It is therefore not disputed that, upon the ground of the
absence from the state of the universal legatee, it was competent
for the probate court, upon the application of the executor, to
make an order for the sale of the testator's property.
The jurisdiction of the Probate Court of the Parish of Orleans
to admit to probate and record the wills of deceased persons is
unquestioned.
Its power and authority to order a sale of the property of a
testator, by virtue of article 169, book 3, tit. 2, of the code of
1808, is not and cannot be disputed. If the Fortiers purchased in
good faith under an order of sale made by the probate court, for a
valuable consideration, without any knowledge of the later will of
Daniel Clark, and while the authority of the executor appointed and
qualified under the first will continued,
Page 104 U. S. 391
and there was no fatal defect in the proceedings antecedent to
the sale and conveyance to them, does the fact that such later
will, making other dispositions of his property, was discovered and
admitted to probate render void their title?
We think this question must be answered in the negative.
A sale by order of a probate court is a judicial sale.
Moore
v. Shultz, 13 Pa.St. 98;
Grignon's Lessee v.
Astor, 2 How. 319;
Thompson
v. Tolmie, 2 Pet. 157;
Lalanne's Heirs v.
Moreau, 13 La. 431;
Howard v. Zeyer, 18 La.Ann.
407.
Such sales are therefore protected by the rule that a title
acquired at a decretal sale of lands made by a court in the
exercise of competent jurisdiction is not rendered invalid by the
reversal of the decree.
Ward v. Hollins, 14 Md. 158;
Irwin v. Jeffers, 3 Ohio St. 389;
Gossom v.
Donaldson, 18 B.Mon. (Ky.) 230;
Fergus v. Woodworth,
44 Ill. 374;
Gray v.
Brignardello, 1 Wall. 627,
68 U. S.
634.
In the case last cited, this court said:
"Although the judgment or decree may be reversed, yet all rights
acquired at a judicial sale, while the decree or judgment was in
full force and which it authorized, will be protected. It is
sufficient for the buyer to know that the court had jurisdiction
and exercised it, and that the order on the faith of which he
purchased was made and authorized the sale."
In the case of
McCullough v. Minor, 2 La.Ann. 466, the
Supreme Court of Louisiana said:
"The jurisdiction of the court was undoubted, and the
jurisprudence of the state has long been settled that a
bona
fide purchaser at a judicial sale is protected by the
decree."
But it is not necessary to rely solely on this general doctrine.
This Court and others have directly applied the law probate which
governs judicial sales to sales made by order of courts.
Thus, in
Thompson v.
Tolmie, 2 Pet. 157, this Court said:
"The law appears to be settled in the states that courts will go
far to sustain
bona fide titles acquired under sales made
by statutes regulating sales made by order of the orphans' courts.
When there has been a fair sale, the purchaser will not be bound to
look beyond the decree if the facts necessary to
Page 104 U. S. 392
give the court jurisdiction appear on the face of the
proceedings."
See also Grignon's Lessee v. Astor, supra. By a law of
Michigan passed in 1818, the county courts had power under certain
circumstances to order the sale of the real estate of a deceased
person for the payment of debts and legacies. In reference to a
sale of real estate made under this law, the Court said in that
case:
"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
averment or evidence. The court having power to make the decree, it
can only be impeached for fraud in the party who obtains it; 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 jurisdiction disregarded,
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. These
principles are settled as to all courts of record which have an
original general jurisdiction over any particular subjects; they
are not courts of special or limited jurisdiction."
"In the Orphans' Court and all courts who have the power to sell
the estates of intestates, this action operates on the estate, not
on the heirs of the intestate; a purchaser claims not their title,
but one paramount. The estate passes to him by operation of law.
The sale is a proceeding
in rem, to which all claiming
under the intestate are parties, which divests the title of the
deceased."
See also Erwin v.
Lowry, 7 How. 172;
Griffith
v. Bogert, 18 How. 158;
Florentine
v. Barton, 2 Wall. 210;
McNitt v.
