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.
(1857) 23 Beav. 358. But In Clark v. C, (1884) 9 A. C. 733; 53 L. J. P. C. 99, the rule was held not to extend to a person named as executor, who, although he had not renounced, had neither proved nor acted.
(s) Re Pepperell, (1879) 27 W. R. 410.
(t) (1888) 40 Ch. D. at pp. 410 and 411; 58 L. J. Ch. 185; and see Warner v. Jacob, (1882) 20 Ch. D. 220; 51 L. J. Ch. 642; Colson v. Williams, (1889) W. N. 33; 58 L. J. Ch. 539; Kennedy v. Be Traford, 1897, A. C. 180; 66 L. J. Ch. 413; and Betton v. Bass, Ratcliffe & Gretton, Ltd., 1922, 2 Ch. 449.
(u) Robertson v. Norris, (1858) 1 Giff. 421, where redemption was decreed, though fifteen years had elapsed; see also Downes v. Grazebrook, (1817) 3 Mer. 200; Australasian Nat. Bank v. United Hand-in-hand Co., (1879) 4 A. C. 391; 48 L. J. P. C. 50; Henderson v. Astwood, 1894, A. C. 150; Farrar v. Farrars, Ltd., (1888) 40 Ch. D. per Lindley, L. J., at p. 409; 58 L. J. Ch. 185; Hodson v. Beans, 1903, 2 Ch. 647; 72 L. J. Ch. 751.
On a sale by the Court a mortgagee may, as a rule, obtain leave to bid, but not where he is also a trustee and any of the beneficiaries object (e). If leave to bid is given, the disability, so far as the particular sale is concerned, is entirely removed (f). In the case of a legal mortgage, it appears to have been a common, though improper, practice for the mortgagee to conduct the sale (g); in such a case the permission of the Court to purchase would not be given except upon very special grounds (h).
Mortgagee buying on a sale by the Court or in bankruptcy.
(x) Orme v. Wright, (1838) 3 Jur. 19; Re Bloye's Trust, (1849) 1 M. & G. 488; 19 L. J. Ch. 89; and see Dowries x. Grazebrook, (1817) 3 Mer. 200; Robertson v. Norris, (1858) 1 Giff. 421; Martinson v. Clowes, (1882) 21 Ch. D. 857; 51 L. J. Ch. 594.
(y) Nutt v. Easton, 1899,1 Ch. 873; 1900, 1 Ch. 29; 69 L. J. Ch. 46.
(z) Webb v. Rorke, (1806) 2 Sch. & L. 661, 673; and see Waters v. Groom, (1844) 11 C. & F. 684; Knight v. Marjoribanks, (1849) 2 M. &G. 10; Sug. 14th ed. 689; Melbourne Banking Co. v. Brougham, (1882) 7 A. C. 307; 51 L. J. C. P. 65; Lisle v. Reeve, 1902, 1 Ch. 53; 1902, A. C. 461; 71 L. J. Ch. 768.
(a) Parkinson v. Banbury, (1865) 2 D. J. & S. 450; 36 L. J. Ch. 292; Kirkwood v. Thompson, (1865) 2 D. J. & S. 613; 34 L. J. Ch. 305, 501; Shaw v. Bunny, (1865) 2 D. J. & S. 468; 34 L. J. Ch. 257.
(b) Kirkwood v. Thompson, sup.; Locking v. Parker, (1872) 8 Ch. 30; 42 L. J. Ch. 257; Re Alison, (1879) 11 Ch. D. 284.
(c) Farrar v. Farrars, Ltd., (1388) 40 Ch. D. 395; 58 L. J. Ch. 185. (d) Kennedy v. Be Trafford, 1897, A. C. 180; 66 L. J. Ch. 413. (e) Tennant v. Trenchard, (1869) 4 Ch. 537; 38 L. J. Ch. 169, 661. (f) Coaks v. Boswell, (1886) 11 A. C. 232; 55 L. J. Ch. 771.
(g) See Ex p. Cuddon, (1843) 3 M. D. & D. 302. (h) See Ex p. M'gregor, (1851) 4 De G. & S. 603; Bellamy v. Cockle, (1854) 18 Jur. 465; 23 L. J. Ch. 456.
An arbitrator contracting for unascertained claims of parties to the reference (i).
A bishop purchasing an annuity to be charged upon a rectory; he being the person whose consent was required to the sale; though he gave a better price than could be elsewhere obtained (k).
Bishop baying charge on rectory.
Commissioners for Inclosure (now the Board of Agriculture), under the Inclosure (Consolidation) Act, 1801, who cannot purchase any land in a parish in which an inclosure is made until five years from the date and execution of their award (l); and a similar disability for the term of seven years affects valuers acting under the Inclosure Act, 1845 (m).
Inclosure or Land Commissioners.
A rector purchasing in the name of his curate a portion of glebe sold for the redemption of the land tax (n).
Rector buying glebe.
A landlord purchasing goods sold by him under a distress (o).
In all the above cases, the transaction is binding on the purchaser (p); and voidable merely at the option of the parties originally interested in the property, or their representatives (q).
Incompetent purchaser bound at option of parties interested.
The following are examples of cases falling within the second class, in which the sale is not voidable ab initio, but may be set aside unless the purchaser, on whom the burden is cast, can prove the transaction was in all respects fair and honest, and that he obtained no undue advantage of any description: Cases falling within 2nd class: (i) Blennerhassett v. Day, (1811) 2 Ball & B. at p. 116.
(k) Greenlaw v. King, (1840) 3 Beav. 49; 9 L. J. N. S. Ch. 377.
(l) S. 2. (m) S. 129.
(n) Grover v. Hugell, (1827) 3 Russ. 428; but see Beaden v. King (1852) 9 Ha. 499, 520; 22 L. J. Ch. 111.
(o) Moore, Nettlefold & Co. v. Singer Co., 1903, 2 K. B. 168; 72 L. J. K. B. 577; 1904, 1 K. B. 820; 73 L. J. K. B. 457.
(p) See Sanderson v. Walker, (1807) 13 Ves. at p. 603.
(q) Tate v. Williamson, (1866) 1 Eq. 528; 2 Ch. 56.
Chap, I. Sect. 4.
A guardian purchasing from his ward, immediately on his Guardian; coming of age; though the price was adequate (r).
An agent for management of property (s).
Agent for management;
A receiver (t).
A steward contracting for a lease from his employer (u).
Steward taking a lease:
Counsel purchasing below their nominal value charges on his late client's estate (x), upon the validity of which he had advised. .
Counsel buying from client;
A creditor of a bankrupt who has been consulted by the trustee as to the best mode of selling the estate (y).
Creditor of bankrupt;
A purchase coming within the above rules is not rendered valid by the fact of the sale having been by auction (z);, or under an order of the Court (a), unless the contract has been sanctioned by the Court (b); nor, when a person, by filling a confidential office, has acquired a knowledge of property, is his capacity to purchase it restored by his retirement from office (c); for his knowledge remains.