Neal v. Gillaspy. said: "The purchaser of property at sheriff's sale stands in the situation of a purchaser of real estate who has taken a conveyance without covenant. In such case, in the absence of fraud, he can neither recover back, nor defend against an action to recover, the purchase-money, on the ground of a failure of title.” The case cited is decisive of the case at bar; for, in this case, there is no charge of fraud in appellant's complaint. As to the liability of the sheriff and the rights of a purchaser in such cases as this, see, also, the case of The State ex rel., etc. v. Prime, 54 Ind. 450. In our opinion, the court below committed no error in this case, in sustaining the appellees' demurrers to appellant's complaint. The judgment of the court below is affirmed, at the costs of the appellant. Judgment affirmed. NOTE BY THE REPORTER.- The doctrine of this case is universally sustained by authority. Caveat emptor is the rule of judicial sales of every kind. Frost v. Yonkers Savings Bank, 70 N. Y. 553; England v. Clark, 4 Scam. 486; Mason v. Wait, id. 127; Owens v. Thompson, 3 id. 502; Bingham v. Macey, 15 Ill. 295; Walden v. Gridley, 36 id. 523; Holmes v. Shaver, 78 id. 578; Dunn v. Frazier, 8 Blackf. 432; Freeman v. Caldwell, 10 Watts, 9; Miller v. Fitch, 7 W. & S. 366; Fox v. Mensch, 3 id. 444; Smith v. Painter, 5 S. & R. 223; Friedly v. Scheetz, 9 id. 156; Weidler v. Farmers' Bank, 11 id. 134; Vandeveer v. Baker, 13 Penn. St. 121; Bickle v. Biddley, 33 id. 276; King v. Gunnison, 4 Barr. 171; Bostick v. Winton, 1 Sneed, 524; Lang v. Waring, 25 Ala. 625; Jennings v. Jenkins, 9 id. 285; Worthington v. McRoberts, id. 297; McCartney v. King, 25 id. 681; The Monte Alegre, 9 Wheat. 616; United States v. Duncan, 4 McLean, 606; Lynch v. Baxter, 4 Tex. 431; Williams v. McDonald, 13 id. 322; Thompson v. Monger, 15 id. 523; Rogers v. Huggins, 6 Rich. (S. C.) 361; Evans v. Dendy, 2 Spear (S. C.), 9; Moore v. Akin, 2 Hill (S. C.), 403; Brakenridge v. Dawson, 7 Ind. 383; Rodgers v. Smith, 2 Cart. (Ind.) 526; Halleck v. Guy, 9 Cal. 181; Sumner v. Williams, 8 Mass. 162; Lessee of Corwin v. Benham, 2 Ohio St. 36; Owsley v. Smith, 14 Md. 153; Anderson v. Foulk, 2 Harris. & G. (Md.) 346; Mellen v. Boarman, 13 S. & M. 100; Hand v. Grant, 10 id. 514; Strouse v. Drennan, 41 Mo. 289; Islay v. Stewart, 4 Dev. & Bat. 160; Dean v. Morris, 4 G. Greene, 312; Cameron v. Logan, 8 Iowa, 434; Miller v. Finn, 1 Neb. 255; See, also, Roper on Judicial Sales, §§ 475, 476; Freeman on Executions, § 335. The Supreme Court of the United States say that "generally in all judicial sales the maxim caveat emptor must necessarily apply 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." The Monte Allegre, supra. The sale purports to carry only such interest as the defendant had, and unless it is so far void as not to accomplish this the purchaser has no defense against an action for the purchase-price. If the defendant had no interest, or less than the purchaser supposed, there is no relief for the purchaser. The general rule is that a purchaser under a power buys at his peril, and cannot acquire a title without showing a valid subsisting power. Wood v. Colvin, 2 Hill, 567. In a recent New York case, Frost v. Yonkers Savings Bank, 70 N. Y. 553, the court say: "A purchaser at an execution sale can get no better title than the judgment actually gives him. If a judgment has been satisfied, although not cancelled of record, even a bona fide purchaser under the execution will get no title. Wood v. Colvin, 2 Hill, 566; Carpenter v. Stilwell, 11 N. Y. 61; Craft v. Merrill, 14 id. 456. The docket of a judgment is not for the protection of purchasers under a judgment. It is for the benefit of the judgment creditor, and the protection of purchas ers from the judgment debtor. The sole purpose of an execution is to enforce a judgment Neal v. Gillaspy. for just what is due, and no more. An execution and the sheriff are instrumentalities provided by law by which a judgment creditor enforces his judgment, and the sheriff can give no better title or greater