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 0 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<s
Fitz Gibbon r. Lake
Fitzlui.Lcli V. Filzhugh
Fleming v. Maddox
Floritinc v. Barton
100,101,103,104,105,111,112,171
Floyd v. McKinucy 235
Fofsom V. Carli
212, 220, 230, 355, 3.)0
Foot V. Colvin 107
Forbs v. Hal soy l'j4
Ford V. Douglass 108
V. Skinner •J'^1
Foreman v. Hunt
7 11, 25, 27, 55, 59, 160
Fosdick V. Ban- «5, 278, 280, 281
I'AGK.
304
18, 174
320
840
255
201, 203, 204
12G
94, 95, 100
bG, 171
IGl
94
208, 290
00, IG, 17,
G.
V. Kisk
Foster v. Potter
V. Thomas
Fowble V. Bayburg
Fowler «. Pearce
Fox V. Hoit
V. Mensch
Frazier v. Pankey
v. Stoenrod
270, 271
348, 350
45
2ni
2GG
;]5, 103, 111
1G7, 1G8
101
35, 100
3G, 37, 52, 101, 102, 111, 170, 175
Frederick v. Pacquette
Frceby v. Tupper
Frooland v. Dazoy
Freeman v. Caldwell
f. Hill
r. Howe
V. Hunt
V. Mebanc
Frelingbuys(!n v. Colden
French v. Hall
V. Hoyt
V. 51 eh an
Frotwell r. JMooraow
Fri-.ch c. Kdnunison
Frizzle v. Veach
Fulton V. Moore
Furgiis V. Woodwortlk
Furguson v. Brown
■D. L<'e
T. Miles
Furlong v. Edwards
360,
Gaines t. Clark
V. New Orleans
Gamble v. Woods
Gantley's Lessee v. Ewing
25, 195, 19G, 241, 338
PAGB.
32H
24
239
Garrett v. Moss
Garson v. Green
Gaskill V. Morris
Gaston v. AVhite
Gates V. Irick
Gault V. Woodbridge
Gearhart v. Thorp
Gel sou V. Hoyt
Gelstrop v. Moore
Gentry v. Wagstatf
George v. AVatson
V. Williams
151
270, 271
122
1G7
'^-77
Gl
4
277
G7, 80, 81
170
42
190, 200, 272
2G1
37
2G4, 2G5
G4
GO, 154
100
251,323
228, 285
320
159, 217
87
343
89, 271
130
210, 211
219
179
103, 115
200, 272
102, 103, 122
01, 101
olo
35
42
314
101
!7G, 320
81, 205
311
225
3G3
360
12G
348
321
Gerrard v. Johnson 3G, 100, 117. 1
Gibbs V. Shaw 39, 40
Gilbert v. Cooley 84, 151
Gibson v. Creshore 311
V. lloU
V. Shaw
Gilchrist I'. Comfort
V. Rea
Gilky y. Uickeuson
Gill «. Lyons
Gillespie v. White
Gilman i\ Brown
1). Williams
V. Williamson
Gilmore v. Eogers
Gilpin V. Howell
Gimble v. Acklev
Girard Lifi; Ins. Co. v. Farmers'
and Mechanics' Banlc
11, 15, 20, 21, 22
Girt V. Frazier 154, 155, 290
Givin V. McCarroll 41, 177
Glasgow V. Smith ^ 261
Glass V. Greathouse 134, 13 1
Glen V. AVotten 57, 175
Glenn v. Clapp
'0. Malony
Gogoyan v. Ditto
Go'och 'V. Atkins
Good V. Jsorley
Goodman v. AVhite
Goodwin t. Mix
Gossom V. Donnaldson
Gordon v. Linis
Gore r. Brazier
Gorham v. Wing
Gottr. Powell
Goudy V. Hall 35, CO, 111, 114, 161
Gould V. Garrison 15, 44, 47, 49
209, 300
288
199
42, 105, 111
74, 310
302
GO
158
43
206
301
INDEX TO CASES CITED.
XIX
PAGE.
Goup V. Garlier _ 278, 283, 284
Gouvcrneur v. Titus 85
Gowan v. Jones 7, 10, 5G, 59, G7, 14.3
Graham v. Bleakie 07
V. Moore _ 199
Grant v. Lovd 177, 178
V. Mcl.achlin 180
Gray v. Briirnardcllu 24, GO, Gl
v. Gardner 05
Gra^'son v. Silby <"B8
Green v. Burke o31
c. Johnson 373
V. Marks 201, 203, 204
V. KanatTfi 20G
Greene v. Burke 230
Greenup v. Stoker 221
V. Stronjj; 87
Gregory v. 3IcPlierso»
99,100,101,122,145
V. Tabor 58
V. Thadwell 209
Greneniej-er v. Southern Mutual
Ins. Co'. 279
Gridleyi\ Philips 143,144
Griffin v. Boirart 174
t: Coffey 300
V. Marine Co. 134
i\ Thompson 25,217,330
Griffith V. Bogart 12, 26, 228
0. Fowler
4, 7, 20, 179, 182, 339
V. Frazier 101
■0. Hadiey J59, 200, 293
V. Huston 327
Grifrnon's Lessee «. Astor
10, 15, 10, 17, 19, 33, 35, 37, 38,
39, 40, 41, 42, 52, 94, 100, 102,
103, 104, 100, no, 111, 112, 122,
120, 127, 171, 174, 179, 180
Griswold v. Sedgwiek 100
V. Stoughtou 299
Gross V. Fowler 200
T. Pearcy 00
Gue V. Tide Water Canal Co.
344, 345, 347, 348
Guitteau v. Wiseley 302
Guy V. Pierson 103, 115
Gwyn V. Latimar 237
ir.
Haekworth v. Zollars GOO, 301
Hadden v. Johnson 30
Haddix c. Iladdix 134, 227
Hagaman v. Jackson 198, 287
V. Johnson 04
riaggerty v. Wilber 329, 330
.Haines v. Beach 23, 83
I'AGE.
Haines v. Linscj^ 201
Halle Fisher 311
Hale V Heaslip 355
Hall V. Thomas 312, 314
Halleck v Guy 4, 0, 7, 04, 107, 123
Halstead «. Haskin 211
Hamilton v. Burch 292, 293
V. Bush 292
V. Dunn 70, 73
V. Lockhart 170
«. Lyman 210
V. Quinby 290
Hammersmith v. Espy 29
Hammit v, W_yman 341, 347
Llaudy v. Dobbins 323
Hanger v. Abbott 31G
Hannibal & St. Joe U. Tl. Co. v.
Brown 290, 301
Harding v. Sjiivey 320
Hardin v. Cheek 275
■c. Hudgins 177
Harkrider i\ Harvey 137
Harlan v. Merrill " 9
Harmon v. Stipp 297
Harper v. Hill 380
V. The New Brig 181
Harrington «. O'Riley " 240
Harris v. jVIakepeace 22.'>
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
Jl<J\vry V. Adams 08
Muir V. Craig 303
Mulks V. Allen 295
Mullikin v. Mullikin 4, 101, 108
Muraford v. Armstrong 217, 330
Mjer r). Douglass ]20
Myers v. Cochi'au 254
V. ]\IcDonald 102, 111
v. McDougal 10, 35, 173, 117
V. Saunders 293, 327
Naglee v. Pacific Wharf Co. 340
Nason v. Allen 199
Natchez v. Minor 213
National Bank v. Spraguc 40
of the Sietroioolis
V. Sprague 49
Fire Ins. Co. t\ Loomis 04
Neal V. Stone . 159
Neary v. Cahill 14-8
Neil V. Hughes 148
Nelson v. Bowen 289
Nesbitt V. Dalian 290
New Ark Town Council v. Elli-
ott 349
Newel V. Sibley 320
V. llayden 353
Newson v. Wells 05
Newton v. Nunnalby 371
New York & New llaven R. R.
Co. V. Schuyler 350, 351
Nichols V. Dewey 207
V. Disner 286
V. Ketchum 337
Niel V. Hone 298
Nielsen v. Nielson 218, 253, 341
Noble V. Coi)e 370, 371
Noel V. Temple 77
North Pres. Cliurcli v. Jevne 84
Norton v. Norton 93, 143
V. Williams 278, 279
Nowell V. Nowell 43, 94
Nowler V. Coit 33, 177
O.
O'Conner v. Warner 374
Ogden V. Gidden 235
Ohio Life Ins. and Trust Co. v.
GibUm • 70, 71, 73
^•. Gordon
15, 57, 108
Oliver v. Caton G7
V. Croswell 809
V. Piatt 50
O'Neal V. Duncan 287
Ontario B'k v. Lansing 291, 295, 303
INDEX TO CASES CITED.
XXV
PACE.
Onnsby v. Tcrrj' <)'7
Orsborn v. Cloud 323, 336
V. Tunis 275
Orth v. Jen n in gs 249, 278
Otis v. Wood 323
Oviatt V. Brown 281
Owens V. Slater 140, 1G5
r. Thompson 107
Owsley V. Smith 108
P.
Pa.£re v. Cole 99, 271
Palilman v. Graves 97
Paine v. IMoorland 39, 104, 108
V. Pendleton 103
Palmer v. Clarke 373
'«. Forbs 32G, 34G
V. Oakley 120, 145
V. Palmer 99, 100, 259
PanncU v. The Bank 80
Parham v. Thompson 323, 324
Parker v. Kane 37, 52, 171, 174
V. Keene 180
i;. Nichols 101,121
V. Pierce 249, 278, 279
f. Storts 150, 151
Parkman v. Welsh 206
Parshall v. Shirts 225
Patterson ». Carncal 219, 254
Patton V. Stewart 293
Paul V. Hussey 35, 103, 103, 111
Payne v. Bellingham 336
Peak V. Shastcd 101
Pearson v. ]\Iinturn 350
Peck V. Mallams 259
Peet V. IMorsian 188
Pel 1 ct rea u uT Smith 91
Penhallov,- v. ])oane 179
Pennablow y. Dwight 323
Penn v. Craig 48
v. Ileisey 4, 167
Pensonneau v. Bleakby 50
Pennington v. Clifton 303
V. Yell 199
People <i. Baker 311
V. Boring 2G1, 2G2, 264
V. Bradley 321
V. Stanley 118
Pepper v. Commonwealth 219
Perkins «. Dibble 275
i\ Fairtield 39, 104
V. Tliorapson 342
T. Winters 93
Perpetual Ins. Co. v. Goodfellow 350
Perry v. Clarkson 120, 174
V. Brainard 128
Petermun v. Watkins 143
PAGE.
Peters v. Ins. Co. 180
Petit V. Petit 91
Pewronneau v. Bleaklev 134
Phegley v. Tatum "179, 180, 185
Phelps V. Butler 197
V. Conover
017 010 001 000, OOP
V. Cowen 218
Phil. & Trenton R P. Co. v.
Stimson 171
Philips V. Coffee 213, 228, 275, 285
V. Dana 235, 248
«. Johnson 29
V. Jamison 261
Picket V. Harlsock 238, 255
Piel V. Brayer
217, 224, 225, 235, 246, 294
Pierce v. Benjamin 343
V. Gates 87, 88
V. Roche 323
Pierse J!. Trigg 126
Pierson v. DaVid 89, 271
Pitt V. McGee 332
Pitts V. Hendrix 199
V. McGie 196
Pjttsburu'h & Stcubcnville B. E.
Co. V. Jones 88, 270, 271
Planter's Bk. v. Fowlkes GO, 07
?;. Leavens 348
V. Merchants' Bank
348
Plummer i\ Webb 181
Plymouth R. R. Co. v. Caldwell 344
Polk V. Gallant 277
l^ool V. Young 338
Pope V. Ewbank 355
Popleston V. Skinner 339, 340
Porter ®. Millet 197
Post». Leet 101
Potter V. JIcDowell 279, 283
Pound V. Pullen 250
Ponder v. Moseley 30
Prather v. Hill 289, 290
Prescott 'B. Everts 261
V. Wright 3'>8
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. R<iss 30, 302
Stockwell V. Byrne 244
«. Carpenter 77
Stoebler v. Knerr 200, 274
Stokes V. Middleton 36, 38
Stone V. Gardner 312, 313
Stoner ». Nefl" 88, 374
Stover V. Boswell 219, 254
Stow V. Steele 227, 235, 285
?;. Kimball 102,104
Stratton «. Jarvis 180
Street v. Beal 311
Stroblev. Smith 165, 166, 167
Stronii V. Caton 154, 158, 159
Strodse «. Dreman 169
Stuckey n. Keefe's Exrs. 200
StuydeVant v. Hall 82, 205, 225
Styinets v. Brooks 237
Sufleru V. Thompson ' 80
I'AOE.
Sullivan t). Ilearndon 213
Summers v. Moore
210,211,228,234,239
V. Palmer 264, 265
V. Williams
95, 167, 168, 175
Susquehanna Canal Co. v. Bon-
ham 346
Swan V. Saddlemire 253
V. Wheeler 97, 99
Swarts V. Steere 85, 373
Snazey v. Burke 134, 139, 160, 281
Sweezey v. Chandler 309
Swift V. Swift 137
Swiirart v. Harber 170
Swink V. Thompson 204
Swope V. Adery 217, 219, 290, 291
V. Anderson 336
Snortzell v. Martin
27, 28, 219, 336, 337
T.
Tabb V. Harris
320
Tally V. Starke
49, 115
Tanner v. Dean
175
Tardy v. Mor<^an
33
TartJr v. Hall
166
Taylor v. Carryd
361
V. Cornelius
197
V. Gil lean
323
V. Gilpin
9, 10, 55
V. Junkins
346, 347
v. ]\Iiller
240, 243
V. Porter
311
V. Thompson
61, 228
Ten Eyck v. Cassad
309, 310
Terrill v. Ancliauer
134, 137
V. Thompson
340
Tcvis V. Doc 201, 240, 242
Thelusson v. Smith 279
Thomas v. Ai'mstrong 344
V. Kennedy 279
V. Le Barron 147, 171
V. .Marshall 197, 200
T. Simpson 197
Thompson v. Chandler 310
V. Doe 118
V. Ford 331
V. McCord 371
V. Tilonsxer 168
'0. Philips
26, 27, 228, 258, 284
V. Tolmie
37,52,103,106,126,
170, 171, 180, 285
Thorn v. Tn,<rram 4, 10, 55, 59, 1 16
1). San Francisco Slj
IKDKX TO CASKS CITKI).
XXIX
PAOl!.
Thornton r. IMulqiiinne 101, 10:5,
121, 122, 173, 175, 17(5
V. Thornton 273
Tliorp V. McCuUum 50, 134
Thurston v. Xjarnos 242
V. Boyd 201
Tibhsfl. Allen 131
Ticko V. Ersick 2(i8
Ticknor i\ Harris I'l
Tillman c. Jackson 222
Tillotson V. Cheatham
215, 21G, 2G1, 2G2, 333
r. Millard 354, 355, 358
Tiukham v. Purdy 53, 54, 219, 33G
Tippett V. Walker 348
Titcomb t. Ins. Co. 34G, 347, 341)
Titus h. Lewis 314
V. Mabee 32G, 346
Todd -. Bond . 37
V. Philhowor 25 27
romlinson v. ISIcKay 174
rongue V. Morton 36, 104
Tooiey V. Gridley G8
Torrance v. Torrance 3G, 91, 95
Torrev «• The Bank of Orleans
51, 134
Townsend v. Tallaut 57, 58, 120, 173
Ti'abue v. Ingles G7
Trenury v. Cheever 331
Trigg V. Ross 250
Tripp V. Cook 154, 155, 157
Troutman v. Gowiug 3G3
True D. (;ougdon 340
V. Morrill 355
Trustees of Schools c. Snell 53, 54
Tudor V. Taylor 303
Tuecher v. Hiatte 311, 312, 314
Tuler v. Wilkinson 224
Tullies V. Brawley 212, 229, 230
Turcand v. Gex 374
Turner -y. Ellis 102
V. Feudall 370
Turney r. Gates 308
?.. Turner 101,102, 114, 115
V. Young 239, 308
Tattle r. Walton 350
V. Wilson 19G
T-wogood V. Franklin 31, 32, 24G. 248
Tyler v. Wilkinson 217, 241, 257
Tvrell V. Eoundtree 208
Tyree v. Williams 200
U.
United States v. Duncan
1G7, 1G8, 207
V. Knight
245, 301, 3G2
Bank v. Halsteacl
245, 3G1
Vail V. Foster 86
Vallee v. Fleming 5G, 141, 143, 145
Vance v. Readdon 284
Vancleare v. ]\Iillikin 03
Vandcvere v. Baker 4, 7, CO, 108
Van Hook v. Throgmorton
07, 80, 81
Van Nostrand v. Wright 101
Van Rensellear v. Kearney 105
Vansyckle v. Richardson 43, 122
Vaughn v. Eli 268
V. Holmes 93
Veazie v. Williams 45, 47
Veeder v. Fonda 158
Voorhees v. The U. S. Bank
27, 01, 103, 104,
105, 121, 122, 145
v. Jackson 174
320
Union Bank v. INIcClung
United States ?\ Arredondo
33, 35, 104. 105.
120, 171, 180
123, 126
209
4, 9, 57
321
143
249, 278
1G9
W.
Wade V. Carpenter
V. Watt
Wagner v. Cohen
V. McCoy
Walace v. Hale
Waldo V. Russell
Walden «. Gridley
Walker v. The Comraonwealth 332
T. Elston 278, 279
V. Green 283
V. McKnight 253
V. Jlorris 37
Wallace v. Berger 290, 295
u. Hale 5'i
v. Laurence 283
V. Wilson 305, 306
Walshe i). Ringer 242
Ward ». Holl ins 60
V. Smith 134
Ware v. Bradford 284, 285
V. Cradford 227
Warfield v. Woodward 260
Warinbold v. Schlicting 363
Warner v. learian Community 374
Warren v. Fish 307, 314
T. Icarian Community 370
r. Leland 53, 54
Wart V. Finley 117
XXX
IXDEX TO CASES CITED.
PAGK.
"Wusliington r. Irving
209
r,. JMcCuu
ghan 91
Waterman v. Ilaskiii
211,281
Watei-s V. Stewart
1!)7
Watkius V. Gregorj'
197
V. Ilolniau
43
Watson «. Rcissig
197
294, 303
V. Wells
87
Watts V. Scott
65
V. Waddle
33
Waverley v. Clements
18f)
Wayman «. Soutliard
245
Weaver v. Huntingdon,
otc.
R. R. Co.
348
349, 350
Webb V. Watson
311
Webber t. Cox
213
V. Kenny
237
Weber v. Henry
331
Webster i\ Foster
256
V. Hill
50, 143
c. Re id
249
V. Smith
228
Weed V. Edmonds
s
J, 37, 101
Weinen v. Hcintz
171
Weir V. Clavton
232
Wells V. Miller
123
Welman v. Lawrence
119
146, 174
Welsh V. Joy
275
Wei ton V. Tizzard
279
West V. Davis
154, 155
V. Town send
19
West Branch R. R. Co.
V. ^
Vrm-
strong
350
Western e. Bear River &
Au-
burn Co.
350
Penn. R. P.. C
o.v.
John-
sou 19,
189,
197,344,
340, 348
Wester velt v. Pinckne\
329
Weston V. Clark
252
Westover v. Davis
157
Weyand v. Tipton
284
Whatley v. Newsomo
228
Wheat V. Sexton
227 228
Wheatley v. Tutt
''"3G,"49
Wheatoil i-. Sexton 213,
232, 233, 235,
239,
248
251, 252
Wheeler v. Kennedy 217, 218
Whipple V. Farrar 205
i\ Foote 323
White V. Denman 85, 280
V. Hampton 311
v. Jones 319, 324
V. Osl)orn 340
V Patten 164
r. Whitnev 207
White Crow r). White King 292
Whitfield v. Hale 125
196
33, 43
234
180, 181
Whiting V. Porter
AVhitman v. Tyler'
AVhitucy v. Armstrong
V. Walsh
Whittakcr v. Sumner
Wickliff V. Robinson
Wiggins V. Chance 201, 203, 204
Wilcox v. May
Wilder v. City of Chicago
V. Keller
Wiley V. Bridgman
f. Budgman
Wilkerson v. Lehvnd
Wilkinson v. Leland
Willard v. Lonstreet
V. Norris
V. Whipple
Williaius V. Armroyd
V. Blair
V. Brown
'c. Case
V. Chapman
e. Childress
v. Cummins
V. Dale
v. Harrington 125, 145
c. Herr.don
V. Holliusworth
V. Ives
V. Janson
€. Jones
V. McDonald
V. IMorton
c. Norris
'c. Sweetland
r. Tatnal
V. Walds
Williamson t\ Berry
9, 10, 15, 44, 45, 40
55,50,59, 141,
V. Leland
n. Perkins
Williard r. Nason
V. Norris
v. Whipple
Willis V. Bucher
Wilson t?. Bergin
V. Bigger
■0. Conklin
r. Corine
r. McGee
■r. McVeagh
c. Iteed
V Renter
t". ]{oyno]ds
r. 'i'roup
V. Wilson
Windser c. China
244
298
180
213
50
, 293
372
33
97
220
370
170
140
338
79
285
182
101
318
15
76
110
30
159
,148
331
277
23
278
335
117
178
208
355
85
80
5, 6.
49,
217
104
210
91
31
228
138
115
160
309
284
228, 251, 285
284
340
78
45
227
103
311
4,
39,
131,
35,
INDEX TO CAS3:S CITKI).
Wing V. I>iir<rcs.s
Winn V. Intriibv
Winslow V. Loiin;^
Winstcad v. Winslcad
Winston v. Ortley
Winters v. Bufonl 217, 218,
Wisconsin v. 'ritus
Wise V. Sliopherd
Wisner v. P'urnliam
Wolf T. Heath
V. liobinson
V. I'ayne
13. Van Metre
Wood v. Byington
V. Chap in
«. Colvin
233, 235, 2.jr,, 2.j4,
V. Mann
V. Moreliouse 21G,
V. Nason
V. Turnpike Co.
Woodbury v. Parker
Woodcock V. Bei-nett
Woodrutr V. Cliaiiin
Woods V. CliajHU
■0. Lane
r. Lee
r. Alone] I
V. Van Arsdalc
Woodward f. II ill
v. Alurj'v ;55o.
Wort V. Finly
Wormslev v. Wormsley
50, 51, 134, 13(), 138,
r
AGE,
275
322
343
27(5
301
223,
294
205
207
355
239
43
258
219
05, 90 i
247
249
22t>,
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,
0 Porter, 219; McPlierson v. CunlilF, 11 S. & R. 430; Lightfoot v. Lewis, 1
Ala. 479.
' 0 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 mortfra<?ed
premises on sj)ecial execution.^ The sale, however, is none the
less a judicial sale, for the judgment and writ name the prop-
erty to he sold, and the condemnation of the property is by
judgment in o'em, although personal judgment is some times
also o-iven ajjainst the defendant.
III. JUMCLVL S^iLES IN PkOCEEUIXGS PaKTLY In KeZSI, AND
Partly In Personam.
§ 41. Judicial sales, in proceedings partly'-i;?. rem and partly
in personam^ are where the ^proceedings are of a mixed nature,
being directly against the property and also, personal against
the owner, as in proceedings to foreclose deeds of mortgage
by judicial sale.^ In such cases, there is proceedure in rem
against the property, and at the same time personal process
against the mortgagor to bring him as defendant into court.
