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

1, Ten years is not a reasonable time within which to perfect the title, after objections by purchaser, under a judicial sale by the Master, of real estate.

2, Where time is given, the party sbovfld be put under terms to prooure the title speedily.

*5178. The practice of allowing time to perfect-title not encouraged; the Court and parties should tato cave before band that the title is iu a state to be sold.

4. A material distinction exists between the actual existence of the title, *e.aá*ibe state of the evidence of the title; ia the latter event, the Court may give time to' reform and améüd it.

5. A purchaser not permitted to cast about for a title, after a judicial sale; Lord Rede-jdale's rule in selling laud under a decree of Court commended.

Appeal from Franklin County Circuit Court.

Benjamin F. Nourse, administrator of Baymond, filed his bill in Chancery against A. K. Allison, and others, claiming that certain town lots in Apalachicola, conveyed by the Trustees of the Apalachicola Land Company to O.. O. Baymond and said A. Iv. Allison, were held by them .as tenants in common, and charging that said Allison mortgaged said lots to certain creditors of the firm of Baymond & Allison, for more than was really due, and prayed for a receiver, &e. .

It appears that O. C. Baymond and A. K. Allison had been partners in trade, and as such, and for the use and benefit, and for the purposes of the partnership, had purchased the lots in question, and had erected a brick building or store thereon. After the death of Baymond, Allison, as surviving partner, mortgaged the lots, to secure the payment of $7000, alleged to be clue to the firm of Morgan & Barker, of New York, by Baymond & Allison. At Fall Term 1813, by consent of parties, a decree was entered cancelling the mortgage executed by Allison to Morgan & Barker, and ordering the said lots to be sold by Benjamin F. Nourse, receiver, after giving public notice of the time and place of sale, on terms of one fourth cash, and the remainder in six, twelve and eighteen months, with good joint and several notes for security, and no title to be given until said notes were paid. Nourse, as administrator, was to join in the sale- *518and in making titles. Pursuant to this decree, the two town lots in question were offered at • public sale, to the highest bidder, on the 22d day of March, 1844, and the same were purchased by Robert Myers, for $6,100. Of tbis amount, $1,525, being one fourth, were paid in cash, and Myers gave tliree notes, each for $1,525, payable respectively in six, twelve, and eighteen months after date. As a further security, the receiver required *that*Myers, the purchaser, should canso the property to he insnred, for the sum of <5,4,000, and should regularly assign to him the policy of insurance.

On the 9th day of December, 1844, Robert Myers filed bis petition in Franklin Circuit Court, alleging that D. B. Wood and N. J. Deblois, who were partners, were jointly interested with him in the.purchase of said lots, and that the sole object which they had in. view in purchasing said lots and the buildings thereon, was the adaptation and. conversion of said property, with other contiguous property belonging .to them, into a cotton warehouse; that in case the title acquired by them should be defective, the purposes for which the purchase was made would be' frustrated, and the'lots would be of much less value to them. He further alleged that he had been advised by bis counsel that the decree under which the sale was made was erroneous, and that the title acquired by said purchase was defective, and prayed the Court to review its decree, and if it should appear that the sale made by Nourse under said decree, did not operate to convey a good title, that the said sale might be rescinded.

On reading tho- petition, and after argument of counsel, the Court decreed that the title obtained by Myers, under the sale made by the receiver, was not complete, because the judgment creditors of A. E. Allison, as surviving partner of Raymond *&*Allison, who obtained judgments prior *519to. the rendition of the decree ordering the sale, on the liabilities of the firm, and because the heir, or heirs, or distributees of O. O. Raymond, deceased, ought to have been made parties to said decree. But inasmuch as the Court was of opinion that Nourse, administrator, &c., ought to have further and reasonable time to perfect said title, and remove all objections thereto, the prayer ofthe petition,- so far as it related to the rescinding of the sale, was refused ; and it was further ordered that Nourse should proceed, by proper steps, to bring in the creditors of Raymond *&*Allison, and the heir, or heirs, and distributees of O. C. Raymond, to test their claims, or the claim of any of them, to said lots, if any they have, or pretend to have, and to do such other matters and things as might thereafter appear to be necessary to render tbe title to Myers secure. It was at the same time ordered that Myers have the possession of.said lots.