right by a sale on an execution than the judgment creditor could give, if he were allowed to seize property and sell by virtue of his judgment without an execution. If the judgment is void or has been paid, the purchaser takes nothing. The rule of caveat emptor applies to every purchaser at a sheriff's sale of either real or personal property by virtue of an execution. He buys at his peril, and if by any valid agreement the judgment has lost its apparent position as a lien upon real estate, his lien under his purchase is just that which the judgment creditor had." On the general doctrine that the sale carries only the real and not the apparent interest, see Stevens v. King, 21 Ala. 429; Treptow v. Buse, 10 Kans. 170; Taylor v. Eckford, 11 S. & M. 21; Flynn v. Williams, 1 Ired. 509; Rutherford v. Green, 2 Ired. Eq. 122; Carney v. Emmons, 9 Wis. 114. In every judicial sale there is an implied warranty that the proceedings have been so regularly conducted as to carry title to the defendant's interest, and that the proper persons have been made parties, and unless this is fulfilled, the purchaser is under no obliga, tion to fulfill his purchase. Commissioners v. Smith, 10 Watts, 392; Boggs v. Fowler16 Cal. 559. As for example, where a judgment creditor has not been made a party to a foreclosure; Verdin v. Slocum, 71 N. Y. 345; or a summons has not been properly served, Smith v. Wells, 69 id. 600. But immaterial defects in the proceedings which do not go to the jurisdiction or prevent the conveyance of such interest as the defendant had, will not avail the purchaser to avoid the sale. Riggs v. Pursell, 66 N. Y. 193. If the court had jurisdiction of the parties and the subject-matter, and power to render the judgment, the purchaser's title is not affected by defects in the proceedings which rendered the judgment irregular, and in consequence of which it might have been set aside or reversed. DeForest v. Farley, 62 N. Y. 628; Zirkle v. McCue, 26 Gratt. 517. Even if it should afterward be reversed. Bank of U. S. v. Voorhis, 1 McLean, 221; Wood v. Jackson, 8 Wend. 9; Buckmaster v. Jackson, 3 Scam. 104; Holden v. Sackett, 12 Abb. Pr. 473; Ward v. Hollins, 14 Md. 158; Hening v. Punnett, 4 Daly, 543; Irwin v. Jeffers, 3 Ohio St. 389; Gossom v. Donaldson, 18 B. Monr. 230; Clark v. Bell, 4 Dana, 20; Fergus v. Woodworth, 44 Ill. 374; Goudy v. Hall, 36 id. 319; McLagan v. Brown, 11 id. 519; Iverson v. Loberg, 26 id. 179; Zirkle v. McCue, 26 Gratt. 517. In Gray v. Brignardello, 1 Wall. 627, the court say: "That although the judgment or decree may be reversed, yet all rights acquired at a judicial sale, while the decree or judgment were in full force, and which they authorized, will be protected. It is sufficient for the buyer to know the court had jurisdiction and exercised it, and that the order on which he purchased was made, and authorized the sale." The rule is the same if the purchaser was a party to the judgment. Gossom v. Donaldson, 18 B. Monr. 230; and even if he was notified at the sale and before purchase that an appeal would be or had been taken. Irwin v. Jeffers, 3 Ohio St. 389. A bona fide purchaser of property at a judicial sale, under the order of a court having jurisdiction, is always protected, where the proceedings are only voidable, not void. American Ins. Co. v. Fisk, 1 Pai. 90; Blakeley v. Calder, 15 N. Y. 617; McMurray v. McMurray, 60 Barb, 117, affirmed in Court of Appeals. The latter was where guardians ad litem for infant defendants had not been appointed. But a purchaser at a judicial sale will not be relieved on account of apparent defects in the property, or of defects in the title of which he had notice, and in reference to which he made his bid. Riggs v. Pursell, 66 N. Y. 193; citing Taylor v. Stibbert, 2 Ves. 437; Hall v. Smith, 14 id. 426; King v. Bardeau, 6 Johns. Ch. 38; White v. Seaver, 25 Barb. 235; Tompkins v. Hyatt, 28 N. Y. 347; Craddock v.Shirley, 3 A. K. Marsh. 