#### *In Re. R. W. Seymour vs. James Preston.*

1. Land sold by the sheriff, and purchased by the assignee of the oldest judgment against the defendant in the execution, there being other judgments against him. The purchaser claimed the proceeds of the sale. Af-terwards a bill was filed by a judgment creditor of the defendant in execution, making the purchaser at the sheriff’s sale, with the plaintiff and defendant in the oldest execution parties, praying that this judgment might be set aside as fraudulent, and the money applied to the payment of the other judgment creditors. This was done, but between the filing of the bill and the decree, a mortgagee of the land, the mortgage being prior, in point of time, to any of the judgments, filed a bill praying a foreclosure of the equity of redemption. The property was ordered to be sold to foreclose the mortgage. The master made the sale, but declined making titles to the purchaser ; and in his return to a rule to shew cause why he had not done so, he states that the purchaser failed to pay the money on the day of sale; that he had apprized him that the mortgagee was urging the payment; and that nearly two months after the sale, he was notified by the solicitors of the mortgagee, that they had received the amount of the decree, with interest *482and costs, from the purchaser at the sheriff’s sale, and declined looking further to the purchaser under the decree of foreclosure; that on the same day, he gave notice to the purchaser under the decree, who then tendered the money, which he received without prejudice to the parties, hut declined giving a title, without the further order of the court,

2. In reply, the purchaser made an affidavit, and stated thereip, that on. the day of sale, and before lie had’time to pay the money, he received a written notice not to do so; that he was importuned to relinquish the purchase, but declined doing so; that he insured the property, and directed the tenant to pay him the rent from the day of sale; and that on the day before his ma* king the payment, one of the solicitors of the mortgagee offered him $500 to abandon his purchase, which he declined.

3. All that was sold by the sheriff, was the equity of redemption, winch was vested in the purchaser at that sale, and as the purchaser under the decree to foreclose, had notice of it while the money paid by him was still under the master’s control, he having executed no conveyance, it was sufficient, and the purchaser could not be protected.

4. It was not necessary that he should have had notice at the time of the sale. It would have been in time, if the conveyance from the master had been actually delivered, if he had not actually paid the money, or if he had actually paid the money, and the titles had not been executed. *Tide*gugr den on Vendors, 530.

5. As the sale by the master was for cash, and the purchaser had ne^ glected to offer him the money for nearly two months afterwards, the seller was not bound to perform his part of the contract.

This was a rule on J. W. Gray, Esq. Master in Equity, before his Honor, Chancellor Johnson, Charleston, Feb-, ruary Term, 1843, who made the following decree:

Johnson, Ch. On the 5th April, 1841, the sheriff of Charleston district offered at public sale a lot in this city, as the property of Christopher Kane, under an execution against' him, and it was bid off by James Preston, at $7000, who claimed to be entitled to the proceeds, under judgment, at the suit of Edward. Harvey against Kane, which had been assigned to him, that being the oldest judgment, of which there were several. On the 24th May, 1841, J, W. Sineath, also a judgment creditor of Kane, filed his bill in this court against Kane, Harvey, and Preston, charging that the judgment obtained by Harvey against Kane was *483fraudulent, and praying that it might be set aside, and that the proceeds of the sale of the lot should be paid to the other judgment creditors of Kane ; and on the 9th June, 1842, the court decreed Harvey’s judgment to be void, and that the proceeds of the sale should be paid to Kane’s judgment creditors. In the mean time, (to wit,) on the 25th January, 1842, one Richard Lord, who had a mortgage on tbe lot to secure the payment of a debt of about $2000, due to him by Kane, prior, in point of time, to any of the judg^ ments, filed his bill in this court, praying the foreclosure of the equity of redemption. On the 5th of February, of the same year, an answer was put in, purporting to be in the name of Kane, the only party named in the bill as a defendant, but was signed by R. W. Seymour, as attorney and solicitor for him; and on the 9th June following, a sale of the lot was ordered, to foreclose the mortgage. On the 29th September following, Mr. Gi’ay, one of the masters of the court, offered the lot for sale, and it was bid off by R. W. Seymour, at $2000. The master, for reasons that will hereafter be stated, declined making titles to Seymour; and this is a rule against him to shew cause why he has not made the titles. In return to this rule, the master shews for cause, that Seymour did not pay the purchase money at the time of the sale, and that he had several times afterwards apprised him that the complainant, Lord, was urging the payment of the amount due to him, and that on the 25th November, a little less than two months after the sale, he received the following note from Messrs. Lee *&*Pressley; the solicitors of the complainant, viz;

