
    Swain and Another v. Morberly.
    A person purchasing of a commissioner appointed to sell' real estate, in-proceedings for partition, is not entitled to a deed under the statute, until the purchase money has been paid.
    
      A., as commissioner, &c., executed to B. a certificate, as follows: “I do certify that B. has purchased the following real estate, (desci'ibing it,) for the price of, &c., for which he has given his notes with security, and that he is entitled to a deed for the same when this sale is confirmed by the Court.” The sale was confirmed by the Court, and without making a deed, A. sued for the purchase money.
    
      Held, that the certificate did not purport to be a contract, binding upon A., and did not bind him to cause a deed to be made, but simply certified that the purchaser would be entitled to a deed, if the sale was confirmed; and a tender of a deed before suit for the purchase money, was not necessary.
    APPEAL from the Rush Circuit Court.
   Worden, J.

Morherly was appointed a commissioner to sell certain real estate, left by Michael Riee, deceased, on proceedings for the partition thereof. As such commissioner, he sold the land to Alonso Swain, and took Ms three several promissory notes, with F F. Swain as surety thereon, for the payment of the purchase money.

At the time of the sale, Motherly executed to Swain the following certificate of purchase, viz:

“State of Indiana, Shelby county:
July 17,1857.
“I do certify that on this day, above written, Alonso Swain purchased at public sale the following property, belonging to the heirs of M. Rice, deceased, to wit: (here follows a description of the land) for the sum of $2,364, in three equal payments, in six, twelve and eighteen months, with interest from date, and has given his notes with-approved security for the same; and that he is entitled to a deed for the same, when tins sale is confirmed by the Court of Common Pleas of said county of Shelby.
(Signed) “Thomas Morherly,”
“Commissioner to sell the read- estate of M. Rice, deceasedI

This suit was brought by Morherly, on the notes thus given.

The defendants filed an answer of five paragraphs, to each of wMch a demurrer was sustained, and final judgment was rendered for the plaintiff.

The defendants appeal. The correctness of the decision on the demurrer is the only question presented here.

The first paragraph of the answer sets out the certificate above copied, and avers “that the said sale of real estate was duly confirmed by the said Shelby Common Pleas Court, at the term thereof next after said sale, and that the defendants have in all respects complied with said contract of sale, on the part of A. Swain, but that the said plaintiff has not complied with his part of said contract, in this, to wit: that he has not made, or caused to be made, by any proper person or officer, to said defendant, A. Swain, a deed of conveyance of said real estate, nor did lie apply to said Court therefor; and that the same should have been so made and applied for, and delivered before the commencement of this † „ suit.”

The statute under which the sale was made, provides that “whenever it shall appear to the Court that the purchase money for the land sold has been duly paid, the Court shall order such commissioner, or some other person, to execute conveyances to the purchaser,” &c. 2 R. S. 1852, § 21, p. 332.

Under this statute, it is clear that a purchaser is not entitled to a conveyance until the purchase money is paid; nor is the tender of a conveyance a condition precedent to the right to recover the purchase money.

The question then arises, whether the certificate executed by the plaintiff is such a contract as binds him, before the purchase money can be recovered, to make, or cause to be made, a conveyance of the land, when the sale was confirmed. We think clearly not. Indeed, the certificate does not seem to amount to any agreement at all. It does not purport to be a contract, binding upon Morberly. It certifies that, as such commissioner, he has sold the land, and that when the sale shall be confirmed, Swain will be entitled to a deed. It does not bind him to make, or cause to be made, a deed for the land, either upon the sale being confirmed, or at any other time. The certificate evidently means, that the purchaser will be entitled to a conveyance, if the sale should be confirmed; but it does not purport to fix any obligation upon the plaintiff, in this respect. Herein, the case differs radically from that of Henton v. Beeler, 7 Blackf. 150, which is relied upon by the appellants. In that case, ihe commissioner had entered into a bond, obligating himself to convey.

There was no error committed in sustaining the demurrer to this paragraph of the answer.

The demurrers to the other paragraphs were correctly sustained, for the reason, if for no other, that the facts set up in each paragraph were pleaded in bar of the whole cause of action, while, at most, they could only be a bar to a part.

_ „ , L. Sexton, lor the appellant.

Davis, Wright & Green, for the appellee.

Cder Curiam. — The judgment is affirmed, with costs, and 2 per cent damages. ■  