
    Vattier v. Lytle’s Executors.
    Judgment creditor purchases land on his own execution as defendant’s property, takes a deed, and enters satisfaction. The title fails. He can not have the satisfaction set aside and a new execution awarded.
    This cause was adjourned from Hamilton county. It was a scire facias setting forth that the plaintiff, in 1824, recovered a judgment against Lytle (then living), as survivor of St. Clair, for six thousand three hundred and sixty-seven dollars and seventy-four cents, besides costs; that in March, 1825, he issued a fieri et levari facias to the sheriff of Clermont county, which was levied upon one thousand acres, part of a survey of fifteen hundred acres in *the name of De Benneville ; that the land was appraised [478 at eight dollars per acre, advertised, and in October, 1825, duly sold to the plaintiff upon a venditioni exponas, for the sum of five dollars and thirty-three cents per acre ; that the proceedings upon the return of the execution were duly examined by the court, found correct, and the sheriff ordered to make a deed to the purchaser, which was done accordingly. The plaintiff avers that by the sheriff’s return it appears he sold one thousand acres of land on the execution, when in truth only five hundred acres were levied upon, or are included within the boundaries set forth in the returned boundaries of the levy. He also avers that as the levy was made, and from thence hitherto, Lytle “had no right, title, interest, claim, or demand whatever, in, to, or over the land levied upon, either in law or equity,” and all the proceedings upon the said execution are void in law. By means whereof the plaintiff, although appearing by the records aforesaid to have satisfaction for the sum of five thousand three hundred and thirty-three dollars and thirty-three cents, the amount of said sale, yet has, in fact, received no satisfaction upon said judgment, but the whole remains unsatisfied, and he has acquired no title to the lands sold and conveyed to him upon said execution. The writ of scire facias calls upon the defendants to show cause why the levy and all the subsequent proceedings, including the order of court, the deed, and satisfaction, shall not be set aside and vacated, and the plaintiff have -execution for the full amount of his judgment, as ii no execution had issued and been levied. Since the service of the 
      scire facias, Lytle has died, and his executors have been made parties. They demur generally to the writ which is joined.
    D. J. Caswell, for the plaintiff:
    The object of the plaintiff is to avoid a satisfaction entered of record by mistake, so that he may be enabled, by a new process, to make the money due upon his judgment.
    This proceeding by scire facias is in the nature of a bill in equity, and the relief prayed for is sought upon two grounds:
    1. That the sheriff, by mistake, levied upon and sold to the plaintiff a tract of land to which the execution defendant had neither possession nor claim of title, and that satisfaction has been entered of record for such sale by mistake, no real satisfaction having been obtained.
    470] *2. That the sheriff levied upon the land mentioned in the writ of scire facias, as a tract containing one thousand acres, sold the same by the acre; whereas, in truth and in fact, the actual .quantity of land contained in the tract was less than that sold by the sheriff, and for which satisfaction was entered, by more than five hundred acres.
    The sheriff not only mistook the number of acres, but the entire tract, and actually sold to the plaintiff the whole town of Will■iamsburgh, to every portion of which, as well as the tract surrounding the town, the defendant had parted with his title before this judgment was obtained.
    There can, therefore, be no doubt but that equity requires that the sale should be set aside, and the satisfaction vacated, as the plaintiff can never derive any benefit from his purchase, and the defendant has sustained no loss by the sale. The plaintiff, by this mistake and delay, has lost his lien upon other property, and may •consequently bo postponed to the sagacious and industrious creditor; but, as between the plaintiff and defendant, I can see no reason why the entry of satisfaction should not be vacated, and the plaintiff permitted to proceed against such property as he can find, or remaining assets in the hands of his administrator.
    The only ground upon which the defendant can claim to have a credit entered on the judgment, is that something has been paid; that some interest of his has been disposed of, for the benefit of the plaintiff.
    In this case nothing has been paid, nothing has been received. It is an attempt on the part of the defendant to retain an unconscientious advantage, originating in the mistake of the sheriff, and the court are called upon to lend their aid to and sanction the measure, by a misapplication or perversion of the maxim “ caveat emptor.”
    
