Conditions usually printed ticulars or will give such title as shall be satisfactory to the purchaser has been held not to justify the purchaser in making other than usual objections to title (r). In general, it may be said that conditions of sale are subject to the rules and principles, so far as applicable, by which particulars are governed (s). The conditions are usually printed together with the particulars or catalogue (t). They should, as far as practicable, with par- be circulated some time previously to the sale, so as to give catalogue. every one an opportunity of ascertaining the terms on which They should the property is sold (u). The system of having printed be circu- common form conditions which are used on every sale, and to which are prefixed the special conditions under which the particular property is sold, is recommended by Mr. Dart, as at once directing the attention of the purchaser and his solicitor to the special restrictive conditions (v). lated before sale, and read out or The auctioneer sometimes reads out the conditions imme mentioned diately before putting up the property for sale; but more at the sale; commonly, where they have been circulated beforehand, he merely proposes that they be taken as read. A purchaser will not be bound by conditions of which he had not either actual or constructive notice (w). or, where usual con ditions of Torrance v. Bolton. On sales of furniture &c. it is not unusual to paste up the conditions in the auction-room; and where such is the (r) Lord v. Stephen, 1 Y. & C. 222; cf. Lewis v. Lechmere, 10 Mod. 502. (8) See Ch. IV., ante, passim. (t) See ante, p. 47. It is advisable that the conditions of sale should be actually annexed to the particulars or catalogue, or be clearly referred to in them, otherwise it will be difficult to connect them so as to charge the purchaser; Morton, V. & P. 154. (u) See Torrance v. Bolton, L. R. 14 Eq. 124; 41 L. J. Ch. 643; aff. L. R. 8 Ch. 118; 42 L. J. Ch. 177; where Malins, V.-C., strongly reprobated the practice of advertising properties to be sold under conditions to be produced at the auction. (v) See Dart, 124. (w) Freme v. Wright, 4 Madd. 364; cf. Dart, 175. custom, and the auctioneer announces that the conditions of sale-room, sale are as usual, they may bind the purchaser, whether he announced sees them or not (x). But see post, Chapter VIII. as such. bodied in tract. The conditions are embodied, with the particulars, in the Conditions, formal contract (y). It seems that the signature of the how empurchaser, by himself or his agent, on the back of the par- the conticulars and conditions of sale, with the sum opposite to it, is a sufficient compliance with the requirements of the Statute of Frauds, where the paper on which the indorsement is made contains the name, or a sufficient description, of the seller (2). But the usual and correct mode of concluding an auction sale is for the vendor, or the auctioneer, as his agent, and the purchaser, or his agent, to sign a proper memorandum of purchase, annexed to the particulars and conditions (a). in condi As the written conditions cannot, in general, be varied, or Alterations even explained, by the verbal declarations of the auctioneer tions. at the time of sale (b), any alteration in them should be made in writing before the signing of the contract (c). For precedents and forms of conditions of sale, see post, pp. 306–342. (x) Mesnard v. Aldridge, 3 Esp. 271; and the same rule is applicable Bywater v. to a sale by private contract in a public repository where the rules are Richardpainted on a board affixed to the wall; Bywater v. Richardson, 1 A. & E. son. 508; 3 N. & M. 748. Cf. Cowley v. Watts, 22 L. J. Ch. 591; 17 Jur. 172. In a Scotch case (Laing v. Hain, 2 S. M. & P. 396) an opinion was expressed that a purchaser at a public auction could not be allowed to plead that he was ignorant of the articles and conditions of sale. (y) See ante, p. 47. (z) Sugd. 144. (a) See post, Chapter VI. ; and forms, pp. 342, 344. (b) Goss v. Lord Nugent, 5 B. & Ad. 58; 2 N. & M. 28; see also Parteriche v. Poulet, Atk. 383; and cf. ante, pp. 45, 46. As to a Bartlett v. previous arrangement overriding the conditions of sale, see Bartlett v. Purnell. Purnell, 4 A. & E. 792; 6 N. & M. 299; 2 H. & W. 19; cf. ante, p. 23; Page v. Cowasjee Eduljee, L. R. 1 P. C. 127. (c) See also the observations on pp. 55-6, ante; and Dart, 112. Classification of conditions. Biddings. Reserved bidding; reserved price. II.-Remarks upon the different classes of conditions of sale. Conditions of sale may be divided into the following classes: 1. conditions relating to the actual sale: biddings, payment of a deposit and signing of a contract; 2. conditions relating to the quantum of interest sold; 3. conditions relating to the title to the property; 4. conditions relating to completion of the purchase; 5. conditions relating to misdescriptions in the particulars; and 6. conditions relating to forfeiture of the deposit and a resale of the property. 