1 Rawle, G4, that " nothing could more clearly show how notorious is tlie
rule that in every judicial sale in Pennsylvania the land goes to the pur-
chaser clear of all judgments and moi'tgages, and that out of the purchase
money the sherifl', at his own risk, is to pay off all these liens, according
to their priorit}', in so much that, though the act of assembly about parti-
tions makes no mention of liens, yet by analogy drawn from the notorious
usage of the commonwealth, an allowance was adjudged to the sheriff for
the fees paid for search as of judgments and mortgages, the owners of
which might afterwards call upon him for the money." The court add :
"For these reasons we hold that a sale made in partition by writ under
act of 1799 does discharge the lien of judgments and mortgages upon the
land sold, having the ordinary effect of other judicial sales." Girard
Life Ins. Co.-ij. Farmers' & Mechanics' Bank, 57 Penn. St. 396, 097. But
a different rule in regard to incumbrances seems to prevail in Illinois. In
McConnel i\ Smith, 39 111. 289, it is said that, "As a general rule, subject
it may be to some exceptions, a purchaser, at an administrator's sale,
acquires it (the propert}-) with all the incumbrances to which it is liable."
' Williams v. Ives, 49 111. 512.
* Kershaw v. Thompson, 4 John. Ch. 009 ; Downing v. Palmeteer, 1 Mon. G4.
THE NATURE OF JUDICIAL SALES. 23
A decree in tliis class of cases and sale thereon only confers
title as ao;ainst the parties to the suit.i
§42. The decree of foreclosure and sale is -partly hi Q'em,
being directly against the property ;3 whilst so much of it as
bars the right of redemption is in jiersonam, divesting the
defendant, as it does, of the personal right to redeem. The
proceeding is predicated upon tlie defendant's contract of
indebtedness and mortgage, and not upon the j^lenary power
of the court over the subject matter, irrespective of the parties
in interest. Yet the sale is none the less a judicial sale, and
the sale of the court. The deed, Avhere the record of the mort-
a-ao-e is reii-ular, relates back and confers title by relation to
the date of the mortgage as against intervening claims.
§ 43. In some of these cases, for instance wlien the defend-
ant is not found, but is brought in by publication, the pro-
ceedings assume very nearly the features of those which are
purely 'm oxm. But there is still a difference; for the debt
and mortgage deed exist in contract and are no less the basis
of the proceeding than they are wdien the defendant is brought
personally into court.
§ 44. The judicial sale involved in the case of Minnesota
Co. V. St. Paul, post, referred to was conducted by the United
States marshal, but not by virtue of his powers of office under
the law. It was no less judicial as made by him than it would
have been if made under direction of a master. The court
ordering the sale clothed him, in virtue of the order, with a
master's powers in that particular. In considering the case
of Minnesota Co. v. St. Paul, the United States Supreme Court,
speaking of the marshal's appointment, say that he was
"directed to make the sale instead of a master commissioner;"
and that the sale so made " was confirmed by the order of the
district court." Yet as more and other property was sold than
was included in the decreo, the court held the sale of that part
which was not include<l in the decree invalvid notwithstand-
ing its confirmation. The Supreme Court attribute the con-
' Hiiines v. Beach, 3 John. Cli. 459.
"" Kershaw v. Thompson, 4 John. Ch. 609,
2J: JUDICIAL AXD EXECUTION SALES.
firmation, as to the excess, to an oversiglit, and do not decide
positively as to tlie power of a court to confirm in such a sale,
with knowledge of the departure from the decree, but remark
that " cases in this (Supreme) court would seem to decide that
it cannot, 1 and they refer to Shriver v. Lynn^ and Ch'ay v.
Brignardello.^
§ 45. The sale then which was here brought in question
was clearly a judicial sale, though made by the same person
who exercised the office of marshal, or if preferred by the
marshal, for it were competent for the court to so designate
and appoint him. Tliis sale is regarded by the Supreme Court
of the United States as judicial, wherein they liken it to a
" master's sale " in this, " that a j)urchaser or bidder at a mas-
ter's sale " subjects himself " quod hoc to the jurisdiction of
the court," and that therefore the purchasers were estopped to
deny being within the jurisdiction of the court as parties in
litigation in the case."*
1 Minnesota Co. t. St. Paul, 2 Wall. C40, 641. And in Gaines v. New
Orleans, G Wall. 714, the Supreme Court of the United States hold that a
probate court " could not by a subsequent order give validity to sales made
by executors which were null and void by the law of the state when they
were made."
"- 3 How. 43.
' 1 Wall. G37.
4 Minnesota Co. v. St. Paul, 3 Wall. G34.
CHAPTER II.
THE NATURE OF EXECUTION SALES
I. They are MrNiSTEniAL Sales.
II. The Officer Selling is, ix La-sv, the Attorney op the Execu-
tion Debtor.
III. There is No Warranty. The Rl^le caveat emptor Applies.
I V. They are Within the Statute of Frauds.
V. Effects op Subsequent Reversal op Judgments, or Quashing
the Execution.
I. They ake MmiSTERiAL Sales.
§ 40. In making ordinary execution sales, simply by virtue
of his office, tlie sheriff or marshal acts as the ministerial
officer of the law, not as the organ of the court. He is not
its instrument or agent, as in judicial sales, and the court is
not the vendor. His authority to sell rests on the law and on
the writ, and does not, as in judicial sales, emanate from the
court. The functions of the court terminate at the rendition
of the judgment, except where confirmation of the sale is the
practice. The court does not direct what shall be levied or
sold, or how the sale shall be made. The law is the officer's
only guide. 1
§47. This very principle was distinctly avowed by the
Supreme Court of the United States — Daniel, Justice — in
Griffin V. Thomjpson^^ in reference to which that court charac-
terize the marshal's functions in enforcing an execution at law
in the following terais : In reference to his powers and duties
the court say that he is the " officer of the law, and is bound
to fulfil the behests of the law; and this, too, without special
iRac. Abt. Sheriff, M.; Foreman ®. Hunt, 3 Dana, (Ky.) G14, G21; Gant-
ley's Lessee •». Ewing, 3 How. 714; Todd t?. Pliilhower, 4 Zabr. 79G; Mc-
Kuight -c. Gordon, 13 Rich. Eq. (S. C.) 222 ; South v. Maryland, 18 How
390, 403; Armis v. Smith, IG Pet. 309, 313; Griffin v. Tliompson, 3 How.
25G, 357.
" 3 How. 35G, 337.
(25)
2G JUDICIAL AND EXECCTIOX S.VI.ES.
instruction or admonition from any person." Uiililvea mastci
or commissioner, selling on decree in chancery, the law is liis
guide; whilst the master or commissioner are subject to the
guidance and the order of the court. In the language of the
learned Justice Eedfield, "It is plain then that a sheriff's sale
is not a judicial sale. If it were, no action could be brought
against the sheriff for selling upon execution j)roperty not
belonging to the debtor." ^
§ 48. There are exceptions to this rule, some of which may
be stated. "When by the law the sale is required to be reported
to the court for confirmation, and is only binding when con-
firmed by the court, in such cases sheriff's sales, on ordinary
execution, partake of the nature of judicial sales; for the
act of confirmation is a judicial act, and is spread upon the
records. This distinction, to-wit: the necessity of confirmation,
is the line drawn by Mr. Justices Stoey and Baldwin on the cir-
cuit, and Geier delivering the opinion of the Supreme Coui-t
of the United States, as contra-distinguishing judicial from
execution sales.-
§49. Another exception to the rule first above stated is, in
mixed cases of law and equity; in which special executions
issue under the statute, partly partaking of the nature of an
execution at law and of an order of sale in chancery. Here
the precise character of the sale depends upon the sj)ecial
features of each case. It maybe judicial, and it maybe min-
isterial, as either feature predominates; and it may partake of
the qualities of each in some respects.
§ 50. In ordinary execution sales, the court neither order
the execution nor the sale. There are, however, special instances
when ordinary writs of execution are ordered by the court, as
when there is satisfaction wrongfully entered of a judgment,
or returned of an execution, satisfaction will be set aside and
an alias \n:\.t of execution will be ordered; but when issued, it
is none the less, a mere ordinary execution, and on it the
sheriff sells under the power of the law.
' Griflilli V. Fowler, 18 Vt. 394.
''Thompson'!). Philips, 1 Bald. C. C. 2G4; Arnold v. Smith, 5 Mason, C.
C. 414, 420, 421 ; Griffith v. Bogart, 18 How. 108.
THE NATURE OF EXECUTION SALES. 27
§51. The exercise of this power, liowever, is invoked by
tlie writ of execution. The act of selling is ministerial. ^ The
officer selling is for that purpose constituted by law the agent
and attorney of the execution defendant ;3 and is not, as in
judicial sales, the agent or instrument of the court. ^
§ 52. The title under sherifl' sale passes to the purchasers, as
a general rule, without the express sanction or confirmation of
the court,* which possesses only the negative power of setting
aside the sale for cause. To this, however, there are exceptions
in several of the States, where, by law, confirmation is required. '^
§ 53. In the latter class of cases the sale, by the judicial
act of confirmation, becomes in some respects a judicial sale,
and as such is characterized by Justice B^VLDw^N, in Thom2)Son
V. Philips, a case which arose under the laws of Pennsylvania,
and Avliere by the courts in other Pennsylvania cases the prac-
tice is to confirm in open court at the time of the acknowledg-
ment of the deed. In that case the court say: "In this State
the reception of an acknowledgment of a sheriff's deed is a
judicial act, in the nature of a judgement of confirmation of
all the acts jDreceding the sale, curing all defects in the process
or its execution, which the court has power to act upon." '^
When the acknowledgment is thus taken and the deed or sale
confirmed, then, in contemplation of law, everything which
has been done is considered as done by the order or under the
sanction of the court."
^ Bac. Abt. title Sheriff, M. G89, G91 ; Todd v. Philliowcr, 4 Zabr. (X. J.) TOG.
^ Cooper's Lessee t. Galbraitli, 3 Wash. C. C. 54G, 550; Swortwell i\ Mar-
tin, IG Iowa, 519.
^Foreman w. Hunt, o Dana, G22; McKnight v. Gordon, 13 Rich. Eq.
(S. C.) 222.
* Foreman «. Hunt, 3 Dana, G14, G21, G22.
5 Curtis V. Norton, 1 Ham. 278; Thompson v. Philips, 1 Bald. C. C. 24G,
272; McBain v. McBain, 15 Ohio St. 337.
« Thompson v. Philips, 1 Bald. C. C. 272; Smith v. Simpson, GO Penn. St.
169; McBain v. McBain, 15 Ohio St. 337.
'Thompsons. Philips, 1 Bald. C. C. 272; Voorhees v. Tlie U. S. Bank,
10 Pet. 472, 476; McBain v. McBain, 15 Ohio St. 337; Wuods v. Lane,
3 S. and Rawle, 54, 55.
28 JUDICIAL AND EXECUTION SAEES.
II. The Officer Seeles'g IS, IX Law, THE Attoijney of the
Execution Debtor.
§ 54: The slieriff or other officer making the sale is einpow-
cred by law to convey by deed to the purchaser, nnder an
execution, all the right, title, interest and estate of the defend-
ant, as fully (but not to warrant) as the defendant himself, or
an attorney empowered for that purpose by him, could do. The
officer, in fact, acts as such attorney or agent, appointed for
that purpose by law.
§55. The purchase money is applied to the use of the
defendant in the discharge of his debt; between him and the
purchaser the law raises a contract, in like manner as if the
conveyance (without warranty) had been made by himself. '
We have chosen in most of the above to appropriate the very
lanjruaire of that ffreat Jurist, Justice Washington.
§5G. In Coope7'''s Zesseev. Galhraith,^ Justice Washington
says: " The sheriff is empowered by law to convey by deed to the
purchaser, under execution, all the right, title, interest and
estate of the defendant, as fully as the defendant himself, or an
attorney empowered for that purpose by him could have done.
The officer, in fact, acts as such attorney, appointed for that
purpose by law."
And the same doctrine is held in South Carolina. In Ifasscij
V. Tliomqjson^^ Justice Colcock said: " The defendant ought
not to be permitted to oppose the title of a purchaser. The
sheriff's deed is his. He has received the consideration. It
has been applied to the payment of his debts. He should be
estopped." The doctrine is again reasserted by Justice Inglis,
in ITcKnight v. Gordon.^
» Cooper's Lessee v. Galbraith, 3 Wash. C. C. 546, 550; Swortzell v. Mar-
tin, 10 Iowa, 519; Conway?;. Nolte, 11 Mo. 74; Mclvniglit ^. Gordon, 13
Rich. Eq. (S. C.) 223; Kilgore v. Pcden, 1 Strob. Eq. 19
2 3 Wash. C. C. 550.
» 2 K & McCord. 105.
* 13 Ilich. Eq. 222, 239.
TnE NATURE OF EXECU'llON SALES. 29
III. There is Ko Implied "W^NJiRANTr. Tue Rule of Caveat
Emptor AiTLiES.
§ 57. In making' a sale under execution tlic slieriff or other
public ofHcer professes to sell only the interest or estate of the
judgment debtor in the premises.
He is not bound to convey "svith a warranty; neither does
the law imply one: The rule of caveat emjytor aj^plies. Let
the buyer beware of the title for which he bids. ^
§ 58. The purchaser acquires only the title of the execution
defendant as it existed at the date of the judgment, if such
judgment is a lien upon the premises sold;^ and if not a lien,
then from the date of the levy of the execution ;3 but if suit is
by attachment, then the purchaser takes title from the date of the
levy, or as in attachments, delivery of writ,* or as in some of the
states from the test, and in others from the delivery of the writ.^
If the officer convey with warranty, he binds himself thereby,
personally, and no one else.^
§ 59. Purchasers at execution sales cannot, when there is no
fraud, excuse themselves from paying the amount of the pur-
chase money, uor avoid their bid by showing that the judg-
ment debtor had no title to the property sold, or that his title
tliereto was defective.
The maxim caveat em,ptor applies in all its strictness. There
is no warranty. The officer sells only the title of the debtor.''
^ Hammersmith «. Espy, 19 Iowa, 444, 446; Dean «. Morris, 4 G-. Green,
312; Eittcr v. Hensliaw, 7 Iowa, 97, lOO; Avant v. Reed, 3 Stew. 488;
Piiilips «. Johnson, 14 B. Men. (Ky.) 173; Harth -a. Gibbes, 3 Rich. 316;
Reed's Appeal, 13 Penn. St. (1 Harris, 476); Rockwell v. Allen, 3
]\IcLean, 357; Creps v. Baird, 3 Ohio St. 277; Lang t\ Waring, 25 Ala.
025 ; Coyne v. Souther, 61 Penn. St. 457.
« Smith -B. Allen, 1 Blackf. 22; Bac. Abt. title Execution, 725; Miller©.
Finn, 1 Neb. 255.
^ Boyd «. Longworth, 11 Ohio, 235.
* Shirk t. Wilson, 13 Ind. 129.
5 McLain v. Upchurch, 2 Murph. 353; Lewis v. Smith, 3 S. & R. 157.
0 Rockwell '0. Allen, 3 McLean, 357; The Monte Allegre, 9 Wheat, 016.
■" Camden «. Logan, 8 Iowa, 434; Dean v. IMorris, 4 G. Greene, 313; Dean
«. Frazier, 8 Blackf. 433 ; Rogers v. Smith, 3 Carter (Ind.) 526; Engleman
». Clark, 4 Scam. 486.
30 JUDICIAL AND EXECUTION SALES.
§ 60. Siicli sales are none tlie less sheriff's sales if the
officer, at tlie instance of the plaintiff and defendant in execu-
tion, sells on a credit; and therefore the collection of a note
given for such purchase money cannot be evaded by reason of
failure of title. ^
IV. TiiEY AEE WITHIN THE Statute of Frauds.
§ Gl. Execution sales, in the absence of any memorandum
of the officer selling, are considered within the statute of
frauds. 2 The case here cited arose in Maryland, where no
formal deed is made by the sheriff", but the return of the
sheriff constitutes the purchaser's muniment of title. The
same rule, however, prevails in reference to tlie statute of
frauds where deeds are executed by the sheriff.
§ G2. Such sales by the sheriff are made under the law and
not under direction of the court, and not being sales of the
court as are judicial sales strictly such, they are within the
statute. But the judicial sale, being a sale in court, the buyer
becomes a party to the case and is in court, and the court will
not allow its own proceedings to be repudiated under the
statute.
V. Effect of Keveksal of Judg:ment.
§ Go. Sales made under process issued, or irregular or
erroneous judgments, are not affected by the subsequent re-
versal of such judgments for mere error or irregularity. ^ But
the contrary is the settled doctrine, where the reversal is for
want of jurisdiction to render judgment. Sales in the latter
^ Killgore v. Pedan, 1 Strobt. 18.
2 4 Kent, Com. 434; Remington «. Linthicum, 14 Pet. 84; Hart «. Rec-
tor, 13 Mo. 497; Chapman v. Ilarwood, 8 Blackf. 82; Iladden v. Johnson,
7 Ind. 394; Barney v. Patterson, G liar. & J. 183.
2 Williams v. Cummins, 4 J. J. Marsh, G37; Barney «. Patterson, G liar
&J. 182; Reardon v. Searcey, 2 Bibb. 202; Coleman «. Trabine, 2 Bibb
518; Sneed v. Reardon, 1 A. K. Marsh, 217; Estes «. Booth, 20 iVrk. 583
Bank of U. S. v. Bank of Washington, G Pet. 8 ; Ponder v. Moselej^ 2 Fla
211; McLogan v. Brown, 11 III. 519; Herrick v. Graves, 10 Wis. 157; Stin.
Bon V. Ross, 51 Maine, 55G ; Cox e. Nelson, 1 Mon. 94,
THE NATCIiE OF EXECUTIO>f 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, 0 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, 0 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, 0
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 '<?.
Gregoire, 41 Mo. 407.
' Fithiau v. Mouks, 43 Mo. 502.
sFithian v. Monks, 43 Mo. 502, 519, 520; Clapwortb v. Dressier, 2 Bcss-
Icy, Ch. (N.J.) G2.
^Fithian v. Monks, 43 Mo. 502; Blycr -y. Mulkolland, 2 Sandf. Cli.47S;
King V. Whitcly, 10 Paige, 405 ; Belmont v. Cowan, 22 N. Y. 438 ; Burr v.
Beers, 24 N. Y. 178; Curtis v. Tyler, 9 Paige, 432; Tail v. Foster, 4
Comst. 312.
JUDICIAL salf:s to enforce liens. 87
decree a sale of part, or of the of whole the mortgaged
premises, at its discretion, as may seem most conducive to
equity and the rights and interests of the parties, especially if
the property cannot be advantageously di-s-ided.^ Or it may
make a decree as for the whole debt, with an order to sell for
the amount then due and retain the cause upon the docket
with leave to take additional orders of sale of a part of the
premises, from time to time, to satisfy other installments or
interest, as the same becomes due.^ If sale be made of the
whole of the property, the court will see that the proceeds of
the sale are so aj)plied upon the several liabilities as will j)ro-
tect the rights and equities of the parties in interest.^
§ 210. In case of conflicting claimants to the surplus pro-
ceeds, or to any part thereof, the court will settle the rights of
all such claimants after the surplus fund is brought into court,
so as to protect the rights of all; and if not known to the
court, then they should make known their rights before dis-
posal of the proceeds and apply to have them settled and
respecte
IV. Yexdok's Lien.
§ 211. The vendor's lien arises by implication of law. It
attaches to the land sold for the unpaid purchase money, as
against the vendee and all persons holding under him, with
notice that purchase money remains unpaid. It is good as
ajxainst the heirs or devisees of the vendee, or others, holding-
by voluntary conveyance, whether they have notice or not; for
having paid no consideration, their equity is inferior to that
of the original vendor. In fact, as against liim, thcT have no
equity at all.^
' Brinkerlioff c. Thalhimcr, 2 Johns. Cli. 4SG ; Ellis v. Crai;?, 7 Johns. Ch. 7.
'Ellis V. Craig, 7 Johns. Ch. 7, 14; Briukcrhofl.' v. Thalhimcr, 2 Johns.
Ch, 489.
= Brown v. Stewart, 1 Md. Ch. 87; Astor v. Miller, 2 Paige, 68.
" Snyder v. Stafford, 11 Paige, 71.
* 2 Story, Eq. Jur. Sec. 1217; 4 Kent, Com. Sec. 51; Garson v. Green, 1
Johns. Ch. :J08; Bailey ^>. 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, 0 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, 0 .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,
0 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, 0 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<j^ in Illinois. It
is there holclen that neither judgment nor levy will operate as
a lien upon the homestead. That temporary abandonment of
the same, with intent to reoccupy it as homestead, though
rented out in the interim, will not subject it to lien, of judg-
ment, levy, or to sale. Tliat a grantee of the owner hold.s
against a prior judgment which would have been a lien on the
land but for the homestead law; and that if sold on execution,
the sale, 07i application, will be set aside.- But that whether
'In this case the court hold the following principles and language:
"It is claimed that the judgment lien remains simply dormant during the
time that the land is occupied as a homestead, and that as soon as it is
transferred and ceases to be occupied as a homestead, the lien attaches and
becomes effective. Now suppose the husband, in whom the title is vested,
dies. The title to the property is immediately, by law, transferred from
him to Ills widow and children, and he ceases to occupy the property as a
homestead, will the judgment lien then attach and take the homestead
away from the widow and children ? And suppose the whole family die,
except those children born after the judgment was rendered, can those
children hold the property as a homestead? If they can, then where is
the certainty of a judgment lien ever attaching to a homestead and becom-
ing eflective? And as long as the lien is not effective it is practically no
lien at all. In the case at bar, several days before the land was abandoned
as a homestead, and, therefore, several days before the judgment lien
could have any practical existence the land was convej-ed to Morris. Then
when did this lien attach and become effective? Upon the whole we
decide the questions in this case as follows: 1. A mortgage of the liome-
stead, executed by the husband alone, is void. 3. A judgment rendered
against the husband alone is not a lien on the homestead. 3. Neither is
such a mortgage, nor such a judgment any incumbrance on land owned
by the husband and occupied by himself and family as a homestead. 4.
Such land may be sold and conveyed by the husband and wife jointl}% and
the purchaser will take the title free and clear from all incumbrances,
notwithstanding said mortgage and judgment. 5, After said sale and con-
veyance, and after the land has been abandoned as a homestead, if an
execution issue on said judgment, and the land be sold under said execu-
tion, the sale is void. G. After said sale and conveyance, and abandon-
ment, if a decree of foreclosure be entered on said mortgage against the
liusband, in a suit in which the wife is not a party, the decree is void so
far as it affects and is no evidence of anything as against her." Morris t.
Ward, 5 Kan. 347, 248, 249.
-Green v. Marks, 25 111. 231; Stevenson -y. Marony, 39 111.534; Fish-
back V. Lane, 30 111. 437; Bliss v. Clark, 39 111. 590; Wiggins v. Chance, 54
111. 175; Cippcrly v. Hiiodes, 53 111. 340. In Wiggins v. Chance, 54 111. 175,
204 JUDICIAL AND EXECUTION S.II.K.
set aside or not, sncli sale is absolutely void, and not even a
permanent abandonment of sucb homestead subsequent to
snob void sale can render the sale valid Avbicb was invalid
before. ^
§ 55S. On an abandonment of the liomestead, there being
several judgments against the owner, the first lev^y made thereon
•^vill take priority. There being no lien of either judgment
on the premises while thoj continue to be a homestead, a
release of the homestead privilege in fiivor of the plaintiff in
execution of a junior judgment and a levy of his execution
tlie opinion of the court is given as follows: "Tlic evidence sliows tliat
this land was a part of appellee's liomestead wlien the levy and sale were
made, and the whole property was worth less than $1,000, and there is no
pretence that the homestead right was waived or released in the mode
prescribed hy tlie law. In the case of Green v. Marks, 25 111. 221, it was
held that the law exempted the homestead of the debtor from levy and
sale on execution, and they created no lien on the homestead W'hile the
debtor was in a position to claim the benefits of the laud. In the case of
Stevenson v. Marony, 29 III. 534, it was held that when the homestead is
sold and the debtor is in a j^osition to claim the benefit of the act, he may
have the levy and sale set aside. And in the case of Fishback v. Lane, C6
111. 4-37, it was held that the grantee of the debtor held the land as against
a prior judgment, which would have been a lien had it not been for the
homestead law, and that case was based upon the prior case of Bliss t.
