Boyd, 2 Story (U. S.) 605; Sheldon Sub., §§ 38, 39; Davis v. Gaines, 104 U. S. 385, 405.

In Texas, it is held, in a recent case, that a purchaser at a sheriff's sale, who has paid money on his bid which discharges the judgment, and received a defective sheriff's deed, may be suorogated to the lien of the original judgment, and his right of action does not depend on his possession. If in possession, he cannot be disturbed in it by the original judgment debtor, until the money paid by him in discharging the judgment has been refunded. Jones v. Smith, 55 Tex. 383. See also Mayes v. Blanton, 67 Tex. 246.

Right to Subrogation Denied.-Richmond v. Marston, 15 Ind. 136; Nowler v. Coit, 1 Ohio 518; s. c., 13 Am. Dec. 640; Salmond v. Price, 13 Ohio 368; Bishop v. O'Conner, 69 Ill. 431; Chambers v. Jones, 72 Ill. 279; Kinney v. Knoebel, 51 Ill. 112.

Rights and Remedies of Purchasers Generally.-In Maryland, under §§ 1 and 2 of art. 83 of the code, relating to the seizure and sale of equitable estates under execution, and the rights of purchasers at such sales, if the equitable title be one which includes possession of the property, there can be no doubt that the writ of habere facias possessionem is applicable to give the purchaser possession. Deakins v. Rex, 60 Md. 593.

In Pennsylvania, where one purchases property at sheriff's sale under a levari facias issued on a judgment obtained on a mechanics' lien, filed under the provisions of the act of June 16th, 1836, Pamph. L. 696, he may institute the summary proceedings provided by the act of June 16th, 1836, Pamph. L. 780, and its supplement of May 24th, 1878, and thereby recover possession of the premises. Walbridge's Appeal, 95 Pa. St. 466.

In Indiana, a purchaser at sheriff's sale, from which redemption has been made under the statute, is not entitled in ejectment to recover possession upon the ground that he had redeemed from a sale made upon a senior mortgage. His right as such redemptioner is not to possession of the lands, but to a lien thereon for his redemption money and interest, which he may enforce by suit for its recovery. Rice v. Puett, 81 Ind. 230. And the purchaser, at a constable's sale of mortgaged personal property, is not entitled to possession unless he complies with the terms of the mort

State ex rel. Jessup v. Milligan,

gage. 106 Ind. 109.

In Texas, the execution of a mortgage on chattel property cannot affect the right of a creditor of the mortgagor to levy upon it and sell his interest under execution; the purchaser would buy subject to the mortgage lien, having notice thereof. If after purchase the rights of the lien holder are jeopardized, he may sequester the property in a suit against the mortgagor, and make the purchaser under execution a party. Sparks v. Pace, 60 Tex. 298. And in the same State, where an appeal is taken under article 1493, Pasch. Dig., by the provisions of which execution may issue and property be seized, but no sale can be made pending the appeal, if nevertheless the officer sells, the purchaser at this void sale is entitled to be refunded the purchase money, the same having been applied to the satisfaction of the judgment. Burns v. Ledbetter, 56 Tex. 282.

In South Carolina, a purchaser at sheriff's sale may sue for the recovery of the land purchased, assailing for fraud a prior conveyance by the judgment debtor, and in the same action ask judgment that the prior deed be set aside. Burch v. Brantley, 20 S. Car. 503. And one who purchases land sold under her execution for less than the amount due, but fails to receive the sheriff's deed, is entitled, nevertheless, to assert her equitable title to such land in an action brought for its partition, to which action she is made a party defendant. Small v. Small, 16 S. Car. 64.

Where, under a judgment on constructive service, certain lands were found to belong to the debtor, and were subjected to the payment of the judgment, and a sale was had and the lands sold to a bona fide purchaser, held, that he was entitled to protection, although afterwards the judgment was vacated and set aside. Keene v. Sallenbach, 15 Neb. 200.

