| Md. | Jun 29, 1871
delivered the opinion of the Court.
The appeal in this case is from an order of the Court below, passed the 26th of March, 1870. Erom so much of this order as rescinded the order finally ratifying the sale made by the trustee, there is no appeal, as the order was rescinded during the same term at which it had been passed.
An appeal, however, does lie from that part of the order, which annuls and sets aside the sale, and to this extent the appeal will be entertained.
The testimony satisfies us that the appellee, Walter, became the purchaser of a part of the property directed to be sold by the decree in this case, under the impression and belief that he was buying it free from all incumbrance, except the ground rent mentioned in the advertisement of sale. He so declares in his affidavit, and his acts, immediately after the payment of the fifty dollars to the auctioneer, confirm us in this impression. The value of the property sold, the testimony of Wood and Ould, and the statement of the trustee, all show that he was acting under a mistake. Upon the merits of the case, we think, with the Judge below, there can'be no doubt. It would be a great wrong to hold a purchaser, who became such through a mistake, and in ignorance of the liabilities, he was incurring, to a strict compliance, unless some rule of law required it.
Until the final ratification, a sale, made by order of a Court of Equity, is an executory contract, open to objection, and will not be enforced, if it is inequitable and against good conscience to do so. As this case now stands, it is to be considered as if no order of ratification had been passed, the order of the Judge below rescinding it, being final and conclusive. The objection of the appellee to its ratification is, therefore, in time. The case of Brown vs. Gilmore’s Ex’r, 8 Md., 322, has no application to the one before us. In that case, there was an order of final ratification regularly passed, and the Court determined that the objection of the appellant having been filed after the order, even if well founded, came top late. This doctrine cannot be applied to the present case, and being satisfied that the appellee has an equitable claim to be released from the purchase in question, the order of the Court below setting aside and annulling the sale will be affirmed.
Order affirmed.