAL AND EXECUTION SALES. tlie officer to sell in parcels, if susceptible of division, unless the sale of the whole is necessary to satisfy the writ.^ § G02. Though it is the duty of the officer to sell property in the exercise of a fair discretion and to the best advantage, so as to make the debt demanded by the execution without unnecessary sacrifice of the debtor's property ^^ yg^;^ having levied on lands which were then but one body, but which after levy and before sale are divided by the debtor into several lots, the sheriff is " not bound upon," say the court, " to sell the lots separately," according to such subdivision. lie may exercise in respect thereto an honest discretion, ^ § 603. In New York it is held that where premises are owned by several execution defendants in the same execution, their separate interest may be sold together at once, unless some one of them, being entitled to redeem from the sale, require the separate interests to be sold separately. If so required it must be so sold, under the jS'ew York statute.'*, § 604. In Ileicson v. Deygerf^ it is held by the Sujoremc Court of New York that, " The projoer course, both on sales of real and personal property (on execution,) is to sell only so much of the property charged as will probably satisfy the execution, and which can conveniently and reasonably be sold separately. A party who sells under a power is not bound to sell at once all the projDcrty bound by the power, and in many cases it would be an act of great oppression." It was also held in the same case that if he sells the whole to satisfy a j^art of the charge upon it, that he cannot sell it again or a second time to satisfy newly matured and growing installments, unless it be redeemed by the execution debtor. § 605. To avoid exhausting the lien by one sale only, the sale should be of only so much of the proj^erty as is requisite ' Kinny v. Noble, 51 111. 113, 121; Bcny v. Griffetli, 2 Ilarr. & Gill. 337; Ilcwson V. Daygert, 8 Johns. 333; Winters v. Buford, G Coldw. 328. "Kiser v. Ruddick, 8 Blackf. 382, 383; McLean Bank v. Flagg, 31 111. 290; Phelps v. Cowen, 25 111. 309. ^ Kiser v. Ruddick, 8 Blackf. 382, 383. * jSTiclson v. Nielson, 5 Barb. 5G5. * 8 Johns. 333, 335; Davis v. Abbott, 3 Ind. 137; Wheeler v. Kenedy, 1 Ala. 292; Meeker ?). Evans, 25 III. 322; Day v. Graham, 1 Gilm. 435. EX EC en ox salp:s of eeal rEorEH'iT. 219 to satisfy the amount due. But the court will not interfere by injunction to prevent a second sale. Tlie party Laving title lias his remedy, if injured, and no execution sale of the realty will affect the title if the lands be not subject to sale on execution.^ § 60G. In some of the states it is hold that if more be sold on execution than will satisfy the writ, that the sale is void.^ But if the excess be very small and results from a mere mis- take in calculation, or other unintentional circumstance, the sale will not be set aside. ^ § 607. Ko bid may be received but what is unconditional; the officer himself, and not the bidders, is to fix the terms of sale.'* § COS. The officer selling has power to adjourn the sale and to sell on the day to which it is adjourned. On the subject of adjournment he has a sound discretion, which must be exercised fairly, and as to his judgment is best for all the j)arties con- cerned. ^ § 609. The case of Wolf v. Van Ifetre'^ involved the validity of an adjournment made by the attorney of the execu- tion plaintilf. The sheriff levied an execution on land, and gave notice of sale, but from some cause did not attend at the time and place of intended sale. Foreseeing his non-attend- ' Ilewson V. Dej-gert, 8 Johns. 333, 33.j. '^ Patterson v. Carueal, 3 A. K. Marsh, G18; Pepper v. Commonwealth, G Men. 30; Davidson v. McMurtr}^ 3 J. J. Marsh, GS; Carlisle v. Carlisle, 7 J. J. Marsh, 625 ; Stover v. Boswcll, 3 Dana, 235 ; Addison v. Crow, 5 Dana, 277; Adams v. Kiser, 7 Dana, 209; Isaacs v. Gearhart, 12 B. Mon. 231; Gearhart v. Thorp, 9 B. Mon. 35. =" Southard 's. Pope, 9 B. Mon. 2G3; Adams «. Kiser, 7 Dana, 208; Morri- son v. Bruce, 9 Dana, 216. ■* Swope V. Ardery, 5 Ind. 215 ; Chapman v. Harwood, 8 Blackf. 82. ' Swortzcll V. Martin, 16 Iowa, 519; Kelly ?>. Green, G3 Penn. St. 299; Phelps V. Conover, 25 111. 309; Tinkom v. Purdy, 5 Johns. 346. But see to the contrary Patten v. Stewart, 26 Ind. 395. This adjournment, however, was made atler the sale was enjoined. When the injunction was removed notice anew became necessary. In Louisiana, however, the power to ad- journ is denied by the settled doctrine in the courts of that state. ]\Iont- gomery v. Barrows, 19 La. Ann. 169. Nor can plaintiffs attorney adjourn the sale by authority of the officer. Wolf v. Van Metre, 27 Iowa, 34S. « 27 Iowa, 348. 220 JUDICIAL AND EXECUTION SALES. aiice lie autliorized the attorney of tlie execution plaintiff to adjourn tlie sale. The return showed that the sale was ad- journed by such attorney for want of bidders. It was adjourned ibr two days; sale was then made under the adjournment by the sheriff. The Supreme Court of Iowa, Beck, Justice, held tlie sale to be invalid. That court say: " To permit the sheriff to authorize the attorney of either party to discharge the duty for him, would open a wide door to fraud and abuse." And that it was "a gross irregularity for the sheriff to entrust his business with the plaintiff' 's attorney." § GIO. Executions are to be enforced and satisfied in their order of priority. In Indiana it is held that when different \v'rits enforceable under different laws are holden by the officer at one and the same time against the same defendant, each shall be enforced according to its legal effect and in order of priority. § Gil. The Supreme Court of Indiana, in Harrison v. Sipp,siij: "Where a sheriff has several executions in his bands, governed by different laws as to the terms upon which the property levied upon is required to be sold, it is evident that he cannot possibly comply, at a single sale, with the requisitions of each execution. If the property is divisible, however, he may sell under each a sufficient portion for its satisfaction. It would seem that in such case the obvious course, and the only one by which the law can be complied with i^ to commence with the execution in his hands first to be satisfied and sell enough under the law of the contract by s\-hich it is governed to make the sum demanded by it, and then to sell under the others, in their order, in the same way, until all are satisfied, or the property is exhausted. But when the property is not susceptible of a division this cannot be done." In the latter case, the same court hold, that "the sheriff should ordinarily proceed to sell first upon the execu- tion upon the oldest judgment, or for the payment of the debt first to be- satisfied out of the proceeds. He would thus com- ply with the law as far as it would be in his power to do so, and the least injury would be likely to result to the rig] its of the various parties." And the court further hold that if the EXECUTION S^VLES OF EEAL PROrEETY. 221 property be appraisable under the elder execution or older lien, tlien sale under the appraisement law as for the whole where the property is indivisible is legal if made in proper conformity to such law of appraisement. But if not so made, that the sale will be set aside. ^ § G12. It is not in itself an objection to a bid at a slieriif 's sale of lands on execution that it is made by letter, provided there be no unfairness about it, and it be publicly cried as bids usually are. If there be no advance on a bid so offered, the officer will be justified in selling on it, as he would be in sell- ino- on a bid orally made, all other circumstances being the same. "But the creditor has aright to insist on all the forms." If however the bid be not publicly cried at the appointed place of sale, but be received and privately noted in the house, instead of at the door of the place appointed, or there be other evidences of collusion or unftiirness, the sale will be set aside." And if in such case the return on the execution be of a sale to the person so bidding, and the certificate of purchase be given to and in the name of another and difierent person, the certifi- cate will be inoperative and void. In the language of the Supreme Court of Illinois, "there must be entire conformity in all these proceedings, in the return, the certificate, and the deed, and if they do not possess it they will be invalid. Davis V. JfoVickers, 11 111. E. 320." And that issuing the certificate to a different person than the supposed purchaser was a void act under Chap. 57, Sec. 12, E. S., 1845.3 § 613. It is uniformly holden in Illinois that where lands or lots which could be divided and sold in parcels are sold in a mass, such sale is irregular and is subject to be set aside. ^ § G14. The case of Greenup v. Stol'er'^ is adjudged to be ' 8 Blackf. 455. See also Bronson v. Kinscy, 1 IIow. 311. ' Dickerman i;. Burgess, 20 111. 266. lu this case the court say : " "Wc do not mean to be understood as objecting to receiving a bid by letter, but the officer must cry the bid, and if there be no advance on it he -would be justified in selling at the bid." = Dickerman v. Burgess, 20 111. 280; Davis v. McVickcr.s, 11 111. 320. * Phelps ?j. Conover, 25 111. 313; Day v. Grayham, 1 Gilm. 435, and 4 Gilm. 338; Ross v. Weed, 5 Gilm. 171 ; Stewart r. Gay, 5 Gilm. 442. » 13 111. 24. 222 JUDICLU-. AND EXECUTION SALES. no oxccptlou to the rule, for tliat in that case the sale ^vas of but a single quarter section, and it was not made to appear that it could have been advantageously divided, or that any sub- division of it would have satisfied the writ.^ § 615. When there is a body of land levied on which is composed of several contiguous tracts, each tract is to be offered separately, the officer using his best judgment as to subdividing into lots; failing thus to sell, he is to add the sub- divisions together, one by one, and offering them thus unitedly; and if not sold in this manner, then the whole may be sold together, on a reasonable bid, the particulars of which is to be reported in the officer's return.^ § 616. So, when the lands are situated in difierent town- ships and ranges, or the tracts arc otherwise disconnected, they are to be offered severally and separately, each one in like man- ner as above — ^first in smaller subdivisions as forties, and then in larger as eighties, and finally each tract separately as a whole, if not disposed of in parcels, and if there is a reasona- ble bid, the same that is each tract, to be sold in a body in this manner, and so on in like manner each tract, until the sum required be raised. The creditor may insist on a sale, and if sold under value, the debtor finds relief in the redemption laws. 3 § 617. In Minnesota the statutory provision requiring land to be sold in parcels, on execution sale, is held to be merely directory, and a sale in the aggregate being otherwise unobjec- tionable is valid. The injured party is left to his remedy against the officer selling.'^ § 618. In Wisconsin the sale in such case is voidable and may be set aside at the option of those in interest. ^ § 619. In California, a sale in mass was holden valid, though the general ruling there is to the contrary. There were several adjoining parcels sold together. The sheriff and purchaser ' Phelps V. Conovcr, 25 111. 813. 2 Ibid. " Ibid. * Tillman v. Jackson, 1 Minn. 183. " Raymond v. Tauli, 21 Wis. 531, 53-4; Bunker i. Hand, 19 Wis. 25S KXKCiniOX SALKS OF llllAI. VUOVKIVVY. 223 being ignonint of the subdivisions at tlio time of sale, and tlio conduct of tlie defendant being sucli as tended to mislead the officers; ho liaving sniTendered the hmd to the sheriff witliout informing liim tliere existed any subdivisions, and the sale was made according to the description which he furnished.^ But, quere, if it would not be set aside, if sold below value, on the application of other creditors, in case the debtor has no other property ? § G20, The ruling in Indiana, as to place of sale by a United States marshal], is that under the state statute adopted by the federal court, such sales arc to be made in the county where the land lie which are sold,^ These two decisions are by the respective state courts of those states wherein tlie questions arose in collateral proceedings. § 621. In Tennessee the rule is, in selling lands on execu- tion, that the sale be made, when practicable, in parcels, so as not only to obtain the required sum for the smallest amount of property, but also to the better enable the judgment debtor to redeem when the price of each lot is thus separately fixed. If sale be made in violation of the above principles, it is void- able, though not void, and will be set aside by the court on the proper application of those interested, including the holders of other unsatisfied judgments against the same judgment debtor. 3 § G22. If different parcels be sold e?i masse, the delivery of the deed to the purchaser, on application of the execution debtor may lie arrested by injunction; but on terms that he pay off the execution and costs with interest. ■* § G23. Sales may be made on several executions at once, ' Smith V. Randall, G Cal. 47. The court lay down the general rule as follows, Terry, Justice : "As a general rule the sales in mass, of land consisting of separate lots are not tolerated or countenanced in courts of justice. But this rule should not he extended so as to allow a dehtor, by misleading the officer with a false description, or by withholding informa- tion to invalidate a sale under execution, made in good faith, in the entire absence of fraud." (G Cal. 51.) * .Tenners v. Doc, 9 Ind. 461. ' ^T' inters v. Burford, G Coldw. (Tenn.) 328. * Ballance v. Loomis, 22 111. 82. 22:1: JL'DICI.U. AND EXECUTION SALES. *'It can do no harm (say the court) as the sheriff sells so nuicli as will satisfy all." If the amount bid fur the whole is more than will satisfy all the writs, then, little by little the cpantity of land may be redeemed by proper bidding. Therefore the officer can combine the writs and do equal justice to all the parties in interest. lie can afterward a]3ply the proceeds as the law may recpiire. So if part of the sale is for cash and part on credit, some of the writs being on judgments and some on rej)Ievin bonds, it only requires that the terms and j^ropor- tion of cash and credit respectively be made known to the bidders. 1 § 624:. In Indiana it is provided by statute, that '*' if the estate shall consist of several lots, tracts, and parcels, each shall be offered separately, and no more of any real estate shall be offered for sale than shall be necessary to satisfy the execution, unless the same shall not be susceptible of division." § G25. The supreme court of that state hold that it is well settled that if the sheriff, in violation of such statute, offer and sell several distinct tracts or parcels of land in one body, the sale is void; and that the provisions of the statute apply as well to sales on foreclosure of mortgages as to sales on ordinary execution. 2 § C2C. And when the sheriff's return and record showed that more than one parcel were sold as an entirety, the sale was holden void in the hands of a third party claiming under the execution purchaser, who was also jDlaintiff in execution. ^ § 627. If the land consist of several tracts or parcels, it is the imj^erative duty of the sheriff (say the court) under said statute to offer the parcels separately; and if but a single tract or body, and is susceptible of division without injury, and the sale of the whole is not required to satisfy the execution, he is to divide it, and offer at one time only so much of it as may ];e necessary to satisfy the judgment, interest and costs. -^ ' Locke V. Coleman, 4 Mon. 817; Sonthard v. Pope, 913 Mon. 2G3. 2 Piol «. Braycr, 30 Ind. 332, 339; Sherry t. Nick of the Woods, 1 Ind. 075; Reed v. Diven, 7 Ind. 189; Eauks v. Bales, 10 Ind. 423; Tulcr v. Wil- kinson, 27 Ind. 450. 2 Piel V. Brayer, 30 Ind. 332, 339. * Piel V. Braycr. 30 Ind. 332. EXECUTION S.VLES OF EEAL I'lIOPEiriT. 225 § G2S, Under that statute it is also held that to enaljlc the court to cany out its requirements, the court should, in mort- gage foreclosures for interests or installments only, and other installments are not ^-et due, first ascertain if the ])rop- erty can be sold in parcels, without injury, so as to enable it to determine on the proper decree to render in the case. In case the whole is due, then the proper order is to sell the premises, or so much thereof as may be necessary to pay the debt and costs. ^ § 629. When judgments arc liens upon real estate, such liens confer no manner of right or interest on the judgment creditors in or to tbe land, but merely tlie prior right to make out of the land the debt secured by the judgments. ^ § G30. Subject to this right- of the creditors the judgment debtor may sell and convey his land. If sold and conveyed in parcels to different persons, and at different dates, during the life of the judgment liens and executions sales thereof be ■ afterwards made to satisfy such judgments, the lands are to be levied and sold in the inverse order of their sale and convey- ance by the debtor. ^ Upon the same principle, if part only of the lands be sold by the judgment debtor, then the remain- ing part is the first to be sold to satisfy judgment liens.* § C31. If a regular and sufficient deed of lands be made and delivered, but afterwards before resort thereof be volun- tarily destroyed by the parties, it nevertheless confers the legal title on the grantee; and if no reconveyance be made, then a judgment subsequently rendered against the grantee becomes a lien on the land, and execution sale and deed thereon will convey the title to the purchaser at the execution sale.^ ' Piel V. Brayer, 30 Ind. 340; Harris v. Makepeace, 13 Ind. 5G0; Smith Piersc, 15 Ind. 210; Benton v. AVood, 17 Ind. 2G0. « Oilman v. Brown, 1 Mason, C. C. 221. 3 Stuyvesant v. Hall, 2 Barb. Cli. 151, 155; Ins. Co. v.Milncr, 1 Barb. Ch. 353; Marshall u. Moore, 3G Illinois, 321 ; Mason ■». Payne, 1 "Walker Ch. 459; Snyder v. Stafford, 11 Paige, 71; 'Relfc v. Bibb, 43 Ala. 510. * Clowes V. Dickinson, 5 Johns. Ch. 235; Clowes v. Dickinson, 9 Cow 405; Ilurd v. Eaton, 28 111. 122. » Parshall v. Shirts, 54 Barb. (N. Y.) 99. 15 220 juDiaAL AND l:x^:cL•TIo^' saltcs. § 632. It lias been Iield that by the mutual consent of plain- tiif and defendant, an execution sale may be made on a credit instead of for cash in hand. That it will be none the less the sale of the officer, or execution sale, in its nature and effect: and that therefore the failure of title to the property purchased at such sale will be no defense to an action on a note given for the purchase money. ^ § 03?). Xor is such ruling at all at variance with the doc trine that the purchaser may recover (in equity) from th( execution debtor, on it transpiring that the debtor did not owi the property sold, for here the note is to the sheriff or to plain tiff in execution. § 634. If the notice be to sell on one execution only, and the officer has additional ones against the same defendant at the time of the sale, he cannot, without other notice of sale as such additional executions, state the additional executions in his certificate of sale or in his deed. It is as to such other writs, if such course be taken, a virtual selling without notice. § 035. The return, certilicate, and sale should be based upon the writ', under which the notice is given; and the amount sold for is to be correctly stated therein, so those entitled to redeem may know the amount to be paid.^ The fund raised will then be subject to the order of the court as to its aj^plica- tion on the several writs. ^ § 036. Though an officer holding an execution against sev- eral co-defendants will be bound, as in other cases, to first proceed against the personal property, yet he is not compelled to first exhaust the personal effects of each one of the defend- ants before j^roceeding to sell the lands of either; but it ie- his duty to first exhaust the personalty of each one of sucl defendants, whose land he undertakes to levy and sell before sc proceeding against the land.-* § 037. If the return and other evidences of sale of several lots of land sold on execution are silent as to the manner of ' Killgorc v. Pcdew, 1 Strobt, 18. * Mascroft v. Van Antwerp, C Cow. 334. ' Wiley V. Bridgman, 1 Head, G8. * Faris v. Banton, G J. J. Marsh. 235. EXECUTION SAL]:S OF REAL TKOrERTV, 227 sellliif^ tlicm, tlien tlio presumption is that the ofliccr did liis duty and sold tlicm several]3\i III. Wjio may xot 1>uv. § G3S. " No man can. serve two masters." lie wlio acts for others will not be permitted to act in the same matter for him- self. He -who sells for others, or on their account, cannot buv for himself. The two relations of seller and buyer cjmnot exist at one andt the same time in one and the same person in reference to the same subject matter. The j^i'luc-ijile is the same whether the sale be made in jiroccedings at law or in equity. Such sales are void.^ § G39. It has been held, however, that by consent of the execution debtor the officer selling may buj-.^ But certainly not, if to the prejudice of other creditors. lY. SaiJ'IS Iekegulak ok under Irregular Pimcess, or Judgments. § C-iO. Mere irregularities will not avoid an execution sale, liiirly made, to a loiiafide purchaser. To render it void there must be wanting some one of the substantials which are indis- pensable to a valid sale.* ' Love V. Chcrrj', 24 Iowa, 210. -McConncll v. Gibson, 13 111. 128; McLeod c. McCall, 3 Jones (N. C.) 87 ; IMichoud v. Girod, 4 How. 503 ; Rcmick v. Butterfield, 11 Foster (N. H.) 70; Wormsly p. Wormsly, 8 "Wheat. 421; Harris v. Parker, 41 Ala. G04; Rice «. Cleghorn, 20 lud. 80; Iladdix v. Haddix, 5Litt. 202: WiLson t. Troup, 2 Cow. 19G ; Cruse v. Steffen, 47 111. 112, and ante chap. xi. ^ Lazarus o. Bryson, 3 Bin. 54. * Allen V. Parish, 3 Ham. (Ohio) 187; Hopping v. Burnam, 2 G. Greene, 39; Jackson v. Rosevclt, 13 Johns. 97; Jackson v. Delancy, 13 Johns. 537; Woodcock V. Bennett, 1 Cow\ 711 ; Jackson v. Bartlett, 8 Johns. 3G1 ; Lan- des V. Brant. 10 How. 371 ; Childs v. McChesney, 20 Iowa, 431 ; Herrick c. Graves, IG Wis. 157; Simpson v. Simpson, G4 N. C. 427; Cunningham r. Felkner, 2G Iowa, 117; Hubbard v. Barnes, 29 Iowa, 239; Durham t. Ileaton, 28 111. 2G4; Maurier v. Cook, IG Wis. 4G5; Hinds v. Scott, 11 Penn. St. 19: Wheat v. Sexton, 4 Wheat. 503; Cavender v. Smith, 1 Iowa, 30G; Lovcl B. Powell, 5 Ala. 58; Ware v. Cradford, 2 Ala. G7G; Stow«. Steele, 45 111. 328; Kinney v. Knoeble, 47 111. 417; Armstrong i'. Jackson, 1 Blackf. 210; Anderson t. Clark, 2 Swan. (Tenn.) 15G; Dunn v. ]Merri weather, 1 A. 22$ „UDICIAL AND EXECUTION SALES. § 04:1. About what arc the requisites to a valid sale on execution, as a general principle, there is some diversity of authorities. Some of the rulings are, that the party setting up an execution sale must show a valid judgment; valid w]-it of execution; a levy and deed; and that all else, when these are shown, is between the parties to the execution and the officer selling.^ Whilst in other cases it is holden that merely a valid judgment, and valid writ of execution, need be shown; and that if it does not appear whether there was a levy, and nothing to the contrary appears, the presumption is that the officer did his duty; and, therefore, where levies are holden to be necessary, the presumption of law arises that the officer did liis duty, and that a proper levy has been made;" but if no levy or return was really made, or notice of sale given, it would K. Marsh. 158; Philips v. Coffee, 17 111. 154; Hubbard v. Barnes, 29 Iowa, 239; Bunton v. Emerson, 4 G. Greene, 397; Williard «. Whipple, 40 Vt. 219; Butterfield v. Walsh, 21 Iowa, 97; Stein v. Chambliss, 18 Iowa, 474. ' Wheat V. Sexton, 4 Wheat. 503; Landes v. Brant, 10 How. 371 ; Landes V. Perkins, 12 Mo. 254; Allen v. Parish, 3 Ham. (Oliio) 187; Taylor x. Thompson, 5 Pet. 309; Butterfield v. Walsh, 21 Iowa, 97, 101; Slein v. Chambliss, 18 Iowa, 474, 47G, 477 ; Remington v. Linthicum, 14 Pet. 84; Sumner v. Moore, 2 McLean, 59 ; Thompson v. Philips, Bald. C. C. 243 ; Shepherd v. Rowe, 14 Wend. GOO; Griffith v. Bogart, 18 How. 158,104; Kinney v. Knoeble, 47 111. 417; Crane v. Hardy, 1 Mann (Mich.) 50. 2 Carpenter v. Doe, 2 Ind. 405, 407; Smith v. Hill, 22 Barb. 050; Mercer w. Doe, G Jnd. 80; Webster v. Smith, G Mon. 110; Lawrence «. Speed, 2 Bibb, 401 ; Draper v. Bryson, 17 Mo. 71 ; McFadden ?j. Worthington, 45 111. 302, 300; Dunn i\ Merri weather, 1 A. K. Marsh. 158; Martin v. McCargo. 5 Litt. 293; Smith ti. Mormon, 1 Mon. 154; Riggs v. Doole}^ 17 B. Mon. 239; Wilson V. McGee,2A. K. Marsh. 002; Cox v. Joiner, 4 Bibb. 94; Furguson T. Miles, 3 Gilm. 358; Cooper v. Gilbraitli, 3 Wash. C. C. 540; Bowen v. Bell, 20 Johns. 338; Whatley v. Ncwsome, 10 Geo. 74. In Whatley v. New- some, 10 Geo. 70, the court saj', Lumpkin, Justice: "Where a party relies on sheriff's title, it is only necessary to produce the execution, with the sale under it, and the deed made in pursuance thereto, and prove either title in the defendant or possession subsequent to the rendition of the judgment." And 3 Wash. C. C. lays down the rule that the claimant under a sheriff's deed " need not show any other title than a judgment, execution, and sheriff's deed." In Cooper v. Galbraith, 3 Wash. C. C. 550. the rule is laid down by Washington, Justice, that "the purchaser under an execution, in an ejectment against the defendant in the execution, or one claiming under him, need not shov.- any other title than a judgment execution and a sherifl's deed." EXECUTION SALES OF KFAL TKOrERTY. 229 not affect an hona Jide j^urchaser. Such are tlie general rulings on tlie subject,^ while yet another class of cases hold that when the judgment on which the execution issues is in law a lien upon the land to be sold, then no levy whatever is necessary ; and that as a consequence arising therefrom, the production of a valid judgment, execution, and a sheriff's deed purporting to have been made on a sale under such execution, is all that is required.- § G42. In the case first cited, tlie court, Bkoxsox, Justice, cite Catlui v. Jackson, 8 John. 540. But on reference to that case it is seen that the necessity of a levy was not therein involved, and that a levy was in reality made, and a return thereof setting it out at large. The real objection was that the officer did not, on levying, take corporeal jiossession of the land which the court held was not only unnecessary, but was impracticable. That it was unlike a levy on jDcrsonal property M'herein the possession accompanies the \ Herrick r, Graves, IG Wis. 157. " Brown v. IMcKay, IG Ind. 484. ' Stein V. Cliambless, 18 Iowa, 474; Simpson v. Simpson, C4N. C. 427. '' Ilerrick v. Graves, IG Wis. 157. s Stewart v. Severance, 43 Mo. 323. * Cunningham v. Felkner, 2G Iowa, 117. ' Hubbard v. Barnes, 29 Iowa, 239 ; and Chap, xviii. Collateral Impeach- ment. Revision of Iowa, Sees. 0248, 3249, 4105, 4107. KXECUTION SALES OF KEAL rKOrERTT. 237 Sales jlvde alter the Deatu of the Execuitok DEI•T•:^•I)A^■T. § GOT. At common law no execution conld legally issue on a judgment after tlie deatli of either of the parties, iDlaintift" or defendant, until the judgment was, by scire facias revived in favor of or against the administrator or executor of the deceased party, plaintiff or defendant, as the case might be, except where otherwise provided by statute. Such is the general law yet of the several states where the common law prevails. But as to the eftect of execution and sale thereon where the execution thus issued without revival, after the death of a party, there is a difference of opinion. In some of the states they are holden to be absolutely void, in others only voidable. ^ The weight of authority is that they are void. 2 Yet each of the different rulings arc paramount authority in the respective states wherein they arc made. In some of the states the practice of revival still exists; in others statutory innovations ^ Doe V. Hamilton, 23 Miss. 49G; Butler v. Ilayncs, 3 N. II. 21; Spoer v. Sample, 4 Watt'^, 307 ; Lucas v. Doc, 4 Ala. G79 ; Abbcrcrombe v. Hall, G Ala. 057 ; Woodcock -y. Bennett, 1 Cow. 711. 2 Stymcts V. Brooks, 10 Wend. 207; Hildretli v. Thompson, IG Mass. 191; Massie v. Long, 2 Ham. 287; State v. Pool, G Ired, 288; Gwyn v. Latimar, 4 Ycr. 22; Abbcrcrombic v. Hall, G Ala. 657; Webber v. Keunj', 1 A. K. Marshall, 345; The State «. Michaels, 8 Blackf. 43G; Erwin •». Dundas, 4 How. 58; Brown v. Parker, 15 Illinois, 307. Speaking of common law proceedings, in Brown v. Parker, the court say, the weight of authority is that " proceedings upon an execution sued out after the death of one of the parties without first reviving the judgment for or against the proper representative, are absolutely void, whether their validity be drawn in question directly or collaterally." That "judicial proceedings cannot be carried on in the name of a dead man. There is as much necessity for a plaintiff as a defendant. The proceedings in cither case are as much arrested by the death of one as of the other." (Brown v. Parker, 15 111. p. 310.) In Erwin's Lessee v. Dundas, the Supreme Court of the L'nited States sum up the law of this subject in the following terms: " Upon the whole, without pursuing the examination further, we are satisfied that, according to the settled principles of the common law, and which are founded upon the most cogent and satisfactory grounds, the execution having issued and bearing teste in this case after death of one of the defendants, the execution was irregular and void, and tlie sale and con- veyance of the real estate of the deceased under it to the plaintiff was a nullity." 238 JUDiaAL AXD EXECUTION SALES. have been made. Again, "wliere innovations arc made, the practice of revival, and tlic statutory remedy, arc sometimes, if not always concm-rent, so that either may be pursued, and omission to pursue one or the other will result in the same consequences, to an execution and proceedings thereon without, as if sued out at common law without revival. All will be void or voidable according to the rulings above referred to in the different states. § 068. By statute, in Illinois, execution may issue after the death of the judgment debtor against the lands and tenements of the decedent without first reviving the judgment against the administrator or heirs, provided the plaintiff first give the executor or administrator of such deceased debtor three months' notice in writing of the existence of such judgment. If execu- tion issue and sale be made without first giving such notice, it is holden that the purchaser at such sale takes nothing, and the sale is void, so that no title passes under the deed of the sherift'. And if a notice be given, but describing the date of the judgment as of a different year than tlie date of the one on which execution really issues, the result will be no better; if sale be made no title will pass by the deed,i although it may have been intended to give notice of the judgment on which the writ reaEy issued, as was probably the intention in the case above cited. And a sale made on execution issued on a dor- mant judgment, after the death of the judgment debtor, and without revival by scire facias, is void, and wall not conier fyiy rights as ao-ainst the heir. § G60. The statute of Illinois allowing writs of execution to issue on judgments after the death of the judgment debtor, does not authorize their issuance on dormant judgments. § 670. "When judgment liens have become dormant by run- ning seven years, they must then be revived by scire facias before execution can legally issue. JSTor, under said statute, can execution issue in a like case, or even if the judgment be not dormant, after the death of the plaintiff, without the appointment of an administrator of such plaintiff, and record- ' Picket V. Ilartsock, 15 111. 279. KXKCUTION SALl!>! OF IIKAL I'lWI'EllTY. 231) ing the appointment in tlie court -wlicrc the judgment is. And in either ease, if tlic lien has expired by the intervention of seven years, from tlio date of the judgment, then, although execution has been issued M'ithin a year and. a day, the judg- ment must be revived from its dormant state before execution can legally go.^ § 671. If the judgment plaintiff die before execution issues, then, by the statute of Illinois, the personal representative of the decedent may have execution in his own name, by record- ing in the court where the judgment is the letters of adminis- tration or testamentary of such personal representative, (or may revive the judgment in his own favor by scire facias, and thus have execution;) but if, on the death of the plaintiff, the executor or administrator take out execution without so record- ing his letters in the court wdiere the judgment exists, or first making himself a party to the judgment, such execution, if neither the one or other of these previous steps be taken, will be void, and all the proceedings and any sale under it wil! likewise be void, and no rights will inure therefrom, ^ § GT2. Eut in case the execution issue and be levied during the lifetime of the parties, then the officer in charge thereof may proceed to sell notwitstanding the death of a party, and it will, at most, amount merely to an irregularity, but will not render the sale invalid. ^ § 673. And though, by statute, in Iowa, the presumption is in favor of sheriff's sales, by reason whereof the silence of the sheriff's deed as to whether the sale was made on an alias ji. fa., or on a venditioni exponas, would be presumed to have been made on the latter; yet the Iowa courts hold that on gen- ' Scammon v. Swartwout, 2.5 111. C2G. If llic jiulgment debtor be dead, the scire facias must make the heirs a party and give tbcm a day in court, after the lien has expired, as the title lias then vested in them, lb., and Turney v. Young, 22 III. 253. "" Brown v. Parker, 15 111. 307. 3 Sumner v. Moore, 2 McLean, 59; Wolf v. Heath, 7 Blackf. 154; Sprott V. Reid, 3 G. Greene, 489 ; Speer v. Semple, 4 Watts, 3G7 ; Butler v. Ilaynes, 3 N. II. 21 ; Butterfiekl v. Walsh, 21 Iowa, 97; Gamble r. Woods, 53 Pcnn. St. 158, IGO; Whcaton v. Sexton, 4 Wheat. 503. 24:0 JUDICIAL A^'D KXKCUTIOxN' SALKS. cr:il principles an irregnlarity in selling on alias instead of on a venditioni exponas, will not vitiate the sale.^ § GT4. And where a levy of a ji. fa. is made during the life of the execution defendant, the Supreme Conrt of the United States have holden that writ of venditioni exponas may issue after defendant's death, to complete the salc.^ § 675. And so, where sale on execution nnder the valuation law fails for want of a bid to the amonnt by law required, and the execution, after \eYj and such effort and failure to sell, is returned, if in the meantime the defendant in execution dies, a writ of venditioni exponas may legally issue without revival by scire facias, notwithstanding the death of the defendant, and a sale tliereon will be legal and valid. Such sale will con- fer on the purchaser the same rights in reference to the date of the lien as if it were made on the original writ and levy.^ YI. Sales wuex tiiekk is a Yaluation Law. § GTG. As respects valuation of the property, execution is to be made in accordance with the law in force at the date of the contract on which the judgment is rendered; and if the contract be made under a valuation law, then the sale on execution should conform to its provisions, although the law be repealed, before execution, or even before judgment.'