SEC. 32. Sales not at Public Auction.—Execution sales must be made at public auction. Probate and other judicial sales are generally controlled, in this respect, by the directions contained in the license or decree. Whenever by law, or by the direction in an order of sale, property is required to be sold at public auction, a private sale thereof is invalid.163 SEC. 33. Sales to Persons Disqualified from Purchasing. The policy of the law is not to permit the same person to represent conflicting interests. Hence, trustees, sheriffs, constables, administrators, executors, guardians, and all persons vested with authority to sell the property of others are themselves forbidden from becoming interested in the sale. A sale made in violation of this rule will always be vacated upon a motion made in due time.164 But the only question strictly within the scope of our present inquiry is the effect of such a sale when no action is taken for the purpose of setting it aside. If the sale and conveyance be made directly to the administrator, sheriff, or other officer, it may well be declared a nullity, on the ground that one person can not unite in himself the capacity of vendor and vendee—can not, by the same act, transmit and receive.165 But usually laws are sought to be evaded rather than openly violated. Hence, an administrator or sheriff desirous of becoming the owner of property about to be sold by himself, will seek the aid of a friend, in whose name the purchase can be made and the title held, for such time as will conceal the true nature of the transaction. In a case of this kind the officer can not be permitted to profit by the transaction at the expense and against the will of the

163 Hutchinson v. Cassidy, 46 Mo. 431; Ellet v. Paxson, 2 W. & S. 418; Fambro v. Gantt, 12 Ala. 298; Wier v. Davis, 4 Ala. 442; McArthur v. Carrie, 32 Ala. 75; Gaines v. De La Croix, 6 Wall. 719; Neal v. Patterson, 40 Ga. 363; Ashurst v. Ashurst, 13 Ala. 781; Worten v. Howard, 2 S. & M. 527; contra, Wynns v. Alexander, 2 D. & B. Eq. 58; Tynell v. Morris, 1 D. & B. Eq. 559.

164 Freeman on Executions, sec. 292.

165 Hamblin v. Warnecke, 31 Tex. 94; Boyd v. Blankman, 29 Cal. 34; Stapp v. Toler, 3 Bibb, 450; Dwight v. Blackmar, 2 Mich. 330.

parties interested. On learning the true state of the facts, they may have the sale annulled; or they may affirm it and permit it to stand. If they seek to annul it, they are entitled to succeed, irrespective of the fairness or unfairness of the sale, or the motives which prompted the administrator or other officer or trustee.166 But the sale is not void in the extreme sense. It can not be attacked and overthrown by third persons. Neither can the heirs or other parties in interest treat it as unqualifiedly void. They may confirm it either directly or by their non-action continued for a long period of time after having notice of the true nature of the transaction. Such, at least, is the opinion of the majority of the authorities.167 In some of the cases, however, such a sale appears to have been held void. 168 In New York it is made void by statute." 169 Sales made by sheriffs and constables, and in which they are interested, are, under the statutes in force in many of the States, held void.170

SEC. 34. Sales to Raise too Great a Sum.-In Kentucky, an execution or chancery sale to raise a sum greater than that authorized by the judgment or decree, is void. A like rule seems to apply to probate sales in Massachusetts." In the last named state, a sale for $953.30, under a license authorizing the sale of so much lands as would pay $640, was held to be a nullity.172

166 Riddle v. Roll, 24 Oh. St. 572; Anderson v. Green, 46 Geo. 361; Potter v. Smith, 36 Ind. 231; Smith v. Drake, 23 N. J. Eq. 302; Fronebergcr v. Lewis, 70 N. C. 456; Ryden v. Jones, 1 Hawks, 497; Miles v. Wheeler, 43 Ill. 123; Ives v. Ashley, 97 Mass. 198; Bailey v. Robinson, 1 Gratt. 4; Edmunds v. Crenshaw, 1 McCord's Ch. 252; Glass v. Greathouse, 20 Oh. 503; Guerrero v. Ballerino, 48 Cal. 118,

167 Litchfield v. Cudworth, 15 Pick. 23; Munn v. Burges, 70 Ill. 604; Boyd v. Blankman, 29 Cal. 19; Hicks v. Weems, 14 La. An. 629; Musselman v. Eshelman, 10 Pa. S. 394. See also the authorities in the preceding citation.

168 Hamblin v. Warnecke, 31 Tex. 94.

169 Terwilliger v. Brown, 44 N. Y. 237.

170 Freeman on Executions, sec. 292.

171 Patterson v. Carneal, 3 A. K. Marsh. 618; Blakey v. Abert, 1 Dana, 185; Hastings v. Johnson, 1 Nev. 613.

172 Litchfield v. Cudworth, 15 Pick. 23; Lockwood v. Sturtevant, & Conn. 373.

SEC. 35. Sales of Property not Subject to Sale.-It is always indispensable that the property sold should be subject to the license, decree or writ under which the sale is made. If an execution issues, it can reach the property of the defendant only. If the property of a stranger is seized and sold, his title is not divested thereby.17 If property of the defendant is sold, it must be subject to the execution levied upon it, or the proceeding will be entirely inoperative upon his title.174 Hence, an execution sale of a homestead is usually void; 175 and the same rule is often applied to other exempt property.176 If, under the statute of a state, the homestead of a decedent does not come within the control of its probate courts, an administrator's sale thereof, though ordered and confirmed by the court, is an idle proceeding.177 If, while acting under a valid decree or license, an administrator sells lands not embraced therein, his act is, as to such lands, obviously without any legal support.178

SEC. 36. Sales of Property in Adverse Possession.—The policy of the common law prohibited the transfers of causes of action. Lands of which the owner was disseized could not be conveyed during such disseizin. The conveyance of such lands was, by statute (32 Henry 8, c. 9), a crime for which, on conviction, both vendor and vendee were subject to the forfeiture of the value of the lands sought to be conveyed. Execution and judicial sales have never been within this inhibition against voluntary transfers. On the contrary, they are supported, whether he whose title is involuntarily transferred be seized or disseized.179

SEC. 37. Sales en Masse.-The duty of an officer in 173 Freeman on Executions, sec. 335.

