Strong v. S., 4 Jur. N. S. 942; 6 W. R. 455; and see the V. & P. Act, 1874, 8. 2 (4).

If the deeds are in Court they may be ordered to be delivered out to the vendor for the purpose of completion: Lee v. Flood, V.-C. S., at Chambers, 7 Jan. 1853; or the purchaser may apply by summons at Chambers for delivery to him of such as he is entitled to; or, with consent of all parties, by petition of course: see Dan. 896.

SUBSTITUTING PURCHASER.

Either before or after the certificate has become binding, the Court will discharge the purchaser and substitute another, upon the latter first bringing in the purchase-money: Miller v. Smith, 6 Ha. 609. If the sub-sale was at a profit and before certificate, the advanced and not the original price must formerly have been brought in: Hodder v. Ruffin, Tam. 341. If the sub-sale was after certificate, any increased price belonged to the original purchaser, who from that period has been regarded in Equity as the owner: Dewell v. Tufnell, 1 K. & J. 324; Sugd. V. & P. 100.

The order to substitute is made on application by summons. The original and sub-purchaser must either join as applicants, or appear and consent; and before the certificate has become binding, the order will not be made when neither the vendor nor the original purchaser consent. The application, without such consent, of a sub-purchaser before the certificate became binding was refused, and a resale directed, upon an undertaking by the original purchaser to bid at the resale the advanced price: Re Goodwin's Estate, 1 N. R. 46; 8 Jur. N. S. 1173.

If the subsale took place before the certificate had become binding, the application must formerly have been supported by an affidavit of no collusion or under bargain: Rigby v. M'Namara, Vale v. Davenport, 6 Ves, 515, 615; and see Holroyd v. Wyatt, 2 Coll. 327; 9 Jur. 1072; or disclosing the terms of the under-bargain, if any. Such affidavit is not, however, since the Sales by Auction Act, 1867, in practice required at Chambers, even when the application to substitute is made before the certificate has been signed and approved: and see Dart, V. & P. 1334. But whether the present practice so affects the purchaser's position between the contract and certificate as to give him all the rights and liabilities of equitable owner seems doubtful; and it is submitted that, having regard to the preamble of sect. 7 of the Act, that section was directed to protecting the bidder from the risk of losing his bargain between contract and certificate, and does not so change his position as to give him complete ownership for all purposes from the date of the contract.

The order to substitute has been made when the original purchaser, after agreeing to sell the lots of which his purchase had been confirmed, died, his heir being abroad: Pearce v. P., 7 Sim. 138.

SECTION III.-DISCHARGE OF PURCHASER-RESALE.

1. Purchaser discharged on his Application-Repayment of

Deposit-Costs.

the person by

UPON the application by summons dated &c., of A., the Master's certificate dated &c. certified to be [or by the order dated &c. allowed] the purchaser of (the hereditaments comprised in Lot —, part of) the estates directed to be sold by the order dated &c., and upon hearing &c., and upon reading &c., Let the said A. be discharged

from being such purchaser; And it being agreed between the parties that the deposit paid by the said A. is now represented by £- New Consols, part of the £- New Consols in Court &c., and that the dividend that accrued thereon in Oct. last is now represented by £New Consols, further part of the said £- New Consols, Let the fund in Court be dealt with as directed in the schedule hereto; And Let the costs, charges, and expenses of the said A., occasioned by his bidding for [or entering into the conditional contract in the said order dated &c. mentioned], and being allowed the purchaser of the said estates (hereditaments), and of and incident to this application, be taxed &c.— [Add Payment Schedule directing transfer of part of stock to A. with interest at 4 p. c. on deposit, and for payment of costs, "without prejudice to the question out of what fund the said costs shall be ultimately borne."]-See Powell v. P., V.-C. B., 20 Feb. 1875, B. 532, 19 Eq. 422; 10 Ch. 130.

For forms of application, see D. C. F. 672, 673.

