#### N. Rosenberger, Appellant, v. Thos. Hawker, in the case of Elizabeth Odell v. N. Rosenberger, Thos. Hawker, R. O. McGaughey.

1 Execution sale: cancellation: Recovery of purchase money. A purchaser at a judicial sale must have had actual knowledge that the property was not subject to the lien of the judgment under which the sale was made to defeat his right to recover the price paid on a cancellation of the sale, under Code, section 4034. ' •

2 Same. A purchaser at judicial sale although charged with knowledge of the legal conclusion of the existence of a homestead interest in the property arising from facts tending to show such interest, is not deprived of his right to recover the purchase money on a cancellation of the sale, where it appeared that other material and controlling facts as to the validity of the homestead claim were unknown to him.

3 Same. The fact that a judicial sale of a homestead was set aside at the instance of the owner, will not deprive the purchaser at such sale of his right to recover back the purchase money paid by him.

4 Estoppel. The fact that the purchaser at an execution sale resists the suit of the owner of. the property to set aside the sale on the ground of a homestead interest therein, will not estop him in the event of a cancellation of the sale from recovering back the purchase money.

*522
      *Appeal from, Muscatine District*Court.— IIoN. D. V. Jack-sou, Judge.

Tuesday, June 6, 1905.

A sheriee’s sale of real estate having been set aside, the court, on application of the purchaser, entered judgment in his favor against the judgment plaintiff for the money paid, and the latter appeals.

*Affirmed.*

*Carshaddan &*Burle, for appellant.

*Jayne &*Hoffman, for apj>ellee.

Ladd, J.

Mrs. Odell was the owner of forty acres of land, upon which she had resided with her husband at the time of his death, long prior to the inception of the indebtedness, on which Rosenberger recovered a judgment of $209.80 and costs. Execution was issued on this judgment October 22, 1901, levied on the land, and it sold to Hawker for $2,976, which sum, less the sheriff’s fees and costs of sale, was paid to the clerk of court. The clerk satisfied the judgment by paying Rosenberger $262.10, and retained the balance. In December following, Mrs. Odell instituted a suit in equity, making the persons named with the sheriff parties defendant, and alleging that the land was her homestead, and as such exempt from execution, and prayed that the sheriff’s certificate of sale be set aside and canceled. Each defendant resisted on the ground that she had abandoned the land as a homestead, but Hawker also asked that, in event the court should find otherwise and set the sale aside, he have judgment against Rosenberger and the sheriff for the amount b-y him paid. Upon hearing, a decree was entered granting Mrs. Odell the relief prayed, but reserving all questions relating to Hawker’s claim to the return of the money. Thereafter Hawker filed a cross-petition against his code-*523fendants, alleging that be did not know tbe land was Mrs. Odell’s homestead, but supposed be was buying a good title, and praying for tbe restoration of tbe price bid and paid at tbe sale. Shortly afterwards tbe court ordered tbe return to him of all in tbe clerk’s bands, without prejudice to bis right to recover tbe remainder. Eosenberger answered by averring that Hawker, in buying tbe land, bad acted with knowledge that it was Mrs. Odell’s homestead, and to compel her to accept money in lieu of tbe land, and that Eosenberger bad been induced thereby to satisfy tbe judgment against her, and, farther, that'Hawker was estopped from recovering tbe amount paid. Hpon bearing, tbe court entered a decree requiring Eosenberger to restore to Hawker tbe balance of tbe money paid to tbe sheriff.

1. Execution sale: cancellation; recovery of purchase money. Eosenberger has appealed, and first contends that the court erred in bolding that Hawker, in buying, did not know that tbe land was Mrs. Odell’s homestead. Tbe evidence leaves no doubt but that be knew she claimed ^ as si;ick> and equally conclusive that be believed she bad abandoned it, and thought be was buying a good title. In other words, he had notice of her claim, but not knowledge that it was true. Section 4034 of tbe Code provides that:

> When any person shall purchase at sheriff’s sale any real estate on which tbe judgment upon which tbe execution issued was not a lien at the time of tbe levy, and which fact was unknown to tbe purchaser, the court shall set aside such sale on motion, notice having been given to tbe debtor as in case of action, and a new execution may be issued to enforce the judgment, and, upon tbe order being made to set aside the sale, tbe sheriff or judgment creditor shall pay over to tbe purchaser the money; said motion shall also be made by any person interested in the real estate.