Turner, 16 Wall. 352.
On the same subject, the Supreme Court of Appeals of Virginia,
in
Ballow v. Hudson, 13 Gratt. (Va.) 672, said:
"Considerations of public policy require that all questions
of
Page 104 U. S. 393
succession to property should be authoritatively settled. Courts
of probate are therefore organized to pass on such questions when
arising under wills, and a judgment by such a court is conclusive
while it remains in force, and the succession is governed
accordingly. A judgment of this nature is classed among those which
in legal nomenclature are called judgments
in rem. Until
reversed, it binds not only the immediate parties to the proceeding
in which it is had, but all other persons and all other
courts."
In
Lalanne's Heirs v. Moreau, supra, the Supreme Court
of Louisiana said: "Sales directed or authorized by courts of
probate are judicial sales to all intents and purposes, and the
purchaser is protected by the decree ordering them."
So in
Howard v. Zeger, supra, the same court said:
"A warrantor is not bound to look beyond the decree of the court
ordering the sale of succession property, and he acquires all the
right of the deceased to said property, and no more."
In
Grignon's Lessee v. Astor, supra, this Court said:
"Proceedings in a probate court to sell property of a decedent have
been held to be proceedings
in rem, to which all claiming
under the decedent are parties."
In
McPherson v. Cunliff, 11 Serg. & R. (Pa.) 422,
the court said that the decree of an orphans' court for the sale of
land was conclusive; that the proceeding was purely
in rem
against the estate of the intestate, and not
in
personam.
In
Lalanne's Heirs v. Moreau, supra, it was said
"that the decree of the court of probate ordering a sale of the
property of minors is so purely
in rem and against the
property, that a sale made under it extinguishes all the mortgages
existing in the name of the owner of the property sold."
In
Green v. The Baptist Church, 27 La.Ann. 563, the
same court held that purchasers are not bound at their peril to
inquire, when property is advertised for sale by an executor,
whether anything has occurred outside the court to destroy the will
under which he is acting.
In
Gaines v. De La
Croix, 6 Wall. 719, which was a bill filed by the
appellee in the present case against De La Croix to recover certain
slaves claimed by him under a sale made to
Page 104 U. S. 394
him by Relf, as executor of the will of 1811 of Daniel Clark,
the defendant claimed that his titles, derived by the purchase from
Relf, were valid because he purchased within the year, while the
functions of Relf, as executor, were in full force. In passing upon
this point, the Court said: "This is true if he purchased in good
faith, and the requisites of the law on the subject of the sales of
succession property were complied with."
The case involved two purchases, and both were held invalid, one
because it was made at private sale, and consequently the purchaser
acquired no title, and the other because, though made at public
auction, the court found that De La Croix had knowledge of the will
of 1813 and its contents, and "that he knew the will under which he
was buying was not the true will of Daniel Clark," and he therefore
"got the property in bad faith."
It is objected, however, that the discovery of a later will and
its probate showed that the will of 1811 was utterly void, and
could furnish no valid ground for the order of sale. But it must be
borne in mind that the will of 1811 had been duly admitted to
probate by a court which had jurisdiction of the subject matter and
whose duty it was to ascertain and declare whether the will
presented to it was in fact the genuine last will and testament of
the testator. Having declared the will of 1811 to be the genuine
last will of Daniel Clark, acts done under that probate in a lawful
manner until the discovery of a later will were valid and
binding.
The English authorities hold that the record of probate and of
the qualification of the executor is conclusive evidence of the
existence of the will and of his authority.
Allen v. Dundas, 3 T.R. 125, was an action on the case
brought by Allen as administrator of Priestman against Dundas for
money had and received to the use of the intestate and to the use
of the plaintiff as administrator. The defendant pleaded the
general issue. On the trial, a special verdict was found stating in
substance as follows: the defendant, as treasurer of the navy, was
indebted to the intestate in his lifetime �58, &c., for money
had and received to his use. Priestman died June 2, 1784; on Aug.
