Page images
PDF
EPUB

PRECEDENTS IN CONVEYANCING.

CONDITIONS OF SALE.

SALE.

THE title “ Conditions of Sale" does not appear in the original pro- CONDITIONS OF spectus of the work; but as it is a frequent duty, both of counsel __s and solicitors, to prepare such documents, it seems desirable to present the reader with some precedents of them. They are not, how- The arrangeever, arranged exactly in the usual manner that is, in the shape of me

of the prececopies of existing conditions, because several in each set are nearly dents. always the same, and those which are special vary for each particular case. The plan pursued has been to give, first, the common conditions employed upon a sale, under ordinary circumstances, of a freehold or copyhold estate, with a perfect title, and then to add, under appropriate heads, the precedents of conditions adapted to various special circumstances, and to peculiar kinds of property. A person who wishes to avail himself of this collection, should make himself generally acquainted with the forms, and with the suggestions contained in the notes ; so that when he is called on to frame a set of conditions for actual practice, he may have little hesitation in selecting such forms as will meet the circumstances for which he is to provide : for it should be borne in mind, that conditions of sale, as well as more formal instruments, ought never to be framed by copying at random from any precedent, or any previously existing set of conditions, but that they ought to be carefully adapted to the nature and the title of the property which is to be sold.

There is no task which a conveyancer has to execute, of greater Difficulty of responsibility and risk than that of framing conditions of sale ; be- framing condi.

tions of sale. cause it is, in fact, an undertaking to defend the title against the objections of all the world. It is necessary to foresee every possible objection, and to guard, by special conditions, against all which cannot be removed, and, at the same time, not to insert a single unnecessary stipulation ; because, every stipulation beyond those ordinarily used, is calculated to alarm purchasers. It is undoubtedly inapropriety of CONDITIONS OF true, that those conditions now so commonly employed, which preSALE.

- clude the purchaser from requiring the usual evidence of title, save the habitual use the vendor some expense, and the vendor’s solicitor some trouble : of special stipu. but still, it is clear that no prudent person, who understands their lations as to title.

effect, will purchase, subject to them. And admitting, that the great majority of purchasers do not understand their effect, yet, when we consider that if, by the use of such stipulations, we deter a single person from bidding, in all probability we sensibly lessen the price we should otherwise obtain ; and that all those purchasers (trustees especially) who, before bidding, consult their legal advisers, and all members of the legal profession (who are sufficiently numerous) would be deterred from bidding under such stipulations as preclude them from requiring a fair title, we may well doubt, whether the consequences to the vendor of selling, subject to such conditions, are not quite as pernicious as those of selling without appropriate and necessary conditions. Such, however, is not the view, at present,

generally taken ; for it seems to be imagined, that no conditions, Conditions however extravagant, will prejudice a sale. But, at all events, it must not be so worded as to

must be understood, that conditions of sale must be clear and inmislead pur telligible to a man of ordinary understanding : they must clearly tell chasers.

the purchaser what he is not to require, and must not be of such a nature as to mislead or deceive him. If they are of doubtful meaning, they will, of course, be always construed against the vendor, by whom they have been framed. See Dykes v. Blake, 4 Bing. N. C.

463. Remarks on the Most of the following conditions are framed for a sale in lots, but language of the they may easily be adapted to the case of the sale of an estate in one precedents.

lot, by omitting the words referring to the division of the property, and the plurality of purchasers, and by other trifling alterations.

Conditions of sale generally attempt to distinguish between male and female purchasers, by the use of both masculine and feminine pronouns, when speaking of the purchasers; but they always seem to consider each person as an individual, and do not attempt to provide for the case of joint purchasers. In the following precedents, it has been deemed best, for the sake of simplicity, always to speak of the purchaser in the masculine gender and the singular number. There can be no doubt that, whenever necessary, conditions so framed would be held to be as binding on female or joint purchasers as on a single male purchaser. With respect to the vendors the case is different; because, as it is known beforehand who they are, the language of the conditions may and should be suited to their circumstances and number. The requisite alterations in the forms may be easily made.

COMMON CONDITIONS of Sale of FREEHOLD CONDITIONS OF

SALE OF or COPYHOLD Estate.'

