ations which he proposes in the draft of the conveyance. But, if he do not deliver any such statement in writing, or if the other party refuses to adopt the proposed alterations in the draft of the conveyance, the Master shall then proceed to settle the conveyance according to the practice of the court. And, in case the Master shall adopt the proposed alterations in the draft of the conveyance, then the costs of the proceeding, with respect to the conveyance, shall be borne by the other party1.

If the purchaser die after the report of purchase has been absolutely confirmed, and before a conveyance to him, having devised his interest therein, the court will order a conveyance to be made to the devisees without the consent of the testator's heir-at-law, where he is an infant 2.

561

CHAPTER III.

OF THE SPECIFIC PERFORMANCE OF CONTRACTS FOR THE SALE OF LAND.

2o. Countermand of Bidding, 563. 3. Authority and Liability of Auc

3o. Auction Duty, 563.

4o. Title and Abstract, 564.
5o. Timber, 564.

6°. Production of Deeds, 564.

tioneer, 567.

4. Deposit, 567.

5. Auction Duty, 568.

6. Articles of Purchase, 570.

1. Particulars of Sale.]-CARE should be taken to frame the particulars and conditions accurately, as they cannot be set right by the verbal statements of the auctioneer, at the time of the sale; "the court does not in general, attend to that sort of notice, the babble of the auction, as it has been called, except in cases where

Per Lord ElTowgood, 1 Jac.

don, Anson v.

& Walk. 638.

Gunnis v. Erhart, 1 H. Bl. 289.

it has to consider whether a purchaser is to take the bargain or not1." Thus, where an estate was put up for sale by auction, and in the printed particulars was described, as free from all incumbrances; and, it turning out that it was subject to a rent-charge of 171. a year, the purchaser refused to complete. The vendor brought his action, and offered to prove, in evidence, that the auctioneer had publicly declared, from his pulpit, in the auction-room where the estate was put up for sale, that it was put up subject to this rent-charge; but the court refused to receive the evidence, as it would open a door to fraud and inconvenience, if the auctioneer were permitted to make verbal declarations in the auction-room, contrary to the printed particulars 2. So, where the printed particulars of sale, which was of timber, did not state any particular quantity, parol evidence, offered by the purchaser, to prove that the auctioneer, at the time of sale, warranted it to be a particular Powell v. Ed- quantity, was held not to be admissible 3. So, where, under the munds, 12 East, particulars of sale, the property was stated to be held upon three lives, and it appeared in an action, by the purchaser, to recover back the deposit, that one of the lives had dropped before the sale, Lord Tenterden refused to receive the evidence of the auctioneer to prove that he stated, before the sale, that the life had dropped 4. It has been established, that the same rule extends to a subsale: and, therefore, where, on a sale of growing crops, under printed particulars, where A. became the purchaser, after a formal declaration, by the auctioneer, varying the particulars, which declaration was heard by B., to whom A. resold, it was held, that this declaration was no more binding upon B. than upon A., and that A. could not enforce the contract against B., as explained by the auctioneer5.

6.

Bradshaw v. Bennett, 5 Car. & P. 48.

Shelton v. Livius, 2 C. & J. 411.

• Jenkinson v. Pepys, cit. 6

Yes. 330.

The same principles apply, of course, in equity; and, therefore, in a case in equity, upon the sale of an estate by auction, where the particular was equivocal as to the woods,—it being clear the purchaser was to pay for timber and timber-like trees,—and there being a very large underwood upon the estate,-the auctioneer, at the sale, declared that he was to sell only the land, and everything growing upon the land must be paid for. The purchaser insisted he was only to pay for timber and timber-like trees, not for plantation and underwood. The auctioneer's declaration was distinctly proved; but it was determined that his evidence was inadmissible 6; and it makes no difference, though the purchaser bind himself, by his agreement, "to abide by the conditions

Clowes, 15 Ves. 516.

and declarations made at the sale1;" "the reference to declar- 'Higginson v. ations at the sale," said Sir W. Grant, supposing it to mean parol declarations, will not vary the case,-such a reference will not let in parol evidence."