13, 1785, one Robert
Page 104 U. S. 395
Brown proved in the Prerogative Court of the Archbishop of
Canterbury a forged paper writing, dated May 18, 1784, purporting
to be the last will of Priestman, whereby he was supposed to have
appointed Brown the sole executor thereof, and a probate of that
supposed will issued in due form of law under the seal of that
court on the same day in favor of Brown. The defendant, not knowing
the will to have been forged and believing Brown to be the rightful
executor, on Brown's request paid him the �58, being the whole
balance then due from the defendant to Priestman. Afterwards, on
July 21, 1787, upon citation to Brown in the same court, the will
and probate were declared void, and it was further declared that
Priestman died intestate. On March 31, 1788, letters of
administration on the goods of Priestman were granted to the
plaintiff. Upon this verdict judgment was entered for defendant.
Upon this case, Buller, J., said:
"The first question to be considered is what is the effect of a
probate? It has been contended by the plaintiff's counsel first
that it is not a judicial act, and secondly that it is not
conclusive. But I am most clearly of opinion that it is a judicial
act, for the Ecclesiastical Court may hear and examine the parties
on the different sides whether a will be or be not properly made;
that is the only court which can pronounce whether or not the will
be good, and the courts of common law have no jurisdiction over the
subject. Secondly, the probate is conclusive until it be repealed,
and no court of common law can admit evidence to impeach it. Then
this case was compared to a probate of a supposed will of a living
person; but in such a case, the ecclesiastical courts have no
jurisdiction and the probate can have no effect; their
justification is only to grant probate of the wills of dead
persons. The distinction is this: if they have jurisdiction, their
sentence, as long as it stands unrepealed, should avail in all
other places; but when they have no jurisdiction, their whole
proceedings are a nullity."
The judgment was concurred in by Justice Grose, and, as appears
by a note at the end of the case, was approved by Lord Kenyon.
The same principle, that a probate is conclusive until repealed,
was adverted to in an indictment for forging a will in
Page 104 U. S. 396
Rex v. Vincent, 1 Stra. 481, where, on an indictment
for forging a will of personal estate, on the trial a forgery was
proved, but the defendant producing a probate, that was held to be
conclusive evidence in support of the will.
To the same effect is the case of
Wooley v. Clark, 5
Barn. & Ald. 746.
See also Williams on Executors (6th
Am. ed.) 590 and note (x'), where many cases of the same effect are
cited.
In
Packman's Case, 6 Co. 19, it was held that though
letters of administration be countermanded and revoked, a gift or
sale made by the administrator acting under the probate was not
thereby defeated.
To the same effect is the case of
Semine v. Semine, 1
Lev. 90.
So in
Graysbrook v. Fox, Pl.Com. 282, it was held that
where one is executor, not of right but of wrong, yet if he had
paid any debt due by specialty, or other thing which the law will
force the executor to pay, the true executor should have been bound
by it, and should have been obliged to allow it because the other
was compellable to pay it, and the true executor had no prejudice
by it, forasmuch as he himself should have been bound to pay
it.
In
Thompson v. Harding, 2 El. & Bl. 630, Lord
Campbell, C.J., said:
"When the executor
de son tort is really acting as
executor, and the party with whom he deals has fair reason for
supposing that he has authority to act as such, his acts shall bind
the rightful executor and shall alter the property."
The same doctrine is held in
Parker v. Kett, 1 Ld.Raym.
658.
The American cases are to the same effect. In
Waters v.
Stickney, 12 Allen (Mass.) 15, it is said that a new decree of
probate establishing a later will or codicil would not necessarily
avoid payments made or acts done under the old decree while it
remained unrevoked.
See also Peeble's Appeal, 15 Serg. & R. (Pa.) 39;
Kittredge v. Folsom, 8 N.H. 98;
Stone v. Peasley's
Estate, 28 Vt. 716.
