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.
Particulars and conditions of sale, if intended to exclude the purchaser from that to which he would otherwise be entitled, must be expressed in clear and unambiguous terms (a); if there is any reasonable doubt or misapprehension as to the meaning, the construction will be in the purchaser's favour (b). And the same principle of construction applies as well to private contracts for sale and purchase, settled on behalf of both parties, as to ordinary conditions for sale by auction, which, of course, are settled exclusively on behalf of the vendor (c).
Doubtful particulars, conditions, and contracts construed strictly against vendor.
It seems, however, that although a title may not be precisely that contemplated by the conditions, nevertheless, if it is a good title under the Statutes of Limitations, it will be forced upon a purchaser (d).
Conditions which would not, under ordinary circumstances, be enforced in Equity, may bind a purchaser if his attention is 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 contract, but said that a good title could be made under the existing conditions, the purchaser was held to his bargain (e).
But may bind purchaser whose attention is directed to their objectionable character.
(a) Symons v. James, (1842) 1 Y. & C. C. C. at p. 490.
(b) S. C; Taylor v. Martindale, (1842) ib. 658; 10 L. J. Ch. 339; Seaton v. Mapp, (1846) 2 Coll. 556; Nouaille v. Flight, (1844) 7 Beav. 521; 13 L. J. Ch. 414; Brumfit v. Morton, (1857) 3 Jur. N. S. 1198; Swaisland v. Dearsley, (1861) 29 Beav. 430; 30 L. J. Ch. 652; Re Marsh and Earl Granville, (1883) 24 Ch. D. 11; 53 L. J. Ch. 81.
(c) Rhodes v. Ibbetson, (1853) 4 D. M. & G. 787; 23 L. J. Ch. 459; Bulkeley v. Hope, (1855) 1 K. & J. 482; 24 L.. J. Ch. 356; and see as to vague conditions, Taylor v. Gilbertson, (1854) 2 Dr. 391; Crmo v. Nowell, (1856) 2 Jur. N. S. 536; 25 L. J. Ch. 709.
(d) Re Atkinson and Horsell's Contract, 1912, 2 Ch. 1. And see Re Spencer and Hanser's Contract, 1928, Ch. 598.
As a general rule, the particulars and conditions cannot be contradicted, explained, or added to, by any verbal declarations at the time of sale (f). As stated by Lord Eldon in Anson v. Towgood (g), "with respect to the notice said to have been given at the sale, the Court does not in general attend to that sort of notice - ' the babble of the auction room,' as it has been called - except in cases where we have to consider whether a purchaser is to take his bargain or not." 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 though the defendant (the purchaser) has agreed ,to abide by the conditions and declarations at the sale (i); but in Equity such evidence is admissible for the purposes of defence (k).
Effect at Law, in Equity.
And the same rules apply between the original purchaser at a sale, and his sub-purchaser (l).
Case of sub-purchaser.
(c) Hyde v. Dallaway, (1842) 4 Beav. 606; and see Heywood v. Mallalieu, (1883) 25 Ch. D. 357; 53 L. J. Ch. 492.
(f) Anson v. Towgood, (1820) 1 J. & W. at p. 639; Sug. 14th ed. 15; Higginson v. Clowes, (1808) 15 Ves. at p. 521; and see Manser v. Back, (1848) 6 Ha. 443; Goss v. Lord Nugent, (1833) 5 B. & Ad. 58; 2 L. J. N. S. K. B. 127; Hare and O'more's Contract, 1901, 1 Ch. 93; 70 L. J. Ch. 45.
(g) 1 J. & W. 638, 639.
(h) See Gunnis v. Erhart, (1789) 1 H. Bl. 289; Greaves v. Ashlin, (1813) 3 Camp. 426; Ford v. Yates, (1841) 2 Man. & G. 549; 10 L. J. N. S. C. P. 117; Eden v. Blake, (1845) 13 M. & W. 614, 617; 14 L. J. Ex. 194; Powell v. Edmunds, (1810) 12 Ea. 6; Brett v. Clowser, (1880) 5 C. P. D. 376, 385. See inf. Ch. XVII. s. 4, as to the admission of such evidence to explain ambiguity.
(i) Higginson v. Clowes, (1801) 15 Ves. 516; Jenkinson v. Pepys, cited 15 Ves. 521; Clowes v. Higginson, (1813) 1 V. & B. 524. But see Swaisland v. Dearsley, (1861) 29 Beav. 430; 30 L. J. Ch. 652, where evidence of these declarations appears to have been improperly admitted on behalf of the plaintiff.
(k) Swaisland v. Dearsley, (1861) 29 Beav. 430; 30 L. J. Ch. 652. And see the notes to Woollam v. Hearn, 2 Wh. & T. L. ,C. 9th ed. p. 476 et seq.
