Walworth v. Anderson — 4 Edw. Ch. 281

Majority

p. 281

Walworth v. Anderson et al.

June 27, 1843.

Headnote

Where a resale was obliged to be had owing to the solicitor and master not having attended sufficiently in selling to a description of the premises as contained in the decree, the court refused to the solicitor his costs on the motion discharging former purchasers and to the master his costs and advertising of the first sale.

Sale and Re-sale. Master. Solicitor. Costs.

Decree for sale of premises, mentioning a party wall. No reference was made to it at the time of sale ; the purchasers refused to take the property; and they were let off by the court—and on the nineteenth day of April 1843, a re-sale was ordered. The master was required expressly to explain the matter of this party wall in one of the conditions of the re-sale.

The ultimate sale did not nett near so much as the prior one; and on a present motion for confirmation of the master’s report, a question was mooted as to allowing any costs in relation to the vacated sale.

:—It is now evident that the infants to whom the money in this case belongs, have been seriously prejudiced by the re-sale. The court was obliged to relieve the former purchasers, because of the loose manner in which the property had been put up and sold. This was the fault of both solicitor and master. The description of the property as given in the mortgage and in the decree, speaking as it does of a party wall, was sufficient to have put them on inquiry as to how the property should be sold with reference to party walls or other circumstances which might affect the sale ; and yet no inquiries were made and no heed taken of the fact—leaving the purchasers in the dark and to find out afterwards that they had been misled. Under these circumstances, I think the solicitor for the complainant must forego his costs on the motion to discharge the purchasers and of the order for a re-sale; and that the master must, also, be content to receive the costs and expenses of only once advertising and selling the property.

Order, therefore, that the present sale be confirmed: and

p. 282

that the master take, out of the proceeds, only the costs of advertising and selling the property as directed by the order of the nineteenth day of April one thousand eight hundred and forty-three, including his commissions upon the latter sale and that the complainants’ solicitor be allowed no costs upon the motion to discharge the former purchasers or for the re-sale.