In
Steele v. Renn, 50 Tex. 467, a question similar to
the one now under consideration was passed upon by the Supreme
Page 104 U. S. 397
Court of Texas, which held that
"the title of a purchaser in good faith of land, from a legatee
under a will duly admitted to probate, is not affected by
proceedings subsequently instituted and resulting in annulling the
will as a forgery."
Under the English law, by which probate of a will was only
required in reference to personal estate, it might well be that the
devisee of land took no title if the will were afterwards
discovered to be void. But in this country in most of the states,
Louisiana included, probate is required as well of wills of land as
of goods, and the same effect should be given to it as a judicial
act as to the probate of wills of personal estate in England.
Upon the doctrines and authorities above referred to, we are of
opinion that a sale of land, duly made by order of the probate
court having jurisdiction, and a conveyance thereof by the executor
of a will duly admitted to probate, while its functions were in
full force, to a
bona fide purchaser for value, vested the
purchaser with a good and valid title, which was not affected by
the discovery of a later will and its admission to probate and
record.
The validity of the title of the Fortiers, under whom the
appellant claims, depends therefore on the two questions: first,
whether there was any fatal defect in the proceedings and sale
under which their title was derived, and second whether they were
purchasers in good faith.
We have already seen that the proceedings and sale took place
within the year after the appointment of the executor, and that it
was competent for the court to order the sale by reason of the
absence from the state of the universal legatee named in the will
of 1811.
The appellee contends that there were fatal defects in the
proceedings and sale which rendered the title of the purchasers
void.
Firstly, it is said that there was no order for the sale of the
property in dispute, or rather that the order of sale made by the
probate court did not include it.
There is little ground for this objection. The petition was for
leave to sell all the property of the succession, movable
Page 104 U. S. 398
and immovable, and the order directed a sale accordingly. There
is no dispute -- in fact it is the basis of the appellee's title --
that the property sold was the property of the succession, and
before the sale took place an inventory was filed in which the
property in dispute was returned as belonging to the
succession.
There can be no question, therefore, that the order of sale
included the property which is the subject of this controversy. But
it has been expressly held by the Supreme Court of Louisiana that a
purchaser of land at a probate sale, under the order of a court of
competent jurisdiction, directing a sale of all the property of the
succession, is not affected by the failure of the executor to have
such land placed on the inventory, or to have it accurately
described in the inventory.
Mitchell v. Levi, 23 La.Ann.
630.
It is said, secondly, that the sale was not preceded by the
advertisements required by law, and thirdly that the inventory of
the property of the estate, in which was included the premises in
controversy, was not made until after the order of sale, and that
the part of the inventory which included them was not made by the
two appraisers appointed by the parish judge, but by appraisers
chosen by the testamentary executor, and it was only signed by one
of them.
There is evidence in the record tending to show that the sale
was duly advertised. The executor's conveyance recites that the
sale was made after "the publications and delays prescribed by
law," and the account of the executor, which had been of record in
the probate court for more than fifty years, shows that he paid for
advertising the sale the sum of $232.
As possession had been held under the deed for over sixty years,
its recitals are evidence even against strangers.
Carver v.
Jackson, 4 Pet. 83. And it has been held by the
Supreme Court of Louisiana that the account of an executrix
recorded in the probate court is competent evidence to prove the
advertisement of a sale.
Woods v. Lee, 21 La.Ann. 505. The
account was subject to exception. It passed under the scrutiny of
the probate court, whose duty it was to ascertain the balance due
upon it to the heir and render a final judgment
Page 104 U. S. 399
therefor. Civil Code, arts. 1183, 1184. It was therefore
necessary for the court to allow or disallow the item charged for
advertising the sale. As this item remains in the account as
recorded, it may be presumed that it was allowed by the court, and
after it has been of record for over fifty years, as in this case,
may be considered as competent evidence to prove that the
advertisement of the sale was made.
