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Conditions Of full liberty to resell the lots purchased by such person, Freeholds Or an<^ either by public auction or private contract, at such Copyholds, time and place, subject to such conditions and in such manner as the vendor shall think fit; and the deficiency in price (if any) which shall happen on such second sale, and all expenses attending the same, shall, immediately after the same, be made good and paid to the vendor by the defaulter at this present sale; and in case of non-payment, the whole, or such part of the same as shall not be paid, shall be recoverable by the vendor as and for liquidated damages (m).
Agreement AGREEMENT for Purchase at an Auction,
For Purchase. fa wrmen at the foot of, or indorsed on, the
Particulars of Sale (a).
Be it remembered, that, at the sale by auction this
day of , of the property mentioned in the above
otherwise, a re-sale could only be made by the aid of a court of equity or bankruptcy, and the vendor could not, perhaps, recover the expenses attending the second sale, at least, when the first purchaser has become bankrupt. If a purchaser becomes bankrupt, his assignees may elect, either to fulfil or to abandon the purchase; (6 Geo. 4, c. 16, s. 76, and cases above cited); but, of course, they are bound by the condition as to re-sale, as much as the purchaser himself.
(in) There are usually added to this condition the words— "and it shall not be necessary, previously, to tender a conveyance to the purchaser."
But, as it is perfectly well settled, that, in the absence of any stipulation to the contrary, the purchaser, and not the vendor, is bound to tender the conveyance; (ante, Condition 5, n. (k)); and as, moreover, the fifth condition expressly provides, that the purchaser shall tender the conveyance, the above words are superfluous, and should be omitted.
Agreement for (a) Sir E. Sugden (2 V. & P. 315), recommends, that two sets of conihe sale. ditions should be prepared, at the end of one of which might be printed
an agreement, for the auctioneer or agent of the vendor to sign; and, at the end of the other, an agreement for the purchaser to sign. This, how[within] written particular, C. D., of &c. [the purchaser], Agreement was the highest bidder for, and was declared the purchaser, P0R Tuhchase. subject to the above [within] written conditions of the property comprised in lot , at the price of £ ;and
that the said C. D. has paid into the hands of the above
[within] named A. B. [the auctioneer] the sum of £ ,
by way of deposit and in part payment of his said purchasemoney, and hereby agrees to pay to the vendor, at the
above [within] named office of , on the above [within]
named day of next, the sum of £ , being the
remainder of the said purchase-money. As witness our
A. B. for vendor.
Purchase-money £ — —
Deposit £ . — —
Remainder to be paid . . £ — —
ever, is rarely attended to in practice, and seems to be unnecessary, since the whole terms of the contract may very well be comprised in one agreement, which both parties may sign. If the property be sold in very numerous lots, the forms of agreement may be printed on the particulars; but, in other cases, it will be less expensive to have written as many forms of the agreement as may be needed. A form of agreement is given in the text; and also a form to meet the common case of the property, or some part of it, not being sold at the auction, and being subsequently sold by private contract, subject to the conditions of sale. The agreements should, in all cases, be made and signed in the names of the principals, although to be executed by the agents; for, otherwise, the agents will be personally bound. (I Sugd. V. & P. 53, and cases there cited). The words within brackets, in the agreements in the text, apply to the case of the agreements being indorsed on the particulars.
AGREEMENT/or the Sale, by Private ConTract, of a Lot which was not sold at the Auction, the Sale being subject to the same Conditions.
Be it remembered, that E. F., of &c, [the vendor], hereby agrees to sell, and C. D., of &c, [the purchaser], to purchase the property comprised in lot , of the above
[within] written particular, at the price of £ , subject
to the above [within] written conditions, so far as the same are applicable to a sale by private contract; and that the said C. D. has paid into the hands of the said E. F., [or,
of A. B., as agent for the said E. F.] the sum of £ ,
by way of deposit and in part payment of his said purchasemoney, and hereby agrees to pay to the said E. F., at the
above [within] named office of , on the day of
next, the sum of £ , being the remainder of the
said purchase-money. As witness our hands, this day
Purchase-money £ — —
Deposit £ — —
Remainder to be paid . . £ — —
AOREEMENT FOR PURCHASE.
Conditions As CONDITIONS of Sale as to Auction Duty,
To Auction Interest, Investment of Deposits, Fix
Duty, Inter- * Est, &c Tures, Timber, and Crops.
