
    Bumpas vs. Gregory.
    Where an entry is sold by execution sale, and the sheriff does not transfer the entry or warrant, the purchaser at the sale acquires the equitable right to the land embraced in the entry.
    If the debtor, whose entry has been sold at execution sale, procures the grant to issue to himself, he holds the land as trustee for the purchaser.
    The purchaser of an entry at execution sale, can in equity divest the title of his debtor, (who procured the grant to issue to himself, after the sale of the entry), unless the debtor has legally redeemed, or offered to redeem the land, by payment of the purchase money under the provisions of tli9 act of 1820, ch. 11.
    Several entries were made by A. Numbered 30, 31 and 48, which were afterwads vacated, and the warrants entered elsewhere; but part of the land covered by the original entries were also covered by the last entries. The former entries were levied on and sold, the plaintiff not knowing they had been vacated: Held, that the purchaser at the sale acquired no title to any part of the land embraced by the last or removed entries, although they included a part of the land embraced by the original entries.
    
      Quere. How far a court of equity will relieve a purchaser at execution sale, where the debtor had no title to the property levied on and sold.
    This was a bill filed by Bumpas against Gregory, to divest the title to certain tracts of land, described in the bill, and to vest it in the complainant. The material facts alleged and proved, or admitted in the answer, were, that Bumpas recovered a judgment on the-of August, 1821, against Gregory, for three hundred and forty-seven dollars, subject, however, to a credit of $116; upon which execution issued, and was levied upon four entries of land, as the property of Gregory, to wit: Entries No. 30 and 31, for one hundred and sixty acres of land each; Nos. 48 and 161, for three hundred and sixteen acres each. The entries were advertised and sold on the 8th August, 1822. No. 30, for $57; No. 31, for $53; No. 48, for $130; and No. 161, for $102. When the last entry, No. 161, was sold, the previous bids for entries No. 30, 31 and 48, deducting costs, left only fifteen dollars due upon Bumpas’ execution. Bumpas bid off entries No. 30, 31 and 48; and a man by the name of Caldwell, bid off entry No. 161, for $102, but he, in fact, bid it off for Bumpas, and gave the sheriff an order, transferring it to Bumpas. After these sales were made, the sheriff did not transfer the entry and warrant No. 161 to Bumpas or Caldwell.
    Previous to the levy and sale of the entries by the sheriff, Gregory had vacated the entries No. 30, 31 and 48, upon the surveyor’s books, and withdrawn the warrants and made other entries by virtue of them. Two of these last named entries covered a part of the same land, which had been covered by the vacated entries: upon the entries last made, grants issued to Gregory.
    After the sheriff’s sale, Gregory went to Caldwell to redeem the entry No. 161, and tendered to him the amount bid, and ten per cent thereon. Caldwell then informed him he had bid the entry in for Bumpas, and had trans ■ ferred it to him; whereupon Gregory tendered to Bumpas -for the purpose of redeeming th'e entry, fifty dollars, which, with the $87 due from Bumpas for the excess in the bid, of entry No. 161, over and above what was due upon the execution, was more than sufficient to redeem the entry, unless the previous bids for entries No. 30, 31 and 4S,- which had been vacated, but which fact was unknown to Bumpas, could be taken into the estimate. Bum-pas refused to receive the money, or permit him to re-deerit. Gregory, then, as the sheriff had not transferred the warrant and entry to Bumpas or Caldwell, took the plat and certificate to the Register’s office and obtained a grant. The Chancellor divested the title to the land covered by entry No. 161, and so much of the land covered by the original or vacated entries, as was also embraced in tire entries last made, and vested it in complainant; from which decree, Gregory appealed to this court.
    
