after stating the facts as above reported. Under the Constitutions of 1868 and 1874, the probate court had and has no jurisdiction to order the sale of a homestead of a deceased person for the payment of his debts, during the minority of his children, or so long as his widow remains unmarried, or does not abandon it, or shall not be the owner of a homestead in her own right. During this time the homestead is exempt from sale for the payment of the debts of the deceased owner. The order of sale in this case was, therefore, an absolute nullity. McCloy & Trotter v. Arnett,
The circuit court and the parties treated the answer of appellee as a cross-complaint. Appellee offered no resistance to the prayer of appellant’s petition, but conceded all they asked. All he asked was to be subrogated to the rights of the creditors of the estate of Robert B. Bond, deceased. Is he entitled to be subrogated to such rights ? is the principal question presented for our decision.
Upon the right of purchasers at void execution or judicial sales to subrogation to the rights of creditors to the payment of whose claims the purchase money by them has been appropriated, courts are not agreed. Many consider them as volunteers acting without compulsion and for no purpose of protecting any interest of their own, and under a mistake of law, and therefore not entitled to the protection of courts of equity. On the other hand, others hold that the doctrine of subrogation rests upon the natural principles of equity and justice; that purchasers at such sales who are entitled to the benefit of subrogation are not volunteers; that they purchase at a sale made under the coercive process of law, under the honest belief that they are getting the property sold, and their money is actually applied to the benefit of the owner in paying his debts or removing charges or liens upon his property ; and that it would be in the highest degree inequitable and against good conscience to permit the owners, the administrators or creditors, as the case may be, to hold or enjoy at the same time the benefit of the property sold and the money of the purchaser without recompense, and that, in order to prevent this injustice and wrong, they should be subrogated to the rights of the creditors, or to the benefit of the liens or charges, to the payment of whom or which their money has been applied. According to the latter view, it is the belief of the purchaser that he is getting the property sold, and the actual application of the money to the. benefit of the owner in paying his debts in removing- a charg-e or lien on his estate, which constitute the equity. There is no conflict between this view and the maxim of caveat emptor. That maxim applies where there is a failure of title, “because of a want of ownership in the property by the defendant in the execution or in the intestate,” or testator, “but it does not apply to the defects in the title of the purchaser occasioned by a failure of the sale to pass the title of the defendant’s intestate, ’ ’ or testator. The latter view has been adopted by this court, and is sustained by the decided preponderance of authority. Waggener v. Lyles,
But it is said that the administrator committed a misdemeanor by undertaking to sell the homestead, and that the appellee was a jbarticefts criminis, and is not entitled to be subrogated to the rights of creditors. To sustain this contention an Act of the General Assembly, numbered 105 and approved April 25, 1873, is relied on. Section 1 of that act provides that whenever any resident of this State shall die leaving a widow or children who may desire to claim the benefit of the homestead of the deceased, she or they, as the case may be, shall file, with the clerk of the probate court of the county in which the homestead is situated, an accurate description of the land so claimed, and apply to have the same reserved from sale; and section 2 provides that it shall be the •duty of the clerk, immediately after the filing of the application, to enter upon the records of said court that said homestead has been duly reserved from sale upon the application of such claimant or claimants. Section 9 then provides that when these sections have been complied with by the parties claimant, “any administrator or executor of the estate of the deceased who shall assume the possession of, or in any manner disturb the widow or children of the deceased in the enjoyment of said homestead, or undertake to sell the same, shall be guilty of a high misdemeanor, and shall, upon conviction, be imprisoned in the county jail for a term not less than •one nor more than two months, and shall be fined in any sum not less than one hundred nor more than five hundred dollars.” The first two sections are in Mansfield’s Digest, but the ninth is omitted. Finding no constitutional provision or statute repealing any of them, we think that all of them are still in force. This being true, is appellee entitled to be subrogated to the rights of creditors who have received the purchase money, to. the extent that they have thereby been paid ?
Appellants .insist that he is not, and cites Martin v, Hodge,
The rule as stated in Martin v. Hodge is correct •, that is to say, whenever a contract or other transaction is illegal, and the parties thereto are, in contemplation of law, in pari delicto, courts will not aid either party, by enforcing or setting aside the contract or obligation while it is executory, or by enabling him to recover the title to property which he has parted with by its means. But “where a contract otherwise unobjectionable is prohibited by a statute which imposes a penalty upon one of the parties only, the other party is not in pari delicto, and, upon disaffirming the contract, may recover, as .upon an implied assumpsit, against the party upon whom the penalty is imposed, for any money or property which has been advanced upon such contract.” This is not only consonant to principles of sound policy and justice, but is sustained by the authorities. Curtis v. Leavitt,
The Oneida Bank v. The Ontario Bank,
A further review of the authorities is unnecessary. They are sufficiently examined in the cases cited above. Whatever doubt may have been entertained as to the latter rule, it is now well settled by authority.
The act of April 25, 1873, does not make the buying or offering to buy the homestead of a deceased person, at an administrator’s or executor’s sale, after it has been selected, by the widow or minor children and reserved for sale, a criminal offense. The administrator or executor attempting to sell is alone subject to the penalty. He alone is declared to be the criminal by the statute creating the offense. The person assuming to be the purchaser at the pretended sale is guilty of no criminal or immoral act, and has not violated the act; and stands as though the effort to sell was not criminal in any respect;. and is, therefore, according to Nichols v. Shearon,
It is suggested that appellee is not entitled to sub- # ». • '4* rogation because he aided the administrator m the sale by appraising the homestead, and thereby became an accomplice in the commission of a misdemeanor. To make him an accomplice he must have assisted in the appraisement with the intent to encourage or induce the administrator to make the sale. The mere appraisement did not operate to make him an accessory to the misdemeanor committed by the administrator in undertaking to sell the homestead. The statute under which the appraisement was made provided that ‘ ‘ before any executor or administrator should sell any lands and tenements, or any interest therein, by the order of the court, he shall have such lands and tenements appraised by three disinterested householders of the county in which the lands and tenements are situated.” Such appraisers should be selected because they are not interested in the sale. The presumption is, the administrator endeavors to do his duty in the selection of them. When he selects them he has fully determined to make the sale; the order for that purpose is already made. The presumption is, he selects them because they are disinterested, and that they make the appraisement in the performance of a duty, with no intent to advise' or encourage the administrator to sell or desire to control his subsequent action, and without regard to the course he may thereafter pursue in regard to the sale, they being disinterested. There is no occasion for them to appraise, if their object is to advise and encourage, as they can do so just as effectually by other means. There is no necessary connection between the two acts.
As it does not appear that appellee was, criminally, an accomplice in the effort to make the sale, it is unnecessary to consider what would have been his rights in respect to subrogation, if he had been such an accomplice.
But it nowhere appears that the purchase money paid by appellee was appropriated to the payment of the creditors. This being true, he was not entitled to subrogation ; and the court erred in overruling appellant’s demurrer to his answer or cross-complaint.
Appellee also failed to make the creditors, to whose rights he seeks to be subrogated, parties defendant to his cross-complaint. Such creditors were indispensable parties, and should have been made defendants. Kyner v. Kyner,
For the errors indicated the decree of the circuit court is reversed, and the cause is remanded for further proceedings consistent with, this opinion.