at a sheriff's sale, who, before completing his purchase, receives notice of an equity in the lands held by another than the execution defendant, takes subject to such equity. Heck v. Fink, 85 Ind. 6. A sheriff sells, and a purchaser at his sale buys, according to the process and levy thereunder. A levy being on certain land as the property of defendant in fi. fa., a sale under such levy carries with it the crop growing on the land, and the sheriff cannot limit the sale by an announcement that the rent of the cur rent year is reserved. Frost v. Render, 65 Ga. 15. A sale or mortgage, void as to a judgment creditor, is void as to the purchaser at an execution sale based on the judgment, the purchaser succeeding to the rights of such creditor. Millis v. Lombard, 32 Minn. 259. In Massachusetts, if an equity of redemption in land is sold, under the Gen. Sts., ch. 103, § 40. the purchaser acquires no title by the delivery and recording of the deed of the officer who makes the sale, unless the officer makes a return upon the execution. Walsh v. Anderson, 135 Mass. 65. An interesting case recently arose in New York. In 1863, H purchased certain premises, giving a mortgage of $6,000 for part of the purchase money; he conveyed the premises in 1866 to J, subject to the mortgage which the grantee assumed and agreed to pay. J paid the mortgage and it was canceled of record; $5,500 of the money used in such payment was borrowed by J, she giving a mortgage on the premises to secure the loan. In 1867 the premises were conveyed to C subject to the second mortgage, which C assumed and agreed to pay. He did pay and discharge the same, using for that purpose $6,000, borrowed by him, to secure the payment of which he executed another mortgage upon the premises. In 1871 the premises were conveyed to defendant, he assuming and agreeing to pay the last mentioned mortgage. At the time H purchased there was a judgment against him; and under a sale of execution issued on said judgment defendant purchased said premises, and in 1869 received the sheriff's deed thereof. Searches were made by the various grantees and mortgagees, but the judgment was not discovered because H had a middle name, the initial of which was omitted in the docket of judgment, and none of said grantees and mortgagees had notice of the judgment prior to their receiving their respective deeds or mortgages. Defendant, subsequent to his purchase, paid the interest upon the mortgage, also repairs, taxes, assessments, etc. In an action of ejectment brought to recover possession of the premises and rents and profits, held. that plaintiff was entitle to recover; but that defendant was entitled to be allowed as an offset against the mesne profits the amount paid by him for interest, etc., and the $500 paid by J upon the original mortgage; also held that the mortgage last mentioned was a valid lien upon the premises, and that plaintiff's title was subject thereto; also that the fact that plaintiff purchased in good faith and in ignorance that the moneys used to pay each of the first two mortgages were loaned upon security of the mortgage succeeding it did not affect her rights or equities; that she could get no better or stronger right than the judgment creditor would have, had he purchased. Clute v. Emmerick, 99 N. Y. 342. Execution issued upon a judgment, land was sold thereunder and a deed made to the purchaser. Held, not competent to have another execution upon the same judgment and sell the same lands a second time for a balance of the same debt alleged to be unpaid; and the purchaser under the latter gets no title. Such a proceeding can be sustained only when the defendant subsequently acquires a new estate in the land, which is subject to execution or perpetrates a fraud rendering the sale void. Peebles v. Pate, 90 N. Car. 348. In Pennsylvania, a sheriff's sale of land discharges the lien of arrears of ground rent due thereout at the time of the sale. Hence, a subsequent sheriff's sale of the land, under a judgment afterwards recovered against the covenantor for the same arrears, passes no title. Foulke v. Millard, 108 Pa. St. 230. In