Anderson v. Foulke , 2 H. & G. 346 ( 1828 )

Stephen, J.

delivered the opinion of the court. On the 13th of January 1826, Asher Foulks, the appellee in this cause, filed.his petition against the appellant in the court of chancery, in which he stated, that on or about the 26th of February 1822, a certain George Andrews and Ennion Williams, filed their bill of complaint in the court of chancery, in which they stated, that Andrews contracted to purchase of Williams part of a tract of land in Anne-Arundel county, called Duvall’s Delight, for $2,100, which sum, it was admitted, was paid by Andrews to Williams That Andrews contracted to sell the said, land to a certain Stephen Scotton for the said sum, who paid a part thereof, and gave his single bill for the balance; that other payments had been made, leaving a considerable balance' due; that Scotton was dead, intestate; that his personal estate was insufficient to pay his debts, and prayed that a decree might pass for the sale of the said lánd, or such part thereof as would satisfy the- debts of the intestate. That on the coming in of the answer of the respondents, the chancellor passed a decree for the sale of the land, by which decree, the petitioner states, he was appointed trustee to make said sale; that Anderson, the appellee, became the purchaser for eleven dollars per acre; that he reported his said sale to the chancellor; that the appellant filedhis objections to the ratification of the sale, which were overruled by the chancellor, and the sale ratified and confirmed. That from the chancellor’s order of ratification, the appellant’ appealed to this court; and that this court, on the 16th of July 1826, affirmed the order of chancellor. That the appellant was served with a copy of- the judgment of this court, affirming the chancellor’s order of ratification, and requested him to pay the purchase money, which he refused to do. The petition then prayed an attachment of contempt against the appellant, and an order that he be committed to prison until he completes his purchase by paying the purchase money. In this petition .the proceedings arc referred to and made part thereof, showing the ratification of the sale by the chancellor, and the affirmance of the same by this court.

On the 17th of March 1826, the chancellor passed an order that the appellant pay to the appellee, or bring into that court, the amount of the purchase money, with interest, on the 17th of April then next, or show good cause to the contrary; provided a copy of that order, together with the petition of the appellee, be served on the appellant, on or before the 25th of that, month. On the service of this order on the appellant, and on noncompliance with its requirement, the chancellor, on the !2th of May 1826, after hearing the parties by their counsel, passed the following order: ££Ordered, on this 12th of May 1826', that, no good cause having been shown against the order' of tin’s court of the 17th day of March last, the same is hereby confirmed and made absolute. And it is further ordered, that aa attachment issue against ihe said Samuel¿Una'eraon, to enforce obedience to the said order, returnable to she next terra of this court.” From this order, the appebant appealed to ibis court; and upon its merits and propriety this court is now ceded upon to decide. Ii appears from the proceedings in this case, that on the sale made by the.appellee to the appellant being reported tc ihe chancellor; objections to its ratification were filed by the appellant, and answered by the appellee, on full consideration of which, the sale was ratified, and that ratification affirmed by ibis court; it is, therefore, not competent for the appellant now to contest the propriety or validity of that sale, it having received the sanction of the highest judicial authority of this state. But it has been contended, that as the appellant never was reported to the court as the purchaser of the property sold by the appellee, he cannot he compelled to complete the purchase, by paying the purchase money. It does not appear, it is true, that the trustee in this case has proceeded according to the usual practice of the court, in ¿halting a formal report of his sale; hut it appears by the proceedings, that on the 9th of October 1822, the appellant filed his petition to the chancellor,in which he stated that he had contracted with the appellee for the purchase of the land in question, supposed to contain 140 acres, at and for the spm of ¡eleven dollars per acre, and by the report of the trustee, (the appellee,) was returned the purchaser, and prayed that the sale made and reported might not be confirmed. On the coming in of the answer of the appellee, and the return of depositions which were taken in pursuance of the chancellor’s order, and upon the return of the locations made by the sheriff of the county under the same'authority, the chancellor passed an order ratifying and confirming the sale, which order,* on appeal, received the sanction of this court It is, therefore, now too late for the appellant, to object that he was not reported in the more formal and usual way, to the court of chancery,as tlm purchaser of the property. The trustee, moreover, in answering the petition of the appellant against the ratification ot the sale, refers to and makes a part of his answer, the written contract of sale to the appellant, executed by both the appellant and appellee, which mentions fully the terms of sale, and which is understood to be'the sale ratified by the chancellor. Under this view of the subject this court are of opinion, that there is nothing in the objection that the appellant was not reported to the court as the purchaser of the property, and that a good title cannot be conveyed to him in consequence of this irregularity in the proceedings.

It has been contended that the court of chancery has no power, by a summary proceeding to compel a purchaser at a trustee’s salé, made under the authority of its decree, to complete bis purchase by enforcing the payment of the purchase money. This objection, it is conceived, cannot be available in the ease now under consideration. The trustee did not take either notes or bonds for the payment of the purchase money, upon which a suit or suits at law could have been instituted, but relied solely «pon the liability of the purchaser arising from the contract of Sale, which was not binding upon either party until ratified by-the chancellor; but when ratified, it was his duty to pay the purchase money, or show good cause to the contrary. Neither of which has he done in the present case; for neither the allegation of the trustee’s inability to comply with the terms of the sale, nor that .the property, being in the possession of a third person, the trustee was unable to deliver him possession, is not supported by a shadow of proof. Had the chancellor, therefore, under the circumstances of this case, aright to adopt the' proceeding to which he resorted to compel t.hs payment of the purchase money? We think he had. The order of the chancellor was, that Samuel Anderson, the purchaser, should pay the money to the trustee, or bring the same into court on a particular day, or show good cause to the contrary. Under the terms of this order, it is not perceived why Anderson could not have made as full a defence, and have availed himself of all the objections, which could have been relied upon, in case an original bill had been filed against him to enforce the same object. Upon application to the chancello»-, setting forth that testimony would be essential to his defence, on the hearing of the order, the chancellor would have passed an order to enable him to obtain it, upon the return of which a full hearing of the merits of the case might have been had, and if equity and justice required it, he would and ought to have been discharged from his purchase. That the court of chancery in England has the power of compelling a purchaser to pay his purchase money after the confirmation of the sale, by an order for that purpose, is not to be doubted. Lansdown v Elderton, 14 Ves. 512 Newland Ch. Pr. 336. In Brasher’s Ex’rs. v Cortlandt, 2 Johns. Ch. Rep. 506, 7, it appears, that by the practice of the court of chancery in New-York, a purchaser may be compelled to complete his purchase; and Chancellor Kent in that case is reported-to have said, ‘T have no doubt the court may, in its discretion, do it in every case wdicre the previous, conditions of the sale, have not given the purchaser an alternative.”

In this case it is quite apparent that the procrastination and delay are the objects of the purchaser, as he has taken every measure in his power to prevent, the ratification of the sale; and after the sale was ratified, on appeal to this court, has still refused to pay the purchase money, and has driven the trustee to resort to .the compulsory power of the court of chancery to coerce payment. Under these circumstances, we think it a fit case forth© exercise of such a power by that court; although it is not intended at present to establish any general rule on the subject. There is nothing in the objection that the quantity of land sold lias not been sufficiently ascertained.

ORDER AFRIRMEDi