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.
Court will not knowingly allow defective title.
(i) R. S. C. 1883, 0. LI. r. 2. How far the proceedings in the action should be shown on the abstract, see Waters v. W., (1S6G) 15 W. R. 191 ; 3G L. J. Ch. 195.
(k.) A form of the common conditions ordinarily used on sales by the Court is given in R. S. C. 1883, App. L. No. 15, but this form is in some respects obsolete, and is not now used as it stands ; see Wolst. Forms and Prec. 6th ed. 24 ct seq.
(/) Chamberlain v. C, (1853) 1 Sm. & Gr. App. xxviii.
(m) Gibson v. Woollard, (1854) 5 D. M. & G. 835 ; 24 L. J. Ch. 56 ; Re Jones, (1855) 3 W. R. 564; Relph v. Horton, (1870) 19 W. R. 220.
(n) Re Banister, (1879) 12 Ch. D. 131, 141 ; 48 L. J. Ch. 837.
(p) Bennett v. Wheeler, (1838) 1 Ir. Eq. R. 18; and see Hume v. Bentley, (1832) 5 De G. & S. 527; 21 L. J. Ch. 760 ; Nunn v. Hancock, (1871) 6 Ch. 850 ; 40 L. J. Ch. 700 ; Else v. E, (1872) 13 Eq. 196; 41 L. J. Ch. 213 ; Re Banister, sup.
When the conveyancing counsel has added such special conditions as he thinks necessary, the particulars and conditions are finally settled in chambers, the time and place of sale are fixed, and the auctioneer is appointed, and the amount of his remuneration is determined (q).
Particulars and conditions settled in chambers.
The common conditions provide for a reserved bidding (r) and also for the payment of a deposit by the purchaser. The person appointed to receive the deposit must usually give security (s). Under the old practice, the Court has refused to sanction its payment to the Master's clerk, but has allowed it to be paid to the solicitors of a defendant in the cause, they undertaking by counsel to account for it, and the defendant submitting to be bound by any future order which the Court might make respecting it (t). Where the auctioneers receive the deposit, they are justified in paying it to the solicitors of the vendors for the purpose of payment into Court (u).
Reserved bidding and deposit.
(q) See Dan. C. P. 7th ed. 876 et seq.
(r) This, however, is not the case in the Form No. 15, App. L. to R. S. C. 1883, which is also otherwise deficient (see sup. p. 1164, n. (k)), and is not used as it stands. For form of conditions see Wolst. Forms & Prec. 6th ed. p. 2-4.
(s) Dan. C. P. 7th ed. 880.
(t) Lyon v. Colvill, (1842) 6 Jur. 680. On small sales security is someIf an incompetent person (as a lunatic) is declared the highest bidder, the Court cannot hold the next bidder to his bidding, or even allow him to stand as purchaser with the consent of the parties to the cause (.r). In one case, where the offer of the highest bidder was rejected, under the idea that he was of insufficient means, and the next bidder was declared the purchaser, the Court did not treat the sale as void; but seemed to consider that the highest bidder should have moved that he, instead of the other, might be declared the purchaser (y).
Highest Lidding by person incompetent, or of insufficient means, effect of.
Where a purchaser made an offer after the auctioneer had declared the amount of the reserved bidding, it was held that this was an offer respecting which a special application to the Court was necessary (s) ; but in one case, where the property was bought in, but before the auctioneer left the rostrum, a person, to whom the reserved price had been improperly divulged, agreed to purchase for that amount, the contract was held to be binding upon him (a) ; and the judge observed that it is very usual for the reserved bidding to be known; and a constant practice for persons to take the property at the reserved bidding.
Bidding after estate bought in.