Page images
PDF
EPUB

was guaranteed at five guineas per cent. ; it appeared that the ven- CONDITIONS dor had, shortly before the sale, insured the life at a rate less than five AS TO REVER

SIONS, &c. guineas, but considerably higher than that paid for a healthy life. Sa Under these circumstances, a bill for a specific performance against the purchaser, was dismissed with costs, on the ground of the misrepresentation by the vendors. (Brealey v. Collins, 1 You. 317).

If the policy offered for sale be of an assurance not on the life of the assured, but on that of some other party, the vendor should be ready with evidence, that the person who effected the assurance, had an assurable interest, within the meaning of the statute 14 Geo. 3, c. 48, in the life of the assured, and that such interest is subsisting at the time of the sale. It has, however, been held at Nisi Prius, that although, on a sale by auction of a policy of this nature, the particular did not mention that the vendor had only a redeemable interest in the life of the party assured, and the interest was afterwards redeemed, still the sale was valid, inasmuch as it appeared that it was the practice of the assurance office to pay the sums secured by such policies, without inquiring into the continuance of the interest. (Barber v. Morris, 1 Moo. & Rob. 62). There were, however, some special circumstances in the case; and it is doubtful whether the decision can be relied on as an authority in similar cases. In a recent case, A. insured his own life, and eight years afterwards assigned the policy to B. for a nominal consideration; the policy was then sold under a decree in a suit against the executors of B., and was assigned to C., the purchaser. On a sale by the executors of C., the intended purchaser objected that the policy, after the first assignment, became toid for want of interest in the assignee; but it was held by the Court, that the case was not within the meaning of the above statute, and that the purchaser was entitled to bring an action on the policy in the name of the assured. (Ashley v. Ashley, 3 Sim. 149). But if a creditor insures his debtor's life, and the debt is afterwards paid by the executors of the debtor, the creditor cannot recover against the assurers. (Godsall v. Boldero, 9 East, 72).

It has been decided, that the interest required by the statute is a pecuniary interest, and that the consideration of blood, (as in the caso of a policy effected by a father on the life of his son), is not sufficient. (Halford v. Kymer, 10 B. & C. 724). A policy on a person's own life is, in all cases, vitiated by his execution for felony. (Amicable Society v. Bolland,.4 Bligh, N. S. 104; S. C. 2 Dow & Clark, 1).

CONDITIONS OF
SALE UNDER A

DECREE.

CONDITIONS of Sale under a Decree of

the Court of CHANCERY.

CONDITIONS I. and II. See Common Conditions of
Sale of Freehold or Copyhold Estate, page 29 (a).

III. That every purchaser shall, on or before the —
day of — , pay into the Bank of England, with the privity
of the Accountant-General of the Court of Chancery, to
be placed to the credit of the cause, A. B. v. C. D., the
amount (6) of his purchase-money; [and also the sum of

Sales under a (a) The first of these conditions is usually omitted on sales under decree of a a decree, as the mode of sale is prescribed by the practice of the court; court of equity. (1 Sugd. V. & P. 56); and the highest bidder is not the purchaser

till he is reported to be so by the Master. Ample information with
regard to the proceedings on such sales will be found in 1 Sugd. V. &
P. ch. 2. It may be observed, in addition to the statements there
made, that if an estate be insolvent, and it be desirable to avoid the
expense of sending the Master's clerk into the country, a sale may be
made by an auctioneer in the country to be approved by the Master.
(Thompson v. Hodgson, 2 You. & Col. 311). And it seems, that
although, if a purchaser re-sell at a profit before his purchase is con-
firmed, the estate and not the purchaser is entitled to such profit;
(1 Sugd. V. & P. 57; Hodder v. Ruffin, 1 Tamlyn, 341); yet that
this rule does not apply to a purchase from a purchaser from the as-
signees of a bankrupt. (Ex parte Anderdon, 1 Dea. 585).

Peculiarities of conditions of sale under a decree.

(6) A sale before a Master is not within the statute of frauds; (Attorney-General v. Day, 1 Ves. 218); but the bidders are required to sign the particular. (See 1 Sugd. V. & P. 56). It is very usual to dispense with the payment of a deposit on sales which are made under the decree of a Court of Equity; probably from the facilities which exist in such cases for compelling purchasers to complete their purchases. (See 1 Sugd. V. & P. 60). However, there is no objection to stipulating for the payment of a deposit, if the owners prefer such a course; and in that case the payment of the deposit and the investment of it will be governed by the same rules as in other cases; (1 Sugd. V. & P.57); and the previous forms of conditions relating to the deposit will be applicable. The conditions in the text must then be made to

SALE UNDER A

DECREE.

money at which the timber, and timber-like trees, pollards, CONDITIONS OP and saplings, standing upon the lot or lots purchased by $ him, shall be valued, according to Condition - ] (c); together with interest, after the rate of £4 per cent. per annum, upon such amount (and sum respectively), from the 29th day of September, 1837, up to the day on which the same (respectively) shall be so paid in; and every purchaser shall be entitled to the possession of his lot, or to the receipt of the rents and profits thereof, from the said 29th day of September, up to which time all outgoings will be cleared by the vendor. If, from any cause whatever, such purchase-money, [or the value of such timber and trees,] shall not be so paid in on the said — day of the purchaser shall pay interest thereon, [respectively,) at the rate aforesaid, from the said 29th day of September up to the day of payment (d).