288. As, in that case, where the premises were subject to ground rent on a lease of which notice was given in the notice of sale. But although the rule of caveat emptor thus applies, where the sale and purchase are completed, yet if the buyer discover the defect before he pays his money, he cannot be compelled to complete. Ormsby v. Terry, 6 Bush, 553; Merchants' Bank v. Thomson, 55 N. Y. 11; McGown v. Wilkins, 1 Pai. 120; Spring v. Sandford, 7 id. 550; Jackson v. Edwards, 22 Wend. 498; Seaman v. Hicks, 8 Pai. 655. The rule of caveat emptor extends to a grantee of the purchaser at a judicial sale. Rainbolt v. East. The court may set aside a judicial sale for fraud or irregularity, even as against a bona fide grantee of the purchaser. Hale v. Clauson, 60 N. Y. 339. The court say: "It is claimed that other parties, strangers to the judgment, and not parties to the sale under it, have become the bona fide purchasers and grantees of the premises from the purchaser at the sheriff's sale, and that therefore the case is taken out of the rule; and that the court had lost jurisdiction to interfere with the sale upon a summary application. If the court had jurisdiction of the parties interested in maintaining the sale, it had the same power to do equity, and could as well protect and preserve the equitable rights of all upon a motion addressed to its legal discretion, as could be done by a formal action on the equity side of the court. A purchaser at a sheriff's sale, although a stranger to the judgment or decree, by his purchase submits himself to the jurisdiction of the court, in respect to the sale and purchase. Cazet v. Hubbell, 36 N. Y. 677; May v. May, 11 Pai. 201. All acquiring title from and under him take subject to the same jurisdiction. A conveyance to a bona fide purchaser may be a circumstance which will influence a court in the exercise of its discretion, but does not take away jurisdiction. A grantee takes the place of his grantor, and consents to the same jurisdiction, under and subject to which the title is held. He has notice of the source of his grantor's title, and knowledge of the power of the courts over titles thus acquired, and takes no better or more perfect title, as against the interference of the court, than his grantor had." RAINBOLT v. EAST. (56 Ind. 538.) Statute of frauds-parol ante-nuptial agreement — entirety. A husband and wife, having orally agreed before marriage that the survivor, after marriage, should not claim any of the estate left by the decedent; held, in an action by the widow against the husband's administrator to recover the statutory allowance to a widow out of a deceased husband's estate, that the agreement was not within the statute of frauds so far as it relates to provisions in consideration of marriage, but otherwise as to the provisions of the statute relating to sales of real estate; but that the agreement not being severable, could not be enforced against the widow. UIT by a widow to recover statutory allowance. The opinion states the facts. SUIT A. G. Cavens and E. H. C. Cavens, for appellant. J. D. Alexander, E. E. Rose and E. Short, for appellee. PERKINS, C. J. Suit by the plaintiff, against the administrator of Jesse Rainbolt's estate, to recover the five hundred dollars allowed a widow by statute out of her deceased husband's estate. 2 R. S., 1876, p. 507, § 43. In addition to the general denial, the defendant filed two special Rainbolt v. East. paragraphs of answer, the first of which was as follows: "The defendant admits the marriage alleged by plaintiff, the death of her said husband, that the plaintiff is his widow, and that her said husband died the owner of personal and real property; that defendant is administrator upon his estate; that plaintiff, before suit, demanded the five hundred dollars, and that he refused to pay, etc. But he says that said plaintiff was the second wife of said decedent, and that there was no issue of said marriage; that, at the time of said marriage, said plaintiff was a widow and said decedent a widower, and each owned personal and real estate in their own right and had children living, the issues of former marriages; and that prior to the marriage of plaintiff and decedent