A purchaser at an execution sale is not an "aggrieved party" within the meaning of § 693 of the California Code of Civil Procedure, which prescribes a penalty for selling real property without notice, recoverable by the party aggrieved. Kelley v. Desmond, 63 Cal. 517.

On bill by the holder of a sheriff's deed, made to him as assignee of the certificate of purchase, to set aside certain deeds made by the defendant in the judgment under which the sheriff's sale

was made, as clouds upon the title, it is not essential to the relief sought for the complainant to prove affirmatively that he paid value for the certificate of purchase assigned to him, and upon which his deed was made. Until his deed should be impeached, in some mode known to the law, it is prima facie sufficient as a basis to the relief sought by such a bill. Shelton v. Blake, 115

A, a married woman, joined with her husband in a bond with warrant of attorney, and mortgage of her real estate, to B. who entered judgment on the bond against both obligors, and under an execution thereon levied on said real estate and bought it in at sheriff's sale. The amount bid by B at the sale was claimed by B and also by other creditors of A's husband, and the sheriff, having filed a special return, an auditor was appointed who awarded the same to B. who exchanged receipts with the sheriff for the purchase money. Subsequently B issued a scire facias on the mortgage. Held, that the defendants were entitled to a credit for the sum bid by and awarded to B at the said sheriff's sale, although he did not obtain a good title, owing to the fact that the bond of the married woman was void as against her. Wells v. Van Dyke, 106 Pa. St.

III.

The right of an execution defendant to use a patented machine passes with the machine to the purchaser at sheriff's sale. Wilder v. Kent, 15 Fed. Rep. 217.

1. Bell v. Owen, 8 Ala. 312; Robinson v. Garth, 6 Ala. 204, s. c., 41 Am. Dec. 47; McKee v. Lineberger, 69 N. Car. 217; Glenn v. Black, 31 Ga. 393; Jones v. Null, 9 Neb. 254; Chappell v. Dann, 21 Barb. (N. Y.) 17; Herman on Executions, 325, § 211.

Assumpsit is the form of action generally resorted to. See note to Mount . Brown, 33 Miss. 566; s. c., 69 Am. Dec. 362, 365.

The purchaser remains liable even though he may have assigned his bid. Wimer v. Obear, 23 Mo. 242.

The officer should tender a deed to

the purchaser before suit. McKee v. Lineberger, 69 N. Car. 217; Hunt v. Gregg, 8 Blackf. (Ind.) 105. But compare Holdship v. Doran, 2 P. & W. (Pa.) 9.

Where the property of a corporation under mortgage was levied on under various other claims, and the company prepared to arrest the sale by affidavits of illegality, but an agreement was effected by the company and creditors represented, under which the objection was to be withdrawn, the equity of re demption of the property to be sold and bid in for the creditors, at a stated price, no money was to be paid except the costs, and the company was to have a specified time in which to redeem the property, or on failure to do so, the creditors were to be interested in it in proportion to their claims, and the sheriff assented to this arrangement, and the property was bought by the agreed bidder for the creditors, this did not give other creditors the right to seek redress directly from the bidder at the sale, by bill in equity, for the purpose of compelling him to pay the amount of the bid, especially where the complainants had postponed all action for more than two years, where the sheriff had gone out of office, and where the other property of the defendant had, in the meantime, been sold and otherwise disposed of. Cureton v. Wright, 73 Ga. 8.

2. Durnford v. Degruys, S Mart. (La.) 220; s. c., 13 Am. Dec. 285; Bisbee v. Hall, 3 Ohio 449; Roberts v. Westbrook, I Coldw. (Tenn.) 115; Herman on Executions, 325, § 211.

3. This is the general rule, but the exact measure of damages seems to depend somewhat on the circumstances of each particular case. See Girard v. Taggart, 5 S. & R. (Pa.) 19; Adams v. McMillan, 7 Port. (Ala.) 73; Lamkin v. Crawford, 8 Ala. 153; Glenn v. Black, 31 Ga. 393. But in Roberts v. Westbrook, 1 Coldw. (Tenn.) 115, and Grier v. Youtz, 5 Jones L. (N. Car.) 371, this rule is held not to apply to execution sales.