1. Conditions relating to the actual sale: biddings, payment of deposit, and signing of contract. The biddings are generally regulated by conditions providing that the highest bidder shall be the purchaser, that no person shall advance less than a given sum at one time, that no bidding shall be retracted (d), and that, in case of dispute respecting a bidding, the property shall be put up again. If the vendor is to bid, either himself or by an agent, the right must be expressly reserved; or if the property is offered for sale subject to a reserved price, the fact must be expressly stated (e). Where the vendor reserved a right to bid once, and the auctioneer, with his sanction, bid thrice, the sale was held voidable at the option of the purchaser (ƒ); (d) As to whether this condition could be enforced, see ante, p. 30. See also, for a less usual condition relating to the biddings, post, p. 330, form 1. (e) Cf. ante, p. 48; post, Chapter VII.; Dart, 125. If there is a reserve, the fact is generally stated in the conditions; if there is no reserve, or only a very low reserve, in the particulars. (f) Parfitt v. Jepson, 46 L. J. C. P. 529; 36 L. T. N. S. 251. It seems that a vendor's right to bid once would be exercised by the auctioneer starting the property at a price or by the vendor (or auctioneer) naming a reserve; see the judgment of Grove, J., ib. and under conditions stating that the sale is "subject to a reserved bidding," it is illegal to employ a person to bid up to the reserved price, unless the right to do so is expressly stipulated for (g). Court. On sales by the Court a reserved bidding for each lot is Sales by fixed by the judge or his chief clerk; a sale by auction on behalf of an infant, without a reserved bidding, has been strongly condemned (h). Trustees, it seems, may fix a re- Trustees. served bidding without being specially authorized (i). It is usually provided that the purchaser shall, immedi- Payment of deposit. ately after the sale, pay a deposit on the purchase-money (j), and, in the case of real estate, sign an agreement to com- Signing plete the purchase. contract. The deposit is commonly made payable, in London, to the Deposit to anctioneer; but in the country, upon sales of estates, to the whom paid. vendor's solicitor. If the deposit will be large, it may be Investment well to provide for its investment until completion. Ex- of deposit. chequer bills are most frequently chosen for the purpose, as being subject to but slight fluctuations in value (k). The better practice is to annex a memorandum of agree- Form of ment to a copy of the printed particulars and conditions (1). contract. 2. Conditions relating to the QUANTUM of interest sold. It land used for agricultural purposes is in lease at the Crops &c. time when it is sold, the sale, unless provision be made to the contrary, will be subject to the rights of the tenants with respect to growing crops, seed, manure, tillage and, (g) Gilliat v. Gilliat, L. R. 9 Eq. 60; 39 L. J. Ch. 142. (i) Dart, 79. As to the deposit generally, see Chapter IX., post. (k) 1 Dav. 522. (7) See post, p. 128, and forms, pp. 342, 344. Timber. Lessee's interest in timber. Fixtures; on sale of leaseholds. generally, such things as, according to local custom, are matters for allowance between outgoing and incoming tenant; if it is in hand, and nothing is said as to these items, the crops will belong to the purchaser from the day fixed for completion, and he will not be obliged to allow the vendor anything for seed &c. (m). The vendor will often find it desirable to employ a condition restricting the purchaser's rights in these respects (n). Timber passes, without express mention, with the land on which it stands; if the purchaser is to pay for it separately, the conditions must say so (o). A lessee, it may be observed, is seldom entitled to the timber or trees on his tenement; but the underwood frequently belongs to him (p). Fixtures (g) would probably be held to be included in a contract for the sale of the land to which they are affixed (r), unless a contrary intention could be collected from the instrument (s). They should, therefore, be made the subject of an express condition, if the purchaser is to pay for them in addition to the amount of purchase-money bid by him at the sale. On a sale of leaseholds the conditions should specify that only tenant's (or house) fixtures will be (m) Dart, 132. (n) Barns, stackyards &c. are frequently reserved for the vendor's use until the following spring, for the purpose of threshing_corn &c. (o) Higginson v. Clowes, 15 Ves. 516. As to copyholds, see Cross v. Keane, 9 Hare, 469. Cf. ante, p. 41. As to what is timber, see ante, p. 66; cf. Chandos (Duke of) v. Talbot, 2 P. W. 601; Aubrey v. Fisher, 10 East, 446; and Lord Fitzhardinge v. Pritchett, L. R. 2 Q. B. 135, as to saleable underwoods. (p) 1 Dav. 522. (9) As to what are fixtures, see Woodf. 594; cf. Ex parte Quincey, 1 Atk. 478; Lawton v. Lawton, 3 Atk. 16, note. (r) See Colegrave v. Dias Santos, 2 B. & C. 76; 3 D. & R. 255; Ex parte Lloyd, 1 Mont. & Ayr. 494; Longstaff v. Meagoe, 2 A. & E. 167; 4 N. & M. 211; Hitchman v. Walton, 4 M. & W. 409; 1 H. & H. 374; Ex parte Bentley, 2 Mont. D. & De G. 591; Ex parte Cotton, ib. 725; cf. Vale of Neath Colliery Co. v. Furness, 45 L. J. Ch. 276. (s) Hare v. Horton, 5 B. & Ad. 715; 2 N. & M. 428. |