      
      Geo. S. Verger, for complainant.
    1st. As to so much of the land covered by, and embraced by both the original or vacated entries, and the entries last made, the Chancellor’s decree ought to he affirmed. The sheriff sold all the right, title and interest, which Gregory had to the land described by the entry, and, whether Gregory held it by his first or second entry, or in what manner he acquired the title, makes no difference; his title, such as it was, whether derived from the State by his first or second entry, passed to the purchaser, by the sheriffs sale. By tins sale, Bumpas acquired the equitable right; and as Gregory has obtained a grant, vesting the legal title, it was correct in the Chancellor to divest it. He cited upon this part of the case, the acts of 1794, ch. 5, sec. 7; 1809, ch. 31; 1819, ch. 48, and 1827, ch. 25.
    2nd. Did the chancellor err in divesting the title of the 160 acre entry out of Gregory, and vesting it in complainant? It is insisted he did not. By the sale of the sheriff, the equitable right to the land, and the right to call for the grant, was vested in the complainant, notwithstanding the sheriff did not transfer the entry and warrant, or plat and certificate of survey. The subsequent procurement of the grant by Gregory, was a fraud upon Bumpas. Gregory holds the legal title, in trust for Bum-pas, and Bumpas has the right to have it vested in him now, unless the tender made by Gregory was a valid one, under tire act of 1820. If he did not tender enough to Bumpas, he has no right to redeem, because this is made a condition precedent by the act. See Hawkins vs. Ja-mison, Martin & Yerger’s Rep. 83: Elliott vs. Patton, 4 Yerger’s Rep. 10: Dickinson vs. Garlow, 1 Cowen’s Rep. 481.
    It is insisted for Gregory, that the bids made by Bum-pas for entries No. 30, 31 and 48, extinguished or satis-Red the judgment, except for the sum of fifteen dollars; that entry No. 161 was bid off at $>102, leaving a balance due to Gregory from Bumpas of eighty-seven dollars; which, added to the fifty dollars actually tendered, amount* ed to $137, which was more than the bid of $102, and ten per cent thereon. This is true, if the bid for entry No. 48 can be counted: but as that entry was wholly vacated, and another entry made with the warrant, no part of which latter entry was embraced by the former, and as die fact, that it was vacated was not known to Bumpas, he acquired nothing by his bid. The title which was once in Gregory by this entry, was divested by his Qwn act; he had no interest, therefore, to sell; this bid, made under such circumstances, cannot be an extinguishment of the judgment for its amount in equity; and- if it is not, Gregory did not tender as much as was due to Bumpas, and therefore has no right to redeem.
    This leads us to an examination of the question, how far a bid made under the above circumstances- is a satisfaction of the judgment, when purchased by the judgment creditor, or another.
    It is admitted, that when the purchaser knows all the facts, the rule of caveat emptor applies; and that at law, there is no warranty of title, express or implied. But when A has a good and available title, which he has secretly parted with by bond or otherwise, or where the property of A is levied upon and sold to pay the debt of B, no actual satisfaction having been received, a court of equity will interfere, not upon the ground of contract, express or implied, but that of mistake and ignorance, or upon those principles of natural law and justice, which induces it' to interfere and substitute a surety, who has paid the debt of his principal in the place of the creditor. See 4 John. Ch. Rep. 130: Domat’s Civil Law Book 1, title 2, sec. 11: Rhodes and Kelly vs. Crockett and Adams, 2 (Yerg. Rep. 347).
    In equity, it is a general rule, that an act done, or a contract made, under a mistake or ignorance of a material iact, is voidable and renevable there. 1- i1 onb. Equity, Book 1, ch. 2, sec. 7: Bigham vs. Bingham, 1 Vesey, 126: Hitchcock vs. Giddings, 4 Price’s Rep. 135, 141: 2 Kent’s Com. 468, 469, (2d edition): Jeremy’s Eq. Book 3, ch. 2, page 366, 387: Leonard vs. Leonard, 2 Ball and Beatty, 179, 180: Gordon vs. Gordon, 3 Swan-ston, 462, et seq. Here Gregory evidently had the title covered by the original entries; he vacated them, and thus divested his title, which fact was unknown to Bum-pas; had it been known, he would not have bid. It is surely a ground for equity to interfere and declare the bid or pinchase void, upon the ground of mistake.
    If a third person had bid or purchased, equity, upon a bill filed by him, would substitute him in tile place of the creditor to whom he paid his money. If the creditor bid or purchased, equity will rescind the bid, and in both cases, decree that the judgment shall remain as a security for the payment of the amount due.
    Upon the above principles, the court of appeals of Kentucky has decided aiid settled this question. M’Gee vs. Ellis and Browning, 4 Littel 244: 7 Monroe’s Rep. 206: vide, also, 12 Mass. Rep. 195: 2 New Ham. Rep. 83, to 86 and 90.
    But again: this cause can be decided upon another prin-ple. The land was once Gregory’s, but he sold or exchanged it with the State, before the judgment was rendered, and received its value. Although it is not expressly averred, yet it is believed, it substantially appears from the pleadings, that he knew it was levied on, and was advertised to be sold. Was it not his duty to disclose the fact, that he had made the entries void? and will not this, in equity, constitute such a fraud as will authorize its interference?
    The books tell us, that that may be a fraud in equity which is not so at law, 1 Maddox, Ch. 261.
    A great authority has said, “that cases cannot always be found to serve as direct authority for subsequent cases, , .» . , e , J \ x- i < but it a case arises, oí iraud or presumption of Iraud, to which, even no principle already established can be applied, a new principle must be established to meet the fraud, as the principles on which former cases have been decided, have been from time to time established, as fraud contrived new devices.” Lord Redesdale in Webb vs. Rorke, 2 Sch. & Lef. 566.
    All deceitful practices and devices, and concealments of facts, where the party is morally bound to speak, are frauds at common law; but for some acts or frauds, there is no remedy at law, in which case they are cognizable only in equity, as one of the chief branches of its original jurisdiction. Pree in Chan. 161: 1 Chitty’s Eq. Digest, 460.
    “It is clearly agreed, that all covins, frauds, &c. for which there is no remedy at law, are cognizable in equity.” 3 Bac. Ab. Fraud, B.
    Is not the concealment by the debtor, of the fact, that he had previously sold property, (which to all appearance was his), a fraud upon the purchaser?
    Suppose he had communicated the fact to the sheriff, and he had concealed it, the sheriff, as the agent of both parties, would, for this fraudulent concealment, be liable to the purchaser, as an attorney and agent was made liable for concealing an encumbrance. Arnol vs. Biscoe, 1 Yes. 95.
    If the agent would be liable, surely the principal will not be exonerated.
    Suppose A purchases B’s estate, and has a bond for title; the estate is levied on, and about to be sold as B’s property; A knows this fact, and does not interfere to put the parties on their guard; this concealment of the truth or fact, is fraudulent, and he is liable to the purchaser. 1 Mad. Ch. 263, 5: 1 John. Ch. Rep. 344, 354: 5 John. Ch. Rep. 166.
    If the purchaser in such case is responsible for the eon-cealment, a fortiori his vender will also be, because it is more imperatively his duty, than the former, to disclose the fact; for, by his fraudulent silence, he not only injures a third person, but benefits himself; whereas it is no benefit to the purchaser, but merely an injury to others. Maddox says, (1 vol. 265) “There are a great variety of cases where a person’s silence contributes to establish a fraud, and he has been compelled to remedy the mischief his fraudulent silence has occasioned.”
    In Decosta vs. Scandred, 2 P. Wms. 169, a person having heard a doubtful account of his ship, had her insured, but concealed what he had heard; the concealment was held a fraud, and he was decreed to take no benefit by the insurance.
    So, when A was tenant in tail, remainder to B: A not knowing of the entail, made a settlement on his intended wife; B knew of the settlement, but did not disclose the entail; A died; and it was held that B was guilty of a fraud, in concealing the entail; for had it been known, his brother might have suffered a recovery, and barred the entail. 3 Bacon’s Ab. 299. So, here, Gregory was guilty of a fraud in not making known the fact of his selling and making void the entries; had he made it known, the sale would not have taken place.
    3. If the above principles be correct, the sale and bids for entries No. 30, 31 and 48, amomited to nothing, the judgment for that amount ought not to be considered satisfied; and as entry No. 161 was sold, and the creditor purchased it for $102, and as that amount was not tendered by Gregory, the absolute right to entry1 No. 161, is in the .complainant, and ought now to be decreed to him.
    But if the court be of a different opinion upon these points, still it is conceived before it will permit Gregory to redeem, it will compel him to do justice. Whether the bids for entries No. 30, 31 and 48, are available or not, still, he cannot redeem without paying the judgment. It is .evident Bumpas acquired nothing, for the property he bid for, belonged to the State, and not to Gregory. As Gregory, therefore, has in fact paid nothing towards the extinguishment of this judgment, either in money or land, except so far as the bid for entry No. 161 goes, before he can redeem that, the court will compel him to do equity. Franc’s Maxims, 175, 179: Comyn’s Dig. Can. 3, F. 3.
    
