who signs it is acting in an official capacity, and not merely conveying his own title to the property. In some States a form for sheriff's deeds is prescribed by statute. These statutes are generally, but not universally, declared to be directory merely.217 Deeds executed by executors, administrators or guardians are, in many States, treated with less indulgence than those made by sheriffs. This is particularly the case where a statute has directed that some statement or recital shall be set forth in a deed. Such statutes, with reference to administrator's and guardian's deeds, have been held imperative, and not directory merely. Thus, where a statute required an order to be set forth at large, a deed merely referring to such order and stating its substance was adjudged void.218 The correctness of this decision may be doubted; but it is certain that an omission to refer to an order, or a reference which did not fully describe the order, would, under a statute similar to the one just alluded to, render the deed void.219 Although a statute requires the order of sale and also that of confirmation to be referred to or set out in the deed, a mere mistake in the reference is not fatal, if it appears from the deed, taken as a whole, that the reference, as made, is a mistake, and that it was intended to embrace the orders under which the sale and deed were in fact made.220 The same rule applies to mistakes in the recitals in deeds made in pursuance of execution sales.221 Irrespective of any statutory directions on the subject, every administrator's, executor's or guardian's deed should refer to the authority or license under which it is made; should state that the person making it acted under such license; and should contain apt words to convey the estate of the ward or decedent, as contradistinguished from 217 Ib., sec. 329. 218 Smith v. Finch, 1 Scam. 323. 219 Atkins v. Kinnan, 20 Wend. 241. 220 Sheldon v. Wright, 5 N. Y. 497; Thomas v. Le Baron, 8 Met. 361; Jones v. Taylor, 7 Tex. 242; Moore v. Wingate, 53 Mo. 398; Glover v. Ruffin. 6 Oh. 255. 221 Freeman on Executions, sec. 329. the private estate of the person executing the deed;222 but it need not recite all the steps taken in making the sale, as that the sale was at public auction, and that the grantee was the highest bidder.223 CHAPTER V. THE LEGAL AND EQUITABLE RIGHTS OF PURCHASERS SECTION 46. Purchaser's Right to Resist the Payment of his Bid. SEC. 48. Purchaser's Right to urge Acts of Ratification as Estoppels in his Favor. SEC. 49. Purchaser's Right to Subrogation Denied. SEC. 50. Purchaser's Right to Subrogation Affirmed, under Execution and Chancery Sales. SEC. 51. Purchaser's Right to Subrogation Affirmed, under Probate Sales. SEC. 52. Purchaser's Right to Subrogation, where he is Guilty of Fraud. SEC. 53. Purchaser's Right to Aid of Equity in Supplying Omissions and Correcting Mistakes. SEC. 46. Purchaser's Right to Resist the Payment of his Bid.-If the purchaser at a void execution or judicial sale be so fortunate as to discover the true character and effect of the sale, prior to the actual payment of the purchase price, he will, of course, seek to avoid making such payment. No doubt the bidder at a void sale is entitled to be released from his bid. "The purchaser at a partition sale is entitled to the whole title partitioned. If, from any irregularities or defects in the suit or in the proceedings, the purchaser would not, by completing his bid and receiving his conveyance, become invested with the whole title with V. 222 Jones v. Taylor, 7 Tex. 242; Bobb v. Barnum, 59 Mo. 394; Griswold Bigelow, 6 Conn. 258; Lockwood v. Sturdevant, 6 Conn. 373. The two cases last named are limited in Watson v. Watson, 10 Conn. 77. 223 Kingsbury v. Wild, 3 N. H. 30. which the court assumed to deal, then he will be released from his bid. Hence, if jurisdiction has not been acquired over one of the co-tenants, the purchaser will be released.''224 So, in purchases under execution sales, the purchaser can not be compelled to make payment, if the proceedings are so defective, in any respect, that they can not divest the title of the judgment debtor.225 Every purchaser has a right to suppose that, by his purchase, he will obtain the title of the defendant in execution in case of execution sales, and of the ward or decedent in the case of a guardian's or administrator's sale. The promise to convey this title is the consideration upon which his bid is made. If the judgment or order of sale is void, or if, from any cause, the conveyance, when made, can not invest him with the title held by the parties to the suit or proceeding, then his bid, or other promise to pay, is without consideration and can not be enforced. He may successfully resist any action for the purchase-money, whether based upon the bid or upon some bond or note given by him.226 In Mississippi, however, he can not avoid paying the purchase-price of personal property of which he has obtained, and still retains possession by virtue of the sale.227 The distinction between void sales and defective titles must be kept in view, to avoid any misapprehension of the rights of one who has purchased at an execution or judicial sale, without in fact obtaining anything. If he obtains nothing because of a defect in the proceedings, he can defeat an action for the amount of his bid. If, on the other hand, the proceedings are perfect, but the defendant, or ward, or decedent, had no title to be sold nor conveyed, the purchaser is nevertheless 224 Freeman on Cotenancy and Partition, sec. 547. 