2. Order on Purchaser to complete-In default Resale-Purchaser to make good Deficiency, with Costs.

LET the costs of the Plt of (the application for the order dated &c., former order to pay in, if any, and of) this application, be taxed &c. and be paid by B., the person by the Master's certificate dated &c. certified to be [or by the order dated &c. allowed] the purchaser of the (hereditaments comprised in Lot -, part of the) estate sold under the judgment [or order] dated &c., to the Plt A.-Direction to pay in purchase-money, with consequent directions [Form 2, p. 345]; But in default of the said B. lodging the said sum of £- and interest in Court by the time aforesaid, Let the said estate (hereditaments) be resold with the approbation of the Judge; And in case no purchaser shall be found for the same at such resale, or in case the same shall be sold for less than the sum of £-, Let the said B., within (eight days) after service of the Master's certificate of the result of such resale, lodge the said sum of £-, in case the said estate (hereditaments) shall not be resold, or the difference between the said £— and the amount for which the said estate (hereditaments) shall be so resold, in case the same shall be resold for less than £- (the amount to be lodged to be certified), in Court &c.; And Let the said B. pay to the Plt A. his costs and expenses occasioned by such default as aforesaid, to be taxed &c.-[Add Lodgment Schedule, Form No. 3.]-See Parramore v. Greenslade, V.-C. W., 1 June, 1848, B. 1196; Alchin v. Rogers, V.-C. S., 27 March, 1871, A. 875.

For form of application for resale, see D. C. F. 672.

For order to resell at not less than former bidding, and, if the estate shall not be resold, for the original purchaser to pay in his purchase-money, see Walond v. W., M. R., 14 Nov. 1844, B. 224.

For order for payment in of purchase-money, and in default a resale, without prejudice to the liability of the purchaser to make good any deficiency in the price and all costs and expenses occasioned by his default, see Hanne v. Watts, V.-C. M. at Chambers, 22 Nov. 1877, A. 3426,

3. Purchaser having accepted Title-Resale in Default of Payment of Purchase-money.

UPON the application of the Plt &c., and upon hearing the solrs for the Applicant and A. B. the purchaser; And the said A. B. declaring himself content with the title, &c. Usual directions for payment in of purchase-money and for conveyance: And Let, in default of A. B. lodging the said £- in Court by the time aforesaid, the said hereditaments be resold with the approbation of the Judge, And in case no purchaser shall be found for the same at such resale, or in case the same shall be sold for less than the said £-, Let the said A. B. within eight days after service of the Master's certificate of the result of such resale lodge in Court &c., the said £- in case the said hereditaments shall not be resold or the difference between the said £ and the amount for which the said hereditaments shall be so resold in case the same shall be resold for less than the said £—, the amount to be lodged to be certified. And Let A. B. pay to the Plt his costs and expenses occasioned by such default as aforesaid to be taxed &c.-[Add Lodgment Schedule, Form No. 3, p. 206, sup.]— See Johnson v. Mosley, V.-C. H., 15 Jan. 1879, A. 391.

4. Order, on Vendor's Application, rescinding Contract and
forfeiting Deposit.

"UPON the application of the Deft F. N. &c. (vendor); Let the contract dated &c. entered into by the Deft F. N., and A., B., and C., the purchasers (on behalf of a company afterwards in liquidation) for the sale of the leasehold colliery &c., fixed and loose plant, machinery, and other effects, be rescinded; And Let the deposit paid by the said purchasers be forfeited, but this order is to be without prejudice to the directions contained in the order dated &c. as to the costs thereby directed to be taxed and paid by the said purchasers."-Costs of the Plts and the Defts, and the official liquidators, of this application to be costs in the action. "And the summons, so far as it seeks that the said leasehold colliery, fixed and loose plant &c. might be resold, or dealt with as the Judge might direct, stands over."-Nowell v. N., V.-C. H., at Chambers, 13 March, 1877, B. 1492.

5. Bankrupt Purchaser-Resale-Forfeiture of Deposit. "AND the said E. as (the trustee) of C. (the purchaser) declining to elect to complete the purchase of the estate and premises comprised in Lots &c., of which the said C. has been allowed the purchaser, Let the sum of £—, being the amount paid by the said C. as a deposit on his bidding, or the New Consols now representing the same, be forfeited, and disallow the said C. as the purchaser thereof; And Let the premises comprised in the said lots be resold with the approbation of the Judge."--Depree v. Bedborough, V.-C. S., 4 Dec. 1863, A. 2370; 4 Giff. 479.

