
    John H. Hand et al. vs. Prior M. Grant.
    Where persons purchase real estate at sheriff’s sale, they will not be heard afterwards to say that they were ignorant of conveyances made by the defendant in execution, before the date of the judgments under which they were buying, if those conveyances were on record in the proper office in the county; such record was constructive notice, and the law fixes on the purchasers a knowledge of what they were buying.
    If a sale take place under three executions, and either of the judgments on which they issued bind the property of the defendant, it is sufficient to pass his interest to the purchaser; though neither of the other judgments bind the property.
    
      Caveat emptor is the rule in sheriff’s sales ; and a purchaser thereat cannot be permitted to say that he obtained less than he supposed he was buying.
    Where persons are seeking to be relieved from the payment of money bid by them for property at sheriff’s sale, on the ground that the defendant in the execution had no salable interest in the property purchased; and it appears that one of the executions bound the property sold, the purchasers, if they allege that execution was paid, must show affirmatively that it was paid before the sale.
    A sheriff sold property of J. under three executions against him; it was bought by H., who did not pay the purchase-money; the sheriff sued him, and recovered a judgment against him therefor, which H. sought to enjoin on the ground, that he had become a judgment creditor of J. of elder date than two of the executions under which he bought, and that as the sheriff had not paid the amount of their bid over, in equity it ought to be appropriated to the judgment they had: Held, that the judgment creditors, under whose executions the property was sold, though junior in dale, had a prior equity to the fund.
    On appeal from the district chancery court at Columbus; Hon. Henry Dickinson, vice-chancellor.
    John H." Hand and John H. Huddleston filed their bill, stating that on the 16th day of March, 1840, Pryor M. Grant, as sheriff of Lowndes county, sold lots 5 and 6, in Square one, ■north of Main street, in Columbus, under these ft. fas., viz. William M. Cozart against James Jones, judgment rendered 9th April, 1839; Silas Bronson against Jones, rendered on the same day; and James Sims against Jones, rendered on the 19th June, 1838, which latter judgment has been paid up and discharged. The lots were leasehold property, being leased for ninety-nine years; and that complainants became the purchasers at the sum of $3005; they declined to pay their bid. Grant instituted suit thereon, and recovered judgment for $3738.30. It was taken to the high court of errors and appeals, and the judgment affirmed with damages.
    Upon consultation with counsel, and an examination of the records, they .are satisfied that they are entitled to relief; that the materiality of the matters relied on in the bill were brought to their knowledge within a few days previous to its being filed.
    The matters are as follows : — On the 18th February, 1837, James Jones, the defendant in execution, conveyed to David T. Porter one undivided half of said lots 5 and 6 ; and on the 5th June, 1837, made a deed of trust on the same to A. W. Sorsby. On the 19th July, 1838, Jones conveyed the whole of said premises to Brown and'Puller, trustees for the Real Estate Bank, and on the 28th February, 1839, he conveyed the same premises to Butterworth, in trust for Ames. That the deeds in trust were in full force at the time of levy and sale; Jones had no such interest at the time of levy and sale as could be sold under execution, and the sale was therefore void. That Grant had long since ceased to be sheriff, and no steps had been taken to make him accountable on said judgments, and the sale thereon. The judgment in favor of Grant was not subject to the lien of any judgment at law against Jones, but was equitable assets of Jones, subject to be pursued in equity by judgment creditors, according to their priority of lien; that they hold and own a judgment against Jones, in the name of the Commercial Bank, rendered on the 29th of June, 1S38, for $8018.88, which has priority of lien. That Jones conveyed the same premises to Murdock, as trustee for complainants, on the 4th of May, 1839, and also to Brown, as trustee, on the 10th of July, 1S39.
    The prayer of the bill was, that judgment in favor of Grant might be enjoined perpetually, and for all other and further relief.
    To this bill the defendant filed a general demurrer, which was sustained by the vice-chancellor.
    Complainants appealed.
    
