Preston v. Fryer

Stewart, J., delivered the opinion of the Court. From the petition and the demurrer admitting the facts in this case, it appears that the trustee in advertising the property for sale, under the decree, represented the title to be indisputable, and under that belief, the purchase was made. There can be no doubt, the petitioner is entitled to be relieved of the purchase, if he cannot procure such title ■ under the decree, as the trustee undertook to sell. The trustee under the decree, in making the sale, represents the Court, which will not permit such injustice as to compel a compliance with the terms of sale, under such circumstances.

Although the sale has been ratified, yet as the proceeds have not been distributed, but are under the control of the Court, it is competent to give relief by this interlocutory proceeding. Glenn vs. Clapp, 11 G. & J., 1 . It seems the projserty in question was conveyed to Asenath Woollet then Asenath O’Connor, from Henry Shute, Jr., by deed of the 1st of May, 1827, and to Asenath Woollet after her intermarriage, with her husband, John P. Woollet, by deed of 17th October, 1831. That during the coverture of the said John P. Wool-let and Asenath, his wife, the said Asenath, on the 1st of December, 1870, executed the deed purporting to convey the property to John P. Woollet.

That both husband and wife are dead, and their respective heirs are now the claimants of the property. The heirs and representatives of the husband are the only parties to this proceeding, the heirs of the wife, not having been made parties, the complainants relying upon the deed of the 1st of December, 1870, from Asenath Woollet, as vesting a perfect title in her husband, John P. Woollet, and his heirs. In this State, prior to the Acts of 1715, ch. 47; 1752, ch. 8, and 1766, ch. 14, no other mode of conveying the real