This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
After the sale, the auctioneer and the solicitor of the party having the conduct of the sale certify the result (b), and their certificate must be left at chambers one clear day before that fixed for settling the Master's certificate (c). One of the Masters of the judge to whose branch of the Court the cause is attached, proceeds, on a day named in the conditions of sale, to certify the result; and the purchasers may, if they think fit, attend at chambers, by their solicitors, to settle the certificate. The certificate having been settled need not be signed by the judge, and will be deemed to be approved and adopted by him, unless an order is made to discharge or vary it (d) ; it is then filed, and after eight days, if no application be made in the interval to discharge or vary it, becomes absolute (e), although it may under special circumstances be at any time thereafter discharged or varied (f). Until the certificate becomes absolute the bidder has not absolutely assumed the character of purchaser; so that in the interval a loss by fire falls on the vendors (g) ; and a motion that the best bidder shall complete, and pay his purchase-money, by a certain day, will be refused (h) ; but, if the interest purchased be in its own nature determinable - e.g., a life estate - it seems that he must pay the purchase-money, although the event upon which the interest determines occurs before the certificate becomes absolute (i) ; so, if the certificate becomes absolute, he will, in the case of a life estate, be entitled to the intermediate income (k); and if, before the certificate becomes absolute, a loss arises by an accident involving a legal obligation which must be immediately satisfied, the expense incurred by the vendor must be paid by the purchaser (I).
Highest bidder not the purchaser times dispensed with, on the auctioneer undertaking to pay the deposit into Court.
(«) Broten v. Farebrother, (1888) 59 L. T. 822.
(x) Sug. 14th ed. 102; Blaekbeard v. Lindigren, (1786) 1 Cox, 205 ; but qu., whether the Court might not treat tho case as one of an offer to purchase by private contract.
(y) Hughes v. Lipscombe, (1840) 6 Ha. 142.
(z) Doirlcv. Lucy, (1845) 4 Ha. 311.
(a) Else Y.Barnard, (1860) 28 Bear. 228; aff. ib. 232 ; 29 L. J. Ch. 729 ; and see Bousfieldv. Hodges, (1863) 33 Beav. 90.
(b) R. S. C. 1883, O. LT. r. 6a.
Until certifi -cate becomes absolute.
(c) 0. LI. r. 6. These two rules are not easily reconcileable ; but it would seem that "certificate" must be read in substitution for " affidavit" in r. 6.
(d) 0. LV. r. 65.
(e) 0. LV. r. 70.
(f) 0. LV. r. 71 ; see Howell v. Kightley, (1856) 8 D. M. & G. 325 ; 25 L. J. Ch. 341, 868.
(g) Ex p. Minor, (1805) 11 Ves. 559 ; cited 13 Ves. 518.
(h) Anon., (1794) 2 Ves. 335.
(i) Anson v. Ton-good, (1820) 1 J. & W. at p. 639 ; and see Vesey v. Elwood, (1842) 3 D. & War. 74, overruling Vincent v. Going, (1841) cited ib. p. 75.
(k) Anson v. Towgood, (1820) 1 J. & W. 637.
(/) Robertson v. Skelton, (1849) 12 Beav. 260 ; 19 L. J. Ch. 140 ; and see Paramore v. Greenslade, (1853) 1 Sm. & G. 541 ; 23 L. J. Ch. 34 ; and Palmer v. Gorcn, (1856) 4 W. R. 688 ; 25 L. J. Ch. 841.
The death of the purchaser before the certificate becomes absolute does not, however, vacate the sale, even although he never signed an agreement, sales by the Court not being within the Statute of Frauds (m) ; but the contract, it is said, cannot be enforced against his representatives without suit (n) ; and it was the practice in such a case not to serve the heir with notice of an application to open the biddings (o).
Death of, before certificate becomes absolute.
If, before the certificate becomes absolute, the purchaser resells at a profit, the sub-purchaser becomes the purchaser under the Court at the advanced price (p). In one case, when the first purchaser had received the advance in price and had absconded, the Court directed the property to be resold; reserving the question whether, if it should not produce the sum offered by the sub-purchaser, he should not be answerable to the Court for the difference; and reserving all questions of liability in the original purchaser (q) ; and, in another case, where, before the certificate became absolute, the original purchaser sold at a profit, a resale was ordered, upon the terms of his paying into Court the amount of the advance offered by the sub-purchaser (r). If the purchaser resells after the certificate has become binding, the original purchaser as being in Equity the owner is entitled to any increase in the price (s).
Sub-sale at profit.
Until the certificate became absolute (t), the purchaser, where the sale was by auction, might, before the Sale of Land by Auction Act, 1867 (u), have lost his bargain by the Court opening, (as it was termed,) the biddings; that is, directing a re-sale, on the application of a person willing to give a higher price for the property. This practice has now been abolished by the above-mentioned statute ; and the highest bond fide bidder at any sale by auction ordered by the Court, provided he has bid a sum equal to or higher than the reserved price (if any), is, by s. 7, to be declared and allowed the purchaser; unless the Court, on the ground of fraud or improper conduct in the management of the sale, upon the application of any person interested in the land, either opens the biddings, holding such bidder bound by his bidding, or discharges him from being the purchaser, and directs a resale; but any such application must be made to the Court before the Master's certificate of the result of the sale has become binding (x). And the statute applies equally to a sale by private contract under the sanction of the Court (y).
Opening the biddings, what was.
(m) See A.-G. v. Bay, (1748) 1 Ves. sen. 221.
(n) Lord v. L., (1827) 1 Si. 503, but qu.
(o) Templer v. Sweet, (1815) 8 Beav. 464; 14 L. J. Ch. 421; real estate with the exception of copyholds now vests in the personal representative: L. T. Act, 1897, Pt. i.
(p) Sadder v. Baffin, (1830) Taml. 341.
(q) Holroyd v. Wyatt, (1845) 2 Col. at p. 329.
(r) Re Goodwin's S. E., (1862) 4 Giff. 90 ; and see Pearce v. P., (1834) 7 Si. 138.
(s) Dewell v. TuffncU, (1855) 1 K. & J. 324.
(t) Bridget v. Tenfold, (1851) 1 K. & J. 28. (u) S. 7.
Practice abolished except in special cases.