^ § 677. In such case no bid, when the property has been appraised, should be received of a less sum than the relative amount of the appraised value required by the statute; and a ' Cliilds V. McChcsnej', 20 Iowa, 431; Butterfield v. Walsh, 21 Iowa, 97. ' Taylor v. Miller, 13 How. 287; Bleekcr v. Bond, 4 "VVaih. C. C. G. ^ Taylor v. Miller, 13 IIow. 287. This was a case broiip.ht np frora Mis- .sissippi, where the doctrine prevails in the state courts that such a sale is not absolutely void, but is only voidable in some direct proceeding, can- not be assailed successfully in a collateral proceedin.;^. Smith & IMont- gomory v. Winston, 2 How. (Miss.) 601; Drake v. Collins, 5 IIow. (Miss.) 253; Harrington v. O'Riley, 9 S. & IM. 216. ■» Bcw V. Wood, 3 McLean, 575; Coviell v. Ham, 4 G. Greene, 455; Bur- ton «. Emerson, 4 G. Greene, 393; McCracken v. Haywood, 2 IIow, G08; Hobson V. Doe, 4 Blackf. 487; Lane ^. Fox, 8 Blackf. 58; Harrison v. Siipp, 8 Blackf. 455; Law v. Smith, 4 Ind. 56; Tcvis ?;. Doc, 3 Ind. 129; Kenzie v. Bronson, 1 IIow. 311 ; Ilawley v. Hooker, 21 Ind. 144; McCracken v. Hay- ward, 2 IIow. 813; Collier r. Stonbaugh, 6 How. 21. EXECUTION SALES OF KEAL rr.OPEUTY. 24:1 sale for a less sum is void.i To make a valid appraisement all tlie appraisers must ordinarily agree.- § 67S. And so, in Iowa, it is iield in like manner tluit an execution plaintiff buying in satisfaction of liis own writ, at sheriff's sale made without appraisement, is chargeable with notice of the irregularity and takes nothing by his purchase. So likewise if the assignee of the judgment buy nnder like circumstances. The court decline to say what the effect in Iowa would be if the ])urchase was by a third party, as the question did not arise in the case before them; but held the purchase by the beneficiary of the writ as void.^ § 079. So in Sj)roU v. Held, and other cases, in Iowa, it had been previously held that whoever were the purchasers, such sales, without valuation, were void; that the want of valuation went to the power of the officer.'^ § GSO. As to the result of execution sales made in disregard of a valuation or appraisement laAV, the authorities are by no means uniform, some holding that such sales are void,^ whilst by others, though regarded as irregular, i\\Qj are held to jjass the title to the purchaser, as only voidable and as not opcii to collateral inquiry.*' § 681. We regard that as the true rule v.diich is laid doAni in a parallel case, Gantleifs Lessee v. Eiolng," by the Supreme Court of the United States, that if the law be merely directory as to the duty of the officer, then the sale and deed, witliout appraisement, will carry the title; but if the law contains an inhibition to sell without conforming to its requirements, then sales in disregard thereof are void. A sale on execution to ' Harrison v. Tlapp, 2 Blackf. 1 ; Tyler v. Wilkinson, 27 Ind. 430. - Evans v. Landon, 1 Gilm. 307. » Maples V. Nelson, 31 Iowa, 322; Sprott v. Reid, 3 G. Greene, 497. * Sprott V. Keid, 3 G. Greene, 497 ; Coriell v. Ham, 4 G. Greene, 455 ; Bur- Ion V. Emerson, 4 G. Greene, 393. ^ Doe V. Ilolman, 1 Smith (Ind.) 58; Evans v. Ashley, 22 lud. 15; Tyler f. Wilkinson, 27 Ind. 450. « Shafer v. Bolandcr, 4 G. Greene, 201; Butterfield i\ Walsh, 21 Iowa, 101. ' 3 Uow. 707, 71G, 717. 242 JUDiaAL AND EXECUTION SALES. satisfy pecuniary fines due to tlic state arc not subject to valua- tion laws J § GS2. An appraisement law in force in a state at tlic time of making a contract in sueli state, enters into and becomes a part of the contract, and execution sale tliereon in sncli state must be in conformity thereto.^ But in case of a contract made in a state other than that wherein the judgment is ren- dered thereon, then the sale is not to be in conformity to the appraisement law of the state where the contract was made, but in accordance with the law of the state where the judg- ment is rendered, as it exists at the date of the judgment.^ § 683. If one becomes replevin bail for another, in a judg- ment when and wdiere there is no law requiring appraisement of property to be sold under such judgment, and the debt is realized out of the bail, then no appraisement is necessary in selling the land of the j^rincipal on execution in favor of the bail to reimburse to the bail the amount paid by him if the sale be in the same state.* § 084. If judgment be rendered as an entirety on debts due by two distinct notes, one of which was executed under a valuation or appraisement law, and the other not, and land of the judgment debtor be sold without appraisement, and without the debtor's consent, upon a general execution issued on such judgment, and a conveyance be made accordingly, it is held ii\ Indiana that the grantee of the sheriff takes no title. ^ § 685. The mere omission of the sheriff in his return to show that the property was appraised is not conclusive; that fact is open to proof aliunde:^ moreover valuation will bo presumed if nothing appears in regard to it." § 686. Wliere it does not appear under what law the con- ' Walslic V. Kingor, 3 Oliio, 327. " Law V. Smith, 4 Ind. 50; Doe v. Collins, 1 Smith, (lud.) GS. ' Hutchins V. Barnett, 19 Ind. 15 ; Doc v. Collins, 1 Carter, (Ind.) 24; Doc t. Collins, 1 Smith, (Ind.) 58; Shaflcr v. Bolandcr, 4 G. Greene, 201 ; Stoiy, Conf. of Laws, Sec. 550. * Tevis V. Doc, 3 Ind. 129. ' Babcock v. Doe, 8 Ind. 110. « Thurston v. Barnes, 10 Ind. 289. ' Evans v. Asliby, 23 Ind. 15. EXECUTION SAJJ:S OF KI:AL I'KOrERTV. 243 tract ^vas made on wliieh tlie judgment is rendered, then the appraisement law in force at time and place of the rendition (»f the judgment must control. ^ § GST. In Indiana a valid levy of an attachment upon real estate is a lien from the date of the lev}'-, both in its own behalf and in behalf of other creditors subsequently attaching and thus come in to participate in the proceeds. Such lien overreaches the lien of judgments of subsequent date, rendered in proceedings instituted on ordinary process of summons. § GSS. When such attachments are prosecuted to judgment, and scA-eral executions issue thereon, some of which are subject to the valuation law and others not, and none of them have priority of another, then as the sale must necessarily be made on all the writs together, it may be made without valuation, and will, when so made, be valid. - § 6S9. When, under the valuation law, a sale of real estate on execution fails for want of a bid, to the amount required on valuation by the statute, by reason whereof the writ is returned on a venditioni expo7ias issues and sale is made thereon, such sale relates back to the original levy and is but a continuation of the i^roceedings on the original writ. It saves the lien as an alias Avould have saved it and is a valid sale. § GOO. If, in the meantime, the defendant die between the time of the levy of the fieri facias and the issuing of the writ ot venditioni exponas^ the latter may legally issue, notwith- standing his death, and a sale thereon is valid, and carries with it all the rights as to lien acquired by the original levy of the fieri facias or by the judgment. ISTo revival h^ fieri facias is necessary. ^ § G91. And where in Indiana, the execution debtor assented to a sale being made in disregard of the valuation law, upon a M'rit of execution which came within the terms of the law, ' Indiana \\. Way Co. v. Bradley, 15 Ind. 23; where by statute the rents and profits are first required to be appraised and offered, a sale in disre- gard thereof is void; ib. and Davis v. Campbell, 12 Ind. 192. - Shirk V. Wilson 13 Ind. 129. -Tajdor «. ]Miller, 13 How. 287. This case came up from Mississippi. where it is holden as has been seen, tliat in case of levy before a defend- ant's death, sale thereafter may be made without reviewing the judgment. 244 JUDICTAL AND EXECUTION SALES. and wliicli required valuation of tlie property about to bo sold, the courts of that state held that such defendant " could not be lieard to say that the sale was void for want of appraisement." In such case tlie court say: "Tlie maxim, 'that to which a person assents is not esteemed in law to be an injury' is appli- cable here." The sale thus made by consent, without tlic property bein^ appraised, was sustained by the court, as to that particular point as valid and good in law.^ § 692. The disqualification of 3nc of the appraisers of lands about to be sold on execution, as that he is not a householder, where tlie statute requires holders as appraisers, does not iu Iowa avoid an execution sale.^ Though the contrary is the ruling in some others of the states. ^ § 693. In Iowa the policy of the law is to uphold and main- tain execution sales; and the statute of Iowa does not require the qualiiication of appraisers to be embodied or shown in the sheriff's return. These, the court say, " rest in pais.''^ And if the validity of a sheriff's sale is made to depend upon the ([ualification and selection of the appraisers, the purchaser holds Ills title continually at the hazard of having it defeated by parole testimony. ^ § 694. By act of Congress of March the second, 1793, it was enacted that wherever by the laws of any state it was then required that goods taken in execution should be appraised, so in like manner there should be an appraisement when taken in execution on executions from the United States courts; and that in case the appraisers, on being summoned by the marshal, fail to attend, then the marshal should sell without appraisement. s This provision was in effect extended to all the states then in existence, by the act of May ]9tli, 1S2S, which latter act gave the United States courts power to adopt, from time to time, the forms and process of the several states wherein they were holden, and this act was extended to all the ' Stockwcll e. Byrne, 23 Ind. G. •^ Hill v. Baker, 31 Iowa, 302. = Eddy V. Kuapp, 2 Mass. 154; Wlilluian x. Tyler, 8 Mass. 284. " Hill V. Baker, 31 Iowa, 302, 30G. =• Brigbtley's Digest, 208. Sec. 2. EXECUTION SALES OF KEAL rROPEKTV. 245 states tlicn in existence by act of Congress of tlic first of August, 1S42.1 So that wlierever the state processes have been adopted by sucli acts, or subsequent acts of Congress, or by orders of court made in pursuance thereof, the appraisement laws of the sevci'al states in force at snch adoption are applica- ble to process iVom the United States courts. , § 095, The state law of the former is the law and guide of the United States courts in the several states in ascertaining the ri.o-hts of litiira-nts in the subject matter of litigation before them up to the tin^e of judgment; but not the law of practice and process before or after judgment unless adopted by act of Congress or by some order or rule of court. § 690. The remedy after judgment as to proceedings on execution conforms to the state laws in similar cases, if such laws are adopted, and not otherwise.^ But it is liolden that the adoption of the jjrocess and "proceedings thereupon," is also an adoption of the incidents attached thereto, as to valu- ation and exemption laws; provided they be not unconstitu- tional, whether the law of such incidents be exj)ressly adopted or not.-" § 697. In Amis v. Smith, ^ the United States Supreme Court, McKiNLEY, Justice, hold the following language: " We think this section of the act of 1S2S (referring to the third section) adopted the forthcoming bond in Mississippi as a part of the Unal process of that state at the passage of the act. And we understand by the phrase 'final process' all the vmts of execution then in use in the state courts of Mississippi which were properly applicable to the courts of the United States; and we understand the ]")hrase ' the proceedings thereupon,' to mean the exercise of all the duties of the ministerial officers of the state, prescribed by the la\vs of the state, for the pur- pose of obtaining the fruits of judgments. And among these ' Brightlcy's Digest, 2G9, Sec. G; Catlierwood v. Giipctc, 2 Curt. C. C. 94; U. S. V. Knight, 14 Pet. 301. " Wayman u. Southard, 10 Wheat. 1 ; U. S. Banlc v. ITalsteaa, 10 Wheat. 51 ; Amis v. Smith, IG Pet. 309, 313. 'United States v. Knight, 14 Pet. 301, S. C, 3 Sumner, 358; Amis t. Smith, IG Pet. 309, 313; Wayman v. Southard, 10 Wheat. 1. ' Amis y. Smith, IG Pet. 309, 313. 24G JUDICIAL A>T3 EXECUTION SALES. duties is to be found one prescribed to the slieriff directing liim to restore personal property levied on by liim to the deiendant, upon his executing a forthcoming bond, accoi'ding to law, and the further duty to return it to the court forfeited, if the defendant fail to deliver the property on the day of sale, according to the condition of the bond. These are cer- tainly proceedings n^^on an execution, and, therefore, the forth- coming bond must be regarded as part of the linal process." So likewise j^roceedings under appraisement laws and laws exempting certain property from sale, when adopted, present parallel cases with the above. V"II. Sali:s at which the Execution Ci:editok is Purchaser. § COS. In some of tlie states it is held that when the-execn- tion plaintiif is the purchaser, he is chargeable with all irregu- larities and omissions, and with full notice of all tilings mili- tating against the validity of the sale. In contemplation of law he is not, where there are irregularities, a hona fide pur- chaser. He pays nothing, ^ If the sale be not valid he may be reinstated to his rights on his judgment. In the case cited from 2 Ind. the irregularity was the selling without obtaining half the appraised value required by the appraisement law. How far this irregularity would have effected a stranger buy- ing at the sale, the court say they pass over as not within the case; but hold the purchase of the execution creditor void for such cause in an action at law. § 691). By statute, in Indiana, if the execution creditor is the purchaser of the land at sheriff's sale on execution, and the judgment under which the sale is P-iade be afterwards reversed, the sale is voided thereby ;2 and likewise if it be ' Harrison ■«. Doe, 2 Blackf. 1; Simomls t. Catlin, 3 Caines, Gl; Haydcn V. Dunlap, 3 Bibb, 2G1; Stcplicns v. Dennison, 1 Oregon, 19; JIcLcan Co. Bank 'o. Flagg, 31 III. 290; Keeling 'c. Heard, 3 Head. (Tenn.) 592; Picl c. Brayer, 30 Ind. 333; Twogood v. Franklin, 27 Iowa, 239. The same rule applies with equal force if tlie purchase is made by the attorney of the plaintiff. lb. But see ante ch. iv., pp. 59, 60, and also Wood v. Morehouse, 1 Lans. (N. Y.) 405, wherein every execution purchaser, including tho plaintiif, is declared a hona fide purchaser. ' Ilutchcns V. Doe, 3 Ind. 528; Doc v. Crocker, 2 Carter (Ind.) 575. EXECU'nON SALES OF HEAL rHOl'EUTV. 247 reversed only in part, as for costs, -svlierc tlie sale was for the costs as well as for the debt.^ And so it is lield, in Wisconsin.^ And on the other liand, the rulinpj, when he tahcs nothini^, is in his favor. In Illinois it is held, upon general principles, tliat if the execution creditor purchase land at sale on his execution by a description so indefinite that he takes nothing by the purchase, that, on application, the sale will be set aside and satisfaction vacated, and a new execution will be awarded. ^ § 700. In other and numerous cases it is held that the plaintiff, as execution purchaser, is protected as a purchaser honCL fide. In these cases, both in law and in equity, the execution plaintiff, as a general rule, when a purcliaser at sheriff's sale in discharge of his own debt; is protected to the same extent as third persons or strangers to the snit.'^ § 701. The courts hold that, " unless the equities of the adverse claimant arc so strong and persuasive as to prevent the application of the rule, which indisputabl}^ obtains as to third persons," the purchaser will be protected. Such is the language of the court in Butterfield v. Walsh., 21 Iowa, 09. § 7U2. In the case cited from 21st Iowa the court say fur- ther: ''Defendant had not even a deed. But if he had and tailed to record it, and plaintiff have no notice of it, then in the absence of equities such as wc have referred to, it would have had no validity against him, and his title would prevail. And certainly defendant can occupy no better position, hold- ing an equitable claim without any paper evidence of it, and without notice thereof to plaintiff. " ^ § 703. We have given the text of this case thus fully to show that the ruling of court is fully up to the point that the execution plaintiff, when a purchaser, is protected to the full extent, if the proceedings are regular, as is a third 2:>crsoii or stranger. ' Ilutchens v. Doe, 3 IikI. 538. « Corwitli V. Stale Bank, 18 Wis. 500. = Ilu-hes V. Streeter, 24 111. G47. * ]5utterficld v. Wiilsh, 21 Iowa, 99; AV'ood v. Cliapln, 3 Kan. 509; Evans 0. ]\IcGlasson, 18 Iowa, 150. s BiUterfield v. Walsh, 21 Iowa, 98, 99; Wood v. Morcliousc, 1 Laus. (N. Y.) 405. 248 JUDICIAL A2vD EXECCTION SALES. § 704. But it is also held in Iowa, liowever, tliat an execu- tion plaintiif who bn3'S at sheriff's sale on the execution in liis ftivor, after an appeal is taken from the jndgment on which his execution emanates, and with a knowledge of such an appeal, although no supercedeas bond he filed, is not a ho7ia fide purchaser. 1 Tliat if the judgment be reversed on such appeal, his title as executioner purchaser fails. And that it is equally invalid in the hands of his grantee, who buys after the reversal of the judgment. That such purchaser or his grantee do not come within the provision of the Iowa Revision, which declares that " property acquired by a Jjona fide purchaser, under a judgment subsequently reversed, shall not be affected by such reversal."- YIII. S.VLF.s Made Afiek the Hetuen Day of the EXECLTION. § 705. If the \c^\^^ be made before the return day of the writ, the officer may sell afterwards on the same writ without a renewal of process.^ § 70G. It is immaterial to the purchaser as to the validity of the sale, whether the sale be made before or after the return day; or at what time the return is made; or M'hether the re- turn be correct or incorrect; or whether any return be made at all, if the writ really be levied before the return day mentioned therein.^ "It is not the return of the officer that gives title to thcji purchase, but the sale," say the court in liemington v. Lintldcuin^ ' Two.f^ood V. Franklin, 27 Iowa, 239. " Revision of 18G0, Sec. 3541, ^ Remington v. Linthicum, 14 Pet. 84, 02; "Wlieaton v. Sexton, 4 "Wheat. 503; Barnard v. Stevens, 2 Ark. 420; Cliilds v. McChcsney, 20 Iowa, 341; Stewart d. Severance, 43 Mo. 322; Stein v. Chambliss, 18 Iowa, 474; Philips V. Dana, 3 Scam. 558; Wood v. Colviu, 5 Hill, 231. ^ Remington v. Linthicum, 14 Pet. 84, 92; Wlieaton v. Sexton, 4 Wheat. 503 ; Stewart v. Severance, 43 JIo. 322 ; Barney v. Patterson, G Ilar. & J. 204. » 14 Pet. 84, 92. EXECUTION SALES OF REAL PIIOPEK'IT. 249 IX. Sales to Third Peksoxs, Bona Fide Pukchasers. § TOT. Wlietlier a l)ona fide pnrcliaser at execution sale, lie being a third person and not the execution phiintitf, and buy- ing witliout notice, will take the estate free from unrecorded deed and prior equities, the same as an ordinary purchaser for value by private contract without notice, is a question upon which there is some conflict of authorities. But the later and better doctrine is that the execution purchaser takes the prop- erty against all such claims of which he has no notice.^ § TOS. The general rule has been extended further, and the prevailing doctrine is, as has been seen, that the sale is equally valid, as in favor of a purchase by the execution creditor.^ X. Void Execution Sales. § TOO. If the court from Mdiicli the writ emanates has not jurisdiction of the subject matter of the judgment then the execution sale is void. The purchaser takes no title. Having none himself, he is therefore incompetent to confer title by transfer to another. ^ § TIO. So a sale made on process issued on a void judgment,'* » Butterfield «. Walsh, 21 low.a, 97, 99; Parker «. Pierce, 10 Iowa, 227, 233; Lead. Cas. Eq. pt. 1, p. 75; Waldo ». Russell, 5 Mo. C87; Jackson v. Chamberlain, 8 Wend. G20; Den «. Rickman, 1 Green, 43; Ins. Co. v. Led- yard, 8 Ala. 8G8; Orth v. Jennings, 8 Blackf. 420; Heister i). Fortner, 2 Binney, 40; Killam «. Janson, 5 Harris, 4G7; Wood ■». Chapin, 3 Kern, 509. ■^ Sec ante, chapt. iv., pp. GO, G2, and Wood b. JMurehouse, 1 Lans. (X. Y.) 405. » Abby v. Ward, 8 Mass. 79. * Abby «. Ward, 8 Mass. 79; Webster t\ Reid, 11 TIow. 437; Wriglit ». Boone, 2 G. Greene, 457; Ilarslieyw. Blackmarr, 20 Iowa, IGl. In the case last cited, Ilarshey v. Blackmarr, 20 Iowa, IGl, tlie validity of an execution sale under a special foreclosure of a mortgase was involved. In the fore- closure proceedings under which the sale on execution was made, tlierc was neither actual nor constructive service on nor voluntary appearance of the defendant debtor; but an i;nauthorized and insolvent attorney entered an appearance in his behalf. In a proceeding to vacate the sale the court held that the judgment being void, the sale was a nullity and conferred no title. So in Webster r. Reid, 11 Ilov/. 437, the Supreme Court of the United States say: "These suits were not a proceeding in rem against the land, but were in personam against the owners of it. Whether 250 JUDICIAL AND EXECUTION SALES. from Avliatever c.ausc tlie judgment be void, tlie sale is also void. So also if the sale be made on a forged execution. ^ Or on an execution otherwise valid but enjoined." Or on an original execution issued after defendant's death, tlie judgment not liaving been revived. ^ § 711. But though a sale of lands npon a void execution is void, when made on it alone, yet if at the same time the sale be made on one or more writs that are valid, the otiicer selling on the several wu-its together, the title of the purchaser will be sustained."* Otherwise in Indiana.^ § 712. In Missouri, a sale of lands on an execution which had been amended and altered l)v the clerk, after it had been issued and delivered to the sheriff, was held to be void wlierc the execution plaintiff was the purchaser. ° But, quere? if the sale would have been void, if made to a stranger to the execu- tion without notice to him of such alteration.'' § 713. A lev^y of " all the unsold land " in a given tract is void for uncertainty of description, and a sale under such lexy is likewise void, and confers no title or rights upon purchaser.^ § 714. The identity of lands sold on execution must be shown to a reasonable certainty. ^ tlicy all resided ■vvithiii the territory or not, docs not appear, nor is it ."i matter of any importance. No person is required to answer in a suit on wliom process lias not been served, or %Yhosc property has not been attached. In this case there was no personal notice, nor an attachnieut or other proccedini^ against the land until after the judgments. Tlie judg- ments, therefore, are nullities, and did not authorize the executions on which the land was sold." * Silver ». Coflee, 20 Texas, 4. 2 Morris v. Bradford & Walker, 19 Geo. 527. ^ Scammon in. Swartwout, 111. 320; Erwin v. Dundas, 4 How. HS; Carter f7. Read, 5 Ham. 221; Lieper i\ Thompson, GO Penn. St. 177; Sample d. liarr, 1 Casey, 457. ^ rierrick v. Graves, IG Wis. 157. ^ Brown v. McKay, IG Ind. 484; Ilutchins v. Doc, 3 Ind. 528; Clark t. Watson, 2 Iud.400; Harrison «. Sip, 8, Blackf. 455. « Trigg «. Ross, 35 Mo. 1G5. ' Trigg v. Ross, 35 Mo. 165. 8 Iluddleston v. Garrett, 3 Humph. G29. 9 round v. Pullen, 3 Yerg. 333; Clemens v. Reynolds, 34 Mo. 579; Hart p. Rector 7 ^lo. 531. KXECUTION SALES OF KEAL TKOPERTr 251 § 715. Tlic niinssignecl riglit of dower is not the subject of execution sale; and if it were, tlie sale of a given number of acres to be taken off of a certain side of the dower land, i)ros- ]x;ctively to be assigned, is void for uncertainty. It has no ideiititj until set off, and the subsequent assignment of dower cannot make that valid which was invalid at the time the sale was made.^ § 716. A. levy and sale of land on execution described only as a " tract containing " a certain number of acres, more or less, being a part of a tract granted to a certain person in such levy, sale, and deed named, is void for uncertainty, and so is a deed by the officer made tliereon. For, though as between individuals in a private transaction it might possibly pass an interest capable of being ascertained or reduced to a certainty by a judicial proceeding, yet as such aid is not usually given to deeds on execution sales, the sale is void for uncertainty. ^ § 717. If judgment be against an infant defendant, and the execution issue against the estate of the next friend of such infant, and sale be made thereon, the sale is void and the pur- chaser takes nothing. 3 § 718. A levy and sale made after the official term of the officer expires, and when his official power has ceased, or after his removal from office, is simply void.'^ But otherwise if the writ be levied by him before his office ceases in either manner above named, and only the sale be made after the termination of his office.^ § 710. By act of Congress it is provided that when a United States marshal goes out of office, a new writ of execution issues to his successor, who is to proceed as the former marshal would have proceeded in law if he had remained in office, and thus complete the levy and sale.*' The case of W/tcato)i v. ' Shields V. Batts, 5 J. J. Marsh, 13. ^ Clemen v. Reynolds, ?>i INIo. 579. 3 Wilson V. McGee, 3 A. K. ]Marsh, GOO. * Bank of Tennessee v. Beaty, 3 Snccd, 30."). 5 Lamed v. Allen, 13 IMass. 29.j; Wlieaton v. Sexton, 4 Wheat. 503; Fur. guson V. Lee, 9 Wend. 258, 2G0. * Stewart v. Hamilton, 4 McLean, 534. 252 juDiaAL a:s'd execution sales. Sexton originated in tliat part of the District of ColumLia wliicli formerly belonged to Maryland. § 720. The writ of execution being the only authority of the officer to sell, it follows that if the writ is satisfied or is leased on a satisfied judgment he has no power to sell, and that if a sale be made after such satisfaction it will be void.^ § T21. But a sale to a hona fide purchaser will not be void by reason of tlie writ or judgment being only in part satisfied, ^vhore no evidence of such part satisfied accompanies the writ and none was apparent on the record of the judgment.^ In case of part satisfaction, if the land be sold for the whole original amount of the judgment, and the execution ^^laintiff be the purchaser, then on bill filed in equity to set aside the sale, after possession and imj^rovements by the purchaser, equity will compel a reconveyance of a proportionate part of the land to the execution debtor. ^ But in Knight v. Apple- gate,^ where a large portion of the judgment was satisfied on the judgment record, and the clerk issued execution for the whole amount of the judgment without noting the credit on the writ or otherwise o;ivin2: the sherifi" notice thereof, bv reason of which the sheriff raised the whole amount by sale of land, the court held that the sale was void. There was in reality no judgment to sustain the execution. The two amounts were dift'erent, whereas they should correspond. The true amount of the judgment at tlie time of issuing execution was tlie unpaid balance thereof, and that amount only of the origi- nal judgment the execution should have commanded the oftlcer to make. § 722. As to the eff'ect of an execution sale to a hona fide purchaser, when the judgment was fully satified jDreviously to the issuing of the writ, and the purchaser buys ignorant of such satisfaction, and nothing appears of record as notice ' Hunter V. Stephenson, 1 Hill, (S. C.) 415; Westou v. Clarke, 37 Mo. 5G8; Chiles V. Bernard, 3 Dana, 9G; States v. Sal^-ers, 19 lud. 432; Lavallo c. Rowley, 17 Ind. 3G. =* Walker v. McKuight, 15 B. Mon. 4G7, 47G, 477. 3 Ibid. 4G7. « 3 Mon. 388. EXECUTIOX SALES OF EEAL rJWl'KinV. \i,)6 thereof, tlic antlioritics arc variant, but the better opinion seems to be that such sale is void and confers no title on tlic purchaser. § ■723. The sale held invalid in Kuuj v. Goodtviii, 10 IMass., was one in whicli the creditor first caused the arrest, impress- ment and voluntary discharge of his judgment debtor; then finding land on which to levy, issued & pluries execution, on which the land was extended. Upon trial of the right under the extent, the court held that the voluntary discharge of the debtor was a satisfaction of the judgment; that the^^Z^^r/^s writ afterwards issued thereon was therefore void, and tiiat no right or title passed by the extent. ^ § 724. The same principle should apply, it would seem, to a sale as to an extent, made upon a satisfied judgment. If not good to i^ass a title for a term of years it ought not be good to pass the fee. § 725. InWood v. Colvlii, in JSTcwYork, it was held that a purchaser at sheriff's sale, under a satisfied judgment, buying with knowledge, acquired no title as against a purchaser under a junior unsatisfied judgment, and that his assignee or vendee occupied no better position. That if satisfied the power to sell ceased; such, too, it is believed, is the general rule; for who buys under a power buys at his own risk." § 720. And in Swan v. Saddlemire,^ Justice Sutuekland says: "■ I am strongly inclined to the opinion that an execution issued upon a judgment which has been paid and satisfied, is to be considered absolutely void, and not voidable, and that the purchaser under such execution would acquire no title. It is a general rule that a purchaser under a power purchases at his peril. If there was no subsisting power or authority to sell, no title is acquired. But I abstain from a definitive ' King V. Goodwin, IG Mass. G;"!. » Wood V. Colvin, 2 Hill, (N. Y.) 5GG; Sherman v. Boyce, 15 Jolius. 44:}; Jaclvsou V. Anderson, 4 Wend. 447; Lewis v. Palmer, G Wend. CG7; ]\rcGinty G. Herrick, 5 Wend. 240; Swan v. Saddlemirc, 8 Wend. G7G, G81 ; Nielsen v. Nielsen, 3 Barb. 5G5; King v. Goodwin, IG Mass. G3; Mondial r. Brown, 3 Rich. 117. 3 8Wcnd. G7G, G81. 25-i JUDICIAL AXD EXECUTION SALES. opinion upon this point because I do not deem it necessary to tlie decision of this motion, and it may hereafter directly arise between other parties connected with this transaction." § 727. Again in Wood v. Colvln,^ the court say: " If a pur- chaser can acquire a title under a satisfied judgment, it must be on the ground that there has been some fault on the part of the judgment debtor. If he stands by without taking any measures to arrest the sale, and without giving notice of the payment, and suffers a purchaser in good faith to part with his money, he may be estopped from afterwards alledging the payment to defeat the title of the purchaser." § 728. But such would not be the ease if the purchaser himself knew the judgment was satisfied at the time of the purchase; having full notice thereof, the debtor woukl not be in fault by omitting to tell him what he already knew.^ § 729. In Illinois it is held that a sale made on a day prior to the day of sale designated by the notice, is absolutely void, not only as to the purchaser, but also as to his grantee with notice; and moreover, that if the plaintifll:' be the purchaser he is chargable with notice of such irregularity.^ § 730. In Missouri, it is held that a levy and execution sale of a tract of land as an entirety, by its original descrip- tion, after it was subdivided into lots, streets and alleys, and sales of lots made to other parties, was void and conferred no title on the purchaser.* § 731. In Kentucky it is well settled by repeated decisions tliat if the sheriff sell on execution a material quantity of land more than is required to satisfy the writ when the land is sus- ceptible of division, he exceeds his authority and the sale is void. 5 ' 2 Iini, 5GG, 5G8. =■ Wood v. Colvin, 2 Hill, 5GG, 5G8; I^Iyers v. Cochran, 29 Ind. 250. In the case last cited, Myers v. Cochran, the purchaser, who had made pay- ment, refused repayment, with a knowledge that the judgment was satis- fied, and he took nothing by his purchase. 3 King V. Cushman, 41 111. 31. * Kcnry v. Mitchell, 32 Mo. 512. * Stover v. Boswell, 3 Dana, 232; Patterson v. Corneal, 3 A. K. Marsh. G18; Davidson v. McMintry, 2 J. J. IMarsh. GS; IMorris v. Bruce, 9 Dana, 211 ; Adams c. Riser, 7 Dana, 208; Shropshire r. Pullcn, 3 Bush. {Ky.) 512. KXECCTION SALT-:S OF KIOAL riJOl'ElJTV. 255 § 732. And so, if the writ calls for one sum and tlio judg- ment for another and different one, a sale on such writ is void unless the difference is so small as to come within the principle ^^ dimijininKS non curat lex;'''' and the transfer of the property to a honafide purchaser, by the purchaser under the execution •will not alter the case. ' § 733. So an execution sale of real estate based on a pro- ceeding ill rein by attachment levied on real estate of a non- resident owner, was held to be void where it appeared from the record that there was no personal service nor newspaper publication, or mailing of notice and petition to defendant as required by statute, and no evidence appeared of defendant's residence being unknown, or that it could not be ascertained. ^ § 734. The statute in Illinois allows execution to issue against the lands of a decedent, on a judgment rendered in his life time, by first giving a certain notice to the executor or administrator; the Supreme Court of the United States, as also the Supreme Court of Illinois, hold that such statutory remedy is cumulative, and does not prevent a resort to the common law remedy of scire facias to revive the judgment. But that an execution issued without either such notice or revival by scire facias against lands of a decedent is a nullity, and all proceedings under it are void.^ § 735. Such judgment, on the death of the defendant, (sa^-s Justice SwAVNE,) " survives only for the preservation of its lien, and as a basis of future action." It has no practical vitality for enforcement by the mere issuance of an execution. The notice provided by the statute, or else its alternative process of revival by writ oi scire facias must be resorted to, and is indispensable to give the judgment such vitality as Avill sustain an execution and sale thereon.-'^ § 73G. In a proceeding bringing in question the title of a ' IListings 'V. Johnson, 1 Nev. G13. ' Hudson V. Tibbetts, 16 Iowa, 97; Bvogliill v. Lash, 3 G. Greene, 357; McGahcr v. Carr, G Iowa, 331. 3 Ransom v. Williams, 2 Wall. (U. S.) 313 ; Picket v. Ilartsock, 15 III. 273 ; Brown v. Parker, ib. 307; Finch v. Martin, 19 ib. 111. < Ransom v. AVilliams, 2 Wall. 313 ; Picket v. Ilartsock, 15 111. 279 ; Brown V. Parker, ib. 307; Finch v. Martin, 19 ib. 111. 256 JUDICIAL AND EXECUTION SAUKS. piircliasc uiuler slieriff's sale, made on execution issued after the deatli of the execution debtor, the burthen of proof rests upon the purchaser at slieriff 's sale, to show that the notice was given in compliance with the statute, or else a revival as at common law, by scire facias.'^ § 737. AVhere two parcels of land are included in one and the same mortgage, a sej^arate execution sale of the right of redemption of one tract only, on execution against the mort- gagor, is inoperative and void. It passes nothing to the pur- chaser. (There is no rule by which redemption can be made of the one tract alone; and the execution purchaser has no claim to redeem the other tract which is not included in his purcliase.)^ § 73S. If an order of sale on execution issued to an officer be without a seal, when by the law of the land a seal is required, it is invalid, and a sale of lands made in virtue thereof is void; the purchaser takes nothing.