*“ To J. W.*Gray, *Master in Equity :*

Sin — -In the case of *Richard Lord¡*Trustee; vs. *Christopher*Kane, the purchaser not having complied with the terms of the sale of the lot sold by you under the decree, although the sale occurred so long ago as the 29th of September last, we have received from Mr. James Preston the full amount of the principal, interest, and costs, of the decree, and decline looking further to the purchaser.

(Signed) LEE *&*PRESSLEY,

*Plaintiff’s ¡Solicitors”*

*484That, on the same day, he gave notice of it to Seymour, who, immediately after, tendered to him $2000, the amount of his bid, which he agreed to receive, without prejudice to the rights of the parties, but declined giving a title to the lot, which had been long ago prepared, without the further order of the court.

In reply to this, Mr. Seymour states, in an affidavit, sworn to by him, that on the day of the sale, and before he had time to pay .the money, he received a written notice from A. G. Magrath and E. Magrath, Esq’rs., not to pay over the money; and a day or two after, was entreated by Mr. Elliot, and Mr. Lee, and Mr. Magrath, to relinquish his purchase. That at first he was disposed to do so, but finally made up his mind not to do it, of which he gave notice to Pressley and Elliott, and insured the property, directing the tenant to pay the rent to him from the day of sale; that on the day before the payment by Seymour, Mr. Pressley offered him $500, if he would abandon the purchase, which he declined to accept; and that the only reason why he did not pay the money “at an earlier day, was the fact that he was importuned by gentlemen not to do so,” and not from any design or intention to abandon the purchase.

Of the many grounds relied upon, in opposition to the rule, I shall only notice two, either of which strikes me as decisive of the case:

1st. All the interest which Kane had in the property at the time of the sale by the sheriff, was the equity of redemption, and by the sale, that was vested in Preston, and if Seymour had notice of it, he will not be protected in his purchase. It was not necessary that he should have had notice at the time of the sale. It would be in time, if the conveyance from Gray had been actually delivered, if he had not actually paid the money, or if he"had actually paid the money, and the titles had not been executed. SeeSug-den on Vendors, 530. Now, it is not directly stated, either in the master’s return to the rule, or in Mr. Seymour’s affidavit, that express notice was given him of the claim of Preston, but I can hardly be mistaken in supposing that the importunities referred to in the affidavit of Mr, Seymour, were in behalf of Preston, or that Mr. Gray, the *485master, did not give that as a reason for not making the titles ; however that may be, he has notice now; the conveyance has not been executed, and the money paid by him to Mr. Gray is yet under his control, and that is sufficient notice.

2d. This sale was for cash, and although a sale by the master is under the decree of the court, it is governed by the same general rules as private contracts between party and party. The courts of equity, I know, are indulgent with regard to time in the execution of contracts, but no one will be found hardy enough to contend, that if one agree to sell property to- another for cash, and the purchaser offer him the money two months after, the seller would be bound to perform his part of the contract; and that is this case. By the law and usage regulating sheriff’s, and other official sales, a purchaser at a sale for cash, must pay the money on the day of sale. I know, and it is no doubt an advantage and a convenience, that it frequently happens that the officer making the sales takes upon himself to allow the purchaser a short time to pay the money, and there is no impropriety in it, when it is done with the assent'of the creditor and the debtor ; but any, the least, indulgence given without their consent, is a violation of the duty of the officer selling. The debtor is always interested, that the property should bring the greatest amount; and so too of the creditor, especially if the debtor has not the means of paying the wThole debt; and it might often happen, that the same property would bring a greater sum a day, or a week, or a month, after the sale, and if the purchaser has neglected to pay the purchase money, he has forfeited his right under the contract of sale; certainly he is not entitled to favor.