This evidence, uncontradicted as it is, is sufficient to prove
the fact of the advertisement. But whether this is so or not is
immaterial, for on March 10, 1834, an act of the Legislature of
Louisiana was passed, the second section of which declares:
"When a question shall arise out of any public sale heretofore
made by the sheriff, auctioneer, or other public officer, and which
sale was required by law to be preceded by advertisements, the fact
of sale being proved, it shall make
prima facie evidence
that the required advertisements were regularly made."
And this section has been continued in force to the present
time.
See Voorhies' Revised Statutes, 1876, p. 867, sec.
3391. But even if it were affirmatively shown that there had been
no advertisement of the sale, that defect, as well as the alleged
irregularities in regard to the inventory, is cured by the rule of
prescription established by the fourth section of the said act of
March 10, 1834, which is as follows:
"All informalities connected with or growing out of any public
sale made by a sheriff, auctioneer, or other public officer, shall,
after the lapse of five years from the time of making the same, be
prescribed against by those claiming under such sales, whether they
by minors, married women, or persons interdicted."
This section continued in force until 1870. It was then
substantially reenacted by the general provision contained in the
Revised Statutes of 1870, sec. 3392, p. 659, and by art. 3543 of
the Civil Code published in the same year, which declares as
follows:
"All informalities connected with or growing out of any public
sale made by any person authorized to sell at public auction shall
be prescribed against by those claiming under such sale after the
lapse of five years from the time of making it, whether against
minors, married women, or interdicted persons. "
Page 104 U. S. 400
This section is still in force. Voorhies's Revised Statutes,
1876, sec. 3392.
To entitle a party to claim the benefit of this provision of
this or any other prescription, it is made necessary by the
jurisprudence of Louisiana that he should have acquired the
immovable in good faith and by a just title. By the term "just
title" in cases of prescription is not meant that which has been
derived from the true owner, but that which has been received from
any person whom the possessor honestly believed to be the true
owner, provided it were such as to transfer the ownership of the
property -- that is, such as by its nature would have been
sufficient to transfer the ownership if it had been derived from
the real owner, such as a sale, exchange, legacy, or donation.
Arts. 3484 and 3485 Civil Code;
Pike v. Evans,
94 U. S. 6.
The deed of Relf, executor, to the purchasers falls within the
category above mentioned, or, in the language of the civilians, it
is translative of property. There is no defect upon the face of it.
The only questions, therefore, which arise upon the prescription of
five years declared by sec. 4 of the Act of March 10, 1834, and its
substitute, art. 3453 of the Civil Code, are were the Fortiers
purchasers in good faith and are the defects in the title, insisted
on by the appellee, such informalities as are cured by that
prescription?
The good faith of the purchaser must be presumed until the
contrary is shown.
Packwood v. Richardson, 1 Mart.N.S.
(La.) 410;
Fletcher v. Cavalier, 4 La. 267;
Rivarde v.
Rosseau, 7 La.Ann. 3;
Leduf v. Bailly, 3
id.
8.
There is not a scintilla of proof in the record tending to show
that the Fortiers, or those claiming under them, had any direct
notice of Daniel Clark's will of 1813, or that the will of 1811,
under which the sale was made, was not his last will and
testament.
The appellee relies on the fact which she claims the testimony
proves, that there was a general report in New Orleans, then a
small town, that the will of 1811 was not the last will of Daniel
Clark.
Even if the evidence established this fact, it is entirely too
vague and inconclusive as a ground for creating or destroying
Page 104 U. S. 401
valuable rights. But it fails signally to establish any such
general report, or to show that the Fortiers resided in New
Orleans, where, if such report existed, it might possibly have come
to their ears.
