
    Lederer Realty Corporation et al. vs. Bradford Campbell et al.
    Eq.No.4349
    March 22, 1918
   BARROWS, J.

This is a bill in equity to establish a so-called vendee’s lien to enforce- repayment of the purchase- price paid at a void administrator’s sale of realty. It is heard on prayer for a preliminary injunction against Henry M. Boss, Administrator d. b. n. of James Campbell, and Bradford Campbell, who-holds the legal title of said realty by virtue of a deed from the heirs of James Campbell.

The bill alleges that complainant bought at administrator’s sale, for $16,500, a certain piece of r^al estate; that the sale was- made pursuant to (an 'order of the Piqbatp Court, which 'order was' subsequently set aside as void; that complainant took and held 'possession of the premises "until recently, when Bradford Campbell ejected it from two-thirds thereof and threatens to eject it from the other third; that the administrator h-asi in his possession the proceeds of the purchase price and: other funds that the estate of James Campbell is insufficient to pay the claims allowed against it and to- reimburse this complainant, and that there is pending in the Probate Court a petition by the administrator to sell said re-al estate to- pay decedent’s debts.

The bill seeks to enjoin the administrator from making any payments until -he has reimbursed complainant and to- prevent Bradford Campbell form ejecting complainant fro-m the balance of the premises, and to oust said Campbell from the portion of the premises now held by him. It asserts that complainant has a vendeete lien upon said real estate until it is reimbursed by the administrator.

Legal title to> the real estate is in respondent Campbell. Complainant has no color of title. It urges, however, that because of the pendency in the Probate Court of a petition to sell the real estate, Bradford Campbell got no- substantial interest from the heirs of James Campbell. It suggests that the contest is actually between complainant and the creditors of James Campbell. While admitting that administrator Bo-ss has on hand an ample- amount of money from which to reimburse complainant, it suggests the possibility of the loss of this money by reason of failure of the depository or other cause beyond Boss’ control.

Complainant refers to- 18 Cyc. 818, and -cases there cited. These cases hold that one who has paid money 'to an administrator for real estate sold at a void judicial1 sale is entitled to reimbursement and can have the amount paid by him charged as a lien on the land1. In all of these cases the administrator was no- longer in possession of the purchase price or its ¡proceeds. He had paid the money over to- the creditors of the deceased. Under such circumstances, by a doctrine analogous tosubrogation, the purchaser at the void -sale whose money has gone to pay creditors of the deceased is allowed, as against the administrator, to stand in the shoes of tire creditors. The administrator’s right to ask for a sale of real estate to pay debts is turned! into- an equitable lien upon the land in favor of the purchaser.

For complainants: Murdock & Tillinghast.

For .respondents: William J. Blrown.

24 Cyc. 70.

This right has been called, a vendee’s lien.

We are also referred to Cosgrove vs. Metz, 37 Atl. 704 (R. I. 1897), as recognizing the principle of reimbursement.

We believe the principle of reimbursement is established in cases of void judicial sales, but no cas© has been found which held the heirs to be a surety for the reimbursement of the purchaser when no part of the purchase price has inured to- the heir’s benefit. The cases rest on the-doctrine of unjust enrichment to the heir, because the purchase price has been used to relieve the real' estate of an obligation which it otherwise would have been called upon to satisfy.

In the present case- respondent Boss has, by complainant’s admission, ample funds to reimburse complainant and the bill states that he has the proceeds of this void sale. To give complainant a lien on respondent Campbell’s real -estate, which respondent Boss has not now or may never have any right to sell, goes beyond any equity that we perceive. We see no reason why complainant should longer continue to hold said property until the administrator makes the restitution which he is in a position, to do and which equity demauds. Respondent Campbell has.no control over the administrator’s actions and we see no reason to- make him an involuntary surety for them. Under such facts we see no opportunity to -consider the d-ottrine of balance of convenience urged by complainant.

The injunction sought against respondent Boss may be granted; that against respondent Campbell is denied.  