it was mutually agreed between them that if, after their marriage, said plaintiff should die prior to her said husband, her said husband would not claim any of the real or personal property of said plaintiff that she might own at her death; and that, if her said husband should die before. the said plaintiff, she would not claim any of the real or personal estate of her said husband that he might own at his death; that said contract was the inducement to said marriage; that said contract was reduced to writing, and signed by both parties to it prior to their marriage, and duly acknowledged; that since the death of said Jesse the said contract had been lost or destroyed," etc. A second affirmative paragraph of answer was filed precisely like that copied, with the exception that it did not aver that the contract was in writing and lost. A demurrer to these affirmative paragraphs was overruled; a reply in denial was filed; there was a trial by the court, and a finding for the defendant. A motion for a new trial was denied and final judgment in the cause rendered. The evidence is in the record, and it tends to establish the parol contract set up in the second affirmative paragraph of answer. The court held the contract in part valid and separable. The contract, in this case, between the parties, was not made in consideration of marriage, but rather in contemplation of marriage, and the consideration was the mutual relinquishment of prospective property rights. In this respect the case is, in principle, like Riley v. Riley, 25 Conn. 154. In that case the parties, on the eve of marriage, agreed that certain promissory notes which Mrs. Riley, then single, held on Mr. Riley, should not be extinguished by the marriage, but should remain her separate property, collectible out of his estate, if she VOL. XXVI-6 Rainbolt v. East. would forbear to insist on their payment before marriage. In delivering the opinion of the court, ELLSWORTH, J., says: “As to the objection derived from the statute of frauds and perjuries, we think there is no ground for it. The ante nuptial promise was made in consideration of forbearance, and not in consideration of marriage, though it was made in contemplation of marriage, which is not inconsistent with the claim of the appellant's counsel, that a promise in consideration of marriage must be in writing. Marriage was not the meritorious cause of Riley's promise; the marriage obligation was already perfect, and the promise in question was made upon the assumption that it was so, and for the exact purpose of saving the notes from the effect of the mar riage when the marriage contract should be executed." For contracts in consideration of marriage, see Flenner v. Flenner, 29 Ind. 564, and Brenner v. Brenner, 48 id. 262. See, also, in this connection, Houghton v. Houghton, 14 id. 505; and 1 Bish. on the Law of Married Women, §§ 806-807, and notes; Richards v. Richards, 17 Ind. 636. The contract is not within that clause of the statute of frauds which prohibits an action to be brought "to charge any person, upon any agreement or promise made in consideration of marriage," unless, etc. 1 R. S. 1876, p. 503, § 1, clause 3. But a part of the contract is within that clause of the statute which prohibits an action upon a contract for the sale of real estate, etc., unless the contract is in writing. 1 R. S. 1876, p. 504, § 1, clause 4. A part of the contract relates to personal property which might be sold by a parol contract. This suit relates alone to personalty; but the answer avers, and the proof shows, that the contract was an entirety for both kinds of property, and was by parol, and the question is, is it one that is separable so as to permit a recovery as to a part, or is it inseparable, so that the whole is incapable of enforcement by law? Parsons (vol. 2, p. 517) lays down the rule as to the severance of contracts thus: "If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable. And the same rule holds where the price to be paid is clearly and distinctly apportioned to different parts of what is to |