      Richard Evans, for appellants,
    argued at length in support of the bill, and cited 1 Com. on Cont. 9; Lansing v. Quacken-burgh, 5 Cow. 38; Thornhill v. Gilmer, 4 S. & M. 153 ; McIntyre v. Agricultural Bank, Freem. Ch. Rep. 105 ; Osgood v. Franklin, 2 John. Ch. R. 23 ; McLaughlin’s Adm’rs v. Daniel, 8 Dana, 183.
    
      Harris and Harrison, for appellee,
    cited 2 Yerg. 394-397; 9 Ibid. 97; 2 Bay, 171; 2 Murph. 291; 1 Carrington L. R. 2S0 ; 1 Alab. R. 359 ; 6 Ibid. 204; 7 Ibid. 175.
   Mr. Chief Justice Shaíucey

delivered the opinion of the court.

Grant, as sheriff, had executions in his hands against one Jones, which he levied on two town lots, and the complainants became the purchasers at $3005, and so indorsed on the executions. They failed to pay their bid, whereupon he sued them at law and recovered judgment in the circuit court, which was brought to this court and affirmed. 5 S. & M. 508. They now file this bill for relief against that judgment, and allege that Jones had but a lease on the lots for ninety-nine years, and that he had parted with his interest before the sale, so that he had nothing which the sheriff could sell, and they have therefore acquired no title whatever; hence they ask to be relieved against the judgment, on the ground that they were not apprized of these facts until a few days before the filing of the bill.

Grant sold under three executions, one in favor of Sims, on a judgment rendered 19th of June, 1838, the other two on judgments rendered 9th of April, 1839.

Jones, it is alleged, had conveyed away half of his interest in the lots on the 28th of February, 1837. On the 19th of July, 1838, he made a conveyance of the whole of the interest, in trust for the benefit of the Real Estate Banking Company, and on the 28th of February, 1839, he again conveyed the whole to Butterworth, in trust for the benefit of Ames.

On this state of facts, assuming all the conveyances to be valid, it is apparent that when the first judgment was rendered against Jones, he held but a moiety of the lots. When the other judgments were rendered, he had disposed of the whole interest in trust. Why he conveyed away more than he had is a circumstance not explained.

In the first place, the parties cannot be heard to say they were ignorant of these conveyances, because they were all on record in the proper office in the county. This was constructive notice, and if they had not actual notice, the fault is theirs. The law fixes on them a knowledge of what they were buying.

As they bought under three judgments, if any one of them bound the property of Jones in the lots, it is sufficient to pass his interest to complainants. Sims’s judgment was older than the deeds of trust, though younger than Jones’s conveyance of the half of his interest in the lots to Porter. Jones, at the date of this judgment, was joint owner, and to that extent the complainants acquired title. As they are chargeable with notice of the several conveyances, the law supposes they made their bid in view of the true state of title, and agreed to give the amount bid for Jones’s interest in the lots. Caveat emjotor is the rule in such cases, and they cannot be permitted to say that they got less than they supposed they were buying.

To obviate this difficulty, it is now alleged that Sims’s judgment is paid. This may be true, and perhaps a presumption of payment would arise in regard to the others, as the sheriff charged himself by his return. But they do not say when or how it was paid. The bill is evasive in this particular. It can avail them nothing if this execution has been paid since the levy and sale. It is certain the sheriff sold under this execution, and the law presumes that he did his duty. If he acted illegally, and made a levy and sale under an execution which had been paid, the party who alleges a prejudice thereby must establish the fact.

Again, it is said that Grant has paid none of these judgments, and that complainants have also become judgment creditors of Jones, by assignment, and that their judgment has priority of lien over all except the judgment of Sims, and that in equity they are entitled to have their own judgment satisfied out of the judgment of Grant against them. It is sufficient to say that their judgment was not levied, and even junior judgments are entitled to be satisfied out of the proceeds of a sale made under them. The plaintiffs in the executions under which the lots were sold, have a prior equity to the fund.

The case cited from 5 Cowen is not strictly applicable. The sheriff had then by mistake sold the property of one man, supposing it to belong to another; the court refused to interfere on motion, but said the proper remedy was in chancery. On the ground of mistake they were clearly entitled to relief, but there is no such feature in this case.

Decree affirmed, and bill dismissed.  