The only other fact relied on to prove the bad faith of the
purchasers was the fact that De La Croix, on Aug. 18, 1813,
following the filing in the probate court of the will of 1811,
filed in the same court his petition under oath in which he stated
that he had strong reasons to believe and did believe that the late
Daniel Clark had made a testament or codicil posterior to that
which had been opened before that honorable court, and in the
disposition whereof he thought he was interested. And the petition
prayed that
"Whereas the double of this will, whose existence was known to
several persons, might have been deposited with any notary public
of this city, an order might be made that every notary of the city
appear before the court within the delay of twenty-four hours to
certify on oath if there does or does not exist in his office any
testament or codicil or any sealed packet deposited by the said
Daniel Clark."
The order was made according to the prayer of the petition.
Nothing came of it. No subsequent will was found by reason of the
steps suggested by the petitioner.
This petition proved that De La Croix had notice of the will of
1813. It was so held by this court in
Gaines v.
De La Croix, 6 Wall. 719. But it proved nothing
else. It fails utterly to show any bad faith on the part of the
Fortiers. There is not the slightest evidence that either of them
ever heard of the petition or that a rumor of the existence of a
will later than that of 1811 ever came to their knowledge.
There is an absolute failure of proof to establish any bad faith
on the part of the purchasers of the property in dispute. They
acted as if they believed that they were getting a good title to
the property, for they agreed to pay, and did pay, what at that
time was an immense sum of money for it, to-wit, $120,000.
The good faith of the Fortiers being beyond question, they and
those claiming under them have the right to rely upon the
Page 104 U. S. 402
prescription of five years to cure any irregularity in the
proceedings which resulted in the sale.
That want of advertisements of the sale is such an irregularity
as falls within the prescription was held in the cases of
Woods
v. Lee, 21 La.Ann. 505, and
Pasiana v. Powell, id.,
584. And it would seem that when property was sold at public sale,
and as in this case brought its full value, the want of previous
advertisement was a very immaterial matter.
The other alleged defects in the proceedings clearly fall within
the prescription of five years. The fact that the inventory of the
estate was not completed before the order of sale, the fact that
the inventory was partly made by appraisers appointed by the
testamentary executor, and that it was signed by only one of two
who were so appointed, are certainly most trifling and
inconsequential irregularities when there is no proof or even
charge that the inventory was not fairly made or the sale fairly
conducted, and when the property sold brought its full value. If
these irregularities do not fall within the prescription of five
years, it would be hard to conceive of any that would.
Fraser
v. Zylicz, 29
id. 534.
The irregularities in the sale alleged by the appellee are
therefore cured by the lapse of five years, and can have no more
influence on the title of the appellant than if they never
existed.
We find, therefore, that the appellant derives her title under a
public sale made by a public officer by authority of the order of
the probate court; that the sale took place, and the deed, which on
its face was without defect and was translative of property, was
made by the executor within the year following his appointment;
that the purchasers purchased in good faith for a full
consideration; and that there were no nullities or informalities in
the sale which have not been cured by the prescription of five
years.
In the cases heretofore decided by this Court in favor of
appellee, except
Gaines v. De La Croix, the defendant
claimed title from Relf, or Relf and Chew, executors of the will of
1811, under private sale, made by them as agents of Mary Clark,
devisee under that will, and in their pretended capacity as
executors, after their term of office had expired, and
Page 104 U. S. 403
without any order of court.
See Gaines v. New
Orleans, 6 Wall. 642.
In the case of
Gaines v. De La Croix, the Court
decided, and on most satisfactory proof, that De La Croix was a
purchaser in bad faith, and upon that ground his title was declared
invalid.
In her bill in this case, the appellee, knowing that it was a
vital fact in her case, charged that the sale of Relf, the
executor, to the Fortiers was made after the expiration of a year
from the date of his appointment and at a time when he had no
authority to sell. But, as the proof shows, that averment is not
true. The record shows that Relf was appointed executor Aug. 27,
1813, and the sale was made on November 8 following, under an order
of court, and the conveyance three days later, on November 11.
