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.
As we have already seen (b), no step need be taken by the highest bidder in order that he may assume the character of purchaser ; the conditions of sale fix a time at which all parties may, if they think fit, attend by their solicitors at the judge's chambers to settle the certificate of sale; if a bidder fails to attend, the certificate is settled in his absence; and, when settled, is signed and filed, and becomes binding on him without notice. If he takes no step to complete the purchase, and he is supposed to be incompetent in point of means, the vendors may apply, on notice, that he should be discharged, and the estate re-sold (c) ; or, as is now the more usual course, may obtain an order, not that the purchaser be discharged, but that the estate be re-sold, and that he may pay the expenses arising from his non-completion of the purchase, the expenses of the application to the Court, and of the re-sale, and any deficiency in price on the re-sale (d) : under such an order, however, the purchaser has still a locus pcenitentice; so that if the property, being a reversion, falls into possession before a re-sale, he may claim it on paying his purchase-money with costs (e). Where the purchaser makes default in payment of the purchase-money and takes no step to complete the sale, an order may, it is conceived, be obtained to rescind the contract altogether (/').
Purchaser refusing to complete.
(u) Walters v. Jones, (1860) 6 Jur. N. S. 530.
(x) Cann v. C, (1830) 3 Si. 447; Palmer v. Johnson, (1884) 13 Q. B. D. 351, where the conditions provided that compensation should be allowed for any error in the particulars ; and see the subject discussed, sup. p. 812.
(y) Horner x. William, (1839) J. &
(z) Campbell v. Say, (1820) 2 Mol. 102.
(a) Man v. Bichette, (1851) 5 De G. & S. 116; 13 L. J. Ch. 194.
(b) Sup. pp. 1166, 1167.
(c) Hodder v. Ruffin, (1813) 1 Ves. & B. 544 ; Cunningham v. Williams, (1794) 2 Anst. 344.
Where, before the time fixed for completion the purchaser became bankrupt, and his assignees declined to complete, the Court held that the deposit was forfeited, and made an order for re-sale; but refused to make it without prejudice to any right which the vendors might have against the bankrupt or his assignees, in the event of a less price being obtained (g).
Purchaser bankrupt before completion.
If the purchaser is responsible, the vendors may take out a summons requiring him to show cause why he should not be ordered within a given time to pay his money into Court, and to pay the costs of the summons (h) ; if he appears on the summons, he is prima facie entitled to have a reference on the title ; but if he does not appear, it seems to be requisite, before any order can be made, that the vendors should have delivered the abstract, and procured the Master's certificate in favour of the title (i) ; or that the purchaser should have accepted the title (k). Where defendants to the action, who were entitled with the plaintiff to shares in the estate, purchased a part of it of which they were in possession, and the conditions precluded any objection to the title, they were ordered to pay in the entire purchase-money, though they claimed allowances for improvements, and the estate was incumbered (/).
(d) Harding v. H., (1839) 4 M. & C. 514 ; 9 L. J. N. S. Ch. 124 ; Saunders v. Gray, (1811) ib. 515, n.; Gray v.G., (1839) 1 Beav. 199. The conditions should provide for this ; see R. S. C. 1883, App. L. No. 15.
(e) Robertson v. Skelton, (1850) 13 Beav. 91; 19 L. J. Ch. 561.
(f) Cf. Foligno v. Martin, (1853) 16 Beav. 586 ; 22 L. J. Ch. 502; Sweet v. Meredith, (1863) 4 Gif. 207; 32 L. J. Ch. 147; Watson v. Cox, (1873) 15 Eq.. 219 ; 42 L. J. Ch. 279, cases of specific performance.
(g) Depree v. Bedborough, (1863) 4 Gif. 479; 33 L. J. Ch. 134. See Moeser v. Wisher, (1871) L. R. 6 C. P. 120 ; 40 L. J. C. P. 94.
(h) Lansdown v. Elderton, (1808) 14 Ves. 512.
(i) Dan. C. P. 7th ed. 899 et seq., and cases cited; and see Buhner v. Allison, (1844) 8 Jur. 440 ; 15 L. J. Ch. 11.
(k) Rutter v. Marriott, (1846) 10 Beav. 33.
On the other hand, where the contract is inequitable (m), or where to enforce it would be attended with great hardship, as in the case of a sudden and violent change in the money market (n), or where the purchaser has by mistake given an unreasonable price for the estate (o), and is expeditious in applying to the Court (p), he will, according to some authorities, be allowed to forfeit his deposit (if any), and abandon the contract; but this will not be conceded on the mere ground of the price being excessive (q) ; nor in the case of a person without authority buying the estate to prevent a sale at an undervalue (r) ; nor, it is conceived, under any ordinary state of circumstances.
Purchaser not generally allowed to forfeit deposit and abandon contract.
(/) Bulmer v. Allison, sup.
(m) Sug. 14th ed. 119 ; Dan. C. P. 7th ed. 887.
(n) Savile v. S., (1721) 1 P. W. 745, but qu.
(o) Morshead v. Frederick, cited, but with disapprobation, Sug. 14th ed. 120 ; see Coote v. C, (1840) 2 Ir. Eq. R. 159.
(p) See Price v. North, (1837) 2 Y. & C. 620, 626 ; 7 L. J. N. S. Ex. Eq. 9.
(q) Re Birch, cited Sug. 14th ed. 119.
(r) Nelthorpe v. Pennyman, (1808) 14 Ves. 517 ; Ex p. Tomkins, Sug 14th ed. 120.