Randall v. Swann , 10 G. & J. 313 ( 1838 )

Chambers, J.,

delivered the opinion of the court.

The trustees have no other means of enforcing payment but by a re-sale of the land.

The difficulty arises from the peculiar position of the case, by confirming the sale, and at the same time rejecting the arrangement into which the trustees entered without the authority of the court. The result would be, to hold the purchaser to a bargain he never made, and as far as we know never would have made, by compelling him to pay for a title encumbered with dower, the price he contracted to give for the title discharged of this incumbrance.

The trustees now being before the court, asking its aid to enforce the payment of the purchase money for the persons entitled, and whose interests they represent may be required to receive that aid, on such terms as the court may deem equitable.

An order for a re-sale should be passed, but the purchaser ought not to be held answerable for any deficiency in the amount; which maybe effected by a decree rescinding the sale to Thomas Swann, and directing a re-sale on the terms of the original decree.

The court will sign such a decree.

DECREE REVERSED AND CAUSE REMANDED.