540 CHAPTER II. OF SALES UNDER THE DECREE OF A COURT OF EQUITY. 1. Decree or Order for Sale.]—When the sale of an estate is ordered by the court, the decree directs the same "to be sold, with the approbation of the Master, to the best purchaser or purchasers that can be got for the same, to be allowed of by the said Master, wherein all proper parties are to join as the said Master shall direct; and in order to such sale, the parties are to produce before the said Master, upon oath, all deeds and writings in their custody or power relating to the said estates." If any of the parties be desirous of purchasing, they must ask for a direction in the decree or order for leave to bid. Sometimes the decree contains a direction, that all the parties may have leave to bid except -, who is to have the conduct of the sale. If the estate be incumbered, and be insufficient to discharge the claims upon it, the decree declares the mortgagees or incumbrancers to be specialty creditors of the testator for the deficiency: and it also directs that the estate shall be sold free from the mortgages or incumbrances of such of the mortgagees or incumbrancers, as shall consent before the Master to the sale, and subject to such as shall not consent, and gives directions for keeping an account of the money arising from the sale, and that such of the mort gagees or incumbrancers as consent to the sale shall be paid out of the proceeds, according to their priorities. 1 Brooker v. Collier, 3 Russ. 360. Pr. 170. 2. Reserved Bidding.]—When there is ground for apprehending that the estate may be sold at an under-value, or there are reasons why it should not be sold under a given sum, the decree or order under which the sale is made may contain a direction that the Master shall be at liberty to fix a reserved bidding for the estate, or for each of the lots when it is sold in lots. It was said by Sir J. Leach, in one case1, that the direction for a reserved bidding ought not to be inserted in the decree, but must be the subject of a separate order; but it has been stated by very competent authority, that, upon looking into the precedents, it will be found, that the practice does not warrant this conclusion2; 12 Smith's Ch. and therefore, if a reserved bidding be expedient, the direction for it may be inserted in the decree. The decree directs a reference to the Master to fix one reserved bidding, and that it be made one of the conditions of sale; and in order to enable the Master to form his opinion, the parties are to carry in before him such proceedings as they shall think fit, with liberty for the Master to use his discretion as to communicating such reserved biddings to the parties, or either of them, or their solicitors; and the said Master upon the sale to put under a sealed cover, and deliver to the person appointed to sell, a note in writing of the sum at which he shall fix such reserved biddings; and if no person shall bid a higher price, the person appointed to sell is to declare at the said sale that the estate or lot is not sold. Sometimes, instead of reserving a bidding, the court appoints a person to bid to keep up the price, the person appointed being allowed to make one bidding, which must be a condition of sale3. Eldon v. Can It was a frequent practice formerly to insert in the decree a terbury, Id. 171. direction to the Master to inquire whether it would be more advantageous that the estates, or any of them, should be sold in the country, than before the Master in the public sale-room Southampton Buildings; and, if the Master was of that opinion, that the same should be sold by a proper person, to be appointed by him, at such time and place as he should think proper. But now, under a General Order4, the Master is at liberty, without such direction, 75 N. O. "if he shall think it for the benefit of the parties, to order the same to be sold in the country, at such place and by such person as he shall think fit." 3. First Advertisement.]-The decree or order for sale being entered and passed, a copy of the ordering part is left at the Master's office, and the warrant to consider it taken out, served and proceeded on in the usual manner. The party conducting the sale then instructs the Master's clerk to prepare the first or general advertisement, and for that purpose furnishes him with the name of the place where, and the month when, it is intended the sale is to take place; and a description of the property and such other circumstances as are usually found in particulars of sale. The first advertisement does not in general specify the day of sale, but merely states that it will take place in or about the month of It is signed by the Master, and inserted in the Gazette, and in two or three of the leading London and such provincial papers as circulate in the neighbourhood of the property or the place of sale. 4. Particulars and Conditions of Sale.]-The next step is to prepare the particulars and conditions of sale. These are sometimes prepared before the general advertisement is inserted; but time is gained by the insertion of the general advertisement as soon after the decree as convenient. They are prepared by the solicitor of the party or parties conducting the sale, and settled by the Master. 5. Peremptory Advertisement.]-About three weeks or a month after the first or general advertisement, a warrant to fix the time for sale is taken out and served, and, upon being attended, the Master, with the approbation of all the parties to the cause, will fix the time for sale. The second advertisement, which is called the peremptory advertisement, is then prepared by the Master's clerk, signed by the Master, and inserted in the Gazette, and also in such of the London and provincial papers as may be thought expedient. 