Alabama, a fraudulent grantee of property may become the purchaser at a sale under execution having a paramount lien, and thereby acquire a title which will prevail over subsequent creditors seeking to set aside his conveyance on the ground of fraud, leaving them nothing but the statutory right of redemption. Seals v. Pheiffer, 77 Ala. 278. In North Carolina, an execution sale of a debtor's land without having a homestead first laid off to him by the sheriff is, as a general rule, void, and the purchaser at such sale will acquire no title, no matter whether he be the plaintiff or a stranger. McCracken v. Adler, 98 N. Car. 400; s. c., 2 Am. St. Rep. 340. In New York, where the court orders a sale in a partition suit the title of the purchaser is deemed good not only as against the parties and their representatives, but also as against one claiming from or under such party by title accruing after the filing of a proper notice of the pendency of the action. Brooks v. Davey, 109 N. Y. 495. If a purchaser at a sheriff's sale has been guilty of some falsehood, trick or device before or at the time of the sale, by virtue of which he has obtained the property for less than it would other wise have brought, he does not obtain a good title; and such a title may be defeated by a subsequent sale of the property on the judgment of another creditor. The law presumes, however, that a public judicial sale is made in good faith, and this presumption stands unless overthrown by clear and satisfactory evidence of fraud or unfair means. Thus A, a debtor, and B, a judgment creditor, executed an agreement by which A covenanted not to dispute any of B's claims of record against him, but to permit all of his real estate to be sold by the sheriff, as soon as possible, by due process of law, and not to interpose any hindrance thereto; and further, to give up all receipts in his possession for moneys that had been paid on any liens against him, and which had not been receipted for on the docket; B, on the other hand, covenanted to purchase the property at the sheriff's sale, or cause it to bring a fair price if sold to someone else; and, further, that if she purchased the property herself, to resell it on time, and after all her claims were liquidated to place the remaining proceeds in the hands of some member of A's family. In pursuance of this agreement A's property was sold by the sheriff and B became the purchaser. In an action of ejectment against B by the purchaser of the said property at a subsequent sheriff's sale on a judgment of another creditor: Held, that the agreement was not prima facie fraudulent; and, further, that under all the evidence the plaintiff could not recover. Barton v. Hunter, 101 Pa. St. 406. See also Coker v. Dawkins, 20 Fla. 141. The rule of caveat emptor applies to a purchaser at execution sale; and if, at the time of sale, the purchaser has actual notice of an equitable right in a third person, especially if possession be held under that right, he will take subject to the equity; and a fortiori if he pay for the purchase by a credit on an antecedent debt. Boro v. Harris, 13 Lea (Tenn.) 36. See also Burton v. Spiers, 92 N. Čar. 503; Stotsenburg v. Stotsenburg, 75 Ind. 538. One who, being no party to the judgment, purchases at sheriff's sale real estate, which by the record apparently belongs to the defendant, is protected against unrecorded deeds and mortgages and outstanding equities as fully as one who takes a voluntary conveyance from such defendant. Lee v. Bermingham, 30 Kan. 312. But an execution purchaser who buys land subject to a mortgage can have no equities against the mortgage, and it does not concern him how the owner disposes of it. Youmans v. Loxley, 56 Mich. 197. No rights are acquired under an execution sale of a judgment which had been assigned for value prior to the levy, notwithstanding the assigment had not been filed, and no notice of it given to the purchaser. Southard v. McBrown, 63 Cal. 545 As a general rule the title of the purchaser of chattels at a sheriff's sale is not affected by mere irregularities of the sheriff in making the levy or advertising the sale. Boylan v. Kelly, 39 N. J. Eq. 331. See also Herman on Executions 513, § 342; Shelton v. Hamilton, 23 Miss. 496; s. c., 57 Am. Dec. 149 and note 151; Evans v. Robberson, 92 Mo. 192; s. c., I Am. St. Rep. 701 and note 706; Taylor v. Hoyt (Pa.), 15 Atl. Rep. 892. Irregularities and Reversal-Effect on Purchaser's Title.