I. XlIAT the auction duty (a) of seven-pence in the pound on the purchase-money shall, immediately after the
Auction dutv. W ^ duty of seven-pence in the pound on the purchase-money is payable on sales by auction of any freehold, copyhold, or leasehold heresale, be paid to the auctioneer by the purchaser [and vendor in equal moieties],
II. That if, from any cause whatever, any purchase shall not be completed on the said day of , the purchaser shall pay interest on the remainder of his purchasemoney, [and on the amount of the valuation mentioned in
the and conditions], after the rate of £ per
cent, per annum, from that day until the purchase shall be completed, and shall from the same day be entitled to the rents and profits of the lot or lots purchased by him; all
out-goings payable by the landlord up to the said day
of , will be discharged by the vendor (b).
ditaments. The auctioneer is bound to pay the duty and may deduct it from the purchase-money he receives, or recover it from the vendor. (1 Sugd. V. & P. 13,18). But the vendor is at liberty to stipulate that the whole or any part of the duty shall be paid by the purchaser; and if such stipulation be made, and the purchaser refuse to pay the duty when demanded by the auctioneer, the statute declares his bidding to be altogether void. (1 Sugd. V. & P. 44). But it has been decided that the bidding is made void only at the option of the vendor, and that the statute does not enable a purchaser to rescind the contract by making default in payment of the duty. (Malim v. Freeman, 4 Bing. N. C. 395). The duty attaches only on the money actually payable to the vendor, and not on such part of the consideration as may be retained by the purchaser to meet incumbrances. (Rex v. Sedgwick, 2 Cro. Mee. & Ros. 603). If the vendor fail in making out his title, no auction duty is payable by the purchaser; (Jones v.Nanney, 13 Price, 76; M'Cleland, 25); and he may recover any that he has paid. (Cane v. Baldwin, 1 Stark. 65; Berry v. Armistead, 2 Keen, 227).
Sales made under a decree of a court of equity, or by a sheriff, or the assignees of a bankrupt, or for redemption of the land-tax, and for some other purposes, are exempt from auction duty. (1 Sugd. V. & P. 13). And if the estate of a bankrupt be in mortgage, and be sold by order of his assignees without the concurrence of the mortgagee, no duty is payable; but if the mortgagee concurs in the sale, or makes a sale himself under Lord Kosslyn's order, whether or not the duty is payable, is a point at present undetermined. (1 Sugd. V. & P. 14, et seq.)
(6) See ante, page 30, note (g). The condition in the text applies to Interest, a property in tenancy; if the estate be in hand, the condition should be, that, from the same day, the purchaser shall be entitled to the possession, and the words "by the landlord" should be omitted. It is sometimes stipulated, when the estate is in hand, that the purchaser shall, from the day
TO AUCTION DUTY, INTEREST, &C
Conditions As III. That within seven days after each deposit shall be Duty^nter- paid, Mr. A. B., [the auctioneer], shall lay out the reEst, &<=• mainder (after deducting his commission) of the same in the purchase of exchequer bills; and such exchequer bills, if paid off, shall be replaced by other like bills; and the said exchequer bills shall be deposited at the banking-house of the said Mr. A. B., until the purchase shall be completed or abandoned. And if any purchaser cannot be compelled to complete his purchase, and shall be enabled at law to recover his deposit, the exchequer bills in which such deposit, after deducting the auctioneer's commission as aforesaid, shall then be invested, together with the interest, (if any), which may have been received or become due for or upon the same bills, or for or upon the bills in lieu of which the same may have been taken or purchased, and together with the amount of the said commission of the auctioneer, shall be accepted by the purchaser in full satisfaction of all claims for his deposit and the interest thereon, and all expenses of investigating the title or otherwise (c).
IV. That each purchaser shall take all tenant's fixtures (d) belonging to his lot or lots, and pay for the same
fixed for completion, be entitled
"to receive from the vendor an occupation rent for the lot or lots purchased by him, the amount of such rent, and all questions relative thereto, to be settled by two referees or their umpire, such refeeees and umpire to be appointed in the same manner, and to have the same powers as the referees and umpire mentioned in the condition."
(c) This condition is extremely unusual, and is only adapted to purchases of large amount. Its object is, to free the vendor from the loss of interest, and from loss by depreciation in the investment of the deposits. The form in the text does not provide for the destination of the exchequer bills, in case the purchase be completed, but assumes that the vendor is to accept them as the deposit. Exchequer bills form the best fund for investment, because they are liable only to trifling fluctuations in value; but the condition (if need be), can readily be adapted to providing for investment in other securities.
Fixtures. (<0 The condition in the text is confined to tenant's fixtures; but the
Investment of deposit