Mealey v. Page

Defaulting Purchaser at an Executor s sale, entitled upon a Resale of the property, to the 'Surplus proceeds of Sale, over and above the Cost and expenses of the Re-sale, the Commissions on the amount of the Proceeds thereof, and the amount of Purchase 1 money due on the former sale. An executor under and by virtue of a power in the will of his testator, sold certain real estate, and the purchaser signed a written memorandum whereby he agreed and bound himself to comply with the terms of sale upon the ratification thereof by the Orphans’ Court. The sale was reported to, and finally ratified by, the Court. The purchaser having made default in complying with the terms of sale, the Court in pursuance of the provisions of the Act of 1870, ch. 82, ordered the property to be re-sold at his risk. The property was accordingly re-sold, and the amount hid at the re-sale exceeded that bid at the first sale. The original purchaser thereupon claimed this excess, or so much thereof as might remain after payment of ail proper expenses, cost and charges for which he was liable by reason of his default. This claim was resisted by the executor. Held : 1st. That as the property at the re-sale was sold as that of the first purchaser, and at his risk, he was entitled to whatever balance might remain of the proceeds of the re-sale, after deducting the costs and expenses attending the re-sale, including' a reasonable fee for services of counsel in filing the petition and procuring the necessary orders thereon for the re-sale; the executor’s commissions on the whole amount, of the proceeds of the re-sale, and the amount of the original purchase money with interest thereon from the date of the first sale to the time of the receipt of the purchase money hy the executor from the purchaser at the second sale. 2nd. That the right of the original purchaser to this balance, was not in any way affected by the fact that be was without means of payment, and had given no security for the payment of the purchase money, and would have been unable to pay the loss to the estate of the testator, if the property liad sold at the second sale for less than the amount of the original purchase.

Appeal from the Orphans’ Court of Frederick County. The appellee, as executor of the last will and testament of Dr. William Tyler, deceased, in pursuance of the power contained in the will, and *by virtue of an order of the Orphans’ Court of Frederick county, offered at public sale certain real estate of the decedent. The appellant, was the highest bidder for a tract called “ Long Acre,” containing seventy-five acres, and the same was knocked down to him at the price of $121.50 per acre; the whole purchase money amounting to $9,112.50. The terms of sale were “ one-third cash, the residue in two equal annual payments, bearing interest from the day of sale, the purchaser to give bond with approved security for deferred payments.” The appellant signed immediately after said sale, an acknowledgment of purchase, in which he promised “to comply with the terms of sale, upon ratification of sale by the Orphans’Court of Frederick county.” He was reported hy the executor as the purchaser, and on the 13th day of October 1873, the sale was finally ratified hy the Court. On the following day a petition was filed by the executor, under oath, alleging that the appellant had failed to comply with the terms of sale, and praying for an order requiring him to comply hy some certain day. Upon this petition an order was passed hy the Court, requiring the appellant to comply with the terms of sale, or shew cause to the contrary on the 21st day of October, 1878. This order was dirly served upon the appellant. He failed to comply with the terms of sale, or to shew cause to the contrary, and the Court, on the 23rd of October, 1873, passed an order directing the executor to re-sell said real estate on the terms originally prescribed, or for all cash, at the option of the purchaser. And further ordered, that the same be re-sold at the risk of the appellant. On the 3rd of November, 1873, the appellant and a certain Joseph A. Fleming filed a petition, alleging the former’s inability to comply with the terms of sale, and that an order of resale had been passed, and praying the Court to rescind the order of re-sale, and to substitute Fleming as purchaser; the petition alleged Fleming’s ability to comply, and the appellant’s tendered payment of all the costs and expenses which he had incurred, or for which he was legally liable by reason of his default. On the 8th of November, the executor filed an answer to the petition, alleging under oath the appellant’s failure to comply with the terms of sale in every respect, although compliance had been demanded of him, his failure and utter inability to make the cash payments, or to give good bond for the deferred payments, and that he had no means to make the cash payment — and denying the right of the appellant, who was then in contempt for non-compliance with an order of the Court, to transfer his purchase, and substitute a purchaser after