4 Edw. Ch. 1 | New York Court of Chancery | 1835
The exceptions to the master’s report on title are not well founded. The evidence, I consider, sustains the report, though it would have been more satisfactory if the master had gone farther and shown how or in what manner the complainants would cause a good and perfect title to be made to the defendants, whether by delivery of the deed which is made an exhibit, dated the fifteenth day of June one thousand eight hundred and thirty two, executed by Willard and wife and Gardner and wife, or by some other act or deed. The order of reference, however, following the language of the agreement, only required the master to report whether the complainants could cause to be made to the defendants a perfect title, clear of incumbrances ; and, in strictness, he was not bound to report any thing more. If more should be now required, in order to enable the court to make its decree, the course would be to, send the cause back to the master for further information : 1 Newland Ch. Pr. 205 ; Gibson v. Clarke, 2 Ves. & B. 103 ; Anonymous, 3 Madd. R. 495 ; Hyde v. Wroughton, Ib. 280.
But this seems to be unnecessary in the present case.The testimony taken before the master shows that the title to which his report refers, and on which it rests, is the title in Willard and Gardner, and that the title which the complainants could cause to be made is the same which the delivery and acceptance of that deed would confer upon the defendants. There can be no mistake on this point from the testimony, and the court is warranted in decreeing, at once, the delivery of the deed in fulfilment of the complainants’ part of the agreement. The objection that the legal title was not in the complainants, and does not come through them to the defendants, is of no avail. The agreement is not that the complainants would convey to the defendants
The only question that remains, then, is as to the costs of the suit ? Although the complainants succeed in this suit, it does not necessarily follow that they are entitled to costs against the defendants. They furnished no abstract of title previous to filing the bill. At that time too there was a judgment outstanding, which was apparently an incumbrance, and which they took no steps to remove, though they offered to leave enough of the purchase money to cover the amount. The defendants were excusable in standing out until the title could be investigated, and under the circumstances they ought not to be made to pay the costs of the suit: Wilson v. Clapham, 1 Jacob & W. 36. Nor do I think the defendants are entitled to costs against the complainants. The fairest ground on which to put it is that both parties have, in some degree, been in the wrong ; and as to the costs of the suit generally, each party should bear their own : Newall v. Smith, 1 Jacob & W. 263. The defendants, however, should not have taken exception to the master’s report, and the costs consequent on this step the defendants must pay. According to the stipulation contained in the order of the first day of October, one thousand eight hundred and thirty-two, by which Richard S. Williams was discharged from the sale with his costs out of the fund paid into court, the defendant must bear those costs, amounting to sixty-three dollars and sixty one cents.
Decree, overruling exceptions and confirming the master’s report of title, that the title deeds and papers made exhibits before the master be delivered to the defendants as evidence of their title, and that they pay six hundred and fifty dollars purchase money and the costs of the hearing on the exceptions. The money remaining in court to be paid over on account of the purchase money and those costs.