Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-08-25

cation, or for whose fault the other has lawfully
scinded It, stands In different position. Strictly
into court, the phrase IL, With clean hands. "
Bishop on Contracts, Sec. 6Sl.
1T may be asserted with confidence that part,
who has advanced money, or done an act In par
performance of an agreement and then stops short
aud refuses to proceed to the ultimate conclusion of
| the agreement the other party being ready aud will
ing to proceed and fulfl all his stpuationa accord
ing to the contract has neUer been to recon
| or for ,ohat has thus been ddranced or DONE
Rstchana os. Everston. IS Johns 365, ct seq:
The rule stated by bishop supra, and by Ohancel
lor Wslworth In the last cited certainly applies
to this CASE It having been determined that defend
| ants failure caused greater loss and dam
| age to the estate than the amount Of hli
deposit asked to be paid back to him. True, ut ID
not usual In sales of estates under the DEGREES Of
court to require the purchaser TO make any deposit
| II is however, sometimes DONE" Daniel oh. Pr
p. 1852.
sale of this kind Is not within the statute Of
Frauds and 1t can be enforced because the judgment
of the court takes 1t out Of the statute, and wnen
sale has been fairly and properly conducted and the
party Is able to complete his contract he will be hello
strictly to his bargain or respond In damages [i6]
The receiver could chad the defendant been solvent
after the tender Of the deed to defendant, have
brought suit for the amount OF the bid and collected
it, the same II he were the legal owner of the
| tate See opinion In Armstrong Us. Vf0man
II MINI, 900.
He could also, as we have shown. secure
the right to resell, and could then, upor
the same principle have al action
against the first purchaser for the costs of resale and
Having the amount Of deposit in his hands as re.
cever 1t s hell by that officer for the court and the
right of the defendant receiver to the can bt
determined in this action, If the defendant hac
been party to this action, this court would have
jurisdiction this after, for the rule is thai
| "Where party becomes Q purchaser under decree
he submits himself to the jurisdiction Of the cour
In that suit, as to all matters connected with suct
SALE or re atlng to him in the character Of purchas
en-" ReQua Us. Rea, 2 Paige, S4l.
It therefore follows from the foregoing, that thu
defendant is not entitled to have the lid i've hun
dred dollars returned to him, and his application
to have 1t SO returned, is hereby denied. The re
ceiver, having asked, upon his application for con
drmaton of his final report, and for his discharge
the reason, among Others that the whole thereof II
necessary to the creditors aud expenses incurred
by said receiver az such. evidence heard in
aion thereto at the last general term Of said court
aud said defendant was preset by counsel ans
heard In opposition thereto, and the same taken un
| der advisement.
After considering the same, I find that said S5Ot
| is less than the deficiency between the amount o.
last sale of said real property and the said first sal
to defendant; that said defendant, without valit
excuse, cause defsulted at said first eale and tina
said estate lost thereby the amount Of said deficiency
! to-wit, the sum OF nine hundred and twenty-five
| dolla's, and the costs and expenses Of thu
/ second sale, which amounted to SIS Is, aud tina
said five hundred dollars, and the whole thereof II
required to pay the creditors of sad estate and thu
| expenses In the settlement of the same.
1t is therefore ordered and adjudged, that the sale
Ave hundred dollars be- and the same hereby is for
feted to said estate free and clear Of any and al
| claim of the defendant or any one for him to tn.
8 me; and that the same is the property of said ee
tate and Is part of the assets thereof 10 the hand
of said receiver, to be disposed Of by him as such al
provided by law. By the court,
j. L. MACDONALD, Judge Eighth District.
| Dated August 18th, 1e8O.