^ So, in Indiana, a » Ranson d. Williams, 2 Wall. 313. 2 Webster t. Foster, 15 Gray (]\Iass.,) 31 ; Johnson ■». Stevens, 7 Cusli. 435. '^ Ins. Co. vi. Halleck, G Wall. 55G. This case arose uudel- the locnl code of Indiana, which provides that the execution is in all cases the remedy on a money judgment, and shall he sealed with the seal of the court. "In courts which pursue the chancery practice in foreclosing mortgages unaflTectcd by statutory provisions, the sale is made by a commissioner appointed by the court. This is usually one of the standing master com- missioners of the court, or, for reasons shown, some special commissioner that purpose. In neither case does any process, or order, under the court, issue to the commissioner. He may, if he thinks proper, procure a copy of the decree and order appointing him commissioner, or if the party who wishes the decree executed thinks proper in this mode to demand of him lo proceed, he may furnish him with a copy. But it is believed that the decree itself is the authority on which the commissioner acts, and if he l^roceeds in conformity to the decree, the sale will be valid, although no copy has been placed in the hands of the commissioner. In the courts of Indiana, the distinction between common law and chancery proceed- ings is abolished, and under their code of civil procedure but one form of action, called a civil action, is known. This code provides, § 407. that ♦when a judgment requires the payment of money, or the delivery of real or personal property, the same may be enforced by execution.' § 409 says: 'The execution must issue in the name of the state and be directed to the sheriff of the county, sealed with the seal and tested by the clerk of the court.' § G35, which relates to the proceedings lo foreclose a mort- EXECTTION SALES OF REAL TROrERTY. 257 slicriff's sale of several parcels of land, all together 'hi solldo, not liaving iirst offered eacli separately, is absolutely void.^ § 739. Where the mode and form of proceedings in the highest courts of common law of a state are adopted as the practice in the United States courts of any district, a United States marshal's sale on execution, in such district, made other- wise than in accordance with such common law ^■)ractice of said state courts, is invalid and will not confer title on the pur- chaser. A departure in such case from the local law and practice requiring an appraisement of the property to be sold, and inhibiting sale for less than a named pro2')ortion of the appraised value, avoids the sale.^ § 740. A judgment in jpersonam without jurisdiction of the person of defendant, is a void judgment, and an execution sale thereon is also void, lie who redeems from such sale as a judgment creditor takes nothing by his redemption; and an gage, we give xcrhntim: 'A copy of the order of sale and judgment shall be issued and certified by the clerk, under the seal of the court, to the shcrifl", who shall thereupon proceed to sell the mortgaged premises, or so much thereof as maybe necessary to satisfy the judgment, interest and costs, as upon execution; and if any part of the judgment, interest, and cost, remain unsatisfied, the sheriff shall forthwith proceed to levy the residue of the other property of the defendant.' Though the order of sale here described may not come under the name of any of the recognized common law writs of execution, as capias, fieri facias, or others, yet it comes clearly within the function and supplies the pxirpose of an execu- tion — that is a process issuing a court to enforce its judgment. The statute recognizes it as such, and requires that it shall issue under the seal of the court. The sheriff to whon.i it is directed is required to proceed ' as upon execution.' If the del)t is not satisfied by the sale of the prop- erty specifically mentioned in the order, it then operates as n fieri facias, under which the sheriff' is directed to levy the residue of any other prop- erty of the defendant. It is, therefore, to all intents and purjioscs an execution, and the statute expressly requires that it must issue under the seal of the court. Without the seal it is void. We cannot distinguish it from any other writ or process in this particular. It is equally clear that under the Indiana statute the sheritf could not sell without this order, certified under the seal of the court, and placed in his hands. This is his authority, and if it is for any reason void, his acts purporting to be done under it are also void." * Tylers. Wilkinson, 27 Ind. 4o0. => Smith V. Cockriil, C Wall. (U. S.) 75G. 17 25 S JUDICIAL AKD EXECUTION SALES. execution sale of the premises made under the statute of Illi- nois, at the instance of the redemptioner and in pursuance of such redemption, is also void, and will be so regarded even in collateral proceedings. ^ § T-il. If a sale be merely irregular, or on irregular process it is voidable only; but if made without authoritj", it is void. § 742. In St. Bartholomevis Church v. Wood- the rule laid down in Pennsylvania is declared to be " that a sheriff's sale on a Jl. fa. without a waiver of inquisition is void as wanting authority, and is not confirmed by the acknowledg- ment of the deed, or the distribution of the proceeds of sale." And as to mere irregularities, the court add, in this case, that "the acknowledgment of the sheriff's deed cures irregularities on the process or proceedings, but not a want of authority to sell." But this acknowledgment is not to be understood to be the mere acknowledgment in jxcis of the officer. In Pennsyl- vania it is an act in court, and its reception is a judicial act.^ Hence, in McAfee v. Ilariis^ the court say: '' After acknowl- edgment of the sheriff's deed in open court the title of the sheriff's vendee cannot be effected by mere irregularities, how- ever gross; nothing but fraud in the sale, or want of authority to sell, can defeat the title." § 743. This mode of taking the acknowledgment of a sheriff's deed in open court in Pennsylvania operates as con- firmation of the sale, so as to assimulate such sales in that state, and in that respect, to a certain extent, to judicial sales, as has elsewhere been stated; but while such is the case, it does not seem to give validity to a sale made without authority of law, which otherwise would be void. Nor would it in a judicial sale.'' ' Joluisoii V. Baker, 38 111. 98. « Gl Penn. St. 90, 103. See also David v. Lent, 8 Watts, 422 ; Wolf v. Payne, 11 Case}', 97; McLaughlin v. Shields, 3 Jones, 289; Shoemaker v. Ballard, 3 Harris, 94; McAflee v. Harris, 1 Casey, 103; Shields v. Milteiiberger, 3 Harris, 78. = Thompson v. Philips, 1 Bald. C. C. 272. * 1 Casey, 103; St. Bartholomew's Ch. t\ Wood, Gl Penn. St. 96, 103. * Slu-iver b. Lynn, 2 How. 43, 50, 60 ; 2 Bouvier, 415 ; ante chap. 3, Thomp- 6on V. Philips, 1 Bald. C. C. 24ri, 373. EXKCUTIOX SALICS OF KKAL I'llOrEKTV. 259 § 7-J-4. A jiidi^-mciit in jiersonam, on service bj pnblicr.tion and no personal service of process wliatever, is void, M'lien rendered by default, tlierc beini^ no appearance of tlie defend- ant; and wlieuever on sucli judgment an ordinary wi'it of fieri facias issues and property is sold thereon, the sale is void, and the execution purchaser takes nothing thereby. Such a proceeding is not "due ]n-ocess of law." Instead of a gen- eral judgment in personam the creditor should proceed by attachment so as to obtain jurisdiction over the property, and should take judgment against the property specifically and an order of sale thereof. A sheriff's sale and deed on the judg- ment in personam is of no efi'ect and maj^ be impeached in a col 1 a teral ]) roceed i n g. ^ §745. A pui'chase at an execntion sale, made Avith intent ' to defraud, hinder, or delay the creditors of tlie execntion debtor, is fraudulent and void as against all hona fide credit- ors, or other execution purchasers of such debtor." § 746. The execution and judgment must correspond as to the character of the parties. A recovery of judgment by one in his character of administrator will not su2">port an execution in his favor describing him only in his individual character, without the addition of administrator. The writ will be void, and so whether the judgment and writ be against or in favor of an administrator. The execution, in either case, must correspond with the judgment as to the names and character of the parties.^ § 747. So, a sale of a given quantity of land out of a speci- fied tract, Avithout identity or description of the land sold, is void.'i § 74S. As well at common law as by the statute, a sale, in Indiana, of lands of a decedent cannot be made upon an execu- tion which is issued on a judgment rendered against the ' Abbott V. Shcphci-d, 44 Mo. 233; Smith v. McCutchcn, 38 Mo. 415; Lat- timer «. Union Pacific R. R. Co., 43 Mo. 105. 2 Diuican t). Forsythc, 3 Dana, 229. ' Palmer «■. Palmer, 2 Conn. 4G2. * Peck V. Mallams, 10 N. Y., 509 ; Clemens v. Rannels, 34 Mo. 579. 2G0 JUDICLU. AXD I:xEcuno:^r sales. executor; and if the semblance of it be carried out, it Avill confer no title. It will be void.^ § 74D. And so a sale of lands made on an execution and judo;ment against two defendants, one of wliicli is dead, is void, if the execution bear teste of a date subsequent to the death of one of them." § 750. " If a bidder make representations to deter other bidders and is successful in deterring them, his purchase is fraudulent and void,"" and will be set aside. ' Doc '6. Wood}^ 4 McLean, 75. * Erwin ®. Duiulas, 4 How. 58. 8 Vanlrccs 15. Hyatt, 5 Iml. 487; Ilogcj i-. "Wilklns, 1 Grant Cas. (Penu.) 67; Bimts v. Cole, 7 Blackf. 2C5. CIIArTETw XVIII. THE DEED. I. By Whom to be jMade. II. To "Whom to be ]\Iade. III. AViiEN to be ]\Lvde. IV. "What Passes by it. V. Its Eecitals. VI. Its Relation. VII. PiuoraTY. VIII. Registration. IX. Collateral Impeachment. X. How FAR Execution Defentdant is Estopped by the Deed. I. By Whom to be Made. § 751. TliG deed can only be executed by tlie officer liimself, or by Ills general deputy, and whether by the one or by the other, it must, in either case, be in the name of the principal officer, and as his act.^ § 752. A special deputy cannot execute the deed; nor can a de2)uty execute the deed in his own name.- § 753. ]3y statute in most of those states in which lands arc Bold on execution, instead of being extended, the deed may bo made by the successor of the officer Avho sells, when such officer has, after the sale, ceased from any cause to exercise the func- tions of the office before executing a deed for the lands sold : and, even without such a statute, the court, in a proper case, will order the successor of the officer selling to execute the deed. 3 But in California the rule seems to be established that Mackson ^. Bush, 10 Jolm.s. 223; Tillotson «. Cheatham, 2Jolms. 63; Iliiincs V. Linscy, 4 Ilam. 88; Jackson v. Randall, 18 Johns. 7, 8; Glas^i^ow V. Smith, 1 Overt. 144; Carr v. Hunt, 14 Iowa, 20G; Young v. Smith, 10 B. Mon. 293, Iowa, 20G; Keller v. Blanchard, 21 La. Ann. 38. ' Anderson v. Brown, 9 Ham. 151; Lewis v. Thompson, 3 Cal. 200. ' Fowblc V. Rayburg, 4 Ham. 45; Woods v. Lane, 2 S. & R. 53; Prcscott V. Everts, 4 Wis. 314; Conger v. Converse, 9 Iowa, 55G; Thurston v. Boyd, 25 Miss. 598; Frctwell ». Mooraow, 7 Geo. 2G4; McElmurry ». Ardis, 3 Strobh. 212; People v. Boring, 8 Cal. 40G; Philips v. Jamison, 14 B. Mon. 579. (2G1) 2G2 JUDICIAL AND EXECUTION SALES. the individiu'il officer selling shall execute the deed, even if his term of office has subsequentlj expired, and in case of his death, then by a master appointed by court. ^ In Ohio, Penn- sylvania, and some others of the states, the practice is to con- firm the sales in court;- and it has been holden where this practice prevails that without confirmation sales on execution are invalid.^ § 754:. In the leading case here cited, the court held that a "deed executed by the deputy sheriff, in the name and on the belialf of his principal was a good execution of the deed." , That a " sale, and the consummation of that sale by deed, are acts M'hich tlie slieriff may do by deputy." That " the law does not recpiire them to be done by the slieriff in person."^ This doctrine holds good to tlie present day. § 755. Ill Missouri the law requires sheriff's deed for prop- erty sold on execution to be acknowledged before the clerk of the court, by the sheriff"; a certificate of such acknowledgment to be endorsed by the clerk on the deed under the seal of the court, and a correct entry to be made of record by the clerk, descril)ing the conveyance and the names of the parties to the suit in which the judgment was rendered on which the execu- tion emanated. § 750. It is held by the supreme court of that state, that this provision of the statute is merely director so far as to the entry of record. That a purchaser having no control over the cleric cannot be j^rejudiced by the omission, or by the irregu- larity of the entry, and that the deed will be good if the proper endorsement is made thereon, although the entry of record be substantially defective. " § 757. The deed must contain apt Avords of conveyance and grant, and though no particular form is required, it must substantially purport to grant and convey the premises to the purchaser in consideration of the contract of sale and payment ' Aiitliony V. Wcssell, 9 Cal. 103; People v. Boring, 8 Cal. 40G. ' Curtis V. Norton, 1 Ham. 278. ' Curtis V. Norton, 1 Ham. 378. ■•Jackson v. Bush, 10 Johns. 223. The same ruling had been previously mndc in Tillotson v. Cheatham, 2 Johns. G3. ' Scruggs V. Scruggs, 41 Mo. 242. THE DEED. 2G3 of tlio purchase money. In tlie languaf^c of the court, in Juhnson v. BaiitocJc, "it must appear from the lanii:uage employed that it was tiic intention to convey the title, and the language must purport to have that eflect,"^ § 758. We may also add that it must purport to be act of the officer in his official ca])acity, and not merely the individual act of the man or person lilling the office. § 759. However sufficient it may be to show that a pur- chase had been made at execution, and however sufficient as a mere certificate of purchase on which to base a deed, jet, unless it pur])ort to transfer the land, and convey the title, it will not be sutKcient as a deed. In the case cited from Illinois, the instrument, (a copy of which is given in the subjoined note,) instead of purporting to be a deed, really negatives such idea by the words, "are entitled to a deed for the premises so sold."- ' Johnson ■?;. Bantock, 38 111. 111. - See .Johnson «. Bantock, the instrument there relied on as tlic deed, was in words and figures as follows: "Know all men by these presents : That I have this day sold to Olof Johnson and Sanuiel .Remington the following described tract of land, to wit: The south- east quarter of the north-east quarter of Section No. 29, in township No. 14, north of Range four, east of the foarth principal meridian, in the county of Henry, in the state of Illinois. The above described land being the same that was to Joshua Johnson on execution in favor of B. F.John- son, and against John J. Hall and Robert Duncan, on the 24th day of July, 1858, for the sum of $195.42, and redeemed on the 24th day of October, 1859, by Olof Johnson and Samuel Remington, who were judgment creditors of the said John J. Hall and Robert Duncan, by paying to mo good and lawful money for said Joshua Johnson, the sum of $218.09, it being the full amount of said judgment and interest up to that date and no more, and I have advertised and offered the same for sale at public auction this 14th day of December, 1859, according to law, and the said Olof Johnson and Samuel Remington, by force of the statute in such case made and provided, were considered as having bid the sum of $219.88, it being the amount of said redemption money so paid by Olot Johnson and Samuel Remington and interest thereon from the day of such redemption up to the present time, and no more, and there being no bid greater than said amount offered, the said lands were struck off and sold to said Olof Johnson and Samuel Remington, judgment creditors as aforesaid, at the said amount of redemption money and interest; and the said Olof John- son and Samuel Remington are entitled to a deed for the premises so sold, 264: JUDICIAL AND EXECCHON SALES. §700. Ill some states the officer ^vllo sells may execute tlic deed after his term expires. ^ This, too, though his successor ma}' have entered on the duties of his office.- § 701. The certilicate of sale and the deed should refer to 01* recite the writ on which the sale is made, and no other, althouirh several writs be in the hands of the officer. But the full amount sold for should be stated. § 702. The disposition of the money is matter for state- ment in the return. § 703. The deed is good as between the purchaser and execution defendant, if made officially by the officer, although the certificate of acknowledgment be defective as to the official character of the person acknowledging it and refer to him only by his personal name.^ And so it is good if made to the assignee of the purchaser, stated to be such in the deed by the officer.^ II. To wiioii TO EE Made. § 704:. The sheriff's deed may be made to the purchaser, or to his assigns. ^5 Or, in case of the death of the purchaser, to his devisee," or legal heirs,'' as the case may be. § 705. The purchaser can assign his bid, and a deed from to have find to hold the said described premises, with all the appurte- nances thereunto belonging to the said Olof Johnson and Samuel llemiug- tou, tlieii" heirs and assigns forever. "Witness my hand and seal this 14th day of December, 1859. , . — ■— ^ s [Duly acknowledged as a deed.] \ SE.\L. j- "PtniNELL II. Smith. ' "SlierifT of Henry County, Illinois." This instrument the court, that as a deed it "is not sufficient." 38 111.111. » Lemon v. Craddock, Litt. Sel. Cas. 251. "■ People V. Boring, 8 Cal. 40G; Anthony v. Wcsscll, 9 Cal. 103. 3 In the matter of Smith, 4 Nev. 254. ■« McClure v. Englchart, 17 III. 47; In the matter of Smith, 4 Nev. 254. * Blount -D. Davis, 2 Dev. 19; Small v. Ilodgcn, 1 Lilt. IG; In the matter of Smith, 4 Nev. 254; McClure v. Englehart, 17 111. 47 ; Frizzle v. Vcach, 1 Dana, 211. « Summers T). Palmer, 10 Bich. 38; McElmurry c. Ardis, 3 Strobh. 212. ' Swink V. Tliompson, 31 Mo. 33G. THE DEED. 2G5 the sheriff to the assignee will be valid. ^ So, the purchaser may assign the shei'ifi''s certificate of purchase where the prac- tice is to give certificates, and the deed may be made to the assignee thereof. - § 7GG. But a recital of such assignment in the sheriff's deed is o\\\y prima facie evidence thereof, it being the act of a third person and not of the sheriff.^ § 767. And though the transfer or assignment of the slieriff 's certificate be so defective that a deed to the assignee could not be coerced from the officer, yet if he execute a deed in pursu- ance thereof to the assignee, the deed will be good.* The assisrnee of the certificate under the slieriff 's sale is, in law, the assignee of the original party defendant to the execution.^ It may be enforced in equity. ° § 708. A sheriff's deed to two persons for land sold to one of them as nominal purchaser, if in all other respects sufficient, will pass the title to both the grantees in common.'^ III. When to le Made. § 700. If by law there is no redemption, then it follows that the deed is due on payment of the purchase money, (and confirmation, if the latter is required.) Payment is to be made at once. The deed is then to be delivered within a reasonable time; that is, so soon as it can conveniently be made. § 770. But if there be redemption, then the ordinary and most general practice is to give the buyer a certificate of sale showing his right to a deed at the end of the redemption term, if the land be not redeemed. ^ ' Matthev,-s v. Clifton, 13 S. & M. 830; Eleringer v. Moriart^v, 10 Iowa, 78; Brooks V. Ratcliff, 11 Ircd, 321; Carter v. Spencer, 7 Ired, 14. 2 3IcClure v. Engleliart, 17 111. 47; Summers v. Palmer, 10 Rich. 38; Eleringer v. Moriarty, 10 Iowa, 78; In the matter of Smith, 4 Nev. 254. 3 Stafford v. Williams, 13 Barb. 240. * jAIcClure v. Englchart, 17 111. 47; U. S. Bank «. Voorhces, 1 McLean, 221 ; In the matter of Smith, 4 Nev. 254. 6 McCready v. Brisbane, 1 N. & INI. 104; Brooks v. Katcliff, 11 Ircd, 321 ; In tlic matter of Smith, 4 Nev. 254. « Whipple V. Farrar, 3 ]\Iich. (Gibbs) 430. ' Frizzle V. Vcach, 1 Dana, 211. « 4 Kent, Com. 431. 266 JUDICIAL AND EXECUTION SALES. § 771. Where the hxw calls for such practice, a deed niadc before the term of redemption expires is void.^ § 772. In Tennessee, however, it is holden that the sheriff may make the deed at once, although there be redemption, and that the purchaser is in tlie meantime entitled to possession, but must account for rents and jDrofits if the premises arc redeemed.- § 773. But if confirmation is by law required, as is the case in some of the states, then the deed cannot be made under any circumstances until the sale is confirmed, nor can the certili- cate.2 In such cases the sale is quasi a judicial one. § 774. If the plaintiff be the purchaser, he need only pay the costs and fees which are going to others than himself, and may discharge the purchase money by receipting the same on the execution. He is not bound to pay it to the officer unless there be other liens or conflicting claims as to priority.'^ § 775. Tliough the deed be dated anterior to the time at which the right of redemption expires, yet if not delivered until that time, it will be valid. The delivery is the true date, and if the contrary be not shown it is presumed to have been delivered at the proper time.^ § 776. The officer cannot j)ass the title without actual receipt of the purchase money, as by charging himself v;ith the amount bid.'' lY. What Passes uy it. § 777. Not only the land itself passes by the deed, if valid, but also such covenants of title as run with the land by ordiuary conveyance, also pass to the purchaser by the sheriff's deed on execution sale.'' He gets the whole interest and estate of the ' Gorham v. Wing, 10 Mich. 48G; Gross ;;. Fowler, 21 Cal. 392; Bcrual v. Gliem. 33 Cal. G08. - Burk v. Banli of Tennessee, 3 Head. G8G. ' McBain v. McBain, 15 Oliio St. 337. * Fowler v. Pearcc, 2 Eng. 28. * Warlield v. Woodward, 4 G. Greene, 38G. • State v. Lawson, 14 Ark. 114. • Rawlc. Covenants of Title, 344; Laport r. Todd, 3 Vroom (X. J.) 124. THE DEKI). 2G7 execution dcl>tor in tlic promises, including covenants of title, if anj.i If the land be redeemed by the debtor, lie is tliereby re-invested with the covenants of title.^ It is to the interest of the debtor that tlie covenants of title should pass. Thcj enhance the value and arc presumed to increase the price at the sale. AVei-e they not to pass they would become of no value to the execution debtor, he having no longer any estate in tlie land, § 778. There is some diversity of opinion as to whether growing crops will pass to the purchaser at execution sale. "Wlierc lands are sold subject to redemption the question can- not well arise, for the title remaining, as also the possession, in the defendant during the time allowed to redeem usually affords to the execution debtor the oi)portunity of securing his growing crop, if any there be. § 770. In Indiana, where lands are to be appraised and must bring a certain proportionate part of their appraised value, when sold on execution, and there being no redemption from such sales, the question necessarily arises as to the gi-ow- ing crops, and the ruling is that they pass with the land to the execution purchaser. ^ But, in Ohio, under statutory regulations nearly similar to those of Indiana in that res}>ect, it is held that growing crops, inasmuch as they are not appraised with the land, do not pass with the land by the execution sale.''^ § 780. In Massachusetts it is held that the execution pur- chaser, if he makes peaceable entry into possession, becomes entitled to growing crops. ^ § 781. The sheriff's deed on execution sale made to satisfy one or more installments of a judgment debt, discharges the lien of the subsequent installments and invests the purchaser with the whole estate. lie is presumed to have paid, as the 'Rawle, Covenants of Title, 36D, 370; White v. Whitney, 3 Met. 81; Laport V. Todd, 3 Vroom (N. J.) 124. ' Rawie, CJovcnauts of Title, 370, 371, n.; White v. Whitnc}', 3 ]\Ict. 81. » Jones V. Thomas, 8 Blackf. 428. * Cassaly v. Kliodcs; Ilouts v. Showalter, 10 Ohio St. 12G. * Nichols V. Uewey, 4 Allen, 38G. 2G8 JUDICIAL AND EXECUTION SALES. lu\i^]iC3t bidder, tho full value of tlic laud, and is entitled to hold it clear of the judgment. ^ § 7S2. It was formerly held in Pennsylvania that the sheriff ' :? deed, if there were no express understanding to the contrary, cut oif all liens ;3 though in the case cited this is alleged to be a rule of all courts, yet we deem it to have been so only in Pennsylvania, and there it was by statute.^ § TS3. To remedy this judicial anomoly, after the case of Williams V. J^orris, the Pennsylvania act of April, 1830, relative to execution sales, was passed, and the rule in that state now is that such sales are sul)ject to superior liens, except such as the law entitles to participate in the proceeds of sale* § 784. These latter, however, are not cut off by the sale, technically speaking, but are to be satisfied in their order of seniority out of the fund arising from the sale.'' § 785. The deed on execution sale of mortgaged premises, on a judgment at law and execution sale, for the mortgage debt, carries only the mortgagor's equity of redemption, and is subject to the mortgage for the rest of the mortgage debt, if sold only for a part.° § 7SG. Where judgments are liens the deed of the sheriff relates back to the date of the judgment and carries title from that date against all claims and liens junior thereto.'' § 787. Mere remarks of persons at the sale, not given as notice, will not charge the purchaser. ^ The title passes only by the deed.^ Until then and the end of tlie term of redemp- tion the right of the purchaser is held in abeyance, and if there be redemption, may be discharged by payment of tho redemption money. ^ " ' Ilcwson V. Dj'-gert, 8 Johns. oo3. ' AVilliams v. Norris, 2 Rawle, 50; Zeij^lcr's Appeal, Co Pcnii. St. 173. ' Johnson v. Crawlej-, 25 Geo. 31G; Himter v. Watson, 13 Cal. 3G3. ♦ Ilelfrich v. Weaver, 61 Pcnn. St. 3S5. ' Ihul. « Jackson v. Hall, 10 Johns. 481. ' ]\rcCormick v. McMurtrie, 4 Watts, 192; Marliri v. :Martin, 7 Md. 3CS. 8 Ticket). Ersick, 2 Rawle, IGG. • Catlin V. Jackson, 8 Johns. 520; Anthony v. Wcsscl, 9 Cal. 103. « Vaughn v. Eli, 4 Barb. 159; Smith v. Colvin, 17 Barb. 157. THE DEED. 269 § '788. Tlioiigli the levy and sale bo junior, yet tliey ])ass the title if on a senior judgment, as against a senior levy and sale on a junior judgment where judgments are liens. ^ § 789. Tliongli the execution sale and deed of the mort- gagor's equity of redemption passes the remaining right of the mortgagor,^ yet if the judgment be not a lien, and before execution the mortgagor convey away his remaining right, or equity of redemption, to a hona fide purchaser, then by execu- tion sale thereof against the mortgagor nothing passes, for there was no longer anything to scU.^ § 790. So if the sale pnr2:)ort to be of merely the equity of redemption from a mortgage, and the mortgage is already redeemed, then nothing passes by the sale and sheriff's deed, for nothing remained to sell.'^ § 791. M the purchaser takes nothing by his deed, owing to the debtor's having no title, he cannot recover back his money from the creditor, but may, in equity, of the debtor, as tlie amount went to pay his debt.^ § 792. If the description of the land is such as to not identify it, then the deed is void, and the purchaser takes nothing." § 793. The sheriffs deed will not pass the right to a house on the land which another person has a right to take away, if the purchaser buy with knowledge of such right; nor will he be entitled to damages for its removal.'^ § 79-1. Where a vendor sells land on a credit, retaining the legal title until payment, then takes judgmeiit against his vendee for the purchase monej-, and causes the same land to be levied and sold generally on execution nnder such judg- ment, the purchaser at sheriff 's sale takes the full legal and equitable title to the land, (unless it be subject to right of ' 3Iarsli!ill V. McLean, 3 G. Greene, 30o; Rankin v. Scott, 12 Wheat. 177. - Dougherty v. Liuthicum, 8 Dana, 194. = Ibid. * Ibid. ^ Dunn u. Frazicr, 8 Blackf. 433. « Mason v. White, 11 Barb. 173; Glenn v. Malony, 4 Iowa, 314; Eoswortb c. Farcniioltz, 3 Iowa, 84. ■> Coleman «. Lewis, 27 Penn. St. 291. 270 JUDICIAL A^S'D EXECUTION SALES. redemption) leaving no interest whatever, equitable or legal, in either the original vendor or his vendee.^ § 705. There is a forcible illustration of this principle in the case of The Pittsburgh and iSteuhenville Railroad Co. v. Jones, iiboYQ cited, in which the court say: " The vendors bv proceeding to sell the land under execution issued thereon, elected to sell the legal as well as the Company's equitable estate, and the sale upon the judgment for the purchase money Avas a virtual recision of the contract." ^ In this case the court add, as a conclusion, that, " the sheriff's vendees, therefore, took the whole estate in the land — the Company's equitable interest under the judgment and execution upon which the sale Avas made, and the vendor's legal title in virtue of tlieir imj^lied agreement to sell the whole estate which they had agreed to convey to the company. As the sheriff's sale divested the Company's entire equitable estate, it follows that it no longer had any right or interest in the land whatever." ^ And so if a mortgage creditor take judgment at law for the mort- gage debt or a part thereof, and cause execution to issue thereon, and the mortgaged premises to be levied and sold, generally, and without stating that the sale is subject to the remainder of the debt and mortgage lien, the execution purchaser takes the whole title both of the mortgagor and the mortgagee, and acquires the property free of the residue of the mortgage debt and free of the mortgage lien.^ § 79G. A lien creditor having thus elected to enforce his claim, or a part thereof at law, by taking judgment and causing the land subject to the lien to be sold generally, and without reservation, or as still subject to the lien, and as the property of the debtor, will be, by the principle of estoppel, prevented thereafter from denying that the complete title was in the ' Pittsburgli and Stcubcuville Railroad Co. v. Jones, 59 Pcnn. St. 433, 43G, 437. * Pittsburgh and Steubcnville Railroad Co. v. Jones, 59 Penn. St. 43G-7; Love ij. Jones, 4 "Watts, 4G5; Ilorbach v. Riley, 7 Barr. 81; Bradley r. O'Donnell, 33 Penn. St., 281. 3 Pittsburgh and Steubcnville R. R. Co. v. Jones, 59 Penn. St. 430, 437; Freeby v. Topper, 15 Ohio, 4G7. * Fosdick V. Risk, 15 Ohio, 34. THE DEED. 271 execution defendant at llic time of tlic sale, and estopped from again subjecting to sale fur any nnsatisiied portion of Lis claim. 1 § 797. But if tlic vendor, who still retains the legal title, take judgment for the unpaid purchase money, and execute and sell tlie mere equitable right of the vendee in the premises, tiie sale v^-ill not be void, though the more regular way is to sell the land itself." § 798. In Iowa the vendor of real estate, " when part or all of the purchase money remains unpaid after the day fixed for payment whether time is or is not of the escence of the contract, may (by statute) file his petition asking the court to require the purchaser to perform his contract or to foreclose and sell his interest in the property, and the vendee in such proceeding is to be treated as to foreclosure as a mortgagee.^ And the vendor may have a decree for rescission of the contract, or for a sale of the premises to satisfy the unpaid purchase money and costs of suit. The same right will follow the note given for the purchase money in to the hands of an assignee or endorsee, if transferred with the understanding that the assignee should be sidjrogated to the benefit of the lien.* § 799. Where land is sold on execution, subject to a vendor's lien, the purchaser under the execution sale stands in the shoes of the judgment debtor, except that the judgment debtor has a right to redeem from the execution sale. If he fail to do so within the time allowed for redemption by law, then the purchaser may receive the deed of the sheriff and redeem from the lien of the vendor, and thus obtain complete title to the land, free alike from the claims of the original vendor and of the execution debtor.-^ ' SimoncVs Estate, 19 Pcnn. St. 439; McGce ?i. Mellon, 23 Miss. 585; Mahone^' v. Iloran, 53 Barb. 29; Frecby v. Tapper, 15 Ohio, 4G7; Fostlick V. Risk, 15 Ohio, 84; Pitts, and Steu. R. R. Co. v. Jones, 59 Penn. St. 43G; Love V. Jones, 4 Watts, 4G5; Ilorbach v. Riley, 7 Barr, 81. '' Gaston v. White, 40 Mo.4SG. * Revision of 18G0, Sees. 3G71, 3G72; Blair v. IMarsli, 8 Iowa, 144; Picrsor V. David, 1 Iowa, 34 ; Page v. Cole, G Iowa, 154. 4 Blair v. Marsh, 8 Iowa, 144. ' Boudurant v. Owens, 4 Bush. (K}'.) GG2. 2i'J JUDICIAL AND EXECUTION SALES. § SOO. "Wlicn linsLand and wife are seized of lands as tenants of the entirety, a purchaser of the Imsband's interest therein, under execution at sheriff's sale, cannot, in tlie state of Pennsylvania, maintain ejectment on his purchase for any part of the property. In the hmgnage of the court, such ])ur- ehaser "does not acquire, during the wife's life, any right to the possession, either jointly with her or to her entire exclu- sion."^ The husband and wife as tenants of the entirety arc mutually seized of the whole; neitlier can alienate their inter- est without the consent of the other." And though the decision in McCurdyv. Canning \?, mainly put upon the Pennsylvania statute of April 11, 184S, yet, to our mind, the same result must follow if the statute be loft out of the question. What one cannot sell himself cannot, on execution, be legally sold for his debts. 2 But tins case, which so fully illustrates this ' McCurdy v. Canning, G-i Pcnn. St. 39; French v. Mclian, 5G Penn. St. 28C. •^ 2 Bl. Com. 182; 4 Kent, Com. 302. 3 Gentry u. Wagstaff, 3 Dcv. 270; French v. Mehan, 5G Pcnn. St. 286. TnAYER, Judge: "This was an action of ejectment. Tlie defendants, Robert Canning and Eliza, his wife, held under a conveyance in fee made to them during their coveture, and the question is whether the plaintiffs, who were purchasers at sheriff's sale of the husband's interest, can recover possession of any part of the property by this action. If an estate in lands be given to the husband and wife, or a joint purchase be made by them during coveture, they arc not properly joint tenants, nor tenants in common, for they are but one person in law, and cannot take by moities, but both are seized of the entiret}', iwtoutet non 2)cr mi/. The consequence of which is, that neither the husl)and or wife can dispose of any part without the assent of the other, but the whole must remain to the siu'vivor. 