also, that the vendor shall not be bound or required to identify the modern with the ancient descriptions of the parcels, further than he has done, in a terrier to be delivered with the abstract. That the pur chaser shall take the title to a small close of land called the, &c., as it stands deduced on the abstract, without requiring any further information respecting it, as none can be given. ments in 8. That all allotments, in lieu of rights of com- as to allotmon or otherwise, shall be taken to have been right of regularly and duly made, and that the vendor shall common. not be bound or required to produce any further title to such rights of common or other lands for which such allotments were made, than what appears on the abstract. in outstand. 9. That the vendor shall not be required to get As to getting in the legal estate in some part of the premises sup- ing estates. posed to be outstanding in R. S., or his heirs at law. That as to such parts of the property as are leasehold, the vendor shall not be bound to produce any earlier title than the original lease, and shall not be required to show or be answerable for his lessor's title; and if it appear that the vendor's title consists merely of an under lease, such under lease shall be the limit beyond which the vendor shall not be bound to produce any evidence of prior dealings with the property.(?) 10. The estate has been held and is considered Tithes. (1) When the vendor is desirous that the period for investigating his As to title to title shall be limited, some of the following clauses may be inserted, thus: certain lots. "The purchaser shall not be entitled to require or call for any title to any of the lots prior to the purchase deeds in the years, &c.; nor for the title of the lessors to such of the lands as are leasehold. Nor will the vendors furnish any abstract of any deeds recited in such purchase deeds. Nor will they in any manner deduce a title to the said lots, but only a title subsequent to the dates of the said purchase deeds. Nor will the vendors be answerable or accountable for any defect of title appearing upon the face of such purchase deeds, nor identify the modern with the ancient description of the parcels. The estate having been devised under the will of Mr. A. B., in May, 18 in which there is a description of the property devised, no earlier title shall be required. Also a small part held under an exchange effected in 1805, an earlier title to that part is not to be required. And the tithes having been purchased by the present seller, Mr. Q., in the year 1822, the vendors will not be bound to show Mr. R.'s title to the said tithes. Abstracts of title will be prepared at the vendors' expense; but all conveyances and other assurances, and all attested or other copies, that shall be required, either for the purpose of verifying the abstract or otherwise, are to be at the purchaser's expense." Timber. As to the description of lots. Provision in case of failure in with the con ditions. to be tithe free; but the vendor shall not be bound 11. The purchaser shall, at the time of completing his purchase, pay for all timber and timberlike trees, tellers, pollards, and other trees, down to per stick inclusive. 12. The description and admeasurement of the property are considered to be correct, and shall be taken as such; and if any error shall appear, no abatement shall be required by the purchaser, nor any advance of price required by the vendor. Lastly. If the purchaser shall neglect or fail to comply with the above conditions, the deposit complying money shall be forfeited, and the vendor be at liberty to re-sell the estate, either by public auction or private contract; and the deficiency (if any) upon such second sale, with all expenses attending the same, shall immediately after such sale be made good by the defaulter at the present sale to the vendor; and in case of non-payment, the whole of the same shall be recoverable by the vendor as liquidated damages. (m) (m) This clause is very important, for it forms a lien on the estate for the purchase money, and enables the vendor, on non-compliance by the purchaser with the conditions, to re-sell the estate, and to recover the deficiency (if any) from the purchaser. OBSERVATIONS AND CASES. strued. CONDITIONS of sale will be construed by the How concourts so as to collect the meaning of the parties, without being incumbered with the technical meaning of the words. (n) Great care, however, should Should be be taken to make the particulars and conditions accurate. accurate, for the auctioneer cannot contradict them at the time of sale. When an estate is leasehold, and the vendor Leasehold cannot procure an abstract of the lessor's title, this property. fact should be stated in the conditions, or the vendor will be bound to show the lessor's title to demise.(0) purchaser of A purchaser of a leasehold estate must covenant Covenant by with the vendor to indemnify him against the rent leasehold. and covenants in the lease, although he is not expressly required to do so by the conditions of sale.