Robert Myers, Appellant, vs. Benjamin F. Nourse, Administrator of O. C. Raymond, Deceased, Appellee, 5 Fla. 516

BALTZELL, C. J., delivered the opinion of the Court: In the year 1844, Robert Myers filed his petition, praying to be released from the purchase of two lots lying in ’Apalachicola, purchased by him at a sale made by a receiver or master in Chancery under a decree of Court, to which he insisted he got no title. The sale was made at the instance of Nourse, admr. de bonis non of O. C. Raymond, and the Court on the hearing of the case adjudged “the title incomplete for want of the heirs of O. O.

Raymond and the creditors of Raymond & Allison and gave farther and reasonable time to the plaintiff Nourse to perfect the title and remove all objections to the same.” This decree was made in 3844 and from that time to 1853 the party had not complied, and it was only at the December Term of the latter year, the requisite steps and testimony were taken to obtain a decree making the title sufficient in the opinion of the Court. This tardy action can scarcely, in our opinion, be regarded as a compliance with the order allowing time.

The plaintiff alleges, and has urged, that he used due diligence and every proper exertion. Admitting this, it shows very conclusively that a title requiring the labor of near .ten. years to complete, is not of a kind to be forced upon a purchaser. Surely such a period could not have been contemplated by the Chancellor when uralring the order. The bare suggestion of so long a time would have struck him yA'b amazpiru'Df-,.«ip nnivieonaKb and unprecedented.

Iu an affidavit filed at a later period of the case, still objecting to the purchase, the purchaser states “ that his object in buying the property, to wit: the erection of a cottoP warehouse, has been defeated by the erection of other buildings sufficient for the purposes of trade — that the partners associated with him have failed and that real property in Apalachicola has depreciated to an extent which prevents investment and makes it not desirable to him.

The buildings erected upon it, too, Have been burnt down, leaving only the naked ground, and that if he had obtained the title when he contracted for it, he could have sold the property so as to secure himself against loss.” These allegations, if true, show the great injury of delay, and the necessity for despatch and promptness in this, as the other affairs of life. They show conclusively, we think, that a reasonable time for such an object as that contera? plated in the present case, any where, and especially in a commercial community, would by no means extend to the period claimed.

But apam from this, the usual order iu Chancery, on a Report of the Master that the vendee will have a- title is, to put under terms to procure that speedily.” 2 Danl. Ch. Prac. 1415; Coffin. vs. Cooper, Vesey, 205, and that we apprehend should have been the oyder ip the present case. But apart from this, we are of opinion that the attention of the Court should have been directed to the state of the title at the time the objections to it were first considered. A material distinction is this, (says the Chancellor, in Meginnis vs.

Fallen,) which is to be remembered : the actual existence of title at the time of objecting, and the then state of the evidence of that title. If the title stands ultimately as from the first by the abstract, yet the evidence given of that title differs ; if that be so, it is not altering the title, bub adducing additional evidence, &e.

Tbs requiring additional evidence of title to be supplied by tbe vendor is consistent with the rule of not keeping the purchaser too long in the suspense of investigation, and the question always is whether it is the same title as existed at first that is followed up, or whether the vendor has been put to oast about for a new title.” “ Ag'ain, not what the title is now, but what it was when the master ruled his objections, was the state of.title to be pronounced upon.” 2 Mallory, 561.

Tested by this rule, the order giving time to complete the title was improper, as then the administrator had no title and had nothing to sell. If suit had been instituted by him against the creditors and heirs, to settle and adjust the estate of his intestate, O. C.

Raymond, pay the debts, &c., and sell the real estate for this purpose — or if a like suit had been instituted against the surviving partner of the firm of Raymond & Allison, alleging mal-administration of their affairs, calling in the creditors and the heirs of Raymond, and in the course of the administration by the court, of the affairs of this concern, if became necessary to sell the real estate to pay debts, we are not prepared to say that a sale might not have been had on such a showing. But the case before us is not of this character.

The bill and supplemental bill both allege that the property sold was individual property¡ and not that of the firm, and that on the death of Raymond it descended to his heirs. There is neither allegation nor proof that it was necessary to pay his debts. According to the bill, it does not appear that it was necessary to pay the debts of the firm, or that its assets had been exhausted. Surely, upon every principle, before resorting to the real estate of an individual deceased partner, the joint effects, assets and property of the partnership should be first disposed of.