FREEHOLDS OR

COPYHOLDS. I. THAT each lot shall be put up at the sum fixed by the auctioneer; the highest bidder shall be the purchaser; and if any dispute shall arise as to the last or highest bidder for any lot, the same shall be put up again at a former bidding (a).

II. That no person shall, at any bidding, advance less than — £for lots — ; less than £— for lots ; or less than £— for lots — ; or retract his bidding (6).

(a) It is doubtful whether the employment, on the part of the vendor, As to biddings of even a single puffer, unless with public notice of the intention, does not on behalf of the vitiate the sale (1 Sugd. V. & P. 23—30); and, therefore, unless the ve

vendor, sale is to be made without reserve, it may be deemed right to subjoin to this condition a notice that “one person will bid at the sale on behalf of the vendor.” In practice, however, this is seldom attended to. In case it be deemed advisable (1 Sugd. V. & P. 29) to reserve only one bidding, the notice should be “one bidding will be reserved for each lot.” It has been decided, that in the case of a sale under the direction of a court of equity, the court will (if it see fit) authorize a reserved bidding. (Jervoise v. Clarke, 1 Jac. & Walk. 389).

(6) Every bidding at a sale by auction, is nothing more than an offer As to retract- · by the purchaser, and is not binding, on either side, till it is assented to ing biddings. by the vendor ; for otherwise, one party would be bound and the other not, which the law does not allow. Routledge v. Grant, 4 Bing. 653; 1 Moo. & Pay. 717. The assent of the vendor is signified by the fall of the hammer of the auctioneer; and hence a bidding, at a sale by auction, may be retracted at any time before the fall of the hammer. Payne v. Cave, 3 T. R. 148. To prevent this inconvenience, it is now always stipulated, that no purchaser shall retract his bidding. But it is not very clear, that the purchaser of an interest in land can be bound until his

SALE OF

CONDITIONS OF III. That every purchaser shall, immediately after the FREEHOLDS or sale, pay a deposit (c), in the proportion of £- for every OLDS. hundred of his purchase-money, into the hands of the auc

tioneer, and sign an agreement (d) for payment of the remainder, on the (e) — day of — next, at the office of Mr. A. B., (the vendor's solicitor), at which time and place the purchases are to be completed, and the purchasers to have the actual possession (f) of the respective lots purchased by them: all outgoings, up to that time, will be discharged by the vendor (g).

[ocr errors]

name is written down by the auctioneer or clerk. (See Malins v. Free

man, 2 Keene, 25). This case, however, only decides, that if a lot is Purchase by purchased by mistake, a court of equity will not enforce a specific permistake. formance, but will leave the vendor to his remedy at law. As to deposits. (c) The deposit is not merely a pledge, but is a part payment of the

purchase-money. The auctioneer is deemed a stakeholder of it, and can, if need be, compel the parties to settle their rights to it by interpleader. If the purchase be completed, it belongs to the vendor; and if abandoned, to the purchaser. If the contract be rescinded, the purchaser may recover, from the vendor, interest on the deposit; and if the vendor's bill, for a specific performance, be dismissed, the re-payment of the deposit, with interest, will be ordered by the court dismissing the bill. Lord Anson v. Hodges, 5 Sim. 227. See the cases on the subject of deposits collected and commented on, 1 Sugd. V. & P. 47–51; and see, also, Williams v. Edwards, 2 Sim. 78; Berry v. Armistead, 2 Keen, 221. As to recovering interest on deposits, see 2 Sugd. V. & P. 13—18.

(d) See the precedent of such an agreement, infra, page 36. Of the day for (e) Such a day should be named as will allow a fair interval for invescompletion.

tigating the title and preparing the conveyance. A quarter-day is usually fixed, because rents and outgoings can be thus more easily ap

portioned. As to an estate (f) This condition is framed with a view to an estate in hand : if it be in tenancy. in the occupation of a tenant, instead of “have the actual possession,"

substitute -
“ be let into the receipt of the rents and profits;"
and after the word “outgoings,” insert-

“ payable by the landlord.” Interest on

(9) It constantly happens, that, from too early a day being named for purchase-mo- the completion of the purchase, or from the careless and insufficient manney.

ner in which the vendor's title is made out, before the sale, or from

« PreviousContinue »