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.
(I) Union Bank v. Munster, (1887) 37 Ch. D. 51 ; 57 L. J. Ch. 124.
(m) Coaks v. Boswell, (1886) 11 Ap. Ca. 232 ; 55 L. J. Ch. 761.
(n) Knott v. Cottee, (1859) 27 Beav. 33 ; even though he would not conduct the sale, if it were out of Court: Date v. Hamilton, (1853) 10 Ha. App. vii.
(o) Dalby v. Pullen, (1830) 1 R. & M. 296.
(p) R. S. C. 1883, 0. L. r. 10. The Court of Appeal will not interfere with the exercise of the judge's discretion : Re Love, (1885) 29 Ch. D. 349 ; 54 L. J. Ch. 816.
(q) Dixon v. Pyner, (1850) 7 Ha. 331 ; 19 L. J. Ch. 402 ; Hewitt v. Nanson, (1858) 7 W. R. 5 ; 28 L. J. Ch. 49.
(r) Hewitt v. Nanson, sup.
Where a suit is instituted to carry into execution the trusts of an instrument which directs a sale upon the occurrence of a specified event, and some of the parties interested in the proceeds of sale are not sui juris, the Court has no power, under its general jurisdiction, to direct a sale before the occurrence of such event (a) ; however injurious delay may be to the property (b) ; nor even, it would seem, where all the parties are sui juris, if the intention of the testator in fixing a time for sale would be defeated (c).
Court cannot anticipate time fixed for sale by trust.
Knott v. Cottee, (1859) 27 Bcav. 33.
(t) Dean v. Wilson, (1878) 10 Ch. D. 136.
(u) Davies v. Wright, (1886) 32 Ch. D. 220; Woolley v. Colman, (1882) 21 Ch. D. 169 ; 51 L. J. Ch. 854 ; Brewer v. Square, 1892, 2 Ch. 1ll ; 61 L. J. Ch. 516.
Christy v. Van Tramp, (1886) W. N. 111.
(y) Norman v. Beaumont, (1893) W. N. p. 45.
(z) Union Bank v. Munster, (1887) 37 Ch. D. 51 ; 57 L. J. Ch. 121.
(a) Blaeklow v. Laws, (1842) 2 Ha. 40; Carlyon v. Truscott, (1876) 20 Eq. 348; 44 L. J. Ch. 186.
(b) Johnstone v. Baber, (1845) 8 Bcav. 233.
(e) Bristow v. Shirrow, (1859) 27 Bcav. 590, sttp. p. 1153.
Assuming the Court to have properly directed a sale, the estate may be sold at such place either in London or in the country, and by such person, as the Court shall think fit (d) ; and where the action is proceeding in a district registry, the judge has an absolute discretion whether the sale shall be made there or in chambers (e). A sale in a manner different from that directed by the decree, and unperfected by conveyance, will be treated as a nullity (f).
Sale may be in town or country.
The general rules, to which we have referred, respecting the relative duties of intending vendors and purchasers prior to the contract, apply as well to sales under an order of the Court as to ordinary sales: e.g., puffing cannot be supported in the one case more than in the other (g).
Duties of vendors and purchasers prior to sale.
Where the sale is made in an administration suit, the trustees or other real representatives of the deceased person must make an affidavit (A) as to the particulars of the real estate, and the incumbrances affecting it; and in other cases similar evidence is required by the Court. The particulars of sale are prepared by the solicitor of the party conducting the sale, and are in the ordinary form, except that they are intituled in the cause or matter, and that the sale is stated to be made with the approbation of the judge, under a decree or order. The solicitor of the party conducting the sale also prepares the abstract, which, before the property is offered for sale, must "be laid before some conveyancing counsel approved by the Court for his opinion thereon, to enable proper directions to be given respecting the conditions of sale and other matters connected with the sale "; and a time for the delivery of the abstract to the purchaser or his solicitor is to he specified in the conditions (i). Under this provision, the abstract, with a copy of the particulars as settled in chambers, and a draft of the ordinary formal conditions employed on sales by the Court, is usually laid before one of the six conveyancing counsel of the Court; with instructions to advise whether the sale should be made subject to any and what special conditions (k). The Court has, however, a discretion to dispense with this rule, upon the ground of expense (/), or for any other special reason (m).
(d) Cons. 0. XXXV. r. 61, which has not been reproduced by the R. S. C. 1833; but the practice would seem to be the same. See R. S. C. 1883, 0. LXXII. r. 2.
(e) Macdonald v. Foster, (1877) 6 Ch. D. 193.
(f) Annesley v. Ashurst, (1734) 3 P. W. 282 ; Ex p. Hughes, (1802) 6
Ves. 617; Boiueu v. Evans, (1844) 1 J. & L. 178, 266.
(g) Dimmock v. Hallett, (1866) 2 Ch. 21, 29; 36 L. J. Ch. 146; and see Coaks v. Boswell, (1886) 11 Ap. Ca. 232; 55 L. J. Ch. 761.
(h) For form of affidavit, see R. S. C. 1883, App. L. No. 11.
In considering the conditions, the expression "the vendors," if unexplained, has been held by V.-C. Wood, at chambers, to include all the parties to the suit.
To be laid before conveyancing counsel.
As between vendor and purchaser, the conveyancing counsel is the agent of the vendor, even though he is so appointed by the Court, and the vendor himself has no voice in his selection (n) ; in sales by the Court there must be at least as much good faith shown towards the purchaser as, and perhaps a little more than, is required from ordinary vendors out of Court (o). The Court, therefore, will not knowingly pass off an absolutely bad title by the aid of special conditions (p) ; but in one case, where there was an apparently good title commencing with a recent conveyance on the purchase by a late owner, but a defect, which had then apparently been overlooked, existed in the prior title, such defect consisting in a possible claim to a reversionary estate for life in a part of the property, the enjoyment of which was essential to the enjoyment of the residue, Lord Roniilly, upon the matter being brought before him privately at chambers, decided that the property should be put up for sale under a condition that the abstract to be delivered to the purchaser at the expense of the vendors should commence with the conveyance above referred to; but that the purchaser might have a full abstract of the prior title if he chose to pay for it, and was to be allowed to investigate it; which it was considered very unlikely that he would do. The case was a difficult one; for the sale, which was in a creditors' suit, was a matter of necessity; and to explain the real state of the earlier title would have been instantly to bring down a claim which was not based on any moral equity, and which, in the absence of such disclosure, in all probability would never be made.