delivered the opinion of this court.
The questions which we are called upon to decide on this appeal, arise out of exceptions filed by the complainant and by Mr. William W. McClellan, to the auditor’s report and account B. It appears from the proceedings that the exceptant, McClellan, became the purchaser at a sale ordered by the court of chancery, and that this sale was duly reported by the trustee and ratified by the chancellor. The amount of the sale was $1450. The purchaser failing to comply with the terms of sale, proceedings were instituted for a resale under the act of Assembly of 1841, chapter 216, and a resale was directed at the risk of the first purchaser, the exceptant McClellan. The property was resold for the sum of $1625. In the statement of the account B, of the proceeds, the auditor allowed to :the exceptant the sum of $161.25, which he claimed on the ground that when he made his purchase it was an incumbrance ■on the lot in form of rent due, and that inasmuch as he was compelled to pay it to the landlord, he ought to be allowed the amount as a credit on his purchase. Although in- some instances trustees, in effecting sales under decrees, do so free from the incumbrance of taxes and ground-rent—making the latter payable out of the proceeds—yet in the case now before us we agree with the chancellor, that the purchaser made his purchase on the express understanding that he was to- pay the taxes and ground-rent due on the premises-, of which he had full and due notice. The testimony of the trustee is positive as to the notification to this effect, given- to the company assembled at the place of sale, and especially to the agent of the purchaser, who made the purchase for him. This-is substantially admitted by the agent. Under these circumstances it would be unjust to allow him the amount of the ground-rent. It is but fair to presume the property, being sold subject to this incumbrance, that it sold for a sum less that amount. But, *345independently of this consideration, chancery sales like the one in this case, unless it be expressly stipulated to the contrary by the terms of sale, are made subject to the incumbrances which are on the properly. The only thing sold, is the interest and estate of the parties to the proceeding ; the doctrine of caveat emptor applying. Brown vs. Wallace, 4 Gill & John., 479. This being so, it is incumbent on the purchaser to show his purchase was made free from all or particular incumbrances, before he can be allowed for any such.
We dissent, however, from' the opinion of the chancellor, so far as it relates to the allowance of five per cent, to the trustee, in addition to his commissions on the second sale. The Case to which he refers, that of Post vs. Mackall, 3 Bland, does not sustain the view taken by him. We have had access to the original papers in the register’s office, and find that the allowance of five per cent, in that case was for attorney’s fees in the prosecution of claims at law. When a resale is had, the trustee is allowed his legal fee for filing the petition, and commissions on the amount of the proceeds of sale, and this, in our judgment, is a sufficient allowance to be made out of the purchase money. There is no reason why the trustee should be allowed more oil a resale than on the original. There is, however, a reason for the allowance of counsel fees where the' original purchase money is sought to be recovered by suits at law, for, in this latter case, the trustee receives nothing in the form of commissions, except on- the amount of the original purchase. When a party fails to comply with his contract of purchase, he may be coerced in three different modes: 1st, by attachment; 2nd, by suits at law on his notes or bonds; and 3rd, by a resale. Richardson vs. Jones, 3 G. & J., 163. Anderson vs. Foulke, 2 H. & G., 346, Act of 1841, chapter 216. When the latter is resorted to, he is allowed his legal fee and commissions on the proceeds of the second sale; but where he proceeds at law, he is not allowed double commissions, and, therefore, it is but proper he should be awarded an attorney’s fee, as a compensation for his services. Entertaining these views, we affirm in part, and reverse in part, the order of the chancellor.
Order affirmed in part, and reversed in part.