the ratification of the sale and an order of re-sale. Upon the hearing of the petition and answer, on the 11th of November, the Court dismissed the petition. The farm was re-sold, as directed by the order of the Court, and Joseph A. Fleming became the purchaser at $140.35 per acre, the purchase money amounting to $10,526.25 in the aggregate. The sale was duly reported to, and ratified by the Court. The excess of the second sale over and above the first, was $1,413.75. On the 20th of December, 1873, the appellant filed a petition setting forth the first sale and the proceedings thereon, the order for a re-sale and the proceedings preliminary thereto; the petition of the appellant and Fleming, and the proceedings thereon ; the second sale and the amount thereof; alleging that the appellant bought the property for the benefit and on account of two of his daughters, who, as it was understood between them and the petitioner, were to furnish the money and security ; that they owned considerable property; that a large portion ol the funds necessary for the cash payment had been promised to the appellant, on security to be given by his daughters ; that the parties from whom said funds were to have been obtained, informed the petitioner that they were prevented from furnishing said funds by the temporary stringency in monetary affairs; and that the same stringency prevented the petitioner from raising the money to comply with the terms of sale. The petition prayed the Court to pass an order declaring the $1413.75, the difference between the first and second sale, to be the property of the petitioner, and to direct the executor to pay over the same, after deducting all expenses, costs and charges for which the petitioner was liable by reason of his default, and for general relief. To this petition the executor, on the 1st of January, 1874, filed his answer under oath, admitting the sale to the appellant and the ratification thereof; hut alleging that he did not know whether or not the appellant purchased on account of his two daughters, or whether or not they had agreed to furnish him the purchase money, and requiring full proof thereof; and further alleging, that the appellant signed the acknowledgment of purchase in his own name, and knowingly permitted the sale to be ratified, he being reported as the purchaser; after the order of re-sale, he filed a petition in his own name, under oath, in connection with J. A. Fleming, in which he declared himself the purchaser, and never intimated that his daughters had any interest in the purchase, until the filing of the petition claiming the $1413.75. The answer insisted that all the allegations of the petition in regard to the appellant’s daughters, were irrelevant, even if true. The answer further alleged, that the respondent knew nothing as to the worth of the daughters, the efforts of the appellant to borrow money, and the causes of his failure to obtain the same, and required full proof thereof, and insisted that the allegations in this respect, whether true or false, were irrelevant. It further alleged the order of re-sale, and the failure of the appellant to shew cause why such order of re-sale should not be passed, and his failure even to appear or resist such order ; denied that the appellant tendered to him any part of the cash payment, or of the cost or expenses, alleged that he refused to treat Fleming as a substituted purchaser, because he had been trifled with in every possible way by the appellant, and because after final ratification of the sale, and the passage of an order of re-sale in addition, he had no right to treat with any person as a substituted purchaser. The respondent claimed all the proceeds of the second sale, and insisted that the real estate was re-sold simply at the risk of the appellant, and not as his property, and that the order of re-sale destroyed any inchoate title which he might have acquired by the first sale and the ratification thereof. The answer further alleged that the petitioner was utterly insolvent, and notoriously so, but not so known to be by the respondent at the time of the first sale; that the appellee called upon the appellant time after time, and almost day after day, requesting him to comply with the terms of sale, but that the appellant was utterly unable either to pay the cash payment, or to give notes with surety, for the deferred payments'; that the appellant bought merely for speculation, and wanted to retain only one-fifth of the farm, and had no reasonable expectation of paying except by selling the property; and that he disclosed no agency so long as any risk attached. The respondent insisted that even if he were not entitled to all the proceeds of the second sale, the petition should be dismissed, as the excess over and above the costs, charges and commissions, would belong to the daughters and not to the appellant. To this answer the appellant filed a general replication. Testimony was taken, and the Court, on the 28th of April, 1874, passed an order dismissing the petition. From this order the present appeal was taken.