Green v. Jordan, 83 Ala. 220, s. c., 3 Am. St. Rep. 711.

See further as to liabilities of purchaser and mode of enforcing bids, Woods V. Ellis (Va.), 7 S. E. Rep. 852; Townshend v. Simon, 38 N. J. L. 239, Shinn v. Roberts, 20 N. J. L. 435; s. c., 43 Am. Dec. 636, Galpin v. Lamb, 29 Ohio St. 529; Cobb v. Wood, 8 Cush. (Mass.) 228; Deaderick v. Watkins, 8 Humph. (Tenn.) 520; Still v. Boon, 5 Sneed (Tenn.) 380; Williams v. Blakey, 76 Va. 254; Mosby v. Withers, So Va. 82; Fleming v. Roberts, 84 N. Car. 532; Clarkson v. Read, 15 Gratt. (Va.) 288; Cooper v. Borrall, 10 Pa. St. 491; Sharman v. Walker, 68 Ga. 148.

1. Herman on Executions 406, § 249. This statement of the rule serves to indicate generally the power, if not the duty, of the courts, and is supported in its general scope by the authorities cited by Mr. Herman. See also Freeman on Executions (2nd ed.), 308; Jarboe v. Colvin, 4 Bush (Ky.) 70; King v. Platt, 37 N. Y. 155; Rhonemus v. Corwin, 9 Ohio St. 366; Hopton v. Swan, 50 Miss. 545; Hilleary . Thompson, 11 W. Va. 113; Fix v. Loranger, 50 Mich. 199; Kauffman v. Walker, 9 Md. 240; Hudson v. Morriss, 55 Tex. 595; Fleming . Maddox, 30 Iowa 239; Ewald v. Čoleman, 19 Ind. 66; and authorities hereinafter cited.

2. See Seaman v. Riggins, 1 Green's Ch. (N. J.) 214; s. c., 34 Am. Dec. 200, with note; Aldrick v. Wilcox, 10 R. I. 405. 414; Wetzler v. Schaumann, 9 C. E. Green (N. J.) 64; Campbell v. Gardner, 3 Stockt. Ch. (N. J.) 423; s. c., 69 Am. Dec. 598; Littell v. Zuntz, 2 Ala. 256; s. c., 36 Am. Dec. 415; Hoppeck v. Conklin, 4 Sand. Ch. (N. Y.) 582; Cumming's Appeal, 23 Pa. St. 509; Allen v. Clark, 36 Wis. 101.

When Sale Will Be Set Aside. In a recent New Jersey case, where the complaint in the original cause promised to notify the petitioner, who was interested in the property, of the time and place of sale, and forgot so to do, in consequence whereof the petitioner did not attend, and the property was sacrificed, such sale was set aside. Pell v. Vreeland, 35 N. J. Eq. 22. So, in a late Texas case, it was held that a judgment creditor who, by reason of the unusual hour at which an execution sale is made and the inclemency of the weather, is prevented, without laches on his part, from being present to protect his interest as a bidder against an insolvent judgment debtor, whereby, and because of few bidders being present, the property sold for less than its value and less than the judgment, is entitled in equity to have the sale set aside. Johnson v. Crawl, 55 Tex. 571. And see for a like ruling under a very similar state of facts, Weir v. Travellers' Ins. Co., 32 Kan. 325.

Where, on enquiry at the office of the sheriff by the attorney of a defendant in an execution, he is informed by a deputy in charge of the office that the sale of the property levied on, consisting of three hundred and thirty-three shares of stock in a corporation, will take place at twelve o'clock on the day of sale, and subsequently the sale is made in mass at ten o'clock, in the absence of the defendant or his attorney, and without their knowledge, and at a great sacrifice of the value of the prop erty, such sale will be set aside, on timely application, on motion of defendant. Am. Wine Co. v. Scholer, 85 Mo. 496.

