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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 533   View pdf image (33K)
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BARNUM VS. RABORG. 533
very certain; but this does not prove, that the proceeds of sale
being in court, may not be applied to his indemnity. If the
sale, instead of being for cash, had been on credit, and the
defendant had refused to give the purchaser possession, until
coerced by the authority of the court, it is supposed to be very
clear that the purchaser could not be made to pay interest for
the time he was deprived of the possession, for the benefit of
the defendant.
No opinion is meant to be expressed, with regard to the ob-
ligations of the purchaser, under such circumstances, to pay
interest, so far as creditors are concerned, but if the principal
proceeds of sale should be sufficient for their payment, the de-
fendant refusing to surrender the possession of the property,
would never be allowed to claim interest as against the pur-
chaser. But in this case, the sale was for cash, the money was
paid, and the possession of the property retained by the de-
fendant. The purchaser, therefore, lost the interest upon the
purchase money, and he was also compelled, or will be com-
pelled to pay the principal and interest of the elder incum-
brance, and the question is, shall he not be indemnified for this
loss out of the residue of proceeds of sale, which would other-
wise be paid to the defendants ? The justice of making him
this indemnity, is too plain to be disputed, and, I think, the
technical objection should not be permitted to prevail. Ac-
cording to what is understood to be the received doctrine in
this state, jive per cent. per annum, is considered an equivalent
for the use of real estate, that being supposed to be about the
average annual value of this description of property. But the
allowance here is less than five per cent., and, therefore, it
seems to me, I can be doing no injustice to the defendant by
confirming this report of the Auditor, and shall pass an order
accordingly.
S. H. TAGAB.T, THOS. S. ALEXANDER for Complainants.
JOHN NELSON, WM. SCHLEY for Defendants,
46*

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 533   View pdf image (33K)
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