      F. B. Fogg, for defendant.
    The chancellor’s decree was erroneous: 1st. By the sheriff’s sale of entries No. 30, 31 and 48, no right or interest passed or vested in the complainant. Previous to the sale, the entries had been vacated by the defend- ' ant, as by law he had the right to do, and although part of the land covered by the original entries, were also covered by the last entries, yet it could not pass by the sale, because it was the original entry, or the land which it authorized to have granted, that was sold, and if the entry was made void, it gave no authority to get a grant, nor could any issue upon it. The sale of entries at execution sale, by virtue of the act of 1794, and other subsequent acts on the same subject, is materially different from a sale of lands by metes and bounds, which have been granted.
    2nd. The chancellor erred in divesting the title out of Gregory, to the land covered by entry No. 161, and the grant founded thereon. Gregory tendered to Bumpas fifty dollars; the bids of complainant for entries No. 30, 31 and 48, after deducting costs, &c. left only fifteen dollars due to complainant upon his judgment. The bid for entry No. 161, was $102; consequently, complainant owed to defendant eighty-seven dollars, he tendered him fifty, which made $137; more than the $102 bid, and ten per cent interest thereon.
    But it is said, the previous bids were for entries which were vacated by the defendant; that in equity they are void, and that the defendant ought to have tendered their amount.
    