2 Bl. Com. 182. So long ago as Doe v. Prarratt, 5 T. R. 652, Lord Kkxyon remarked: 'It has been settled for ages that where a devise is to the hus- band and wife they take hy entireties and not by moieties, and the husband alone cannot, by his own conveyance, without joining his wife, divest the estate of the wife.' Tliis species of tenancy arises from the unity of hus- band and wife, and it applies to an estate in fee for life or for years. The same words of conveyance which would make two other persons joint tenants will make the husband and wife tenants of the entirety. Joint tenants are each seized of the whole and not of undivided moieties. Of such an estate Montague, C. J., says, in Plowden, 58: 'The husband has the entire use and the wife has the entire use, for there are no moieties between husband and wife.' The attainder of the husband does not affect the wife's estate. 1 Inst. 187, a. Nor can the husband forfeit on THE DEKD. ^Ji.> interesting subject, is of sufficient in:iport;incc to warrant the giving of the opinion of the learned judge at lengtli. § SOI. The inability of either party to convey -without the other joining, has reference to the whole and to each one's moi- ety of the whole, for each are seized of the whole, whicl: seizin continues in the survivor on the death of either, leaving such survivor the sole owner of the whole fee. Hence a purchase of the separate interest of either vests no right in the purchaser enforceable during the joint lives of the husband and wife, and of course not against the survivor of the execution defend- alion so us to sever the tenaney, 'because,' as Cruise says, 'the whole of it belongs to liis wife as well as to him.' Tit. 18, ch. 1. Nov is such an estate atiected by the statutes of partition. 4 Kent's Com. 303; Thornton r. Thornton, 3 Hand. R. 179. The act of 31st March, 1813, which destroyed survivorship between joint tenants in Pennsylvania, does not apply to entireties held by husband and wife. Robb v. Beaver, 8 W. & S. 111. So that this estate remains as at common law, excepting in so far as it may have been affected by the act of 11th April, 1848, commonly called the; ]^Iarried Woman's Act. It would seem to have followed, at common law, from the unity of husband and wife, and the subjection of the hitter to the former, that the husband had the control of the estate during his life and might convey or mortgage it during that period. This is conceded by Kennedy, J., in Fairchild v. Chastellux, 1 Barr. 181, and decided in Barber v. Harris, 15 Wend. G15; Jackson v. McConuell, 19 id. 175. If the liusband might convey or mortgage it for tlie period of his own life, it would seem to follow necessarily that it might be taken in execution and sold by the sheriff for the same period, and that a purchaser of such an interest would be entitled to recover the possession during the life of the husband by an action of ejectment. But just here the act of 11th April, 1848, interposes an insuperable bar to such a result, declaring that ' every species and description of property, of whatever name or kind, which may accrue to any married woman during coveture, by will, descent, deed of conveyance, or otherwise, shall be owned, used, and enjoyed b}' such married woman as her own separate property, and shall not be subject to levy and execution for the debts or lia])ilities of her husband, nor shall such propertj' be sold, convej^ed, mortgaged, or transferred, or in any manner incumbered by her husband without her written consent first had and obtained, and duly acknowledged, etc' The case, therefore, stands thus: Here is a married woman who is neither a joint tenant or tenant in common with the husband, but who is seized of the whole estate, and with him entitled to possession of the whole. If a purchaser of the hus- band's interest may be put into possession with her, what follow? This: 1st. You have destroyed her estate and turned her entirety into a joint tenancy or tenancy in common. 2d. You have deprived her altogether of IS " 274 JUDICUL AND EXECUTION SAEES. ant, wliose interest may liave sold on execution, as sucli inter- est ceases at Lis deatli and becomes sole in tlie surviv^or. §S02. An casement incident to a mill and to the ground on whicli tlie mill is situated, for the supply of water to the mill, is in connection with the mill and premises a subject of judgment lien and of execution sale. The lien of the judg- ment covers the land or premises, which, being the principal thing, draws to it all its incidents as appurtenant thereto. Tliey, together, constitute one whole. They pass togetlier and cannot be separately sold without destruction to a great extent the possession, because it is not in the nature of things that she can enjoy actual possession with a stranger as she did with lier husband. 3d. You liave taken away her property without lier consent and destroyed her rights, which were protected by the act of April 11th, 1848. She was entitled to possession of tlie whole with her husband. You propose to give possession of the whole with a stranger, a possession which she can- not, and wliicli he probably would not, enjoy. If it should be answered that the property may be rented, and a moiety of the rents and profits may be paid to her, that is only to say that you may deprive her of her estate and give her another of inferior value, a substitution which you liave no right to propose. The words of the act of 1848 are of so compre- hensive a character, and its purpose to protect every possible interest of the wife is so plain, tliat we cannot, by any possible construction consis- tent with the object of tlie Legislature and the language which they have used, except this interest from its protection. These considerations lead us to the conclusion that one who, Avithout the consent of the wife, pur- chases the husband's interest in real estate in which both husband and wife are seized of the entirety, and to the possession of the whole of which she is entitled equally with him, does not acquire, during the wife's life, any right to the possession, either jointly witli her or to her entire exclu- sion. Practically these two propositions are not alternatives, but the same, for we can as easily marry her to a stranger as marry her possession to liis without destroying her estate. The case of Stocbler v. Ivnerr, Watts, 181, is not in conflict with these views. The point to be determined here did not arise in that case, which was decided twelve years before the passage of the Married Woman's Act. In that case the husband and wife did not hold by entireties. There was an absolute conveyance in fee simple to the husband, coupled with a contemporaneous agreement, the intent of whicli was to control the conveyance and to give the estate jointly to the daughter of the donor and her husband in special tail, but it failed for want of apt words to accomplish the result, and it was hekl that the whole estate was in the husband for life, and that his freehold was a legitimate subject of execution. Judgment for the defendant on the point reserved." :\IcCurdy v. Canning, 04 Penn. THE DEED. 97r, of tlic lien security of the creditor, and at the same time sacrificing tlie property of tlie debtor. They arc rightfully sold together, and together will pass to the purchaser, without particular reference to the easement, and under the general description of the premises by metes and bounds.^ Y. Its llEaTALS. g S03. The deed of the sheriff need not recite the execution or otlier proceedings. It is sufficient that they be referred to and identified; and then if inaccurately, such inaccuracy will not vitiate the deed. The variance is immaterial so long as the origin of the deed is clearly traceable to a proper source. Such irregularity can work no injury to the parties concerned. - § 804. The recitals of the deed are ovdmai-Wj prima facie true, so far as relate to the steps taken by the ofricer, and as to the authority to levy and sell.^ § 805. It has been held that in their absence, proof of notice of sale must be made to enable the purchaser to enforce the deed.^ But the general rule is to the contrary. -"^ § 80G. In some states the recitals in the sheriff's deed are evidence by statute.^ But if the judgment be not referred to in the recitals, then to enforce the deed the existence of the judgment must be made to aj)pear by other evidence.' ' Morgan v. Mason, 20 Ohio, 401. - Humphry v. Bccson, 1 G. Greene, 199, 214; Perkins v. Dibble, 10 Ohio, 433; Armstrong v. McCoy, 8 Ham. 138; Iluggins v. Kctchum, 4 Dev. and Batt. 414; Cherry v. AYoodhird, 1 Ired. 438; Driver v. Spence, 1 Ala. 540; Jackson v. Jones, 9 Cow. 182 ; Sneed v. Reardon, 1 A. K. Marsli, 217 ; Jack- son V. Streeter, 5 Cow. 529; Welsh v. Joy, 13 Pick. 477; Craig v. Vance, 1 Overt. 209; Jackson v. Pratt, 10 Johns. 381 ; McGuire v. Kouns, 7 Monv. 386; Read ?3. Heasley, 9 Dana. 324; Wing v. Burgess, 13 Maine, 111; Philips V. Coffee, 17 111. 154; Jackson v. Roberts, 7 Wend. 83; Harrison v. Maxwell, 2 IST. & M. 347; Hines v. Scott, 11 Penn. St. 19; Loomis v. Riley, 24 111. 307; Buchanan v. Tracy 45 Mo. 437. 3 Orsborne v. Tunis, 1 Dutcli. 033, (562; Hardin v. Cheek, 3 Jones. Law. (N. C.) 135; Kelly v. Green, 53 Penn. St. 302. * Orsborne v. Tunis, 1 Dutch. G33, 662. » Perkins v. Dibble, 10 Ohio, 433. * Jourdan v. Bradshaw, 17 Ark. lOfl. ' Jourdan v. Bradshaw, 17 Ark. 100 ; Bcttisen v. Budd, 17 Ark. 540. Jib JUDICIAL AXD EXECUTION SALES. § 807. In California the recitals in the deed are not evi- dence of their own truth as against strangers to the proceed- ings claiming adversely thereto.^ § 808. In Illinois a misrecital of the name of the judgment plaintiff, asJCohn II., ior Jacob H., is fatal to the deed without more; but is holden to he open to remedy by other proof, showing the variance to he matter of mistake.- YI. Its Ivelatiox. § SOi>. Where by law the judgment is a lien on the land, the deed, on execution sale has relation back to the time of the judgment, so as to avoid, as against the execution purchaser, all intermediate liens and alienations. ^ § 810. "V\niere the judgnient is not a lien, and there has been no attachment of the proj^eily sold on execution tlie deed relates back only to the levy,* or to the test;^ or, as in some of the states, to the delivery of the execution to the officer,^ us may be regulated by the local authority of the several states wherein there is not a judgment lien. Tlie rulings in several of these, as will be seen by the above references are variant. Eut if the proceedings were by attachment, then the relation will be to the date of the attachment and levy, in some cases from delivery to the officer.''^ § 811. In Illinois there is a statute requiring a certificate of levy to be filed in the recorder's ofiice in the count}' where the lands levied on lie whenever levy is made by the sheriff of an execution cmcnating from a different county, and making ' Donahue v. McXulty, 24 Cal. 411. - Johnson v. Adlemau, 35 111. 2G5. " Bac. Abt. Execution, 735; McCormack v. McMurtrie, 4 Watts, 192; Smith ». Allen, 1 Blackf. 22; Bidaie v. Bryan, 5 Ohio, 48,55; Kirk «. Von- berg, 34 111. 440, 448. * Reichart v. McClure, 23 111. 51G; McClure v. Euglehard, 17 III. 47. * Winstead ■». Winstcad, 1 Ilayw. 243; McLain v. Upchureh, 2 Morj)!). 353; Gilky v. Dickenson. 2 Hawks, 341 ; Lewis v. Smith, 2 S. & R 157. « Savage ■». Best, 3 How. Ill ; BankU. S. x. Tyler, 4 Pet. 3G6, 383 ; JSIillion V. Riley, 1 Dana, 3G0. '' Shirk V. Wilson, 13 Ind. 129; Cockney v. Milne, 16 Md. 200; McMillan V. Parsons, 7 .Jones, Law. (N. C.) 1G3. THE DEED. 1! i i Bucli certificate ^vllere filed notice of such levy to all subsequent purcliasers, and declaring that before such certificate is so filed the levy shall be of no effect as to subsequent creditors and honajide purchasers. But if such certificate be filed, then a sherifT's deed on execution sale nnder such levy bears relation as to title to the date on which such certificate is filed. ^ VI r. PiuoKriT. § S12. In Uaiildn v, Scott, the Supreme Court of the United States, (Marshall, Justice,) say: "The j^i'hiciplc is believed to be universal that a jDrior lien gives a prior claim, which is entitled to prior satisfaction out of the subject it. binds, unless the lien be intrinsically defective, or be displaced l)y some act of the partj' holding it M-hich shall post2:)one him in a court of law or equity to a subsequent claim." § 813. Therefore it follows from this, as was holden in that case, that a junior sheriff's sale and deed on an execution from a senior judgment, where judgments are liens, gives title to the jmrchaser against a senior execution sale and deed, on a junior judgment.- § 814. The rule is not only "nniversiil," but is as old as the law of liens itself, and is inseparately an essential -ptxrt of it. Priority is the very essence of the lien, and is its primary object. § 815. It is holden by many authorities, that where the plaintiff in execution becomes the purchaser, he will not be ])rotected against an unrecorded deed from the debtor for the same land older than his lien, as for want of notice of such deed, for that he has parted Avith no money, but merely receipted the writ. AVhereas, as is alleged, to place himself in the position of bona Jide -pwvcha&cv he must have actually made payment.^ But even the ground of this re. Ellis, 11 Iowa, 97; Howell «. Baker, 4 Johns. Ch. 119, 120; Gist V. Frazicr & Stewart, 2 Litt. 121; Blight -c. Tobin, 7 Mou. 61G; King 'c. Tharp, 2G Iowa, 283 ; Hannibal and St. Joe R. R. Co. v. Brown, 43 Mo. 294; San Francisco «. Pickley, 21 Cal. 5G. » Nesbitt «. Dallam, 7 Gill. & J. 494; Swope v. Ardery, 5 Ind. 213, 215; Griffith V. Hadley, 10 Bosw. 587 ; Hannibal and St. Joe R. R. Co. ■». Brown, 43 Mo. 294; Ringold xi. Patterson, 15 Ark. 209. In Hannibal and St. Joe R. R. Co. v. Brown, the Supreme Court of Missouri lay down the rule as follows: "It may be stated as a general proposition that inadequac}- of consideration is not of itself a distinct principle of relief in equity. XeverMieless, where the transaction discloses such uuconscionableness as shocks the moral sense and outraires the conscience, courts will iucerfere SiaTIXG SALE ASIDE. 291 § 857. So, when tlie price sold for is inadequate and the purchaser concealed knowledge which would tend to influence others to bid a greater sum, the sale will be set aside.^ § 858. Likewise, if the plaintiff in execution bid in the property by an oversight for less than his debt, and is willing to bid the full amount thereof, the sale will be set aside, and a re-sale will be ordered on his application." § 859. Where at an execution sale there was coiifusion in bidding by reason of conflicting writs of execution and liens, and also from conditional and unconditional bids being made by one and the same person, having a tendency to confuse and disconcert the officer, and the property sold for a very inade- quate sum compared to its real value, the court held that the sale should be set aside. ^ The otiicer "can receive only aii unconditional cash bid." Those acconi]-»anied with a condition should not be heeded.^ § 860. If a purchaser at sherift"'s sale succeed, by felse statements or suijirestions, in deterrins; others from bidding and thereby obtain the property for an inadequate price, the sale will be set aside ^ and a re-sale ordered. § 8G1. But one claiming an interest in lands under an executory contract of sale which is fraudulent as against the creditors of the party thus undertaking to sell, cannot com- plain that the lands were sold on execution against his intended grantor for an inadequate price as a reason for setting aside the execution sale; nor can the fraudulent claimant of such spurious incipient right set it up against the prior legal title of the execution purchaser procured by means untainted with to promote the ends of justice and defeat the macliinalions of fraud. The very fact that upwards of eleven thousand acres of valuable land in one of the best counties in the state was levied on to satisfy an execution of less than one hundred and fifty dollars, is suggesfive of the most flagrant abuse of legal process." ' Hutchinson v. Moses, 1 Browne, 187. ^ Ontario Bank v. Lansing, 2 Wend. 200. 3 Swope V. Ardcry, 5 Ind. 213. " Ibid. 5 Vantrecs v. Hyatt, 5 Ind. 487; Bouts v. Cole, 7 Blackf 2G3; Bethel v. Sharp, 25 III. 173. 292 JUTHCI.VI. AND EXECUTIOX SALES. iVaiid. Sucli fraudulent claim is invalid as against tlie rights of a Jjona fide j^urcliaser under the execution. ^ For the pre- tended owner of it the law aftbrds no remedy or day in court. AYere it untainted with actual fraud it would still be invalid for want of consideration, as against the bona fide creditors of the maker of it. III. Foii Misconduct of the Officer Selling. § 8G2. A court has full power over its officers and their acts in inakin2: execution sales, so far as to correct all wrongs and abuses, errors and irregularities, mistakes, omissions, and frauds; and whenever it is satisfied that a sale made under its process is affected with fraud, irregularity, or error, to the injury of either l^arty in interest, or that the officer selling is guilty of any wrong, irregularity, or breach of duty, to the injury of the parties in interest, or of either, or of any one of them, the court, on proper apj^lication, will set the sale aside and order a re-sale.- § 8G3. Though it is the duty of the officer to sell in jjarcols, or a less parcel than the whole tract, where a less quantity will subserve the purpose of satisfying the execution, yet the sub- division must be discreetly made with a view to the interests of all concerned. Therefore, for an officer to sell a central por- tion of a tract of land to his own son-in-law, and so taken out of the tract as to greatly impair the value of the residue, and so as to cut off all direct communication betw^een the remain- ing parcels, is an abuse of the process of the court; such an abuse is the more aggravated if the land be sold for a sum greatly below its true value, and the court will set aside such a ' Daniel v. McIIcniy, 4 Burk,(Ky.) 277. - Hamilton v. Burch, 28 Ind. 23;J; Lashlcy 'c. Cassell, 23 Ind. GOO; Drain V. Smelscr, 15 Ala. 423; White Crow c. White Wing, 3 Kan. 27G; Beutz x. nines, 3 Kan. 390. In Hamilton «. Bush, the court say: " Where there is any departure from duty on the part of the sheriff, vrhich may prove injurious to the rights of the execution defendant, in the sale of the prop- erty, and the consideration paid is greatly inadequate, the sale will be set aside." si-:rnKO sale asidk. 2 OP. sale, both for the improper conduct of the officer and for inade- quacy of price. ■^ lY. Fou MiSTAKK, LiKi-:(u:[.AmTv, and Fjiauh. § 8G4. A sheriffs sale of hind on execution -will be set aside for irregularity, fraud, or mistake, or for a -willful disregard of the law, as to the manner of selling, wherobj an injury results to either party in interest, or to tliird ])crsons interested l>ona fide in tlie subject matter of the sale. Such is the general tenor of the authorities on the subject.- § 865. Thus, the sale on execution of '* specific farms and lots of land together," (says SrENCER, Justice,) or " sales in mass of real estate held in parcels, arc not to be countenanced or tolerated." They arc oppressive and unnecessary, even if there be no actual frauds, and will on motion be set aside. ^ § S66. So, likewise, if by law the execution plaintiff has tlie right of election as to what property shall be levied, or the order in which it shall be taken, and is not allowed to exercise that right, the levy in such cases, will bo set aside,"* and so would the sale if made. § 867. And so if the sheriff raise by execution sale a greater amount of money than by the writ he is commanded to make, with costs, and the land sold was susceptible of subdivision so as to sell a less quantity and raise the amount only of money required, the sale will be set aside, unless the separation and ' Hamilton %\ Eurcli, 28 Ind. 233; Laslilcy v. Cassell, 23 IncL GOO. - Cattell v. Gilbert, 23 Ind. 614; Vantrecs «. Hyatt, 5 Ind. 487 ; Mobile Cotton Press Co. v. Moore, 9 Port. 679; Mj^ers v. Saunders, 7 Dana, 50C: Dougliertyr. Lintliicum, 8 Dana, 194; Rector f. Hart, 8 Mo. 448; Bay i-. Gilleland, 1 Cow. 230; Hayden ^). Dunlap, 3 Bibb, 216 ; Hutchins «. Moses, 1 Browne, 187; Wiggins «. Chance, 54 HI. 17i5; Stewart -y. Nelson, 25 Mo. 309; Abby v. Dewey, 25 Penn. St. 416; Niel n. Hone, 20 Mo. 296; Hooten V. Hirakle, 20 Mo. 290: Stewart v. Severance, 43 Mo. 322; Reed v. Carter, 3 Blackf. 376 ; Bethel v. Sharp, 25 III. 173. ' .Jackson v. Newton, 18 Johns. 355; Boyd c. Ellis, 11 Iowa, 97; Bradford V. Limpus, 13 Iowa, 424; Patton «. Stewart, 19 Ind. 233; City of San Fran- cisco «. Pirley, 21 Cal. 56: Griffith v. Hadley, 10 Bosw. 587. •* Evans v. Langdon, 1 Gilm. 307; Wiggins t\ Chance, 54 HI. 175; Steven- sou t\ Maroay, 29 111. 534. 29-1 JUDICIAT- AND EXECUTION SALES. sale of a smaller quantity would Lave tended to impair tlic value of the diiferent parts when so separated.^ § S6S. The sheriff's deed will not be set aside for being executed bv the sheriff's deputy. In Carr v. Hunt, the Iowa Supreme Court hold on this subject the following language: '- Tliat the sheriff's deed was executed by the deputy of the sheriff is no cause for setting it aside at the instance of the uts impediments in the way of redemption, as the judgment debtor will be compelled to redeem the whole or none. Moreover, although the price sold for may appear adequate, yet the debtor is entitled to have the property bring all it will command, and no?i constat^ but that if ofiered in parcels the aggregate amount of the sale would have been irreater than when sold as a whole. § 871. And the court will interfere, if necessaiy, by injunc- tion to prevent the delivery of the deed by the sheriff where different parcels of land are so sold in the aggregate.'^ § 872, If the plaintiff in execution be the purchaser and it turns out that defendant had no interest in the land, so that by the sale ^^laintiff took nothing, the sale will be set aside and satisfaction of the judgment will be cancelled.^ ' Carlisle i;. Carlisle, 7 J. J. Marsh. 625. = Carr v. Hunt, 14 Iowa, 20G. 'Jackson «. Ilosevelt, 18 Johns. ZTio; Piel v. Brayer, 30 Ind. 332; '^Vin- fcrs V. Burford, G Coldw. (Tenn.) 320; Catlctt v. Gilbert, 23 Ind. 014. *■ Ballauce v. Loomis, 22 111. 82. ' Ritcr r. Ilenshaw, 7 Clarke (Iowa) 97; Watson t. Reissig, 24 111. 281. SETTING SAr.E ASIDE. 295 § 872. Tlio execution sale of lands at a greatly inadequate price, and in mass, by description of the original tract, which had been subdivided into city lots and platted as such on the official map, was set aside as irregular for not having been sold or offered in parcels, as also for inadequacy of price. ^ § 873. But in some of the states it is held that, to justify the settinc: aside a sale for beino; sold in mass instead of in parcels, it should be made apparent, to the satisfaction of the court, that a materially larger sum would have resulted from the sale if sold in jjarcels, or else that the sale of less than the whole tract would have brought enough to satisfy the writ.^ § 874. If one, by means of promises of favor, prevents others from bidding for lands at an execution sale, and thereby obtain them himself at an mider value, he will not be per- mitted thus to enrich himself at the expense of others against all the principles of equity and moral pro23riety. Such a sale will be set aside if a proper application, in j)i'oper time, be made. ^ § 875. And so, where 23roperty was bid in at execution sale at a price greatly above its true value, under the impression and belief of the purchaser and of the officer selling, induced by the defendant in execution that the land covered a factory of considerable value, Vvdien, in fact, the i^remises sold consisted of merely a garden spot of trivial value, the sale was set aside. ^ § 876. A charge on land by will for the payment of a dece- dent's debts, is in effect a devise of the land for the payments of the debts, and is a trust which chancery will take hold of and sec that it is equitably applied. The land being thus a subject of trust, which is cognizable in equity only, is not lial)le to levy and sale on execution under a common law judgment, and, therefore, one creditor of the decedent cannot take advan- tage of other creditors and absorb the fund by taking judg- ment against the heirs, but must come into equity for a just ' City of San Francisco v. Pixley, 21 Cal. 50. ^ "Wallace v. Berger, 23 Iowa, 45G; Cunningham v. Fclkor, 26 Iowa, 117. ' Jilills V. Rogers, 3 Litt. 217. ' ]\Iullv3 V. Allen, 12 Wend. 253; Ontario Bank v. Lansing, 2 Wend. 2G0. 29G JUDiaAL AND KXECUTION SAI.K. and ratable distribution, and if lie undertakes to proceed against the heirs by levy and sale, on a judgment against them, the administrator may maintain before the chancellor a motion to quash or set aside the sale J Equality is equity, and one creditor cannot by superior diligence appropriate a trust fund ibr creditors generally to his own benefit. § 877. If a sheriff's sale be regular and fairwlien made no subsequent fraud or irregularity in anything regarding it will affect its validity or cause it to bo set aside. The cause must have existed at the time of the salo.^ § 878. A sale will be deemed fraudulent and will be set aside in Illinois for being made of lands in a distant county from defendant's residence, without his knov/ledge and under circumstances rendering it improbable that he may leai'n of it, more especially when, at the same time, there is ample property of defendant liable to sale on execution in the county wherein defendant fesides. Such a procedure is indicative of fraud and will not be upheld if application be made in proper time and manner to set the sale aside. ^ § 879. Y/hcre there is such misdescription of the premises that the purchaser can take notliing by his purchase, the sale will be set aside on application of the purchaser. * § SSO. So Avhere the defendant in execution has no interest in the j) remises sold, and is not in possession, so that the buyer takes nothing, the court will, under certain circumstances, set aside the sale.^ § 881. Though a bid may be received, if fairly made, and publicly cried at the time and place of sale, notvv-ithstanding it is made by letter; yet if it be not publicly announced, but 1)0 received and privately noted in the house, instead of at the door of the place of sale, with publicity, or if there be any other indications of unfairness, the sale will be set aside. "^ ' Helm V. Darby, 3 Dana, 185. •^ McCollum V. llubbcrt, 13 Ala. 289. ' Hamilton v. Quinby, 40 111. 90. * JlcPherson r. Foster, 4 Wash. C. C. 4o; Hughes v. Strccter, 24 111. 047. * Rockwell V. Allen, 3 McLean, 357. « Dickinson c. Burgc, 20 111. 2CG f^i-rriNG SAi.K asu)j:. 20" § SS2. In Davis v. Cavi/plell, wliicli "was a direct procecd- ino; to set aside a sale of lands on execution, tlic Supreme Court of Indiana hold, that where the statute inhibits the sale of the lands in fee, until the rents and ])rotits be first offered for a term of years without finding bidders, that a sale of the fee of the realty in the first instance, without first offering the rents and profits, is erroneous and will be set aside. And that where the statute declares the realty is not to be sold without appi'aisement, and a sale is made in disregard thereof, that sucli sale is unauthorized and will be set aside. And so if the statute give the debtor the right to select the property to be levied and sold, and the right is denied him, and a sale made in dis- reirard of it, such sale also will be set aside. The court in that case make no decision, they say as to whether the sale would or would not have been held void collaterally, but remark that " a sale will be set aside as erroneous in a direct preceding for that purpose, when it would not be held void in a collateral suit."i § SS3. W^iere a sheriff's sale of land was made under three writs of execution, the senior one of which being the first, if valid, to be satisfied, was void, such sale Avas held invalid and was ordered to be set aside.- § SS-i. And so two Avrits of execution, being at the same time in the hands of an oflicer for levy and sale against one and the same execution debtor, the senior one of which writs was subject to the valuation of appraisement law, and the other not, a sale made thereon, not in accordance v.-ith the valuation law, was held irregular and was set aside. ^ Such were the rulings in the Supreme Court of Indiana. § 885. But in Wisconsin it is held that an execution sale on two writs, one of which is void and the other valid, will confer title under the valid writ."* § 880. ■>\^iere the execution plaintifi' is purchaser at sherift''s 1 12 Iiul. 192. 2 Brown v. McKay, IG Iml. 48-1; Ilntchins v. Doe, 3 Ind. 528; Clark v. Watson, 2 Ind. 400. ' Harmon v. Stipp, 8 Blackf. 45o. * Ilcrrick v. Graves, 10 Wis. 107. '208 JUDiaAL A^'D EXECUTION SALJvS, sale, by a description so defective tliat notliiiinr passes Lj tlic sale, tlie purchaser " lias an equitable right to have the levy and sale set aside and an execution awarded, by which he can have the benefit of his judgment." But it must be done by the court. The cleric has no jjower, being a ministerial officer, to set aside a levy or sale, or to vacate an entry of satisfaction. These are judicial acts, and require the exercise of a judicial power equal to that which rendered the judgment. ^ § 887. If a sheriff omit to give the proper notice of an execution sale, and a person cognizant of that fact induce the officer to sell vathout notice by giving him a bond of indem- nity, and then becomes the purchaser, such conduct of the sheriff is illegal, and the purchaser being 'particcps crimims to it, the sale is illegal, erroneous, and void for fraud, and will l)C set aside. ^ § SSS. The endorser of a mortgage note has such an interest as will entitle him to prosecute proceedings to set aside the judicial sale of the mortgaged premises, and more especially so if the mortgagor or j^aj'or of the note be insolvent. Conse- quently, where the whole amount of the mortgage debt was estimated by the a2"'pi'''''iser, in appraising the lands, as resting j\\ the lands so appraised, when other lands w^ere also liable therefor, and thereby diminishing its appraised value, and the land was then sold in bulk, without an effort to sell it in sepa- rate parcels, it was holden that for these irregularities such endorser was entitled to have the sale set aside for his own protection as such endorser.-" § 889. The statute of Iowa, (Eevision of 1860, sec. 3318,) requiring notice of levy of a writ of execution on lands to be given to the defendant in the writ, applies as well to special executions in mortgage foreclosures as to ordinary executions • tf a general character.^ § 890. And where a levy and sale is made under such special execution of lands in actual possession of the execution debtor, ' Hughes V. Strceter, 24 111. C47. - Haydon v. Dunlap, 3 Bibb. 210. * Whitney v. Armstrong, 32 Iowa, D. * Fleming v. Maddox, 30 Iowa, 239. STirrnxG sale asidk. 209 Avitliont giving liiin the notice required by tlie statute, tlie court -will, on proper application, made in due time, set the sale aside; if by motion under the statute the application is to be made "at the same, or the next term thereafter." ^ But doubtless the sale Avould be set aside for the same cause on petition at any time, before the rights of innocent persons intervene, and -within a reasonable time. The remedy by motion is not exclusive. § 801. And so, when an attachment, or execution levy, is so grossly excessive as to raise the presumption of unfairness, and as to amount to oppression, and valuable lands are sold on execution in a body, for a sum greatly below their real value, the sale, where rights of innocent persons have not attached, will be set aside; and especially where the attorney of the plaintiff is the execution purchaser. § 802. And in such case, in answer to the objection of selling en masse, it will not be inferred that the officer first offered a smaller portion of the land without obtaining a bid; but the inference will be rather that of misconduct on his part in that respect. The Supreme Court of Iowa, Beck, Justice, in this respect, hold the following language: "It cannot be presumed that the proceeding upon the execution, beginning in the vio- lation of law and duty, and resulting in injustice and oppres- sion, was made valid by obedience to the law in its intermediate steps." 2 § 803. In Wisconsin it is holden that sale of real property :is a whole tract, when by statute it is directed to be sold in parcels, though not void, is voidable at the discretion of the aggrieved party, and on application therefor; but that such application, unless prevented by mistake, fraud, or other legal excuse, must be made within the time allowed by law for redemption from the sale. And that a subsequent mortgagee cannot apply to set the sale aside, but must seek his equitable right by action to redeem,"' § 804. Tlie courts will sometimes interfere by injunction ' Fleming v. Maddox, oO Iowa, 2:J9. " Cook V. Jenkins, 30 Iowa, 1~)2. ' Raymond v. Pauli, 21 Wis. ."illl ; Giiswold r. Stonghton, 3 Oregon, Gl. 300 JUDICIAL AND EXECUTION SALES. to prevent delivery of a deed, when different parcels of land have been sold in mass, at a price greatly under valne; but the relief will be afforded on the principle of doing equity, when equity is asked, and therefore the judgment debtor ask- ing the injunction will be required to pay off the judgment when the injunction is made perpetualJ § 805. In the case of BallancG v. Zoomis, here cited, the plaintiffs in execution were the purchasers at sheriff's sale, lience the requirement in the decree tliat payment be made of the judgment. § 896. An execution sale of land and deed thereon, though as to the description of the land so uncertain as to render it inoperative or void at law, in an action of right, will not be set aside or treated as void in a proceeding in chancery in the course of which it is made to ajDpear that the very lands intended to be levied and sold were levied, sold and conveyed, and that though the irregularity in that resjDect is against the execution purchaser, _yet the equity of the case is on his side and in favor of sustaining the sale and convej'-ance.- In the case here cited from 30 Iowa, the court say, IMiller, Justice: " The appellants insist, that the sheriff's deed is void for uncer- tainty in the description. This objection would perhaps be good if defendants were suing at law in ejectment. But plaintiffs are asking a court of equity to quiet the title to this land in them, and the defendants aver facts which in equity make it their property. These facts the demurrer confesses. The plaintiffs admit that this very same land was levied on under the execution issued upon the judgment of the Wapello dis- trict court, in favor of the State Bank of Indiana, against Charles F. Harrow; that this very same land was sold by the sheriff to Ilall & Wilson; but they (the plaintiffs) endeavor to avoid the effect of this by pointing out a defect in the descrip- tion of the land thus sold in the sheriff''s deed, and in equity, to take advantage of such defective description. There is no ' iiallance v. Loomis, 22 111. 82. 2 Ilackworth «. Zollars, 30 Iowa, 435, 438; Glenn r. Malona, 4 Iowa, 314, 320; Dygcrt v. Plctts, 25 Wcml. 402; Lamb r. Buckmclicr, 24 N. Y. G20. SETTINO SALE ASIDE. 