Upon the facts of the case, therefore, the title derived by the
appellant under the sale to the Fortiers appears to be a good and
valid title.
But conceding that the title acquired by the Fortiers at the
sale made by the register of wills was void, should there be a
decree in favor of the complainant, establishing her title to the
lands in question and placing her in possession, until she has
returned or tendered the money which the Fortiers paid on their
purchase? This inquiry presents the second ground of defense relied
on by appellee.
Clark bought the property for $120,000, wholly on credit, and
gave a mortgage on it to secure the purchase money. It was sold for
the same price to the Fortiers, who purchased in good faith. Every
cent of the purchase money was applied to the extinguishment of the
mortgage executed by Clark, and for which his estate was liable. No
repayment or tender of this sum or any part of it is averred in the
bill. Upon this state of facts, we do not think the complainant is
entitled to a decree.
To allow the heir or the devisee of a mortgagor, under the
circumstances of this case, to recover the property without
repaying the money for which it had been sold, and which had been
paid by a
bona fide purchaser, and had been applied to
clear the property of a mortgage which rested upon it, and for
Page 104 U. S. 404
which the estate of the mortgagor was bound, would be most
inequitable and unjust. It would be an utter disregard of the rule
that they who seek equity must do equity. No support for such a
decree can be found in the adjudged cases.
On the contrary, in
Scott v. Dunn, 1 Dev. & B.
(N.C.) Eq. 425, it was held that where an executor sold lands and
applied the proceeds to the payment of the debts under a mistake of
his power, and the purchaser was evicted by the devisee, the land
in equity would be subjected to indemnify the purchaser to the
extent to which the purchase money was applied to the payment of
the debts over and above the personal estate.
So in
Valle v. Fleming's Heirs, 29 Mo. 152, it was held
that when land is purchased in good faith at an administrator's
sale, which is void because the requirements of the statute are not
pursued, and the purchase money is applied in extinguishment of a
mortgage to which such land was subject in the hands of the owner,
the purchaser will be subrogated to the rights of the mortgagee to
the extent of the purchase money applied in the extinguishment of
the mortgage, and the owner will not be entitled to recover
possession until he repays such purchase money.
To precisely the same effect are the cases of
Blodgett v.
Hitt, 29 Wis. 169, and
Hudgin v. Hudgin, 6 Gratt.
(Va.) 320.
See also Mohr v. Tulip, 40 Wis. 66;
Grant
v. Lloyd, 22 Miss. 191;
Short v. Porter, 44
id. 533;
Haynes v. Meeks, 10 Cal. 110.
And
see Freeman on Void Judicial Sales, sec. 51, where the
authorities on this question are collected and discussed.
The views held in the cases above referred to are sanctioned
also by the jurisprudence of Louisiana. Thus, in
Barelli v.
Gauche, 24 La.Ann. 324, it was held that an action to annul a
judicial sale of real property on the ground of irregularities in
the proceedings cannot be maintained against the purchaser unless
the parties claiming its nullity have paid or offered to reimburse
the purchaser the amounts of the mortgages resting on the property,
which he has paid since the purchase. A tender of the amounts thus
paid is an essential prerequisite to the prosecution of a suit to
annul.
Page 104 U. S. 405
So in
Davidson v. Davidson, 28 La.Ann. 269, it was held
that a sale made by an administrator to pay debts "could not be
disturbed unless the heirs previously returned or offered to return
the price of the adjudication."
In
Jouet v. Mortimer, 29
id. 207, the court
said:
"Nothing could be more unjust than to permit a debtor to recover
cover back his property because the sale is irregular, and yet
allow him to profit by that irregular sale to discharge his
debt."
See Coiron v. Millaudon, 3
id. 664;
Seawell v. Payne, 5
id. 255;
Barret v.
Emerson, 8
id. 503;
also Dufour v. Camfranc,
11 Mart. (La.) 607.
The same rule prevailed in the civil law. It was said by Mr.