IV. That, within — days from the day of the sale, the owners of the estate shall, at their own expense, deliver to every purchaser, or his solicitor, an abstract of the title of the owners to the lot or lots so purchased by him respectively.

V. That upon payment of the purchase-money, and the

speak of the remainder instead of the whole amount of the purchase money.

(c) The words in brackets will, of course, be omitted, if inapplicable; or will, (if need be), be altered to meet the case of fixtures or other things which are to be taken at a valuation.

(d) A purchaser under a decree is entitled to be let into possession of the estate from the quarter-day preceding his purchase, paying his money before the following quarter-day, except in the case of a colliery or other trade in which the profits are settled at different intervals. (1 Sugd. V. & P. 61).

If the title prove bad, the purchaser will be entitled to have the costs Costs of invesof and consequent upon his having become purchaser, and of the re- tigating title, ference, and of investigating the title, paid out of the fund in court, if

&c. is bad. there be one; (Reynolds v. Blake, 2 Sim. & Stu. 117; Att.-Gen. v. Corporation of Newark, 8 Sim. 71); and if there be no fund in court by the plaintiff in the suit. (Smith v. Nelson, 2 Sim. & Stu. 557; Berry v. Johnson, 2 You. & Col. 564).

SALB UNDER A

DECREL.

CONDITIONS OR value of the timber and trees, as aforesaid, at the time and

in manner above mentioned, all necessary parties shall execute proper conveyances to the respective purchasers' of the several lots purchased by them respectively; but such conveyances are to be prepared by and at the expense of the respective purchasers; and are to be tendered or left by them on the said day of , at the office of the said Master, for execution by the necessary parties.

VI. That the purchaser of the largest part in value of any lots held partially or wholly under the same title, shall, after the sale of all the said lots, be entitled to the custody of such of the muniments of title relating thereto, as are in the possession of the owners of the estate; but such purchaser shall enter into the usual covenants with the purchasers of the remainder of the said lots, for the production and furnishing copies of the said muniments, such covenants to be prepared by and at the expense of the covenantees; until the whole of the said lots shall be sold, the said muniments shall remain in the office of the said Master.

VII. That if any mistake be made in the description of the property, or any other error whatever shall appear in the particulars of sale, such mistake or error, (if capable of compensation), shall not annul the sale, but a compensation, to be settled by the Master, shall be allowed or given by the owners or the purchaser, as the case may require.

VIII. That if any of the purchasers shall neglect or fail to comply with the above conditions, the lots purchased by the person so neglecting or failing, shall (if the said Master shall think fit,) be resold, either by public auction or private contract, at such time and place, subject to such conditions, and in such manner in every respect, as the said Master shall deem meet; 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 in manner mentioned in the third condition, by the defaulter at this present sale; and in case of nonpayment, the whole, or such part of the same as shall not be paid, shall be recoverable as and for liquidated damages.

hey shalla second cy in

CONDITIONS of Sale by Trustees, Mort- conditions
GAGEES, and AssignEES (a).

OF SALE
BY TRUSTEES.

THAT, as the vendors are [trustees, &c., as the case may be], the purchaser shall not be entitled to any other cove

on sald

(a) The law with regard to sales by assignees of a bankrupt, will Sales by as. be found stated in Arch. Bank. Law, p. 223. (See, too, the cases of signees. Ex parte Bradstock, 1 Dea. 272; Ex parte Alexander, 1 Dea. 273; Er parte Brown, 2 Dea. 479). The manner in which the property of an insolvent is to be sold, is prescribed in the late statute, 1 & 2 Vict. c. 110, 8. 47.

If the vendors are trustees or mortgagees with a power of sale, or as- As to covesignees of a bankrupt or insolvent, or sell in any other capacity than that nants for title of persons entitled to the whole beneficial interest, the fact should be

trustees, &c. stated in the conditions of sale, with a notification that the purchasers are not to have the ordinary covenants for title. It is probable, however, that, even in the absence of such a condition, the purchaser could not refuse to complete his purchase on the ground that he could not have proper covenants for title; (see ante, page 32, n. (k); but it is best to prevent any dispute on the matter. The other necessary conditions will be taken from the preceding forms.

It must be observed, however, that trustees and the like are not at Power of trusliberty to sell subject to any conditions of sale they may choose; they

moy choose they tees, &c. to sell,

? subject to spemust be prepared to shew both to the purchasers and to their own cestui cial conditions. que trusts, that every stipulation inserted in the conditions is justified by the circumstances of the case, (that is to say), that every stipulation is intended to guard against a particular defect in the title, or in the property, which defect they have ascertained to exist, and have no reasonable means of remedying. For instance, it is obviously a breach of trust, for trustees to stipulate on a sale, that recitals in deeds twenty years old shall be conclusive evidence of the facts recited, if proper evidence of those facts can be procured at a small expense of money and trouble. So it is likewise a breach of trust to stipulate that the title shall commence at a period less than sixty years before the date of the sale, if the earlier muniments are in the possession of the vendors, or could be produced by reasonable diligence. So, also, it is a breach of trust to stipulate that any indefinite expenses of making out the title or otherwise, which ought to be borne by the vendor, shall be paid by the purchaser. And the reason why these

« PreviousContinue »