NOTES.

DISCHARGE OF PURCHASER.

A purchaser under a judgment, if upon inquiry the title is certified to be bad, may apply by summons, served upon the parties to the action, to be discharged from being such purchaser, and that his costs, charges, and expenses occasioned by his bidding for, and being allowed the purchaser, and of the application, may be taxed and paid: see D. C. F. 673; and unless precluded by the conditions he will be entitled, on being discharged, to his costs, charges, and expenses (including those of investigating the title: see Barton v. Downes, 1 Flan. & K. 633; Re Hargreaves and Thompson, 32 Ch. D. 454, C. A.; Re Ebsworth and Tidy, 42 Ch. D. 23, C. A.; Re Bryant and Burningham, 44 Ch. D. 218, C. A.; Sugd. V. & P. 107) out of the fund in Court, if any: Reynolds v. Blake, 2 S. & S. 117; Calvert v. Godfrey, 6 Beav. 97; Perkins v. Ede, 16 Beav. 268; and if no fund in Court, from the Plt, without prejudice as to how they are to be ultimately borne: Smith v. Nelson, 2 S. & S. 557; Bury v. Johnson, 2 Y. & C. 564; but not in the first instance from a Deft having the conduct of the sale: Mullins v. Hussey, 1 Eq. 488.

He is also entitled to a return of any deposit, with interest at 41. p. c.: Re Hargreaves and Thompson, sup. ; Re Ebsworth and Tidy, sup.; Re Bryant and Barningham, sup. ; and, if the deposit has been invested, to receive the stock in which it has been invested and the dividends that have accrued thereon, or the actual sum deposited, and all dividends that have arisen from the investment: see Powell v. P., 19 Eq. 422; and as to return of deposit in cases of specific performance, and under the V. & P. Act, 1870, v. inf. Chap. L., SPECIFIC PERFORMANCE.”

Independently of the title being found bad on inquiry, a purchaser has been discharged where the contract is inequitable, on submitting to forfeit his deposit: Savile v. S., 1 P. W. 745; Gregg v. Glover, 1 Ir. Ch. 211; and also, in one instance, where by mistake he had given an unreasonable price: Morshead v. Frederick, Sugd. V. & P. 120.

A purchaser has been also discharged and his deposit returned when the vendors, knowing that the occupation was adverse, represented it as the occupation of their own tenant: Lachlan v. Reynolds, Kay, 52.

So also where, after acceptance of title and payment into Court, the purchaser discovered, from a will having been incorrectly abstracted, or from an undisclosed deed, that the title was bad: M'Culloch v. Gregory, 1 K. & J. 286; Ward v. Trathen, 14 Sim. 82; and also when the title has been rendered bad by the vendor's omission, after the day fixed for completion, to keep the property (leasehold) insured: Palmer v. Goren, 4 W. R. 688.

Inaccurate recitals, misleading conditions, or substantial misrepresentations as to the value or rental of the property will also entitle a purchaser to be discharged: Dimmock v. Hallett, 2 Ch. 21; Else v. E., 13 Eq. 196; and see Torrance v. Bolton, 8 Ch. 118; Bromage v. Davies, 4 Jur. N. S. 683; et inf. Chap. L., "SPECIFIC PERFORMANCE."

A purchaser insane at the time of his bidding has also been discharged, and a resale directed on the vendor's application: Blackbeard v. Lindigren, 1 Cox, 205.

а

The purchaser may also be discharged and the sale set aside when the judgment has been obtained fraudulently, or the purchase fraudulently effected: L. Bandon v. Becher, 9 Bli. N. S. 532; 3 Cl. & F. 479; Thornhill v. Glover, 3 D. & W. 195; Bowen v. Evans, 2 H. L. C. 257; 1 Jo. & Lat. 178.

A purchaser under a judgment who participates in, or is cognizant of, the fraud cannot avail himself of his purchase, which is a nullity; nor, semble, though innocent of the fraud, where it appears on the proceedings, or might have been ascertained on inquiry: see Gore v. Stacpoole, 1 Dow, 18, 30; Colclough v. Bolger, 4 Dow, 54; and see Sugd. V. & P. 110; Sugd. H. L. 679-721.