Clark, but not reported until the 39 111. 590, and upon Green v. Marks,
supra. It is manifest, from those cases, that there was no lien created on
this homestead by issuing the execution, the levj^, or the sale, and that
the sale was void and passed no title to Garrison. He or appellee could
liave applied to the court and had the levy and sale set aside, as nothing
was acquired therebj^ It is urged that appellee, subsequently to the sale.
:!,bandoned the premises by removing from them for some months and by
leasing the place. He swears he only left to earn money to pay his debts,
intending to return and continue it as his home, which he did, and nothing
is found in the record to rebut this evidence. But even admitting that he
did not intend to return, how is the case changed? If the Icvj^ created
no lien, and the sale transferred no title, how could appellee's subsequent
abandonment render this void sale valid? How could it impart vigor to
the sale and conveyance by the sherifl, which was unauthorized and con-
ferred no title? We are at a loss to perceive liov/ appellee's position
could be thus changed. Failing to perceive that appellant had shown
any defense, we must hold the court below acted correctly in rendering
the judgment, and it must be affirmed. "j
" Wiggins V. Chance, 54 111. 175, and cases there cited. ,
EXKCUTION SALES OF R1L\L rKOriniTV. 205
tlien in. the slicriff 's liands will take precedence over tlie senior
judgment and the levy of an execution subsequently issued
thereon and levied on the same land.^
VI. In AYhat Order to be Sold.
§ 550. When a part of the lands subject to a judgment lien
are sold by the judgment debtor after the lien has attached, yet
if a sufficiency thereof still remains to realize the judgment,
the creditor must in ccpiity make his levy and sale of the part
so remaining; and if the part so remaining unsold be not
sufficient to discharge the whole amount, yet the creditor must
exhaust the same before proceeding against tlic part so sold by
the debtor; and so likewise he must exhaust any other jDrop-
crty of the debtor, j)rovided it does not interfere with inter-
vening equities or rights of other creditors."
§ 560. By some authorities, if lands subject to judgment lien
be sold by the judgment debtor to several different purchasers, in
parcels, and at different dates, after the lien of the judgment
has attached, so as to leave no remaining unsold, part thereof
sufficient to satisfy the judgment then in equity, after exhaust-
ing what remains, the judgment creditor may be compelled to
resort to those parcels last disposed of, in their several orders
of conveyance, on which to levy' his debt. That is to say, the
parcel last sold is first to be exhausted; then the next; and so
on in order until the debt is satisfied, or the parcels be all
exhausted. So in like manner as to mortgage liens. ^ Tliey
' Bliss V. Clark, 39 111. 590,
- Clowes V. Dickenson, 5 Johns. Ch. 235 ; and same case, 9 Covr. 405 ;
Hurd V. Eaton, 28 111. 122; Bates v. Ruddick, 3 Iowa, 423; Massie v. Wil-
son, 16 Iowa, 891 ; Barney v. Mj-ers, 28 Iowa, 427.
^ Clowes V. Dickenson, 5 Johns. Ch. 235; Stuyvesant r. Hall, 2 Barh. Ch.
151; Wisconsin v. Titus, 17 Wis. 241; Ins. Co. v. Miller, 1 Barb. Ch. 353;
Marshall v. Moore, 30 111. 321 ; Mason v. Payne, 1 Walker, Ch. 459; Carey r.
Fulsoni, 14 Ohio, 305; Schriver v. Teller, 9 Paige, 173; Ralhbone v. Clark,
9 Paige Ch. 048; LaFarge Ins. Co. «. Bell, 23 Barb. 54; Ogden v. Gidden,
9 Wis. 40; Aiken v. Bruen, 21 Ind. 137; Gill v. Lyon, 1 Johns. Ch. 440.
See also Maine, S. C. and others. In Clowes v. Dickenson, 5 Johns. Ch.
235, by the Chancellor: " If there be a judgment against a person owning
at the time three acres of land, and he sells one acre to A., the two remain-
ing acres arc first chargeable, in equity, with the paj-mcnt of the judg-
20G JUDICLiL AXD EXECUTION S^U^ES.
are to bo sold in tlic iiivcrsc order of tliclr sale by the execu-
tion debtor.
§ 561. By others it is held, however, that "whilst the rule is
recognized that on sale of a part only of the lands subject to
the lien, by the judgment debtor, the execution creditor in
enforcing his judgment lien is in equity bound to exhaust the
remaining portion still belonging to his debtor before proceed-
ing against the part that has been sold; yet that if the wliole
be sold in different parcels and at different dates, instead of
the creditor having to sell the parcels in the inverse order of
their sale by the debtor, he may coerce an equal jp'o rata con-
tribution out of each, in proportion to the value thereof
respectively.^ The former we conceive to be the better ruling.
Yet each must be regarded as law within the jurisdiction of
the tribunals making these diverse ruling-s.
§ 5G2. If there be senior and junior judgment liens in favor
of difierent creditors against the same premises of a judgment
debtor, and the junior judgment creditor execute and sell a
portion of the lands so subject to the judgment liens, then a
Ijona fide piirchaser under the execution sale of the junior
creditor, will, in equity, have a right to turn the senior judg-
ment creditor over to the remaining part of the lands of the
Tuent debt, as vrc have already seen, whether the land be in the hands of
the debtor himself or his heirs. If he sells another acre to B., the remain-
ing acre is then cliargeable, in the first instance, with the debt as against
B. as well as against A., because when B. purchased he took his land
chargeable with the debt in the hands of the debtor in preference to the
land already sold to A. In this respect we may say of him, as is said of
the heir, he sits in the seat of his grantor, and must take the land with all
its equitable burdens; it cannot be in the power of the debtor, by the act
of assigning or selling his remaining land, to throw the burden of the
judgment, or a ratable part of it back upon A. * * * * The case is
not analogous to a rent charge, whicli grows out of the land itself, and
where every purchaser of distinct parcels of a tract of land charged with
tlie rent takes it with such a proportionate part of the charge." But in
cases of mortgages and judgment liens "the charge on the land (says the
learned Chancellor) is only by way of security."
' Bates «. Ruddick, 3 Iowa, 423 ; Massie v. Wilson, 16 Iowa, 391 ; Barney
t. Myers, 28 Iowa, 473; Parkman v. Welsh, 19 Pick. 241 ; Job v. O'Brien, 2
Humph. 34; Dickenson t. Thompson, 8 B. Mon. 321; Green «. Ranagc, 18
Oliio, 428.
I'lKECUTIOX SALES OF KEAL PKOrEKTV. 207
debtor, for satisfaction of his judgment, citlier in tlic wliole, or
as far as the same will go, before such senior judgment creditor
can come upon the part so sold under the junior judgment. ^
§ 5G3, In United States v. Duncan^" the court, Dkuioiond,
Justice, say: "The doctrine that where a man owns different
parcels of land and transfers some of them, himself also retain-
ing some, all the parcels being subject before the transfer to a
general incumbrance made by him, the part which he still
retains shall be applied to the payment or dischai-ge of that
general incumbrance, rather than that which he has trans-
ferred, is founded on the plainest principles of equity. It
would be manifestly unjust that those persons to whom he had
made transfers should be compelled to pay oif the incum-
brance when he held land which would satisfy it."
' Wise T). Sheplierd, 13 111. 41 ; Hurd -y. Eaton, 28 111. 122 ; Marshall 'c.
Moore, 36 111. 321. The reason of the rule for selling by inverse order is,
that when a part only is sold by the debtor, then, in equity, the unsold
remainder as between him and his grantee becomes primarily liable for
the debt, and if subsequently sold, the purchaser takes it liable to this
charge, for if the prior conveyance be of record so as to confer notice
thereof, then the second purchaser takes no better right than his vendor
had. Mason «. Payne, Walker, Ch. 459.
=■ 4 McLean, G24."
CHAPTEE XVI.
THE WRIT— THE LEVY— AND NOTICE OF SALE.
I. The "Wkit op Execution.
II. The Levy.
III. The Notice of Sale, akd Retukx.
I. The Wfjt of ExEcu'nox.
§ 504. If a judgment be valid, an execution issued tliereon
cannot be impeached collaterally. It is good until superseded
or set aside. 1 But if the judgment be void, an execution
thei-eon is void also,- and may be so treated however brought
in question.
§ 5G5. An execution issued on a dormant judgment is
fraudulent as against a subsequent hona fide purchaser, who
buys while the judgment is dormant. -^ A writ of venditioni
exponas^ directing a sheriff to sell lands specifically described
as condemned by judgment in attachment proceedings, is not
invalidated by a division of the county after the teste of the
writ and before the day of sale, although the lands to be sold
bo situated in the new county formed by such division; but
the sheriff may go on and sell, and the sale will, in that respect,
be valid. ^
§ 506. An execution and sale thereon issued against two
defendants, after the death of one of them, are void and no
title passes by the sale. The judgment should be revived as
to the deceased defendant. The plaintiff cannot proceed other-
wise without the aid of a statute. Execution cannot ofoao'ainst
the survivor alone, nor can it go against the survivor and the
' 3 Btic. Abt. Execution, A.; Stewart v. Stoker, 13 Sergt. & R. 199; Dur-
ham V. Ileaton, 23 111. 2G4.
« 3 Bac. Abt. Execution, A.; Abbe n. Ward, 8 Mass. 79.
' Ball t\ Shell, 21 Wend. 223; Kellogg v. Griffin, 17 Johns. 274.
" Tyrcll V. Roundtrcc, 7 Pet. 404.
(208)
KXKCUTIOX SALE.^ OF KEAL rilOPERTi'. 209
(lead defendant jointly. The j^jroj^cr course is to revive tlic
judgment.^
§ 5G7. l]ut in the state of Mississippi, (under the code,) it
is licld that where judgment is against two or more defendants,
and one dies, execution may go against the survivor or snrvi-
vors; and that the writ will be good against tlie survivor or
survivors, altliougli it omit to mention the death of the co-
defendant who is dead. 2
§ 568. In Tennessee, if plaintiff die before e.TCCution issues,
the judgment must be revived, as is the general rule, hy scire
facias. If, however, execution be issued, or bears teste, prior
to his death, the writ may be levied and enforced by sale, with
the same effect as if the plaintiff were still living. -"^
§ 569. It is held in Illinois that although it is the more
proper practice where a judgment creditor dies before execu-
tion issues, to " recite " in the execution " the fact of the
recovery of the judgment, the death of the defendant," and to
also state that notice of the judgment has been given to the
administrator of the deceased; and thereupon command the
sheriff to levy the lands of the decedent which he owned at the
time of his death, yet an execution issued against the defend-
ant in the ordinary way will be substantially good.-^
§ 570. The execution must conform substantially to the
judgment. A want thereof will avoid the sale.^
§ 571. Execution against a party for costs created by him-
self, there being no judgment against him, is void, and so is
any sale made by virtue thereof.*'
§ 572. If there be not substantial correspondence between
the execution and the judgment, a sale made on such execu-
tion may be impeached in a collateral proceeding.'' But a
' Erwiu V. Dundas, 4 IIow. 50.
'- Wade V. Watt, 41 Miss. 248.
= Gregory v. Thadwell, 3 Cold. (Tenn.) 390.
* Wright V. Walbaum, 39 111. 554, 5G3.
'Commonwealth v. Fisher, 3 J. J. Marsh. 137; Crittcndcu v. Leitcns-
dorfcr, 35 Mo. 239.
'^ Washington v. Irving, Mart. & Ycrg. 45.
' Rider v. Ale.xandcr, 1 Chip. 274; Butler v. Ilaynes, 3 N. II. 21.
14
210 JUDICIAL AXD EXECUTION SAUCS.
mere clerical variance ^vill not be cansc for sucli collateral
iinpeaclinient.i
§ 573. By statute, in Indiana, process of execution is
required to be sealed with the seal of the court, and it is there
held that an execution for a foreclosure decree not so scaled, is
invalid, and that a sale thereon by the sheriff is void and his
deed will not confer title on the purchaser at such sale.-
§ 574. Though an execution cannot issue against a party
that is dead without revival,-' yet if there be several persons
plaintiif in a judgment and one dies, it is held, in Massa-
chusetts, that it may still issue in the joint names of the
plaintiffs.-^
§ 575. ^yiiere there are several judgments against the same
debtor and none of the judgments are liens, then the first
execution which is levied takes priority. ^
II. The Le\-,-.
§ 570. The }<ivj cannot be made after the return day of the
wrif
§ 577. The levy must describe the land levied upon with
sufficient certainty to enable it to be identified without other
evidence.'' Therefore, where all the calls in a Ie\'y are properly
■answered, and yet the description is such that the land levied
on could not therefrom be identified or certainly found, the levy
is void for uncertainty. It should be such that a sheriff could
know what to put a party in possession of.^ And so a levy of
" all the nnsold land in a forty thousand acre tract."^ Likewise
' Butler V. Haynes, 3 N. H. 21.
2 Ins. Co. V. Ilalleck, C Wall. 55G.
3 Hiklrcth v. Thompson, 16 Mass. 191.
* Hamilton v. Lyman, 9 Mass. 14; Bowdoin v. Jordan, 9 Mass. IGO.
^ Lathrop v. Brown, 23 Iowa, 40.
* 3 Bac. Abt. Execution, 734; Caines v. Clarke,! Bibb. G08; Barnard r.
Stevens, 2 Ark. 429.
' Iluddlestone v. Garrett, 3 Humph. G29; Proud v. Pullum, 3 Yerg. 388;
Shields «. Bates, 5 J. J. Marsh. 13; Williamson v. Perkins, 1 Ilarr. & J.
449 ; Summers v. Moore, 2 McLean, 59.
8 Chadbournc v. Mason, 48 Maine, 389, 393; Gault v. Woodbridgc, 4
McLean, 329.
8 Iluddlestone v. Garrett, 3 Humph. C29.
KXIXUTION SALES OK KKAf. I'lIorKRTV. 211
a levy of live hundred acres to bo taken oli' tlie niost nortlierly
side of a Avidow's dower lands, without other identity of the
lands, is void.^
§ 578. Though a levy must ordinarily describe the land
with such certainty as will enable an officer to find and identify
it, yet a levy in that respect defective may bo cured and ren-
dered valid by the more perfect and sufficiently correct descrip-
tion contained in the appraisement, Avhere the proceeding is
under an ai^praisement law;- and so likewise a defective levy,
as to the description of the land, is cured b}' a correct descrip-
tion in the sheriff's deed.^
§ 579. If several judgment creditors have judgments of
equal date, and whose judgments arc in law all liens on the
real estate of the same defendant, the one that levies thereon
iirst obtains priority.-^
§ 580. i\nd though the proper course is, after levy of ix fieri
facias on lands, and return thereof without sale, to sue out a
writ of vendl. exponas against the property levied on, yet the
plaintiff will not lose the lien of his levy if instead thereof
he causes to be issued an alias fi,. fa. and sells the property
thereon.
§ 581. The latter course, though irregular, is not a waiver
of the previous levy.^ Por the alias fi.fa. by relation reaches
back to the levy of the original writ and preserves its lien so
as to bind the property and prevent priority of another loxy
made in the interim upon the same proj^erty, if the subsequent
or alias ^.y«. has issued in due time.*'
§ 582. Where, by law, the officer holding an execution is
required to first exhaust the property, real and personal, of a
principal debtor, before proceeding against that of a security
of such debtor, for stay of .execution, it is held that if by
reason of the principal's death, or incumbrance of his prop-
' Sliield V. Batps, 5 J. J. Marsh. 13; Gault t). Woodbridge, 4 I^IcLeaii, 329.
- Summers v. Moore, 2 McLean, 59.
3 Iloppino; t. Burnam, 3 G. Green, 39; Summers v. Moore, 2 McLean, 59.
•> 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, 0 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 thou<rh
the purchaser relies on the judgment execution, the levy and
the deed, yet when the purchaser at sheriff's sale shows an
authorized execution and deed, a correct levy and notice is pre-
sumed, A judgment, execution, and deed from the sheriff" are
sufficient to support the title of a purchaser, without proof of
a levy, though the return be incorrect, or there be no return.^'
The purchaser is not bound to sec that the sheriff' makes a
return. °
§ 590. If after levy and notice of sale on one writ of execu-
tion another -writ be received by the officer against the same
defendant, he can only sell, if no furt.ier notice be given, on
' 30 Iowa, 454.
2 Wheaton v. Sexton, 4 Wheat. 503 ; Brooks v. Rooncy, 11 Geo. 433 ; Sulli-
van V. Hearndon, 11 Geo. 294; Philips v. Coffee, 17 111. 154.
* Lawrence v. Speed, 2 Bibb. 401 ; Whittaker v. Sumner, 7 Pick. 551 ;
Wlieaton v. Se.xton, 4 Wheat. 503, 506 ; IMcIntire «. Durham, 7 Ired, 151 ;
Maddox v. Sullivan, 2 Rich. Eq. 4; Natchez v. Minor, 10 S. &M. 240;
Kilby V. Haggin, 3 J. J. Marsh. 208 ; Brooks v. Ilooney, 11 Geo. 423 ; Draper
V. Brysou, 17 Mo. 71; Philips v. Coffee, 17 111. 154.
■• Wheaton v. Sexton, 4 Wheat. 503; Hopping v. Burnam, 2 G. Green, 89,
44; Brooks v. Roouey, 11 Geo. 425; Webber v. Cox, 6 Mon. 110; State v.
Salycrs, 19 Ind. 432; Philips v. Coffee, 17 III. 154.
* Brooks v. Rooney, 11 Geo. 423 ; Hopping v. Burnam, 2 G. Green, 39, 44;
Evans v. Davis, 3 B. Mon. 344; Mclntire v. Durham, 7 Ired, 151; Jackson
V. Young, 5 Cow. 259; Brooks v. Roonej^, 11 Geo. 423; Philips v. Coffee, 17
III. 154.
« State V. Salycrs, 19 Ind. 432.
214 JUDICLVX, AKD EXECUTION SALES.
tlie first writ. The certificate of such sale should refer to but
the oue writ, and however the proceeds of sale may be applied,
yet the whole amount thercof must be mentioned as the con-
sideration in tlio certificate of sale, and in tlic deed when
given. ^
§ 591. The purchaser Avill not be prejudiced by omission
of the oflScer to return and file a certificate of sale, under the
statute. The requirement is only directory."
' ]Mascrafl v. VanAntwerp, 3 Cow. 034.
■•' Jackson v. Young, 5 Cow. 2GD, 270. By tlic statute, in New York, the
certificate of the sheriff's sale is required to be filed in the clerk's oQice
by the sheriff. In the case here cited it was claimed that omission to file
the certificate voided the sale; but the court held the statute to l>c 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
0 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 \<i^y\ a special pro])-
crty is vested in the officer: and he is ordinarily requested to
exercise over the property actual possession or control. In
Catlin V. Jackson, the court say that the first question " is as
to the effect of the sheriff 's seizure." '''' ''^ * ^'' That, "In
several essentials the effect of the execution must be different
from 7\.fifa. levied on personal estate only. The delivery of
'^Li^fifa. gives no new rights to the plaintiff, and vests no new
interests. The general lien is created by the judgment, and
execution is merely to give that lien effect; not by vesting a
possessory right to the land affected by it in the plaintiff, but
by designating it for conversion into money by the operation
of \X\Qjifa. and the act of the sheriff by virtue of it. It is
not so as to personal jDroperty. That is bound from the
delivery of \hQfifa. to the sheriff. When he seizes he may
remove it for safe keeping, and this not only to give effect to
the seizure, but for his own security. * '" ■^'' '" None of
these reasons apply to real estate. It is not necessary that tlie
' Draper v. Bryson, 17 Mo. 70; Brooks v. rtoono}-, 11 Geo. 423; Smith t.
Hill, 22 Barb. G50.
MVood V. Colvin, 5 Hill, (N. Y.) 228; Tullis v. Brawlcy, 3 Minn. 277;
Folsom v. Carli, 5 Minn. 333, 337.
230 JUDICIAL AND EXECUTION SALES.
sheriff should possess himself of it for safe keeping."^ Then
this case, so far from involving the necessity of a levy, show?
that a levy "^as really made on the land ; that a return was
made setting out the levy at large; and that a vemlitloni
exponas then issued, on "which the land was sold. The real
point was, not whether a levy is necessary, but whether the
levy which was made had the effect, before sale, to take away
the debtor's right of entry on the land. Tlie coui-t held that
it did not, because unlike a levy of personalty, the possession
of the lands is not by the levy changed. We have given thus
much of the opinion in tliat case to show that it does not bear
out the subsequent ruling in Wood v. Colvin as to there being
no necessity of a levy when the judgment is a lien upon the
land to be sold. ISTor does the case of Greene v. Burke,
referred to in Wood v. Colvin^ come up to the point. This case
was in replevin and there was no necessity to consider levies
on land; yet the learned judge, (Justice Cowen) refers to the
subject, and intimates an opinion that such levies are unneces-
sary inasmuch as unlike a leA''y on personal property, they
neither satisfy the Judgment to any extent nor vest an interest
in the officer in the land."
§ 643. The same principle, however, is fully asserted in
Minnesota. It is there holden in as broad terms as in Wood
V. Colvin, that in executing writs of execution issued on judg-
ments which are liens upon the lands to be sold, no levy is
necessary. 3
§ 64:4. So, where in attachment proceedings, there is a judg-
ment identifying the levy of the attachment, the date thereof,
and land attached, and ordering the land by description to be
sold on writ of venditioni exjyonas, or on special execution, then
no levy of the writ of execution, or of vemlitioni exponas is
required. Tlie attachment levy and order of sale stand in
stead of a subsequent levy of the execution, and the sale will
relate back to and carry title from the date of the levy of the
attachment. In s^f^li case the judgment itself is sufficient, and
' Colvin V. Wood, 5 Hill, 328.
» Greene v. Burke, 23 Wend. 490, 498.
• Tullis V. Brawley, 3 Minn. 277 : Folsom v. Carli, 5 Minn. 333, 337.
KXKCUTION SALES OF EEAL PKOrERTV. 231
indeed the best evidence of the attaclinicnt lew and of the
date thereof, which are therein fixed bv judicial finding. The
reason Avhj no levy is then recjuired of the writ of execution
is that the original attachment levy and the judgment seize the
land, and the only office of the writ of special execntion, or
of venditioni exponas is to bring about a sale,
§ 645. If, however, only an ordinary judgment be taken,
and only an ordinary writ of execution issue, then a levy may
be necessary, as in such case the chain of the attachment lien
is broken of record; to fix that lien in any future controversy,
(if it can be done at all) the execution purchaser must rely on
the writ of attachment and levy thereof, if possibly to be found
in the files of office under the modern practice wdiere complete
records are not usually made. If found, however, would they
cut oif the rights of an innocent intervening purchaser, with-
out knowledge, and who buys of the execution debtor between
the date of the attachment levy and the date of the judgment?
"We submit that in such case a honajide purchaser would not
be charged with notice of the attachment levy and lien thereof
after the writ had served its functions and had become dormant
in the mere files of office.
§ Q4:Q. Although no interest is vested in the officer or in
the plaintiff by the le\y of an execution on lands: that is, no
interest in the property; yet a lien attaches, if none existed
before, in behalf of the plaintiif by virtue of the levy, and a
ri^ht in consequence thereof to make his debt thereof as of
priority to and proceeding of another subsequent thereto.
§ GIT. It is urged, as we have seen, tliat because a levy on
lands, unlike one on personalty, vests no property in the officer,
that therefore no levy need be made, where there is exccvition
on a judgment which in law is a lien; but suppose the judg-
ment lien expire before sale, though after advertisement of
sale, under such circumstances, what then becomes of the
plaintiffs lien'^ What protection has he, as against an inter-
vening hona fide purchase, made without notice, or even with
notice of the intended sale? It is well settled that if a levy
on lands be made during the execution debtor's lifetime that a
L'.Jli juDicLy;. and execution s.vles.
sale may be made after liis deatli.'^ But liow so if the lc\-y is
unnecessary, or if a levy lias no effect? Although a levy on
the realty, unlike one on personal property, vests not a pro])-
erty in the ollicer, yet we conceive that it affects sucli a lien
upon and so seizes the title as not only to place the same
beyond the power of the debtor to sell as against the judgment
lien, but as also to give priority over subsequent levies.^
§ 6-iS. This very point v/as decided in Banh of Missouri
V. Wells^" where the judgment lien expired after levy and
before sale of the land by the sheriff. The court held that the
previous levy preserved the lien of the judgment until the
writ was fully executed.