(p) agreement indemnity And although a purchaser is not required by the Verbal conditions of sale to give an indemnity against the by purrent and covenants, and an assignment is actually chaser as to executed without any indemnity being given, yet against the even a verbal agreement by the purchaser before rents. the sale to secure such indemnity, will be carried into a specific execution if it be distinctly (n) See Sug. V. & P. ch. 1. City of London v. Dias, 1 East, 237. The As to the ease was thus: The city of London let an estate by auction for a term of term rent. years according to certain conditions of sale, by which it was stipulated that the purchaser should pay a certain rent before the lease was granted, which he accordingly agreed to do;-it was held that the money to be paid could not be strictly called rent, as the relation of landlord and tenant not having commenced, yet the parties intended the money should be paid, and that it must be paid accordingly. (0) Ogilvie v. Foljambe, 3 Mer. 53. Fildes v. Hooker, 2 Mer. 424; and Lessor see Souter v. Drake, 3 Nev. & M. 40. 5 B. & Adol. 992. It appears that title. although it was stated in the conditions of sale of leasehold property that the vendors should not produce the lessor's title, yet, upon the title of the lease being defective, and the purchaser refusing to complete the purchase, it was held that he was not precluded from inquiring aliunde into the lessor's title.- Shepherd v. Keatley, 4 Tyr. 571. Í C. M. & R. 117. (p) Pember v. Mathers, 1 Bro. C. C. 52; and see Doe v. Bateman, 2 B. & A. 169. Staines v. Morris, 1 Ves. & B. 9. A A vendor is only an assignee. When Where the proved.(g) But where a vendor is only an assignee of a leasehold estate, and is not bound by covenant to pay the rent and perform the covenants in the lease, his liability to do so ceases upon his assigning the estate over, and consequently, in such a case, there is not anything for a purchaser to indemnify against. (r) Yet under a contract for the assignexecutor of ment of a term, whether from the original lessee or a mesne assignee, it seems the purchaser must covenant for indemnity against payment of rent and performance of covenants, though he cannot have a covenant for the title from the assignor as being an executor, and also by express stipulation. (s) vendor is leasehold property. Cases de conditions of sale. The conditions of a sale by auction printed and cided as to pasted under the auctioneer's box, where he declares that the conditions are as usual, is sufficient notice to purchasers of the conditions. (t) The verbal declarations of an auctioneer at the time of the sale are not admissible evidence to contradict the printed conditions. (u) The printed particulars under which a sale by auction is held cannot be varied by parol evidence of the verbal statement of the auctioneer at the time of the sale, either as to the parcels, or qualities of the subject matter of sale. (v) Incidents of A bidder at an auction under the usual conditions that the highest bidder should be the purchaser, may retract his bidding at any time before the hammer is down.(w) sale. Purchaser of If, on a sale by auction, the same person is deseveral lots. clared the highest bidder for several lots, a distinct contract arises for each lot. (x) Reserved bidding. If the owner employ a person to bid for him the sale is void, although only one such person be employed, and although he is to bid up to a certain (7) See Pembers v. Mathers, 1 Bro. C. C. 52. (r) Taylor v. Shum, 1 Bos. & Pul. 21. (s) Doe v. Bateman, 2 B. & A. 168. Staines v. Morris, 1 Ves. & B. 9. (t) Mesnard v. Aldridge, 3 Esp. 271. (u) Gunnis v. Erhart, 1 H. B. 289; and see Powell v. Edmunds, 12 East, 6. Stack v. Highgate Archway Company, 5 Taunt. 792. (v) Shelton v. Livins, 2 C. & J. 411. 2 Tyr. 420. (w) Payne v. Cave, S T. R. 148. (x) Emmerson v. Heelis, 2 Taunt. 28, S. P. B. & Adol. 77. 1 Nev. & M. 667. Roots v. Dormer, 4 sum only, unless it is announced at the time that there is a person bidding for the owner.(y) If puffers are employed it is a fraud on the real bidders, and the highest bidder cannot be compelled to complete the contract. (2) And where all the bidders at an auction, except the buyer, were bidding for the seller without notice, and the buyer is thereby induced to give more than the value, neither courts of law nor equity will support it. (a) But the circumstance that a person bid at an auction under the private direction of the vendors, for the purpose of preventing a sale under the sum specified as the value, is no objection to specific performance, especially in a case where the vendors are assignees under a fiat in bankruptcy, and the purchaser is not present, but purchases by an agent.(b) Where, at a sale by auction, the seller's agent bid for the purchaser; a specific performance was refused.(c) The employment of a puffer at a sale by auction, of property seized under an extent by an agent of the crown, to whom a bidding is reserved by the conditions of sale, vitiates the sale.(d) ance with In an action against a purchaser for not com- Non-complipleting his contract of leasehold premises, the the contract. vendor who was possessed of a lease in proving his title, must prove the execution of the original lease, as well as of the mesne assignments to himself. (e) Immediately after the sale by auction an agreement to complete the purchase should be signed by the parties or their agents, as sales of estates are within the statute of frauds.(ƒ) (y) Wheeler v. Collier, M. & M. 125. (d) Rex v. Marsh, 3 Y. & I. 331. (e) Laythorpe v. Bryant, 1 Scott, 327. 1 Bing. N. R. 421. 1 Hodges, 19. But quære, whether he is bound to prove the execution of the original lease when he is an assignee. (f) See Walker v. Constable, 1 B. & P. 306. 2 Esp 659, S. P. Stansfield v. Johnson, 1 Esp. 101; and see Emerson v. Heelis, 2 Taunt. 38; and Hinde v. Whitehouse, 7 East, 558. 3 Smith, 528; and see Buck master v. Harrop, 7 Ves. jun. 341. |