value (s), but they may all be comprised in one agree ment. The above observation in regard to the necessity of a written agreement, of course applies to sales by private contract (t); as indeed do all the foregoing observations, which do not in their nature apply exclusively to sales by auction. As agreements for sale of estates are generally entered into by the attornies of the parties, it may in this place be proper to observe, that where an attorney enters into an agreement on behalf of his principal, the agreement should be made and signed in the name of the principal by him, as attorney: for if an attorney covenant in his own name for himself, his heirs, &c. he will himself be personally bound, though he be described in the instrument as covenanting for, and on the part of his principal (u).' Where an estate is sold in lots, whether by public auction or private contract, the vendor should take attested copies of the parcels included in the different conveyances; in order to satisfy a cautious purchaser of any part of the estate, that no part of the estate bought by him, is included in any of the conveyances to the other purcha sers. It may here be observed, that if a man agree to get another so much for his estate, and actually provide a purchaser with whom the owner agrees for the sale of the property, at the sum stipulated, and a deposit is paid, the first agreement will be performed, although the purchaser cannot perform the agreement if (s) Emmerson v. Heelis, 2 Taunt. 38. (t) See post, ch. 3; see a form of an agreement, Appendix, No.6. (u) Appleton v. Binks, 5 East, 148; Kendray v. Hodgson, 5 Esp. the the seller let him off, and retain the deposit as a forfei ture (x). V. By a late act (y), the following duties are imposed upon every valuation or appraisement of any estate, or ef fects, real or personal: or of any interest therein, or of the annual value thereof; viz. where the amount does not exceed 50l. a duty of 2s. 6d.; where it exceeds 50l. but does not exceed 100l. a duty of 5s.; where it exceeds 1007. and does not exceed 2007. a duty of 10s.; where it exceeds 2007. and does not exceed 500l. a duty of 15s.; and where it exceeds 500l. a duty of 20s. (z) Horford v. Wilson, 1Taunt. 12. (y) 55 Geo. III. c. 184; see Lees v. Burrows, 12 East, 1. CHAP. lified. Here there was a clause inserted, providing that an error in the description of the premises should not vitiate the sale, but an allowance should be made for it. This he conceived was meant to guard against unintentional errors, not to compel the purchaser to complete the contract if he had been designedly misled. His Lordship therefore left it to the Jury, whether this was merely an erroneous statement, or the misdescription was wilfully introduced, to make the land appear more valuable from being in the neighbourhood of a borough town. In the former case, the contract remained in force, but in the latter case, the plaintiff was to be relieved from it, and was entitled to recover back his deposit. The plaintiff had a verdict, so that the Jury must have thought the misdescription fraudulent (h). A bidding at a sale by auction, may be countermanded at any time before the lot is actually knocked down (i) : because the assent of both parties is necessary to make the contract binding; that is signified, on the part of the seller, by knocking down the hammer. An auction is not unaptly called locus pœnitentiæ. Every bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to. If a bidding was binding on the bidder before the hammer is down, he would be bound by his offer, and the vendor would not, which can never be allowed. The countermand of a bidding would, in some cases, prove of the most serious consequences, and it might therefore be advisable to stipulate in the conditions of sale, that no persons shall retract their biddings. (h) Duke of Norfolk v. Worthy, 1 Camp. Ca. 337; see Fenton v. Brown, 14 Ves. Jun. 144; 1 Ves. and Bea. 377; Stewart v. Allis. ton, 1 Mer. 26. (i) Payne v. Cave, 3 Term Rep. 148. Although Although the duty is by the Acts imposed on the vendor, yet he is not restrained from making it a condition of sale, that the duty, or any certain portion thereof, shall be paid by the purchaser over and above the price bidden at the sale by auction; and in such case the auctioneer is required to demand payment of the duty from the purchaser, or such portion thereof as is payable by him under the condition; and, upon neglect or refusal to pay the same, such bidding is declared by the Acts to be null and void to all intents and purposes (k) (I). It is usual to make some provision respecting the payment of the auction duty, as that the vendor and purchaser shall pay it in equal moieties, and indeed, where the purchase-money is liable to the duty, a stipulation of this nature should never be omitted, unless the vendor intend to pay the whole duty himself. If the seller cannot make a title, the purchaser can recover from him the auction duty which he has paid (). The other provisions which ought to be inserted in conditions of sale, are so well known as not to require notice. IV. It frequently happens that estates advertised to be sold by auction, are sold by private contract, instead of being brought to the hammer, and the sale is not announced to the public till the day fixed for the auction, and even sometimes not till the auctioneer's appearance in the auction-room. Notice of an intended sale by auction (k) 17 Geo. III. c. 50. s. 8. See 7 Ves. Jun. 345. (1) Cane v.Baldwin, 1 Stark. 65. (I) This provision seems very objectionable. It might be contended, that if a purchaser disliked his bargain, his refusal to pay the auction duty would annul the sale, and throw the whole expense attending it on the vendor, whose estate would still remain unsold. If there be any founda tion CHAPTER II. OF SALES UNDER THE AUTHORITY OF THE COURTS OF EQUITY. SECTION I. Of the Proceedings from the Advertisements to the Conveyance. WE have already seen, that sales under the decrees of the Court of Chancery, or Exchequer, are not liable to the auction duty, and that public notice of a vendor's intention to bid for the estate is not necessary, where a single bidder is employed to prevent the estate from being sold at an under value; it follows, that no notice need be given previously to the sale of an estate under a decree, of the vendor's intention to buy-in the estate, if a particular price be not bid for it. At the same time it must be observed, that where a fraud is committed on the purchaser by puffing at the sale, it cannot be supported any more than a sale by auction under similar circumstances (~). Where an estate is directed to be sold before a master, the particulars of sale are prepared by the plaintiff's solicitor after they are allowed by the master, the advertisement for sale must be prepared, either by the plaintiff's solicitor, or by the master's clerk, and the signature of the master must be obtained to authorize the insertion of the advertisements in the Gazette. There are always two advertisements (a): in the first no time is appointed for the (z) Vide supra, p. 18. (a) 2 Fowl. Prac. 305. salc. |