
    Dunn and Another v. Frazier.
    If land be sold on execution and the creditor receive the purehase-moncy, the purchaser cannot, either at law or in equity, recover back the money from the creditor, merely because the debtor had no title to the land.
    But the debtor is in such case liable to the purchaser, in equity, for the purchase-money.
    ERROR to the Dearborn Circuit Court.
   Smith, J.

This was a bill in chancery brought by Frazier to recover from the plaintiffs in error the amount which he paid for a lot of land, purchased at sheriff’s sale on an execution in favour of Isaac Dunn against John Saltmarsh and Gardner Elliott, administrators of Samuel Elliott, deceased, on the ground of a failure of, title. The case was heard in the Court below on the bill of complaint, the answer and cross-bill of Dunn, the answers of Adams and Jelly, a supplemental bill of the complainant,-answers to cross-bill, exhibits, replications, and depositions.

The following facts may be considered as established: On the 26th of April, 1837, Dunn obtained a judgment in the Dearborn Circuit Court against Saltmarsh and Gardner Elliott, administrators of Samuel Elliott, for 371 dollars and 25 cents, being for a debt due by their intestate before his death. An execution was issued upon this judgment which was returned unsatisfied, no goods or chattels being found' in the hands of the administrators. On the 11th of September, 1840, Dunn filed his petition in the same Court, by his attorney, asserting that said Samuel Elliott was, at the time of his death, the legal owner in fee-simple of certain lots in the town of Lawrenceburgh, including lot No. 196. The administrators and heirs of Samuel Elliott were made defendants, and in the course of the proceedings on this petition, an order was obtained for the issue of an execution against the real estate therein described. An execution was accordingly issued on the 26th of November, 1840, and on the 9th of January, 1841, at the sale under’this execution, Frazier became the purchaser of lot No. 196 at the price of 300 dollars. Gardner Elliott, one of the administrators, was present at the sale and solicited Frazier to become the purchaser, assuring him that the title was good. The attorney of Dunn was also present, bidding on the property for Dunn, and did bid in one of the lots sold at the same time. Adams, also, purchased several of the lots which were then sold under the same execution.

After the sale, Frazier refused to pay the purchase-money, and the sheriff made his return accordingly. On the 14th of January, 1841, a notice was served on Dunn, Adams, and Frazier, on behalf of Saltmarsh and Gardner Elliott, administrators, that they would move at the next term of the Circuit Court, to have the sale of all said lots set aside on account of some alleged irregularity in the proceedings. On the 17th of February, 1841, Dunn, intending to waive all or any rights he might have had under the sale to enforce the payment of the purchase-money by Frazier, caused an alias execution to be issued to make the money which remained due upon his judgment, and the lot was re-appraised and again advertised for sale. At this stage of the proceedings, on the 3d of March, 1841, Dunn sold and assigned the balance due him upon the judgment to Adams, and the latter assumed the control of it. The execution last issued was then returned without any further proceedings. It is charged in the bill of complaint that Adams, after his purchase of the judgment and before payment was made by Frazier, assured the latter that if he would pay the money he would obtain a good title to the lot, and threatened if he did not so pay it, proceedings would be instituted to compel him to do so with damages. Adams denies this charge generally, but admits that some time in the spring of 1841, he did as the agent of Weaver, the sheriff, tender Frazier a deed, for the lot, and on the latter asking him if the deed could be a good one, he replied “he believed it was as good a one as the sheriff could make;” and on the refusal of Frazier to. take the deed, he served a notice upon him that the sheriff would move for a judgment for the amount of his bid with damages and costs. Frazier still refused to accept the deed, and on the 4th of June, 1841, Adams caused a third writ of execution to be issuedv, the proceedings upon which were enjoined by order of the president judge of the Circuit Court upon the application of Saltmarsh and Gardner Elliott, the administrators. Before any further steps were taken, Frazier paid Adams his portion of the judgment amounting to 153 dollars and'60 cents, and paid the balance of the purchase-money bid by him, 146 dollars and 40 cents, to Cheek, the clerk of the Circuit Court, in whose hands it remained.

Samuel Elliott, at the time of his death, had no title to the lot in question'. He had a title-bond froip Moore, but had not paid the purchase-money or received a conveyance. It also appeared that an application had been made to the Probate Court to settle his estate as insolvent.

The Circuit Court ordered the money in the hands of the clerk to be returned to Frazier, and rendered a decree in his favour against Dunn and Adams for 153 dollars and 60 cents (the sum paid to Adams) with interest; and in default of such payment within thirty days, execution to issue against them as in other cases at law-

This decree cannot be sustained. We know of no principle or authority by which a creditor can be held liable, either in law or equity, to refund to the purchaser at a sale under execution the money paid by him, upon the single ground of a failure of title. It does not appear that Dunn was present' at the sale, or that he made any representations whatever to induce the complainant to purchase. Adams did not become interested in the judgment until after the sale, and though he seems to have made some threats of commencing proceedings against Frazier to compel him to pay the purchase-money with damages, and to have answered evasively when the latter inquired if the sheriff’s deed would convey a good title, it is not shown that he said any thing amounting to such a misrepresentation of the facts a,s would render him liable to refund.

The rule caveat emptor is generally applied with strictness to purchasers at sales under execution. It was held by this Court in Muir v. Craig, 3 Blackf. 293, that the purchaser, at a sheriff’s sale, of land to which the execution-debtor had no title, could recover from the debtor, in equity, the amount of the purchase-money paid to the sheriff. This was a relaxation of the rule, and it was going as far as we should be warranted in going in the present case. In the case of M‘Ghee v. Ellis et al., 4 Littell, 244, cited in Muir v. Craig, a distinction was made between the positions of the creditor and debtor in such cases, and it was held that the former would not be liable to refund, but that the debtor would, when there was a total failure of title, because the debt being paid, by the money of the purchaser, the latter would in equity be entitled to be substituted in the place of the execution-creditor, so far, at least, as to enable him to maintain a valid demand against the debtor. Upon the principles recognised in these decisions, Frazier is entitled to a decree against the estate of Samuel Elliott, though not against Dunn and Adams, or either of them. If the money in the hands of Cheek, the clerk, was an overplus after the payment of the balance due on the judgment, that part of the decree ordering it to be repaid to Frazier was right; but as it does not certainly appear from the facts stated in the record where that money was to go, we shall reverse the whole decree, and remand the ■cause with instructions to the Circuit Court to render one in accordance herewith.

J. Hyman, for the plaintiffs.

E. Dumont, for the defendant.

Per Curiam.

The decree is reversed with costs. Cause remanded, &c.  