1. General matters relating to particulars and conditions, and their construction.

2. Preparation and contents of particulars.

3. As to the conditions.

4. As to what special conditions are generally requisite in various specified cases.

5. General remarks on special conditions.

(1.) Particulars and conditions of sale, if intended to exclude the purchaser from what he would otherwise be entitled to, must be expressed in terms the most clear and unambiguous (a); if there be any chance of reasonable doubt or misapprehension as to their meaning, the construction will be in his favour (b).

It seems, however, that general expressions may not be so read by a purchaser as to make them contravene a well known rule of law, or universal custom, if they be capable of bearing a modified meaning; as where the particulars stated that the fines of a manor about to be sold were arbitrary, it was, in the opinions of Lords Campbell and Brougham, no misdescription, when it was shown that, (the fines on alienation being arbitrary,) those on the admission of a widow to freebench were certain; inasmuch as such latter fines never are arbitrary (c).

Doubtful particulars and conditions con. strued strictly against vendor.

But not so as to contravene rule of law or universal custom.

(a) Symons v. James, 1 Y. & C. C.C. 490.

(b) S. C.; Seaton v. Mapp, 2 Coll.

C. C. 562; Smith v. Ellis, 14 Jur. 682.

And even when the conditions are such as would not, under ordinary circumstances, be enforced in Equity, a purchaser may be bound if his attention be drawn to their objectionable nature before he buys; as where, upon a sale under catching conditions as to title, he inquired, "whether a good and marketable title could be made?" and the auctioneer and vendor's solicitor refused to insert any such statement in the conditions, but said that a good title could be made under the existing conditions, the purchaser was held to his bargain (d).

Any undertaking on the part of the vendor will, it is conceived, as a general rule, be construed strictly in favour of the purchaser; in fact, in a recent case, where, in an agreement for a twenty-one years' lease of a house in Highbury Place, it was stipulated, that there should be a "covenant by lessor for quiet enioyment by the tenant, and not to let any of the land near Highbury Place, for the purpose of making and burning bricks," it was held, by V. C. Wigram, that the lessor must show his title to bind the adjoining land by such a covenant during the proposed term; although it appeared, on the face of the agreement, that the lease was to be granted under a power contained in a Will (e): but this decision was reversed by Lord Cottenham (f).

As a general rule, the particulars and conditions cannot be contradicted, explained, or added to, by any verbal declarations at the time of sale (g); evidence of such declarations is inadmissible at Law on behalf of either plaintiff or defendant (h); and in Equity on behalf of the plaintiff; even although the defendant (the purchaser) have agreed in writing to abide by the conditions and declarations at the sale (i).

Anil may bind purchaser whose attention is directed to their objectionable character.

Vendor's undertakings strictly construed.

Cannot be contradicted, explained, or added to, by verbal declarations.

(c) White v. Cuddon, 8 Cl.. & F. see pp. 786 and 796.

(d) Hyde v. Dallaway, 6 Jur. 119; 4 Beav. 606.

(e) Dawes v. Belts, 12 Jur. 412.

(f) S. C. 12 Jur. 709.

(g) 1 Jac. & W. 639; Sug. 22; Higginson v. Clowes, 15 Yes. 521; and see Manser v. Back, 6 Ha. 443.

And the same rules apply between the original purchaser at a sale, and his sub-purchaser (j).

When the auctioneer has, at the sale, made verbal declarations at variance with the particulars, etc, a purchaser would seem to be under this disadvantage, viz., that if the Court were clearly satisfied that he heard and understood the effect of the verbal declarations, he probably would not obtain a decree for specific performance without the variations, supposing them to be to his prejudice (k); nor, on the other hand, could he enforce specific performance with the variations, supposing them to be in his favour: a purchaser, buying under such circumstances, should have the requisite alterations made in the printed particulars or conditions before the agreement is signed by himself and the vendor: although, in cases where the vendor is selling under a power or trust, this might occasionally give rise to questions with the parties beneficially interested.

But any particular personal information given to the purchaser, as to incumbrances, or the title, or even declarations on such points by the auctioneer, may be given in evidence by vendor or purchaser as a defence against a suit for specific performance according to the particulars, etc.; but do not seem to be admissible on behalf of the plaintiff (l).

Where the alteration was made in the printed particulars, and the altered copies were first produced in the auction-room on the morning of sale, and the auctioneer, having read and sold by an altered copy, inadvertently signed agreements indorsed on unaltered copies, it was held, that a purchaser could not enforce specific performance according to the particulars as originally published; although it did not appear that he had heard the auctioneer read the altered copy, or had any knowledge of the alteration (m).

Such declarations inadmissible at law, and (if tendered by plaintiff) in equity.

Rule the same between purchaser and sub-purchaser.

Verbal declarations at sale why prejudicial to purchaser.

Should be reduced into writing.

Particular information to purchaser, or declarations by auctioneer, may be defence in equity against specific performance.

Alteration of printed particulars and agree(h) Powell v. Edmunds, 12 East, 6.

(i) Higginson v. Clowes, 15 Ves. 521.

(j) Shelton v. Livius, 2 Cromp. & J. 411.

(k) Sug. 23; Ogilvie v. Foljambe, 3 Mer. 53; Woodward v. Miller, 2 Coll. 279.

(I) 15 Ves. 23; 1 Ves. & B. 521.

If the sale be stated to be made "without reserve," the employment of a bidder to protect the estate (n), or any private arrangement equivalent to a reserved bidding (o), will vitiate the sale even in Equity; at Law there seems to be an inclination to carry the doctrine still further; and where the intention is to reserve a bidding, it is prudent to notice it in the particulars or conditions (p), merit signed on unaltered copy.