-Irregularities which render the sale merely voidable and not absolutely void will ordinarily have no effect on the title of one who purchases in good faith without notice thereof. Elliott's Lessee v. Knott, 14 Md. 121; s. c., 74 Am. Dec. 519; Shelton v. Hamilton, 23 Miss. 496; s. c., 57 Am. Dec. 151 and note; Park v. Darling, 4 Cush. (Mass.) 197; Sydnor v. Roberts, 13 Tex. 598; s. c., 65 Am. Dec. 95 and note; Splahn v. Gillespie, 48 Ind. 410; Sowles v. Harvey, 20 Ind. 217; s. c., 83 Am. Dec. 315; Hewitt v. Weatherby, 57 Mo. 276; Boles v. Johnston, 23 Cal. 226; Jackson v. Rosevelt, 13 Johns. (N. 4. Rights of Purchasers. As already stated, the purchaser obtains, where the sale is valid, whatever title the execution defendant had. He bids with this understanding, and has a right to presume that such title, or, in case of an administrator's or a guardian's sale, that of the decedent or ward, will be conveyed to him. If, therefore, the sale should prove to be void, or if, from any cause, he cannot obtain such title, which was the consideration for his bid, it cannot be enforced against him.1 Where the purchaser has already paid the purchase money before discovering the sale to be void, there is much difference of opinion as to his remedy, if any he has. If the plaintiff be the purchaser he may, upon failure of the title in such case, obtain a new execution. 2 Where the officer is in fault and the title fails because of his misconduct, he will be liable to the purchaser in an action of trespass on the case.3 3 "Where a purchase is made under a decree in equity, and such decree is reversed for a jurisdictional defect in the proceedings, or where the title fails because the grantee of a mortgagor was not a party to a foreclosure, the plaintiff has the right to prosecute further proceedings. In the case first named he may have the process properly served, Y.) 97, Dingledine v. Hershman, 53 Ill. 280, Ogden v. Walters, 12 Kan. 282; Sellars v. Fite, 59 Tenn. 120, Denham v. Holeman, 26 Ga. 182. But it is otherwise if the irregularities are so glaring that the purchaser ought to have known of them. Mordecai v. Speight, 3 Dev. L. (N. Car.) 428; s. c., 24 Am. Dec. 266 and note; Sanders' Heirs v. Ruddle, 2 T. B. Mon. (Ky.) 139; s. c., 15 Am. Dec. 148. v. Bank, 6 Pet. (U. S.) 8; Sutton The sale to the plaintiff, upon a void execution, of the defendant's interest in real estate, held under a certificate of sale, passes no title, and, the judgment and subsequent proceedings being set. aside, the defendant is restored to his rights without the necessity of a suit Gunz v. Heffner, 33 Minn. 215. See also Underwood v. Pack, 23 W. Va. 704. 1. Freeman on Void Judicial Sales, § 48; Thrift v. Frittz, 7 Ill. App: 55, Stoney v. Schultz, 1 Hill (S. Car.) Ch. 465; Boykin v. Cook, 61 Ala. 472; Burns v. Ledbetter, 56 Tex. 282, Short v. Por ter, 44 Miss. 533; Goode v. Crow, 51 Mo. 212; Barrett v. Churchill, 18 B. Mon. (Ky.) 387; Verdin v. Slocum, 71 N. Y. 345; Dodd v. Neilson, 90 N. Y. 243. And the fact that the sale is void Reversal of the judgment for error will not avoid the sale and destroy the title of a stranger who has purchased in good faith, but where the sale is made to the execution plaintiff it is otherwise. Corwith v. State Bank, 18 Wis. 560, S. C., 86 Am. Dec. 793; Stroud v. Casey, 25 Tex. 740; s. c., 78 Am. Dec. 556 and note. See also Crain v. Parker, I Ind. 374; Doe v. Swigget, 5 Blackf. (Ind.) 328; Clark v. Bell, 4 Dana (Ky.) 15; Hauschild v. Stafford, 27 Iowa 301; Gott v. Powell, 41 Mo. 416; Feaster v. Fleming, 56 Ill. 457; Dorsey v. Thompson, 37 Md. 25; Stinson v. Ross, 51 Me. 556 s. c., 81 Am. Dec. 591; Wood v. Jackson, 8 Wend. (N. Y.) 9; Little v. Bunce, 7 N. H. 485; s. c., 28 Am. Dec. 363; Estes v. Booth, 20 Ark. 583; Garrett v. Lynch. 