
    JOHN COX vs. CATHARINE COX et al.
    1. A purchaser at a judicial sale has no right to question the regularity of the proceedings prior to a decree of sale.
    2. But such a purchaser will not be required to take a doubtful title, however derived or acquired.
    3. A title by adverse possession, when that possession has continued . for such period as is required by the Statute of Limitations to bar an action, is as good a title as any.
    4. Where a perfect title by more than forty years’ adverse possession has been shown beyond a reasonable,doubt the court will require the purchaser to comply with the terms of sale.
    In Equity.
    No. 10,329.
    Decided November 5, 1888.
    The Chief Justice and Justices James and Merrick sitting.
    Appeal by a purchaser at a judicial sale from an order requiring him to comply with the terms .of sale.
    The Pacts are-stated in the opinion.
    Messrs. Carusi and Miller for purchaser.
    It is true that a trustee appointed by a court of equity is the agent of the court to sell, and the sale made by him is a transaction between the court and the. purchaser; and it may be claimed by the. complainant and defendants that the doctrine of caveat emptor applies. Yet, if before payment of money and notification of sale, the purchaser discovers a defect of title, at a proper time he may be relieved from his purchase by asking the court a rescission of the same. Bolgiano vs. Cooke et al., 19 Md., 375; Ridgely vs. McLaughlin, 3 H. & McH., 221, 222; Glenn Morton vs. Clapp, 11 Gill, 10.
    Again, it is well settled in equity, that a specific performance of a contract of purchase will not be decreed at the instance of vendor unless his ability to make a title is unquestionable.
    If no incumbrance be communicated to the purchaser, or known to him to exist, he must suppose himself to purchase an unincumbered estate, and therefore his objection to taking it need not be confined to cases of doubtful title, but may even extend to encumbrances of any description, which may embarrass him in the full enjoyment of his purchase. Gar-nett vs. Brooks, 2 Call (Va.), 308.
    Also a court of equity ought not compel a purchaser to take an estate which it cannot warrant to him. It has, therefore, become a settled rule that a purchaser should not be compelled to accept a doubtful title. Craig vs. Shatto, 9 Watts & Sergt., 83, 84.
    Again, it is settled, a court of equity will not compel a purchaser to take a doubtful title, if there is such an uncertainty about the title as to ajfect its marketable value, and even though a court might consider it good, still the contract may not be specifically enforced. Vreeland vs. Blimvelt, 23 N. J. (Eq.), 485.
    It is settled that “ when parties enter upon land and take possession without title or claim or color of title, such occupation is subservient to the paramount title, not adverse to it.” Harvey vs. Tyler, 2 Wall., 348, 349; Society & Co. vs. Town of Powlett, 4 Peters, 504.
    Messrs. Ralston and Thomas for the trustees.
    Admitting that error was committed .by the equity court in the exercise of its jurisdiction, is the title of the purchaser affected thereby? The title cannot be called in question by any collateral attack. Thompson vs. Tolmie, 2 Peters, 168. Voorhees vs. Bank of the U. S., 10 Peters, 474.
    A later and the leading case upon this subject in the United States Supreme Court is Grignon’s Lessee vs. Astor, 2 Howard, 340, in which the court say:
    “ The granting the license to sell is an adjudication upon all the facts necessary to give jurisdiction, and whether they existed or not is wholly immaterial, if no appeal is taken; the rule is the same whether the law gives an appeal or not; if none is given from the final decree it is conclusive on all whom it concerns. The record is absolute verity, to contradict which there can be no avermeiit nor evidence; the court having power to make the decree, it can be impeached 'only by fraud in the party who obtains it. 6 Peters, 729. A purchaser under it is not bound to look.beyond the^decree; if there is error in it, of the most palpable kind, if the court which rendered it have, in the exercise of its jurisdiction, disregardéd, misconstrued, or disobeyed the plain provisions of the law which gave them the power to hear and determine the case before them, the title of, a purchaser is as much protected as if the adjudication would stand the test of a writ of error; so where an appeal is given, but not taken in the time prescribed by law.”
    To like effect see Ex parte Tobias Watkins, 3 Peters, 193; Gunn vs. Plant, 94 U. S., 664; Miller vs. U. S., 11 Wallace, 268; Griffith vs. Bogert, 18 Howard, 158; Bolgiano vs. Cooke, 19 Md., 375.
    The purchaser at a chancery sale is not only not “bound” to notice any errors in the proceedings or testimony, but he can not escape from his purchase by relying upon them. Bolgiano vs. Cooke, 19 Md., 375.
    Besides being insisted upon in many of the cases already referred to, the following-named cases decide that the rights of purchasers under sales made by the trustee will be protected and the sales remain valid, though the decree be reversed. Ward vs. Hollins, 14 Md., 166; Dorsey vs. Thompson, 37 Md., 45; Davis vs. Gaines, 14 Otto, 391.
    The second objection insisted upon by the purchaser to the completion of his purchase is that the title offered by the trustees is one obtained by adverse possession, and not of such nature as he may be required to accept. Such a title is, in the eyes of the law, as good as any other title.
    An adverse possession for the statutory period vests in the possessor an absolute fee-simple title, equally available either for attack or defense with a valid fee-simple title otherwise acquired. Harpening vs. Dutch Church, 16 Peters, 455; Leffingwell vs. Warren, 2 Black, 599; Bicknell vs. Comstock, 113 U. S., 149, and cases there cited.
    In the present case John H. Eaton obtained title by sale under execution, in 1821, against Wm. O’Neal, O’Neal at that time possessing a title free from outstanding trusts. Such a sale conveyed title to Eaton, though no deed was made till 1854. See Remington vs. Linthicum, 14 Peters, 92.
    The title of the purchasers under tax sale was complete by adverse possession against John H. Eaton by the time of his death in 1856. Eaton’s successor in title, his wife, was sui ju/ris, and there was nothing to extend the running of the statute against either the Eatons or the heirs of WTlliam O’Neal.
    A purchaser will in equity be compelled to take a title shown to be perfect by adverse possession. Daniell’s Chancery Pleading and Practice, 989, note 3; Scott vs. Nixon, 3 Drury & Warren, 401, 404, 408; Shriver vs. Shriver, 86 N. Y., 575; Seymour vs. DeLancey, 1 Hopkins, 436; Shober vs. Dalton, 6 Phila., 185; Pratt vs. Eby, 67 Pa. St., 376.
    The right to use affidavits, or depositions in attempts to enforce specific performance in supporting a claim of adverse possession is fully recognized in many of the above cited cases. In Scott vs. Nixon (supra) two affidavits were received by Lord Chancellor Sugden as satisfactory evidence of adverse possession. Similar- procedure met with the approbation of Justice Folger and the Court of Appeals of New York in Shriver vs. Shriver (supra). A like course was allowed in Seymour vs. De Lancey.
    The objection that the creditors of ''William Cox may assert claims against the real estate is without force. The proceeds of the sale will be in the hands of the officers of the court, subject to any order which the court may pass. The personal estate is insufficient to pay the debts of William Cox. Where a partition is sought among the heirs, or where a deceased debtor’s real estate has been decreed to be sold in any other manner than by a creditor’s bill, any creditor of such deceased person may be permitted to come in by petition, and -have his claim allowed and paid out of the whole or the surplus of the proceeds of the realty of the deceased so far as they will go, considering the surplus as a residuum of the real assets which had been taken from the hands of the heirs,, and the trustees may give such notice as was adopted in this case to the creditors to bring in their claims. Fenwick vs. Laughlin, 1 Bland, 474; Gaithers vs. Welch, 3 G. & J., 259; Griffith vs. Parks, 32 Md., 5.
   Mr. Chief Justice Bingham