      In sales ]w execution, there is no warranty express or . .. . . ^ r implied at law.
    The rule of law in such cases is caveat emptor. Henderson vs. Overton, 2 Yer. Rep. 396. And where there is no liability at law, equity cannot create one. Ib. In such case, equity follows the law. Francis’ Maxims, 9: IJDane, Ab. ch. 9, article 1, sec. 2; Cowper vs. Cowper 2, P. Wins. 753. But,
    3. It is alleged that the defendant fraudulently concealed the fact that he had vacated his entries, which it was his duty to declare. There is no allegation of this land in the bill, nor was it framed with a view to such a case, nor is there any proof that the defendant knew the entries he had vacated were levied upon, consequently, he could not be guilty of a fraud, and it is believed, in the absence of legal fraud, the want of title in the debtor, will dot exonerate the purchaser at execution sale from the payment of the money bid by him, whether he knew the defendant’s want of title or not.
    The complainant contends that his judgment ought to be satisfied by the payment of the money yet due upon it, before the court will permit the defendant to retain the title. Whether the defendant can be compelled to pay the money or not, under the circumstances, need not be enquired into, as he is willing to do so.
   Catron, C. J.

delivered the opinion of the court.

In August, 1821, Bumpas recovered a judgment against Gregory, in Giles county, for three hundred and forty-seven dollars. Execution was issued, and levied upon four entries of land, No. 30, for one hundred and sixty acres; number 31, for one hundred and sixty acres; number 48, for three hundred and sixteen acres, and number 161, for three hundred and sixteen acres.

The lands were advertised, and on the 8th August, 1822, were sold. Number 30, for $57; number 31, for $53; number 48 for $130, and number 161, for $102.

The ludgment, was entered for the full amount of a bul single; whereas, a credit ought to have been endorsed for $116, which was given by the plaintiffs counsel on the judgment, reducing the execution to 258 dollars 74 cents.

At the sheriff’s sale, Caldwell bid off the entry, number 161. The sheriff called upon him for the money some days after; when he said he had bid it in for Bum-pas, the plaintiff in the execution, and gave the sheriff an order to transfer it to Bumpas. There was no evidence that Gregory had any knowledge of this. He had, before the sale, removed to Alabama. The entry, number 161, was worth about $1,000. He presently came to CaldweE to redeem, and offered him the $102; the amount bid, with ten per cent, interest. But Caldwell informed him he had never paid the sheriff any thing, and had transferred his bid to Bumpas.

The previous bids by Bumpas, for entries numbers 30, 31, and 48', had reduced the' execution to $15. Bum-pas had paid the sheriff no part of the excess between $102 and $15; $87 was, therefore, due Gregory. The latter, therefore, knowing he did not owe in fact the $102 to Bumpas, offered him $50 as redemption money, but Bumpas treated the offer with scorn, and asked Gregory if he intended to insult him.

The execution is lost, and what facts appeared upon it we cannot tell; nor is it known whether it ever was returned; very probably not. Gregory had certain information that Caldwell had purchased his land; to him he had the right prima facie to malte the tender. He did make it in good faith. He was then sent to Bumpas to pay the money to him, who. refused to receive the money tendered, or have any intercourse with Gregory. Under diese circumstances, we think Gregory clearly had the right to redeem entry No. 161, if the money tendered was as much as was due.

But then, he placed himself in an attitude to force Bumpas into a court of equity. The sheriff did not transfer the entry and warrant to Caldwell or Bumpas; and Gregory took the plat and certificate to the register’s office, a|id obtained a grant. The sale had vested the title in the purchaser, and Gregory has no more right to obtain a grant than a third person. He, therefore, holds as trustee for Bumpas, who must have the land decreed to him, unless Gregory redeems it, and retains the title by extinguishing Bumpas’ equity.

The question then arises, did Gregory tender redemption money enough to Bumpas? And this raises another question: What was the effect of Bumpas’ bids for entries, Nos. 30, 31, and 48. Before the levy, two of these entries had been vacated on the surveyor’s books (the then practice); the warrants withdrawn by Gregory, and other entries made by virtue of them. Two of these entries covered part of the same lands, covered by the vacated entries. For so much, it is insisted, the purchaser at execution sale acquired title. Gregory proceeded to obtain grants on the entries last made; and for so much land as was covered by the former entries, the chancellor decreed specific performance; divested the title out of Gregory, and vested it in Bumpas.

