Mealey v. Page

Alvey, J., delivered the opinion of the Court. In this case, the original sale having been made by the executor, under and by virtue of a power in the will of the testator, and the purchaser having signed a written memorandum of sale, whereby he agreed and bound himself to comply with the terms of sale upon the ratification thereof by the Orphans' Court; and the sale having been reported and finally ratified, and the purchaser making default in complying with the terms of sale, whereupon the Court, in pursuance of the provisions of the Act of 1870, chapter 82, ordered the property to be re-sold at the risk of the defaulting purchaser, and the amount bid at the re-sale exceeding that bid at the first sale, the question is, to whom does the excess belong ? This depends upon another question, and that is, whether the property sold at the re-sale was sold as the property of the first purchaser, or as that belonging to the estate of the testator, without reference to any rights or liabilities growing out of the first sale. The first sale was not set aside, nor xvas it asked to be set aside; but, on the contrary, all the proceedings leading to the order for re-sale, treated and regarded the first contract of sale as subsisting and binding on the original purchaser.

It was in default of his compliance with the terms of sale, and as a summary mode of enforcing the contract of sale, that the re-sale was ordered. The re-sale was at the risk of the original purchaser, precisely as it would have been if the executor, instead of resorting to the summary remedy, had filed an original bill in equity for the enforcement of the contract and a sale of the property for the payment of the purchase money. In such case, the sale decreed for payment of purchase money would have been at the risk of the original purchaser, and the property ¹⁸⁴ would have been sold as his, and any surplus proceeds of sale, after payment of the costs and expenses attending the second sale, and the commissions on the amount of the proceeds thereof, and the amount of purchase money, with interest due on the first sale, would properly belong to the first purchaser; and if the proceeds of such re-sale, after the deduction for costs, expenses and commissions, had been insufficient to pay the amount due on the first purchase, the original purchaser would have remained liable for any balance that might have been left unpaid. So here, in this'summary proceeding, the same result is produced.

The property was sold as that of the original purchaser, and at his risk, he being entitled to any excess in the proceeds of sale, over and above the costs and expenses of the re-sale, the commissions on the amount of the proceeds thereof, and the amount of the purchase money due. on former sale; and in the event that the property had sold for an amount less than sufficient to pay all these, he would have remained liable for the balance, and been subject to summary proceeding for the collection thereof. This is the nature of the summary proceeding for re-sale in a Court of Equity, (7 Md.,