§ 649. When the sale, as in Wood v. Colvin, is made upon
a writ of venditioni exponas, no levy of that WTit is necessary,
for, if it follows a fi. fa., the levy has already been made by
the latter; and if it is ordered as an original, then it describes
the land that is therein ordered to be sold. Such writ, how-
ever, usually follows a fi. fa. on which a levy has been made,
but no sale; the vendi then goes to complete the work, by
order of the court. It directs the land previously levied on to
be sold. The sale, wdien made, relates ba(;k to date of the levy
on the fi'. fa., and if the proper relation thereto has been kept
up on the record and in the latter writ, carries title from that
date; and the order for issuing the writ of venditioni exponas
shuts out all collateral inquiry as to the regularity of the prior
writ oi fi. fa. and of the \qyy and return thereof. ^
§ G50. In Smith v. IlilU it is expressly ruled that a levy
' Whc.iton V. JSextou, 4 Wheat. SO!).
* 13 Mo. 3G1. In this case the Supreme Court of Missouri dispose of the
question in the following terms: " The lien of the judgment under which
the defendant deduces his title was prior to that of the plaintiff, and long
hefore the expiration of the prior lien an execution was sued out and
delivered to the sheriff, the effect of which was to continue that lien until
the execution of the writ, although the time had elapsed during which
the lien of a judgment continued." * * * * "Then the prior levy
of the executioner under the junior judgment, although the lien of that
had not expired, did not divest the priority of the older judgment."
' Weir V. Clayton, 19 Ala. 132.
' 23 Barb. CoG, GGO.
EXECUTION SALES OF KEAL I'KOl'EiriT. 233
is presumed in law, wlicn an execution sale, that is in other
respects suilicnent in law, is shown. In that respect the court
hold the following language: " It is said there is no ])roof' of
levy. The presumption is that t'ho sheriff did his duty, and
levied before the sale."
§ 651. In Mercer v. Doe^ the court say: "The levy, sale,
and return of the -writ were sufHciently shown by the sheriff's
deed; but whether the land was sold with or without appraise-
ment, does not appear in the record. '•'■■ '-^ * ■^- It is true
when the law requires a sheriff to appraise property taken on
execution a sale without appraisement would be a nullity; but
in the absence of any proof on the subject, he will be presumed
in that respect to have done his duty."
§ 052. In Carpenter v. Doe^ the action was ejectment
involvino; title to land under a sheriff's sale. The court held
that the execution purchaser was only bound to show a judg-
ment, execution, sale, and deed. In that case the court lay
down the rule as follows: "It is a general rule that a pur-
chaser at sheriff's sale is bound only to show the judgment of
a competent court, an execution v.^arranted by the judgment,
and a sale and deed under it."
§ G53. As to the showing of a sale, we submit that the
decxl itself is suflicient evidence thereof in the first place.
§ 054:. Allowing the doctrine that ordinarily it is necessary
only to show a judgment execution and sheriff's deed pur-
porting to have been made in pursuance of a sale thereon to
be the better ruling, still it does not follow that the ruling in
the leading case of Wheaton v. Sexton, 4 Wheat. 503, was
incorrect, for in that case the sale was made after the death of
the defendant in execution, and it became therefore necessary
to show a levy to bring the case within the power of the
ofiicer to sell, to do which he had no power as against a dead
defendant, unless the levy was made before the death occurred.
In cases then of that class a levy becomes importaiit as fixing
the power of the officer to proceed. The want of it then is
not a mere irregularity, but a c[uestion of power. The one is
» Mercer v. Doe, G Ind. 80, 81 ; Carpenter v. Doc, 3 Ind. 4G5.
* 2 Ind. 405, 467.
234: JUDICLiL AND EXECUTION SALES.
cured bj presumption of law when judgment, execution, and
sale is made; the other, like jurisdiction in an inferior court,
is not inferred. The letter of the case of Wheaton v. Sexton
seems to have been subsequently followed in some cases
wherein the sales were against living defendants, and which
were not in fact within the spirit or the reason of the case thus
recognized as a precedent without any controversy raising the
question of distinction.
§ 655. Upon the whole we conceive it to be the duty of the
officer, in all cases, in executing a writ oi fieri facias^ to levy,
whether the property be real or personal; and that if the sale
be subsecpient to the death of the execution defendant, a levy
must not only be shown, but must have been made prior to
the defendant's death, or else the sale cannot, without more,
be sustained, whatever the effect might be, of lapse of time
coupled with possession. That in all other cases arising under
such writ oi fieri facias, whilst it is in like manner the duty
of the officer to levy, the omission so to do, or to advertise the
sale, or to make a return, will not affect a hona fide purchaser,
if the sale be in all other resjDCcts sufficient and fair, even if it
be made to appear thereafter in a collateral proceeding that
such irregularities occurred; and that in case it is not made to
aj^pear either the one way or the other, then by presumption of
law the officer did his duty, and the court will hold that the
requirements of the law in these j^articulars were complied
witli.
§ G5G. An execution issued after a year and a day from the
rendition of the judgment, "the time limited" witliin which
an execution must issue, and at the end of which the judgment
becomes dormant, is holden to be valid, though there be no
revival of the judgment. Such j)rocess is only voidable and
not void. It is a justification until set aside, and a sale thereon
in other respects j^rojier will be sustained as against the execu-
tion debtor. He cannot stand by and suffer the sale to be consum-
mated and afterwards be allowed to question its validity in a
collateral proceeding.''
' Summers t. Moore, 3 McLean, 59; Armstrong ^^ Jackson, 1 Blackf.
CIO; Childs v. McClicsney, 20 Iowa, 431; Willard v. Whipple, 40 Vt. 219.
EXKCUTIOX SALES OF KKAL I'KOPERTV. 235
§ 657. In the ease of Cliilds v. IfcChesney, in reference to
irregular execution sales, the court, after noticing the fact that
the Iowa state raises a presumption in favor of regularity
where the contrary does not appear, go on and lay down the
rule of law on general principles, that a mere irregularity in
the proceedings, writ or sale, will not render the sale void, and
such is the prevailing doctrine of the hooks. In WJieaton v.
Sexton, Supreme Court United States, the court lay down the
rule that " the purchaser depends on the judgment, the levy,
and the deed." "All other questions are between the parties
to the judgment and the marshall."^
§ 658. But if a sale be made in a manner inhibited by the
statute, and such irregularity is made to appear upon the lace
of the i3roceedings, under and by virtue of which the purchase
at sheriff's sale makes title the presumption of regularity and
that the officer has conformed to his duty is, by such showing
to the contrary overcome and will not avail the execution pur-
chaser. 2 The rule of caveat em/ptor will then apply.
§ 659, But a clerical error merely will not vitiate a sheriff's
deed; 3 especially when offered in an equitable proceeding.
§ 660. Statutes requiring levies to be made of personal
property, before proceeding to levying real estate, are ordinarly
directory only, and anon comj^liance therewith will not render
a sale of lands invalid.^
§ 661. And the omission of the sheriff to inquire, in selling,
if any one will pay the debt and costs for a less quantity of
land than that covered by the best bid, though an irregularity
will not vitiate the sale.^ If the sale be on two executions,
one of which is void and the other ^'alid, the title of the pur-
' Childs V. McChesucy, 20 Iowa, 431. Wheaton v. Sexton, 4 Wheat. 503 ;
Philips V. Dana, 3 Scam. 558; Wood ■». Colvin, 5 Hill, 231; Jackson v.
Rosevelt, 13 Johns. 97; Cavender v. Smith, 1 Iowa, 300; Cox v. Joiner, 4
Bibb, 94; Averill v. Wilson, 4 Barb. ISO.
^Tiel «. Brayer, 30 Ind. 332 ; and sec Stewart «. Houston, 25 Ark. 311,
as bearing on the same principle.
» Stow v. Steel, 45 111. 828.
^ Cavender v. Smith, 1 Iowa, 30G ; Ilaydon v. Dunlap, 3 Bibb, 21G ; Bceler
V. Bullett, 3 Marsh. 281.
«■ Floyd V. ISIcKinncy, 10 B. Mon. 89.
23G JUDICI^lL AND EXJ^CFnON SALES.
cliascr will Lc sustained. ^ The contrary is liolden in Indiana.^
§ 602. A sale, on an alias writ, when the process should be
a venditioni exponas is not void.-'"' Nor will a variance in the
amount sold for and the amount named in the deed avoid the
title.'^
§ 663. Where a judgment bore date on the 12th day of the
month and the execution described the judgment as rendered
on the 13tli day of the month, and a sale was made under the
execution by the sheriff, it was holden that such discrepancy
did not avoid, the sale.^
§ Q'o4c. Upon the principle that in law the whole term of the
court is as one day, the exact date of the judgment may well
be immaterial if the term is sufficiently apparent,
§ 065. Kor will the variance of a small sum between the
real amount of the judgment and the amount stated in the
execution render a sale void if the execution otherwise identifies
the judgment. °
§ Q(jQ. The irregularity of selling lauds situate in a county
other than the one from which the execution emanates, without
first filing a transcript of the judgment in the county where
the lands are, as required by statute, will not avoid the execu-
tion sale as between the execution debtor and purcliaser who
buys with notice. The object of the statute is to imjjart notice
of the sale and to afford the judgment creditor the means of
making his judgment a lien. But the statute is merely direc-
tory, and therefore a levy before the debtor has sold away the
land mves the lien and a sale thereon o-ivcs title as airainst all
persons buying with actual notice of the sales. Where actual
notice exists, the implied notice from the record contemplated
by the statute becomes unnecessary. Its necessity is sujier-
ceded.""
> 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<asoning is untrue
' McClurc V. Englcliart, 17 111. 47.
- Raukin v. Scott, 12 AYlicat. 177; Kirk r. Yonberg, 3-i 111. 440; Rogers
t. Dickey, 1 Gilm. 63G; Marshall v. McLean, 3 G. Greene, 303.
=• Williams v. Ilollinsworth, 1 Strob. Eq. 103; Freeman v. Ilill, 1 Dcv. &
Batt. Eq. 389; Polk v. Gallant, ib. 895; Rutherford «?. Greed, 3 Ired. E.
1232; Frccnian c. Mcbaue, 2 Jones Eq. 44.
278 JLDICLVL AXD EXECUTION S.VI,ES.
in part, for lie must at all events pay money in discharge of
costs and charges of sale.
§ 816. Under the statute of Iowa, declaring that '• no instrn-
ment aifecting real estate is of any validity against subsequent
purchasers for a valuable consideration M'ithout notice, unless
recorded in the office of the recorder of deeds of the county in
which the land lies,"^ it is holden that a honafidd purchaser at
sheriff's sale of lands takes the property discharged in law, of
all equities arising under a unrecorded deed of which he had no
notice; and that a judgment creditor who buys in good faith
at such a sale, is a honafide purchaser in that respect, and so
is made other of the states. ^ Kot so, however, if the purchase
in some with notice of the deed.^
§ 817. Though there is a conflict in the rulings on this
subject, more especially in reference to registry acts in some
of the states, yet the weight of authority is that third persons,
honafide purchasers at sheriff's, sale, who have paid the j)ur-
cliase money without notice of an unrecorded deed, or equity,
will be protected against the same.^ Latterly, decisions have
gone far towards extending the same rule to purchases by
execution plaintiffs. In Wall^^e}' r. Elston, the supreme court
of Iowa adjudge the same protection at law to such purchaser
as to third persons, and say, " the only question presented by
the foregoing facts is, whether a judgment creditor purchasing
at sheriff's sale takes, as in this case the lot of ground dis-
' Revision of 18G0, sec 2220.
-Walker v. Elston, 21 Iowa, 529; Butterfiekl t\ Walsli, 21 Iowa, 97;
Vance v. Bergen, Ifi Iowa, 555; Evans v. ]McGlosson, 18 Iowa, 150; Bonn-
ton v. Winslow, 37 Penn. St. 315.
^ Hoy v. Allen, 27 Iowa, 208.
■* Leading Cas. in Eq. Pt. 1, 75; Jackson v. CliamberJain, 8 Wend. 620,
Parker v. Pierce, 10 Iowa, 243 ; Waldo v. Kussell, 5 Mo. 387 ; Denn t\ Rick
man, 1 Green, 43; Scribner v. Lockwood, 9 Ohio, 184; Ins. Co. v. Ledyard,
8Ala. 8G0; Orth f. .Jennings, 8 Blackf. 420; Mann's. Appeal, 1 Barr. 24;
Ileister «. Foster, 2 Bin. 40; Woods r. Chapin, 3 Kern. 509; "Williams r.
Janson, 5 Harris, 407 ; Walker v. Elston, 21 Iowa, 529 ; Butterfield r. Welch,
21 Iowa, 97; Vanice v. Bcrger, 10 Iowa, 555; Evan v. Glasson, 18 Iowa.
150 ; Norton v. Williams, 9 Iowa, 529 ; JNIassey ■«. Westcott, 40 111. 100 ; Fos-
dick v. Barr, 3 Oliio St. 471 ; Stewart v. Freeman, 22 Penn. St. 120; Goup v.
Garticr, 35 Penn. St. 130; 3IcFadden v. Worthington, 45 111.308.
THE DKKD. 279
cLarged of all equities arising under an unrecorded deed of
whicli he had no notice actual or constructive at tlie time of the
purchase. AVe have several times held that he did, and would
be protected as an ordinary honafde purchaser under section
2220 of the revision."!
§ 818. But the mere lien" of a judgment will not in itself,
before sale, override a prior unrecorded deed of conveyance or
mortgage, so as to confer title on an execution purchaser, who
afterwards buys under it with notice thereof, actual or con-
structive.^ If the deed or mortMo-e be recorded before sale
the purchaser will be legally affected with notice.*
§ 810. Where a judgment is rendered against a mortgage
debtor subsequent to the date of the mortgage deed, and such
mortgage deed is regularly executed and recorded prior to
execution sale upon the judgment, a purchaser at the execution
sale takes notliing but the debtor's mere right of redemption
from the mortgage; and such, too, is the general rule, thougli
the mortgage deed be not recorded; iwovided the purchaser at
the execution sale has notice of the mortgage.^*
^ Walker d. Elston, 21 Iowa, 531 ; Masscy v. TYestcott, 49 III. 1(!0; Evans
v. JMcGlasson, 18 Iowa, 151.
'^ For a liexi is not an interest in the property. It is merely a right to
make the money out of it; until enforced b}^ sale and deed no control
exists over the property in the owner of the judgment lien. Conrad v.
Atlantic Ins. Co. 1 Pet. 448; Miller «. Sherry, 2 Wall. 244.
^ As is said by Thompson, Justice, in Grencmcyer v. Southern Mutual
Insurance Company : " A judgment is not a general and not a specific lien.
If there be personal property of the debtor it is to be satisfied out of that.
If there be not, then it is a lien on all bis real estate without discrimina-
tion, and hence the plaintiff is not interested in the property as propertj',
but only in his lien. The judgment creditor has neither ^'i/s in re nor ad
■rem, as regards the defendant's property. He has a lien, and the law gives
a right to satisfaction out of the propertj-, and that is all." (G2 Peun. St.
:)43.) See, also, Conrad v. Atlantic Ins. Co. 1 Pet. 384; Kemper v. Bavej-, 5
McLean, 507; Schaffer f. Cadwallader, 12 Casey, 126; Thelusson v. Smith,
2 Wheat. 390.
* Chipman v. Coats, 20 Iowa; Valintine «. Havener, 20 Mo. 133, 288;
Norton «. Williams, 9 Iowa, 528; Parker v. Pierse, 16 Iowa, 237; Bell v.
Evans, 10 Iowa, 353; Welton ». Tizzard, 15 Iowa, 495; Evans v. McGlas
son, 18 Iowa, 151; Hoy v. Allen, 27 Iowa, 208; Potter v. McDowell, 40
:Mo. 93; Thomas v. Kennedy, 24 Iowa, 397.
" Hubble V. Vaughn, 42 ]\io. 138.
2S0 JUDiaAL AND EXECUTION SALES.
§ S20. ]jut if tlicrc be nothing of record to show a prior
mortgage or other conveyance by the judgment debtor older
than the judgment at the time of execution sale and j)ayment
of the purchase money, and the purchaser is without notice of
such 2^1'ior mortgage or deed, then the purchase under sheriff
sale prevails against such prior conveyance. ^
§ 521. In Oliio, however, nnder the statute of Feb. 22, 1831.
which gives force, as betAveen the mortgagee and third persons,
to mortgages only from the time they are recorded, it is holdcu
that a purchaser under execution sales, theugh buying with
knowledge of an older unrecorded mortgage, and though he
be the j^laintiff in execution, takes a title to the land that
overrides the lien of an unrecorded mortgage or assignment
to secure a lona Jide debt; and this, too, where the judgment
was iunior in date to the asslo-nment or morts^as^e deed.
§ 822. The Ohio courts hold " that such unrecorded instru-
ments arc good and effectual between the parties, bnt entirely
nugatory as to third parties, both at law and in equity, until
they are recorded." The same ruling exists in Ohio as between
two mortgages where one is recorded and the other not. Tlic
first of record has priority."
' 3I;isscy V. "Wcstcott, 40 Illinois, IGO. In this case, involving a purchase
by judgment creditor, the supreme court of Illinois say: "Under our
statutes a purchaser and a judgment creditor having a lien, stand upon
the same equity, and this has been so held ever since the act of 1833, and
the case of Martin v. Drj'den, 1 Gilm. 21G. The same remark applies to
another point made by appellant's counsel, to "wit: That the lien of a
judgment attaches only to whatever interest in the land the judgment
debtor maj', in fact, have, and does not take precedence of a prior pur-
chaser claiming luider an unrecorded deed. This has been so held in some
of the states, but under our act of 1833, it is the nettled laic of this steite that
a judgment lien attaches to whatever interest in real estate the records
disclose in the judgment debtor, in the absence of actual notice fron^.
other sources." Massey «. Westcott, 40 111. 103.
- Fosdick V. Earr, 3 Ohio St. 471, 57."); Holloday r. Tlie Franklin Bank,
IG Ohio, 533; White v. Denman, IG Ohio, 59; Jackson v. Luce, 14 Ohio,
514; Mayham v. Coombs, 14 Ohio, 428; Stancel v. Roberts, 13 Ohio, 148.
Before the recording act of 1831, the recording of mortgages was placed
on the same footing as absolute deeds; heuce the rulings were diflcrent.
Fosdick r. Barr, above cited; White r. Denman, 1 Ohio St. 110; Stancel
V Roberts, 13 Ohio, 148.
TlIK DEED, 2S1
§ 823. In Ohio tlic riglits of an execution pnrcliaser at
sheriff's sale, Lear relation by statute as against a dormant or
unrecorded equity to the date of the sheriff's sale, and the
deed, when executed, confers title as against all sucli equities
from the date of the sale and not from its own date; therefore,
where such equity is unknown to the purchaser at the time of
the execution sale, his deed from the sheriff, though of subse-
quent date, will override such equity, although notice thereof
be imparted to the purchaser after the day of sale and before
tlic delivery of the deed to him by the sheriff The court say:
" The deed executed at a subsequent date has relation back to
that date, and is as effectual as if then made.''^
§ 824. An execution purchaser wdio has not paid tlie pur-
chase money is not a lona fide purchaser.-
§ 825. Ijut when the purchase money is paid, the sale will
confer a prior equity over an assignment of the land to a
creditor to secure a prior debt, though the assignment be ante-
rior in date to the judgment. ^
§ 820. As between executions euianating from several lien
'udirments of even date, the writ first levied is liolden to
^.btain priori ty.^ So, as a sequence, if the judgments be not
iicns.^
§ 827. AVhen an execution purchaser buys land subject to
a mortgage debt, and afterwards sells and conveys the same to
a grantee, who takes with knowledge of the mortgage and
who retains out of the purchase money a sum sufficient to
discharge the mortgage, with a view to meet the same and
jn-otect himself against it by paying it off, he is thereby estop-
ped to deny that the execution sale was made subject to the
mortgage debt.'^
§ 828. And in the sauic state a lona fide purchaser at
1 Oviati V. Brown, 14 Ohio, 28.j.
- Swazey -j. Burke, 13 Pet. 11.
= Fosdick V. Barr, 3 Ohio St. 471; Stewart v. Freeman, 22 Pcnn. St. 120.
^ Rockhill V. llanna, 15 How. 189; Adams v. Dyer, 8 Johns. 350; ^\'atcr
man t\ Haskin.^ 11 Johns. 228; Bruce v. Yoglc, 38 Mo. 100.
'' Lathrop «. Brown, 23 Iowa, 40.
Crooks V. DouL^hiss, 50 Penn. St. 51.
2S2 JUDICIAL AXD EXECLTIOX SALi:S.
slicriif's sale, on a junior judgment, will take priority over
the lien of an older judgment marked, of record " satisfied,"
although not satisiied in point of fact. The record, as to the
subsequent execution purchaser, is verity.^
§ 829. If two mortgages be given for the purchase money
of lands in one of the same transaction, and of one date, both
being recorded on the same day and M'ithin the time required
by law, their equities are equal and their liens are cotempora-
neous; no priority is gained by either over the other. A
sheriff's sale of the whole property on either extinguislies the
other. -
§ 830. But if one of the mortgages, though expressed to be
for a part of the purchase money, be in reality the fruits of a
different transaction, then it will become secondary to the other
in point of priority, and a sheriff's sale in foreclosure of the
same will not divest or extinguish the other.
§ 831. A sheriff's deed for lands on execution sales, in
Pennsylvania, comes within the registry acts, and is over-
reached by a deed for the same lands executed by the debtor
in Ohio, according to the laws of Pennsylvania, and recorded
in the latter state within the time allowed for recording foreign
deeds, although the judgment under which the sale by the
sheriff was made was rendered before the recording: of the deed
made in Ohio, and although the sheriff's deed was recorded
within the time allowed by the laws of Pennsylvania for
recording domestic deeds.
§ 832. The deed of the debtor made in Ohio prior to the
rendition of the judgment in Pennsylvania left no interest in
the land in the debtor to which the judgment lien could
attach. 3 The estate had passed out of the judgment debtor
1 Coyne v. Souther, Gl Penn. St. 455, 458.
- Duncan v. American Life Ins. Co. 52 Penn. St. 253, 25G. In the case
above cited from 53 Penn. St. tlie court iiold this language : "And the
doctrine is unquestionably true that if purchase money be secured by two
mortgages, and both are recorded on the same day, and within sixty days
of their date, their liens are contemporaneous, and no priority of one over
tlic other can be predicated; and, of course, a sherilT's sale on either
divests the otlier."
^ llultz V. Hackley, G3 Penn. St. 142, 144. The court, in this case, say:
TUE DEED. 2S3
to Lis grantee by deed, and this deed being recorded in dnc
time was not fraudulent as to tlie execution purchaser.
YIII. Eegistkation.
