Page:Federal Reporter, 1st Series, Volume 1.djvu/270

 262 FEDERAL REPORTER �quîtclaim deed of their homestead right; and, if not, for a rescission of the sale, a cancellatiou of the complainants' note, ttiid a subrogation to Hardin's lien for $880. �The bankrupt and his wife filed an answer claiming a home- stead right in the property, and tendering a quitclaim deed to the assignee, eonveying such homestead right and incohate right of dower of the wife of the bankrupt, to be delivered on payment by the purchaser of |1,000. �The assignee, McChord, filed a general demurrer to the bill, and a eross-bill, in which he alleged, in substance, the same facts averred in the original bill, and that the sale was made in accordance with the advertisement, but construed the advertisement to mean that the assignee did not sell the land free from the homestead right, and tendered a deed eonveying to the complainants the right of redemption of the bankrupt in the tract of land in question, and prayed for a decree direot- ing the complainants to pay to him the whole note, and that he be relieved from ail claims of dower and homestead in the premises. �To this cross-bill complainants demur. �O. A. Wehle, for complainants. �W. 0. e J. L. Dodd, for assignee. �Beown, J. The question presented by the pleadings is whether the complainants are entitled to a decree for specilic performance upon their yiew of the case, or whether the de- fendant is entitled to the purchase money agreed to be paid at the sale, regardless of the homestead right claimed by the bankrupt. It is a well settled principle of law that in judi- cial sales there is no warranty, and the rule caveat emptor is applied with full force. This was settled by the supreme court of the United States in the case of Monte Allegre, 9 Wheat. 616, and is the general doctrine in most, if not ail, the states. Eorer on Judicial Sales, §§ 458 and 459. I see no reason why this rule does not apply to sales made by an assignee in bankruptcy. In such case the assignee making the sale is the mere agent of the court, having no power to bind any one but himself, This he may undoubtedly do in ��� �