delivered the opinion of the court:
Thе purchasers of real property at an execution sale, later held void, brought this action to recover the amount of the purchase price from the judgment creditor. The circuit court of Massac County dismissed the cоmplaint for failure to state a cause of action. The appellate court affirmed (
The defendant bаnk obtained a judgment against Roy Moller, who was indebted to defendant. Defendant had the sheriff levy on the judgment debtor’s undivided one-half interest in certain real property. Plaintiffs, Milledge and Irene Dixon, purchased the debtor’s interest in the prоperty for $4,201 at an execution sale. The proceeds were delivered to defendant in partial satisfaсtion of its judgment. Upon expiration of the period of redemption, a sheriff’s deed was issued to plaintiffs. In a partition suit thereafter filed by plaintiffs, the judgment debtor intervened seeking to set aside the sheriffs sale. The execution sale wаs held void in Dixon v. Moller (1976),
In this State, it has long been established that, at аn execution sale, the doctrine of caveat emptor applies; where title fails, the purchaser is nоt entitled to a return from the judgment creditor of the amount paid. In England v. Clark (1843),
“Litigation should have an end as soon as the object of its institution is accomplished; but if years after a [judgment creditor] has received his debt, through the agency of the lаw, he can be made to refund, because of some neglect or mistake on the part of its officers, he can never know when he is safe, or at the end of the law.” (5 Ill. 486 , 494 (Wilson, C.J., concurring).)
The doctrine was reiterated in Conwell v. Watkins (1874),
We are aware of only two jurisdictions in which, under the common lаw and in situations similar to that here, it has been held that the purchaser may recover the amount paid from the judgment creditor. (Martel v. Bearce (Me. 1973),
We note that our appellate court has held, in like circumstanсes, that if the purchaser has not yet paid his bid at the time the sale is declared void, he is not bound to do so. (Wilson v. Hilligoss (1935),
Conflicting policy considerations are involved in this dispute. On the one hand it may be said that to allow the purchaser to recover from the judgment creditor would prevent the creditor, who has had the debt owed to him satisfied to the extent of the amount realizеd at the execution sale, from benefiting at the expense of the purchaser, who gets nothing for the money he hаs paid. If the judgment creditor must return the money to the purchaser, the judgment creditor has lost nothing to which he is entitled. He may still seek recovery from the judgment debtor or his property. All parties, in effect, would be returned to their respective positions prior to the sale. On the other hand, to allow the purchaser to recover from the judgment creditor would render the latter answerable for the acts of the sheriff who conducts the levy and execution sale. It would perpetually subject the judgment creditor to the threat of having to refund money received and used to satisfy the debt of the judgment debtor. In Checkley & Co. v. Citizens National Bank (1969),
Defendant asserts that, should we decide in its favor, plaintiffs will not be left without a remedy for the reason that they may seek recovery of the amount paid from the judgment debtor by way of subrogation to the rights of defendant. Plaintiffs respond to this assertion by merely stating that the doctrine of subrogation is not involved in this case. While not directly in issue here, we note that, according to the great weight of authority (30 Am Jur. 2d Executions sec. 472 (1967); 83 C.J.S. Subrogation sec. 35, at 643 (1953)), subrogation could have been available to plaintiffs herein, although its availability is not entirely clear under existing Illinois law. Compare Bruschke v. Wright (1897),
In sum, plaintiffs have not presеnted any persuasive reasons for us to depart from the law which has stood for so long in this State. Other than tax sales, which are covered by statute (Ill. Rev. Stat. 1979, ch. 120, par. 741), caveat emptor applies at judicial sales, and, in this case, it preeludes plaintiffs’ recovery from defendant. Accordingly, the judgment of the appellate court is affirmed.
Judgment affirmed.