174 Freeman on Executions, sec. 109.

175 Ib., sec. 239.

176 Ib., sec. 215.

177 Yarboro v. Brewster, 38 Tex. 397; Hamblin v. Warnecke, 31 Tex. 93; Howe v. McGivern, 25 Wis. 525.

178 Ludlow v. Park, 4 Ohio, 5.

179 Drinkwater v. Drinkwater, 4 Mass. 354; Willard v. Nason, 5 Mass. 241; High v. Nelms, 14 Ala. 350; Cook v. Travis, 20 N. Y. 400; McGill v. Doe, 9 Ind. 306; Stevens v. Hauser, 39 N. Y. 302.

making a sale is to offer the property in such parcels as will prove most inviting to the bidders, and realize the greatest sums, for the heirs and other interested persons. Hence, if several parcels of real estate be embraced in one license, the administrator is to offer them for sale, not in one lump, but "in such parcels as shall be best calculated to secure the greatest aggregate amount.''180 Where several distinct parcels of land are to be sold, each ought to be offered and sold separately, unless it is clear that the union of two or more will augment rather than decrease the aggregate proceeds of the sale. In Indiana, Michigan, Tennessee and Pennsylvania, a lumping execution sale of two or more separate parcels of land is void;181 but in nearly, if not quite all the other states, such a sale, though voidable, is not a nullity.182 In Michigan, a probate sale is not void because two or more parcels are sold together.183

SEC. 38. Sales infected by Fraudulent Combinations and Devices.-Judicial and execution sales are usually imperative. Those who own the property are compelled to sell for whatever is offered. To avoid the sacrifice likely to ensue, notices of sale are required to be given, the property is struck off to the highest bidder, and competition among the persons intending to bid is sought to be produced. But the bidders, on their part, may enter into combinations and devices, either with one another or with the officer conducting the sale, by means of which competition is lessened or altogether avoided. Every scheme looking to this result is highly immoral, and will, if possible, be thwarted by the courts. The sale may be vacated, either by motion or by a bill in equity. Whether a purchase obtained by the prevention of competition can, by the guilty party, be asserted at law, is a question upon which the courts are by no means agreed. In several of the states such a purchase, and the deed made

180 Delaplaine v. Lawrence, 3 N. Y. 304.

181 Freeman on Executions, sec. 296.

182 Ib., sec. 296; Bouldin v. Ewart, 63 Mo. 330. 183 Osman v. Traphagen, 23 Mich. 80.

in pursuance thereof, are regarded as a valid transfer of the legal title. The defendant in execution, wishing to prevent the assertion of this title, must claim the assistance of a court of equity. But the majority of the decisions sustains an adverse theory-one under which the title of the fraudulent purchaser is, while in his hands, regarded as void, and therefore as capable of being resisted not less successfully at law than in equity."'184

SEC. 39. Purchaser's Title not Affected by Secret Frauds. —It is a general rule that one who purchases at a judicial, probate or execution sale, can not be deprived of his title by secret frauds or irregularities, in which he did not participate and of which he had no notice.185 Hence, an administrator's sale can not be avoided by showing that he procured his license to sell by fraud and misrepresentation, in the absence of any necessity, and with the design of sacrificing the interests entrusted to his care.186 Nor can an innocent purchaser be injuriously affected by proof of any mistake, error or fraud of an administrator or guardian in conducting a sale.187 Although the original purchaser has himself been guilty of fraudulent devices, or has had notice of such devices practiced by others, he can transmit a valid, unimpeachable title to a vendee for value, in good faith, and without notice. Therefore, if a sale be nominally made to a stranger, but really for the benefit of the administrator, and this stranger convey to another, for value, who has no notice that the apparent are not the true facts, the title can not, in the hands of the latter or his vendees, be rendered void or voidable by proof of the real facts.188 The

184 Freeman on Executions, sec. 297; Underwood v. McVeigh, 23 Gratt. 409.

185 Freeman on Executions, secs. 342, 343.

186 Lamothe v. Lippott, 40 Mo. 142; Myer v. McDougal, 47 Ill. 278; Moore v. Neil, 39 Ill. 256; McCown v. Foster, 33 Tex. 241.

187 Gwinn v. Williams, 30 Ind. 374; Staples v. Staples, 24 Gratt. 225; Jones v. Clark, 25 Gratt. 642; Patterson v. Lemon, 50 Ga. 231.

188 Blood v. Hayman, 13 Met. 231; Staples v. Staples, 24 Gratt. 225; Robbins v. Bates, 4 Cush. 104; Gwinn v. Williams, 30 Ind. 374.