(l) Shelton v. Livius, (1832) 2 C. & J. 411; 1 L. J. N. S. Ex. 139.
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, the probably would not obtain a decree for specific performance without the variations, supposing them to be to his prejudice (m); 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; though, in cases where the vendor is selling under a power or trust, this might occasionally give rise to questions with the parties beneficially interested. A verbal correction of a material misdescription, if such correction is made by the auctioneer, clearly and distinctly, at the time of sale disentitles the purchaser from enforcing specific performance with compensation for that misdescription, even though he did not hear the statement (n).
Verbal declarations at sale.
Should be reduced into writing.
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 in a suit for specific performance according to the particulars, &c; but, as a general rule, do not seem to be admissible on behalf of the plaintiff(o). In a case where a contract for sale was arrived at by correspondence, in which the vendor agreed to make "a good marketable title," and the abstract showed that the property was subject to restrictive covenants preventing the title from being "marketable," it was held - in an action by the purchaser to recover his deposit - that evidence that the purchaser knew of the restrictions at the time of the contract, Could not be admitted to modify the express terms of the agreement that a good marketable title would be made (p). But if the contract is silent as to the title which is to be shown by the vendor, and the purchaser's right to a good title is merely implied by law, the legal implication may be rebutted by showing that the purchaser had notice before the contract that the vendor could not give a good title (q). In this case there is no contradiction of the plain terms of a written instrument by parol evidence.
Particular information to purchaser, etc, a defence in Equity.
(m) Gunnis v. Erhart, (1789) 1 H. Bl. 289. See Pember v. Matters, (1779) 1 Br. C. C. 52; inf. p. 898; Ogilvie v. Foljambe, (1817) 3 Mer. 53; Woodward v. Miller, (1845) 2 Coll. 279; 15 L. J. Ch. 6; Sug. 14th ed. 16; Farebrother v. Gibson, (1857) 1 D. & J. 602; and cf. Cato v. Thompson, (1882) 9 Q. B. D. 616.
(n) Hare and O'more's Contract, 1901, 1 Ch. 93; 70 L. J. Ch. 45.
(o) Higginson v. Clowes, (1801) 15 Ves. at p. 523; Clowes v. Higginson, (1813) 1 V. & B. 524; Heywood v. Mallalieu, (1883) 25 Ch. D. 357, 365; 53 L. J. Ch. 492. But see Craddock Bros. v. Hunt, 1923, 2 Ch. 136, and the notes to Woollam v. Hearn, 2 Wh. & T. L. C. 9th ed. p. 471 et seq.
Where an 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; though it did not appear that he had heard the auctioneer read the altered copy, or had any knowledge of the alteration (r).
Alteration of copies, and unaltered copy signed.
The Sale of Land by Auction Act, 1867, has made it unlawful, in every case where a sale is stated to be without reserve, for the vendor to employ a person to bid at the sale, or for the auctioneer to take knowingly any bidding from such person; and the particulars or conditions of sale by auction of any land must now state whether such land will be sold without reserve, or subject to a reserved price, or whether a right to bid is reserved (s). The omission of such a statement from the particulars or conditions is not provided for, but it is conceived that in such a case the sale would be treated as without reserve. The provisions of the Act are expressed in the alternative; but it seems that on the same sale, not only may a reserved price be fixed, but a right of bidding may be also reserved (t). Where, however, the sale is made "subject to a reserved bidding," a person cannot be employed to bid up to the reserved price, unless the right to do so is expressly stipulated for (u). And the stipulation must be strictly adhered to; thus, where a right was reserved by the vendor to bid once by himself or his agent, and the auctioneer bid three times with the sanction of the vendor, it was held that the stipulation had been exceedled, and that the sale was voidable at the option of the purchaser (x).
(p) Cato v. Thompson, (1882) 9 Q. B. D. 616; and see Alderdale Estate Co. v. Mcgrory, 1917, 1 Ch. 414, 418; 1918, A. C. 503.
(q) Per Fry, J., in Gloag and Miller's Contract, (1883) 23 Ch. D. 320, 327; 52 L. J. Ch. 654; Alderdale Estate Co. v. Mcgrory, sup.
(r) Manser v. Back, (1848) 6 Ha. 443; Hare and O'more's Contract, 1901, 1 Ch. 93; 70 L. J. Ch. 45.
(s) 30 & 31 Vict. c. 48, s. 5; and see as to "land" the interpretation clause. But a bid made by a stranger who had no means or intention
A person not a party, but consenting to the sale, may be bound by statements in the conditions or particulars derogating from his rights over other property (y).
Rights of stranger, how bound.