6. Sale in the Country.]-If it be thought expedient that the sale should take place in the country, a warrant for the purpose is taken out and proceeded on in the usual manner. On the day appointed for sale, the property is put up either by the Master's clerk, or by some person authorized by the Master. When the sale is in the country, an affidavit prepared by the Master's clerk, and sworn to by the person appointed (together with the bidding book and printed particulars annexed), stating the sale and the biddings, and the sum for which the estate is sold, and to whom, by name, and that the sale was conducted in a fair, open, and candid manner, and for the utmost advantage of the persons interested in it, according to the deponent's skill and knowledge, is required. The highest bidder is, of course, declared the purchaser. If any of the lots remain unsold, the Master is at liberty to resell the same at a future time, without further order; or, if it be probable that the unsold lots can be disposed of by private contract, an order can be obtained for that purpose. The solicitor in the cause buying in the estate, to prevent a sale at an under-value, will be held to the purchase, if he acted without authority. The same principle has been applied to the assignees of a bankrupt buying in an estate sold by the court on the petition of the mortgagee2. On similar grounds, a man, who had opened the biddings in the name of a person who had no existence, was himself decreed to be the purchaser 3. 7. Deposit.]-It seems, contrary to what is stated by Sir Edward Sugden4, that a deposit is not usually made on the of estates under a decree 5. sale SECT. 2.-MASTER'S REPOrt. 1. Confirming Purchaser, 543. 2. Effect of Confirming the Report, 544. 3. Rescinding the Contract, 546. 1. Confirming Purchaser.]—As soon after the sale as may be convenient, the highest bidder for each lot applies to the Master, under whose direction the sale was made, for his report, that he, such highest bidder, is the purchaser. This report he obtains at his own expense. If the same party have purchased several lots, the Master will in one certificate state that he is the purchaser of all such lots. This report must be filed, and an office copy taken. An order is then obtained on a common petition or motion of course to confirm the report nisi; and, on the expiration of eight days, this order will be made absolute on an affidavit of service of the order of nisi, and the Registrar's certificate of no cause having been shewn. The cause usually shewn against the application to make the order nisi absolute, is an application by some other person for leave to open the biddings. After service of a notice of motion to open the biddings, the purchaser cannot confirm absolutely 6. If the purchaser have confirmed nisi, and afterwards refuse or neglect to confirm absolutely, the vendor may confirm the order7; and if the purchaser take no step to confirm nisi, the vendor may do so for hims. s Lord v. I.ord, The order to confirm absolutely operates when served from the 1 Sim. 503. 1 Aberdeen v. Watlin, 6 Sim. 146. 'Bailey v. Todd, 1 Beav. 95. day on which it was pronounced1. A motion to pay in the purchase-money cannot be made at the same time with a motion to confirm absolutely. Where it is referred to the Master to inquire and state, whether it would be for the benefit of all parties interested, that certain contracts of sale should be carried into effect, and he reports in the affirmative, it is irregular to confirm this report by an order of course made upon petition, with the consent of the clerks in court of all parties; such a report must be confirmed on special petition, stating all the facts 2. 2. Effect of Confirming the Report.]-On a sale by public auction or private contract, the sale is complete when the articles are signed; but, on a sale by the Master, the purchaser is not entitled to the benefit of his contract till the report of his being the purchaser has been absolutely confirmed-a rule founded clearly on the nature of the transaction; for the Master's report is merely to the effect, that a certain person is the best bidder, and therefore can amount to nothing till the court has accepted this bidding, which it does by confirming the report. Until the report has been confirmed, the transaction is nothing more than a proposal of the party desirous of becoming the purchaser, which may be approved or rejected by the court. Not, therefore, till the court has acquiesced in this proprosal, is there any contract. Not, therefore, till the report has been confirmed, is the property changed in equity. The confirmation of the report has all the effect of signing a written agreement between private persons; and there seems to be no principle, nor any authority, for contending that it has any other or different effect from a contract in writing and signed. This seems to concur with the view taken of this subject by Lord '11 Ves. 561. Eldon, in Ex parte Minor3, which was a petition by the pur chaser to have the value of certain premises, destroyed by fire before the confirmation, ascertained, and the amount deducted from the purchase-money; the only question upon this was, as to the time when there was a complete contract, for, until then, the property was not changed. Lord Eldon observed, "what is the date and time of the contract, at which it can be said to have been complete? Is the bidding in the Master's office the contract between the court and the bidder, or only an authority to the Master to tell the court, that, if the court approves, the court may make a contract with him upon the terms proposed? Let the Master certify to me what were the conditions of sale, and |