performance; but, as a general rule, this should not be done, where the deposit is of small amount, unless he refuses to pay it into court, when required; where, however, it is of large amount, he may properly be made a co-defendant, unless he has paid it into court before action brought (n). If he brings the deposit into court, he will, it appears, be allowed to deduct his charges and expenses, subject to the question who shall ultimately bear them (0).

But an auctioneer against whom fraud is alleged cannot, in an action for rescission of the contract, brought against the vendor and himself by the purchaser, claim to be dismissed from the action on paying the deposit into court (p).

The auctioneer's right to interplead is dealt with in a Interpleasubsequent chapter (q).

(n) Earl of Egmont v. Smith, 6 Ch. D. 469; 46 L. J. Ch. 356. The practice is to apply to the auctioneer to pay it into court, and make him a co-defendant, if he refuse; Seton, 1312.

(0) Sugd. 51; Dart, 179; Annesley v. Muggridge, 1 Madd. 593; Yates v. Farebrother, 4 Madd. 239. In Blenkhorn v. Penrose, 29 W. R. 236, the auctioneer, who had been made co-defendant to an action for rescission of the contract, but had been dismissed on paying the deposit into court, obtained leave, on the termination of the action in favour of the vendors, to pay over the deposit after deducting his expenses. (p) Heatley v. Newton, 45 L. T. N. S. 455; 30 W. R. 72. (2) Chap. XI.

der.

The contract, when complete.

When the property in land passes.

CHAPTER X.

ENFORCING THE CONTRACT.

THIS chapter contains a summary of the different ways of enforcing a sale by auction.

On a sale of goods at a less price than £10, an unretracted bidding and an acceptance of the same are sufficient to render the sale complete; but on a sale of lands at any price, or of goods at or above the price of £10, something further is required: there must be a written memorandum of the contract, or else, in the case of goods, either a delivery and acceptance of the thing sold, or a part payment of the price.

The legal estate in land does not pass until the execution of the conveyance (a); but as soon as there is a valid contract for sale, the vendor becomes in equity a trustee, for the purchaser, of the estate sold, and the beneficial ownership passes to the purchaser. . . If anything happens to the estate between the time of sale and the time of completion of the purchase, it is at the risk of the purchaser. If it is a house that is sold, and the house is burnt down, the purchaser loses the house. He must insure it himself, if he

(a) For the rule, where the sale is by order of the Court, see post, p. 248.

wants to provide against such an accident (b). In the same way, there is a correlative liability on the part of the vendor in possession. He is not entitled to treat the estate as his own. If he wilfully damages or injures it, he is liable to the purchaser; and, more than that, he is liable, if he does not take reasonable care of it" (c).

dor's lien

upon land;

But, in the absence of express stipulation to the contrary, The venthe vendor has a right to retain possession of the estate, or to receive the rents and profits, until the purchase-money is paid (d). And even notwithstanding the execution of a conveyance acknowledging payment of the purchase-money and bearing an endorsed receipt for the amount, and notwithstanding delivery of possession to the purchaser, an unpaid vendor has an equitable lien upon the land for so much of the purchase-money as remains unpaid (e).

The vendor will, however, lose this lien, if he takes an how lost. independent security for payment, such as a charge upon stock, or a mortgage of another estate (ƒ); but not, if he takes a document which only evidences, or facilitates enforcement of, his claim against the purchaser, such as a promissory note, bill of exchange, or bond (g).

"Where a bargain and sale is completed with respect to When the goods, and everything to be done on the part of the vendor property in

(b) And, in the absence of express stipulation, he cannot claim the benefit of any insurance that may have been effected by the vendor ; Poole v. Adams, 33 L. J. Ch. 639; 12 W. R. 683; Rayner v. Preston, 18 Ch. D. 1; 50 L. J. Ch. 472.

(c) Per Jessel, M. R., in Lysaght v. Edwards, 2 Ch. D. 499, 507; 45 L. J. Ch. 554, 558; cf. Morgan v. Swansea Urban Sanitary Authority, 9 Ch. D. 582.

(d) Lysaght v. Edwards, ubi supra.

(e) Dart, 729, 730.

(f) lb. 733; Earl of Jersey v. Briton Ferry Floating Dock Co., L. R. 7 Eq. 409; In re Brentwood Brick & Coal Co., 4 Ch. D. 562; 46 L. J. Ch. 554.