§ 833. Sheriff's deeds, on execution sales, are witliin the
provisions of recording acts.^ The purchaser is bound by and
entitled to claim all the provisions thereof.^ Therefore, in
those states where priority in recording gives priority of title,
an execution purchaser who first records his deed, within the
law, gains thereby the same preference as if the deed was from
the debtor himself.^
§ 834. Such purchaser is no more chargeable by a deed
"As it (the (Iced made in Ohio) was made and delivered before the recov-
ery of the plaintiff's judgment, it vested in the grantee a valid and
absolute title to the lot, which was not affected by the judgment, for, at
the time of its recovery, the grantor had no interest in the premises to
which its lien could attach, and consequently no title passed to the plain-
tiff' under the sheriff's sale. It still remains in the grantee unless he has
lost it, as contended, by his laches in not recording his deed within the
time allowed by law, in order to render it valid and operative against the
plaintiff". As a sheriff's vendee is a purchaser for a valuable consideration
within the meaning of the recording acts, he is protected by them. If,
therefore, the defendant failed to record his deed in proper time, it must
be adjudged fraudulent and void against the subsequent deed of the sheriff
under which the plaintiff" claims, and which was registered in the protho-
notary's office before the defendant's deed was recorded. If the defend-
ant's deed had been executed and acknowledged within the state, then
under the provisions of the first section of the recording act of 18th
]SIarch, 1775, it would have been his duty to record it within six months
after its execution, and the omission would have rendered it fraudulent and
void as against the plaintiff. But as we have seen his deed was executed
and acknowledged in Ohio, and if it is governed by the second section of
the act, he had twelve months within which to record it before incurring
the penalty of having it adjudged fraudulent and void against a subse-
quent purchaser whose deed might be first recorded."
' Hoosier v. Hall, 2 Carter, 556; 3 Bouvier, 58, n.; Massey v. Thompson,
2 N. & M. 347 ; Jackson v. Terry, 13 Johns. 471 ; Lessee of Wallace v. Law-
rence, 1 Wash. C. C. 11. 503; Walker & Elston v. Green, 21 Iowa, 529,
Hultz V. Hackly, 63 Penn. St. 142, 144; Jackson ■». Post, 15 Wend. 588.
s Hoosier v. Hall, 2 Carter, 556; Potter v. McDowell, 43 Mo. 93; Massey
V. Weseott, 40 111. 160; Goup v. Gartier, 35 Penn. St. 130.
^ Ellis V. Smith, 10 Geo. 253; Jackson v. Post, 15 Wend. 588; Jackson r.
Chamberlain, 8 Wend. G20; Jackson v. Terry, 13 Johns. 471.
284: JUDICTAL AXD EXECUTION SALES.
impeii'uctl}' recorded tlian lie avouM be if tlic deed were not
recorded at all.^
§ 835, Jjy tlie laws of Iowa, § 1947 of the Revision, a pur-
cliaser at execution sale is required to record Lis deed Avitliin
twenty days after tlie expiration of the time allowed for
redemption. The failure to do so, however, will not postpone
tlie deed to the benefit of a junior purchaser who buys
Avith notice of the deed. In Harrison v. li^rarner," the
Supreme Court, Wright, Justice, say: "However much this
section might operate to protect a Ijona Jide purchaser without
notice, who might take title after the twenty days tlierein
named, it certainly cannot protect one who purchased with
actual notice of the rights of the purchaser under the execu-
tion, or one who purchases with a fraudulent intention to
defeat the execution purchaser's title." This statute was not
designed to protect fraud, nor as a penalty against a failure to
record, but to protect the innocent. A purchaser with notice
of prior right in another is not innocent in that respect,
IX. CoiXATERAL Ilsn'EACHMENT.
§ 83G. A sheriff's deed on execution sale, to a hoiuifida
purchaser, if regular in itself, cannot be impeaclied collaterally
in a collateral proceeding for mere error or irregularity in the
proceedings, judgment, execution, or return, or for want of a
return, if there be a valid judgment and execution.^ JS^or for
' Goup xi. Gartier, 35 Penn. St. 130.
" Harrison v. Kramer, 3 Iowa, 543.
^ Landes c. Brant, 10 How. 371; Landcs b. Perkins, 13 Mo. 254; Jackson
c. Bartlett, 8 Johns. 3C1; Jacksou v. Roscvelt, 13 Johns. 97; Ware t\
Bradford, 3 Ahx. G7G; Love «. Powell, 5 Ala. 58; Hubert i;. McCullum, «
Ahi. 221 ; Cockerell «. Wynn, 12 S. & M. 117; Davis ». Wornack, 8 B. Men.
383; Huluph «. Beeson, 1 Iowa, (Green,) 199; Draper b. Bryson, 17 Mo. (2
Bennett,) 261 ; Thompson ©. Philips, 1 Bald. C. C. 246; Ashby v. Abnej% i
Hill, (S. C.) 380; Dew v. Wright, 1 Pet. C. C. 64; Wood v. Colvin, 5
Hill, 231; Hines v. Scott, 11 Penn. St. 19; Maurior t\ Coon, 16 Wis. 465;
Bowen «. Bell, 20 Johns. 338; Lessee of Wilson v. McVcagh, 3 Yates, 86;
Wilson & Gibbs ». Corine, 3 Johns. 380; Vance «. Readdon, 2 N. & M. 399 ;
Morrison •». Dent, 1 Mo. 346 ; Dew v. Despeaux, 7 Halst. 183 ; Dew i\ Farlc}-,
7 Halst. 326; Dew v. Moore, 7 Halst. 331; Weyand v. Tipton, 5 Sergt. & B.
333; Clark v. Lockwood, 31 Cal. 320; Ilendrickson t\ B. R. Co. 34 Mo. 188;
TlIK DEKI). 2S5
tlic reason tliat tlio appraisers, wliere tlie sale is under the
appraisement law, acted without seeing the land.^ Nor by
parole evidence that the execution on which the sale was made
was withdrawn, or that the levy had been abandoned before
the sale. 2 jN^or for the execution having issued out of season,
or for any fault of the sheriff in not following the statute, if the
court has jurisdiction of the case from which the execution
emanated. 3 Nor by failure of the sheriff to advertise, if the
purchaser be a 'bonajide ouq.^
§ 837. In Hubhard v. Barnes, 29th Iowa, the court held
that a sale of lands situate in one county, on an execu-
tion issued on a judgment in a different county, was valid as
between the execution plaintiff and debtor, as also against a
subsequent purchaser under the execution debtor with notice
thereof, although a transcript of the judgment had not been
filed as is by the statute provided, (Sees. 32-18, 3249,) in the
county where the lands were situate previous to the levy and
sale. The court held that though the judgment could not
become a lien on such lands without the filing of the trans-
cript, and though the judgment and sale together would not be
noted without such transcript which would be implied in law;
that nevertheless actual notice of such judgment, execution and
sale to a subsequent purchaser under the execution debtor
serves in that respect in the stead of such filing of a transcript,
Cox «. Joiner, 4 Bibb. 94; Furguson «. Miles, 3 Gilm. 358; Sexton «.
Wheaton, 4 Wheat. 503; Durham ij. Eaton, 28 111. 2G4; Jackson «. Eose-
velt, 13 Johns. 97; Lovcll v. Powell, 5 Ala. 58; Ware ®. Bradford, 2 Ala.
GT6 ; Stow v. Steele, 45 111. 328 ; Kinney v. Knoeble, 47 111. 417 ; Armstrong
V. Jackson, 1 Blackf. 210; Hinds -y. Scott, 11 Penn. St. 1 ; Anderson t.
Clarke, 2 Swan, (Penn.) 156; Dunn v. Merriweather, 1 Marsh. 158; Martin
•e. McCargo, 5 Litt. 293; Smith v. Morrison, 1 Mon. 154; Riggs v. Dooley,
7 B. Mon. 239; Wilson v. McGee, 2 Marsh. C02; Childs v. McChesncy, 20
Iowa, 431; Willard v. Whipple, 40 Vt. 219; Philips 'e. Coffee, 17 111. 154;
Bunton «. Emerson, 4 G. Greene, 397.
' Jackson v. Vanderhej-dcn, 17 Johns. 1C7.
^ Jackson v. Vanderheyden, 17 Johns. 1G7.
^ Armstrong v. Jackson, 1 Blackf. 210; Thompson i\ Tolmie, 2 Pet. 157;
Henry v. Ferguson, 1 Bailey, 512; Barkley v. Screven, 1 N. »& M. 408,
Hubbard v. Barnes, 29 Iowa, 289.
* Lawrence v. Speed, 2 Bil)b. 101.
286 JUDICIAL AND EXECUTION SALES.
and renders the execution sale valid. ^ Of said section 3240
the court say: Beck, Justice, its provisions "are directory
only, and compliance therewith is not necessary to authorize
the service of an execution in a county other than the one
wliei-e the judgment was rendered." That if there be not
such compliance, then there will be " no record notice of the
levy and sale," and " neither will a judgment be a lien upon
lands" situate in such other county; that although "in such
case the law will raise no presumption of notice of sale," yet
" actual notice " " will supply the want of record notice, or,
rather, the existence of actual notice, tlie very end aimed at
by the statutory provisions above quoted will supercede the
necessity of the record;" and that the deed on the sheriff's
sale " will be held valid as to all having actual notice thereof." -
§ 838. In New Jersey it is held that evidence may not be
received to invalidate an execution sale by showing satisfaction
of the judgment. 3 'Nor will omission to endorse the writ
repleviable, nor omission of the notice of sale to defendant
required by the statute render the sale invalid.^
§ 839. In Mississij^pi the ruling is that issuing execution
and selling after the deatli of defendant is merely an irregu-
larity and does not affect the sale when brought up collaterally.^
§ 840. Though the deed may be made to a person other than
the purcliaser, at the purchaser's request, and will in that
respect be valid;*' yet, if so made without authority to one not
entitled to have it, such fact may be shown according to the
ruling in South Carolina, and wdll avoid the deed.''
§ 841. But the evidence of the officer who made it is not
allowable to alter, vary, or contradict the deed itself, or the
legal effect thereof.^
' Hubbard v. Barnes, 29 Iowa, 239, 242.
- Hubbard v. Barnes, 29 Iowa, 242.
3 Nichols V. Disner, 5 Dutch, (N. J.) 293.
* Eliugcr V. Moriaty, 10 Iowa, 78.
* Harper v. Ilill, 35 Miss. 03; but sec to the coutrarj', Erwin t. Dundas,
4 How. 58.
* Landrum v. Hatcher, 11 Ricli. Law. (S. C.) 54.
' II).
e Dunahue v. McXulty, 24 Cal. 411.
THE DEED. 287
§ 842. And tliongli not impeachable collaterally for uicro
error or irrci^-ularitj iu the proceedings and judgment, if there
be a valid judgment and execution, yet where a seal is required
to deeds, and the instrument or deed is not sealed it will be
void.i
X. Estoppel.
§ S-i3. Tlie defendant in execution is estopped by the
sheriff's deed to deny title in himself at date of sale to the
lands sold. So from date of levy if the judgment be not a
lien; and from the date of the judgment wdiere judgments are
liens; and he cannot set up an outstanding title to avoid the
sheriff's eale.-
§ 8M. This dissability cannot be evaded by going out of
jiossession after the sale and re-entering under color of an
alleged better title any more than if the deed be made by
himself^
§ 845. In the case cited from 3 Washington C. C. the court,
Washington, Justice, state the rule in terms as folio w^s: "The
cases cited by the plaintiff's counsel are full to tlie point, that
the purchaser under an execution in an ejectment against the
defendant in the execution, or one claiming under him, need
not show any other title than a judgment, execution and
sheriff's deed; and that the defendant will not be permitted to
controvert such title by showing it to be defective, or by
.setting up a better outstanding in a third jjerson."*
§ 84G. But this rule will not apply in a case of a bare claim
to sell without foundation where the execution debtor has
neither title nor possession, and does not direct the levy and
sale of it as his property.^'
§ 847. Xor is the execution debtor estopped to deny title
in himself in laiids sold under a void execution, although he
direct tlic sale; for such execution and sale being both void
' Moore V. Detchmandry, 11 Mo, 431; ]\rorsan v. Branham, 27 Mo. 351.
•^ Cooper 1). Galbraith, 3 Wash. C. C. OoO; O'Neal v. Duncan, 4 McCortl,
24G.
3 Cooper V. Galbraith, 3 Wash. C. C. 5.j0; Jackson v. Busli. 10 John.?. 223.
•» Cooper V. Galbraith, 3 Wash. C. C. 550.
" Hagaman v. Jackson, 1 Wend. 502.
2SS JUDICI^U:. AND EXECUTION SALK.
there is no authority for tlic sale to impart validity to the
estoppel. 1
§ SiS. As against a purchaser at execution sale, the debtor
is estopped to deny his ownership of that which he directs the
officer to levy and sell. So also so, as to those claiming under
such purchaser.- This doctrine is asserted in Major v. Deer,
by the supreme court of Kentucky in the following terms:
" When the land is sold at the instance, or with the assent,
express or presumed, of the defendant, as he is benefited by it,
he should be bound by it, as his own voluntary act; and there-
fore should not be permitted to deny that the purchaser
acquired any title." ^
§ S49. Though ordinarily the statute of frauds will cut
off a parole authority to sell real estate, yet when there is legal
power to sell and convey without it, then such parole expres-
sion of a preference as to the property to be sold will be valid.
' Gogeyan 13. Ditto, 2 llct. (Ey.) 433.
- Kead v. Heasley, 2 B. IMon. 254.
' Major V. Deer, 4 J. J. Marsh. 58.j ; Ecad v. Ilcasley, 2 B. Mon. 254.
CIIArTER XIX.
SETTING SALE ASIDE.
I, Power of the Court to Set Sale xVside.
II. For Inadequacy op Price.
III. For Misconduct in Selling.
IV. For Mistake, Irregularity, and Fraud.
V. For Reversal of the Judgment.
VI. Return of the Pltjchase IMoney.
I. Power of the Couut to Set Sale Aside.
§ 850. The court upon whoso judgment the execution
issues has fall power to set aside an execution sale wlienever
the ends of justice and fair dealing require it, and to order a
re-sale, or award execution anew, at discretion. ^
§ 851. This principle is aptlj illustrated, in few words, in
McLean County Banh v. Flagg^^ by the Supreme Court of
Illinois: "The power over its own process is possessed by all
courts. Such power is a species of equitable jurisdiction that
is inherent in courts of law as well as those of equity. This
court has repeatedly held, as between the purchaser and the
original parties to the suit, that a court of law will not hesitate
to exercise the power of setting a sale aside on account of
fraud or irregularity."
§ 852. Tiie application to set a sale aside should ordinarily
be made first by motion to the same court from whence the pro-
cess of execution issued;^ and must be made witliin a reasona-
ble time, unless there be circumstances to excuse delay.-*
§ 853. It has been held that (if made by motion) it should
■ Draine v. Smelscr, 15 Ala. 423; Reed «. Divcn, 7 lad. 189; Nelson ■?.
Bowcn, 23 Mo. 13; Cummin's' Appeal, 23 Ponn. St. 509; Jones i\ R. R
Co. 32 N. H. 544; Davis v. Campbell, 12 Ind. 192; Haydcn ?j. Dunlap, 3
Bibb. 21G.
2 31 111. 205.
*Pra1hert\ 11111,30 111.402.
< Prathci- ». Hill, 3G 111. 402; Stewart c. Marshall, 4 G. Greene (Iowa) 75.
(289)
290 JUDICLVL AND EXECUTION SALES.
be made within tiie time allowed by law for redemption; ^ ti^t
at all CA'ents it slionld be before tlie intervention of interme-
diate rights of third persons, ^ and we may add before barred
by lapse of time.
II. Foil Inadequacy of Pkice.
§ 851, Ordinarily, inadequacy of price is not alone sufficient
cause for setting aside an execntion which is in other respects
unexceptionable, and ^^■]len the sale is made to a bona fide
purchaser. ^
§ 855. But when the inadequacy is such as to amount to a
badge of fraud, or together with other circumstances is such as
to shock the moral sense, and particularly when surrounded by
indications of hardship and unfairness, the sale vrill be set
aside.^
§ 856. And when the price sold for is greatly inadequate,
and the notice of sale is indifferently given, or set up at a great
distance from the place of sale, or there are other circumstances
tending to show that an opportunity was not given for proper
competition of bidders, the sale will be set aside. ^'
'Raymond v. Pauli, 21 Wis. 531; Stewart i\ Marshall, 4 G. Greene,
(Iowa) 73.
» Prather «. Hill, 3G 111. 403.
' Duncan v. Saunders, 50 111. 475; Boyd 'o. Ellis, 11 Iowa, 97; Coleman r.
Bank of Hamburg, 2 Strobli. Eq. 285; Reed v. Brooks, 3 Lift. 127; Wallace
c. Berger. 25 Iowa, 45G; King «. Tharp, 2G Iowa, 283; Mixer «. Sibley, 53
111. 61; Comstock «. Purple. 49 111. 158; McMullen v. Gable 47 111.67;
Am. Ins. Co. v. Oakley, 9 Paige, 259 ; Hannibal and St. Joe R. R. Co. t.
Brown, 43 Mo. 294.
* Boyd t>. 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
<Iefendant in execution. And then if the deed was set aside
the judgment or decree and sale would remain. If the sale
was valid, to set aside the deed would accomplish no practical
good."
§ 8G0. Tlie princij)al, or high sheriff, may execute the deed
by his deputy; that is, the dej)uty may perform the manual
act of making it; but it must purport to be the act and deed
of the principal by his deputy, and not the act of the deputy.
It must be done in the name of the principal oiHcer.^
§ 870. If lands consisting of several parcels be levied and
sold in the aggregate, the sale will be set aside.^ This, too,
]iotwithstanding they bring an adequate price, for such manner
of selling 2>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<? lan<>: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
<?. Brcmn, 11 111. 519; Clark v. Pinney, G Cow. 297; Hubbcll v. Broachvell,
8 Ohio, 120; Goodwin v. Mix, 38 111. 115; Voorhees ». The Bank, 10 Pet.
4-19.
«38I11. IIG.
= Dunn r. Frazior, 8 Blackf. 433; Julian v. Bcal, 2G Ind. 220; Hawkins t.
Miller, 2G Ind. 173.
* Dunn ». Frazier, 8 Blackf. 432; Hawkins v. Miller, 2G Ind. 173; IMcGee
V. Ellis, 4 Litt. 244; Muir v. Crai.:?, 3 Blackf. 293; Preston -c. Harrison, 9
Ind. 1; Pennington t). Clifton, 10 Ind. 172; Richmond «. Marston, 15 Ind.
134; Julian ®. Beal, 2G Ind. 220.
SETTING SALE ASIDE. ?>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, 0 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^a<iced lands,
under a decree of foreclosure, without redemption. It then follows, that
the decree was erroneous in ordering a sale without redemption."
' Robertson v. Dennis, 20 111. 813.
20
oOG JUDICIAL AXD EXECUTION SALES.
rjglit of redeeming separate parcels separately, \ve find here
an additional reason, wjierever lands are subject by statute to
redemption, for requiring sales of separate and distinct parcels
to be made on separate bids. Otherwise there would be no
standard of values by which any one tract could be separately
redeemed, and the debtor would be subjected to the oppression
of redeeming: the whole number of tracts tofrether, and in case
of inability so to do, lose the whole. The same reason applies
as an additional objection to selling real and personal property
collectively, together. The one being redeemable and the
other not, the separate values relatively bid for each, could not
be ascertained.
II. I3v THE Execution DicuTOJi.
§ 915. A purchase at execution sale, under a written agree-
ment for redemption, is not a waiver or a merger of the
statutory right to redeem. And though the redemption be
limited both by statute and by the agreement to one year, yet
the transaction amounts in equity to a mortgage, and the exe-
cution debtor will be allowed in equity a reasonable time in
which to redeem, irrespective of the one year's time stipulated
for in the agreement. ^
§ 91G. And such a promise of redemption made at time
of bidding as influences others not to bid, or causes the debtor
to lessen his eflbrts to otherwise protect his interests, will be
enforced in equity, though the time limited be longer than tlie
statutory time of redemption. 2
§ 917. To consummate the redemption in such case the ten
per cent, allowed by law can only be exacted up to the end of the
time allowed by law in which to redeem, and six per cent, per
annum afterwards. ^ i\nd the time allowed by law for redemp-
tion may be extended by uarole, without interfering with the
statute of frauds."^
' Wallace v. Wilson, .34 ^liss. 8o7; Southard c. Pope, 9 B. Monroe, '20i.
2 Lillard v. Casey, 2 Bibb, 459.
2 Southard v. Pope, 9 B. Mon. 207.
* Griffin i\ Coffey, 9 B. Mon. 453.
RKDKMl'TION. 807
§ 91S. Yjy receiving a part of tlic redemption money, the
purcliaser is precluded from treating the sale as absolute after
expiration of the time of redemption,^
§ 910. The execution debtor may redeem without paying
oft' other liens of the execution purchaser in Minnesota.-
§ 920. But a contrary rule is held in California. ^ And
during the time allowed for redemption, the purcliaser in
California should pay the taxes; therefore a purchase at tax
sale, by himself, for such taxes, will avail him nothing.^
§ 921. So, the judgment debtor may redeem, (and so may
Iiis grantee,) though he has conveyed awny his right to the
h\nd. lie may do so to protect his conveyance, and so may
Ids grantee to protect his purchase. ^
§ 922. The right of the debtor to redeem is not affected by
selling the land a second time, either by the same plaintiff or
by another; and if the same plaintiff", having a junior judg-
ment, sell it again, then a judgment debtor redeeming from
the first sale has priority of rig]it.°
§ 923. If an execution sale be uidcnown to the execution
debtor, and fraudulent means be used, or resorted to for the
purpose of jireventing the lact from coming to his knowledge,
and the proper evidences and records of such sale be not made
out within the usual time of redemption, the aggrieved party
may, by bill in chancery filed within a reasonable time in a
court of general chancery jurisdiction, enforce redemption. In
such case, twelve months at\er the discovery of the fraud, has
been deemed a reasonable time by analogy to the statute of
limitations of redemption, and this, too, against tlie assignee
of tlic sheriff's certificate who took witli notice."^
» Snutli;u-a r. Pope, 9 B. ]\ron. 2G4.
» Warren v. Fisli, 7 Minn. 432.
3 Vandyke v. Herman, 3 Cal. 29j.
* Kelly V. Abbott, 13 Cal. 009.
' Harvey v. Spalding, Ifi Iowa, 097.
« Merry v. Bostuick, 13 111. 398.
" Briscoe i\ York, 53 111. 4S4. In this case. Justice Bkeese, after review-
ing the facts and statements of tlie bill, and admitted by demurrer, dis-
poses of the case in the following terms: "It is clear that he (defendant,)
purchased the certitioatc with notice of llie rights of comi)luinant, and
30 S JUDICIAL AKD EXECUTION SALES.
III. ]3y Judgment Ckeditoks.
§ 024. The right of judgment creditors to redeem hmds of
tlieir debtors from execution sales, when given by law, applies
alike to creditors whose judgments are rendered before or after
the sale.i
§ 025. WJieii the redemption is made by a judgment creditor
after the deatli of the debtor in execution, it thereby becomes
the estate of the deceased debtor, and the title vests in heirs
subject, as other lands, to judgment debts. The remedy of the
redeeming creditor is to sell on his judgment, and the amount
paid for redemption goes to his credit on his bid if the pur-
chase is made by him; and if by another, he is re-imbursed
out of the proceeds of sale,- for the amount as part of his
demand.
§ 020. " The land is stricken off to him by legal intend-
ment," say the court. But the redeeming creditor cannot issue
execution on his judgment and sell, without proper j)roceed-
iiiffs first taken ajxainst the heirs. On a mere revival of the
judgment against the administrator, no lien or right attaches
to levy and sell the land on ^ fieri facias. Such revival of judg-
ment against the administrator without notice to the heirs was
holden to be error in Tmmey v. Gates, and was reversed.^ And
a judgment so revived and execution sale thereon arcA'oid and
confer no title on the purchaser.-*
§ 027. If a judgment creditor purchase the certificate of
sale while the time is yet running for redem])tion, he will be
entitled to the redemption money as assignee, in case any other
creditor redeems. And if the creditor so redeeming redeems
on a judgment which is junior to the judgment of such assignee,
must be alTcctccl with all the equities existing against the original pur-
chaser. It seems to us the bare statement of the case is the strongest
argument which can be made in support of complainant's right to redeem
from the sale, at least within twelve months after the papers evidencing
the sale were actually made out."
