In the absence of stipulation, a bidder at an auction may, audibly, before the fall of the hammer, retract his bidding (y); a condition negativing this right is almost always inserted, and is recommended by Sir E. Sugden, who nevertheless expresses his opinion that it cannot be enforced (z): such a condition, however, was recently held to bind a mortgagee's solicitor, who bid at a sale of the mortgaged property made by the Court with the mortgagee's concurrence (a).

On sales by auction, a reserved bidding, if desired, should be provided for by the conditions: it does not, however, appear that the employment of a bidder merely to protect the estate from a sale at an uudervalue, will, in Equity, avoid the sale, unless it be stated to be without reserve (b).

On a sale by auction, it is usual to require, by the conditions, payment of a deposit by the purchasers; and, in many cases, this may be a prudent precaution on a sale by private contract: if the deposit will amount to a large sum, it may be well to provide for its investment, (Exchequer Bills are usually selected,) in order that there may be no loss of interest, nor liability from the depreciation of securities.

It is also the ordinary practice to insert a condition that the vendor shall, within a specified time, at his own expence, make and deliver to every purchaser an abstract of the title to the lot or lots purchased by him; but the vendor is, independently of any condition, bound to deliver an abstract; a delivery of the title deeds is not sufficient (c): the condition, however, is useful as fixing the time for delivery.

Conditions.

Against retracting biddings.

Whether or no binding.

For reserved bidding, how far necessary.

As to payment and investment of deposit.

For delivery of abstract.

(y) Payne v. Case, 3 Durn. & E. 148.

(z) Sug. 20.

(a) Freer v. Rimner, 14 Sim. 391.

(b) Sug. 16; Woodward v. Miller, 2 Coll. 279; vide infra, Ch. V. and .supra, p. 51.

When the lots are small, and the title is voluminous, it may be well to provide, that no purchaser whose aggregate purchase-money shall not amount to a specified sum shall be entitled to an abstract, (or an abstract going beyond a certain date,) except at his own expence: in such a case it may be well to stipulate that a full abstract shall be deposited with the vendor's solicitor, or elsewhere, for inspection by purchasers.

If any other condition refer to "the delivery of the abstract," this, in any question as to time, will be held to mean the delivery of a perfect abstract (d): i. e., an abstract as perfect as the vendor could furnish at the time of delivery (e).

If the vendor fail to deliver a perfect abstract within the time specified, the purchaser is relieved from any condition binding him to object to the title within a given period from delivery of the abstract (f): it is not unusual to guard against this rule, by providing, (in the condition as to objections,) that "an abstract shall, as regards any objection or requisition, be considered perfect, if it supply the information suggesting the same, although it may be otherwise defective" (g).

It is usual, and proper, in every case, to specify in the conditions the day on which the purchase is to be completed, and from which day the purchaser is to have possession of the estate, or (if it be in lease) receipt of the rents and profits, and to pay interest upon the purchase-money if not then paid; and up to which day the vendor is to pay the outgoings. This condition, as to time, will not, however, in ordinary cases, be binding in Equity, unless time be declared to be of the essence of the contract (h). It is generally thought best to provide that the arrangement as to payment of interest and receipt of the profits, etc, shall hold, whatever may be the cause of delay in completion: and it was, until recently, the general opinion, that the purchaser must, under such a condition, pay interest during the time spent in clearing up the title (i): although, of course, it would not justify the vendor in wilful delay (j): but where the expression was, " if from any cause whatever the purchase-money shall not be paid on, etc, the purchaser making default shall pay interest," etc, it was decided, that the purchaser was exempted from payment of interest when the delay arose from the state of the title; inasmuch as he had made no default (k): in a modern case, at Law, where the agreement was that the purchaser should pay interest from the day fixed for completion, if completion "should be delayed on his part," and the vendor and his trustee were ready to complete on the day named, but the purchaser was not prepared, and afterwards, when the purchaser was ready, the vendor's trustee refused to concur, it was held that interest was not payable after the latter date (I): in a recent important case (m), where the purchase was to be completed and the money paid on a certain day, "but if the purchaser should fail in making such payment, then, from whatever cause the delay might have arisen," interest was to be paid at five per cent.; and considerable delay arose in making out the title, it was held, either that the purchaser was not bound to pay interest until a good title was shown, or that, if bound by the condition to such payment, he was entitled to an equivalent compensation from the vendor: probably a condition that "if from any cause whatever, other than the wilful and capricious refusal of the vendor to make out his title or to convey the estate, the purchase shall not be completed on the specified day, the purchaser shall thenceforth pay interest on so much of his purchase-money as for the time being shall remain unpaid, and shall have no claim to compensation in respect of the delay in completion," might escape the rule laid down in Dc Visme v. De Visme. We may here remark that an agreement that if the purchase-money is not paid at the time fixed for completion the purchaser shall pay "in lieu of interest upon the same a clear rent of l. per annum," is not usurious by reason Of the rent exceeding the amount of interest at 5l. per cent. on the purchase-money (n).