If sold for purposes of division, as intimated in the decree, it was wholly unwarranted, as the administrator had nothing whatever to do with this. The suit was originally instituted with other parties, to avoid an illegal arrangement made in reference to a mortgage on the property, and on settling this with the party interested, the order for the sale of the property was made. It is insisted that plaintiff sold the. interest of Kaymond & Allison “ only as far as he was legally authorized, as Master, to sellthen, in our view, he was not authorized to sell at all. The deeree, however, does not admit this

interpretation, nor justify this addition.

It recites u that the prineipal estate of Kaymond & Allison consists in his houses and lots, to which all adverse claims are now released, and directs the property to be sold, and no title to be given until after payment of the last notes.” It contains no direction to the master to sell “ the interest so far as he was ■authorized,” and if the result were to make a purchaser pay $6,000 without getting any title, and leave him subject to be dispossessed by the rightful owner, then we say that no such design can be attributed to the Court; so far from it, the order made on discovering the state of the title shows, that they considered the purchaser entitled to a good title, and such a deduction a purchaser would be entitled to draw from the terms of the decree.

It is said again, that the purchaser was let into and continued in possession. This was in conformity to the sale and consistent with the order of the Court overruling his objection to the title and giving further time to complete it. His retaining the possession was an appropriate respect to the order of the Court, and should not be construed to his prejudice. It is again urged that both parties should have been active in procuring the title.

The decree directing the vendor “ to proceed to bring the parties interested before the Court, •and to do such other matters and things as maybe necessary to render the title of said Myers to said property secure,” is the best answer to this objection. Again, that plaintiff was not guilty of laches. Of this we are by no means satisfied, and if we were, how is the case of the purchaser affected by it ? If the vendor, with all due industry and exertion* cannot get the title, is the vendee to wait and to be held on until by extraordinary effort and exertion be can succeed? We think not.

He bargained for the title; not getting it, he objected and complained to tlie Court; they order him to wait a reasonable time ; he waits until nearly ten year’s elapse, and still no title. If not the fault, it has been the misfortune of the vendor not to get it in due time ; but surely this should not be visited ■upon bis purchaser, who, during all this time, has been neither owner nor released from his bargain, not at liberty to sell nor improve, nor to invest his money in other property but liable to be called upon for the residue of the purchase money of §6,000, whenever the sale should be confirmed.

We are of opinion, then, that this purchaser has a clear right to be relieved. Whilst on this subject it may not be amiss to state that the English Counts have a rule, introduced by Lord Kedisdale, the great Equity pleader and Judge, which is declared to he an excellent and salutary resolution, that ‘Hands shall not be put up to sale and the parties embarrassed with a purchaser until a true state of the title, with the counsel’s opinion thereon, be produced and title deeds deposited.” 2 Sch. & Lef., 138.

If the contract is regarded to be made by the purchaser, with the Court, as some of the authorities hold, then indeed very great caution and care would seem to be requisite that nothing wrongful or injurious be done, aud that the utmost good faith aud propriety prevail; this is due to the Court itself and to protect public interests from jeopardy. We do not hesitate to say that the practice of perfecting a title after a sale should not be encouraged.

Besides inviting looseness and irregularity on the part of the Court and parties, it reverses the regular order of proceeding, by beginning where it should end, assuming jurisdiction, then striving to maintain it; selling property and th en seeking to get the title to it. It is as if a workman should construct his edifice of frail materials iij the hope of perfecting it by patchwork afterwards. In this respect we would discriminate between substantial objections, and those that do not enter into the intrinsic merits of a title.

In disposing of this matter finally, the Court below will cause an account to be taken of matters proceeding from this relation of the parties, crediting Myers with the purchase money paid by him with interest, and charging him with such sums as he may have received, or may be justly chargeable with, on account of the purchase, whether of rents, and the like. The subject of expensein procuring the insurance, will be a proper subject of consideration, ádverted to in this Court, but we háve not the means of determining it.

It is therefore decreed and ordered} that the decree of the Circuit Court ordering the sale of the two lots in Apalachicola at the ihstance of Noufse, administrator of Ray¿ mond, and the subsequent orders confirming said sale and the purchase thereof by Robert Myers, be set aside and reversed, and that he be releived therefrom, and the cause remanded to the Court below} that an account be had and taken between the parties, of the sums due and chargeablé to each on account of the said sale, and for othef proceedings to be had in conformity with this opinion and the principles of Equitys