45 Ala. 204; Termon v. Lyon, S1 Pa. St. 107; Farmer v. Rogers, 10 Cal. 335; Storm v. Smith, 43 Miss. 497; Hubbell v. Broadwell, 8 Ohio 120; Gray v. Brignardells, I Wall. (U. S.) 627; U. S. Bank v. Wash. 451. may be shown as a defence to an action on a note given for the purchase money. Riddle v. Hill, 51 Ala. 224; Laughman v. Thompson, 6 Smed. & M (Miss.) 259. 2. Freeman on Executions, § 54; Sargent v. Sturm, 23 Cal. 359; Adams v. Smith, 5 Cow. (N. Y.) 280. See also Watson v. Reissig, 24 Ill. 281; Boykin v. Cook, 61 Ala. 472; Henry v. Keys, 5 Sneed (Tenn.) 488. 3. Seeton v. Nevers, 20 Pick. (Mass.) and thus give the court jurisdiction to proceed. In the second named case he may apply to the court, have the sale vacated, the satisfaction cancelled, and then, by supplemental bill, bring in the proper parties, and have the property resold. In either case the purchaser may, by applying to the court in the original suit, have the proceedings conducted for his benefit, though in the name of the original plaintiff." In two or three States the purchaser has been permitted to recover from the plaintiff the amount of his bid paid upon the plaintiff's judgment; 2 and in other States he has, with more reason, been suffered to recover from the defendant, where the latter had no title, the amount paid in satisfaction of the judgment.3 But the better rule is said to be that the purchaser at an execution sale cannot, in an independent action, recover the amount of his bid from either of the original parties, except in case of fraud, misrepresentation, or the like.4 In some of the States the rule is more liberal in regard to equity sales, and it is held that the purchaser at such a sale is entitled to receive a title free from equities and encumbrances of which he had no knowledge or notice.5 1. Freeman on Void Judicial Sales, § 49. Citing Boggs v. Hargrave, 16 Cal. 559, Burton v. Lies, 21 Cal. 87; Johnson v. Robertson, 34 Md. 165; Cook v. Toumbs, 36 Miss. 685; Hudgin v. Hudgin, 6 Gratt. (Va.), 320; s. c., 52 Am. Dec. 124. 2. Chapman v. Brooklyn, 40 N. Y. 372; Schwinger v. Hickock, 53 N. Y. 280; Henderson v. Overton, 2 Yerg. (Tenn.) 394; s. c., 24 Am. Dec. 492. See also Ritter v. Henshaw, 7 Iowa 97; also Sanders v. Hamilton, 3 Dana (Ky.) 550, approved in an article in 21 Alb. Law Jour. 386, by W. J. Gaynor. 3. Meier v. Craig, 3 Blackf. (Ind.) 293; s. c., 25 Am. Dec. 111; Julian v. Beal, 26 Ind. 220; McGhee v. Ellis, 4 Litt. (Ky.) 245; s. c., 14 Am. Dec. 124; Price v. Boyd. 1 Dana (Ky.) 436; Howard v. North, 5 Tex. 290; Warner v. Helm, 1 Gilin. (III.) 220; Wilchinsky v. Cavender, 72 Mo. 192; Burns v. Ledbetter, 56 Tex. 282. In Kentucky, the purchaser of land under a void execution, having thus paid the debt of the defendant, has an equitable set-off against such defendant in a suit by the latter for possession; and the purchaser may, if he is in possession of such land, have a lien thereon for the amount so paid. Geoghegan v. Ditto, 2 Metc. (Ky.) 433; s. C., 74 Am. Dec. 413. 4. Freeman on Void Judicial Sales, § 49. Citing Branham v. Šan Jose, 24 Cal. 585; Boggs v. Hargrave, 16 Cal. 559. Salmond v. Price, 13 Ohio 368, s. c.. 42 Am. Dec. 204; Laws v. Thompson, 4 Jones (N. Car.) 104; Halcombe v. Loudermilk, 3 Jones (N. Car.) 491; The Monte Allegre, Wheat. (U. S.) 616; Burns v. Hamilton, 33 Ala. 210. In Louisiana, he may, by statute, recover the price paid as against both debtor and creditor, where the sale is annulled. Citizens' Bank v. Frietag, 37 La. An. 271. 5. Jordan v. Poillon, 77 N. Y. 518; Monarque v. Monarque, So N. Y. 320; People v. Knickerbocker Ins. Co., 66 How. (N. Y.) Pr. 115; Monaghan v. Small, 6 Rich. (S. Car.) 177; Kostenbader v. Spotts, So Pa. St. 430; Edney v. Edney, So N. Car. 81; Hunting v. Walter, 33 Md. 60. But compare McManus v. Keith, 49 Ill. 388; Owsley v. Smith's Heirs, 14 Mo. 153; Cashion v. Faina, 47 Mo. 133. And see authorities hereinbefore EMPTOR. cited under CAVEAT "A court of equity will relieve the purchaser from complying with his bid made at a judicial sale where the title is defective." Dunscomb v. Holst, 13 Fed. Rep. 11. In a recent case in New York a purchaser at a partition sale refused to complete