The sheriff levied upon, advertised, and sold, all the right, title, and interest, that John Gregory had in, and to, Nos. 30. 31, and 48; it is insisted for Bumpas, this was a sale of the right and interest Gregory had to the land described by the entries, and that it matters not by what title Gregory held it, such title was vested in the purchaser; and so thought the chancellor. And such would have been the fact, had the sheriff sold the lands by metes and bounds, as granted lands; but with entries it is otherwise. Before the passage of the act of 1794, ch. 5, sec. 7, the equitable title vested by an entry, was not subject to the lien- of judgments, and the satisfaction of executions at law. That act declares they may be levied on and sold as granted lands; and the mode of conveyance by the sheriff, shall be by an assessment of the. warrant, and „ , , J , , ’ „„„ transfer or the entry to the purchaser. 1 he act of 1809. amends the act of 1794, and provides that the surveyors shall permit such transfers, and shall make out plats and certificates of survey, in the name of the assignee and purchaser, on which the register shall issue a grant to him; and if the assignee shall discover, that the entry so assigned to him, or any part thereof, has been taken away by a prior entry, he shall have the same power to remove the warrant, and enter it on vacant land, that any other owner of a warrant has. The act of 1819, ch. 48, authorizes the sheriff to transfer the plat and certificate, if the entry has been surveyed.

The sheriff could only sell that to which he could make title, or cause title to be made. The legal right to the land was in the state; and the equity to obtain that right, is what the sheriff sells in cases of entries. What equity did Bumpas acquire by his bids? Certainly no interest in the warrant; for that was withdrawn from the entry. But it was supposed by the chancellor, he took an interest in the land to any extent Gregory had an interest. Suppose this to be so, and that Gregory had not vacated the entry, and Bumpas had taken title to it, and the warrant on which it was founded, and that the entry had lapped over an older grant of Gregory; then, pursuing the chancellor’s idea, Bumpas would have held the land by virtue of Gregory’s grant; and by virtue of the act of 1809, could have raised his warrant and located it elsewhere. Such idea never entered the mind of the legislature. Whatever title is vested in the debtor, by an entry, the purchaser acquires at an execution sale of an entry and warrant. If there be land appropriated, he takes it; if none, he takes the warrant with authority to locate it elsewhere. If there be neither land or warrant, he takes nothing. And such is Bumpas’ case. This part of the decree must, therefore, be reversed.

One of the entries, No. 48, had been sold by Gregory t0 Smith, before the execution sale, and was not subject to the levy.

Bumpas having, therefore, not acquired any title to the lands sold, save to the entry No. 161, for 316 acres, and holding the tide to' this, subject to Gregory’s right to redeem, by virtue of the statute, the next question is, on what terms can Gregory be let in to redeem? Shall he pay the full amount of the bids of Bumpas, for the void entries, and the entry sold to Smith, or only the balance of the judgment, deducting the sums bid for such entries.

It is insisted, for Bumpas, that Gregory stood by and permitted him to purchase an apparent title, without disclosing the fact, that the debtor had no interest subject to levy and sale; that Bumpas extinguished the judgment by his bids, and on die foot of fraud, can come into equity for relief. But, 2. If not on the foot of fraud, he may on the ground of natural justice and equity; that it had been so holden in Kentucky, in M’Gee vs. Ellis and Browning, 4 Littel 244; 5 Littel 136.

On the other hand, it is insisted, that 636 acres of land had been bid off by Bumpas, for the paltry sum of 240 dollars; the lands being worth at the least, according to the proof, three dollars the acre. That the bill was filed to enforce the sale, and obtain property, including entry No. 161, ten times the value of the judgment. And now that the attempt was defeated, the complainant assumed he had been defrauded, when no such thing had been alleged in the bill, or was any issue or proof made, bringing up for decision such grounds of relief. 2. That it had been holden, on authority of the British adjudications, in Henderson vs. Overton (2 Yerg. 396), that caveat emp~ tor was the undoubted rule in relation to titles, in cases of execution sales of land; that there is no warranty of title by any one; but if there was a warranty of title, as is supposed in Kentucky, on part of the debtor whose debt had been discharged, still the bill presented no such case, or claimed relief on any such grounds.

It is certainly true, the pleadings present no case to raise the questions referred to in argument; questions as delicate and difficult as could well be presented. But to ■obviate all difficulty, the defendant Gregory, offers to pay the full amount of the judgment originally due Bumpas, as the condition on which entry No. 161 shall be redeemed. Which offer the court directs be acceded to, and that each party pay their own costs.  