Tbe fact that tbe judgment was not a lien, not merely that some one claimed it was not, must be known to the purchaser in order to deprive him of tbe benefit of this statute. *524Possibly Hawker bad information sufficient to put bim upon inquiry, but it is plain that actual knowledge is contemplated. “ Knowledge ” and “ notice ” are not synonymous, for that wbicb does not amount to actual knowledge may constitute notice. *Clark v. Ingram,*107 Ga. 565 (33 S. E. Rep. 802); *Cleveland Woolen Mills v.*Sibert, 81 Ala. 140 (1 So. Rep. 773). Tbe notice may be of sucb a character that its effects amount to knowledge. On tbe other band, a party may be charged with notice when in utter ignorance of that of wbicb be is presumed to be .advised.

2. Same. It is said, however, that .whether tbe forty acres constituted Mrs. Odell’s homestead was a conclusion of fact and law, and as Hawker knew tbe facts, and is presumed to have known tbe law, be should be held to have been *1*1 aware that tbe property was her homestead. Whether, if tbe premises were true, sucb a conclusion would follow, need not be determined, for tbe evidence is undisputed that some of tbe material and controlling facts were unknown to bim. While she bad rented the land to bis sons, a room in tbe bouse bad been reserved by her, in wbicb articles of furniture were stored. She continued to occupy this whenever it suited her convenience. These facts were unknown to Hawker, and without them tbe situation, in so far as disclosed by tbe record, was not sucb as necessarily to exact tbe inference that the land was Mrs. Odell’s homestead. Indeed, a contrary inference appears to have been inevitable, when it is added that Hawker, who was a farmer, was assured by Rosenberger, an attorney, doubtless in good faith, that, according to tbe opinion of this court in *Fullerton v. Sherrill,*114 Iowa, 511, she was not entitled to a homestead. That decision was not in point, for she claimed under section 2973 of tbe Code, by virtue of having been in personal occupancy since the death of her husband. Certainly tbe purchaser can not'be said to have known that tbe judgment was not a lien on tbe property.

*525
      3. Same.
      *524II. It will be noted that tbe sale was set aside at the *525instance of the owner of the real estate. This, however, ought not deprive the purchaser of his remedy. The effect is merely to relieve him of the necessity of procuring the vacation of the sale as a preliminary step to the return of the purchase price. He is required to establish no more than shall be .essential to the relief prayed, and, where the judgment has been adjudicated not to be a lien, no more is to be exacted than proof that he did not know that fact when he bought the land. *Jones v.*Blumenstein, 77 Iowa, 361. The statute was not enacted, as is contended by appellant, for the sole benefit of the purchaser. The remedy is equally available to any one interested in the real estate sold, even though resort may be had by such an one to equitable proceedings to prevent a cloud being cast on the title. The interests to be subserved are not conflicting, for the sale may be set aside without the return of the purchase money, and the statute should be so construed that the remedy provided for each shall not be defeated by action on the part of the other.

4. Estoppel. , III. Appellant also urges that the purchaser is estopped from claiming the return of the money paid by his conduct in resisting the suit of Mrs. Odell to have the sale vacated. But ño one was mislead to his prejudice. His ^ attitude is not that of asserting “ things contrary to each other,” for he may have contended that the land was not her homestead without knowing whether it was such or not. He was only convinced by the decree of court, and even that does not appear to have affected the opinion of his antagonist. His allegation is not that the land was her homestead, but that the court had so adjudicated, which was not inconsistent with previous ignorance of the fact on his part.

We discover no error in the record, and the judgment is *affirmed.*