    That we are entitled to relief, and that this is the proper mode of seeking it, see the case of Arnold v. Fuller’s Heirs, 1 Ohio, 458; 1 Root, 453; 6 Bacon’s Ab. 120; 4 Day, 222. The court is respectfully requested to examine the reasoning in those cases, and. also in 5 Cowen, 38, before they refuse the relief here sought.
    Upon the second ground, also, I suppose the plaintiff entitled to relief.
    *If the land had been sold by the tract, without reference [480 to the quantity, for five thousand three hundred and thirty-three dollars and thirty-three and one-third cents, the plaintiff might be compelled to pay that amount, although the quantity should be less than he expected. But in this case, the valuation was by the acre, the sale was by the acre, and if a credit had been obtained upon the judgment for the above amount, upon the supposition that there were one thousand acres of the land, I can not see why the plaintiff should not be permitted to show by proof the extent of the deficit. No reason can be assigned why the defendant should have credit beyond the amount of the sale.
    C. Fox and E. S. Haines, for the defendant:
    It is difficult to perceive upon what grounds the plaintiff can sustain this suit. He complains of no fraud or misconduct on the part of Lytle, does not suggest that Lytle induced him to levy on the property mentioned in the writ, nor that he did not know, or had not as good an opportunity of knowing the actual situation of the title to the property at the time he purchased as since. He complains of no irregularity in the proceedings of the officer on the executions; in short, he has no complaint, except that he bought General Lytle’s right to a tract of land, whatever that right was; and now he finds fault, that Lytle had not so good a title as he expected, and, therefore, he wants this court to declare the levy, valuation, sale, and deed utterly void.
    If there is any authority to be found to sustain such a principle, we know not where it is.
    It is a rule applicable as well to sheriffs’ as to private sales, and to which there is no exception, that the purchaser of real estate, where there is no fraud, must be satisfied with the title and covenants of his grantor. If the title is bad, and he does not secure himself by covenants, he must bear the loss. There is no implied covenant as to title to real estate. The maxim caveat emptor is applied in its fullest force to such sales. The law on this subject is collected in 2 Caine, 191, 192.
    This doctrinéis peculiarly applicable to purchasers of real estate on execution. As remarked by the court in Thayer and Sturgis v. Sheriff of Charleston, 2 Bay, 171, “ These sales are made by operation of law, in which the will and consent of the defendants are 481] never consulted. They are forced *upon them, whether they assent or dissent to or from them, and it is their right, whatever that may be, more or loss, that is sold by the sheriff. Again, there is no warranty in law, either express or implied, raised on any of the parties concerned in such sale, neither on the part of the former owner, the defendant, nor the sheriff. Again, every man who goes to a sheriff’s sale ought to take care and examine into the title of the defendant carefully before he attempts to bid.” See also 5 S. & R. 225; 9 S. & R. 138; 1 Call, 24.
    We conceive, therefore, that were this the case of any other purchaser than the judgment creditor, there could be no pretense of 'his being entitled to any relief on account of defect of title.
    Is there any reason for making a distinction between purchasers? When a judgment creditor undertakes to purchase the property of his debtor, he places himself on a level, as to the rights, with all purchasers; if he realizes a good bargain, he is fortunate; if he makes a bad bargain, he is in the same situation as others who are disappointed in their speculations. He has no rights as a purchaser which other purchasers .are not invested with. If, then, any other person purchasing under the same execution could have had no relief on account of a want of a title in Lytle, the plaintiff can have no relief.
    But it is supposed that the case of Arnold v. Fuller’s Heirs, 1 Ohio, 4G3, has some application to the case favorable to the plaintiff. We think that case decides nothing favorable to the plaintiff. In that case, the proceedings subsequent to Fuller’s death were adjudged irregular and void. The decision is nothing more than the recognition of a familiar principle, viz: whenever a judgment debtor dies before levy, it is irregular to proceed on the judgment until there are proper parties in court. There is no irregularity-pretended in the present case. The judgment was properly obtained; there was no change of parties; the execution was issued, levy made, land sold, sale confirmed, and deed made, while the parties were all living. There is not a single feature, therefore, presented in this case, which formed the foundation of the judgment in the case of Arnold v. Fuller.
    The simple and only proposition presented in the present case is, whether the mere fact of Lytle’s having no title to the land sold is sufficient to induce the court to set aside the sale. We think not. We think that if such applications are listened *to, [482 there will be no end to litigation. The judgment creditor is the last man that ought to be permitted to make such an objection. He knows, or ought to know at the time of making his levy, what right the judgment debtor has, and if he buys that right he ought to be held to his bargain. He brings the property to sale at such time as he pleases, and has, in short, the whole control of the sale and bid, while a third person, who happens casually to attend the-sale, has no such control over the matter. The one, we have shown, could not resist the payment of the money on the ground of the-title being defective. We think the other stands in no better situation.
   Judge Wright

