JOHN C. BARNES & AL. vs. MORDECAI MORRIS & AL.

Where, on the petition of infants and feme coverts, for the saleofland, the land is sold, and the Court then passes this order: “ Ordered, that the Clerk and Master collect the bonds as they beoomo due, and make the purchasers title Held, that under this order, the Clerk and Master had no authority to convey the title, until the purchase money was paid.

Held, further, that when, in such a case, the purchaser had conveyed the land to another person, who had notice that the purchase money was unpaid, tile lien on the land in favor of the original owners still continued, and the surety of the purchaser at the Master’s sale, who had been compelled to pay the bond, should be substituted to the rights of the original owners.

The cases of Green v. Crocket, 2 Dev. and Bat. Eq. 330, and Polk v. Gallant, 2 Dev. and Bat. Eq. 335, cited and approved.

Transmitted by consent from the Court of Equity of Pasquotank County, at the Fall Term, 1845.

*23At the Fall term, 1839, of the Court of Equity for Pasquotank County, Alphia B. Harrell, his wife and others, tenants in common of several tracts of land, filed their petition under the Act of Assembly, to have them sold for the purpose of partition.

A decree of sale was made ; and the Master, by order of the Court, made sale of the lands — when the defendant Markham, became a purchaser of one of the tracts, and executed two bonds for the purchase money, with the plaintiff, Barnes, surety. The report of the Master of the sale was confirmed by the Court, and thereupon the following order was made : “ Ordered, that the Clerk and Master collect the bonds as they become due, and make the purchasers title.” The Master executed a deed of conveyance to Markham, before he paid the purchase money. And Markham has since paid one of the bonds and conveyed the lands to the other defendant, Morris, who had notice at the time, that the purchp.se money under the Master’s sale was unpaid by his vendor. Markham is now insolvent. Barnes, as his surety, has been sued on the second bond and has been compelled to pay it.

Barnes, by his bill, prays to be substituted to all the rights and equities of Harrell, wife, and others, and to have the land now in possession of Morris, charged' for his indemnity with the sum paid by him. The other plaintiffs arc only formal parties. The defendants admit most of the facts set forth in the bill; hut they state that the first bond to the Master was paid, mainly by the money which Morris advanced to Markham on the sale to him ; and they insist, that if the plaintiff should obtain a decree, then the same should be credited to Morris, in the taking of the accounts. But they mainly insist, that the order made by the Court, and the deed executed1 to Markham by the Master in pursuance thereof, transferred to him all title, legal and equitable, in the bond. The case was then- set for hearing!

*24 Badger and A. 'Moore, for the plaintiffs.

Iredell, for the defendants.

Daniel, J.

When the Clerk and Master shall sell any real or personal estate, in obedience to a decree of a Court of Equity, and shall be authorized by the decree to make title to the purchaser, the deed of the Clerk and Master shall be- deemed as good and sufficient to convey to the purchaser such title in the real and personal property so sold, as the party of record owning the same had therein. Rev. Stat. 183, T. 48. It is to be seen, therefore, that a deed, executed by the Master, transfers no title to the property sold by him, unless it is given in obedience to the decree of the Court. That brings us to .the consideration of the effect of the order to the Master to make deed in this case. The order was, “ that the Clerk and Master collect the bonds as they become due, and make the purchasers title.” Had the Master any authority, by this order, to make title to Markham, until all the money was paid in ? Where infants and feme coverts are concerned, and can give no consent that a conveyance of their lands should be ■ made to the purchaser, before all the purchase money be paid in, the Court is expected to be extremely cautious in making an order, that shall have the effect of taking from them their lien on the laud for the purchase money. And we see, that there was a feme covert interested in the sale of these lands, and also that other tracts of land were sold by the Master for the petitioners, beside the one purchased by Markham. There was a strong inducement, therefore, for the Court not to make an absolute order, that the Master should immediately make title. Taking these things in our view, and then attending to the terms of the orders, it seems to us that there was a condition precedent to the execution of the conveyance, to-wit, the collection of the bonds as they became due : That was not done, and therefore the deed to Markham was made *25without authority, and did not transfer the legal title to the land. It is admitted, that the language is not as explicit as it ought to be, and therefore the decree is to be collected by construction, from the words and the circumstances. The Master is ordered “ to make title.” When, and upon what event ? Why shall we answer, presently ?

If the owners had taken out the bonds'as cash, looking to the purchasers and intending to collect the money themselves, and to indulge the purchasers at their discretion, there might be a presumption, that, as the Court would not know when the purchase money was paid, it was intended the .Master should make a deed at once, and be done with it. But as the collection was left in this case under the control of the Court, the presumption is the other way; and it cannot be intended, unless clearly expressed, that the Court meant to part with the security of the land, before the whole purchase money was paid. Therefore, the acts are to be taken to precede and follow each other, as they are stated in the order ; that is, that the Master shall collect the bonds for the purchase money, and then make deeds to the purchasers respectively. That is the natural construction in Equity of even a contract of sale, where ho time is specified for the conveyance; since Equity holds that the land was intended as a- security for the purchase monejr, unless the contrary appeared; and much more of a decree, where the Court is dealing for others. Therefore, the deed of the blaster, being unauthorized, did not pass the legal title, and Morris is but an assignee of Markham’s equity. The surety of the purchaser has a right, upon the insolvency of the principal, who has not got in. the legal title before the payment of the debt, as against one purchasing from him even bona fide, and without notice of the non-payment of the purchase money, to have the land sold for his rc-imbursement, if he has paid the debt, or for his exoneration, if he has not yet paid it. *26 Green v. Crocket, 2 Dev. and Bat. Eq. 390. Polk v. Gallant, 2 Dev. and Bat.Eq. 395. We think,that the plaintiffs are entitled to a decree, to have the land now held by Morris re-sold for their indemnity, unless Morris chooses to pay the plaintiff’s demand, and take a new conveyance from the Master.

Per Curiam.

Decree accordingly.