his purchase because of a defective title. The lower court sustained a motion to compel him to take it, and this was held erroneous by the court of Where the purchaser was induced to bid by fraud or misrepresentation on the part of those conducting or interested in the sale on whose statements he had a right to rely, he may have the sale set aside and the property resold. Mere silence, however, will not, as a rule, constitute fraud in a judicial sale.2 Courts will often grant a reference, upon application of the purchaser, to ascertain if title can be made, and, if the referee should report that it cannot, will relieve the purchaser from completing his purchase.3 The right of subrogation is another important right existing, in most of the States, in favor of a bona fide purchaser who has, by payment of his bid, discharged a lien on the land of the defendant without gaining the title thereto.* appeals. The case was remitted, how ever, to the lower court in order that the purchaser might be compelled to take the property if the title should be made good. Miller v. Wright, 109 N. Y. 194. 1. Anderson v. Foulke, 2 Har. & G. (Md.) 346; Hayes v. Stiger, 29 N. J. Eq. 196; Fisher v. Hersey, 17 Hun (N. Y.) 370; Hickson v. Rucker, 77 Va. 135. Compare East v. Wood, 62 Ala. 313. So held where misrepresentations were made by the execution creditor. Webster v. Haworth, 8 Cal. 21; s. c., 68 Am. Dec. 287; Masson v. Bovet, 1 Den. (N. Y.) 69; s. c., 43 Am. Dec. 651. So, where a guardian misrepresented the title. Black v. Walton, 32 Ark. 321. But misrepresentations by the holder of the paramount title have been held no ground for relief from an administrator's sale. Pool v. Hodnett, 18 Ala. 752. So with the representations of a cotenant as against the others. Matlock v. Bigbee, 34 Mo. 356. See also Riley v. Kepler, 94 Ind. 308; Fore t. McKenzie, 58 Ala. 115. See SETTING ASIDE AND RESALE, infra, this title. 2. Thompson v. Munger, 15 Tex. 523; S. C., 65 Am. Dec. 176. See also Dean . Morris, 4 Greene (Iowa) 312. But compare Veeder v. Fonda, 3 Paige (N. Y.) 94. 3. 2 Jones on Mortgages, § 1648; Graham. Bleakie, 2 Daly (N. Y.) 55; Thomas 7. Davidson, 76 Va. 338. 4. Subrogation of Purchaser--Right Affirmed.-In Indiana, the right was denied in the early case of Richmond v. Marston, 15 Ind. 136; s. c., 42 Am. Dec. 204. But in a recent case it was held that under the general principles of equity as well as under the Rev. St. of Indiana, 1881, § 1084, the purchaser in good faith was subrogated to the lien of the judgment paid by him, upon the sale being adjudged invalid and set aside. Short v. Sears, 93 Ind. 505, 507. See also Bunts v. Cole, 7 Blackf. 265; Reily v. Burton, 71 Ind. 118; Carver v. Howard, 92 Ind. 173. And in another recent case it was held that "where land sold at sheriff's sale, upon execution, is misdescribed in the levy, return and notice, or, on foreclosure of a mortgage, where the decree is void for want of notice, and the land is misdescribed in the decree and sheriff's deed, the purchaser receiving a sheriff's deed nevertheless takes color of title, which he can convey, and the right of subrogation to the rights of the judgment or mortgage creditors passes to his grantees." Ray v. Detshon, 79 Ind. 56. In Kentucky, the right has been affirmed in favor of a purchaser at an execution sale. McLaughlin v. Daniel, 8 Dana (Ky.) 183. In South Carolina, the same has been held. Bentley v. Long, 1 Strob. (S. Car.) Eq. 52; s. c., 47 Am. Dec. 523. In North Carolina, the right has been affirmed in favor of purchasers at probate sales. Scott v. Dunn, 1 Dev. & B. (N. Car.) Eq. 427; s. c., 30 Am. Dec. 174; Perry v. Adams, 98 N. Car. 167; s. c., 2 Am. St. Rep. 326. In Missouri, Mississippi, Oregon, Wisconsin, Virginia, and perhaps in' two or three other States, a similar view has been taken. Valles' Heirs v. Fleming, 29 Mo. 152; Grant v. Loyd, 12 Smed. & M. (Miss.) 191; Douglas v. Bennett, 51 Miss. 680; Stockton v. Downey, 6 La. An. 581; Levy v. Riley, 4 Oreg. 392; Hudgin v. Hudgin, 6 Gratt. (Va.) 320; s. c., 52 Am. Dec. 124; Blodgett v. Hitt, 29 Wis. 182; Mohr v. Tulip, 40 Wis. 66. See also Bright v. |