225 Freeman on Executions, sec. 301. 226 Laughman v. Thompson, 6 S. & M. 259; Campbell v. Brown, 6 How. Miss. 230; Bartee v. Thompkins, 4 Sneed, 623; Todd v. Dowd, 1 Met. (Ky.) 281; Barrett v. Churchill, 18 B. Monr. 387; Washington v. McCaughan, 34 Miss. 304; Riddle v. Hill, 51 Ala. 224. 227 Washington v. McCaughan, 34 Miss. 304; Martin v. Tarver, 43 Miss. 517; Jaggers v. Griffin, 43 Miss. 134. bound by his bid. Caveat emptor is the rule of all execution and judicial sales. Each bid is made for such title as the defendant, ward or decedent may have, and is therefore binding, whether either had title or not.228 SEC. 47. The Purchaser's Right to Recover back Money Paid. Whoever pays out money on account of a purchase made at a void sale, parts with a valuable consideration, for which he acquires nothing. The question then arising, is: Has the purchaser any remedy? and, if so, what is the remedy, and to what cases may it be applied with success? Where the plaintiff is the purchaser, he may, in most states, upon failure of his title, in effect vacate the apparent satisfaction produced by the sale, and obtain a new execution.229 If the title fails through defects in the proceedings arising from the neglect or misconduct of the sheriff, the purchaser can sustain an action on the case against that officer.230 Where a purchase is made under a decree in equity, and such decree is reversed for a jurisdictional defect in the proceedings, or where the title fails because the grantee of a mortgagor was not a party to a foreclosure, the plaintiff has the right to prosecute further proceedings. In the case first named, he may have the process properly served, and thus give the court jurisdiction to proceed. In the second named case, he may apply to the court, have the sale vacated, the satisfaction cancelled, and then, by supplemental bill, bring in the proper parties and have the property re-sold. In either case the purchaser may, by applying to the court in the original suit, have the proceedings conducted for his benefit, though in the name of the original plaintiff.231 In 228 Freeman on Executions, sec. 301; Freeman on Cotenancy and Partition, sec. 547; Osterberg v. Union Trust Co., 93 U. S. 424; McManus v. Keith, 49 Ill. 389; Short v. Porter, 44 Miss. 533; Bassett v. Lockard, 60 Ill. 164; Cogan v. Frisby, 36 Miss. 185. 229 Freeman on Executions, sec. 54; Sargent v. Sturm, 23 Cal. 359; Piper v. Elwood, 4 Den. 165; Adams v. Smith, 5 Cow. 280; Watson v. Reissig, 24 Ill. 281. 230 Sexton v. Nevers, 20 Pick. 451. 231 Boggs v. Hargrave, 16 Cal. 559; Burton v. Lies, 21 Cal. 87; John 232 New York and Tennessee, if the proceedings are utterly void, the purchaser may recover from the plaintiff the amount paid upon the latter's judgment. In Texas, if a sale under a valid judgment be void for defects in the proceedings, the purchaser is entitled to the property, unless the defendant will reimburse him for the amount he has paid toward satisfying the judgment. In Kentucky, Indiana, Illinois and Texas, if the defendant in execution has no title, he may be compelled, by proceedings in equity, to reimburse the purchaser for the amount contributed, by means of the purchase, to the satisfaction of the judgment.2 234 But we think the better rule is that, unless proceeding upon the ground of fraud or misrepresentation, or some other well known ground, a purchaser at an execution sale can not, by any independent action, recover of either of the parties the amount of his bid.235 Such an action is necessarily founded upon a mistake of law. The purchaser son v. Robertson, 34 Md. 165; Cook v. Toumbs, 36 Miss. 685; Hudgin v. Hudgin, 6 Gratt, 320. See also Scott v. Dunn, 1 D. & B. Eq. 425. 232 Chapman v. Brooklyn, 40 N. Y. 372; Schwinger v. Hickok, 53 N. Y. 280; Henderson v. Overton, 2 Yerg. 394. The principle upon which these cases profess to proceed is, that a party may recover moneys paid where there is a total failure of consideration. This principle is sufficiently supported by the authorities (Moses v. McFarlano, 2 Burr. 1009; Rheel v. Hicks, 25 N. Y. 289; Kingston Bank v. Eltinge, 40 N. Y. 391); but we doubt its applicability to execution sales. 233 Johnson v. Caldwell, 38 Tex. 218; Howard v. North, 5 Tex. 290. A person seeking to cancel a sheriff's deed as a cloud upon his title must, in Texas, first repay the amount for which the property was sold by the sheriff. Herndon v. Rice, 21 Tex. 457; Morton v. Welborn, 21 Tex. 773; Brown v. Lane, 19 Tex. 205. 234 McGhee v. Ellis, 4 Litt. 245; Muir v. Craig, 3 Blackf. 293; Warner v. Helm, 1 Gilm. 220; Price v. Boyd, 1 Dana, 436; Hawkins v. Miller, 26 Ind. 173; Preston v. Harrison, 9 Ind. 1; Jones v. Henry, 3 Litt. 435; Dunn v. Frazier, 8 Blackf. 432; Pennington v. Clifton, 10 Ind. 172; Richmond v. Marston, 15 Ind. 134; Julian v. Beal, 26 Ind. 220; Howard v. North, 5 Tex. 290; Arnold v. Cord, 16 Ind. 177; Taylor v. Conner, 7 Ind. 115. 235 Branham v. San Jose, 24 Cal. 585; Boggs v. Hargrave, 16 Cal. 559; Salmond v. Price, 13 Ohio. 368; Laws v. Thompson, 4 Jones, 104; Halcombe v. Loudermilk, 3 Joñes, 491; The Monte Allegre, 9 Wheat. 616; Burns v. Hamilton, 33 Ala. 210. |