In the absence of fraud, and provided the Court had jurisdiction (from all parties interested being before the Court), mere irregularity in the proceedings did not operate to set aside the sale, nor affect the purchaser's title: see Lutwyche v. Winford, 2 Bro. C. C. 248; Bennett v. Hamill, 2 Sch. & Lef.

577; Colclough v. Sterum, 3 Bli. 181; Curtis v. Price, 12 Ves. 105; Lloyd v. Johnes, 9 Ves. 65; secus, where, as under the Partition Acts, the jurisdiction to sell depended upon the result of the inquiries directed, and the sale had been before certificate: Powell v. P., 19 Eq. 422; 10 Ch. 131; or where error in the judgment under which the purchase was directed had been shown: Lechmere v. Brasier, 2 J. & W. 287.

Now by the Conveyancing Act, 1881, s. 70, "an order of the Court under any statutory or other jurisdiction shall not, as against a purchaser, be invalidated on the ground of want of jurisdiction, or of want of any concurrence, consent, notice, or service, whether the purchaser has notice of any such want or not.' The section applies to leases, sales, &c., under the Settled Estates Act, 1877 (as to which, v. inf. Chap. XLV., "SETTLEMENT"), notwithstanding the exception in sect. 40, or under the former Acts repealed by the Act of 1877, and to all orders made before or after the commencement of the Act, except any previously set aside or determined to be invalid, or as to which proceedings impeaching it were then pending. This protection extends to any impropriety, even though apparent on the face of the order: Re Hall Dare's Contract, 21 Ch. D. 41, C. A.; and is good against puisne incumbrancers whose equitable interests are bound by the order for sale, but who are not parties to the proceedings: Mostyn v. M., (1893) 3 Ch. 376, C. A. (q. v., that conveyance in such case should be absolute without any qualifying words, and there should be a declaration that the puisne incumbrancers are bound by the order of the Court); and see Re Whitham, 84 L. T. 585; 49 W. R. 597; but will not give a good title to a purchaser where the Court, in making the order, erroneously supposed that it was dealing with a particular interest, ex. gr. that of a judgment debtor, whereas in truth the property belonged to a person not a party and not bound: Jones v. Barnett, (1900) 1 Ch. 370, C. A.; (1899) 1 Ch. 611.

And see Sherwood v. Beveridge, 3 D. & S. 425; Whitfield v. Lequentre, ib. 464, that the conduct of the purchaser, or the nature of the irregularity, may be such as to entitle him not to be at once discharged, but to a reference as to title..

RESALE.

It is provided by the general conditions (R. S. C. App. L. 15) that if the purchaser does not pay in his purchase-money in due course, and otherwise perform the conditions, an order may be made at Chambers for a resale, and for payment by him of any deficiency in the price thereat, and of all costs and expenses occasioned by such default.

Upon the purchaser making default in paying his purchase-money, the vendor may either obtain upon summons a simple order for payment into Court, which may be enforced by writ of sequestration: O. XLII, 4; or he may obtain an order for payment in, and in default a resale, and that the purchaser make good the deficiency, and the costs and expenses occasioned by such default.

In order, it seems, to preserve the remedy against a purchaser who does not complete, of making him liable for any deficiency of price, the order for resale does not direct the purchaser to be discharged: Harding v. H., 4 My. & C. 514; and until the resale takes place he may complete his contract upon payment of all costs occasioned by his default: Robertson v. Skelton, 13 Beav. 91; but where the purchaser is bankrupt, and unable on that ground to complete, an order may be obtained by the vendor rescinding the contract and forfeiting the deposit: see Nowell v. N., Depree v. Bedborough, Forms 4, 5, sup. p. 358; and see Powell v. Marshall, (1899) 1 Q. B. 710, C. A.

A purchaser under a judgment being, from subsequent bankruptcy, unable, and his assignees declining, to complete the purchase, the deposit was forfeited on a resale, but without any order against the bankrupt's estate to indemnify the vendors as to any deficiency: Depree v. Bedborough, 4 Giff. 479.