' Couthway v. Berghaus, 25 Ala. 393.
' Turney v. Young, 22 111. 253; Keeling v. Head, 3 Head. (Tenn.) 592.
» Turney v. Gates, 12 111. 141 ; Turney v. Young, 22 111 253.
' Turney v. Young, 23 111. 253.
KEDEMPTIOX. 309
sucli junior creditor must also pay the amount of the assignee's
judgment, i The assignee of a judgment creditor has the same
right to redeem as the judgment creditor had. 3
"§ 928. If the debtor sell his equity of redemption, and tlie
purchaser fail to redeem, a creditor under a junior judgment
may redeem after twelve, and within fifteeu months, in Illinois. ^
§ 929. If two parcels of land be sold as a whole, on execu-
tion sale, and the plaintiff in a junior execution redeems, and
then causes tlie parcels to be levied and sold separately on his
junior writ, bidding them in on liis judgment for a sum less
than what he paid for redemption, he will be regarded in law
as having abandoned his riglits under the redemption, and as
selling independent thereof. ■*
§ 930. Eedemption of lands sold at a master's judicial sale,
cannot be made by payment to such master where by law the
payment is to be to the sheriff. It is inoperative; and more-
over the sheriff cannot ratify the act of the master in receiving
the money and give validity to the intended redemption.-'''
lY. EeDEMFHOX by MoRTGACiE CliEDrrOR.
§ 931. In California, though a mortgagee lose his priority
by failing to record his mortgage, yet he may redeem under
the statute from execution sale, as a creditor; but if he fails to
do so, he will have no relief in equity.^ In Iowa, a junior
mortgagee, who is not made defendant to the senior mort-
crairee's suit of foreclosure, is not confined, in j-edceming, to the
statutory remedy but may redeem as at common law, or fore-
close his mortgage, making the ]-)urchaser under the senior
foreclosure a defendant and tendering the amount of his pur-
chase money. *^
•• AYilson V. Conklin, 33 Iowa, 453.
' Sweczcy v. Chandler, 11 111. 445.
8 McLogan v. Brown, 11 111. 519.
9 Olliver v. Croswell, 43 111. 41.
' Littler V. Teople, 43 111. 188.
s Smith V. PKandall, 6 Cal. 47.
^ Anson v. Anson, SO Iowa, 55 ; Bates v. Ruddick, 3 Iowa, 533 ; Ten E^^cli
D. Cassad 15 Iowa, 534; Veach v. Schattp, 3 Iowa, 194; Ileinistrccl
310 JUDiaAL AND EXECUTION SALES.
§ 032. If, in case of such sale under the proceedings in
foreclosure of tlie senior niort.c^af^ee, tlie purchaser enter into
and enjoy the benefit of the mortgag-ed premises prior to fore-
closure by the junior mortgagee, who has had no notice as a
party, then the purchaser under the first mortgage Avill be
accountable for rents and profits and waste; but in accounting
will be entitled to interest on the mortgage debt, upon the
principle of equitable subrogation.^
§ 933. Where a case exists for such accounting, the junior
mortgagee will not be held to a strict tender or bringing into
court the necessary redemption monej^ on filing his bill.-
§ 934. It is believed to be sufficient if, in such case, a
readiness to redeem be averred whenever the amount required
shall be ascertained by the court. More especially so Vv-hen
the right to redeem is resisted, ^
§ 935. But under the code of lovra of 1S51, which gave no
redemption from mortgage sales, it Avas holden that mortgage
creditors and other lien holders who had been made parties,
could not redeem lands sold under decree of foreclosure after
sale to satisfy the mortgage decree. They had already had
their day in court.''
§ 93G. Partial redemption is not allowable. "Who redeems
must redeem the whole interest sold. A purchaser of a part
thereof cannot redeem such part without ])ayiiig the whole
amount and redeeming the whole, unless such part was sepa-
r. Winnie, 10 Iowa, 4S0; Knowles «. Kablin 20 Iowa, 101. But, quere?
If the junior mortgagee ought to be subjected to redeem also, as
ftgainst tlie costs of sucli proceeding of the first mortgagor, to which
he was not made a party, which costs might liave been avoided, after
service, by redemption of tlie junior mortgagee if he had been made a
party to the proceedings.
1 Anson v. Anson, 20 Iowa, GO; Ten Eyck v. Cassad, 15 Iowa, 524; Bene-
dict u. Oilman, 4 Paige, 58; Bradley v. Snyder, 14 111. 207; 1 Waslib. Real
Prop. 5G5, 5G8, G31 ; Goodman v. White, 2G Conn. 317 ; Thompson v. Chan-
dler, 7 Me. (Greenlf ) 377.
"' Laverty v. Hall, 19 Iowa, 52G.
3 Laverty v. Hall, 19 Iowa, 52G; Stap v. Phelps, 7 Dana, (Ky.) 29G; Hay-
wood V. Munger, 14 Iowa, 517; Eulherford v. Haven, 11 Iowa, 587.
* Cramer v. Redman, 9 Iowa, 114.
KEDEilPTION. 311
rately sold, and tlicn lie can. 'Nov can redemption Lc made as
I'or an nndlvided sLare.^
§ OoT. If redemption is of tlic mortgagee as ])nrchascr, tlic
party redeeming must not onlj pay the amonnt Lid with inter-
est, but if the bid is less than the decree he must also pa/ oil
the deeeee; he cannot redeem, in such case, by simply paying
the amount of the ]3urchase money and interest. ^ "Who
claims equity must do equity."
A^. How AND AVUEN TO BE MaDE.
§ 93S. Redemption can only be made in that which is by
law a legal tender, in money. The officer is not bound to
receive anything else as bank bills, checks, or orders for
money. In some cases it is holden that redemption cannot be
effected, by the act of his receiving such sul)stitutes for
money, although by its acceptance he renders himself liable
for money. 3
§ 1)39. But in others it is holden that if such instruments
be accepted by him and actually converted into money, so that
the money is ready for the holder of the certificate of par-
chase, it will be a valid redemption.^
§ 040. The time of redemption is to be calculated by ex-
chidin.g the first day and including the last, or day of making
payment. 5
§ 9-11. It being a statutory right the time in which it is to
be exercised in the different states Avill depend on the statutory
provisions in that respect. As a general rule it may be made
'Street V. Ileal, IG Iowa, C8; Knowlos v. Eablin 20 Iowa, 101;
Massie t?. Wilson, IG Iowa, 090, 300, 397; Taylor i\ rorter, 3 jMass. 3.j5;
GiliHon V. Creshoi-c, 5 Pick. 14G; Smith v. Kelly, 27 Uc. 237; Johnson t.
Candage, 31 Me. 28.
- Knowlcs V. Rablin, 20 Iowa, 101, 104; Johnson v. Harmon, 19 Iowa, 08;
Wliite V. Hampton^ 13 Iowa, 359.
" Dougherty v. Hughes, 3 G. Greene, 92; Thornc v. San Francisco, 4 C.'al.
127 ; People v. Baker, 20 Wend. G02.
* Webb V. Watson, 18 Iowa, 537; Hall v. Fisher, 9 Barb. Sup. Ct. 17.
^Tueclier v. Iliatto, 23 Iowa, 529; Bigelow v. Wilson, 1 Pick. 485;
Sinims v. Hampton, 1 S. & R. 411; Gillespie v. White, IG Johns. 117; Rund
V. Rand, 3 N. II. 2G7; Windser v. China, 4 Grecnl. 298
012 JUDICIAL AXD EXECUTION SALPS.
'* at any time before tlie close of tlie last day allowed by law
for tliat pni-pose," or of any day witliin the time allowed by
law for redemption. "Business hours are not in tliis respect
regarded."^
§ 942. Redemption b}^ an unauthorized person, assuming
to act as agent, will be valid if ratified or approved by the
principal. -
§ 943. In redeeming, strict compliance witli the statute is
necessary," unless such compliance be v.-aived.^
§ 944. In Hughes v. Fecter'^ the Supreme Court of Iowa
lay down the rule " that the statutory right to redeem property
from execution sale within one year, cannot be extended by any
act of the party claiming tliat right, such as a suit to redeem,
or the like, without more. Such, too, is the general doctrine.
§ 045. But where the property, as in the case of Ilmjhes v.
Feeter, brought but a small proportion of its value, and where
that value dej^endcd on a protracted suit, calculated to prevent
a sale at a fair price, if redeemed and sold again during its
pendency, and where suit was commenced in good faith before
redemption expired to taste the loiia fides of the sale, the
court enlarged the time of redemption after the expiration of
the statutory period.''
§ 94G. From an execution sale of several tracts of land
separately made on the same v.'rit, the owner may redeem either
of them separately, whether they be bought by one or by sev-
eral different persons.''
§ 947. If the redemption is made of the sheriff by a judg-
ment creditor, it has been held in Illinois that the payment
should be accompanied by an execution delivered to the officer
on the judgment of such redeeming creditor.^
' Ezfarte Bank of ]\ronroc, 7 Hill, 177; Tueclicr -y. Iliatte, 23 Iowa, 529.
« Tuechcr v. Hiattc, 23 Iowa, 529; Blackw. Tax Titles, 501, 504, 505.
2 E.v pnrte, Bank of Monroe, 7 Hill, 177 ; Hall v. Thomas, 27 Barb. (N. Y.)
55; Siliimanw. Wing, 7 Hill, 159.
* Bank of Vcrgenncs v. Warren, 7 Hill, 91
* ITuglics V. Feeter, 23 Iowa, 547.
* Ibid.
' Robertson v. Dennis, 20 111. 313.
8 Stone V. Gardner, 20 111. 304.
KEDKMITIO^'. 313
§ 94S. It 13 also lield in Illinois that tlio money may bo
paid to the sheriff or to the purchaser. ^
§ 040. From a pnrcliase by the trnstce of i\ fame covert^
tlie redemption, in Alabama, is made by payment to snch
trnstee and not to the cestui que trnst.^ Otherwise if the
trustee is non-resident. •"•
§ 050. The rceei])t by the sheriff of depreciated paper as
money from the purchaser, affords no ground for the owner or
others to redeem by paying like currency, or its value, in par-
money, lie must pay the full amount in good money.^
§ 051. If the purchaser pays oft" a prior lien on the- prem-
ises the amount must be reimbursed to him by adding the
same with interest to the redemj^tion money, ^
§ 052. Oversight, neglect, or mere ignorance of the law is
not such excuse for omitting to redeem as will call for relief in
equity.'"'
§ 053. It is held in l*^ew York (Moega:n-, Justice, dissenting,"^
that under the statute of 1847, requiring redemptions from
execution sales of lands on the last day of the flfteeii months
allowed by law in which to redeem, to be made at the sherilT's
office, that redemption at the dwelling house of that ofticer,
between nine and ten o'clock in the night of that day, the
party redeeming have failed to find the officer during the day
at the sheriff's office, is illegal and void, for non-conformity to
the letter of tlie act requiring the redemption to take place at
the sheriff's office when the conflicting claimants to redeem
nn'ght respectively redeem from each other. The court hold
that to make the redemption valid, the statute must be strictly
conformcd to.''
' Stone V. Garancr, 20 111. 304; Robertson v. Dcunis, 20 111. 013.
'• Baninger v. Burke, 21 Ala. 7G5.
' Coutby r. Bergbans, 25 111. 393.
^ Scliotit'ld V. Bessenden, 15 111. 78.
8 Cmitbway v. Bergans, 25 Ala. 393.
6 Canipaii v. Godfrey, 18 Micb. 27.
'' Gilcbrist ij. Comfort, 34 N. Y. 235. In this case the court say: "As
the law now exists a redemption by a creditor on the last day of the fifteen
months, to be valid and effectual, must be made at the sheriff's office.
The statute is plain and peremptory in this respect and cannot be dis-
31 J: JL-DICLIL AND EXECUTION SALES.
§ 054:. Yv''c are not to imclerstancl that the objection on
^vlucll the case of Gilchrist v. Comfort turned was tliat the
redemption was made in the night time; for in that there is
notliir.g objectionable in itself. Business hours in reference to
redemption are not regarded in law.^ But it was objection-
able, under the circumstances, in like manner as was the place
of redeeming, inasmuch as it put difficulties, if not impossi-
bilities, in the way of such other judgment creditors who,
under the statute, had a right in like manner and at the same
time to redeem of the creditor first redeeming, and so on in
turn from one to another so long as there remained judgment
creditors willing to redeem, or to bid at what is aptly tei-med
an " auction among the creditors of the land." The real point
of objection was that the redemption was not made at the office
of the sheriff instead of at his house. Its being in the night
time gave weight to the objection in a moral point of view, in
so much as it tended to prevent simultaneous redemptions by
other creditors.
YI. Effect of TtEDEMraox.
§ 955. The effect of redemption from execution sale, by the
execution debtor or his assigns or grantee, is merely to tei-mi-
nate the sale and restore the property to its original condition.
It confers no new right. If the sale was made for a part only
of the judgment debt, the land becomes by such redemption
again liable for the residue of the judgment. And so likewise
it becomes thereby liable to sale on any other intervening or
subsisting judgment lien older in date than the transfer or
assignment made by the judgment debtor, to the same extent
as if the judgment debtor had not disposed of his right to
redeem, or his interest in the estate. ^
obeyed or (lisrcg.irdcd. It is an express and positive requirement, and
must be strictly followed, or nothing is accomplished." See Ex jxtrtc,
Bank of':Monroe, 7 Hill, 177; Hall v. Thomas, 27 Barb. 55.
' Ex 'parte, Bank of IMonroe, 7 Hill, 777; Tuccher v. Hiattc, 23 Iowa, 529.
* Sticn V. Chambless, 18 Iowa, 474; Crosby ■;;. Elkader Lodge, IG low:\,
300; Curtis v. Millard, 14 Iowa, 128; Warren v. Fish, 7 Minn. 432; Hays
V. Thode, 18 Iowa, 51, 52; Titus v. Lewis, 3 Barb. 70.
IJEDEMITIOX. 315
§956. In Steui V. Chamlless^ the court say: "The pur-
cliase by Cluimbless of Banford's right to redeem tlic pi-operty
from the sale to Dougherty, and to Lemp aud Sells, conferred
upon him no other or better right than Banford himself pos-
sessed, and the legal effect of a I'edemption by him is the same
ris if Banford himself had redeemed, leaving the property sub-
ject to be taken in satisfaction of any subsisting lien or judg-
ment thereon."
§ 957. The same court, in Crosbi/ v. Elhader Lodge,'^ hold
the followius: lanmiaire: "If the debtor or his grantee redeem
land which has been sold in part satisfaction of a subsisting
judgment, the property at once becomes liable to satisfy the
unpaid balance of the execution from the moment of such
redemption."
§ 95S. Still earlier, in Curtis v. Jfillard,^ the same court
review the whole subject and assert the rule to be that if dur-
ing the interval between the sale on execution and delivery of
the sheriff's deed to the purchaser other judgments be rendered
against the debtor, where judgments are liens, that they attach
us liens against the execution debtor's interest in the premises
so sold, and that if there be redemption from such sale, the
land is liable to sale on execution to satisfy such subsequent
judgments. "That the legal estate of the judgment debtor
is not divested by the sale of his land under execution until
after expiration of the time for redemption and the title has
vested in the purchaser by deed from the sheriff." It thei-e-
fore follows that judgments rendered within that time attach
as liens to the premises, subject to be defeated by failure to
redeem and by execution and delivery of the sheriff's deed.
§ 959. In the same case Curtis v. JliUfird, the doctrine is
broadly asserted by the court that " the purchaser of lands sold
on execution acqnires by his purchase no more than a lien upon
the lands for the amount of his bid, and interest during the
time allowed for redemj^tion. He acquires no right or estate
upon which he could maintain ejectment, or which could be
' IS Iowa, 475, 47G.
••' IG Iowa, 40.").
3 14 Iowa, 129, 130.
31G JUDICIAL AND EXECUTION SALES.
levied upon and sold for liis debts;" that it is simply an
inchoate and conditional right to an estate, " liable to bo
defeated at any time within one year by the payment of the
purchase money and interest." That is, by redemption. ^
§ 9G0, A judgment creditor, or other creditor, in redeem-
ing, is substituted to the execution j)urchaser's rights. He
acquires no new or better rights than the right of those from
whom he redeems. Therefore, if the purchase is made under
a void execution, or an execution issued on a judgment which
has been paid, or where the execution itself has been satis-
fied, then the purchaser at the execution sale having obtained
nothing b}^ his purchase, nothing inures to the party redeem-
ing, by virtue of the redemption.^ Thus it folltjws, that a
creditor redeeming from a void execution sale takes nothing,
and a snbsecpient execution sale, in his own behalf, in pursit-
ance of such redemption, under the Illinois statute, is also
void.-"
§ 001. From sales made in a loyal state during the war of
rebellion, of lands belonging to a citizen and resident of a state
in rebellion, where no negligence in redeeming attaches to the
judgment debtor, the debtor or his representatives will in
equity, by analogy to the statute of limitations, be allowed
one year in which to file their bill to redeem, after the obsta-
cles caused by the M'ar have ceased; and where, in such case,
the sheriff's deed has intervened, the proper course is to apply
by bill to the court of ordinary chancery jurisdiction for relief.
If in the meantime the judgment debtor dies, redemption
may be thus effected by a bill on the part of his heirs, but
n])on terms. Not, however, as to such portion of the lands as
may have passed by conveyance to innocent purchasers."*
» 14 Iowa, 130.
2 Keeling v. Heard, ?. Head (Tenn.) 592.
' Joluison r. Eaker, 38 111. 98. Of such sales the Supreme Court say:
"Tliey arc both void, because they fail to conform to and are in violation
of the statute. And it follows, as the judgment is utterly void, that such
a sale under it would be equally ; and being void, it is not such a judg-
ment as the statute contemplated, as the basis of a sale from which a
junior judgment creditor might redeem."
Mlixer i-. Sibley, 53 111. Gl; Hanger •?). Abbott, G Wall. 533; Stiles r.
Easloy 51 111. 275.
PART FIFTH.
EXECUTION SALES OF FEESONAL FEOFEETY.
CIIAFTEE XXF
I. Tme Wi;it.
II. Its Lien.
III. What may ije Sold.
L TiiK WiiiT.
§ 002. Tlio writ o^ fieri facias is tlie j^rocess on wliieli exe-
cution sales of personal property were made at common law.^
§ 903. It is a common law writ, and is directed to tlic
sheriff of the county, by his official title, commanding him,
that of the goods and chattels of the defendant, to be found in
his bailwick, that is in his county, he levy and cause to be made
a sum of money mentioned in the writ, and to have the same
before tlie court on the return day of the writ."
§ ^Q-^. In olden time, in England, when tlie monarch held
the court in person, the command of the writ was to have the
money in court, before the king.
§ 9G5. Sales of personal property, in the American States,
to satisfy judgments at law, are usually made on this writ, or
one closely assimilated to it, and which, in some states, also
run against tlie lands and tenements of the execution debtor,
cither absolutely or as an alternative, in case sufficient goods
and chattels be not found whereof to satisfy the writ.
§ {)Q>Q. 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. ^
' 0 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.<?hcs, 24 111. 270.
"■ Wiilkcr V. The Commonwealth, 18 Gatt. 13.
3 Pitt V. McGee, 24 111. GIO.
* Robinson «. The Atlantic & Great Western R. R. Co. GG Penn. St. IGO.
5 Slade V. Van Vechten, 11 Paige, Ch. 21. In this case Cliancellor W.\l-
wouTii lays down the rule as follows: " It is not material whctjier all the
ex^icutions Avere levied or not, for if the sheriff had levied one e.xecntion
and other executions were in his hands, or in the hands of his deputies,
the levj' would be valid as to all, so far as to entitle tlie others to the sur-
plus, if an}', raised at the sale under the execution upon which the levy
was made, and the property advertised and sold."
CIIAPTEE XXIII.
THE SALE.
I. By Whom to be Made.
II. How TO 15E jMade.
III, Its Effect: What Passes by it.
IV. Void, and Voidable Sales.
V. Who may kot Buy.
VI. Wiiex the Officer biay Re-sell.
I, By AViioM TO EE ]\Iaue.
§ 1022. The execution, tlionpjli a judicial writ, commands
the performance of a ministerial, and not a judicial act.^ All
such writs, when directed to the sheriff generally, by his stylo
of office, may be executed as well by any one of his legally
constituted general deputies as by the high sheriff himself. ^
§ 1023. The rule in this respect is believed to be the same,
Avhether the levy and sale is of real or of persoiial property.
Therefore the reader is referred for a fuller discussion of the
subject, to Chapters XVI and XVII of this work.
§ 1024, But we may add here, that neither the principal
officer, nor liis deputy, can execute the writ, or sell, when it
is in favor of the officer as execution plaintiff, or when such
officer lias purchased, or otherwise become interested in the
proceeds thereoff, except for his fees.^ Neither can the deputy,
when in his favor or interest. In such cases the coroner must
act. 4
§ 1025. If the writ is not otherwise satisfied, and property
subject thereto be found and levied, then a sale becomes an
" Bac. Abt. 8, G89, GOO, 691 ; Wroe v. Harris, 3 Wash. (Va.) R. 120, 129.
' Wroc V. Harris, 2 Wash. (Va.) 120, 129, 130 ; Tillotsoii v. Chcctliam, 2
Johns. G3; 8 Bac. Abt. 675, G7G.
» Chambers v. Thomas, 3 A. K. Marshall, 536, 537 ; Riuer v. Staccy, 8
Humph. 288, 407; May v. Walters, 3 McCord, 470.
' iSingletary v. Carter, 1 Bailey, 407; Chambers v. Thomas, 1 Litt. 268;
ami Chambers v. Thomas, 3 A. K. ^Marsh. 536.
(333)
33-i JUDICIAL A2CD EXECUTION SALES.
act necessarily itivolvecl in the execution of tlie Avrit; and it
follows that whoever may execute the writ may sell. Therefore
the principal sheriff, or any one of his legally constituted general
deputies, may in ordinary cases sell.^
§ 102G. But whether the sale be made by the one or the
other of them, a crier, or auctioneer may be employed to conduct
the sale, provided his acts be done in the presence and under
the direction of the ofhcer.^
§ 1027. If, however, the writ be especially directed to the
principal, or high sheriff himself, by his personal name, as well
as style of office, then he only, and no one else, can execute it.^
§ 102S. In Chamhers v. Thomas^^ the Supreme Court of
Kentucky say in reference to this subject: "The principal
eheriff is never allowed to execute his own process; and so
careful is the law in guarding the interest of the defendant in
such cases that not even the deputy is permitted to execute the
process; but it must go to the coroner, an officer not supposed
to be under the influence of the sheriff." The identical point
was previously adjudicated between the same parties and
decided the same way in 3 A. K. Marshall, by the Supreme
Court of Kentucky. 5
§ 1020. An execution in the hands of an officer when he
goes out of office, which is j^artly executed b}^ him, may be
completely executed afterwards. lie continues sheriff for that
purpose, and may carry out the work by him begun, by himself
or by his deputy, as if he were still in office. °
§ 1030. In the case cited from 3 Cowen, the court, Savage,
Justice, lay down the rule in these words: "lie is in office
quoad Jioc, and the acts of a deputy, in relation to such an
execution are the acts of the sheriff himself."^ Such, too, is
the doctrine even on a ca. sa. where the defendant is liolden in
' 8 Bac. Abt. GT5, •' Underslicriff," ib. G7G.
* See Ante, Ch. xvii.
= 8 Bac. Abt. "UndersbenfT," GTG; Wroc r. Harris, 2 Wash. (Va.) 12C,
129, 130.
* 1 Litt. 2G8.
^ Chambers v. Tliomas, 3 A. K. Marsh. 537.
* Jackson v. Collins, 3 Cow. 89.
' Jackson v. Collins, 3 Cow. 95.
