They are considered as two assurances, each affording a remedy, or mode of obtaining one satisfaction. (i) So also, a receiver appointed by the Court of Chancery, is always required to give bond, with surety, to account. But in such case, the court may either proceed by attachment against the receiver alone, or upon the bond. (j)

In all these, and other like cases, the existence of the two secu rities, being perfectly compatible, the one with the other, it has never been held, that the taking of one amounts to a tacit waiver of the other. (k) And consequently, the taking of bonds or notes with or without surety, of a purchaser under a decree, cannot, in any case, be construed as an abandonment of the right to proceed against the purchaser alone by attachment, to enforce the payment of the purchase money, after it has become due, and after the sale has been ratified.

But if the parties choose, as they may, to have the bonds or notes which have been taken of the purchaser, assigned to them in satisfaction of their claims, that have been established; (1) or to have the trustee directed to proceed against the purchaser and his sureties, in order to fix their liability by a judgment at law, and in that way to recover the purchase money, suits may be brought upon the bonds or notes by the assignee or the trustee, according to the uniform and long established course, where such has been the choice and object of the parties. (m)

way

It is a clear and well settled principle of this court, that where property has been sold under its decree, the court, as the vendor for the benefit of those interested, retains an equitable lien for the payment of the purchase money. (n) The most usual of enforcing this lien, has been by petition of a party interested, setting forth the facts, and praying that the property may be re-sold to pay the whole or the balance of the purchase money. And a sale may be ordered accordingly, at the risk of the delinquent purchaser. The proceedings, in such cases, are almost always infor

(i) The United States v. Lyman, 1 Mason, 482.—(j) Davies v. Cracraft, 14 Ves. 143; Musgrave v. Medex, 1 Meriv. 49; Utten v. Utten, 1 Meriv. 51.—(k) Wright v. Freeman, 5 H. & J. 475; The Mayor of Baltimore v. Howard, 6 H. & J. 394.— (1) Spurrier v. Spurrier, 1 Bland, 476, note; Ex parte Boone, ante 321, note; McMullen v. Burris, ante 357, note; Christie v. Hammond, ante 645, note; 1785, ch. 72, s. 9.—(m) Collinridge v. Mount, 2 Dick. 688; Musgrave v. Medex, 1 Meriv. 49.-(n) Mackreth v. Symmons, 15 Ves. 329; Cowell v. Simpson, Ves. 276.

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mal and summary. (o) The vendor under a decree, therefore, holds two securities for the payment of the purchase money; one is this equitable lien, and the other is the personal liability of the purchaser. It is conceded on all hands, that the equitable lien may be enforced in a summary way. Can there then, be any conceivable solid reason, why the personal liability should not also be enforced in a summary way? If it could not, there would be a gross incongruity in the rules of the court. But it is not so; the personal liability may be enforced in a summary way, and there is a perfect harmony in the rules and principles of the court.

Upon the whole, it is my opinion, that the purchase money of property sold under a decree, after the sale has been ratified, may be recovered either by an order and process of attachment of contempt against the purchaser himself, to compel him to complete his purchase after the purchase money has become due; or by a re-sale of the property, grounded on the subsisting equitable lien; or by an action at law against the purchaser and his sureties, upon the bonds or notes given by them for the payment of the purchase money.

Ordered, that no good cause having been shewn against the order of the 17th of March last, the same is hereby confirmed and made absolute. Also Ordered, that an attachment issue against the said Samuel Anderson, to enforce obedience to the said order, returnable to the next term.

From this order Anderson having appealed, a transcript of the record was sent up accordingly, and the case was argued before the Court of Appeals by the solicitors of the parties. (p)

June term, 1828.-By the Court of Appeals.-It appears from the proceedings in this case, that on the sale made by the appellee to the appellant, being reported to the Chancellor, objections to its ratification were filed by the appellant, and answered by the appellee, on full consideration of which, the sale was ratified, and that ratification affirmed by this court; it is, therefore, not competent for the appellant now to contest the propriety or validity of that sale, it having received the sanction of the highest judicial authority of this state. But it has been contended, that as the appellant never was

(0) Haig v. Commissioners of Confiscated Estates, 1 Desau. 144.—(p) This opinion of the Court of Appeals is introduced here, out of chronological order, that it may be placed in juxta-position to the decision of the Chancellor, to which it relates.

reported to the court as the purchaser of the property sold by the appellee, he cannot be compelled to complete the purchase by paying the purchase money. It does not appear, it is true, that the trustee in this case, has proceeded according to the usual practice of the court, in making a formal report of his sale; but it appears by the proceedings, that on the 9th of October, 1822, the appellant filed his petition to the Chancellor, in which he stated, that he had contracted with the appellee for the purchase of the land in question, supposed to contain one hundred and forty acres, at, and for the sum of $11 per acre, and by the report of the trustee, (the appellee,) was returned the purchaser, and prayed that the sale made and reported, might not be confirmed. On the coming in of the answer of the appellee, and the return of depositions, which were taken in pursuance of the Chancellor's order, and upon the return of the locations made by the sheriff of the county, under the same authority, the Chancellor passed an order ratifying and confirming the sale, which order, on appeal, received the sanction of

this court.