delivered the opinion of the Court:

This was a suit on behalf of John Cox,- an infant, by his next friend, Seignelay C. Elliott, against the defendants (all of whom are infants except Catharine Cox, the widow, and Patrick Cox, administrator of the estate of William Cox, deceased), for the partition or sale of lot 116, in subdivision of part of square No. 510, of which it is alleged the said William Cox died seized.

The bill alleges that “it will be to the interest and advantage, &c., to have partition made, or in case that cannot be had, that the same may be sold.-” .

The. infants, by their guardian ad litem, filed their answers in the usual form — that, being infants, they submit their rights to the court.

The defendant, Catharine Cox, substantially admits all the allegations of the bill.

The administrator admits the allegations of the bill and states the amount of the debts against the estate to be $1,424.48 on the 27th' of April, 1887; that thé amount realized from sale of personal estate was $399.59, and that he consents to a sale of the real estate, and asks that before distribution of the proceeds of sale he be paid so much as may be necessary to pay debts.

Replications were filed to the answer of Mrs. Cox, also to the answers of the infants and the administrator.

Some testimony was taken in relation to the propriety of partition, or as to whether the premises were divisible without injury and as to the value of the premises. Upon the hearing the court decreed a sale of the property, and the trustees advertised the property, and on the 8th day of June, 1887, sold it to one Owen Shugrue, for the sum of $4,425.

The appellant, Shugrue, refused to comply with the terms of sale, and upon a rule issued on the 23d of July, 1887, to show cause why he did not comply, he, on the 29th of July, 1887, filed his answer setting forth his reasons for not complying, which were substantially as follows:

1. That there was error because the decree for sale was granted without proof being adduced of certain allegations contained in the bill.

We think it is well settled .by the authorities that a purchaser at a judicial sale has no right to question the regularity of the proceedings had before the decree of sale was entered upon which the purchase was made. He is not a party to the action,,and has no right to appeal nor to prosecute error for any irregularity in the proceedings prior to the decree of sale. He is only brought in connection with the case by his purchase in a collateral way.

This objection is not well taken.

The second objection is that, inasmuch as the title offered to be conveyed by the trustees is simply one of adverse possession, it is not such as the purchaser will be compelled by the court to take.

There can be no question but the title by adverse possession, when' that possession was continued for such period as is required by our Statute of Limitations to bar an action, is as good a title as any. It is a fee-simple title, and is as effective as any otherwise acquired. •

It is, however, a rule of law that- a' purchaser will not be compelled to take a doubtful title, however derived or acquired, and the only question here is .whether the evidence in the case is such as establishes with certainty title by adverse possession in these parties and their predecessors in possession of the premises.

We have carefully examined the evidence and, without stopping to recite or discuss it, are convinced that it shows title for more than forty years in the parties who are represented by the parties in this case.- A perfect title having been shown beyond reasonable doubt in these parties, the purchaser by taking a deed will acquire a good title to the premises.

The order of the court below will be affirmed.  