The only reason given by Mr. Seymour for not paying the money is, that he was importuned to abandon the purchase, and yet Mr. Gray informed him, from time to time, that Lord, the person entitled to it, was constantly, pressing for the payment. The importunity of Preston, himself, furnished no reason for his not paying Lord. The hardship of the case is another reason why the court ought not to aid Mr. Seymour in completing his title. Preston *486has already paid, or is hound to pay, the amount of his hid, at the sheriff’s sale, and Lord’s debt, amounting together to $9000, and that would be an entire loss. Seymour, on the contrary, loses nothing, unless indeed the anticipated profits on his purchase be regarded as a loss. If, in strict law, he was entitled to it, this court would not deprive him of it, but will not aid him in inflicting so heavy a loss on Preston.

It is, therefore, ordered and decreed, that the rule against Mr. Gray, the master, be dismissed.

*Grounds of Appeal.*

1. That the bill of Richard Lord was properly filed against Christopher Kane alone, as defendant; Preston, at that time, not having become the owner of the equity of redemption, nor was he up to the day of the decree of foreclosure against Kane, his position having been, until then, that of a purchaser at sheriff’s sale, who had not complied with the terms of sale, but had set up a right to the proceeds of sale under a fraudulent judgment, subsequently declared fraudulent and void by the Court of Equity; and up to the day of the hearing of this rule, he had not received, nor éntitled himself to receive, nor has he yet received, the sheriff’s title to the property in question; and it was, therefore; right to treat him as a stranger, and he was a stranger to the transaction, and no notice of his claim, express or implied, could impair the right of a *bona fide*purchaser, under the decree of foreclosure and. sale.

2. That Preston had due and full notice of the sale under the foreclosure of mortgage, he having moved for, and failed to obtain, an injunction against the said sale ; and his suffering another, under such circumstances, to buy the property at public sale, was an acquiesence therein, which disentitles him to equitable protection.

3. That the delay of Seymour to complete the purchase, ought not to prejudice him, as it arose from importunities and negotiations on behalf of Preston, and for his benefit, and the advantage taken of the delay, thus procured, to *trick*Seymour out of the purchase, ought not to avail Preston any thing.

*4874. That the master, especially as the purchase money exceeded the amount of Lord’s mortgage, had no right to withhold the title from Seymour, on receipt of the purchase money, even on notice that Lord had been satisfied by Preston, this amounting to nothing more than a purchase of the decree by Preston, and his subrogation to the rights of Lord, and furnishing no warrant to the master.to consider the decree as satisfied, the rights of a *bonajide*purchaser, for valuable consideration, having intervened.

5. That this was no application to the Court of Equity to obtain a title to land, but merely for a rule to compel an officer of the court to do his duty, by giving to one the paper evidence of a title, already substantially in him, by, purchase at the master’s sale, and payment of the purchase money.

6. That Preston was amere stranger.to this proceeding, and the master should have been ordered to give the title to Seymour, and leave other claimants to their remedies, in law or equity, in proper form.

7. Because the sale by the master, and entry of the sales in his book, was sufficient under the decree to pass the estate from the parties to the suit, and the purchaser was "bound to comply with the terms of sale; so that the payment of the debt, subsequently, was . extra judicial, and cou.d not affect the rights of the purchaser.

8. Because after the biddings, and until a re-sale, the purchaser was entitled, on payment of the purchase money, to demand his titles.

9. Because no person, entitled to be heard, need shew any cause why the master should not, as he had received the amount of the bid, make the titles, which only relate to the bid, and are not effected by any intermediate act of .the parties to the suit, and no stranger can, shew cause for the master.

10. Because the court is bound by its own decree, until reversed, and by it, the equity of redemption was foreclosed, and the estate ordered to be sold; and after the bid, the money was in place of the bond.

11. That the decree of the Chancellor was, in other respects, and for other reasons, contrary to equity.

*488*Yeadon & McBeth*and *B. F. Hunt,*solicitors for Seymour.

*Petigru &*Magrath, contra.

*Curia, per*Johnson, Ch.

The court concur in the decree of the circuit court. Appeal dismissed.

Harper and Dunkin, Chancellors, concurred.