TllK SALK. 660
cnstody by tlic old slicrifF, He may retain the custody of the
defendant and comijlctc the ^vork of executing the writ.^
11. IIoAv TO v.K Made.
§ 1031. The sale must he made at the time and place
appointed by the notice given thereof, unless it be adjourned;
and if made before the hour appointed it will be void in case
the ])ropcrty goes for less than its full value. -
§ 1032. The sale is to be made during the business hours
of the day. An execution sale, made out of business hours,
as for instance, after sun-set, is void, and the olhcer, by so
making it, becomes a trespasser. ^ If made before the day
appointed, it is, in Illinois, held to be void.''
§ 1033. In selling personal property, the property to be sold
must be present, so that it may be seen, handled and estimated,
and ready for delivery. ^
§ 1034. In the case of Ilcrod v. Bartley^^ Chief Justice
Treat, of the Illinois Supreme Court, lays down the law of this
subject in the following terms: "In the sale of personal prop-
erty on execution, the property itself must be present. "Bid-
ders should have an opportunity of inspecting the goods and
forming an estimate of their value. This is the only way to
secure fairness and competition at public sales. It is necessary
to protect the rights of both debtor and creditor. It should
also be in the power of the officer to deliver the property forth-
with to the purchaser."
§ 1035. If a sale be made of personal property which is
not present and capable of being inspected by the bidders, and
of being delivered by the officer to the purchaser, the sale,
' ITcmstcad «. Read, 20 Johns. G4; Jackson r. Collin-s, 3 Cow. 0.").
5 Williams v. Jones, 1 Busli. (Ky.) G21.
3 Carwick v. Myers, 14 Barb. (N. Y.) 0.
< Kin,!? t. Cushman, 41 111. 31.
« Ilerod V. Barllcy, 15 111. 58; Sheldon v. Sobo, 15 111. 352; Cresson v.
Stout, 17 111. IIG; Ainsworth v. Greenlee, 3 Murph. 470; Blanton v. ]\Iarrow,
7 Ired. 47.
« Herod r. Bartley, 15 111. 59.
u3G JUDICIAL A2^D EXECUTION SALES.
uccording to tlic case of Ilerod v. Bartley^ will be void. ^ Such,
too, it is believed, is tlie weiglit of authority.
§ 103G. The sale must be at public auction, to the highest
bidder, for the best price the property will briiig,^ and must
be for money; cash in hand.^ The officer may receive only
gold and silver legal coin, or whatever else is by law a legal
tender.-^ The rule in this respect is the same as on sales of real
estate on execution. ^
§1037. "As a matter of discretion,"*' the officer may
adjourn the sale to a different day, or place, or both; and if
there be no fraud in it or abuse of discretion, the sale will be
valid in that respect.'^
§ 1038. Nor will a postponement by the plaintiff's order
destroy his priority in favor of subsequent writs, if done in
good faith and from fair motives, and to a day not beyond the
return day of writ.s But otherwise, if to a day subsequent to
the return day, it is said.^
§ 1039. A sale on execution has been holden valid as
between the debtor, creditor, and officer when made without
notice, being so made by consent of parties. ^^^
§ 1010, J3ut the mere silence of the debtor, in standing by
and seeing his property illegally sold on execution will not
render such sale valid, and will not estop such debtor from
testing the validity thereof. ^^
' Ilerod T. Bartlcy, 15 111. 58.
■ 1 Bouvier, 581; Swoitzcll v. Martin, IG Iowa, 519,527.
' Noiz. Max. Cli. 42; Griffin v. Thompson, 2 How. 244; Saur v. Stcin-
baucr, 14 Wis. 70 ; IMumford v. Armstrong, 4 Cow. 553 ; Swopc v. Anderson,
5 lud 213; Mitchell v. Ilackctt, 14 Cal. G61; Bigley v. Risher, 03 Pcnu. St
152; Hilliard, Sales, 1230.
* Griffin v. Thompson. 2 How. 244.
' See Ante, Ch. xati. No. 2.
« Tinkiiam v. Purdy, 5 Johns. 345 ; Kussell v. Richards, 11 Maine 371.
' Tinliiiam v. Purdy, 5 Johns. 345; Russell v. Richards, 11 3Iaine 371;
Swortzell v. 3Iartin, 10 Iowa, 519; Phelps v. Conovcr, 25 111. 309; Payne v.
Bellinghiim, 10 Iowa, 300.
8 Lautz V. Worthington, 4 Barr. 153.
' Lautz «. "Wortliingtou, 4 Barr. 153.
"> 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. Ewin<?, 3 How. 707; Blair v. "Williams, 4 Litt._34; Lap-
sley V. Brashcars, 4 Litt. 47; Pool v. Young, 7 B. Mou. 587; McKiuney v.
Carroll, 5 Men. 98; Grayson v. Silly,7 Mon. 6; Smith v. Morse, 2 Cal. 524;
Hunt V. Gregg, 8 Blackf. 105 ; Coriel v. Ham, 4 G. Greene, 455 ; Burton v.
Emerson, 4 G. Greene, 393 ; Shaffer v. Bolandcr, 4 G. Greene, 201 ; Willard
V. Lonstrect, 2 Doug. (Mich.) 172 ; Quackeubush v. Danks, 1 Denio, 128 ;
Hosier v. Hale, 10 Iowa, 475.
- Hutchins v. Barrett, 19 Ind. 15; Doe v. Collins, 1 Carter (Ind.)24 ; Shaf-
fer ■;;. Bolandcr, 4 G. Greene, 201 ; Stor}^, Confl. of Laws, Sec. 55G.
=" 10 Iowa, 485.
THE SALE. 330
making of tliis order requires a judicial power equal to that
which originally entered the judgment. No less a power can
impart new life to it, when satisfied by the acts, valid for the
time being, of an officer having power so to do.^
§ 1040. Until such satisfaction be judicially vacated, and
execution anew be ordered, no subsequent execution can legally
issue on the judgment." It is well said that "an execution
executed is the end of the laAV."^
§ 1050. Payment of the money to the plaintiff satisfies the
WTit, by whomsoever the payment be made. The sheriff can-
not, of his own funds, pay off the creditor for the execution
in his hands, or otherwise satisfy him, and retain the writ and
its vitality to enforce the same against the defendant as the
means of indemnifj'ing himself. If he thus j)ay off the cred-
itor, both VTit and judgment are thereby satisfied, and are
functus officio.^ This, too, irrespective of the inability of the
officer to execute a writ for his own benefit. There remains,
after such payment, no vital writ to be executed by any one.
The vital force of both writ and judgment are, by the very act
of payment, extinct.
§ 1051. The purchaser has a right to what he gets, and to
nothing more. Caveat emptor is the rule. lie takes only
the interest of the defendant. If the defendant has no inter-
est, then the buyer gets nothing; and he cannot avoid payment
by showing that the goods belonged to some one else.^ But
if an innocent purchaser, he may have redress in equity against
the execution debtor vi'hose debt he has paid.^^
§ 1052. By a sale of personal j^roperty on an execution
against one of two common o'ui.iers, the j)urchaser takes only
the interest therein of the defendant in the writ. lie becomes
the tenant in common with the other owner. This, too,
' Hughes t\ Strectcr, 'l^ HI. G47, G49.
* Ibid.
^ 3 Bac. Abt. 087.
^ Sherman ». Boyce, 15 Johns. 44G ; Reed v. Prnyn, 7 Johns. 426.
5 Griffith V. Fowler, 18 Vt. 390; Popleston v. Skinner, 4 Dev. & Batt. 160;
McGec «. Ellis, 4 Litt. 244; Austin t\ Tildcn, 14 Vt. 325.
« IMcGec 1). Ellis, 4 Litt. 244.
3J:0 JUDICLVL AKD EXECUTION SALES.
altliougli tlie officer assumes to sell tlie whole, i Tlicreforc tlic
common owner whose rights are not affected by the sale, can-
not maintain an action in reference to the transaction against
the purchaser or tlie officer who sells. ^
§ 1053. But if after levy and before sale the execution
defendant buys the interest of the other tenant in common in
the property levied, then the officer, without further levy or
notice, may sell the whole interest and entire property. ^
§ 1054. If after levy on lands, they be sowed in grain by
the debtor, before execution sale, and then another execution
be levied on the growing grain, and the same be sold thereon,
the latter writ will be entitled to preference in the proceeds
of the grain.'*
§ 1055. A distinction is taken between a sale of the prop-
erty itself and of the mere interest of the debtor therein. In
the former case the purchaser takes the property with its legal
incidents, whilst in the latter he takes only the interest which
tlie debtor, as such, has and may himself enforce. ^
§ 105G. To a j)urchaser of growing grain, at execution sale,
on execution against the owner, the right to enter and take
away the grain, or to secure, harvest and preserve it, passes
with the property to tlie purchaser; neither the purchaser nor
officer will be liable to an action for acts necessary and proper
to be done by them in regard to it.^ But in an action there-
for it is not sufficient that they justify under execution sale;
but the plea must show the execution to have been against the
owner of the property levied and sold. A mere allegation
of purchase on execution sale, generally, will not amount to a
defense.''
' Poplcston v. Skinner, 4 Dcv. & Batt. IGO.
"^ Fiero v. Betts, 2 Barb. G33 ; Wilson v. Reed, 8 Johns. 175 ; White v.
Osborn, 21 Wend. 75.
' Birdseyc v. Ray, 4 Hill, 158.
" Stambaugh v. Yates, 2 Rawlc, IGl.
' True V. Congdon, 44 N. II. 48.
« Terrill v. Thompson, 3 Bibb, 273.
' Ibid.
THE SALE. 3-il
TV. Void and Yoidable Sales. •
§ 1057. Execution sales of personal property, as is the case
in similar sales of real property, made on executions that are
satisfied, or that issued on satisfied judgments, are universally
regarded as void when the purchaser buys or pays with kno\vl-
cdge of such satisfaction. ^
§ 105S. And whether the purchaser has such knowledge or
not, the better authority is that the sale being on a power that
is exhausted, the sale is void. It is no better than a sale upon
a void judgment. It cannot, under the usual circumstances,
be sustained. 2 But if the execution debtor, with knowledge
of such satisfaction, silently stand by and sutler others to pur-
chase, or do acts calculated to mislead a buyer in making such
purchase, it is a fraud on his part, and he is estopped to deny
the validity of the sale.^
§ 1059. A sale fraudulent in itself, though made under color
of execution, is of no validity, and, therefore, where the process
of the court is prostituted to the fraudulent purpose of hinder-
ing and delaying other creditors, under semblance of a real sale.
the transaction will be treated as fraudulent and void.*
§ 1000. In Louisiana, debts due to an execution debtor are
subject to levy and sale, but are required to be appraised, before
sale, at cash value, and to be sold for not less than two-thirds
of such value. It is holden in that state, that a sale of such
interest, on execution, without appraisement, though in other
respects regular, is void.^'
Y. Wno ^L\.Y NOT Buy.
§ lOCl. Tlie same person may not both buy and sell, by
1 .Tackson v. Anderson, 4 Wond. 474 ; Nielsou v. Nielson, 5 Barb. 565.
- Nielson v. Neilson, 5 Barb. 5G5 ; Jackson v. Anderson, 4 Wend. 474, 479 ;
Childs V. Bernard's Ex'rs, 3 Dana, 95, 96; Monchat v. Brown, 3 Rich. 117;
Lavellc v. Rowley, 17 Ind. 36; State v. Salers, 19 Ind. 432; Sherman v.
Boyce, 15 Johns. 443 • Jackson v. Caldwell, 1 Cow. 622 ; Ilammit «. Wymau,
9 Mass. 138; Lewis v. Palmer, 6 Wend. 368.
» Wood V. Colvin, 2 Hill, 55G; Jackson v. Caldwell, 1 Cow. 622.
^ Stephens v. Barnett, 7 Dana, 259; Corlies v. Standbridge 5 Rawle, 286;
Yoder v. Standiford, 7 Mon. 485.
5 Collier v. Stanbrough, 6 How. 14.
6-±'J JUDICIAL AND EXECUTION SALES.
mere force of. the process. Kor will liis return thereof on tlie
■writ show such title in him as will be res^arded even as airainst
a trespasser.^
§ 1062, In tlie case here cited from Yermont, the title to
certain cattle was involved. The sheriif claimed to own them
1)V purchase at an execution sale made bj himself. Though
the levy vested a special proj^erty in the sheriff, yet the levy
had become merged in the sale. So he had no longer a claim
under it. Thus, the sole question, say the court, was " whether
an officer acting under legal process can sell property to him-
self" They say that, " According to all the authorities, such
an officer, in addition to liis character as a minister of the lavr,
is reiirarded as a sort of trustee and accent both of the creditor
and debtor. The two characters place him on higher and more
responsible ground than a mere private trustee or agent. And
if the latter is not permitted to acquire a personal interest in
the matter of his agency, much less should such indulgence be
granted to the former." In the same case the court lay dovni
the rule that even if the purchase be made by consent of plain-
tiff and defendant in the writ, that though it might then, as
between the officer himself and the parties, be valid, yet it
would amount to no more than a purchase from the defendant
himself, yet it would in nowise partake of the sanctity of an
execution sale.
§ lOGo. But if the writ of execution be directed to his prin-
cipal, and the sale be made by him, and the deputy be the
execution creditor, then such deputy, it is believed, may right-
fully purchase at the sale of his principal if it be fairly made.-
And such, too, is believed to be the rule, whether the sale be of
])ersonalty or of realty. It is equally the interest of debtor
and creditor tliat the execution creditor shall, in such case, be
allowed to bid. It is very different from a case in which the
]jrincipal sheriff is plaintiff and his deputy sells. In this case
the court say, in reference to the act of assembly which j)ro-
' Woodbury r. Parker, 19 Vt. oo:^ ; sec also MiUs v. Goodsell, 5 Conn. 475 ;
Pierce V. Benjamin, 14 Pick. -350 ; Perkins v. Thompson, 3 N. H. 144 ; Moor
land v. Kimberlin, G B. Mon. G08.
' Jackson v. Collins, 3 Cow. 89.
</
THE SALK. 343
liibits a sheriff from buying at execution sales: " It could never
have been the intention of the legislature to have prevented a
dej^utj sheriff, when plaintiff in an execution sale, from bid-
ding, in order to secure his money. The object was to prevent
abuse." 1
§ 1005. In Massachusetts it is held that a sale made under
an appraisement law, where a brother of the execution creditor
was one of the appraisers, is illegal, and moreover, that thereby
the officer selling becomes a trespasser. ^
YI. WuEX THE Officer may Ile-sell.
§ 1000. If the terms of sale are not promptly complied
with by the purchaser by payment of the purchase money,
the officer may sell again without further notice, at the same
time and place. ^ But not within the time allowed, if any, by
terms of sale, for payment to be made.'*
S 100 T. All such sales are for cash, and ouo-ht to be for
cash in hand; if the purchaser do not comply, it is adjudged
in some cases that he may be compelled to make good the
deficiency in price, if any, on the re-salc of the property. ^
' Ibid.
■^ McCongh V. Wellington, G Allen (Mass.) 505.
3 Illingworth t. Miltenberger, 11 Mo. 81; Winslow c. Loring,7 Mass. 392;
Ilaynes v. Breaux, IG La. An. 142; Saur «. Stienbaiier, 14 Wis. 7; Gaskill
r. Morris, 7 Watts & Sergt. o2 ; Bigley v. Risher, 63 Penu. St. 152.
* Conway v. Noltec, 11 Mo. 74.
5 Lamkin v. Crawford, 8 Ala. 153 ; Minter v. Dent, 2 Bailey, 291.
CHAPTEE XXIY.
EXECUTION SALES OF CORPORATE FRANCniSES, mOPERTY
AND STOCKS.
I. At Common Laav.
II. By Statute.
III. Effect op Sale.
I. At Common Laav.
§ IOCS. The Supreme Court of the United States, recog-
nizing the rule that corj)orate franeliises, being incorporeal
hereditaments, cannot, upon the settled principles of the com-
mon law, be seized and sold on execution, declare that if they
can be sold, in any of the states, " it must be under statutory
provision." Such, too, is the current of authorities. ^
§ 1069. Nor can the lands, easements, or works appurten-
ant to, or essential to the use and practical operation of the
franchise be levied and sold on execution at law, separate from
the franchise, so as to impair its value or impede its use.-
Neither are the tolls or product of the franchise subject to
such levy and sale, so as to prevent the company from demand-
ii]g and receiving the same, or so as to divest it of its right of
ownershij^ and possession. ^
' Giio V. Tide AVutcr Can.il Co. 24 How. 363; James v. Pontiac Plank-
road Co. 8 Mich. 91; Coe v. Columbus & C. R. R. Co. 10 Ohio St. 372:
Scymore «. Milf. & Chil. Turnpike Co. 10 Ohio, 47G, 480; Stewart ». Jones,
40 Mo. 140; Youugman v. Elmira & W. R.R. Co.G5 Peun. St. 278; Western
Pcnn. R. R. Co. v. Johnson, 59 Peun. St. 290; Atkinson v. M.& C.R. R. Co.
15 Ohio, 21; Canal Co. v. Bonham, 9 Watts & Sergt. 27, 28; Wood v. Turn-
pike Co. 24 Cal. 474; Monroe i;. Thomas, 5 Cal. 470; Thomas B.Armstrong,
7 Cal. 28G.
* Gue V. Tide Water Canal Co. 24 How. 257; Amant v. New Alexandria
& Pittslmrg Turnpike Co. 13 S. & R. 212; Susquehanna Canal Co. v. Bon-
ham, 9 Watts & Sergt. 27; Plymouth R. R. Co. v. Caldwell, 39 Penn. St.
337; Coc v. Columbus R. R. Co. 10 Ohio St. 372; Young v. Alexandia &
Western R. R. Co. G5 Penn. St. 278.
^ Gue V. Tide Water Canal Co. 24 How. 2G3; Leedon v. Plymouth R. R.
Co. 5 W. & S. 2G5 ; Scymore v. Milf. & Chil. Turnpike Co. 10 Ohio, 479. In
(344)
SALES OF FK.VJv'CrilSES, I'KOrERTY AKD STOCKS. 3-15
§ 1070, A railroad, if subject to execution sale at all, can-
not be cut lip into parcels and sold at different sales, in the
different conn ties in wliich it is situate; it would defeat tlie
2)urposes of the law in reference to the road.^ Kor can the
the case cited from 24 IIow. a. fieri facias issued to the U. S. Marshal for
the district of Maryland, who "seized and advertised for sale a house and
lot, sundry canal locks, a wharf, and sundry other lots," wliicli belonged
to the defendant, the Tide Water Canal Company, in fee. The company
obtained an injunction against the sale, and the same was made perpetual
in the Circuit Court of the United States for said Maryland district. From
the decree perpetuating the injunction the case was appealed by Gue to
the United States Supreme Court. There the decree was afBrmed. We
insert here the following extract from the opinion of the United States
Supreme Court: " Now it is very clear that the franchise or right to take
toll, on boats going through the canal, would not pass to the purchaser
under this execution. The franchise, being an incorporeal hereditament,
cannot, upon the settled principles of the common law, be seized under a
fieri facias. If it can be done in any of the states, it must be under a
statutory provision of the state; and there is no statute of Maryland
changing the common law in this respect. Indeed, the marshal's return
and the agreement of the parties show it was not seized, and consequently,
if the sale had taken place, the result would have been to destroy utterly
the value of the property owned by the company, while the creditor him-
self Avould, most probably, realize scarcely anything from the useless
canal locks and lots adjoining them. The record and proceedings before
us show that there were other creditors of the corporation to a large
amount, some of whom loaned money to carry on the enterprise. And it
Avould be against the principles of equity to allow a single creditor to
destroy a fund to which other creditors had a right to look for payment,
and equally against the principles of equity to permit him to destroy tlie
value of the property of the stockholders by dissevering from the fran-
chise property wliich was essential to its useful existence. In this vicAv
of the subject, the court do not deem it proper to express anj^ opinion as
to the right of this creditor in some other form of judicial proceeding to
compel the sale of the whole property of the corporation, including the
franchise, for the payment of his debt. * * * * If the
appellant has a right to enforce the sale of the whole property, including
the franchise, his remedy is in a court of chancery, where the rights and
priorities of all the creditors may be considered and protected, and tlic
property of the corporation disposed of to the best advantage for the
benefit of all concerned. A court of common law, from the nature of its
jurisdiction and modes of proceeding, is incapable of accomplishing this
object; and the court was right in granting the injunction, and- its decree
is therefore affirmed." Gue -y. Tide Water Canal Co. 24 How. 203, 2G4.
1 Macon & West. R. R. Co. v. Parker, 9 Geo. 377
346 JUDICIAL AND EXECUTION SALI'IS.
turn-tables of tlie road, or freight-cars found on the road, or on
the side-tracks thereof, be levied and. sold on execution at law
ao-ainst a railroad company; they are a part of the realty, are
incident to the franchise, and cannot be thus severed and sold.^
So, likewise, stocks or shares in corporate companies may not,
except by statute, be taken on execution and sold at law.- But
in New Hampshire it has been holden that locomotive engines,
passenger-cars and freight-cars of a railroad corporation are
liable to attachment and execution sale when not in actual use."*
§ 1071. In Pennsylvania it is held that the right of way
and road bed of a raih'oad corporation, assessed to the company
" as a right of way or passage, with such occupancy as is neces-
sary to give this right effect," being a mere easement, is not
the subject of execution sale. The court say: "This being
the nature of the interest acquired by a railroad company in
land appropriated for the use of its railroad, a mere easement
or right of passage for a public purpose, it is a settled principle
in our law that this interest is not the subject of a lien or sale
under execution." *
§ 1072. In California it is held that a sale of the road of a
corporate company on execution at law passes no title to the
franchise, or to the road. In Wood v. Turnpike Oo.,^ the court
say, Shafter, Justice: " The plaintiff" acquired nothing by the
purchase of the 'road' to which the action of ejectment has
any remedial relations."
' TitAis 1). Mabee, 25 111. 257; Scymore v. Milf. & Cliil. Turnpike Co. 10
Ohio, 47G, 480; Hunt v. Bullock, 23 111. 320; Palmer «. Forbs, 23 111. 302.
In Seymorc «. The Milford and Chillicothe Turnpike Co. the Supreme
Court of Ohio hold the following language: "There can be no doubt that
tlie right of taking toll upon a turnpike road is a franchise, and is not at
common law, nor by our law regulating judgments and executions, the
proper subject upon which to levy an execution."
- James v. Plank-road Co. 8 Mich. 91 ; Titcomb v. Ins. Co. 8 Mass. 32G ;
Taylor v. Junkins, G Jones' Law (N. C.) 31G.
» Boston, Concord & Montreal R. R. Co. i\ Gilmore, 37 N. IT. 410.
* Western Penu. R. R. Co. v. Johnson, 59 Pcnn. St. 290, 294; Armant c.
Turnpike R. Co. 13 S. & R. 210; Ridge Turnpike Co. v. Stover, 2 ^y. & S.
r)i8; Leedom v. Plymouth R. R. Co. 5 ib. 2G5; Susquehanna Canal Co. v.
Bonham, 9 ib. 27.
'• 24 Cal. 474, 478.
SALES OF rilANCniSES, rROl'ERlT AXC STOCI^. 3-i7
II. ]]y Statute.
§ 1073. As authority to make such sales on executions at
law can exist only by ex])ress statute, it follows that they can
only be made in such manner as the statute prescribes. ^ There
must be a substaiitial con:*brmity to the statutory method of
sale, otherwise no r!i;ht will pass by the sale. Where the sale
by the statute should Jiave been to the one who for the shortest
period of user would pay the debt and costs, and it was juade
for an absolute term, for ])art only of the debt and costs, the
sale was liolden to be void.^ Nor will the mere acquiescence
of the stockholders, or taking possession by the purchaser,
give validity to the sale.-''
§ 1074. In Davis v. Maynard^ it is lield that such con-
formity must be shown by tlie purchaser in case of litigation
involving the validity of the sale; that sucli showing should
be by the officer's return embodying the evidences of the
required conformity; and that, therefore, without a return of
the officer the purchaser takes nothing.*
§ 1075. Selling on diiferent notice than that required by
the statute, will (for instance) render the sale void.^
' Gue V. Tide "VYatcr Canal Co. 24 IIow. 257 ; James «. Plank-road Co. 8
3Iicli. 91; Titcomb v. Ins. Co. 8 Mass. 32G; Taylor r. Jenkins, G Jones,
Law (N. C.) 31G; Scymore v. Milf. & Chil. Turnpike Co. 5 Ohio, 47G; IIow
T. Starkweather, 17 Mass. 240 ; Davis 'o. Maynard, 9 Mass. 242 ; Stanford
Bank i\ Ferries, 17 Conn. 2.')9.
