Stephens v. Magruder

Robinsok, J., delivered the opinion of the Court. The 131st sect, of Art. 16 of the Code, provides that, “The Court shall have full power and authority, on the application by bill or petition of the trustee appointed by said Court to sell real estate, to compel the purchaser [172] thereof to comply with all or any of the terms of sale, by process of attachment or other execution suited to the case ; or the said Court upon such application may direct the property purchased to be resold at the risk of the purchaser, upon such terms as the Court may direct.” In this case the appellant, Thomas E. Bowie, was a purchaser under a decree of a Court of Equity, and having made the cash payment, gave to the trustee his bond with approved security, for the payment of the balance of the purchase-money. The question is, whether upon default in meeting the credit payments as they became due, the Court can upon petition by the trustee, order a resale of the property at the risk of the purchaser. • Now, it will be observed, that “full power and authority ” is conferred upon the Court by the Code, to compel the purchaser “ to comply with all or any of the terms of sale” by process of attachment or other execution suited to the case, or upon application to direct the property to be resold, &c. ■ What' were the terms of sale in the case before us ? They are prescribed by the decree as follows: “ One-fifth of the purchase-money to be paid on the day of sale, or on the day of the ratification thereof by the Court, and the balance to be paid in three equal instalments, in one, two and three years from the day of sale, the whole to bear interest from the day of sale, and the payment thereof to be secured by the bonds of the purchasers with securities to be approved of by the trustee.” We see, therefore, that by the very terms of sale, the purchaser is required to pay the balance of the purchase-money in three equal instalments, to secure the payment of which it is further directed that he shall give bond to be approved by the trustee. But it is an error to suppose that upon the execution and approval of the bond by the trustee, the purchaser has fully complied with all of the terms of sale, and that the decree no longer operates to en [173] force the payment of the credit instalments. On the contrary, if he fails to pay the balance of the purchase-money at the time or times required by the decree, he is just as much in default, and within the express provisions of this section of the Code, as if he had failed to execute his bond. We are at a loss to imagine why a purchaser for ready money is to be subject to this summary process, whilst a purchaser on time, who equally fails to comply with the terms of sale required by the decree, is to be exempt. The decree, it is true, directs that the purchaser shall give bond, but it is equally imperative, tliat he shall also pay the purchase-money at the time or times therein specified. Whatever doubts, therefore, may have been entertained • in regard to this question, growing out of the decision in Richardson vs. Jones, 3 G. & J., 164, they are in our opinion entirely removed by the explicit provisions of the Code. Nor do we apprehend any of the mischievous consequences which the appellant Bowie seems to think are to flow from this construction. It is conceded that a vendor’s lien exists for the unpaid purchase-money, and for the payment of which the property is liable to be sold upon an original bill in conformity with the provisions of sec. 130. Now where is the necessity in this case for an original bill? Are not the parties already in Court; the trustee, the purchaser, and those interested in the proceeds of sale ? The petition is filed in the original cause; reference is had from time to time to the previous proceedings, and the whole action of the Court is to be found in a single record. Whereas a formal bill commences a new suit, and makes it necessary to incorporate the original record at great expense. In the case of an ordinary vendor seeking to enforce his specific lien, an original bill is necessary, because the parties are not before the Court. No injury can result to the purchaser,, of which he has [174] justly a right to complain, by subjecting him to this summary process of the Court. The petition is served upon him, and ample time allowed to make his defence. If it becomes necessary to resell the property, the fault lies at his door by not complying with the terms of sale. After the payment of the purchase-money and interest and costs incident to a resale, the surplus, if any, would of course belong to the purchaser. (Decided 28th June, 1869.) The fact that the appellant had filed a bill in the Circuit Court, in the nature of a “ quia timet,” in order to prevent his creditors from selling his property in detail to satisfy their demands, could not deprive the Court of jurisdiction expressly conferred by the Code, nor compel the trustee and cestuis que trust to await the protracted delay incident to the proceedings under that bill. Eor these reasons the decree will be affirmed. Decree affirmed.