9 Del. Ch. 69 | New York Court of Chancery | 1910
The petitioner, the purchaser, raises the question whether the trustee can refuse to execute the deed tendered to the trustee by the purchaser for execution by the trustee until the trustee, a solicitor of this Court, has been paid a fee for drawing a deed for the premises sold. In response to the petition the trustee tendered to the purchaser a deed drawn by the trustee, upon being paid a fee for drawing it. In partition causes in Chancery the order of the Court is that the trustee “execute and deliver” a deed to the purchaser, without stating by whom it is drawn or to whom payment is to be made of the fee for drawing it, and there is no rule of Court, or provision of law, on the subject, or fee fixed by law therefor. There was in the condition of sale no mention of the matter. The practice has varied. There is in the Orphans’ Court of New Castle County a precedent by which I shall be governed without further consideration of the principles of law, or other precedents applicable to the matter, if there be any. Judge Grubb ruled that the purchaser had a right to draw, or have drawn by his counsel, a deed for land bought at a sale made by an executor for the payment of debts of a decedent, where one of the terms publicly announced at the sale was that the •deed would be made at the expense of the purchaser, without stating by whom it should be drawn, and that the purchaser was not obliged to pay the attorney for the executor for drawing the deed tendered to the purchaser by the executor in place of the deed tendered by the purchaser to the executor for execution. This ruling is known to the bar, and I will follow it, and, if necessary, make an order that the trustee execute the deed tendered to him by the solicitor for the purchaser, for I consider I have jurisdiction to make such an order.
It would follow that the fee for the acknowledgment of the deed should be paid by the purchaser, and, of course, the cost of recording the deed.
Under the circumstances of this case the costs on this petition will be divided between the petitioner and the trustee.