When a purchaser of land at sheriff's sale induces others not to bid and thus procures the land for less than it is

worth, the sale will be set aside, and this will be done though the action is not instituted until after the year of redemption has expired. Lynch v. Reese, 97 Ind. 360.

Where two separate lots, of the value of $8,000, are sold on execution for $65, en masse, without first offering them separately, a court of equity will interpose, if invoked in a reasonable time, and set the sale aside. Berry v. Lovi, 107 Ill. 612.

In Hughes v. Duncan, 60 Tex. 72, where, without the knowledge of the judgment creditor, in whose favor a judgment had been rendered, ordering the sale of specific land, to which a lien attached, execution issued under which the land sold for one-fortieth of its real value, the sale was set aside on proceed ings instituted by injunction after the sale and before the payment of the sum bid, it being shown that the sale was made in violation of an agreement between the debtor and creditor for indulgence and both uniting in proceedings to set it aside.

At an execution sale the defendant's property was bid off by the plaintiff at an inconsiderable sum, in pursuance of an alleged fraudulent arrangement to suppress competition among bidders. Held, in an action to impeach the title acquired by plaintiff, that the sale should be set aside and the parties placed in statu quo, without prejudice to the plaintiff's remedies from lapse of time since the sale. Currie v. Clark, 90 N. Car. 355.

In a foreign attachment suit, under the provisions of chapter 151 of the code of Virginia, where the defendant has not appeared or been served with a copy of the attachment as provided in section 24, the giving of the bond required by said section is a condition precedent to the sale of the attached property under section 23 of said chapter. And where a sale is made without such bond having been given and confirmed, the decree confirming such sale will be reversed and the sale set aside, and the purchaser at such sale is not entitled to the protection of the 27th section of said chapter. Hall v. Lowther, 22 W. Va. 570.

When Sale Will Not Be Set Aside.-An execution sale of real property will not be set aside merely because sold for much less than its real value, there remaining a right of redemption after the sale. Nor will it be set aside because the tract sold, being composed of parts

of two lots and occupied by two dwelling houses, was sold as one parcel, it being determined that in fact the property consisted of but one tract or parcel of land. Coolbaugh v. Roemer, 32 Minn. 445.

Where a judgment is rendered and an execution issued against Rosina Coons, it is not sufficient reason for setting aside a sale of real estate made on such execution that the right name of the defendant is shown to be Rosina Kuhn. Kuhn v. Kilmer, 16 Neb. 699.

Defects in the advertisement of the sale by the sheriff, and in the notice given to the defendant in execution, are mere irregularities, and do not furnish good grounds for setting aside the sale without proof of consequent injury to the party complaining. Holly v. Bass, 68 Ala. 206.

Mere irregularity in making a judicial sale, when taken in connection with gross inadequacy of consideration, will not alone, as matter of law, be held a sufficient ground for vacating such sale, in the absence of facts showing that the irregularity conduced to the inadequacy of the sum bid. Allen v. Pierson, 60 Tex. 604.

In Alabama, the following distinction has been drawn: "When a sale of lands under execution at law is impeached, because of mere error in the process, or on account of some error attending its execution, the court from which the process issued has exclusive jurisdiction to set aside the sale; but, if fraud or illegality attends the sale, or it has been followed by the execution of a conveyance casting a cloud upon the title, a court of equity has jurisdiction concurrent with the court of law to set it aside. If the judgment was in fact satisfied at the time of the sale under execution, the court from which the process issued has undoubted jurisdiction to set aside the sale; but, if the process is regular on its face, and the sale is followed by a regular conveyance to the plaintiff in execution as the purchaser, the fact of payment resting in parol, a court of equity will intervene, at the instance of the defendant in possession, set aside the sale, and cancel the conveyance as a cloud on the title." Cowen v. Sapp, 74 Ala. 44.

See also upon this subject generally Herman on Executions 408, § 250; 34 Am. Dec. 204, note; RIGHTS OF PURCHASER, supra, this title.

In Pennsylvania, after a sheriff's sale has been confirmed, the purchase money