SECT. 1. A condition is a quality annexed an estate, right, or Definition, interest, by which the same is created, enlarged, or defeated upon the happening of an uncertain event, Sheph. Touchst. 117. cedent. 2. Conditions are either precedent or subsequent. Where the con- Conditions predition must be performed before the estate can commence, it is a condition precedent; as if an estate be limited to A. upon his marriage with B., the marriage is a precedent condition, and until that happens, no estate vests in A., Show. P. C. 83; but where the effect of a condition is to defeat an estate already commenced, it is a condition sub- Condition subsequent; as where a lease is made on condition that the lessee shall sequent. pay to the lessor on such a day a certain sum,—here the condition is subsequent, and following the estate, and the performance thereof continues and preserves the same, Sheph. Touchst. Prest. Ed. 118. VOL. II. A B Conditions. Conditions by Operative 3. An express condition cannot be annexed to an estate but by deed. are, 4. The most apt words wherewith to make a condition in a deed Conditions in Deeds-see Index to Precedents. Particulars and CONDITIONS OF SALE. 2. Evidences of the Contract. Sale of Real Property. 3. Accuracy of the Conditions. 4. Construction of the Conditions. In case of unintentional Errors. 6. What Stipulations ought to be in- E. I. Company's Sales how regulated. As to production of Lessor's Title. Time of the Essence of the Contract. Months in the Computation to be 10. As to Title under an Exchange. 11. Condition as to Conveyances. 12. Condition as to Auction Duty. 15. Condition as to Forfeiture of De- SECT. 1. Particulars of sale, [see AUCTIONS, (PARTICULARS)] toge- sale the basis and the latter the terms on which it is to be sold. The terms of a there are some additional matters to be considered that are peculiar Conditions of to that mode of sale. Sale. the contract. 2. On sales of real property the conditions are usually made part Evidences of of the contract by an agreement in writing duly signed by the pur- sale of real pro chaser or his agent; but in order to make the conditions an evidence of the contract within the Statute of Frauds, it is necessary that there should be a reference to them: an entry therefore by an auctioneer, not referring to the conditions or particulars of sale, will not be sufficient, Ramsbottom v. Tunbridge, 2 M. & S. 434. perty. On the sale of goods, the conditions of sale annexed to the cata- Sale of goods. logue will evidence the terms of the contract; but they must be annexed or plainly referred to, or they will not be a sufficient memorandum to satisfy the 17th section of the Statute of Frauds, Kenworthy v. Schofield, 2 B. & C. 945: and the bare reading the conditions before the sale will not supply the defect, ib.: but the pasting up the conditions of sale on the auctioneer's box, as is usually done, has been held to be a sufficient notice to the buyer, Mesnard v. Aldridge, 3 Esp. 271. 3. Accuracy is as necessary in framing the conditions as in drawing Accuracy of the up the particulars of sale; for when they are reduced into writing conditions. they cannot be varied or explained by any verbal declaration made by the auctioneer at the time of the sale, Gunnis v. Erhart, 1 H. Bl. 289; Jones v. Edney, 3 Campb. 285; not even where a party has agreed to be bound by the conditions and such declarations made at the sale, Higginson v. Clores, 15 Ves. 505; and this rule prevails in equity as at law, Jenkinson v. Pepys, cited 6 Ves. 330; Buckmaster v. Harrop, 13 Ves. 471; as well in favour of the seller as the buyer, Powell v. Edmunds, 12 East, 6; and to a sub-sale as to an original sale, as where A. bought at a sale, after a verbal explanation given at the time, and then resold to B., who heard the explanation, this was held to be no more binding on B. than A., and therefore A. could not enforce the contract against B., Shelton v. Livius, 2 Cr. & J. 411; S. C. 2 Tyr. 420: but it seems that if a purchaser had notice of a mistake before the sale, such notice might be given in evidence against him, Gunnis v. Erhart, ub. sup. ; Ogilvie v. Foljambe, 3 Mer. 53; so it may be proved that the purchaser perused the original lease before the sale, Bradshaw v. Bennett, 5 C. & P. 48; and the particulars and conditions may be altered before the sale, Fife v. Clayton, 13 Ves. 546. 4. It is said that the judges, in construing conditions of sale, will Construction of endeavour to collect the meaning of the parties without incumbering the conditions. themselves with the technical meaning of words; as where the City Sale. Conditions of of London let an estate by auction, and by one of the conditions it was stipulated that the purchaser should pay a certain rent before the Meaning of the lease was granted, this word rent, though properly applying only word "rent." where the relation of landlord and tenant had commenced, was held to be a sum of money which should be paid, City of London v. Dias, Woodfall's L. & T. by Harrison and Wollaston, 301, 4th ed. Compensation clause. No protection against fraud. The most important stipulation in conditions of sale is that by which vendors endeavour to protect themselves against any misdescription, declaring that it shall not annul the sale, but that compensation shall be given,-a clause which is however no protection against fraudulent errors, Norfolk (Duke) v. Worthy, 1 Campb. 337; and so on a sale of goods, where a ship was sold "with all faults," the vendor was held bound to disclose a latent defect, known to himself, which it was impossible for the purchaser to discover, Mellish v. Motteux, 1 Peake, 115; recognized in Schneider v. Heath, 3 Campb. 506; but it has since been decided that if the vendor used no means to conceal the defect, he might avail himself of the stipulation, Bagle In case of unin- hole v. Walters, 3 Campb. 154. Where the error is unintentional, tentional errors. there appears to be "no definite rule to be drawn from the decided cases which should determine what misstatement or misdescription in the particulars should justify a rescinding the contract, and what should be the ground of compensation only," per Tindal, C. J., Flight v. Booth, 1 Bing. N. C. 370; S. C. 1 Scott, 190. In Wright v. Wilson, 1 Mood. & Rob. 207, it was held that, in the absence of fraud, however gross the negligence of the vendors, the purchaser must be bound by having bought an estate without looking at it; and in Mills v. Oddy, 6 C. & P. 728, where the description materially affected the value, it was held that, unless the jury thought the misdescription was wilful, a purchaser was not at liberty to rescind the contract. The better opinion, however, appears to be, "that where there is a pure mistake not prejudicing the purchaser, it is cured by the condition," per Best, C. J., Leach v. Mullett, 3 C. & P. 115. But where the misdescription is so material as not to be a subject of compensation, the purchaser shall be at liberty to rescind the contract altogether, as where the description was of other property than that intended to be sold, Robinson v. Musgrove, 2 Mood. & Rob. 92: so where, on the sale of a lease, part of the property described, which was an essential part, was not included in the lease, but was held from year to year, Dobell v. Hutchinson, 3 Ad. & Ell. 355: so where a lease, described as containing a restriction against carrying on any offensive trades, contained also a restriction against carrying on some trades not commonly included under the term |