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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 224   View pdf image (33K)
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224 HIGH COURT of CHANCERY.
THE FARMERS' AND PLANTERS' BANK
vs. JULY TERM, 1862.
JAMES MARTIN AND WILLIAM R. TRAVERS. }
[COMMISSION TO SOLICITOR, AS FEES—PRACTICE—EVIDENCE.]
WHEN trustees are compelled to bring suit for the purchase-money, it has
been the constant practice of the Court to allow a commission of 6 per
cent. to the attorney engaged by them, and when the trustee is himself
an attorney, and collects the money in that capacity by a suit at law, a
similar allowance has always been made to him.
Such commission, as well as the trustee's commission as such, and the costs
of suit, are always deducted from the proceeds of sale before distribution
is made among creditors, the effect of which is, of course, to throw these
allowances upon the unpreferred creditors, when the fund is insufficient
_ to pay all.
Such commissions -will also be allowed to the trustee, where he proceeds to
collect the purchase-money by proceedings for a re-sale in the same case.
Where a purchaser knew of an incumbrance on the land, consisting of
ground-rent in arrear, and the property was re-sold, he cannot be allowed
a credit for such incumbrance paid by him.
The fact of such knowledge on the part of the purchaser may be proved by
parol, though the advertisement of sale made no mention of ground-rent
in arrear as an incumbrance on the property.
The advertisement is not the contract of the parties, and it is the constant
practice of trustees to introduce other terms of sale, and make known to
bidders at the time of the sale, facts and circumstances affecting the title
or value of the property not mentioned in the advertisement, and parol
proof of such facts is always admitted when it becomes necessary to resort
to it to vacate or uphold the Bale.
[The facts of the case are stated in the opinion.]
THE CHANCELLOR:
The questions in controversy, arising upon the exceptions to
the report of the Auditor in this case, relate to the allowance
to William W. McClellan, the first purchaser, of the sum of
$161 25 for arrears of ground-rent and interest thereon, due
at the time of his purchase, and to the allowance to the trustee

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 224   View pdf image (33K)
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