Justice Story, in
Bright v. Boyd, 2 Story, 478:
"There is still another principle of the Roman law which is
applicable to the present case. It is that where a
bona
fide purchaser of real estate pays money to discharge any
existing encumbrance or charge upon the estate, having no notice of
any infirmity in his title, he is entitled to be repaid the amount
of such payment by the true owner seeking to recover the estate
from him."
See also Dig., lib. 6, tit. 1, l. 65; Pothier, Pand.,
lib. 6, tit. 1, n. 43; Pothier, De la Propriete, n. 343.
The authorities cited settle conclusively the proposition that
the complainant is not entitled to the decree she seeks without
repayment or tender of the purchase price of the lands in
controversy, which has been applied to the extinguishment of a
mortgage thereon.
No case is cited by counsel for appellee where the court refused
to give a purchaser in good faith the benefit of this rule. The
authorities relied on by him (Sugden on Vendors, c. 16, p. 483; 3
Atk. 287) apply only to purchases in bad faith.
We are aware that it has been held that a purchaser at an
irregular or void judicial or execution sale is not subrogated to
the rights of the judgment creditor.
Richmond v. Marston,
15 Ind. 134.
The weight of authority is, however, against this position.
McLaughlin v. Daniel, 8 Dana (Ky.) 182;
Bentley v.
Long,
Page 104 U. S. 406
1 Strobh. (S.C.) Eq. 43;
Howard v. North, 5 Tex. 290;
Jackson v. Bowen, 7 Cow. (N.Y.) 13. And this Court has
expressly held that an irregular judicial sale, made at the suit of
a mortgagee, even though no bar to the equity of redemption, passes
to the purchaser at such sale all the rights of the mortgagee as
such.
Brobst v.
Brock, 10 Wall. 519.
But it is not necessary for the appellant to stand upon the
doctrine of subrogation. She is in possession, and ought not to be
deprived thereof upon a proceeding in equity unless the complainant
offers to do equity. What we decide on this branch of the case is
this: when the purchase money paid by a purchaser in good faith, of
real estate of a decedent ordered to be sold by a probate court,
has been applied to the extinguishment of a mortgage executed by
the decedent upon the property sold and constituting a valid
encumbrance thereon, and it turns out that the sale is irregular or
void, the purchaser cannot be ousted of his possession upon a bill
in equity filed by the heir or devisee without a repayment or
tender of the purchase money so paid and applied.
As the points already decided are conclusive of the case, it is
unnecessary to express any opinion on the third defense set up by
the appellant; namely, the prescriptions of ten, twenty, and thirty
years declared by the Civil Code of Louisiana.
The litigation of which this case forms a part has been before
this Court in various forms in the following cases:
Ex Parte Myra Clarke
Whitney, 13 Pet. 404;
Gaines v.
Relf, 15 Pet. 9;
Gaines v.
Chew, 2 How. 619;
Patterson
v. Gaines, 6 How. 550;
Gaines v.
Relf, 12 How. 472;
Gaines v.
Hennen, 24 How. 553;
Gaines v.
New Orleans, 6 Wall. 642;
Gaines
v. De La Croix, 6 Wall. 79;
New
Orleans v. Gaines, 15 Wall. 624;
Gaines v.
Fuentes, 92 U. S. 10.
We think the facts of this case distinguish it from all the
cases above mentioned, and our opinion is that upon the averments
made in this bill and the evidence adduced to support it, the
appellee, Mrs. Gaines, is not entitled to a decree against the
appellant. So much, therefore, of the decree of the circuit court
as relates to the property bought by Michel Fortier and Omer
Fortier, and now claimed by the widow and
Page 104 U. S. 407
heirs of Minor Kenner, deceased, must be reversed, and the cause
remanded with directions to dismiss the bill so far as it concerns
the appellant.
So ordered.
MR. JUSTICE MATTHEWS took no part in the decision of this
case.