- James ij. Plank-road Co. 8 Mich. 91 ; Taylor v. Jenkins, 6 Jones' Law,
(]Sr. C.) 316. There is this distinction in that respect between ordinary
execution sales of personal property. There the levy is accompanied with
tangible possession. It vest a special property in the officer, and the title
])asses to the purchaser, with delivery of the property by the officer,
Avhether the sale be regular or not. But in sales of shares in an incor-
porated compan}', the interest being intangible and incapable of deliver}-,
the title must pass by legal transfer, else not at all. Hence if the sale be
not in accordance with tlie substantial requirements of the statute it will
be inoperative and will not confer title on the purchaser. (Titcomb r.
Union Ins. Co. 8 Mass. 32G; How v. Starkweather, 17 Mass. 240.)
^ James v. Plank-road Co. 8 Mieh. 91.
^ 9 Mass. 242; Ilammilt r. Wyman, 9 Mass. 138; IIow t-. Starkweather,
17 Mass. 240.
• How V. StarkweatluT, 17 ^ilasr-. 240; Titcomb v. Ins. Co. 8 Mass. 326.
3iS JUDICI^VL AND EXECUTION SALES.
§ 1076. A sale and transfer of bank stock to tlic bank by a
stockholder, after imperfect le\"y of a writ of attacliment
tliereon, and before levy of execution in tlie attachment pro-
ceedings, carries title to the stock as against an execution sale
in the proceedings by attachment. ^
§ 1077. The modern tendency is, in the absence of statutory
declaration on the subject, to regard stocks or shares of incor-
porated companies as a personal interest, even where the tangi-
ble effects or property of the company is real property. ^
§ 1078. They are not strictly chattels, but a mere interest
of a personal nature, and the certificates are but the evidence
of such interest, and are of no value in themselves other tlian
as the best proof of ownersliijD of the interest which they
represent. 3
§ 1079. The current authority is that such interest is not
liable to levy and sale on execution at common law, as we have
herein before seen;^ but are only so by statute.^
§ 1080. When thus liable a sale thereof on execution at law
emanating in attachment proceedings, fairly made to a Ijona
fide purchaser, will override a sale and transfer of certificates
' Stamford Bank v. Ferries, 17 Conn. 259.
- Redfield, Railways, 38; Gilpin v. Howell, 5 Pcnn. St. 57; Angel &
Ames, Corps. Sees. 557, 558, 559 ; Tippett xi. Walker, 4 IMass. 595 ; Johns v.
Jolins, 1 Ohio St. 350; Arnold v. Ruggles, 1 R. I. 165; How v. Stark-
weather, 17 Mass. 243; Denton -y. Livingston, 9 Johns. 100; Planters' Bank
V. j\Ierchants' Bank, 4 Ala. (N. S.) 753 ; The State «. The Franklin Bank,
10 Ohio, 91. But otherwise, if the property be land and is vested, not in
tlie corporation, but in the individual shareholders. Augell & Ames,
Corps. Sec. 559.
^ Angell & Ames, Corps. Sees. 5G0, 5G1; Agricultural Bank r. Burr, 11
Shcp. 256; The Same v. Wilson, 11 Shcp. 273.
* Gue «. Tide Water Canal Co. 24 How. 257, and ante, No. 1 of this chap,
ter; Evans «. Monett, 4 Jones' Eq. (N". C.) 227; Ross «. Ross, 25 Geo. 297;
Angell & Ames, Corps. 558, 559 ; James «. Pontiac Plank-road Co. 8 Mich.
91; Coe V. Columbus & C. R. R. Co. 10 Ohio (N. S.) 372; Western Penn.
R. R. Co.'u. Johnson, 59 Penn. St. 290; Stewart «. Jones, 40 Mo. 140.
* Angell V. Ames, Corps. Sees. 588, 589 ; Foster v. Potter, 37 Mo. 525 ; Gue
f. Tide Water Canal Co. 4 How. 257; Weaver ». Huntingdon, etc., R. R.
Co. 50 Penn. St. 314; How v. Starkweather, 17 Mass. 240; Denny o. Hamil-
ton, 16 Mass. 402; Planters' Bank v. Leavens, 4 Ala. fX. S.) 753.
S.ILES OF FEANCIIISES, rKOrEKTY AND STOCKS. 349
prcviouslj made in good faitli, if no notice be given to tlic
corporation of sucli sale.^
§ lOSl. A state, or mnnicipal government, or corporation,
by becoming a stockliojder in a business corporation descends
to tlie level of individual stockliolders of the same company;
can claim no riglits and no exemptions but those which private
stockholders may claim."
§ 10S2. As a sequence from this it would seem to follow
that if shares of ordinary or private stockholders are by law
liable to execution sale, so are those of the state or municipal
corporation, except that so far as relates to the shares of a
sovereign state, it not being liable to suit there can be no writ
of execution against it.
§ 10S3. But what property or interests a municipal corpora-
tion may buy it may also sell, miless there be a restraining
clause in the charter or the law to the contrary ;3 and it is well
settled that what an owner may sell himself, may be sold on
execution, if there be no law to the contrary.*
§ lOSi. ^Vlien shares of stock are levied on by more than
one execution and sold nnder the senior levy, the surplus funds,
if any, must be paid over on the junior levy.^
§ 10S5. A requirement of the act of incorporation, Avlicrc
the incorporation is by act of assembly, defining the manner
of executing and selling stocks or shares, supercedes in tliat
resj^ect the general law of anterior date as to execution sales,
and must be conformed to."
§ 10S6. Where the officers of a turnpike company procured
shares in the company sold on execution to be bought in for
the company, and then approj)riated a part thereof to them-
'Blanchard v. Dedliam, 12 Gray (Mass.) 213; Naglce ®. Pacific Wharf
Co. 20 Cal. 529; Littell v. Scranton, 42 Peun. St. 500; Weaver v. Hunting-
don, etc., R. R. Co. 50 Penn. St. 314.
- Bank U. S. v. Planters' Banlc, 9 Wheat. 904.
' Xew Ark Town Council v. Elliott. 5 Ohio St. 113, 121.
^ Combs V. Jordan, 3 Bland Ch. 39, 42; The Carpenter's Case, ib. G40.
^ Denny i\ Hamilton, IG Mass. 402.
' Titcomb v. Union Ins. Co. 8 Mass. 32G.
350 JUDICIAL AND EXECtrnON SALES.
selves, it was liolden that suit therefor lay against them Ly ?-
sliareliolder for his damages J
§ lOST. An execution purchaser of liypothecated stocks,
knowing them to be such, takes subject to tlie right of tlic
pledgee. 3 But the contrary is the ruling if bought in good
taith and witliout notice.^
§ loss. If a company, by its by-laws, have a lien on the
stock of its stockholders, an execution purchaser with notice
thereof will be postponed in favor of the company. ^
§ 1089. A purchaser of mortgaged stocks at execution sale
takes subject to the mortgage, but is entitled to the surplus
proceeds of tlie mortgage sale, if any.^
§ 1090. The court lay down the rule in Weaver v. The
Huntingdon, etc., Railroad Gom/pany, that railroad stocks, in
Pennsylvania, standing on the books in the name of the real
owner, are liable to levy and sale on execution against such
o^^lcr; but bank stocks, in the same state, being ordinarily
by law of the state subject to liens for any indebtedness of
the stockholder to the bank, should be levied by attachment
])roccedings and garnishee, in which the precise interest of
the del)tor is necessarily ascertained, whereby useless expenses
and litigation may be avoided in case the stock be so subject
to prior lien that no interest would pass by sale."^
' Kinnnel v. Stoves, 18 Peun. St. 15.").
2 Western v. Bear River & Auburn Co. 5 Cal. 186 ; Tuttic v. Walton, 1
Geo. 43; West Branch R. R. Co. v. Armstrons?, 40 Penn. St. 278.
'■" New York & New Haven R. R. Co. v. Schuyler, 38 Barb. 534.
* Tuttle V. Walton. 1 Geo. 43; West Brancli R. R. Co. «. Armstrong, 40
Penn. St. 278; Mechanics' Bank v. Merchants' Bank, 45 Mo. 51S ; Perpetual
Ins. Co. V. Goodfellow, 9 Mo. 149.
'' Foster v. Potter, 37 Mo. 525.
6 Weaver v. Huntingdon, etc., R. R. & Canal Co. 50 Penn. St. 14. In this
case the court say: " If the defendant, therefore, held the stock in liis
own name, the phiintiff may proceed by^. fa. and sale under the act of
1819, or by an attachment under the act of 1836. There is a reason wliy
the attachment is an appropriate proceeding under the act of 1836, not
noticed by the judge wliose opinion was adopted in Lex v. Patten. There
are cases where the stock is hekl by the party in his own name, and where
there is no owner to make claim, but where it is subject to a cliargc or
lien upon the title. This is tlie case in all bank stocks under the laws of
this state, the stocks being liable to a lien in favor of the bank for debts
SALES OF FKANCIIISES, mOrEKTY A2sl) STOCKS. 351
§ 1091. A description of tlic shares, on execution sale, by
tlieir numbers, is sufficient, in connection witli tlie owner's
name,i and the actual possession, or surrender of the certifi-
cates, is not necessary as regards the validity of sale or trans-
fer. ^ The certificates are but the evidence of title, as Ave have
seen in the first part of the present chapter.
§ 1092. In Alabama stocks are subject to execution sale by
attachment and proceedings in equity, under the statute. ^
III. ErniCT OF Sale.
§ 1093. Under the statute, in Massachusetts, the execution
sale of a corporate franchise does not confer corporate capacity
on the purchaser; it confers or passes " the franchise with all
the rights and privileges thereof, so far as relates to the recei\'-
ing of toll," and nothing more. The corporate capacity of
the company still continues as if no sale w^ere made.*
§ 1094. After such sale, proceedings for forfeiture of the
charter, on the part of the state, are against the corporation
and not against the purchaser; he is not even necessary as a
party. ^
§ 1095. Though ordinarily the sherifi''s return of execution
sale is not indispensable to the validity thereof, yet where a
sale of stocks is made on execution for merely a nominal con-
sideration, when compared with their real value, and there is
no return of such sale showing advertisement or other parti-
culars thereof, or of the sale itself, it will be set aside on
motion of the party in interest. More especially so when
other circumstances exist unfavorable to the fairness of the
sale. ''
due to it by the stockholder. In such cases it is important to tlie rights
of the parties and to save litigation that the proceedings by attachment
should be resorted to, and the precise extent and character of the claim
of the corporation ascertained before final execution."
^ Stamford Bank v. Ferries, 17 Conn. 259.
- New York & New Haven R. R. Co. v. Schuyler, 38 Barb. 534.
' Bank of St. Mary v. St. Jchn, 25 Ala. 5GG
■• Commonwealth v. Tenth Mass. Turnpike Co. 5 Cush. 509.
s Ibid.
» State Bank of Missouri v. Tutt, 44 Mo. 2G7.
352 .TUniCIAL AXD EXECUTION SALES.
§ 109u. In tlie case cited from 44 Missouri the Supreme
Court of that state say : " The chief ground relied on is tlie
i]-reguLarity of the sale— that it was made without advertise-
ment, or notice, according to law;" that there was evidence
" tending to show some management to get possession of the
bank stock at less than its value;" that stocks wortli eighty
cents sold for twelve cents ; and the only evidence of sale " is a
mere inference of a memorandum or calculation of what was
made by some sale."
PART SIXTH.
EXEMPTION TROU SALE. — APPLICATIOK OF
PROCEEDS.
CHAPTER XXY.
EXEMPTION FROM SALE.
I. The Policy of the Law.
LL Its Legal Effect.
III. "Waivek Thereof.
I. The Policy of the Law.
§ 1097. It is tlic humane policy of tlic law in most, if not
<all the states, to exempt certain property, real and personal,
from execution sale.
§ lOOS. Tliis policy is the result of a duty due both to the
citizen and to the state, as the prosperity of the latter is
dependant on the security and prosperity of the people. More-
over, it is regarded as a protection due to the unfortunate and
to the helpless. 1 It rests on those same principles of benevo-
ledce which prohibit imprisonment for debt, and of selling
one's self into slavery. The princi]3les of humanity, and the
v.'elfare of the state.
§ 1090. The exemption is the same whether the liability
be contracted in the state or out of the state where the judg-
ment is taken. The law of the former, or tribunal where the
judgment is rendered as it existed at the date of the contract
or act of liability governs the case.-
' Woodward v. Murry, 18 Johns. 400 ; Kncctlcs v. Ncwcomb, 23 N. Y.
249 ; !Mepcr v. Moyer, 22 Iowa, o59.
'^ Laing i\ Cunningham, 17 Iowa, 510; Newell v. Ilaydcn, S Iowa, 140;
Ildfenslicn r. Cave, 3 Iowa, 287.
2.1 (353)
354: JUDICIAL AN'D EXECUTION SALES.
II. Its Legal Efeect.
§ 1100. The law in force at tlie date of tlic contract governs
the rights of the parties in controversies arising nndcr tlie
liomestead exemption. And tliongh the Law he thereafter
modified or repealed, still it remains as a constitnent part of the
contract, and such repeal will not repair the rights acquired
whilst the law was in force.
§ 1101. In Brodgman v. Wilcut,'^ Gri:exe, Justice, the rule
is laid down in the following language by the Supreme Court
of Iowa: "The homestead law in force at the date of the con-
tract, having been a part of it, the superceding of that law bv
the substitution of the new law in the code, cannot deprive
the debtor and his family of the homestead rights; nor could
the repeal of the homestead law weaken or impair the contracts
made, or divest rights acquired while the law was in force.
The debtor's right to the homestead was acquired under the
law of 1819, and his liomestead established while that law was
in force, and his petition presents a2:)rimafacie case, showing
his right to the premises as exempt from forced sale under the
law."
§ 1102. And so, upon repeal of a homestead law, or modi-
fication thereof, a saving clause in the repealing act, saves to
debtors all rights of homestead which had accrued under the
law thus repealed, irrespective of the question above referred
to as to whether, without such saving clause, a repeal of the
law may impair, or take away the rights of homestead, and the
effect of contracts originating whilst the law was in force.^ In
the case cited from 3 Iowa, the court hold that such saving
clause as effectually protects tJie homestead from execution
sale fis would the law if no repealing act had passed.
§ 1103. In the same case the court rule, substantially, that
as the exemption right is purely statutory, the debtor, to avail
liimself thereof, must show the pcrform:iiu'o of all things on
14G. Grccue, 503, r>Q(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, 0 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 bearin<? on this. Butcher i\ Drew, 39 111. 40, and
Warren v. Icarian Community, IG 111. 114, involving wrongful distribution
l)y the sheriff without intervention of the court. The injured party may
sue those olAaining tlic advantage, but the shcrilF cannot.
(370)
ArPLICATION OF TIIK I'ROCEEDS. 371
proceeds as would liavc inured to sudi outside 2:>arty 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."
§ llG<j. An execution for the purchase money of property
sold on it, takes precedence over a mechanic's lien of subse-
quent origin to the original purchase of the property by the
mechanic's lien debtor. ^
§ 1107. In Illinois, in case of several mechanic's liens of
equal priority, as to date of jadgmeut, the proceeds of sale are
equally distributed between tliem.^ And so, in that state, in
reference to satisfaction of several writs of attachment against
the same defendant, the proceeds are to be ap2:)lied 2wo rata
on the judgments.^ In distribiiting the proceeds of sales in
admiralty cases brought to enforce claims for supplies, or
material furnished the ships in foreign ports, the iJarty com-
mencing proceedings is entitled to priority of payment.^
§ 1108. An alias fieri facias^ although issued subsequently
to an original junior one, bears relation back to the date of the
original writ, of which it is the alias, and will take precedence,
in the same manner as would the original one which it follows;
it will therefore overreach original executions of junior date to
the original of the alias in the hands of the officer, in the
application of the proceeds of sale.''^
' Tiircand v. Gex, 31 La. 253.
"^ Bizzle V. Hardaway, 43 Ala. 471.
^ Sloner «. Neff, 50 Penn. St. 258; Occonncr v. Warner, 4 W. & S. 223.
The ruling to the contrary in Lyon v. McGuffey, 4 Barr. 12G, was in a case
where the vendor by his own laches, in not recording his judgment in
time, lost his preference. See, also, Stoner v. Nefi", 50 Penn. St. 258, 2G1,
where the court, referring to tlie case from 4 Barr. say the vendor's lien was
lost in that case "because the vendor let go his grasp upon the purchase
money by omitting to file his judgment for ten days after parting with
his title."
* Butcher v. Dew, 39 111. 40.
* Warner v. Icarian Community, IG 111. 114.
« The Globe, 2 Blatch. C. C. 427.
' Allen V. Plummer, G3 N. C. 307.
AITLICATIOM OF THE TKOCEEDS, 375
§ 11G9. In admiralty sales, next after the satisfection of
privileged lien debts, for that which enters into the life or
safety of the vessel, if there be of the irroceeds of sale rem-
nants remaining in court, mortgage debts M'ill be entitled to
satisfaction there out of, as against the owner or owners of the
vessel. In 1 Olcott, by B^ns, Justice: "As the mortgage
debts will absorbe the remnants in court, it is unnecessary to
consider the point discussed at the liearing, whether an
unprivileged debt, owing by the owner of a ship, in the Amer-
ican courts, can be satisfied by order of the court, out of rem-
nants in court, from the sale belonging to the owner: that is,
whether the court has an equitable authority to apply such
moneys to a general creditor of the general owner, contrary to
his desire and direction." °
' Remnants in Court, 1 Olcott, 382, 387.
INDEX OF CONTENTS
[THE REFERENCES ARE TO TUE SECTIONS.]
APPLICATION OF PROCEEDS, Ch. xxvi, 370-373.
proceeds to bo returned into court, 1141.
procedure to obtain distribution, 1142.
to correct distribution, 1142.
cfTcct of order of distribution, 1143.
a protection to tlie officer, 1143.
not against third parties, 1144.
priority of satisfaction, 1145.
ratable satisfaction, 114G, 1153.
as between U. S. marshall and slieriff, 1147.
acquiescence in, 1148.
judgments Avhen liens, 1149.
costs of officer, 1150.
defective senior judgment, 1151.
dormant, 1152.
decision of differences as to, 1154.
■where plaintiff is security, 1155.
omission to follow up judgment, 115G.
when kept up, 1157.
safer course, 115H.
teste of writ, 1159.
licir of deceased debtor, IIGO.
effect of indulgence, llGl.
conflict as to mechanic's lien and prior mortgage, Illinois rule, 11C2
Kansas rule as to unrecorded mortgage, 11G3.
Louisiana rule, 11G4.
Alabama rule, 1165.
execution for purchase money, 116G.
Illinois rule as to mechanic's liens, 11G7.
reference back of alias writ as to date, 11C8.
application in admiralty, 11G9.
AUCTIOXEER, may be employed, 88.
"DY BIDDIXG,"9G.
IITS INDEX.
CAVEAT EMPTOR, Ch. xi, 1G8, 169.
rule applies to all judicial sales of real propert}-, 459.
supreme court rule, 400, 4(51.
Iraud destroys application of rule, 4G2.
Pennsylvania rule as to, 403.
COLLATEILVL IMPEACHMENT, Ch. xii, 170-174.
I. When iMPEAcnAELE Collaterally, 170.
for want of jurisdiction, 4G3, 404.
from any cause sufficient to avoid the deed, 4Go.
II. When not Impeachable Collatekally, 170-174.
not void if jurisdiction attaches, 4GG.
errors and irre.<?ularities must be reached by direct proceeding iOG.
cfiect of jurisdiction, 407.
if jurisdiction affirmatively appears on face of proceedings, cirors
cannot be examined collaterally, 408.
sale of lands to pay debts cannot be avoided collaterally, 409.
nor legality of administrator's appointment questioned, 470, 471.
remedy is by direct proceeding in chancery, 472.
cfTcct of statutory enactments, 473.
COMMON LAW, liability of lands for payment of decedent's debts, 245.
CHANCERY SALES, nature of, 12, n. G.
CONFIRMATION, effect of, 2.
DECREE for sale in partition, what it should include, 343.
DEED, THE. IN Execution Sales, Ch. xviii, 201-288.
I. By wnoii to be Made, 201-204.
officer himself or deputy, 751.
special deputy cannot, 752.
successor of officer selling, 753, 700.
California rule, 753.
confirmation of, in court, 753.
deed of deputy, 754.
IMissonri rule as to acknowledgment before clerk, 755.
effect of, 75G.
form of deed, 757.
officer in official capacity, 758.
stateinents in, 759.
foundation of sale to be stated in, 701.
disposition of money, 702.
defective acknowledgment, 7C3.
assignee of purchaser, 7G3.
II. To whom to ee Made, 264-205.
purchaser or assigns, 704.
or legal heirs, or devisees, 704.
assignment of bid, 705.
of certificate of purchase, 7G5.
recital of, in deed, 760.
IKDEX. 370
DEED, THE — Continued.
assignment if defective, 7G7.
enforcement of right to deed ia equity, 767.
deed to tenants in common, 708.
III. WiiEK TO BE Made, 2G5, 266.
if no redemption by law, on payment of purchase money, 7G9.
wiicn there is redemption, 770.
deed before expiration of term of, 771.
in Tennessee, 772.
afU.'r confirmation Avhcn required by law, 773.
payu\cut by plaintiff when purchaser, 774.
delivery true date, 77.J.
actual receipt of purcliase money by officer, 770.
IV. AVhat Passes by It, 2G6-274.
land and covenants running Avith it, 777.
entire estate of execution debtor, 777.
eflect of redemption by, 777.
growing crops, 778.
in Indiana held to pass, 779.
contra, in Ohio, 779.
in Massachusetts pass when, 780.
lien of subsequent installments of judgment debt, 781.
Pennsylvania rule as to liens, 783, 784.
on mortgage sale carries mortgagor's equity of redemption v/iicn
78j, 789, 790.
relates back to date of judgment when, 780.
when purchaser is charged with notice, 787.
sale on senior judgment and junior levy, 788.
purchaser's remedy when debtor had no title, 791.
imperfect description of, 792.
as to fixtures on. land with right of removal, 790.
sale for balance of purcliase money, 794.
illustration, 795.
estoppel of lieu creditor by sale, 79G.
sale of equitable right of vendee by vendor holding legal title, 791
Iowa rule as to enforcement of vendor's rights, 798.
sale subject to vendor's lien, 799.
sale of interest of one tenant of entirety, 800, 801.
of easement, 803.
V. llTsciTAi-s OF Deed, 275, 270.
execution need not be recited, 803.
must be referred to, 803.
clFect of in evidence, 804, 80G, 807.
as to proof of notice, 805.
misrecital of name of party to judgment, 808.
VI. Its Rel.^.tion, 270, 277.
if judgment is a lieu, 809.
3S0 INDEX.
DEED, THE — Continued.
if not a lion, 810.
Illinois rule as to reccrclinj^ certificate of levy, 811.
relation to, 811.
YII. Priority, 277-283.
prior lien gives prior claim, 812, 813.
of the essence of the lien, 814.
ivlica plaintiff in execution is purchaser, 815.
Iowa statute as to unrecorded equities, 81G.
general rule as to, 817.
general cfTect of lien, 818.
l>Hrchase 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.
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