(9) Dart, 734.

goods

passesupon a bargain and sale;

before the property should pass has been performed, "then the property vests in the purchaser; . . and any accident happening to the things subsequently, unless it is caused by the default of the vendor, any calamity befalling them after the sale is completed, must be borne by the purchaser; and, by parity of reasoning, any benefit to them is his benefit, and not that of the vendor" (h). Where goods sold by auction, Sweeting there being a condition of sale that "each and all lots shall v. Turner. be taken to be delivered at the fall of the hammer, after

under an

which time they shall remain and be at the exclusive risk of the purchaser," were left by the purchaser on the premises of the vendor, whose landlord subsequently threatened to distrain the goods for rent, whereupon the auctioneer paid off the distress, it was held that the auctioneer could not charge his principal with the amount, as the loss, if the goods had been distrained, would have fallen on the purchaser, to whom the right of property had passed by the sale (i).

But if something remains to be done by the vendor, for the executory purpose of putting the goods into a deliverable state, or for agreement. the purpose of ascertaining the price, as, where goods are sold by weight or measure, until that is done, until, for instance, the goods are weighed or measured, the property does not pass (j). And where there is a bargain for a certain quantity of goods out of a greater quantity, with a power of selection in

(h) Per Blackburn, J., in Sweeting v. Turner, L. R. 7 Q. B. 310, 313; 41 L. J. Q. B. 58; 25 L. T. N. S. 796; 20 W. R. 185; cf. Greaves v. Hepke, 2 B. & Ald. 131; Bloxam v. Saunders, 4 B. & C. 941, 948; Tarling v. Baxter, 6 B. & C. 360, 364; M'Bain v. Wallace, 6 App. Cas. 588, 608. A purchaser at an auction can before payment make a complete bargain and sale of the article which he has bought to a third party so as to maintain an action for the price; Scott v. England, 2 D. & L. 520.

(i) Sweeting v. Turner, ubi supra.

(j) Simmons v. Swift, 5 B. & C. 857; 8 Dow. & R. 693; Gillett v. Hill, 2 C. & M. 530, 535; Jenner v. Smith, L. R. 4 C. P. 270; cf. Turley v. Bates, 2 H. & C. 200; 33 L. J. Ex. 43.

property does
The case of

Minett.

the vendor to deliver what he thinks fit, the not pass, until that power is exercised (k). Rugg v. Minett (1) affords a good illustration of the prin- Rugg v. ciples which obtain. There turpentine in casks was sold by auction in 27 lots. The casks were to be taken at a certain marked quantity, except the two last, out of which the seller was to fill up the rest before delivering them to the purchasers, and on this account the two last were to be taken at uncertain quantities. Fifteen of the casks had been filled up, when the whole number were destroyed by fire. It was held that, as regarded the fifteen casks, the loss fell upon the purchasers, as nothing further remained to be done to them by the seller, but, as regarded the remainder, the loss fell upon the seller.

ance of

When the right of property has passed to the buyer, he Non-cleardoes not lose his title to the goods by merely not removing goods. them within the time specified in the conditions of sale (m).

lien upon

Although, by the contract of sale, the purchaser may have Vendor's the right of property in the goods, yet the vendor has, goods; generally speaking, a right to retain them, until the purchasemoney is paid (n). But his lien is destroyed, if he parts with how lost; the possession of them (o). "If goods are sold upon credit, no lien and nothing is agreed upon as to the time of delivering the upon goods goods, the vendee is immediately entitled to the possession, credit. and the right of possession and the right of property vest at

(k) Gillett v. Hill, ubi supra; Alexander v. Gardner, 1 Bing. N. C. 671; 1 Hodg. 147; Mirabita v. Imperial Ottoman Bank, 3 Ex. D. 164, 172; 47 L. J. Q. B. 418. The general rule may, however, be modified by special agreement.

(1) 11 East, 210.

(m) Saint v. Pilley, L. R. 10 Ex. 137; Woolfe v. Horne, 2 Q. B. D. 355; 46 L. J. Q. B. 534. See post, p. 199, as to resale.

(n) Bloxam v. Saunders, 4 B. & C. 941, 948; Tarling v. Baxter

sold on