301 equitable principle upon wliicli tliej can bo permitted to do this."i § 897. Ecpiitj will not avoid a sale for mere irregularity, nor for uncertainty of description, rendered sufficiently certain in the very proceedings by wliicli it is souglit to be set aside. It is not the office of the chancellor to relieve upon grounds merely technical. Y. Foii ItlCVKKSAL OF JUDGMENT. § 898. It is a principle well settled, that where, at an exe- cution sale, the plaintiff in execution, or owner, or beneficiary of the judgment, becomes the purchaser, and the judgment be afterwards reversed, that the sale will on motion or on any other proper and timely application be set aside. Tliat the defendant will be entitled to be placed in the same position which he occupied before the rendition of the judgment, and to have restitution of whatever he has lost by the sale, pro- vided the same, or the title thereto, has not passed out of such purchaser to a lonajide purchaser, or in some manner become subject to some right, erpiity or lien lojia fide acquired by an innocent person.^ § 899. And the same principle applies and will be enforced where the purchase at the execution sale is made by the agent of the plaintiff or bencliciary of the judgment, or by his or their attorney in charge of and prosecuting the proceedings, or by any other person for or in privity of interest with the plaintiff or beneficiary of the judgment, so long as the property remains clear of hona fide rights of innocent third persons.^ § 900. But the contrary is the rule when the purchaser at the sheriff's sale is an innocent third person, and is a Ijona ' Ilackworth ti. Zollars, 30 Iowa, 433, 438. ^ Gott «. Powell, 41 Mo.41G; Corwith ^. State Bank, 15 Wis. 2S9; JMcBain Ti. McBaiii, 1.1 Ohio St. 337; Hannibal & St. Joe II. R. Co. v. Brown, 43 Mo. 294; Milton t). Love, 13 111. 48G; Datcr ^. Troy, etc. Co. 3 Hill, G29; Win- ston t\ Ortlcy, 25 Miss. 45G; Hubble v. Broadwell, 8 Ohio, 120, 127. s Hannibal & St. Joe R. R. Co. v. Brown, 3 Mo. 294; Gott v. Powell, 41 Mo. 41G. 302 JUDICIAL AND EXECUTION SALES. iiJe pureliascr, who has paid the purchase money bcforo obtaining knowledge of tlie reversal of tlie judgment. ^ § 001. In the ease of Goodioinv. Mix^ the Supreme Court of Illinois e hold the followin:ua<2:e in reijard to the effect of a judgment and sale to a hona fide purchaser: "The com- plainant's counsel make a point here, that the judgments confessed bj the Wood worths in favor of Fridley were irregu- lar, and they are attacked on that ground. It is sufficient to say, an objection of this character cannot be sustained in this suit. Until re\-ersed for irregularity they can be enforced, and if reversed, a Ijona fide jDi^rchaser under them would be j^ro- tected," And such is the general doctrine. In such case the defendant in the judgment, whose property is thus taken from him, must look for his remedy over against the plaintiff who may have received the proceeds of it. The innocent purchaser is not to bear the loss. VI. Ketukn of tue Purchase Money. § 902. A purchaser of lands at sheriff's sale has no claim on the plaintiff in execution for return of the purchase money, wlicre the sale is void or the execution debtor had no interest in the property sold; and he cannot maintain a suit either in law or equity against such plaintiff for the same.^ § 003. jN'or can he recover for the same, at law, against the execution debtor; but he may in equity.^ § 904. Such purchaser has no right, however, to be subro- gated into the place and rights of the execution plaintiff, so as to thus assume the character of a judgment debtor; for by the ^ Stinison c. Ross, 51 Mc. 55G; Guitteau «. Wiseley, 47 111. 433; McLean 0'^ application of tlio j^urcliasc money paid by liim, the judgment is extingiiislicd to the extent of tlie amount so paid.^ § 905. But where the execution phaintifF is liimself the purcliaser, and the sale passes no title, the sale being void, or the property not being subject to sale on execution for plaiu- tiflf's demand, it is proper for the court to set aside the sale; vacate satisfaction of the judgment if satisfaction is entered, and allow execution anew on the judgment. So also where the property, though belonging to the defendant at one time, had ceased to be his by reason of a previous sale under a mort- gage which had priority over the plaintiff's judgment.^ ' Laws V. Tliompsou, 4 Jones, Law, (N. C.) 104; Richmond v. Marston, lo Ind. 134. « Watson V. Reissig, 24 111. 281; Henry d. Keys, 5 Sneed, 488; Ritcr v. Ilensliaw, 7 Clark, 97; Mason v. Thomas, 24 111. 285; Lansing v. Quacken- bush, 5 Cow. 38; Tudor v. Taylor, 26 Vt. 444; Adams v. Smith, 5 Cow. 280; Ontario Bank v. Lansing, 2 Wend. 2G0. CIIAPTEIl XX. REDEMPTION. I. The Right of REDEMrxiON. II. By the Execution Debtor. III. By Judgment Creditohs. IV. By ]\Iortgage Creditors. V. How AND When to be Redeemed. VI. Effect of Redemption. I. The Right of EEDEMFriox. § 90G. The i-iglit in law to redeem lands from execution sale exists only when given by statute; and the existence ot this right in each particular case depends upon the state of the law in that respect at the time and place of creating the lia- bility on whicli tlie judgment and execution were obtained. § 907. If by Law the right exists at the time when, and place where, the liability is incurred, then the right remains within the same state, M'herever therein the sale be made; but if the right docs not exist when and where the liability is incurred, then there is no redemption from the sale made at such place, although in the m.eantime a redemption law be there passed. ^ § 90S. If, however, the liability which is the foundation ot tlie iudo-m.ent and execution be created in one state, and the judgment and sale be in another, then the right to redeem from the sale will be regulated and controlled by the law of the forum, or state in which the judgment is rendered, as it is at the date ot the judgment; 2 by analogy to the ruling of the ' Howard v. Bugbee, 24 How. 4G1 ; Field v. Dorris, 1 Saced (Tenn.) 548; Malony v. Fortune, 14 Iowa, 417; Rosier v. Hale, 10 Iowa, 440; Brouson x. Kinscy, 1 How. 311. 2 Ilutchens v. Barrett, 19 Ind. lo; Doc v. Collins, 1 Carter (lud.) 24; Doe tj. Collins, 1 Smith (Ind.) 08. (304) KEDEilFlION. 805 courts In relution to valuation laws or the law of appraisement in execution and other lb reed sales. ^ § 909. Generally, where the ripjht of redemption from exe- cution sales exists, in favor of the execution debtor, it is also given l)y statute, if not exercised by him, to judgment and mortoraij-e creditors of such debtor, under certain limitations and restrictions. § 010. The right to redeem lands from execution sale may be created also by agreement of the parties independent of the statutory right to redeem;- and will be enforced. § 911. The legal right of redemption, and the terms thereof, are as diversilied, perhaps, in the different states as the states are numerous. Of the particulars of these it is not our pur- pose to treat; they will be found by reference to the ever- changing statutory enactments. § 912. But the rulings of the several courts on the subject, of a general character, are, in like manner as decisions on other subjects, a sort of common law and guide to the courts and pro- fession as far as applicable to cases arising, and are therefore attempted to be given. In Illinois the right of redemption is extended by statute to sales made on decrees of foreclosure of mortgages in like manner as from sales under ordinary process of execution/ and a decree of foreclosure in that state ordering a sale without redemption is erroneous, and will be reversed.^ § 913. A judgment debtor may redeem any one of several separate parcels of land, sold at the same time, but separately, to one and the same purchaser, and under one and the same execution. Xot to allow separate redemption (say the court) ''would bo a prodigious hard case."^ § 914. As a means of enabling delators to exercise this ' Howard v. Eu.irbce, 24 Kow. 4G1. "^ Wallace V. AVilson, 3-1: Miss. (5 George) 357 ; Southard v. Pope, B. ]\[onroe, 2G1 ; Miller v. Lewis, 4 Comst. 553 ; Lillard v. Cascj', 2 Bibb, 459. ^ Farrell v. Palmer, 50 111. 274. * Ibid. In this case, the court, speakinci: of the Illinois statute, say: "This section was intended to and does prohibit sales of mort_s^aQ. Wliatever the form of the writ may be, it must siih- stantialbj conform to the judgment upon which it issues. If it does not it M'ill, on motion, be quashed. ^ ' Bac. Abt. "Execution," 198 ; 3 Black. Com. 417 ; 3 Tidd'a Prac. 913, 917 ^2 Tidd's Prac. !)!;3; 8 Black. Com. 417. * Reese v. Burts, ;>9 Geo. ."jO"). 318 JUDICIAL Als^D EXECUTION SALES. § 9G7. A slight variance, liowcvcr, ^vill not vitiate the writ, tliongli it may be subject to be quashed therefor before sale thereon; but if it be not quashed, and sale is made thereon, the sale will be valid, if possession of the property be delivered to the purchaser. 1 § i)G8. If property be not found on \vhich to levy the Jieri facias, or its kindred writ as modified by statute, within the lifetime of the writ, then, on return thereof, the proper course is to sue out an alias fieri facias, and so on in succession, as a like necessity occurs, ^i?luries, and alias j>luries; but if there be a levy effected, and from any cause not affecting the validity of the writ or levy, the writ be returned without sale of the property levied, tlien an order for the issuing of a writ oi ven- ditioni exponas is to be obtained, and the latter ^VTit thereupon issues to the officer commanding him to sell the property so levied on the former writ oi fieri facias and remaining unsold. This writ of venditioni exponas confers no new or additional authority on the officer, but commands and compels him to do that which he was before authorized and commanded, by the writ o'l fieri facias, to do." § ^(Ji). In Alabama, and some other of the States, if execu- tion issue during defendant's lifetime, and be not executed, tlien an alias, ox ijluries, as the case may be, may issue after his death, whereon personal effects may be levied and sold, (but not the realty without revival of the judgment,) the lien of the first writ having attached to such personalty during defendant's life time.^^ If the judgment, however, be against two or more defendants, and one die, execution cannot go as against the realty without revival of scire facias, \i\\i may as to the per- sonalty of the survisors.'^ § 070. The writ, under all circumstances, must correspond to the judgment substantially; and if one defendant be dead, it must nevertheless run as against them all, but can only be executed against the personal property of the survivor or sur- ' Williams v. Brown, 28 Iowa, 247; Hunt c. Loucks, 38 Cal. 372. "^ Johnson 'c. Lynch, 3 Bibb. 34'5. ' Erwin b. Dundas, 4 How. 58. * Erwia r. Dundas, 4 How. 58; Ilildrcth r. Thompson, IG Mass. 193. THE AVIUT. ^ 319 vivors. Some times, liowever, on suggestion, the decitli of one of tlie defendants of record, the writ ^vill be ordered against the survivor or survivors alone. ^ § 971. The alteration of an execution in any manner ^vhat- ever, after it has passed out of the hands of the clerk, destroys its vitality and renders it void. All j^roceedings thereon are in like manner void. The alteration of process ^vill not he tolerated by the law, or courts, under any circumstances. ~ § 073. In the case here cited, Walkek, Justice, lays down the rule as follows, and no doubt correctly: "If the execution were altered in a material part, it would thereby become void. Courts can never pcr.nit such alterations of their process, thereby endangering the rights of parties as effectually as any other species of forgei-y.'' If wrong, it should be returned, that by leave it can be amended, or a legal writ issue. II. Its LiKX. § 973. At common law, this writ oi fieri facias bore rela- tion to its date, usually called the teste ;3 and bound the goods and chattels of the defendant from that time, or such thereof as were subject to levy, by wliich means it became a lien from its date."^ § 974. Cut this relation is taken away in England by statute, and with it the lien, so^f as to purchases intermediate between the teste of the writ arid the time of its actual delivery to the sheriff; and is made to commence only on such delivery as against sucli purchaser, so as to save intervening bona fide sales; the lien still remained, however, against the goods in ' Erwin v. DundaFs, 4 How. 58, 79 ; Johnson v. Adair, 3 Bibb. 384. In the case last cited, although the Avrit was quashed, j^et it was for other cause than issuing after the death of one defendant. The objection, on this point was in effect overruled, => White «. Jones, 38 HI. 159, 1G4. 3 1 Black. 179; Erwin v. Dundas, 4 How. 58; Dodge v. ]\Iack, 23 111. 95, * 3 Tidd's Prac. 914; 3 Bouv. 573, 574; Arclib. Civil Plds. title, "Execu- tion," 1 Hay. (N. C.) 39G ; Erwin t\ Dundas, 4 How. 58, 73 ; Dodge t. Mack, 22 111. 95. C20 JUDlCIAl, A2S'D EXECUTION SALES. the liands of tlie debtor liimself, and ovcrreaclics otlicr v/rits subsequently issued and levied. ^ § 975. In some of the American States, as in England, at common law, this lien of the writ of execution, in the hands of the sheriff, attaches to the goods and chattels of the defendant ia the bail wick, or county, from the teste of the writ.-* § 970. In others the lien attaches only by the levy;^ while in yet another class, the statute of 29tli, Charles the Second, is either followed or is substantially re-enacted. In this latter class the lien attaches as against the debtor, by delivery of the writ to the proper officer for service, but subject to Ijona fide purchases made before levy.*' = Stilt 29, Car. ii. 2 Tidd's Prac. 914, 915; Envia v. Dundus, 4 Ilfnv. 58; Woodward v. Hill, 3 ]McCord, 241. * Ilardina: -o. Spivcy, 8 Ired, G3; Union Bank v. McClung, 9 Humph. 91 ; Barnes v. Hayncs, 1 Swan, 304; Erwin x. Dundas, 4 How. 58, 75. 5 Beeves v. Sebem, IG Iowa, 234; Field «. ]\lilburn, 9 Mo. 493; Gilkcy v. Dickson, 2 Hawks, 341. « Bay c. Birdscye, 5 Denio. G19, 024; .Jolinson «. McLean, 7 Blackf. 510; Marshall t\ Cunningham, 13 111. 20; Furlong v. Edwards, 3 ,Md. 99; Tabb V. Harris, 4 Bibb, 31 ; McMahou v. Green, 12 Ala. 71 ; Newel w Siblej-, Dodge, Adm'r 'o. Mack, 22 111. 93, 95. On this subject we avail ourselves of the learned opinion of the Iowa Supreme Court, by Dillox, Justice, in Beeves & Co. v. Seborn, from which we make the following extract: "The defendant now claims tliat the execution, through not levied, was a lien upon the goods and chattels of the debtor. J^e are aware of no decision in this state fixing the time when the goods^«u execution defendant arc Ijound, whether from the teste of the wr^Bfr from its delivery to the ollicer, or from actual levy only. This suWct is now settled by statute, which provides that execution shall biud"n]y from the time of levy. (Laws 18G2, p. 231.) This act was not in force at the date of tlie transac- tion now in question, and hence it becomes necessary to state what the law -svas before the act was passed. At common law the writ of fi.fa. bound the chattels of the defendants from its teste. 3 Bouv. Inst. 573, 574, Areh. Civil PL title, 'Execution,' 1 Hay. (N. C.) 396; 2 Id. 57; 2 Hawkcs, 232; 3 Id. 290. As this had the unjust cfTect to overreach and defeat sales made even before the writ was delivered to the sheriff, it was remedied by llie statute of 29 Charles II. which made the writ binding from the time of its delivery to the sheriff to be executed. We have very few if any decisions as to Avhat the common law in this country is, because the subject is, in most of the states, regulated by express statute. Thus, in Xev,' York, the statute of 29 Charles is re-enacted, expressly. Bay v. Bird.seye, 5 Denio, G24; see, also, 12 Johns. 403. So in Indiana, 7 Blackf. 501 ; 4"ld. 49G; 4 Ind. 255. So in Illinois, 13 111. 20; 22 Id. 93. So in Ken- THE ^VKIT. 321 § 977. Tlic lien of tlic original execution is kept alive by issuing of an alias, ov pl'uries, or other subsequent writ rest- ing on the original, in proper time, and will cut off process issued during the intervening period between the time of issuing such subsequent writ and the issuance of its original. ^ § 978. In Kentucky the death of the defendant in execution abates the writ and no further proceedings can be had thereon; but it does not discharge the lien of the levy, if there be a levy, and equity will enforce the same.^ § 979. It is held in Illinois that the death of the defendant after the teste of the execution and before it comes to the hands of the officer, destroys its vitality, and that no valid levy can be made thereon ;3 but it is there holden also, that the lien of the writ is lixed by delivery to the officer, and that, therefore, if defendant die after the writ comes to the officer's hands, that such officer may go on and execute the writ by levy and sale."* tucky, 1 Litt. St. 540 ; 4 Bibb, 31 ; 2 J. J. Marsh, 421. So in Florida, 4 Flor. 126; and Maryliiiul, 3 Md. 09 ; and Alabama, 12 Ala. 71 ; Id. 247; 18 Id. 387. In Missouri, as between two officers the first levy holds, though the writ was delivered last. Field v. IMilburn, 9 Mo. 492. In California and Ohio, by statute, the lien is from the levy only. In North Carolina, where the common law, as a body, is adopted, the lien is from the teste, (8 Ire. G3, and cases supra,) and Tennessee follows North Carolina, (9 Humph. 91 ; 1 Swan, 304.) In the absence of statute, wc must conclude that the execu- tion is a lien, either from its teste, as at common law, or only from actual levy. "We do not feel bound to adopt the unreasonable and unjust rule of the ancient common law, so unjust, indeed, that it had to be remedied by statute. It docs not accord with the policy of our laws, nor harmonize with the decisions on kindred subjects. The whole current of judicial decisions, in this state has ever, and we think most wisel}^ been against secret constructive liens, especially when these are set up against pur- chasers. Barney v. McCarty, 15 Iowa; Same v. Little, Id. ; and Cumming.s V. Long, Id.; Jones v. Pcasley, 3 Green, 52; Gimble v. Acklc3^ 12 Iowa, 27. And we are not mistaken in saying that the professional sentiment in this state has always been that executions were not liens on chattels until actual levy. This was the opinion of the court below, and in this respect there is no error." (Reeves & Co. v. Seboru,) IG Iowa, 23G, 237. ' Brasfield v. Whittakcr, 4 Hawks, 309. ^Ilolemau v. Ilolcman, 2 Bush. (Ky.) 514; Wagner v. McCoy, 3 Bibb, 198. ' The People v. Bradley, 17 111. 485. ' Dodge V. Mack, 22 III. 93, 9G. 21 322 .lUDICTAL AXD EXECCTrO^• SALES. III. What siay be Sold. § 9S0. On the ^vl•it of fieri facias, at coininon law, in England, cvcrytliing tliat is chattel belonging by legal title to the defendant, except necessary wearing apparel, was liable to be levied and sold ; also, leases or terms for years, which are chattels real; likewise growing grain, which went to the executor as personalty; and all such fixtures as might be removed by the tenant, if the tenant was the defendant in execution. ^ § OSl. But such things as belonged to the freehold and descended to the heir, as furnaces, grov.-ing apple trees, and other things attached to the soil, or tenement, could not be seized and sold on execution, ^ Neither could judgments, accounts, bonds, bank notes, and other choscs in action;^ nor goods which were mortgaged or paAvned for debt;^ nor goods distrained, or demised for years, or goods seized and liolden on a prior execution ;S nor fixtures of a house which was the free- hold of the execution defendant. ° § 0S2. Property in the hands of a receiver appointed by a court is not the subject of execution levy or sale. It is in the custody of the law. Nor is it subject to an attachment or other interfering process. If a party has rights as against iu application should be made to the court, which controls both receiver and j^roperty, for the allowance or adjustment of sucli rights.'" § 983. In the case cited above from Iowa, the Supremo Court of that state. Cole, Justice, say: " The property levied upon by the appellants was, at the time of their levy, in the hands of a receiver appointed by the court. It was, therefore. • 3 Tidd's Prac. 917; 8 Bac. Abt. " Execution," G98. ■2 2 Tidd's Prac. 917; Craddock v. Pviddlcsbarger, 2 Dana, 200. 3 2 Tidd's Prac. 917; McGee v. Cherry, G Geo. 5r)0; Taylor v. Gillcan, 23 Texas, 508; Rhodes v. Megoncgal, 2 Barr, 39; Ingals v. Lord, 1 Cow. 240; McCloud v. Hubbard, 2 Blackf. 3G1 : Orsborn v. Cloud, 23 Iowa, 104. * 3 Tidd's Frac. 917; 3 Bac. Abt. "Execution," G89; Johnson v. Crawford, C Blackf. 377. ' 2 Tidd's Prac. 917. « 3 Bac. Abt. "Execution," 703; Winn v. Ingilby, 5 B. & A. G2o. ' Martin v. Davis, 21 Iowa, 535; Drake, Atlachts. Sees. 492, 504. THE wiiiT. 323 in the custody of the law and not properly or legally liable to seizure by an oflicer under an execution." § 9S4. In most of the several states, as a general rule, all movables, including bank notes and money not expressly ex- empt by statute, arc subject to levy and, except money, to sale on execution.^ Money, when levied, is applied on the writ by the officer. § 985. In some states choscs in action and debts due to the defendant, 2 shares of stocks in joint stock companies and in corporation, 3 maybe levied and sold, as also the mortgagee's right to personal property mortgaged to liim, after forfeiture by non-pa^^ment when due;'* but not the interest of the mort- gagor after snch forfeiture. ^ But if the interest be for a fixed time, then it is liable to levy and sale.^ Also growing grain and other crops of annual jDlanting can be levied and sold as at common law in some of the states, it is said, and the officer and others entering to leyj, sell, or buy, will not be tres- passers.''' But whether the term " annual productions," nsed ])y jurists when treating of this principle, extends legitimately to such crops as grow in the ground, is by no means clear to ' Handy r. Dobbins, 12 Jolms. 230; Homes v. Duncastor, 12 Johns. 395. - Collier v. Stanbrough, G How. 14. " Stamford Bank v. Ferris, 17 Conn. 2od. * Ferguson v. Lee, 9 Wend. 258. ' Lamb v. Johnson, 10 Cush. (Mass.) 12G. (Unless lie have an interest for .1 fixed time such interest may be levied and sold. See Rindskoff r. Lyman, IG Iowa, 2G0.) Marsh v. Lawrence, 4 Cow. 407 ; Otis ». Wood, ;-! Wend. 500; Campbell v. Leonard, 11 Iowa, 480. ^ Hull V. Carnly, 1 Kern, 501; IMattison v. Baucus, 1 Comst. 295; Rind- skofF«. Lyman, IG Iowa, 2G0, 2G9, 270. In this case, Dillon, Justice, said : "The cifect of such a sale is the same as if made by the mortgagor in the ordinary way. It does not defeat the mortgage, or destroj^, or in an}- manner impair the legal rights of the mortgagee. It gives the purchaser tiie right to take possession of and use the property luitil the day of pay- mcnt, or until the stipulated time expires; and it gives such purchaser the further right, by transferring to him the equity of redemption, to pay olV the mortgage debt, thereby extinguishing the lien of the mortgage, ivnd thus makijig his title absolute." ■I Wiiipple V. Foote, 2 Johns. 418; Ilartwcll v. Bissell, 17 Johns. 128; Pennablow r. Dwight, 7 IMass. ;14; McKinncy ■». Lamplcj', "I Ala. 52G; rurham v. Thompson, 2 J. J. Marsh. 150; Fierce v. Roche, 40 111. 292. 324 .JUDICIAJ. AST) EXECL-nOX SALES. our mind, for thcj cannot bo gathered without digging up and disturbing the land, which, to our mind, cannot be legally done in virtue of any sale of a mere personalty. In othei-s of the states, crops may only be levied and sold, when standing on the ground, after they have ripened or matured.^ § 9S6. In Craddoch v. J2lddlesharger,- the Supreme Court of Kentucky, Chief Justice Eobkrtson, hold the following language on this subject: "Although such annual produc- tions, or fruits, of the earth as clover, timothy, spontaneous grasses, apples, pears, peaches, cherries, etc., are considered as incidents to the land in which they are nourished, and are, therefore, not personal; nevertheless, everything produced from the earth by annual planting, cultivation, and labor, and which is, therefore, denominated for the sake of contradistinc- tion, fructus industrice, is deemed personal, a.nd may be sold." And the purchaser, by the same authority, has right of ingress and egress to cultivate, preserve, and remove the same, but acquires no interest in the land itself than such as is for the time being necessarily incident to his right to such growing fructus. § 9S7. Tlie interest of one of several tenants in common in personal property may be levied and sold on execution for the debt of such one. The officer in levying takes possession of the whole and delivers the wdiole to the purchaser,^ for each one of such common owners may take possession of the whole, as their interests cannot be separated; and so may the officer, who represents, in that respect, the execution debtor. The interest of the debtor, however, alone passes to the purchaser, and not the whole interest in the entire property.'^ The execu- tion purchaser holds the other interests for his co-owners. If after levy of such common interest, and before sale, the execu- tion debtor buy one or more of the other interests in the prop- ' Shannon «. Jones, 13 Irod, 206. ^ 2 Dana, (Ky.) 200; Parliam v. Tliompson, 3 J. J. IMarsli. 15&. 3 Birdscye v. Kay, 4 Hill, 158; Ilaydcn v. Binncy, 7 Gray, (Mass.) 416; Neaiy v. Caliill, 20 111. 214; While x. Jones, 33 111. 159; James «. Stratton, 33 111. 202. ' Neary v. Cahill, 20 111. r>9. THE -WRIT. ,325 ertj, t]ie officer, witliout furtlicr notice, may sell tlic entire interest of the debtor, including the rights so acqnired hy his purchase. § OSS. In Xew York, the sheriff may levy and sell the interest of one partner in goods of a co-partnership, upon a judgment and execution against one only of the firm, recov- ered against Iiim for his own individual debt. And if an attachment of the firm goods of a co-partucrsliip be made as against non-residents, and afterwards be vacated as to one or more of tlie partners who are residents, such attachment is not in itself an appropriation of all the goods so originally attached to the payment of the attachment debt. Under exe- cution emanating from such proceedings the officer can sell the interest only of the non-i-esident partners as to whom the writ of attachment and levy M'cre kept alive. ^ § 9S9. A merely equitable interest in personal property, miaxjeompanied M'itli jjossession, cannot be levied and sold at common law; and such, too, is the rule in Missouri. ^ It can neither be handled nor seen, and is incapable of delivery. If subject to sale it is only so b}' statute. But before forfeiture, the interest of a mortgagor in mortgaged personal property may be levied and sold if he still retains possession of the propert3\ The purchaser takes subject to, and may redeem the mortgage.^ § 990. In levjang and selling sliares of stock, where liable by statute, it is the shares, or interests, and not the certificates, that are acted on and sold, and a description by the numbers of the several shares, and by the owner's name, is sufficient.* § 991. Manuscripts secured by copyright, or which are the subjects of copyright, are liable to levy and sale on execution against the owner.'' But the officer levying can neither legally ' Berry v. Kelly, 4 Rob (N. Y.) 106. " Ycldeil V. Stemmons, 15 Mo. 443; Sexton v. Monky, IG ^lo. 1.5G; Boycc V. Smith, 16 Mo. 317. 3 Cotton V. IMarsh, 3 Wis. 221 ; Mcrritt v. Niles, 25 111. 282; Selirader v. Woinn, 21 Ina.238. * Stamford Bank v. Ferris, 17 Conn. 259. * Banker v. Caldwell, 3 Minn. 89. 326 ,;iIDICL\L AND EXECUTION SALES. use them, nor make, sell, or publish copies of tliem. If lie does either, he is liable to an action for so doini^.^ § 91>2. In Iowa it is held that the right of redemption in land from a trust deed is the subject of judgment lien, and that after sale by the trustee, the surplus fund, if any, repre- sents the subject of the judgment lien, and tluit the lien of the judgment is subrogated to this surplus fund, and may be enforced in equity against the same in the hands of such trustee; or may be levied and seized on execution, and process of fj-arnishee.- But a judgment is not liable, in Iowa, to exe- cution levy and sale.^ § 993. Iron safes and planing-mills, when not attached to the realty in such manner " as to indicate that it is designed to be permanent," are regarded as personal property subject to execution;* and though owned and used by a railroad com- pany, have been holden not to be exempt from execution as property appurtenant to the franchise, or as connected with the freehold; so, likewise, fuel, oiiice furniture, stationery, material for lights, and other detached property of tlie coi-po- rate company, are regarded in Illinois as subject to execution in proceedings against the company. ^ § 99-1. Under the statute of Kentucky subjecting lands to execution sale it is holden in that state that only such lands are so liable to be sold as the debtor himself might dispose of by sale and conveyance. That the language of the statute beino- " of the lands, tenements and hereditaments in posses- sion, reversion, or remainder," the debt should be levied, and th!it the deed should "be effectual for passing to the purchaser all the estate and interest which the debtor had and might lawfully part Avith in the lands," and as, by the then existing laws of Kentucky, lands adversely holden could not be sold or conveyed by the owner whilst thus out of possession, so the » Banker v. Caldwell, 3 Minn. 94. » Cook V. Dillon, 9 Iowa, 407, 413. 2 Orsborn v. Cloud, 23 Iowa, 104. It can only be reached by garnishee against the judgment debtor. " ♦ Titus V. Mabec, 25 111. 257, 2G0. 5 Ilunt V. Bullock, 23 III. 320; Palmer v. Forbs, 23 III. 302. TUE -WEIT. 327 power to sell on execution was limited to such lands as tlic debtor liimself might voluntarily sell and convey, and that lands adversely' holden against a defendant in execution could not during such adverse possession be subjected to execution sale. 1 § 095. It is moreover held, in the same case, in Kentucky, that a subsequent act of assembly, enlarging the powers of owners to make sales of lands so as to cover lands holden adversel}', did not authorize their sale under execution whilst such adverse possession continued; that while thus adversely occupied, the lands did not come within the description given in the statute of those which were to bo subject to execution sale; that though the debtor might now sell and i:)ixsQ the title thereto, yet they were not his " in possession, reversion or remainder," and therefore not liable under the act subjecting lands to execution and sale for debt.^ § 90G. Kor can the officer legally sell the lands of an execution defendant for his fees only, after the judgment as to principal is satisfied. lie must look to the plaintiff for his costs. 3 " ]\rcConnell v. Brown, 5 Mon. 481 ; Griffilh v. Huston, 7 J.J. Marsh. 388; M3-ors V. SamlcTS, 7 Dana, 510. = ]McConncll v. Brown, 5 Mon. 482. * Jackson v. Anderson, 4 Wcud. 474. CHAPTEK XXII. THE LEVY. I. When to be Made. II. How TO BE Made. III. Its Effect. IV. When Void, or DrscriARCED. V. When it will be Set Aside. VI. Constructive Levy. I. When to be Made. § 997. Unless made at a time proliibited Ly law, a Icvywill doubtless be valid at any time witliiu the life of tlie execution. § 998. Tliougli ordinarily it should be made, when prac- ticable, M'ithin reasonable hours and not at dead of night, to the annoyance of the debtor, yet there are emergencies which justify the making of it whenever practicable. ^ But it must be made during the lifetime of defendant^ and of the Avrit.^ § 999. Tieturnable to next term means the first day of such term. A levy made after the judicial end of that day, and sale thereon, are un"\varran table as on a levy made too late.^ § 1000. For such illegal levy and sale,° or even for the levy alone, trespass lies against the officer. "^ § 1001. If sale be made, however, and the proceeds applied to the debt, such fact goes in evidence in diminution of damaires.'' ' 3 Bac. ALt. "Execution," 734; Stale v. Thackliam, 1 Bay, 358. 2 Arnold v. Fuller, 1 Ohio, 458, 403; Cartney v. KclhI, 5 Ohio, 221. - Dovoe V. Elliott, 2 Caine, 243; Vail ■?). Lewis, 4 Johns. 450; Gaines v. Clark, 1 Bibb, 008. * Prcscott V. Wright, G Mass. 23. » H)i(l. « Ibid. ' Ibid. (338) THE LEVY. II, How TO BE Made. 329 § 1002. "A mere paper levy" is void.i Tlie officer should take actual possession ;2 but removal of the goods is not absolutely necessary ;3 yet there must be actual control and view of the property, with power of removal.'* § 1003. The property may then be placed in the care of a third party; 5 but at the risk of the officer. " Such control must be exercised as if done without the writ, would amount to trespass.'^ ' Caiy V. Bright,^ 58 Pcnn. St. 84. In this case the court say: "A mere paper levy is no levy at all, and a sale under it is a nullity. =•= * * A man mi,!^lit have his bed sold from under him by that means without his knowin.ij; it." Duncan's Appeal, 37 Penn. St. 500. s Westewelt v. Pinckney, 14 Wend. 123; Levi v. Shockley, 29 Geo. 710; Banks v. Evans, 10 S. & M. 35 ; Brown v. Lane, 19 Texas, 203 ; Leach v. Pine, 41 111. GO; Beekmau v. Lansing, 3 Wend. 446; Logsdon v. Spivey, 54 111. 104. = Very «. Watkins, 23 How. 4G9, 474; Bullitt ?). Winston, 1 Mumf. 2G9; Moss V. jMoore, 3 Hill, (S. C.) 27G; Pusrh v. Callaway, 10 Ohio, (N. S.) 488; Logsdon V. Spivey, 54 111. 104. "Ray V. Harcourt, 19 AVcnd. 495; Haggerty «. Wilber, 16 .lohns. 287; Van AVyck v. Pine, 2 Hill, GG6; Duncan's Appeal, 37 Penn. St. 500; Caw- thorn V. ]\IcCraw, 9 Ala. 519; Mintuan v. Striker, 1 Edni. (N. Y.) Sel. Cas. 356; Carey v. Bright, 58 Penn. St. 70; Logsdon v. Spivey, 54 111. 104. In Carey v. Bright the court hold the following language as to the levy : " In this case the question was only whether, as to part of the goods alleged to have been sold, there ever had been a legal levy. A mere paper levy is no levy at all, and a sale under it is a nullity as to subsequent execution creditors and purchasers. Lowry v. Coulter, 9 Barr, 349. A man might have his bed sold from under him by that means without his knowing it. There was here a considerable amount of personal property levied on, but the sheriff added to the inventory ' all other personal property in, about, and connected with said colliery,' and without having ever gone down into the mines or seen the property, he sold under that descri])lion, and left the whole in the possession of the defendants in the execution, from whom the landlord afterwards purchased it." ' Very v. Watkins, 23 How. 469, 474; Bullitt v. Winston, 1 ]\Iumf. 2G9. 6 Logsdon ». Spivej', 54 111. 104; Bullitt v. Winston, 1 Mumf. 269; Clever V. Applegate, 2 South. (N. J.) 479; Moss v. Moore, 3 Hill, (S. C.) 276; SmiUi c. Hughes, 24 111. 270. 'Westewelt v. Pincknej^ 14 Wend. 123; Havely ®. Lowrj-, 30 111. 44G; Davi.lson V. Walden, 31 111. 120; McBurnie v. Ovcrstrcet, 8 B. Mon. 303; Carey v. Bright, 58 Penn. St. 70; Allen v. McCalla, 25 Iowa, 464; Minor r. Herriford, 25 111. 344; PtOth v. Wells, 29 N. Y. 471; Duncan's Appeal, 37 Penn. St. 500. 330 JUDICLVL AND EXECUTION SMA-IS. § 100 J:. A description of the goods and tlie facts constitut- ino- tlie levy should be endorsed on the writ, under signature of the othcer.i A reasonable time tlierefor, and for removal, if the goods which are to be removed, is allowed by law.^ § 1005. A levy of goods within from the ontsioe of a locked up house is invalid, although one or more articles fouTid out- side are actually seized. It is only valid as to the articles seized.^ § lOOG. Though the officer cannot release the levy^ and tahe other property, yet he may levy other if the defendant, by any means, prevent the sale of the property ^rst levied on.