delivered the opinion of the court.

This is not a ease of void process, nor one where satisfaction has been entered upon a judgment by mistake. The case of Arnold v. Fuller, 1 Ohio, 466, and that of Stoyd v. Cady, 4 Day, 222, were both to vacate a satisfaction growing out of void process. The writ of execution in the case before us was valid, and the-levy, appraisement, sale, examination by the court, order for deed, and the execution of the deed, all in fact took place. The case discloses an alleged after discovery of a failure in the title of the judgment debtor, whereby the plaintiff failed to realize the satisfaction or the profit he expected, wherefore he prays that all the-proceedings may be set aside, and an opportunity afforded him to proceed again by new execution.

The maxim caveat emptor applies to all purchasers at sheriff’s-sale. In Smith v. Painter, 5 Serg. & R. 225, the judge pronouncing-the opinion of the court, says : “ The sale by sheriff excludes alL warranty. The purchaser takes all risks. He buys on his own knowledge and judgment. Gaveai emptor applies in all its force to him. If this- was not the law, an execution, which is the end •of the law, would only be the commencement of a new controwersy.” The defect of title is no reason for setting a sale aside which has been fairly made. If there is fraud, that will affect ¡sales by sheriffs as it will all other sales. A case is reported in 9 Serg. & R. 156, of a suit brought by the sheriff for the purchase ■money. The defendant pleaded that the judgment debtor, at the ■time of the levy, etc., had no estate, right, title, or interest in the land sold, having, bona fide, sold and conveyed it by deed of prior •date. The court held it no defense that there was no title. They ,say: “ It is a mistake when it is supposed the sheriff sells a sound 483] *title. He sells the claim of the defendant, and no more; .as free and as clear an estate as the debtor held.” The same doctrine is recognized in 11 Serg. & R. 138, and 1 Call, 24.

If we were disposed to disregard the maxim caveat emptor, and •introduce a new rule, how would the case before us stand? Has the plaintiff entered upon the land he purchased and been evicted? •Or does any one dispute his right to hold? Is the land still vacant, and has there been no attempt on the part of the purchaser to obtain the possession ? Has he tried his title at law, and been •defeated? The averments in the writ do not respond to these inquiries. The allegation is that the defendant had no title at the time of the levy, and has acquired none since. There is no express allegation that the title is outstanding in any one else. It ■seems to be an attempt in this way to try the title of the judgment debtor in the land levied upon, at the instance of the plaintiff, and purchased by him. The writ, indeed, calls upon the defendant to set forth his title and assert a claim, if upon examination it shall be adjudged insufficient for any cause, that the levy and all subsequent proceedings may be vacated; though, perhaps, the cause for which the title is adjudged insufficient may be that of a conflicting claimant, who may never set it up, or in any way .use it against the right of the purchaser. It has more the appear.ance of a bill in chancery for discovery and relief, than a writ of scire fictas to assert a mere naked legal right.

We are of opinion the writ itself shows sufficient cause against granting its prayer, and sustain the demurrer. Judgment for the ■defendants for costs.  