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