^ So, to render an additional levy valid, it must appear that the iifst had become in some manner unavailable." § 1007. A levy and sale of a certain nnmber of brichs in a kiln, will be valid if they are in the power of the officer to deliver the same; and the buyer may, by direction of the officer, open the kiln and take them away;'' but not by select- ing the same; only in the usual manner. § lOOS. If from any circumstau'-e uctual possession cannot be taken, and a levy on mere view is relied on, then the officer should call indifferent persons to witness his open assertion of the levy, « § lOOO. The writ first received must be first levied. A postponement of the first, if by plaiutifi''s order, gives right to priority of levy to the second.^ § 10 10. If both are received at once, then they should be levied together, and of the proceeds of sale take share and share alike until either be satisfied; then the balance until satisfaction, goes to the other writ. ^^^ ' Iliifrgerty v. Wilbcr, 10 Johns. 287; Davidson v. Wclden, 31 111. 120. » Woods V. Van Arsdale, 8 Kawlc, 401, 3 Ilaggerty «. Wilber, IG Johns. 287. * Smith V. Hughes, 24 111. 270. ' Ibid. « Il)id. ■< Hill V. Harris, 10 B. Mon. 120. 8 Moore v. Fitz, 15 Ind. 4?,. 9 Deposit Bank v. Berry, 2 Bush, (Ivy.) 23G. '" Campbell v. Roger, 1 Cow. 215. THE LEVY. 331 III. Its Ei'TECT. § 1011, A proper levy to an amoinit siifKcient to satisfy the writ satisfies the judgment sub modo^ Unlike a levy on the realty, it vests in the ofiicer levying a special property in the thing taken. § 1012. But if withont fanlt of the officer or plaintiff the Ic^y becomes unavailing, then it is not a satisfaction of the judgment.- § 1013. The levy of personalty vests a special property in the officer '"^ which will ho respected and maintained even in dift'erent jurisdiction, as against the execution debtor, or a wrong-doer.'^ § 1014. In such case, the expenses of regaining the prop- erty will be reimbursed to the officer, with reasonable compen- sation for his services. 5 lY. IrYuEN YoiD, oil DlSCHAKGED. § 1015. A levy made after return day is void.^ So if made after death of the debtor.'' So, also, if the property be not subject to the writ, as if holden in valid trust for tlie payment of other debts of the execution debtor. ^ § 1010. A levy may be lost by unreasonable delay to sell,*^ and when so discharged by delay its seniority cannot be re- instated. ^ " ^ Ford e. Skinner, 4 Oliio, 378 ; Corning v. Hoover, 4 McLenn, 103 ; Smith r. Iluglios, 24 111. 270; Trenary v. Clicevcr, 48 III. 28; Cass v. Littleton, 3 ()lii(),^22;}; Green v. Burke, 23 Wend. 490. = Curtis V. Root, 28 111. 3G7, 377; Smith v. Hughes, 24 111. 270; Green v. Burke, 23 AVend. 490. = McClintock v. Graham, 3 IMcCord, 243 : Rhodes v. Woods, 41 Carb. 471 ; Williams v. Ilerudou, 12 B. Mon. 484. ■■ Rhodes v. Woods, 41 Barb. 471. ' Ibid. « iVIcClure ». Sutton, 2 Bailey, 3G1. ' Arnold v. Fuller, 1 Ham. (Ohio) 458. 8 Tliompson v. Ford, 7 Ired, 418; 1 Ohio, 4.")8; Cartuey ■». Reed, 5 Ohio, 221 *> Deposit Bank v. Berry, 2 Bush,(Ky.) G21. '0 Weber v. Ilcury, 10 Mich. 399, 403. 332 JUDICIAL AND EXECUTION SAI,ES. V. When it will be Set Aside. § 1017. A levy can only be removed by sale, or by an order of conrt, nnless agreed to be displaced by tlic parties to the writ.' § lOlS. It will not be discharged b}' a release of the prop- erty made through mistakc- § 1019. It will be set aside, if personal property be levied, without leave to the debtor to turn out realty, where he has a right so to do.^ § 1020. It will also be set aside if levied on property which is in the hands of a receiver under judicial authority,'^ VI. Constructive Le'vy. § 1021. AVlicre a sheriff holds several executions in f;ivor of different persons, but against the same judgment debtor, one of which being levied, the others come to his hands after- wards between the day of such levy and the day of sale, it is not necessary, so far as respects the property levied iipon by the first writ, or the surplus proceeds of sale thereof, to make a formal levy of the subsequent Mu-it or writs. The levy on the first writ is valid in law as to all the v.-rits subsequently received, so as to entitle them, each in their order, if more than one, to participate in and receive the surplus, if any, of the monies raised by the sale.^ 1 Smith V. iru. Burroughs v. AVright, 19 Vt. 510. " Humphrey v. Browne, 19 La. Ann. 158. THE SxVLK. Ou( § 1041. The officer, in selling, is to exercise sncli wholesome discretion in regard to the manner of selling, as a prudent person ordinarily would in reference to his own affiiirs under like circumstances, with a view to obtaining the best possible price for the property at a fair and honest sale. He should, therefore, in selling various articles of property, sell them separately, if intended for separate use, and not en masse, unless some of them be more suited to go together, i In the latter cases, such articles should be sold together, if thereby it is inferable that they would bring the better price, or be more generally acceptable to bidders. By separation, some articles intended to go together, would be measurably destroyed in value, whilst, on the other hand, the uniting others together would tend to force bidders to either forego the purchase of those desired or else buy such as they may not want. § 1042. One buying at execution sale, under his own execu- tion, will not ordinarily be compelled to pay over the money to the officer, further than the costs of others than himself; but may receipt the wi'it, if there be no other writ in the officer's hands claiming priority or contribution. ''Itw^ould be unreasonable and injurious to debtors as well as creditors, to insist that the creditor in the execution, should advance money on his bid, when the sole object of the sale is to put money in his pocket by paying a debt due to him."^ § 1043. But if there be a dispute about the application or distribution of the money, in case of more than one wa-it, then the officer may refuse to deliver the property to the plaintiff without payment, or may sell again. ^ The better course, how- ever, would be to report the proceedings to the court, as we conceive, and have the priority settled. § 1044. In cases of execution sales made where there is a valuation law, the same principal prevails in sales of personal, as of real property.* That is, if the liability occurred within the same jurisdiction wherein the sale is being made, then the ' Bac. Abt. Vol. 3, 704; Crcssou v. Stout. 17 Johns. IIG. - Nichols v. Kctchum, 19 Johns. 92; Eussell v. Gibbs, 5 Cow. 390. 3 Russell 1). Gibbs, 5 Cow. 390; Swortzcll v. Martin, IG Iowa, 519, 526, 527. « See Ante Ch. xrir., No. G. 9.9 338 JUDICIAL AND EXECUTION SAJ.ES. sale must be in conformity to tlie law, as it was when the lia- bility occnrred, provided the proper data to enable the officer to conform, in that respect, appears from the process. ^ If, however, the contract originate in one jurisdiction and the enforcement of it is in another, then the law of the state where and when it is being enforced is to govern the mode of sale." § 1045. So, in like manner, if it do not appear where the liability occurred, then the enforcement is to be in accordance with the law as it exists at the place of sale at the time of rendition of the judgment. § 104G. Such are the general j)rinciples, as applicable to execution sales, of both personal and real property. But the result of a departure therefrom is not necessarily, in all cases, and in all the states, the same in one case as in the other. § 1047. In Rosier v. Hale,^ the Supreme Court of Iowa, TjOwe. Justice, held : " The doctrine laid down is, that the law in force when the contract is made is necessarily referred to and forms a part of the contract, and fixes the rights and obliga- tions growing out of it, and that any substantial change in the law of the remedy which shall lessen its efficiency or bur- den it with new conditions and restrictions, comes within the constitutional prohibition. III. Its Effect: Wuat Passes t.y it. § 1048. The effect of an execution sale, realizing the amount of the execution, is a satisfaction of the judgment. Thereby it " ceases to exist." It loses its vitality. It can only be restored or revived by an order of court vacating satisfaction. The ' Brouson r. Kinzic, 1 How. 311; McCracken «. Ilayward, 2 How. 608; Gantley's Lessee v. EwinQ(l; Tiliotsoii t\ Millnnl, 7:Minii.513; Ci-onsou i-. Kinzie, 1 How. olo. " Ilelfcnslicn v. Cave, 3 Iowa, 287, 294 ; Clark v. Toltcr, 13 Gray, (Mass.) 21. ILXEMl'TIOX FKOM SAI.IC. liis part rcf^uii'cd tlicrcby, If any, as necessary to confer or lix tlic right. 1 § 1104. Under the statute in Io"\va, it is lioldcn tliat to con- ptitutc a homestead so as to attach to the j^rivilegc of exemp- tion from execution sale, there must be actual occnpancy as the (hvelling place of the owner, and that a mere intention to so occnpj', will not impart to the projierty the legal attributes of :in homestead. In the language of AVkight, Justice, in the lead- ing case of Charless v. Lmnbcrson^ " To be the homestead, it must be • used,' and used for the purpose designed by the law, to wit., as a home, a place to abide in, a place for the family."- '' A mere intention to occu]^, though subsecjuently carried out, is not sufficient.''^ And such, say the Iowa supreme court, is the unbroken series of decisions in that state. '^ § 1105. In Minnesota, prior to the act of April, 18G0, judg- ments were held to be liens upon homesteads, and though the latter were exempt from sales, so long as occupied as such, it was at the same time holden, that if the debtor removed from or sold the same, the homestead thereby became liable to levy and sale, on execution.^ § HOG. But by the act of April, ISGO, "-The owner of a. homestead," under the laws of said state, "may remove there- from, or sell and convey the same, and such removal, or sale and conveyance," will " not render such homestead liable or subject to forced sale on execution or other j^rocess." And it is further enacted that no judgment or decree of any court should thereafter be a lien on tlic homestead of the debtor for jiny purpose whatever. '^ ' llelfcnsleiu r. Cave, 3 Iowa, 200, 291. - Charless v. Lanibcrson, 1 Iowa, 435, 440; Ilalc t. Ileaslip, l.j Iowa, 451 ; Ilolden V. Pinney, G Cal. 285; Benedict p. Burnel, 7 Cal. 245; Wisner v. Farnliam, 2 Mich. 472; Prior v. Stone, 19 Texas, 371 ; Iloru ». Tuft, 39 X. II. 478; True v.. [Morrill, 28 Vt. 672. ^ Elston r. Robinson, 23 loAva, 208, 211 ; Christy v. Dyer, 14 Iowa, 438; Pope V. Ewbauk, 18 Iowa, 580; Cole v. Gill, 14 Iowa, 527; Williams r. Sweetland, 10 Iowa, 51; Hyatt f. Spearman, 20 Iowa, 510; Campbell©. Ayres, 18 Iowa, 252. ' Elston i\ Robinson, 23 Iowa, 211. •"' Tillotson «. ]\Iillard, 7 Minn. 513, 520; Folsom r. Carli, 5 Minn, 333. « Tillolson V. ]\nilard, 7 Minn. 513, 520. oO(> JUDICIAL AND EXECUTION SALES. § HOT. In tlic case oi yolsom v. Carll,^ above relcrrcd to, the court say: "We hold that under the exemption la\v', as it existed at the time this judgment was rendered and docketed, :ind the property sold, the lien of the judgment attached to the homestead, as well as to any other real property of the judg- ment debtor. That the exemption of the homestead was only an exemption from sale on execution, wlule occupied by the debtor or his family, but did not affect the lien of the judg- ment. That when Mclvusick, the judgment debtor, abandoned the property as a residence, and conveyed it to another, the exemption ceased, and the judgment creditor had then the right to enforce his lien by a sale of the premises on execution und tliat the grantee, Carli, took tlie property subject to the lien of the judgment." § 1108. In Iowa the ruling is to the converse of this, and Is there lioldcn under the statute that the owner may change his homestead from time to time, at pleasure, and may sell :md re-invest, without liability to execution." And so, like- wise, in regard to exempted personal propert}'.^ § 1109. In the case of Lamlj v. Shays,^ the court hold that although judgments are ordinarily liens against the real estate of a debtor, yet they are not so as against the homestead, and that the debtor may sell and convey the homestead at pleasure; and the estate will vest in the grantee, if so sold and conveyed while occupied and used as an homestead. The court holds, substantially, that a judgment lien is only co-extensive with the ])0wer to enforce it by sale, and that if tlie sale is prohibited the lien is a dead-letter. ^ The court say, " the right of exemp- tion continues until the sale and delivery of the deed to the vendee, and the lien cannot attach until tlie sale and delivery, nor until after it ceases to Lc occupied by the owner;" and tliat, " prior to this, the vendee's rights become absolute." In 1 5 Minn. 330, 338. ' Pearson v. Mintuni, 18 Iowa, 30; Lamb v. Shays, 14 Iowa, oCT. ■' Bevan v. Ilaydon, 13 Iowa, 122. * 14 Iowa, 567, .570; Cummings v. Long, 15 Iowa, 41. ' Sucli, too, is the ruling by Chief Justice Marshall in Scriba t. Dean. 1 ]irock.,lG6; Banl^U. S.«. Winston, 3 Brock., 253; and by Justice McLkan m Shrew v. Jones, 2 McLean, 78. EXEMrXION ritOM SAI.K. OO J LamJ) V. Shays the court justly remark, tliat " If tlic lien of ;i judgment confessed by, or taken against, the husband alone, (and to which the wife never assented,) can attach to, and sub- ject the homestead to the payment of his debts, it virtually destroys that peculiar interest of the wife in the homestead which the legislature seems to have been so strenuous to pro- tect." ^ § 1110. It is a principle of law, that what a person cannot do directly he cannot be allowed to do indirectly. From this it results that, as the owner cannot, by prior contract in the creation of a debt, waive the exemption by direct agreement, lie may not bring about a waiver by submitting to a judgment and thereby create a lien which will operate as such Avalver. § 1111. Cut by the ruling in the same case, Laml) v. Shay^, if the property ceases to be occupied and used as a homestead, the lien of the judgment then attaches thereto and it becomes liable to execution sale, as other realty. The language of the court is that " The moment it ceases to be used as such, the lien attaches, the same as it attaches against property acquired by the judgment debtor after the judgment is rendered, and the priority of liens can be determined, in the same manner." - § 1112. However liable the homestead may be to execution sale for debts contracted prior to its occupancy as such, yet, ordinarily, the creditor will be compelled, if required at the time so to do, to exhaust all other property liable to execution before resorting to the homestead.^ § 1113. In Barker v. Uollim^^ it is held that the provision of the Eevlsion section, 2281, that the homestead, when liable, shall not be " sold except to supply the deficiency remaining after exhausting tlie other property of the debtor which is liable to execution " applies only to the homestead while it remains the property of the debtor for whose debt it is sought to be sold, and not to the homestead property after it is trans- ferred by conveyance to another party. The Supreme Court, ' 14 Iowa, TiTl. - Lamb t\ Shays, 14 Iowa, 570. 3 Dencgre ■». Haun, 14 Iowa, 240. • 30 Iowa, 413. o5S JUDICLYL AXD EXECUTION SALES. Cole, Justice, after reciting the provision above referred to, sav: "The difficulty with defendant Cogshill is, that he is not the debtor, and is not within the Language or the spirit of the section quoted. His lioraestead was not within the contem- plation of the parties to the contract sued on. The creditor will be held to liavc contracted with reference to all the phases of homestead claimed by his debtor; but not as to any such claim by parties who should voluntarily purchase the property with full knowledge of the incumbrance upon it." The case above cited was brought to foreclose a mortgage, to which the homestead was justly liable, in the hands of the mortgage debtor, but only so, under the statute, after the exhaustion of the debtor's other property subject to execution. Tlie j^rop- erty was sold by the mortgage debtor to Cogshill, who was made a co-defendant in the foreclosure proceeding. He relied on the statutory privilege above referred to, as a protection and defense until the debtor's other j)roperty should be exhausted. Thus the question arose which elicited the decision that the privilege of exemption does not in such cases inure to the purchaser of the mortgaged premises. The homestead, that is, the homestead of the debtor, is not to be sold until his other property, subject to execution sale, is applied by sale to tlie discharge of the debt. Then only for the balance. But the court hold that, having been transferred and being no longer the debtor's homestead, it is no longer entitled to bo exempted under the statute. § 1114. In Tillotson v. Ilillard,^ it is held that the act of April 30th, 18G0, though valid as to transactions occurring after it took efiect, is unconstitutional and void as to contracts and judgments anterior thereto in date; that its operation is prospective only, and that it applies to such judgments and contracts as are subsequent thereto in date, and not those exist- ing at the time of its enactment. § 1115. In tlie subsequent case of Kelly v. Balder,- the Supreme Court of Minnesota hold, that when the homestead is confined to the proper quantity or value required or limited ' 7 Minn. 510. ' 10 Minn. 154, 157. ICXEMPTION FROM SALE. 359 by liuv, and is actually occupied by the dwelling-house and residence of the party, he can subject such j)arts thereof as are not covered by his dwelling-house " to any use which he " may "choose," without rendering any part of it liable to execution sale. § 1110. In Iowa the riding is so I'ar the converse of this that where the occupant of a three-story house and half lot, used and holden as an homestead, underlet the lower story and cellar to be used as a store, the Supreme Court held, (Stockton, Justice, dissenting,) that the j)art so underlet was liable to exe- cution sale.i But we would not be understood as assentino- to the correctness of this decision; nor do we apprehend that it will be ap]>roved of and followed by subsequent rulings, should like cases hereafter occur. We rather re2:ard the dissentinc: opinion of Justice Stocktox as the more sound, though not the more authoritative opinion. § 1117. In Ohio, by the act of April, 1S57, it is provided that " no married man shall sell, dispose of, or in any manner part with, any personal property, which is now or may here- after be, exempt from sale on execution, without having lirst obtained the consent of his wife thereto." And that, " If any married man shall violate the provisions of the foregoing sec- tion, his wife may, in her own name, commence and prosecute to final judgment and execution a civil action for the recovery of such property or its value in money." It is held, by the Supreme Court of that state, that under this statute, where the husband, without the concurrence of the "vvife, mortgaged j)i'op- erty otherwise exempt from execution, and the same w^as, after breach of the mortgage, sold on execution emanating from a judgment for the mortgage debt, the wife could maintain her action for the property thus sold. This, too, although the pro- ceedings were not by foreclosure of the mortgage, but by an action and. judgment at law for the mortgage debt; fur the execution of the mortgage was holden to be a disposal of the property which estopped the husband from claiming the benefit of exemption." ' Rhodes v. McCormack, 4 Io-\va, 3G8. ■ Colwell V. Carper, 15 Ohio St. 279. 3 GO JUDICIAL AND EXECUllON SALES. § Ills. Ill Iowa it is lield tliat a tliresliing-macliiiic, used hy the former for tliresliing liis own grain, and for tlircsliing the grain of others for liire, does not come within tlie meaning of the statute wdiich exempts from execution sale " the proper tools or implements of a farmer." The Supreme Court of that state say, DiLLOX, Justice: "We are of opinion that" it is " intended to exempt only the ordinary and usual tools of hus- bandry, and " does " not extend to a threshing-machine owned by a farmer, to thresh his own grain, and that of others for hire;" that the "law makes no extravagant exemptions. It is intended for the poor, rather than the rich. Its design is to enable the debtor and his family to live, by shielding from the creditor the ordinary and usual means of acquiring a liveli- hood."! § HID. In AVisconsin, state exemption laws hare been holden to apply to process of execution in the hands of the United States Marshal, issued on judgment in a court of the United States;" and that property exemjot by law is not in legal custody when taken by a United States Marshal and held on execution issued from a Federal court; that, therefore, an action of replevin will lie in a state court, at the suit of the execution debtor, against such officer to recover the property so taken and held by him.^ But however correct tlie former part of this decision is, on the supposition that the process and "proceedings thereon" of the state courts have been adopted by congress or by order of the United States court, yet the doctrine deduced therefrom, that an action of replevin will lie against the marshal on process from a state court, is unsound. 4 § 1120. As to the application of state exemption laws to I)rocess from a United States court in the hands of the mar- shal, that depends upon the adoption of the state laws, for the particular district, upon that subject. If by rule of court, or by act of congress, (as, for instance, was done by the act of ' Z^Icycr V. Meyer, 23 Iowa, 8o9, .375. - Gilinan v. "Williamson, 7 Wis. 329. ^Ibid. ■• Freeman v. Howe, 24 IIow. 440, and cases there cited. EXEMPTION FROM SALE, 301 congress of May lOtli, 182S,) siieli exemiotion laws have been adopted as rules of action governing processes from tlie United States conrt, then they are to be observed and conformed to in all their incidents of forthcoming bonds, appraisement and exemj-stions, by the United States Marshal, in the execution of process that may come to his hands. But if not so adopted, then he will be governed by the laws of the United States, and the exemption laws of the state will not be observed J § 1121. If, however, such exemption laws are adopted, so as to become a rule of action to the marshal in executing the pro- cesses of the Federal courts, and he violate those laws by levying on and taking possession of property exempt from execu- tion sale, or under any other circumstances make a wrongful seizure, yet no action will lie against him in a state court predicated on processes designed to wrest such property out of his possession ; for his levy and possession places the prop- erty in the custody of the court, and no other court can disturb such possession. 3 To obtain possession from the marshal, a better claimant, if there be one, should apply by petition to the United States court from which emanated the process under which the property is holden.^ § 1122. But this rule of law is no bar to a personal action for damages in money, in a different court, against the marshal for a wrongful levy of property not subject to execution ; and, therefore, trespass or trover may be maintained in such cases. ^ § 1123. It is moreover held that when, by such acts of con- gress or order of court, the state j)rocess and forms are adopted in regard to final execution, that such adoption carries with it the attendant legal attributes, incidents and inhibitions, that under the state laws apply to like final pj'ocess from the state ' Brigbtly's Digest, vol. i., 2G8, 2G9 ; United States v. Knight, 14 Pet. 301 ; Catlieswood v. Gapete, 2 Curt. C. C. 94; Binus v. Williams, 4 McLean, 580; Koss V. Duvall, 13 Pet. 45; Amis b. Smith, IG Pet. 303; United States Bank V. Halstead, 10 Wheat. 51; Beers v. Iluughton, 9 Pet. 320, 3G2; McNutt i\ Brand, 2 How. 9. ^ Freeman?). How. 24 now.440; Taylor v. Carryl,20 IIow. 583; Ilogan r. Lucas, 10 Pet. 400. = Buck V. Colbath, 3 Wall. 334, 345; Freeman v. Howe, 20 IIow. 440. * Buck V. Colbath, 3 Wall. 334. ?>03 JUDICIAL AXD EXECCnON SALES. conn; aiid as a consequence, the state laws, so far as constitu- tional, in regard to exemptions from execution sale, and in i-cference to appraisement before execution sale, will tlien apply to tlie execution of like final process in tlie hands of the United States Marshal in like manner as if the process was from the state court and being executed b}^ the sheriff, whether the same ])Q expressly adopted or not;^ with this difference, however, that if the appraisers summoned by the marshal fail to attend and discharge their duties, then the marshal may sell without appraisement, as hereinbefore stated. ' § 112-i. Under the statute in Missouri, personal property to a certain amount in value is entitled to be exempt from exe- cution sale, and the debtor, in case of levy, has a right to select the property. Under this statute it is the duty of the officer levying an execution on personal effects, to notify or inlbrjn the execution debtor of his right to make the selection. The omis- sion of the officer so to do, and more especially refusal on liis part to allow the debtor the privilege thus given by the law, is an oppression and wrong for which an action may be main- tained. ^ § 1125. By tlie laws of Missouri, property and wages, which are otherwise exempt from liability for debt, become subject to attachment whenever the debtor '-is about to remove out of" the state, " with intent to change his domicile." In such case ''all tliat he possesses is liable to attachment. "^ III. Waiter Tueueof. § 112G. Whether a waiver of the benefit of the exemption law, embodied by a contracting party in the contract, will ope- rate to render liable to execution sale, property exempt tlierc- fj'om by law, is a point decided differently in different states. § 1127. In loAva it is held that the contract of exemption is nugatory, and does not render exemj)ted property liable to 1 United States v. Ivniglit, 14 Tet. 301; 3 Sumn. 3oS; Amis v. Smith, IG Tot. 303. ' State V. Eomer, 44 Mo. 99. ' The State v. Lais, 46 Mo. 108. EPEMrXION FKOil SALES 363 sale on execution. That tlie enactment is a matter of state policy, and not that whicli the citizen may disregard. That although the same property might be sold by subjecting it to a mortgage foreclocure, yet the mere assent of the debtor exj)rcssed in the contract of indebtedness, will not render the statute inoj)erative, and make the property liable to seizure on execution, and to sale thereon. That the functions of the writ or powers of the officer can not thus be enlarged. And this Avould seem to me the better view of the case. It is the interest of the state to protect the welfare of its people against improvidence and against oppression. The operation of the exemption law, in its beneficence, extends to the family, if there 1)0 one, of the contracting debtor, as well as to the debtor him- self. If by his bare consent, the law be defeated, and that v/itliout consideration or benefit, the exigencies of the result fulls not on the debtor alone, but on those whom he is bound by law to provide for and protect; on those whos^e hands arc tied by infancy or coveture, and who therefore are unable to lielj) themselves. There would be fully as much plausibility in contracting for personal imprisonment, as of old, for debt, and which the state has abolished. ISTo process at law could in either case execute the contract. The office of the writ could not thus be enlarged. It is in either case a contract, if not expressly prohibited, at least against the policy of the law, and ibr tlie enforcement of which no process of execution exists at law. If its enforcement were attainable at all, it could only be by specified j^erformance, which would operate unecpially, as it is never awarded in personal matters; and if it were, could not be thou«;ht of for a moment to enforce an arranircment made against the policy and moral interest of the law.^ § 1128. In Pennsylvania, and some others of the states, the ruling prevails to the contrary, and the waiver is allowed to render the property liable to execution sale, but to our mind the functions of the writ and powers of the officer cannot be * Curtis V. O'Brien, 20 Iowa, 377; Troutman ■». Gowing, IG Iowa, 415; Wariubold v. Sclilicting, IG Iowa, 243 ; Woodward v. Muny, 18 Johns. 400; j\raxwell i\ Read, 7 Wis. 582 ; Kneetle v. Newcomb, 22 N. Y. 249 ; Crawford V. Lockwood, IIow. Pr. N. Y. 547; Gilmau v. Williams, 7 Wis. C2D. 304 JUDICIAL AND EXECUTION SALES. thus enlarged by agreement of parties. If the policy of tlic state was not in the way, the only force of such sale would bo by estoppel, which may not be invoked to sustain acts done against the policy of the law, and therefore cannot be resorted to in favor of such sales where the policy of the law regards them with disfavor. Why not, by like agreement, restore imprisonment for debt, although by law it is abolished? AYc find, however, that by the rulihg in several of the states, the exemption is holden to be removed when there is a waiver thereof in the original contract. ^ § 1131. But notwithstanding the ruling in Iowa, that by a ootcmporancous agreement, at the time of contracting the indebtedness, the debtor cannot so waive the benefit of the exemption law as to deprive him of the right to avail himself of it subsecjuentl}' when there is a levy to satisfy the indebted- ness, it is nevertheless holden by the same court that by sur- rendering to tlie oflicer property to be levied on, upon a writ of execution by the debtor, he thereby estops himself from reclaiming tlie same from being sold, and loses in that respect the ])enefit of the statute. That having voluntary rendered u]> property to be levied on and sold, as liable to such proceeding, he should not thereafter be allowed to say it is of a different character. 2 § 1132. lu Indiana, where the ruling is in f^ivor of a waiver of exemption, there is a constitutional provision that " the privilege of the debtor to enjoy the necessary comforts of life should be recognized by wholesome laws, exempting a reason- able amount of property from seizure for the payment of any debt or liability hereafter contracted; and there should be no imprisonment for debt, except in cases of fraud." § 1133. In Indiana, then, we see that both the exemption from sale and from imprisonment for debt rest upon the same ' Case V. Deumore, 23 Pciin. St. 93; Louck's Appeal, 24 Penn. St. 42G; Lino's Appeal, 3 Grant's Cas. 19G; Jolinson's Appeal, 1 Casey, 116; Bro-vvne c. Swiley, 31 Penn. St. 225; Smith's Appeal, 23 Penn. St. 310; The State CD rcl. V. Mclonge, 9 Ind. 19G ; Eltzroth v. Web?lcr, 15 Iiul. 21 • Chamberlain e. Lylc, 3 Mich. 448. 2 Ilichards v. Ilaincs, 30 Iowa, 574 iixEMi-noN Fii(>:,i s.vLi:. 365 liigli ground of constitutional autliority, subject simply to regulation by the logislatnrc as to tlic amount of property to be exempted. The courts there hold that the debtor may waive the exeraj)tion. ^ Would not tiie same ruling apply with equal pro]3riety to the imprisonment? And are the courts prepared to go thus far? We think the functions of the writ cannot be extended to cither, by mere private will of the parties. § 1134. We conceive the correct doctrine to be holden in the case cited from 20 Iowa, and kindred cases. In the case from Iowa tlie court sa}-: "We are agreed in the conclusion that a person contracting a debt, cannot, by a cotemporaneous and simple waiver of tlie benefit of the exemption lav/s, entitle the creditor, in case of failure to pay, to levy his execution, against defendant's objection, upon exempt property." § 1135. As the same law also exempts from liability to debt by garnishee, attachment, or execution, the money proceeds of daily labor, earned within a given time, in man}' of the states, it follows by a parity of reasoning, that wherever the doctrine of the Iowa court, above referred to, prevails, sucli 'earnings or wages, whether payable in money or j^roperty, arc in like manner incapable of being subjected to tlie debt of a debtor, by waiver of tlio exemption at the time of and in the contract creating the debt. The cases are j^arallcl. And by a like reasoning it would likewise follow that wherever the creditor may reach the one, he may also reach the other. § 1130. In Kneetles v. Nev:coml). and Woodicanl v. 3fiirry," it is held that the object of the law is " to promote the comfort of families and to protect them against tlie impro- vidence of their head." That " one object of municipal law is to promote the general welfare of society," and that " the exemption laws seek to accomplish this by taking from the liead of the family the power to deprive it of certain property by contracting debts which shall enable the creditors to take such property on execution." In the case from 22 ISTcw York the whole subject is discussed with much ability. The court ' ?]ltzrotli V. Webster, If) Ind. 21 ; The State ex relv. IMclongc, 9 Ind. 100. ^Woodward r. ?.Iuny, 18 Johns. 400; Kneeiles r. Newcomb, 22 K. Y. 249 360 JUDICLUL AND EXJX'UTION SALES. tlicrc say: '• Could a person, wlien contracting a debt, agree, for instance, that tlie act abolisliing imprisonment for debt should not apply to any judgment whicli should be recovered," on a certain contract, " or that on such judgment there should be no right in the debtor to redeem any land tliat might be sold under the execution, or that he should not be discharged under any insolvent act V^ The court say, " Clearly this could not be done;" and that "upon the same principle," the debtor '' could not, when contracting the debt, agree that exempt property might be taken on execution." That " the law does not permit its process to be used to accomplish ends which its policy forbids," though such use be agreed to. And so in the case of Maxioell v. liced,^ the court say, that " agreements to waive all right of exemption are null and void as against the policy of the law." The constitution of Wisconsin contains a provision recjuiring the Legislature to exempt a reasonable amount of property from sale on execution. This provision is substantially the same, if not in the identical words of the provision for the same subject above recited, as in the constitu- tion of Indiana. In view of this, the Wisconsin Supreme Court aptly ask the question by way of illustration, " Can the contracting parties not only repeal a statute, but upset the constitution itself ?" That court wisely assert that " the citizen is an essential elementary constituent of the state; that to ])reserve the state tlic citizen must be protected; and that to live he must have the means of living; to act and to be a citi- zen he must be free to act, and to have somewhat wherewith to act, and thus to be competent to the performance of his high functions." Hence the state j^olicy, say the court, of exempting such interests from sale on execution as shall enable him to discharge such services and devotions as may be due from him to the commonweal tli. § 1137. In Illinois a waiver of the homestead exemption is allowed by statute, " if the same shall be in Avriting, subscribed Ijy the householder and his wife, if he have one, and acknowl- edged in the same manner as convcj'ances of real estate arc bv ' 7 Wis. r>S2, 594. EXEMITION FK(\M SALE. 367 law required to be acknowlcdi^ed." It is moreover declared to bo tlic " object of the act to require in all cases the signatui-e and acknowledgment of the wife as conditions to the aliena- tion of the homestead." 