Farmers & Planters Bank v. Martin

Le Grand, C. J., delivered the opinion of this court. The questions which we are called upon to decide on this appeal, arise out of exceptions filed by the complainant and by Mr. William W. McClellan, to the auditor’s report and account B. It appears from the proceedings that the exceptant, McClellan, became the purchaser at a sale ordered by the court of chancery, and that this sale was duly reported by the trustee and ratified by the chancellor. The amount of the sale was $1450. The purchaser failing to comply with the terms of sale, proceedings were instituted for a resale under the act of Assembly of 1841, chapter 216, and a resale was directed at the risk of the first purchaser, the exceptant McClellan.

The property was resold for the sum of $1625. In the statement of the account B, of the proceeds, the auditor allowed to :the exceptant the sum of $161.25, which he claimed on the ground that when he made his purchase it was an incumbrance ■on the lot in form of rent due, and that inasmuch as he was compelled to pay it to the landlord, he ought to be allowed the amount as a credit on his purchase. Although in- some instances trustees, in effecting sales under decrees, do so free from the incumbrance of taxes and ground-rent—making the latter payable out of the proceeds—yet in the case now before us we agree with the chancellor, that the purchaser made his purchase on the express understanding that he was to- pay the taxes and ground-rent due on the premises-, of which he had full and due notice. The testimony of the trustee is positive as to the notification to this effect, given- to the company assembled at the place of sale, and especially to the agent of the purchaser, who made the purchase for him.

This-is substantially admitted by the agent. Under these circumstances it would be unjust to allow him the amount of the ground-rent. It is but fair to presume the property, being sold subject to this incumbrance, that it sold for a sum less that amount. But, ³⁴⁵ independently of this consideration, chancery sales like the one in this case, unless it be expressly stipulated to the contrary by the terms of sale, are made subject