If, however, the purchaser, though bidding at the sale, was not, in point of fact, a purchaser under the conditions of sale, but under some preceding contract, he will not be bound by the conditions. And, therefore, where the purchaser was a legatee, and the vendor executor, who had agreed with the legatee, before the auction, that the goods he might purchase should be set against the legacy, and he purchased accordingly, it was held that he was not bound by the conditions, which required that every purchaser should make a deposit at the time of sale, and pay the residue of the purchase-money on delivery2.

2. Conditions of Sale.

1o. Highest Bidder to be the Purchaser.]—The first condition is, that the highest bidder shall be the purchaser; and if any dispute arise as to the last or best bidding, that the premises in dispute shall be put up for sale again at a former bidding.

• Bartlett v.

Purnell, 4 Ad. & El. 792;

3 T. R. 148.

2o. Countermand of Bidding.]—A bidder at a sale may countermand his bidding at any time before the lot is knocked down to him3; the bidding being nothing more than an offer on one 'Payne v. Cave, side, which is not binding on the other till it is assented to,that assent, on the part of the vendor, being signified by knocking down the hammer. A sale, it is obvious, may be very considerably injured by the countermand of a bidding, and in other respects such an act is inconvenient; it is now therefore a common condition that no person shall retract his bidding.' Sir Edward Sugden states that he originally suggested this condition, but always thought it was one which could not be enforced4. V. & P. i. 38. And in a recent case5, where the validity of such a stipulation was in dispute, it was suggested by Baron Wood, that to hold that an action would lie on an implied agreement not to retract, would furnish a mode of getting rid of the Statute of Frauds, which could not be permitted; and he propounded this difficultyWhether, if there had been an express condition of sale, that the Statute of Frauds should have no operation on the transaction between the parties, it could be contended to be an efficient condition, so as to avoid the statute.

3°. Auction Duty.] It is usual to make some provision in respect to the payment of the auction duty; as, for example,

Jones v. Nan

ney,

13 Pri. 99.

1 Cane v. Baldwin, 1 Stark. 65.

that it shall be paid in equal moieties by the vendor and purchaser. If the vendor should be unable to make a good title, the purchaser may recover from him the auction duty which he has paid, although it has been paid over by the auctioneer to the crown; and if the sale should not be binding, the auctioneer, although he has paid the duty, cannot under the common condition recover it from the purchaser; because, although the highest bidder, he cannot under such circumstance be called Jones v. Nan- an actual purchaser2. The auction duty is, by the statutes, ney, 13 Pri. 76; Berry v. Armis- imposed on the vendor; but there is an express provision that tead, 2 Kee. 221. the vendor may make it a condition of sale, that the auction duty, or any certain portion thereof, shall be paid by the "purchaser, over and above the price bidden at such sale by auction;" and upon neglect or refusal of the purchaser to pay the same, "such bidding shall be null and void to all "intents and purposes3;" upon which, however, it has been held, that the non-payment makes the contract void only at the option of the vendor, as the object of the provision was merely to protect the revenue, which would be sufficiently accomplished by this construction 4.

$ 17 Geo. 3, c. 50, s. 8.

4

Malins v. Freeman, 4 Bing. N. C. 395.

4°. Title and Abstract.]-This condition prescribes the time for delivery of the abstract, the payment of the purchase-money and the conveyance, with such qualifications in respect of the title or otherwise as the vendor may think expedient. These * Ante, p. 501. questions have been fully considered already 5.

5o. Timber.]-Where the purchaser is to take the timber and timber-like trees, at a valuation, the conditions should expressly state what trees he is to pay for; and though it be simply stipu lated, that the purchaser is to pay for "timber;" yet he must pay for trees not strictly timber, if so considered by the custom of the Duke of Chan- country 6; and in one case where the condition stated, that all timber, and timber-like trees, should be taken at a valuation, the purchaser was held liable to pay for pollards 7.

dos v. Talbot,

2 P. W. 606.
"Rabbett v.
Raikes, Woodf.
L. & T. 429,
4th ed.; Au-

60. Production of Deeds.]—If the vendor be not in a situation to hand over the title-deeds to the purchaser, he should qualify brey v. Fisher, his obligation in this behalf to the requisite extent; and provision should be made as to the expense of attested copies, and the liability to produce them.

10 East 446.

7°. Leaseholds.]—If the property is leasehold, and the vendor cannot show the lessor's title, he should expressly stipulate, that the purchaser shall not be at liberty to call for its production.