'Nov:, under this state of the law in Illinois, where a homestead had been conveyed away by fraudu- lent conveyance, and was uncovered in chancery on a creditor's bill, and without such waiver in writing, was sold by decree of the court, it is holden that in an action of ejectment involv- ing title imder the decree and sale, the homestead could not be set up at law in such collateral proceeding; that the court having jurisdiction of the parties, the decree is final; that no claim of homestead having been interposed at the trial on the creditor's bill, it cannot now for the first time be made.^ § 1138. The case of Ifillcr v. Sherry does not involve the question of direct power to waive the exemption, but rests upon the unreversed decree of the court ordering the property to be sold in the ordinary course of judicial proceedings, made without any intervention at the time that the property was a homestead. Of course a regular and a fair sale, to a honafide purchaser, made under such a decree, would carry the title and could not be questioned in a collateral proceeding upon the plea, or showing, that the property sold was the homestead. This being the ordy point relied on as against the validity oi" the sale, its validity was rightfully sustained in such collateral proceedings. Whether right or wrong tlie decree was binding until set aside or reversed, and so likewise the sale made in pursuance thereof. But where the power to waive the exemp- tion, as in Illinois, is given by statute, by the same authority that confers the exemption, there could, of course, no question arise as to the ability of the debtor to contract for ji waiver of the privilege. In the case of ^filler v. Sherry," the homestead seems to have been of greatly larger value than that allowed for exonption by the statute of Illinois. Hence the inducement, perhaps, to the fraudulent conveyance. The debtor still continued in possession notwithstanding the con- ' Miller v. Sliony, 2 TV';ill. 370, and so in Iowa on mortgage f:rcclosure; Ilayncs v. ]\reek, 14 Iowa, .320. 2 2 Wall. 2.11. 3GS JUDiaAL AKD 1C\ECCTI0N SAJ-ES. vejancc, and occupied it as a homestead; but no such claim ■was interposed in defense of the chancery proceeding to sub- ject it to sale for debt. On error in the United States Supreme Court, in the ejectment suit in which the claim of liomestead exemption was interposed, the said Supreme Court lay no stress upon tlie excess of value, but say: "In regard to the homestead right claimed by the plaintiff in error, there is no difficulty. The decree under which the sale to Bushnell cx- ]-)ressly divested the defendant of all right and interest in the premises. It cannot be collaterally questioned." Thus the United States Supreme Court hold that having jurisdiction, the decree of sale is final as well of the homestead as of other ])roperty, if the objection be not interposed before decree, or the decree be not, before sale, reversed. § 1139. A similar ruling is had in Iowa in the case of lluyncs V. Meck,^ where a mortgage debtor attempted to set up the homestead right as a defense against the title of a pnr- cliase at the mortgage sale, made judicially on decree of fore- closure. The court hold that the mortgagors having had their day in court as parties to the foreclosure proceeding, and liaving there omitted to make the alleged defense of fraud in obtaining the wife's signature to the mortgage deed, they could not set the defense up, collaterally, and thus go behind tlie mortgage decree. In this case the court say, that if the defense be true, " the plea is bad, for the reason that this homestead right, if it ever existed, was lost to him (defendant) by failing to set it up in the foreclosure proceeding; in other words, he has had his day in court upon this alleged homestead right. § 1140. But in Ohio it is held that a decree uncovering property from a 'fraudulent conveyance, made in behalf of an execution creditor, and subjecting such property to sale, is of no higher character than an execution would be, when issued on tlie same judgment, as against the operation of the liome- stead law, and that it is sufficient in point of time if the objec- tion that the property is exempt from sale as an homestead is jnade at the time the decree is about to be executed.- In the ' 14 Iowa, 220, 321. * Scars V. Hanks, 11 Ohio St. 298, 302. EXECUTION I'llOM SALE. SG9 case cited tlic court liold that, " tliongli the final process on decrees in chancery for the sale of property ^vas called 'an order of sale,' it was nevertheless 'a writ of execution on a decree' vrithin the meaning of the statute;" that as the j^lain- tiffs therein were only asserting the rights of judgment credit- ors, the '' order of sale merely took the place of an ordinary execution upon their judgment;'' and that the attempt to sell on such order is clearly within the statute by which tlie home- stead is exempt. In the case cited,' the court go further, and hold that the execution of a conveyance of the homestead by a judgment debtor, which is fraudulent as against the judgment creditor, will not subject the property so fraudulently conveyed away to sale upon execution. Nor will the uncovering of it by a decree at the suit of the judgment creditor setting such conveyance aside; that such creditor's claim is not " under or through the fraudulent conveyance, but adverse to it;" and that when at their suit the deed is set aside, they, as creditors, " cannot set up such void conveyance to enlarge their rights or remedies against the debtor;" that "as between creditor and debtor the deed is simply void, and cannot, therefore, affect tlic riirhts of either;" that "if the debtor have no title or interest in the property levied on, there is nothing for the creditor to sell;" and that it is not competent for the debtor to deny the right of the debtor and at the same time sell the property as his; that "if he has an interest in the homestead property which the creditor can sell, he has interest enough to secure his homestead from sale;" that the homestead act is to ])c liberally construed as wise and humane, and as " intended to protect the family from tlic inhumanity which would deprive its dependent members of a home." ' Sears v. Hanks, 14 Ohio Si. 300 301. 24 CnAPTEll XXYI. APrLICATIOX OF THE PROCEEDS. § 1141, Wlictlicr the sale Lc a judicial one, or ministerial, as on ordinary execution, the officer should return the proceeds into court, fur application or distribution. In executions, the command of the Avrit is to have the money in court. The court has po^ver to control, by order, the application or dis- tribution of the funds in cases of dispute. ^ § 1142. A motion at law is the remedy by which to obtain distribution or correct a distribution, and is to bo made in the same court whence proceeded the authority to sell.^ § 1143. The order, when made, is a j^rotection to the officer, and if not appealed from is final. ^^ But not against outsiders not jiarties to the proceedings.'* § 1144. In IIovKiTcVs casc,^ it was held, in Alabama, and again by the Supreme Court of the United States, that such adjudication, or order of distribution, will not affect the rights of outsiders not in some manner parties to the proceedings before the court. On the contrary, while the order of distribu- tion, when made, is final, in like manner as other judgments or final findings, until set aside or reversed, as between the parties before the court, other parties in interest, if any, may jissert their rights, by proper application to the courts, irre- spective of such order, and may enforce the same against any or all of them who may wrongfully obtain such part of the ' Robinson's Appeal, 02 Pcnu. St. -^17 ; Turner t\ Fcndall, 1 Crancli, 117 ; AViley v. Budgman, 1 Head, OS. « Chittenden v. Rogers, 42 111. flo. 2 Noble t. Cope, 50 Penn. St. 17, 20. ■« Matter of Howard, 9 Wall. 175. * 9 Wall. 175 ; and sec, as bearinarty if iu court at tlic making of the order of distribution. § 1145. The first le\y, if there be no priority of eitlicr Avrit, -vvithdi-aws the property from liability to be again levied while thus in the hands of the law, whether such first levy bo on process from the state or from the United States courts, and gives such first levy priority of satisfaction. § 114(5. J3ut if there are two or more writs, from the same jurisdiction, in the hands of the same officer at one and the same time, and neither emanate from judgments that are liens, then, as before stated, they are to l^e paid ratably out of the proceeds. § 1147. This cannot be done, however, as between a United States jdarshal and a sheriff. In the absence of liens, the first levy has precedence in distribution of the funds. A levy vests H special property in the officer. Such property cannot be thus vested at the same time in both.^ If there is a lien contra- vened by the first levy the party injured should apply to the court issuing the writ on which such levy is made, for relief. § 114S. In Nohle v. Copcy' the court say, in reference to the order of distribution, that '-'it was neither excepted to nor appealed from, but was acquiesced in by K'oble and all other creditors of Klusmeyer. It concluded, of course, every issue that could have been properly litigated therein." § 1140. If there be several executions, and one or more of them emanated from judgments that are liens, then these are first to be satisfied. Their satisfaction is each in their order according to seniority.^ § 1150. But the costs of the officer are not to be postponed to such seniority. lie is entitled to his costs; and so, also, as to the costs generally of the writ on which the sale is made; whether it be senior or junior, the costs should be paid out of the proceeds.^ ' IIa>Tan v. Lucas, 10 Pot. 400. ' 50 JPerni. St. GO. » Steele v. Ilaniiiih, 8 Blackf. 82G; State «. Salyers, 17 Ind. 432; Bagby n. Reeves, 20 Ala. 427 ; Lawson t\ Jordan, 19 Ark. 297 ; Thompson t. l^IcCord, 27 Geo. 273; Newton t. Xunnalh^ 4 Geo. 356. * Shellv's Appeal, 38 IVnn. St.'^210; McXicl ... Bean. 32 Vt. 429. 372 JUDICIAL AXD EXECUTION SALES. § 1151, If the senior judgment be against tlic defendant by a M-rong name, or in a foreign language of his right name, then the writ emanating tliereon loses its preference in the distribution; for the law requires proceedings in tlic English language. ^ § 1152. So, if the senior judgment be dormant, the wi-it issued thereon loses its priority." And so between two writs where both have issued on separate judgments after the year and a day, the first levy gains priority. ^ § 1153. In case of several writs emanating alike from judg- ments that are not liens, neither will have preference, but they are to be satisfied ratably.* Though the leading case to the last point cited was a case of mortgages,^ yet the same rule applies to writs of execution generally, where there is no seniority of lieii.^ § 1151. In a question of priority of payment between exe- cutions issued from different courts, the coui"t from which emanated the writ on which sale is made is the one to settle the priority.*' § 1155. Though a plaintiff have the senior lien he cannot apply the proceeds of sale, if the debtor be insolvent, to the prejudice of a younger writ, for a debt for which he himself is security. The court will apply the funds to satisfy the junior ^\Ti t. " § 1150. By omission to follow up an execution from term to term v/ith s.n alias, plurics, etc., exccntion issued on a judg- ' Nicl's Appeal, 40 Pcnn. St. 453. 2 Lytic V. Ciii. Manf. Co. 4 Ham. 409. ' Sellers V. Corwin, 5 Ham. 398. * Birdenbecker v. Lowell, 33 Barb. (N. Y.) 0; Wilcox c. May, 19 Ohio, 408; Hagan v. Lucas, 10 Pet. 400. " Wilcox V. Maj^ 19 Ohio, 408 ; Stagg ex parte, 1 N. & M. 405 ; Hagan «. Lucas, 10 Pet. 400; Lawson v. Jordan, 19 Ark. 297; Matthews v. Warne, G Halst. 297. " Woodruff V. Chapin, 3 Zabr. 500. The court issuing the senior execu- tion, (if from different courts,) has the sole jurisdiction. ■" Kowlaud V. Gold-smith, 2 Grant's Gas. 378; and as bearing upon the same subject, see, also, Collins' Appeal, 35 Penn. St. 83; Moss' Appeal 35 Pcnn. St. 1G2; The flatter of Corner, 12 Rich. Law (S. C.) 349. ArriJCATION OF THE TEOCEEDS. ?u o mcut rendered in the interim will gain precedence if the prior jndgijient be not a lien.^ § 1157. But if the succession he kept up in a timely man- ner, the subsequent writs will relate back to the test of their original and carry its lien, as to the personalt}^, to that date.^ § 115S. The safer course is a venditio exponas, with a clause of reference to the original writ and levy.^ § 1159. If there are several writs, the one earliest in test takes preference for satisfaction out of the personalty."^ § IIGO. In proceedings against the heir of a deceased debtor the oldest judgment and execution take priority.^ § llGl. Indulgence granted on the original writ does not destroy its lien as to the debtor and those claiming under him^ by purchase from him. § 1102. In a conflict for satisfaction between a mechanic's lien and a j^rior mortgage, the rule in Illinois is to apportion the proceeds, when insufficient for both, in such manner between them as to give the mechanic's lien the relative portion of increased value caused by the improvements. That is, such sum as bears its just proportion to the proceeds of sale in reference to the mortgage debt.'' § 11G3. In Kansas an unrecorded mortgage of land is entitled to prior satisfaction ove^ an execution and judgment junior in date to the mortgage. Though judgments are liens, they are not- recognized as such as against lands to which others have an efpiitable priority for satisfaction of a debt.^ § 11G4. The rule in Louisiana is, that a mortgage creditor may follow tlie j^roceeds of an administrator's sale of the mortgaged lands and have them applied on satisfaction of the » ]\IcBroom v. Rives, 1 Stew. 72; Carey v. Grea:g, 3 Stew. 403; Durson x. Shepherd, 4 Dev. 797 ; Palmer v. Chirke, 2 Dcv. 354. '' Stamp V. Irvine, 2 Hawks, 232; Dilkey v. Dickenson, 2 Hawks, 341. 3 Yarborough v. The State Bank, 2 Dev. 23. ■* Green v. Jolmson, 2 Hawks. 300. " Irwin V. Sloan, 2 Dev. 349; Ricks v. Blount, 4 Dcv. 128. * Armstrong v. Sledge, 2 Dev. 359. 1 Crosby ■!). N. W. Manf. Co. 48 111. 481; Ilowctt v. Selby, 54 111. 151; Dingledine v. Ilershman, 53 111. 280. * Swartz XI. Steers, 2 Kansas, 23G. 374 JUDIQAL AND EXECUTION SALES inortirao-c debt. lie is siibrocrated to tlie fund arisinir from O O O 'Til tlic sale.^ § 1105. Ill Alabama, as between writs of equal priority, the fund is ec[ually divided between them, and if an excess over either one, the excess is equally distributed between the others." § llGHrchase after mortgage, 819. effect of record, 820. Ohio rule as to, 821, 822, 823. not bona fide unless money is paid, 824. }>i-ior equity over assignment, 825. writ first levied when it confess, 826. sale subject to mortgage, 827. cU'ect of record as to satisfaction, 828. irotcmporaneous liens, 829. how modified, 830. Pennsylvania rule as to registration, 831, 832. yill. Registration, 283, 284. sheriff's deeds within provisions of rcgislratlC'n aclL\ ^'^SS. priority of recording, 834. imperfect recording, 834. Io^ya law as to, 885. decisions under, 835. IX. Collateral Impeachment, 284-287. \vhen deed is not subject to, 83G. Iowa law as to, 837. construction of, 8;37. New Jersey rule as to, 838. Mississippi rule, 839. South Carolina rule, 840. evidence of ofiicer making deed, 841. want of seal, 842. X. Estoppel, 287, 288. defendant in execution estopped by sheriff's deed, 843. evasion of disability, 814. illustrative case, 845. application of rule, 840. void execution does not Avork estoppel, 847. of debtor as against purchaser, 848. by statute of frauds, 849. INDKX. 3S 1 DEED, THE, IN JuDUiAi. bAi.Ks, Cli. ix, lll-l.-.l. I. By AV^iio.m to ue IMadk, 141-145. sale not complete till tlocd is delivered, 3."*7. party selling makes the deed, o'u. sale jierfected by conlirmation, and delivery of deed, ;JG7. in some cases by approval of deed, "."iT Illinois doctrine contra., ooS. eflect of an advanced bid, oot). confirmation, as to necessity of, ;300. sale by successor, 361. cflect of death of licensee, ;l(Il. license to sell, official not personal, 0G2. deed of administrator cannot be executed by a,;^ent, oG3. procedure where administrator is b(!yond jurisdiction, u04. deed should be by administrator as sucli, tliough sale is under special law, 305. administrator pro tan. cannot make deed v.ithout special aulhnr- ity, 3GG. _ so as to administrator dc horn's noti, in Mississippi, 3<>T. deed of unmarried woman as guardian, 3C8. II. To Whom to be Made, 145. ordinarily to purchaser, 3G'J. unless otherwise ordered by court at his rcquesl, 309. effect of deed to assignee of purchaser, 3G!). deed to assignee generally valid, 370. III. When to be Made, 146, 147. as soon as sale is confirmed and purchase money paid, 371. if on credit, right to deed depends on circumstances, 371. as to time of delivery, dependent on order of court, 372. statutory provisions as to, 374. IV. Its Recitals and Desciiiptioxs, 147, 148. mere misrecitals will not invalidate, when, 375. nor misnomer, 376. Iowa rule as to term administrator, 377. recital of order or decree in deed, 378. safest to do so, 378. effect of confirmation, 378. V. What Passes by it, 148-153. only such property as is authorized to be sold by the decree, 370. sale of undivided interest by guardian carries onh' interoi^t < f ward, 380. deed under mortgage foreclosure carries entire interest of iii'-ri- gagor and mortgagee, 381. but does not divest subsisting equities, 381. carries title only as against parties to the suit, 383. widow's dower not conveyed by guardian's sale ordinarily, 383. olhcrwi.?/j in Missouri, 383. 382 ixDEX. DEED, T:ilE — Conti/mcd. effect of her wnrrauty -vvlicn deeding as guardian, 38:3. Xew Hampshire rule as to deed of conservator of insolvent estate, 384. Pennsylvania rule that interest of parties to suit only is con- veyed, 385. mortgage by co-partner, pending proceedings iu partition, overruled by deed to purchaser at partition sale, 38G. fjroicing crops do not pass where land is valued before sale, 387. so as to emblements, 388. growing crops regarded as personalty, CSS. but occupier of premises cannot put in crop after sale, 339, 390, 301. authority of administrator to make deed must be shown, 393. if appointment of administrator is void his deed is void, 393. DOWER LANDS, sale on execution of, 540-548. EQUITABLE INTERESTS, sale of ou execution, 551-555. ESTOPPEL, Ch. xi, 1G4-1G7. nature, origin of, and title conferred by, 442. sale of property in owner's presence, and without his dissent, works, 443, 45G. binds parties and privies in blood and estate, 444. estoppel of anccster estops heir, 445. run with the laud, 446. illustrative case, 44G, 447. by recitals in deed, 448. by warranty of doweress in her deed as guardian, 449. by ob'ention of injunction as to proceedings, 450. by receipt of purchase money, 451. mortgagor's title, 452. guardian cannot work as to his ward, 453. l»urchaser at void judicial sale is not estopped, 454. receipt by ward of purchase money after coming of age, 455. favored when equity is promoted, 45G. EXECUTION SALES, nature of. {See Nature of Execution Sales, 4G-G8.) EXECUTION SALES OF CORPORATE FRANCHISES, PROPERTY AND STOCKS, Ch. xxiv, 344-352. T. At Common Law, 344-34G. must be under statutory change of, lOGS. levy of appurtenances essential to franchise, 10G9. how sale to be made, if ever, 1070. New Hampshire rule as to engines and cars not in use, 1070. Pennsylvania rule as to levy on right of way, 1071. California rule, 1072. II. By Statute, 347-351. must be in strict conformity with, 1073. INDEX. OS:' SALE OF CORPORATE FRANCHISES, 'E.-vc. — Conliaued. illustration, 1073. to be shown affirmatively, 1074. variance as to notice, 1075. imperfect levy, 107G. stocks and shares a personal interest, 1077. not liable to le\'y and sale at common law, 107;). eflect of execution sale as to transfer.?, 1080. rii^ht of state or municipalit}', 1081. liability to levy, 1083, 1083. double levy, application of proceed of sale under, 1081. requirements in act of incorporation, 1085. sale under fraudulent procurement, 108G. hypothecated stocks, 1087. lien of company by by-law, 1088. mortgaged stocks, 1089. Penns^dvania procedure, 1090. description, what is a good, 1091 Alabama rule, 1092. III. Effect of Sale, 351, 353. under Massachusetts statute, 1093, 1094. sherifi''s return as to, 1095. irregularity of sale, 109G. EXEMPTION FROM SALE, Ch. xxv, 353-3G9. I. The Policy (»f the Law, 353. humane, 1097. foundation of, 1078. lex loci governs, 1099. II. Its Legal Effect, 854-363. law of date of contract governs, 1100. Iowa law as to homestead exemption, 1101. repeal of law, with saving clause, 1103. conformity to, 1103. homestead, what constitutes, 1104. liability of to levy in Minnesota, 1105, HOG. construction of, 1107. Iowa rule, 1108, lllG. construction of, 1109. waiver of, 1110. abandonment of, 1111. exhaustion of other property, 1113 conveyance of, 1113, 1114. use of, 1115. Ohio rule, 1117 implements exempt, 1118. 354 ■ INDEX. EXEMl^IOX FROM SALE— Confinvnl (.'xcuiption as to process of U. B. courts, 1111/. rule as to, 1120-1124. riglit of selection, in Missouri, 112.'). {)roperty and wages liable when debtor is about to remove, 112G. 1 II. Waiver, 3G2-3G9. diflerent constructions as to, embodied in contract, 1120. Iowa rule as to, 1127-1131. Pennsylvania rule, 1128. Indiana rule, 1132, 1133. correct doctrine, 1134-113G. Illinois rule, 1137. construction of, 1138, 1130. Ohio rule, 1140. GL'ARDIAN'S SALES AND SALES IX PROCEEDINGS FOR PAR TITION, Ch. vii, 124-133. I. Guardian's Sales, 124-130. in England sovereign is guardian of all infants, 313. and this authority an attribute of judiciary, 313. and ti'ansmitted to courts, 814. and by courts delegated, 315. origin of American authority in courts, 310. authority regulated by statute, 317. subjects to rights in equity, 317. how to be exercised, 317. general chancery jurisdiction to decree sale in some States, 318. other rule, 318, 319. probate courts have only statutory power, 320. if jurisdiction attaches conformity to statutory power will be inferred, 321. nature of proceedings, whether udvcrsaiy or vi rem, 322 proceedings i)i rem, 323. cases illustrative, 324. license to sell may be in alternative, 325. guardian's deed, what title conveyed, 320. warranty, effect of, 326. requisites to sustain guardian's sale, 327. .sale of entire interest of several on application of one, effect of, 323. guardian in socage, power of, 329. sale made after termination of such guardinnshij) void, 329. affirmance of sale by ward, 330. guardian cannot purchase at liis own sale, 331. report to next term of court, 332. confirmation not necessary unless required by statute, 332. failure of guardian to report, 332. amount to be raised under order of sale includes costs, 333. where amount raised is in excess of decree, 334. INDEX. SSO GUARDIAN'S SALES, Etc. — Continued. sale in different order from decree, 335. clVect of confirmation of, 335. II. Sales in Proceedings for P.vrtitiox, 130-133. tlioy are judicial sales, 33G. must be reported for confirmation, 33G. until confirmed of no eflect, 33G. may be a re-sale, when, 337. liability of first purchaser for loss on re-sale, 837. Iiartition may be part in kind and part by sale, 338. title of purchaser, 339. rights of judgment creditor of tenant in common, 340. lien of mortgage, in Illinois, 340. Illinois procedure in sales, 341, 343. decree for sale in partition, what it should include, 343. procedure in obtaining, 343. Ohio procedure in sales, 314, 345. HEIRS, infancy of, 293. HOMESTEAD, sale on execution of, 55G-559. INTEREST, foreclosure for non-payment of, 209. INTEREST IN LANDS, EXECUTION SALES OF, Ch. xv, 195-207. I. IIow^ Liable to S.\le, 195-199. lands not liable to sale on execution at common law, 531. mode of procedure, 531. statute of George II, 532. construction of, 532. local statutes of same effect, 532. liability to sale only when no personal property is found, 533. appraisement of rents and nrofits, 534. statutory rules generally, 535. general rule, 53G. pre-emption rights, 537. entry and survey rights, 537. equity of redemption, 538. statutory right to redeem from execution sale, 538. Louisiana procedure by execution creditor, 539. supreme court dectrine as to, 540. claim not based on right or possession, 541. lauds held in trust, 542. hold by purchaser before issuance of patent, 543, 544. issuance of patent, 543, 545. title under sheriff's sale of, 544. all parts of conveyance to be taken together, 545. II. Dower L.\nds, 199. right of dower before assignment or possession may not be sold, 540 otherwise if in possession, 547. 25 .'ISG INDEX IXTEREST IX LAND, 'Ktc — Continued. so as to possessing interest of husband in dower lands of wife, 518. HI. UNDIVIDED Interests, 199,200. Interest of husband or wife as tenant of entirety, .j-lO. nature of, 549. ellect of statutory enactments, 550. I v. Equitable Interests, 300,201. may not be sold without possossion, 551. unless by statute, 551. ^ "possession of land," meaning of, 552. ■ Indiana rule as to fraudulent conveyance, 55o. ■ lands in trust, 554. Iowa rule as to equitable interests in really, 555. V. The Homestead, 201-205. generally exempt, 55G. sale of, 55G, 557. Iowa, Kansas, and Illinois decisions, 557. after abandonment of first levy, 558. VI. In aviiat order to be Sold, 205-207. part remaining after sale by debtor of portion, vrith lieu attached, if sufncient, 559. property of debtor to be exhausted before 'proceeding against part as sold by him, 559. as to resort to part last disposed of, 500. contrary rule, 5G1. sale under junior judgment, 502. rule as to satisfaction of judgment in property of debtor, 503. JIDICLVL SALE, Ch. iv, 44-69. I. By whom to be Made, 44, 45. by person designated in order or decree, »8. under his direction, 88. auctioneer may be employed, 88. authority for this, 89. always under control of court, 90. II. How TO BE Made, 45-50. by public auction to highest real bidder, 91. unless otlierwisc authorized, 91. for cash, 91. exception, 91. always for money, 91. if otherwise, not sale but barter, 'Jl. definition of sale, 92. usual mode of selling, 92, 93. joint bidding allowed, if in good faith, 94. citation of authority, 94. combinations illegal, 95. minimum may be fixed, 95. ixDKX. 387 JUDICIAL SXLE — Coniitiued. but must be made public, 95. bj'-bidding fraudulent, 90. appointed bidding, by order of court, 07. valuation laws do not apply, !>8. or redemption laws, 98. unless so declared by statute, 98. must be sold in i>arcels, 99. and in such order as desired by debtor, 100. unless good reason to contrary, 100, 101. ill such order as Avill produce largest amount, 101. court may instruct as to order, if parties cannot agree, 102. «Iebtor's rights protected hy court, 103. court may prescribe mode and terms, 100. within statutory provisions, 103. Avherc not prescribed, duty of person selling, 101. subject to scrutiny of court, 104. ])resumption of fairness, 10."). when parcels may be sold together, 100. HI. Wno MAY NOT Buy, 50, 51. person selling may not, 107. nor any person employed in, 107. unless by leave of court, 107. til is rule very broad, 107. extends to all agents, 107. the rule as expressed by courts, 108, 109. one derelict may not, 110. principle illustrated, 110. IV. Notice op Sale— Adjournment, 52-54. notice must follow direction. 111. presumption as to conformity, 112. posting of notice, 113. adjovu'ument after notice, 114. where no direction is given, 115. adjournment, officer's discretion as to, IIG. discussion of cases as to, 117, 120. notice should be definite, 121. effect of indefiniteness, 121. \^. Confirmation, 55-59. definition of, 122. effect of, 122, 123, 124, 132. no rights, until, 124. discretion of court as to, 124, 12G, 127, 12S. lapse of time, 125. relates back, 127. cause for refusing, 129. California rule, 130. 3S8 INDEX. JUDICIAL SALE — Continued. cause for refusing, Kansas rule, 133. code practice, 133. YI. When the Title Passes, 59. by payment of purchase money, 134. and execution and delivery of deed, 134. by lapse of time, 135. \'II. When not Aided in Equity 59, CO. "niien not conformed to statute, 13G. if void at law, 137. when a remedy in personam exists, 137. VIII. Not Affected by Reversal, op the Deckee, 60-62. if reversal is for irregularity in obtaining, 138. this rule at length, 139. Ohio rule, 140, 141. IX. How Affected by Statute op Limitation, 62, 63. special statute does not apply, 143, 143. if sale is valid, 144. sale in fact and delivery' of deed, 145. X. By Statute op Frauds, 63, 64. general rule that sales after confirmation arc not within, 146. first application of it, 146. Judge Story's rule, 146. New York rule, 147. Missouri rule, 147. Alabama rule, 147. Pennsylvania rule, 147. California rule, 147. Illinois rule, 148. XL When Valid by Lapse op Time, 64, 65. founded in sound policy, 149. presumption of validity by, 150. but not as against the record, 150. affirmative showings of, to be received as verity, 150. presumptions will apply to questions of jurisdiction if record 5s silent as to, 151. XII. How Enforced ao.^inst the Purchaser, 66, 67. purchaser by purchase becomes party to proceedings, 152. and may be compelled by process to perform his agreement 153. notwithstanding right to re-sell on nonperformance, 154. no compulsion, if title defective, 155. distinction as to caveat emptor, 155. reference may be had as to title, 156. XIII. IIow Enpxjrced in Favor op Purchaser, 67, 68. order for possession in decree, 157. if not, court will make such, after sale, 157 mode of proceeding, 158. INDEX. 3&0 JUDICIAL SXLY. — Contmue(l. tlicse methods not within power of probate court selling under statute, 159. procedure in probate, on non-compliance of purchaser, 100. XIV. Ratification by Party Affected, ou by Lapse op Time, 68, C9. sale not legally binding may become such by ratificatioa of party affected, 161. as, ratification by ward of guardian's sale, 1G2. and, acceptance by heirs of shares of purcliase money, 163. so of unauthorized sale where heirs at law received proceeds, 16'iJ. JUDICIAL SALES OF CORPORATE FRANCHISES, PROPERTY AND STOCKS, Ch. xiv, 187-194. effect of sale of corporate rigiits, 513. franchise does not pass, 513. definition of, 513. as to forced sale of, 514. Ohio rule as to, 515. Pennsylvania rule as to, 510. accountability for a value of, 517. easements not paid for do not pass, 518. reason of this rule, 518. procedure in equity, in Pennsylvania, 519. power to sell franchises, 520. common law right to mortgage and sell, 521. statutory right, how to be exercised, 521. Wisconsin rule as to fixtures, 522. lien of judgments in, 523. sale under, in, 523. fraudulent sale, 524. enforcement of judgments in equity, 525. ground of jurisdiction, 526. illustrative cases, 527, 528. procedure in equity generally, 529, 530. JUDICIAL SALES OF PERSONAL PROPERTY, Ch. xiii, 179-180. I. In Admiralty, 179-183. they are sales in rem, 494. in admiralty cases in rem jurisdiction only in courts of United States, 495. nature of proceedings in rem, 495. not within statute of frauds, 496. equity principl"s govern, 497. effect of proceedings t>i rem, 498. validity and effect of sale, 499, 500. form of, of no importance, 501. nature of proceedings in, 501. II. At Law, 183-180. proceedings in rem, nature of, 502, 506 C90 INDKX. JUDICIAL SALES OP TEIISONAL PHOFETY — Continued. procedure in, 503. jurisdiction as to, 503. relative to admiral tj"- suits, 504. ciTect of, 505. title of purchaser, 507. Ohio rule, 507, 509. Missouri rule, 508, 510. c.vtent of, 511. expenses to be included, 512. JUDICIAL SALES TO ENFORCE LIENS ON REAL PROPERTY, Ch. \, 70-90. T. MlTNICIPAL LlE>-S FOK STREET IMPROVEMENTS, 70-73. sales in cqitity to enforce liens arising under ordinances, etc., regarded as judicial, 1G4, 1G5. " action," means in ordinary sense, 1G6. 310 power of modification, only confirmation or rejection, 1G7 tills rule illuslrated, 1G8. conditions must be observed, 1C9. IL ^Iechanics' Lie^'s, 73-78. of modern date and creatures of statute, '170. enforcement of, calls for exercise of equity powers of court, 170. and procedure is in equity, 170, 171, 173. relation of sales, as to time, 173. ]iractice in Indiana, 174. when amount of decree is not realized at sale, 175. requisites for validity of sale, 176, 177. l)rior mortgage lien, Illinois rule, 178. Nevada rule, 179. these rules discussed, 180. Iowa rule, 181, 182. how enforced in Iowa, 183, 181. III. Mortgage Liexs, 78-87. origin and nature of foreclosure sales, 183. Pennsylvania rule, 18G. power of courts of equity in, 187. ordinarily made for cash, 188. to be made by master or commissioner, 189. when no statutory regulation, 189. liow to be made, 189. completion of sale by purchaser, 190. I)03session by purchaser, how obtained, 190. hoAv aided by court, 191. proper procedure, 193. application of proceeds as to prior liens, 193. as to conflicting claims, 194. as to conflicting claimants of surplus proceeds, 210. INDEX. 301 .] I'DICIAL S\LE^ — Continued. lands sold by mortgagor after mortgage, lOo. as to sale of in foreclosure, 195, 19G. us to subsequent incumbrances, 196. contrary doctrine, 197. restrictions of law as to, 198. litlo -which passes by sale under mortgage decree, 199. lixlse representations as to incumbrances, 200. subrogation of purchaser, 201. I)riority, Illinois rule as to, 202. value of, 203. in Kansas, 204. in Ohio, 205. IMissouri rule as to conveyance subject to incumbrance, 20G. as to multiplicity of suits, 207. ]iraclice in New York, 208. foreclosure for interest only, 209. IV. Vendor's Li ex, 87-90. arises by implication of law, 211. good against whom, 211. enforcable in equity only, 213. and sale under, judicial, 212. overrides mechanics' lien, 21o, 214. execution purchaser, 215, 210. Iowa rule, 217, 219, 220. security taken for deferred payment, rights of assignee of, 218. vendor's remedies, nature and enforcement of, 221. JUIUSDICTION OF THE COURT ORDERINCr THE SALE, Ch. iii, 33-43. I. The JuiiisDiCTiON is Local, 33. the le.v loci rei sitm governs, G9. 11. It is Power to Hear and Determine a Cause, 33-35. jurisdiction, power to hear and determine, 70. if this does not exist, no jurisdiction, 70, and n. 2. must be brought into effect, 70. manner of conferring, 71. petition or plaint must be such as is sustainable on demurrer, 71 what will be inferred if sustainable, 72. record receivable as verity, 72. III. There must be Actual Jurisdictiox, 3G-42. statute must be conformed to, 73. there must be conformity tlirougliout, 74. caveat emptor applies, 75. remedy as to error, 75. jurisdiction of the court, 7(!. proceedings to invoke juiisdiction generally, 77. in personam, 78. 