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.
Upon the certificate becoming absolute, the purchaser becomes the owner of the estate, subject to payment of the purchase-money. Consequently, he may resell at a profit for his own benefit (z). He is also liable to any loss which may happen in connection with the estate; as, for instance, the expense of making good damage caused to adjoining property by the fall of the house purchased (a); but he may, it seems, be discharged by the improper conduct of the vendors; e.g., by their neglect to insure leaseholds pursuant to their covenant (b).
(x) As to what amounts to fraud or improper conduct in the management of the sale, see Re Carew, (1858) 26 Beav. 187 ; 28 L. J. Ch. 218 ; Delves v. D., (1875) 20 Eq. 77 ; Brown v. Oaksholt, (1869) 38 L. J. Ch. 717 ; Union Bank v. Munster, (1887) 37 Ch. D. 51 ; 57 L. J. Ch. 124.
(y) Re Bartlett, (1880) 16 Ch. D.
561 ; 50 L. J. Ch. 205 ; Re Oriental Bank Corp., (1887) 56 L. T. 868.
(z) Dewell v. Tuffnell, (1855) 1 K. & J. 324; and cf. Goodwin's S. E., (1862) 3 Gif. 620; 4 Gif. 90.
(a) Robertson v. Skellon, (1849) 12 Beav. 260; 19 L. J. Ch. 140.
(b) Palmer v. Goren, (1856) 4 W. R. 688; 25 L. J. Ch. 841.
The Court may now, under the Conv. Act, 1881, s. 5, in any ease allow the amount of any incumbrance, together with a margin of ten per cent., to he paid into Court (V). No order for payment in of purchase-money is now necessary, except in very special cases, e.g., where the application is to confirm a sale by private contract, or where there are difficulties in the way of completion. In ordinary cases of sale by auction, followed by certificate of result, the certified purchaser can bring his purchase-money into Court upon a schedule signed by the Master (d). The conditions usually provide that the purchaser may deduct property tax from any interest payable by him on his purchase-money (e) : where this is not the case, the interest must be paid in full without deducting the tax (f) ; but the purchaser may, it seems, apply for repayment when the purchase-money is dealt with by the Court (y). If the money is invested at the vendor's request, the purchaser will not be affected by any variation in the funds (h) ; hence the order should always state at whose request the investment is made. Nor will the purchaser, in the absence of any improper delay on his part, have to bear any extraordinary expense necessary to complete the conveyance, e.g., the fine on the admittance of the heir of a vendor who has died since the contract was entered into, but before completion of the sale (i). The order for payment in by the purchaser does not allow deduction of the rents and profits, although the conditions provide that he shall be let into possession of them as from the day fixed for completion (k).
Payment in of purchase-money, and discharge of incumbrances.
(c) Patching v. Bull, (1882) 30 W.
R. 241 ; Dickin v. D., (1882) 30 W. R. 887.
(d) R. S. C. 0. LI. r. 3a.
(e) But this is not so provided in the form given in R. S. C. 1883, App. L. No. 15. See, however, Dan. Ch. Rr. 7th ed. 889; Dan. C. F. 5th ed. 640. As to this official form see p. 116l,n.(k); and as to deducting property tax see dictum of Lindlcy, L. J., in Goslings and Sharpe v. Blake, (1889) 23 Q. B. D. at p. 330.
(f) Holroyd v. Wyatt, (1847) 1 De
G. & S. 125; 1G L. J. Ch. 174 ; Dawson v. D., (1847) 11 Jur. 984 ; Humble v. IT., (1849) 12 Beav. 43.
(g) Bebl v. Bunny, (1854) 1 K. & J.
216; and see Duval v. Mount, there cited.
(h) Ambrose v. A., (1785) 1 Cox, 194 ; D'Oyley v. Countess Powis, (1786) ib. 206 ; Gell v. Watson, (1825) 2 S. & S. 402 ; Humphries v. Home, (1843) 3 Ha. 276, 279.
(i) Paramore v. Gremslade, (1853) 1 Sm. & G. 541 ; 23 L. J. Ch. 31.
The Court will, either before or after the certificate of sale has become absolute, discharge the purchaser and substitute any other person (/), upon his paying in the entire purchase-money ; and such an order has been made where the first purchaser, after confirmation of the report, had agreed in writing to sell the property, and had since died, and his heir was abroad (m) ; and, where the application is at the same time for such substitution and for leave to pay in the money and be let into possession, since no additional costs are incurred by the parties to the cause than would have been incurred on the usual application to pay in purchase-money, no costs will be given (n). If the application were made before the certificate of sale became absolute an affidavit was formerly required that there was no underbargain (o) ; but since the Sales by Auction Act, 1867, the practice seems to be to dispense with this. And such affidavit always was unnecessary after the certificate had become absolute, as the purchaser had thereby become the absolute owner.
"Where a purchaser died after confirmation, the Court ordered the estate to be conveyed to his devisee, although the heir was an infant (p).
Substitution of purchaser allowed, on what terms.