It is, therefore, now too late for the appellant to object that he was not reported, in the more formal and usual way, to the Court of Chancery, as the purchaser of the property. The trustee, moreover, in answering the petition of the appellant, against the ratification of the sale, refers to, and makes a part of his answer, the written contract of sale to the appellant, executed by both the appellant and appellee, which mentions fully, the terms of sale, and which is understood to be the sale ratified by the Chancellor. Under this view of the subject, this court are of opinion that there is nothing in the objection that the appellant was not reported to the court as the purchaser of the property, and that a good title cannot be conveyed to him in consequence of this irregularity in the proceedings.

It has been contended that the Court of Chancery has no power, by a summary proceeding, to compel a purchaser at a trustee's sale, made under the authority of its decree, to complete his pur chase by enforcing the payment of the purchase money. This objection, it is conceived, cannot be available in the case now under consideration. The trustee did not take either notes or bonds for the payment of the purchase money, upon which a suit or suits at law could have been instituted, but relied solely upon the liability of the purchaser arising from the contract of sale, which was not binding upon either party until ratified by the

Chancellor; but when ratified, it was his duty to pay the purchase money, or shew good cause to the contrary. Neither of which has he done in the present case; for neither the allegation of the trustee's inability to comply with the terms of the sale, nor that the property, being in the possession of a third person, the trustee was unable to deliver him possession, is supported by a shadow of proof.

Had the Chancellor, therefore, under the circumstances of this case, a right to adopt the proceeding to which he resorted to compel the payment of the purchase money? We think he had. The order of the Chancellor was, that Samuel Anderson, the purchaser, should pay the money to the trustee, or bring the same into court on a particular day, or shew good cause to the contrary. Under the terms of this order, it is not perceived why Anderson could not have made as full a defence, and have availed himself of all the objections, which could have been relied upon, in case an original bill had been filed against him to enforce the same object. Upon application to the Chancellor, setting forth that testimony would be essential to his defence, on the hearing of the order, the Chancellor would have passed an order to enable him to obtain it, upon the return of which a full hearing of the merits of the case might have been had; and if equity and justice required it, he would and ought to have been discharged from his purchase. That the Court of Chancery in England has the power of compelling a purchaser to pay his purchase money after the confirmation of the sale, by an order for that purpose, is not to be doubted. Lansdowne v. Elderton, 14 Ves. 512; Newland Ch. Pr. 336. In Brasher's Exrs. v. Cortlandt, 2 Johns. Ch. Rep. 506-7, it appears, that by the practice of the Court of Chancery, in New York, a purchaser may be compelled to complete his purchase; and Chancellor Kent is reported to have said, '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.'

In this case it is quite apparent that procrastination and delay are the objects of the purchaser, as he has taken every measure in his power to prevent the ratification of the sale; and after the sale was ratified, on appeal to this court, has still refused to pay the purchase money, and has driven the trustee to resort to the compulsory power of the Court of Chancery to coerce payment. Under these circumstances, we think it a fit case for the exercise of such a power by that court; although it is not intended

at present to establish any general rule on the subject. There is nothing in the objection that the quantity of land sold has not been sufficiently ascertained. Order affirmed.

The plaintiffs by their petition stated, that the trustee Foulke had died, and thereupon prayed that some other person might be appointed in his stead.

1st March, 1827.-BLAND, Chancellor.—The plaintiffs by their bill do not profess to sue as well for the other creditors of Stephen Scotton as for themselves. From the facts which they set forth, it appears, that they were the holders of a vendor's lien to secure the payment of the balance of the purchase money; and as such, in their proceeding to have the land sold for the payment of their claim, they had no such common interest with the other creditors. of Stephen Scotton, as would enable them to sustain a creditor's suit for the administration of his estate. (q) Yet from the manner in which the bill speaks of the insufficiency of the personal estate; and on having made Ashur Foulke, the administrator, a defendant, it may be inferred, that the plaintiffs contemplated their bill as the commencement of a creditor's suit. The decree of the 5th of April 1822, by reciting, that the deceased Stephen Scotton did not leave personal estate sufficient for the payment of his just debts; and by directing the land to be sold for the payment of the claim of the complainants and of such other debts of the deceased as should be established to the Chancellor's satisfaction, evidently considers the proceeding as a creditor's suit. But no notice has been directed to be given to the creditors of the deceased to bring in their claims; nor has any decree to account been passed against the administrator; on the contrary, all claim against him, as well by the plaintiffs to obtain satisfaction of their debt, as by these heirs to have the real estate descended relieved, by the application of the personalty which might be found in his hands, seems to have been wholly abandoned.

It now appears that the defendant, Ashur Foulke, the adminis trator, who had been appointed to make the sale, is dead; and that the suit had thus abated as to him. A suit which has abated as well in regard to the real as to the personal estate may be so revived as to proceed against either, leaving the abatement to stand as to the other. (r) So here, as this abatement does not

(9) Ellicott v. Welch, ante 244; Hammond v. Hammond, ante 344.—(7) Colegate D. Owings' case, 1 Bland, 409.