On the 20th March, 181-5, Nourse filed his amended and supplemental bill, making tbe creditors of Raymond & Allison, and the infant heir of O. C. Raymond, parties thereto, in conformity to the previous order ofthe Court. On the same day, an order was made appointing A. G. Semines guardian *ad litem*for the infant heir of Raymond, and ordering- subpoenas to issue against such ofthe parties as were within tbe jurisdiction of the Court, and publication to be made, as required by law, as to such of the parties as were non residents ; which was accordingly done.

On tbe 16th of April, 1816, Robert Myers made an affidavit in'support of his application for a rescission of the purchase made by him, in which he alleged that since said, purchase, I). B. Wood and N. J. Deblois, who were interested with him, became unable to comply with their part of the contract, and that he, Myers, was unable to carry out the sumo by himself, out of his own mean:;; that the *520object in making said purchase, was to convert said property, with the adjacent property, to tbe purposes of warehousing cotton, but from the losses of said Wood & Beblois, they were unable to carry out said intention, and that tbe property is of much less value to them for any other purpose. Myers' further alleged that had he *and Ms*associates obtained a good title to said property at tbe time of tlio purchase, they could and would have since sold the same for the same price agreed to be paid for it by them, but were prevented from doing so by tbe cloud that bangs over the title. '

On *the 22d*day of April, 1840, an order was made, granting leave to complainant to amend bis supplemental bill, by making A. K. Allison a defendant, wbo appeared by his solicitor, and agreed to answer said bill in thirty days. It was at tbe same time further ordered that a decree *jpro confesso*be entered agaiust all the parties defendant, except the infant heir of O. O. Raymond, and that his guardian *ad litem*have thirty days to filg an answer.

On the 25th April, 1847, Nourse filed his amendment to his supplemental bill, making A. K. Allison a defendant thereto.

On the 26th January, 1847, the answer of the infant heir of O. O. Raymond, bjr his guardian *ad litem*was filed.

On the 14th day of December, 1853, a motion was made, on bebalf of Myers, to be discharged from tbe purchase aforesaid, because Nourse had not completed the title to said lots, and because the delay to do so had been unreasonable. In support of this motion, Myers, on the 15th day of December, 1853, filed an affidavit, in wbicb be renews bis application, upon tbe ground taken in bis former applications, and also alleging that in 1847 tbe buildings upon tbe lots were destroyed by fire, and thereafter the lots were suffered to remain vacant, because he had no means to iur *521prove them, and because, bad he the means, the defect in the title discouraged him from so doing. ITe also alleges that he and his associates had not, since the filing of the first petition, been willing to take a title to said lots, but on tbe contrary, counsel bad ever since been retained to oppose a confirmation of tbe sale.

On tbe 16th day of December, 1853, Nourse filed a statement by way of response to tbe petition of Myers, in wbicb he sets forth the various orders and proceedings in the cause, and showing that from April Term 1847, to December Term 1853, tbe Judge who presided was disqualified to try the case. He also ’alleges that at December Term 1846, he could have pressed for a decree of confirmation, but as the amount of Insurance money claimed, viz : $4,000 was expected at once to accrue to the fund and thus obviate nearly all cause of dispute, it was thought by himself and counsel unnecessary and harsh towards Myers to press the motion at that time. He further states that by the fault of Myers or his associates in not keeping the policy of Insurance in the name of the receiver, great delay in collecting the money occurred. The policy of insurance was allowed to stand in the name,of D. B. Wood *&*Co. After the fire which destroyed the buildings and before any formal claim could be sent by the Receiver, the creditors of D. B. Wood *&*Co., attached the money in the hands of the Insurers. A contest arose involving an expense to the fund, which did not end uutil January 1850, and then only by the withdrawal of the claim put in by the creditors of D. B. Wood & Co.

To tbis delay in getting the Insurance money and to the absence of a qualified Judge for every term since 1847, Nourse alleges, must he attributed tbe absence of action on his part.

*522Afterwards and at December Term 1853, the Court refused the application of Myors for a discharge and directed the master to make a title to the lots, from which decree Myers appealed.

*W. G. M.*Dams, for appellant.

*George 8.*Hawkins, and *Archer & Pa/py*for appellees.

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.

*523Iu 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 *524evidence 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 *525administrator 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 *526to 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 *527a 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