392 INDEX. JURISDICTION OF THE COURT — Continued. ill rem, 79, 80. cases discussed, 81, 82, 83, 84, 85. IV. Title Passes by Operation of Law, 42, 43. analogy, 86. rights of government, 87. LEVY OF EXECUTION, Cli. xvi, 210-213. cannot be made after return day of writ, 57G. must describe land sufficiently, 577. void for uncertainty, 577. where proceeding is under appraisement law, 577. correct description in sheriti"'s deed, 578. priority as to levies, 579. procedure after levy, 580, 581 surety, levy against, 582. property in hands of receiver, 583. method of levy in Minnesota, 584, 585. excessive levy, 586, 587. instance of, 587. LEVY, THE, In Execution Sales op Personal Property, Ch. xxii, 328-832. I. When to be Made, 32-84. any time within life of execution unless time is limited by law, 997. at reasonable hour, and not to unnecessary annoyance of debtor, 998. "returnable to next term," meaning of, 999. trespass lies against officer for illegal levy and sale, or levy alone, 1000. evidence as to application of proceeds of such sale in diminution of damages, 1001. II. How TO BE Made, 329, 330. "paper levy" void ; officer must have actual control, 1002. may be in care of third party, but is at risk of officer, 1003. endorsement on writ, 1004. reasonable time for removal, 1004. actual seizure necessary, 1005. second lev}-, when allowed, 1006. levy of certain definite portion, 1007. procedure where actual possession is impossible, 1008. order as to levying several writs, 1009. postponement by order, 1010. if two are received at once, 1010. disposition of proceeds, 1010. in. Its Effect, 331. wlien it satisfies judgment, 1011. vests special projicrty in officer, 1011-1013. when levy is unavailing, 1012. INDEX. 31)3 LEVY, THE — Continued. expense of regaining property illegally taken from officer will be repaid him, 1014. IV. WuEN Void or Discharged, 331. if made after return day, 1015. or after death of debtor, 1015. or of property not subject to the writ, 1015. lost by unreasonable delay to sell, lOlG. when so discharged its seniority cannot be reinstated, lOlG. V. When it will be Set Aside, 332. only by sale, by order of court, or by agreement, 1017. not by release made through mistake, 1018. will be set aside if personal property is levied, when, 1019. if levied on property in hands of receiver, 1020. VI. Constructive Le\'y, 333. when and how to be made, and procedure under, 1021. LOSS BY FIRE, between purchase and confirmation, falls on vendor, 13. MINIMUM price, 95. MORTGAGEE AS PURCHASER, redemption from, 937. NATURE OF JUDICIAL AND OF EXECUTION SALES, 3-33. NATURE OF EXECUTION SALES, Ch. ii, 35-33. I. They are Ministerial Sales, 25-27. sale made by sheriff or marshal on execution, made as ministerial ofBcer of law, not as organ of court, 4G. illustration of this principle, 47. exceptions, 48, 49. court, generally, does not order execution sale, 50. exceptions, 50. effect in exceptional cases, 50. power invoked by writ, 51. act of selling, ministerial, 51. officer selling, agent of execution defendant, not of court, 51. title which passes, 53. exceptions, where statute requires confirmation, 52. effect of such confirmation, 53. II. Officer Selling is, in Law, Attorney of Execution Debtor, 28. officer's convc3'ance carries all title of execution debtor, 54. acts as attorne}^, appointed by court, 54. purchase money applied to use of defendant in discharge of his debt, 55. as between debtor and purchaser law raises a contract of convey- ance without warranty, 55. this principle illustrated, 5G, 57. cases cited, 5G, 57. 394: IKDEX. NATURE OF EXECUTION SXl.ES — Continued. ni. TuERE IS NO Implied AVaiiu.vxty. The Rule op Caveat Emptor Applies, 29, 30. oflicer sells only interest of judjumcnt debtor in premise^;, 57. not bound to convey with warr;inty, 57. and law does not imply one, 57. title acquired by purchaser, 58. effect of warranty, 58. purchaser cannot avoid, by sliowing no title in judgn^ient debtor, 59. maxim caveat emptor applies, 59. effect of sale on credit, GO. ly. TlIEY AIIE WITHIN TUE STATUTE OF Fn.\.rDS, 30. in the absence of any memorandum. Gl. reasons of the rule, G2. V. Effect of Reversal op Judgment, 30-32. sales made under irregular or erroneous judgment, not affected by reversal of such, for mere irregularity, G3. otherwise, if for want of jurisdiction, Go. such sales void al initio, G3. reason thereof, G3. policy of law as to irregularities, G4. rule in Indiana, G5, G7, GS. Ohio, GG. KATURE OF JUDICIAL SALES, Ch. i, 3-24. I. Of Judicial Sales in General, 3-17. judicial act one done pendente lite, 1. so a judicial sale, one mtxCiC pendente lite, 1. it is a sale in court, and the court the vendor, 1. may be made by master, commissioner, or other funclionaiy, 2. not valid until confirmed, 2, 12. effect of confirmation, 2. officer conducting sale agent of the court, 2. this principle illustrated, 3. dillerence between sheriff's sale and judicial sale, 4. illustration of this difierence, 5. definition of judicial sale in United States Supreme Court, G. the case discussed, G, 7. discretionary forms may be dispensed with, 8. Init otherwise as to statutory ones, 8. administrator's sale, in North Carolina, 0. in California, 10. in Pennsylvania, 12. judicial sales transactions between court and purchaser, 11. chancery sales, nature of, 12, n. G. sale to be reported to court for confirmaiion, 13. and pureliase incomiilete until confirmed, 13. iia)EX. 395 NATURE OF JUDICIAL ^XLT.S — Continued. and loss by fire, bctv.'ccu purchase and confirmation, falls on A'cndor, 13. manner of sale in discretion of court, 14. and may be public or private, 14. distinction between judicial and execution sales, lo, 17, 18, 19, 20, 21, 23, 23. sale unconfiyned, if purchaser receives possession, may be ratified by lapse of time, 15. not the sale of the ofiiccr, but, -vvhen confirmed, the sale of the court, 15. illustration of this principle, IG. no appeal, generally, lies except from judicial acts, 24. application of this rule to judicial sales, 24. decree of sale and confirmation may be reviewed in appellate court, 25. illustration pf this principle, 25. no appeal from execution sale, as such, 2G. can only be questioned in direct proceeding, 20. exception, 20. cases in which judicial sales occur, 20. eli'ect of sale under statute requiring confirmation, 20, 27. this subject discussed, 20, 27. decree of sale in partition virtually vests possession in court, 29. judicial sales properly in proreedings wholly or partly in rem, 30. execution sales properly in proceedings wholly or partly in x>cr- sonnm, 30. decree in judicial sales always in rem, 31. II. Judicial S.vles ix Puoceedings Purely Ix Rem, 17-22. definition of proceedings purely in rem, 32. purchaser's title, 33. this subject discussed, 33, 34, 35, proceedings in rem in probate, 30. paramount right of courts extends to creditors and heirs only, 37. foundation of this right, 38. Pennsylvania doctrine, 39. Illinois doctrine, 40. practice in Illinois, 40. III. Judicial Sales in Proceedings Partly In Rem and Partly In Personam, 22-24. definition of proceedings partly in rem and partly in pf,rsonam, 41. procedure in such cases, 41. decree in such cases, partly in rem, 42. so much of, as relates to redemption in 2)crsonam, 42. defendant brought in by publication, 43. case discussed, 44. judicial sale, where made by sherifi' under special directions, 45. 306 INDEX. NOTICE OF SALE AND RETURN ON EXECUTION, Ch. xvi, 213, 214. dependence of purchaser, 588. ri,!j:hts of purchaser as affected bj-, 589. sale without notice, 590. effect of return, 591. TRIORITY OF DEEDS, 812-832. PUBLICATION, defendant brouglit in by, 43. PURCHASES BY PERSONS CONCERNED IN SELLING, Ch. viii, 134-141. policy of law forbids, 346. if seller desires to purchase, should apply to court for leave, 340, So.". a matter of discretion with court, 340. illustration, 317, 348. executor or trustee, whether he may buj', 348. cllect of purchase in such case, in some states, 349. in others, 350, 351. as to resale in such case, 352. no diilVrence whether jjurchase is made directly or indirectly, 353. illustration, 353. purchase by administrator, 354. sale under license from foreign court, 35G. REDEMPTION, Ch. xx, 304-316. I. The Right op Redemption, 304-306. exists only by statute, 906. depends upon statute, 906. lex loci governs, 907, 908. extends, generally, to debtor, 907. to judgment creditors, 909. and mortgage creditors, 909. right of redemption may be constituted by agreement, 910. independent of statutory right, 910. will be enforced, 910. nature of legal right, 911. rulings of court as to, 912. Illinois rules, 912. sales on foreclosure, 912. sales on, without right of redemption, erroneous, 912. judgment debtor may redeem any one of several parcels, 913. separate redemption, 913. founded on requirement of separate sales, 914. II. By the Execution Debtor, 306, 307. purchase under agreement for redemption, 915. effect of, 915. enforced in equitj', when, 916. interest payable in such case, 917. time may be extended b}' parol, 917. 1 INDEX. 39 T REDEMPTION — Contimied. cflect of receiviu.jT part of redemption money, 918. Minnt'sotii — execution debtor may redeem without paying oUier liens of execution purcliaser, 919. contra in California, 920. judgment debtor may redeem tliough he has conveyed his righ' U- land. 921. so may grantee, 921. reason, 921. riglit of judgment debtor not affected by subsequent sale, 922. sale on junior judgment, 922. riglit of judgment debtor to redeem in equity, in case of fra7 I, collusion, or concealment, 923. limitation as to time, 923. III. By Judgment Creditoks, 308, 309. riglit to redeem, how applied, 924. remedy of, after death of execution debtor, 925, 92G. judgment creditor purchasing certificate of sale, 927. assignee of judgment creditor, 927. Illinois rule as to sale by debtor of equity of redemption wh n purchaser of, fails to redeem, 928. abandonment by sale under junior execution, 929. manner of redemption in master's sale, 930. IV. By Mortgage Creditor, 309-311. California rule, 931. Iowa rule, 931. junior mortgagee, 931, 932, 933. accounting, manner of, 932. no strict tender necessary, 933. readiness to redeem sufficient, 934. Iowa code of 1851, 935. partial redemption not allowed, 93G. nor of undivided share, 936. redemption from mortgagee as purchaser, 937. Y. How AND When to ee Made, 311-314. only by a legal tender, 938. officer not bound to receive substitutes lor, 938. in some cases held that he cannot, 938. this rule modified, 939. time of redemption, how calculated, 940. statutorj'^ provisions as to, govern, 941. "any time" before close of last day alloAved by law, 941. "business hours" not regarded, 941. redemption by unauthorized person assuming to be agect, valid, if ratified, 942. strict compliance with statute necessary, 943. unless waived, 943. 398 INDEX. UE'DE^IFTIO'S — Continued. stiitiUory right cannot be extended by act of party claiming right, 91-i. discretion of court to extend statutory period, 945. separate redemption, 94G. Illinois rule as to redemption by judgment creditor, 1)47. payment to be accompanied by delivery of execution on judgment to officer, 947. redemption money may be paid to sherift" or purchaser in Illinois, 94S. Alabama rule as to payment on purchase by trustee, 949. depreciated currency received by sheritf as purchase money no ground for tender of same in redemption, 950. redemption where prior lien has been paid by purchaser at sale, 951. oversight, neglect, or ignorance, no ground for relief in equity, 952. Kew York rule as to hour and place of redemption, 953. reason of this rule, 954. VI. Effect op Redemption, 814-316. restores property to original condition, 955. confers no new rights, 955. liability of property after, 955. redemption by assignee of right to redeem, effect of, 950. of land sold in part satisfaction of judgment, 957, 958, 959. judgment creditor redeeming substituted to execution purchaser's rights only, 9G0. disability/ caused hij war, 9G1. rights of judgment debtor where no negligence is shown, 9G1. remedy the court will give, nature and extent of, 9G1. RETURN OF PURCHASE MONEY, Ch. xii, 177, 178. purchaser at judicial sale has no claim for relief, except for fraud or mistake, 487. Ohio rule that such payment is no charge on land, 488. Virginia rule as to, 489, 490. Tennessee rule that money may be recovered before convcyanoe made, 491. Mississippi rule allows failure of consideration to be shown, 492. Maine, as to action against guardian, 493. ISALE, THE, In ExEctmoN Sales of Personal Propehty, Ch. x-xiii, 333-343. I. By wuoii TO be Made, 333-335. by the sheriff or legally constituted deputies*, 1022, 1025. if not disqualified by interest, 1024, 1028. coroner acts in such cases, 1035. auctioneer or crier may be employed if under direction and in presence of officer, 103G. when writ is directed to sheriff personally he alone can sell, 1027. Bhcriff, after expiration of term, may sell on levy legally made during term of office, 1029, 1030. INDEX. 309 KEDEMPTIOIS" — Contin iicd. ir. IIow TO BE jMade, 8o.j-;]38. at time and place appointed in notice, unless adjourned, 1031. Avlien void, if made before hour appointed, 1031. during business hours, 1033. if otlierwise, sale is void, 1033. void in Illinois, if made before appointed day, 1033. personal propertj'- sold must be on view, 1033, 103.J. at public auction to highest bidder, 103G. must be for money, 103G. officer's discretion as to adjournment, 1037. effect of postponement by plaintiff's order, 1033. sale by consent, 1039. effect of debtor's silence at illegal sale, 1010. duty of officer as to manner of selling, 1041. such discretion as prudent person would exercise, 1041. payment by purchaser who is execution creditor, 1043. conflict as to distribution of money when sale is on more than one writ, 1043. valuation law, sales where there is a, 1044, 1045. law in force when contract was made governs, 1047. III. Its Effect; What Passes by It, 338-340. if amount of judgment is realized, judgment is satisfied, and thereby vacated, 1048. how to be revived, if ever, 1048. "execution executed, the end of the law," 104'). payment to plaintiff satisfies writ, 1050. sheriff cannot pay from his own funds and hold writ as security, 1050. payment, by whomsoever made extinguishes writ, 1050. what interest purchaser takes, 1051. in sale on execution against tenant in common, 1053, 1053. levy of second execution on crops sown after levy of first, 1051. distinction between sale of property and sale of interest of debtor in, 1055. right of purchaser of growing grain to enter and take away, 105G. IV. Void and Voidable Sales, 341. void if based on satisfied judgment, 1057. as to knowledge of purchaser, 1058. estoppel of defendant, 1058. under color of authority, 1050. Louisiana rule as to appraisement, 1000. V. Who jiay not r.tn-, 341-343. seller may not, 1061. illustrative case, 10G3. purchase by deputy, 10G3. illegal appraisement, 10G5. 400 INDEX. REDEMPTIOX — Continued. YI. "When the Officer may Re-seix, 343. for uou-coiupliance with terms, 106G. first purchaser's liability for deficiency, 1667. BALE, THE, In Execution Sales op Real Property, Ch. xvii, 21o-2C0. I. By Whom to be Made, 215-217. by sheriff or deputy, if -writ is not to sheriff personally, 592. general rule as to sheriff acting by deputy, 593. shcrifl' cannot sell, when, 594. marshal's sales after removal from office, 595, 59G, 597, 598. II. How TO BE Made, 217-227. . public auction, 599. "monc}^ in hand," 599. highest unconditional bidder, 599. sale by lots with suitable identity, GOO. en masse will be set aside when, GOl. entirety susceptible of division, 601. subdivision by debtor after levy, G02. separate interests, G03. amount to be sold, 604, 605, GOG. conditional bids, 607 terms to be fixed by officer, 607. adjournment, 608, 609. order of enforcement of executions, 610. Indiana law as to, 611. bid by letter, 612. publicity of bids, 612. Illinois rule as to sales en masse, 613, 614. procedure where parcels cannot be sold separately, 615, 616. Minnesota statutory provision in, 617. Wisconsin, 618. California, 619. Indiana, 620, 624, C28. Tennessee, G21. delivery of deed on sale en masse may be prevented by injunction, sales on several executions at once, 623. nature of judgment lien on real estate, 629. eflect of conveyance by debtor subject to judgment liens, 630. deed delivered and destroyed before recording, 631. sale on credit by mutual consent, 632, 633. on additional executions without notice, 634. basis of return certificate and sale, 635. execution against sevaral co-defendants, exhaustion of property, C3G. presumption of law as to manner of sale, 637. INDilX. 4.01 SALI-:, THE — Continued. III. Wno May kot Buy, 227. seller may not, 038. modification, 039. IV. IiiKEGULAR Sales, 227-230. effect of mere irregularities, 040. requisites of valid sale, 041. as to levy, 041-043. on executions oa judgments which arc liens on land, G42, 047, 053. in attachment, 044. in ordinary proceedings, 04,1. lien of, 040. as fixing power of officer, 054. general duty of officer as to, 055. execution on dormant judgment, 050. voidable and not void, 050. presumption as to regularity, 057. inhibition of statute, 058. clerical error, 059. directory statutes, GOO. omission of formal inquiries by ofiicer selling, 001. on two executions, one valid, and one void, sale sustained, CGI. contra in Indiana, 001. on alias writ, 002. variance as to amount in deed, 002-005. as to dates, 003, 004. immateriality as to dates, 004. irregularity as affecting purchaser witli notice, GOO. V. Sales Made after Death of ExECtmox Defexuant, 237-240. no execution after death, at common law, 607. until revived by scire facias, 007. effect of sale without revival, 007. weight of authority that it is void, 007. statutory changes as to, 007. Illinois statute, 008. executor to have notice, OGS. no issuance on dormant judgments, 009. to be revived by scire facias after seven years, 070. death of judgment plaintiff", procedure after, 071. levy before dsath not affected, 072. Iowa statute, presumption of, 073. Supreme Court of United States, ruling of, 074. valuation law, sale under after death of execution defendant, 075. VI. Sales when there is a Valuation Law, 240-240. as respects execution to be made in accordance with law at date of contract, 070. 20 '102 LN'DEX. SALE, TIIE — Contiiuicd. bid to be received, G77. valid appraisemeut, 677. Iowa, sale without appraisement in, void, (378. effect of want of, 679. result of disregard of generally, 680. rule of Supreme Court U. S. 681. appraisement a part of contract, 683. exception, 683. when not necessary, 683. Indiana, sale in, -vvitliout, 684. sheriff's return as to, 685. when law at date of rendition of judgment governs, 686. lien of levy, 687. when sale may be made without valuation, 688. sale on void expo. 689. death of defendant before issuance of, 690. consent of defendant to waiver of, 691. Iowa, disqualification of appraiser, 693. policy of law upholds sales, 690. requirements of statute, 693. provisions of act of Congress as to, 69-1. rule governing U. S. Courts, 695. remedy after judgment, 696. language of Supreme Court, 697. VII. Execution Creditor as Purchaser, 246-248. whether he is chargeable with irregularities, 698. Indiana rule as to when judgment is reversed, 699. "Wisconsin rule, 699. Illinois rule, 699. protection of, as bona fide purchaser, 700-700. Iowa rule as to what constitutes, 704. YIII. Sales made after Return Day ov Execution, 248. if levy is before sale may be after, 705. immaterial when return is made, 706. effect of return, 707. IX. Sales to Third Pkusons, Bon.v Fide Puucjiaskus, 249. estate of, 707. doctrine as to, 707. extent of, 708. SALE OF LANDS IX PROBATE FOR PAYMENT OF DEBTS, Ch. vi, 91-120. I. What Lands may ee Sold, 91-95. in general only of such lands as and interests whereof the debtor dies seized, 222. based on statute, 222. INDI'IX, 4013 SALE, Till: — Continued. " head right certificates" in Texas, 223. lands purchased in name of widow and heirs under prc-cmptiou right, enured to decedent in his life-time, 224. this rule discussed, 225. Tennessee rule, 220. Alabama rule, 227, 229, 230. Massachusetts rule, 228. power to subject decedent's lands to payment of debts, remedial, 231, 232. but claims must be in conformity to statute, 233. duty of executor or administrator, 234, 235. II. What Debts Lands may be Sold to Pay, 95-07. debts owed at time of death, 23G. and legp.Uy, 230. lands not liable for costs created by administrator, 237. nor against administrator or estate, 238. but sucli may be paid if there is a surplus, 238. this principle illustrated, 239, 240. "claimants must prove tliemselves creditors of decedent," 241. "debt due from testator," 242. individual lands liable for partnership debts when, 243, 244 III. Who may Conduct the Sale, 97, 98. by executor or administrator, 24G. stranger or sheriff cannot, 240. nor special administrator, 240, 247. special administrator, powers of in Iowa, 247. sale under legislative order, 248. as to sale by one of several executors or administrators, 249. IV. Application to Sell; How, and in Wuat Time to be M.vde, 98-119. application to sell; must be made by executor or administrator 250. exception, in Texas, 251. one or more of several may apply, 252. statute of Icwa as to executors, 253. application must be timely, 254. one year a suitable time, 255. circumstances of case determine, 255. order of sale, if after unreasonable length of time void, 25G. three years in New York, 257. application, what it must show, 258. more than one order, if first insufficient, 259. debts must first be allowed, 259. allowance nunc pro time, 259. must be by petition, 200. allegations of, 260, 262, 279. subject matter, conformity to, 261-28-4. 40-^ INDEX. SALE, TIIE — Coniinued. procedure in Tennessee, 263. in Mississippi, 2G4. jurisdiction, liow vested, 265. eflect of decree after jurisdiction lias attaclied, 26.j, 209, 270, 271, 272, 273. statute, conformity to, 266, 275. notice, conformity to must appear affirmatively, 207, 268, and n. want of service and appearance, eflect in chancery proceedings, 27i. guardian ad litem, ellcct of appointment of in chancery proceedings in Ohio, 274. in probate, 274. general rules, 276. time of presentation of petition, 277. docketing and continuance, 278. when new notice requisite, 278. New Hampshire rule, 280. Mississippi rule, 281. Texas rule, 282. court may prescribe rules and terms of sale, 283. Illinois rule, 285. confirmation of sale by court, effect of, 280. duty of purchaser, 287. what will avoid sale, 288. in Indiana, 289. presumptions in favor of legality of jirocccding, 290. illustration of, 291, 292. infancy of heirs, 293. procedure after destruction of records, 294. lime in which to commence proceedings, 204. in New York, 295. V. Within what Time S.\le is to be ;M.aj)e and Perfected by Deed, 119, 120. general rule, one year, 200. Michigan case, 296. analogy to statute of limitations, 297. chancery not restricted by probate rule, 297. this principle illustrated, 298. VI. Not After Repeal of the Law, or Abolitiox of xue Court Allowing the Order, 120, 121. power ceases in toto with abolition of court, 299. or abolition of law, 300. if there be no saving clause, 300. so, if made under supposed law, 301. illustrative cases, 302, 304. VII. The Oath, 121, 123. when to be taken, 305. INDEX. 405 SALE, THE — Continued. should be first step, 305. cllcct when law as to, is directory, SOG. when no allegation as to, and jurisdiction has altaclicd, presump- tion that oath was properly taken, 306. when allegation of taking of oath is by statute required, 307. VIII. Sales Meiiely Irregulak, or ix Irregui.ar Proceedings, NOT Void, 132, 123. mere irregularity, if no want of jurisdiction, will not avoid sale, SC^. nor can regularity of appointment of administrator be raised in collateral proceeding, 309. may not be impeached after reported to court for mere irregularity, 310. this question discussed, 310. IX. Confirmation— The Deed— Its ArPROVAi., 123. confirmation before deed, 311. differences in practice, 311. death of administrator, 312. duty of successor, 312. SETTING EXECUTION SALE ASIDE, Ch. xix, 389-303. I. Power of the Court to Set Sale Aside, 289, 290. has full power when, 850. and to order re-sale, 850. or award execution anew, 850. this principle illustrated, 851. Application to set aside, hoAv to bo made, 852. must be within reasonable time, 852. if made by motion, within time allowed by law for redemption, 853. always before intervention of riglits of third persons, 853. and before barred by lapse of time, 853. II. For Inadequacy of Price, 290-292. ordinarily not alone sufficient, if sale in other respects is unexcep- tionable, 854. and purchase is bona fide, 854. but otherwise when, 855. not proper chance for competition, 85G. information withheld, 857. sale on execution for less than debt, 858. confusion in bidding, 859. conditional bids, 859. prevention of competition by purchaser, 800. who may seek to set aside for, 8G1. III. For Misconduct op the Officer Selling, 292, 293. power of the court, 8G2. ofiicer's duty as to subdividing, 8G3. illustration, 8G3. •i-OC I^"DEX. SETTING EXECUTION Sx^LE ASlDi: — Continued. IV. For Mistake, Ireegtjlarity, or Fralt), 293-301. general rule, 864. sales in mass, 86-3. right of election of defendant, 80G. excess in amount raised by sale wlierc land could be subdivided, SG7. if deed is executed by deputj', 868. manner of execution, SCO. aggregate sale of parcels will be set aside, 870, 873. even tliougli price is adequate, 870. reasons for this rule, 870. court will enjoin delivery of deed, 871, 89-1. lands in which defendant has no interest, 872, 880. exception, in some states, as to sale in mass, 873. prevention of bidding by purchaser, 874. mistake as to property sold, 875. sale of trust estate, 876. efl'ect of subsequent fraud or irregularitj', 877. rule in Illinois as to fraud or irregularity, 878. effect of misdescription, 879. bid not publicly announced, 881. rule in Indiana as to manner, 882. sale under several writs, one of whicli is void, 883. two writs, one of wliicli is subject to appraisement law, 884. different rule in Wisconsin, 885. cxecuticm creditor purchased when description is defective, 880. mode of procedure, 886. sale without notice, on bond of indemnity given by ]nirchascr, 837. right of indorser to have sale set aside, 888. Iowa rule as to notice, 889. ajjplication of, 890. excessive levy, 891. attorney of plaintiff purchaser, 891. effect of violation of this rule, 892. rule in Wisconsin as to sale en masse, 893. equity rule as to avoidance for uncertainty, 89G. as to irregularity, 897. V. For Reversal of JuDOirENT, 301, 302. general rule, 898, 899. where purchaser is owner of judgment, 898. or plaintiff in execution, 898. or beneficiary, 898. or purchase is made by agent or attorney of either, 899. contra, where purchaser is innocent third person, 900. and a bona fide purchaser, 900. general rule illustrated, 901. INDEX. 407 SETTING EXECUTION SALE ASIDE — Continued. VI. RETDiiN OF Purchase jMoney, 302, 303. no claim where sale is void against plaintiff in execution, 902. or execution debtor bad no interest in property, 903. and can maintain no suit either in law or equity against plaintifl', 902. nor at law against debtor, 903. but may in equity, 903. purchaser has no right of subrogation as to execution plaintiff, 904. reason, 904. where sale passes no title, 905. SETTING ASIDE JUDICIAL SALE, Ch. x, 152-103. I. The Power to Set Aside Sales, 152-154. courts of equity have general supervision over sale.^, 394 and n. 1. procedure is by petition or motion, 394. or by the court itself, 394. may reject, set aside, confirm, or order rc-sale at discretion, 394, 39G. grounds for setting aside, 395. II. For Iivadequ.vcy op Price, 154r-15G. inadequacy, if only cause, must bo such as to raise presumption of fraud, 397. if, in addition, any circumstance is shown tending to cause it, sab- will be set aside, 398, 399. illustrative cases, 399, 400. parties alleging fraud must show their own innocence, 401. unforeseen circumstances coupled with inadequacy, 403. III. For Irregularity, 15G-158. in order or decree, 403. insufficiency of description and inadequacy of price combined, 404. irregularity after appeal, 405. misunderstanding resulting in inadequacy of pvice, 400. if made by master not named in order, 407. on bill of review, when, 408. sale made at improper time, 409. but not after confirmation and distribution of proceeds, generall}-, 410. mortgage sale for less than debt, if inadequate price, 411. different day from that stated in notice of sale, 413. if purchase is by person conducting sale, without leave of court, 413. or by trustee, or on his behalf, 414. in Illinois for defect in petition for leave to sell, 415. when mortgagor is unable to attend and mortgagee purchases for greatly inadequate price, 41G. for negligence or mistake in officer selling, 417. sale made on irregular application, 418. second sale, 419. Bale on mortgage made by guardian, when, 420. -lOS INDEX. SETTIXG ASIDE JUDICIAL SXL'E — Continued. IV. Fon Mistake axd Misappkeiiexsiox, 158. misapprcliension caused by purchaser or person intereslcd in sale, 421. ■where auctioneer does not liear highest bid, 421. neglect or misapprehension of guardian, 431. re-sale by court's own motion, 421. V. For SunrnrsE, 158, 159. will be set aside when injury or unfair advantage results, 423. when assurances of postponement are made to debtor, and sale is for grossly inadequate price, 433. will not be set aside because of anything which due care might prevent, 434. VI. FoK Fraud, 159. IGO. general principle, 435. when avoided on application, 42G. fraud shown after confirmation, 427. purchase by seller, 438. or by agent, 428. or by attorney, 439. if price is grossly inadequate, 430. illustrative cases, 430. A"II. For Reversal op the Decree op Sale, IGl. general rule, 431. sale must be fully completed by confirmation, conveyance, and paj^ment, 431. VIII. Re-Sale, 1G1-1G3. will be ordered when sale is set aside for ordinary cause, 433. not, when cause is want of jurisdiction, 433. first purchaser held for difference in price between first and second sale when, 433.. Maryland rule, v,'hon sale is partly on credit and deferred paj-mcnla are not made, 434. or court may compel payment, under its general chancery powers, 434. New York rule where parties in interest cannot agree, 435. sale in different order from that requested by debtor, 43G. inclement weather, when good cause for, 437. when interests of minors are affected, 438. in discretion of court to order, before confirmation, 439. petition to reopen, 4.40. advanced bid necessary to pjocurc order for, 441. SPECIAL ADMINISTRATOR, power of, 247. STATUTE OF FRAUDS, execution sales within, Gl, G2. STATUTORY REQUIREMENTS, must be fully complied with, 5. SUBROGATION, 201. iM)i:x. 400 TIME OF REDEMPTION, how calculated, 040. UNDIVIDED INTEREST, sale on execution of, 549, ")0. VALUxVTION LAAVS, 98. VOID EXECUTION SALES, Ch. xvii, 249-2G0. wlicre jurisdiclion is ^va^Liul^, 709, 740. process issued ou void judgment, 710. forged execution, 710. cnjoiucd execution, 710. execution issued without revivor after death of defendant, 710, 7:14, 73G. "where one writ is valid and others void, 711. 3Iissouri, sale on altered or amended execution i;i, 71 "J. levy void for uncertainty, 713. identity of land sold must he shown, 714, 747. unassigncd right of dower, 71o. '■tract containing" void for uncertainty, 71G. variance between judgment and execution, 717, 7:V2. when officer's power has ceased, 718. as to U. S. marshals, 719. sale after satisfaction of judgment, 7'20, 724, 728. after judgment is in part satisfied to bona fide purchaser, 721. eflect of sale to bona fide purchasers, 722. sale after arrest and discharge of debtor, 723. Illinois, sale made prior to date in notice, 729. Missouri, sale of entirety witliout regard to subdivision, 730. Kentuclcy, sale of more than sufficient to satisfy execution, 731. sale on proceeding in rem, 733. sale of portion of mortgaged land, 737. imscaled writ, 738. under order of U. S. Court, 739. effect of irregularity, 741. in Pennsylvania, 742. acknowledgement in open couit, 743. judgment in personam, 744. purchase with fraudulent intent, 74.j. character of parties, execution and judgment must coincide a.s to, 74G. .sale of decedent's lands on judgment against executor, 748. execution dated after death of one of co-defendants, 749. by bidding or prevention of competition, 700. VOID JUDICIAL SALES, Ch. xii, 174-177. sales void for want of jurisdiction, 474. abolition of court making the order, 47j. repeal of law under which sale is made, 47-j. for imrcasonablc delaj^, 47G. after lapse of statutory period, 47G. 410 INDEX. VOID JUDICIAL ^MSE.^ — Continued. sale of lands not included in decree, 477, 480. administrator's sale for costs and expenses, 478. sale on notice different from that ordered in decree, 478, Iowa rule as to guardian's sales, 479. defective record, 481. application of proceeds, 483. sale on void decree, 483, 484. in Mississippi, 484. in Indiana, 485, 48G. AVAERANTY, Ch. xi, 1G7, 168. none in judicial sales, 458. or in equitable sales under order of court, 458. or in sales to enforce statutory liens, 458. officer executing conveyance a mere agent, 458. his warranty binds him only, 458. WRIT OF EXECUTION, Ch. xvi, 208-210. cannot be impeached collaterally if judgment is valid, 564, good till superseded, 5G4. if judgment is void execution is void, 564. on dormant judgment, 5G5. division of county after teste of writ, 565. death of joint defendant, 5GG. proper procedure to revive judgment, 5GG. Mississippi rule as to, 567. Tennessee rule as to, 568. Illinois rule as to, 569. Massachusetts rule as to, 574. must conform to judgment, 570. execution for costs Avithout judgment, 571. variance between writ and judgment, 572. clerical variance, 572. Indiana rule as to seal of process, 573. priority of executions, 575. WRIT, THE, In Execution S.u-es of Peiisox.\l I'koi'ekty, CJi. xxi, 317-327. I. The Writ, 317-319. process "by fieri facias, 962. nature of, 9G3. origin of, 964. practice in United States, 965. must substantially conform to judgment, 9G0, 970. slight variance will not vitiate the writ, 9G7. procedure where property is not found, 968. in Ala])ama after death of defendant, 969. after death of one co-defendant, 970. INDEX. -Ill WRIT, TUE — Continued. exception on suggestion of death, 970. alteration of execution avoids, 971, 972. case in point, 972. II. Its Lien, 319-321. at common law, from date, 973. by statute in England, 974. in the United States, 975, 97G. lien of original execution kept alive by issue oC alias or j^lurics, 977. Kentucky rule, that death of defendant abates execution, but does not discharge levy, 978. Illinois rule that lien is fixed bj^ date of delivery to ollicer, 979. but death of defendant before deliver}- of execution to ollicer abates it, 979. III. What may be Sold, 322-327. at common law in England, 980, 981. property in hands of receiver or in custody of court not .subject to levy, 982. proper practice in such case, 983, 987. generally all moveables, not exempt by sdilr.te, subject to levy, 9?L choses in action, 98o. shares in corpoi'atious and joint stock companies, 98."i. mortgagee's rights to personal property, 98j. growing grain and crops of annual planting, 98.1. "annual productions," 985, 98G. interest of one tenant in common, 9S7. procedure in such case, 987. right which passes, 987. interest of partner, in jS'ew Yor!<, 988. procedure in such case, 988. non-resident partners, 988. equitable interest cannot be sold at common law, 980. such the Mississippi rule, 989. interest of mortgagor in possession before for!eitiire may, 089. sale of shares, what sufficient description, 990. manuscripts subject to co'pyri(jld may be levied and sold, 991. but officer cannot use them or ]iublisli, 991. right of redemption in Iowa of land in trur,t deed, 092. procedure, 992. judgment, in Iowa, 992. what is personal property subject to levy, 993. Kentucky rule as to sales, 994, 995. officer cannot sell for his fees after judgment Is ."r^ali.sficd, 99G. ► b LAW LIHKARY UNIVERSITY OF CALIFORNIA LOS ANGELES A 000 670 974 5 ■w*^ 4|i, uiu n ggS mi mi~ #- SLli':— "