Executors of Brasher v. Cortlandt

2 Johns. Ch. 505

Opinion

The Chancellor.

[ * 507 ]

The purchaser ought, in this case, to be compelled to complete his purchase. Such an order was made in the case of Lansdown v. Eldon, (14 Vesey, 512.) and several cases of the like kind, in the Court of Exchequer, were there referred to. The lord chancellor, in that case, ordered the purchaser to. pay his purchase money within a fortnight, or stand committed; and he observed, that a purchaser could not be permitted to baffle the Pourt. If no order of this kind could be made in this case, it would follow that not only the purchaser, but the committee of the lunatic, would be permitted to baffle the Court, and sport with its decree. The committee, who are .in possession of the lunatic’s property, and have apportioned it among them, as his children, and who have admitted the justice of the plaintiff’s debt, have, already, in the former progress of this suit, shown .a disposition to *embarrass and defeat the recovery;

† and they now procure a nominal purchaser, without any intention, on his part, or on their part, that the purchase should be carried into effect. This is to me quite apparent. The appeal is, also, interposed after the decree for a sale had been essentially executed, and it cannot be permitted to supersede the' completion of the purchase. I do not mean, at present, to lay down any general rule on the subject of coercing a purchaser by attachment; but I ought not to hesitate, under the circumstances of this case ; and I have no doubt the Court may, in its discretion, do it, in every case, where the previous conditions of the sale have not given the purchaser an alternative. Here it has become necessary, in order to give due effect to the authority and process of the Court, and to preserve them from being treated with contempt. The forfeiture of the deposit would not be sufficient, either as a punishment to the one party, or as a satisfaction to the other. In Savill v. Savill, (1 P. Wms. 745.) where the Court would not make an order on the purchaser to complete his purchase, but thought the forfeiture of the deposit, which the purchaser elected to lose, sufficient, the deposit was about one tenth of the purchase money, and the learned editor, Mr. Cox, adds a quare, whether that case be now the law of the Court.

I shall order, that the purchaser pay the -purchase money in six days, or that an attachment issue.

Order accordingly.

s. C. ante, p. 243. 400.