30

WHEN POSSESSION MAY BE TAKEN.

might lose the property after you had paid for it. There are some acts against which no relief can be obtained ; for example, the tenant's neglect to insure, or his insuring in an office, or in names not authorised by his lease; and you should not rely upon the mere fact that the insurance is correct at the time of sale: there may have been a prior breach of covenant, and the landlord may not have waived his right of entry for the forfeiture.

Where difficulties arise in making out a good title, you should not take possession of the estate until every obstacle is removed. Purchasers frequently take this step, under an impression that it gives them an advantage over the vendor, but this is a false notion: such a measure would, in some cases, be deemed an acceptance of the title. If, however, the objections to the title can be remedied, and you should be desirous to accept possession of the estate, you may in most cases venture to do so, provided the seller will sign a memorandum importing that your taking possession shall not be deemed a waiver of the objections to the title. And although it is not advisable to do so, yet you may, with the concurrence of the seller, safely take possession of the estate at the time the contract is entered into; because you cannot be held to have waived objections of which you were not aware; and if ultimately the purchase cannot be completed, on account of objections to the title, you will not be bound to pay any rent for the estate, unless it is provided for by the contract. When you sell you should keep this in view.

THE AUCTION-ROOM.

31

LETTER VI.

I HAVE not yet dismissed you from your character as a purchaser; but now that you have, according to my suggestions, viewed the property you wish to purchase, and inquired into the nature of the leases, or if it be a leasehold estate, into the liabilities of the lessee or assignee, and carefully considered the conditions of sale, you may venture into the auction-room. If a man is about to buy an estate by private contract, he generally takes all proper precautions, and pertinaciously objects to any unusual stipulations in the contract on the part of the seller; yet he walks confidently into an auctionroom, and often bids for an estate which he has not seen, and upon conditions which he has not read, or if he have read, has not understood them. It has been gravely doubted whether one man is influenced by the biddings of another few men who have attended auctions will entertain this doubt. Not only are we influenced by the biddings of others, as evidence that they are willing to give the price they bid, but every bidding in advance on our own removes our chance as the last bidder. spirit of competition, besides, animates most men. An advance bidding is an opposition to our own desire openly expressed, to become the purchaser. Before, therefore, you enter the auction-room, make up your mind as to price, and do not be led away by the persuasions of the auctioneer, who is the agent of the seller, or the biddings of others. Bear in mind, too, that puffers may be amongst the bidders, although you may

The

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32

COUNTERMAND OF BIDDING.

not be able to ascertain the fact, and that the seller is at liberty to privately appoint one bidder, to prevent the property from being sold below his price. You cannot therefore obtain it for less, although you may be induced to buy it, contrary to your sober calculations, at a higher price. It is rarely that an estate is put up by auction fairly to be sold for what it will fetch. Notwithstanding the hammer has fallen, we constantly see announcements that the property was not sold at the auction, and that the auctioneers are authorised to treat for the sale of it by private contract.

The auctioneer is of course the seller's agent, pending the completion of the sale by auction, and what you would probably not conjecture, he becomes, by your bidding, also your agent at the sale; so that by putting down as you proceed with your biddings, your name, and the sum you bid, and connecting them with the description of the estate, &c. in the conditions, he can bind you to the sale.

If you repent of your bidding, you may countermand your bidding at any time before the lot is actually knocked down; 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. 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 was knocked down, he would be bound by his offer, and the vendor would not, which can never be allowed.

You need only look at the particulars and conditions. An auctioneer cannot contradict them at the time of sale by a verbal statement; although, perhaps, you would be bound, if he could bring home to you particular personal information of it. What is termed the

BABBLE OF AUCTION-ROOM.

33

babble of the auction-room goes for nothing. So the auctioneer cannot, by reading a lease at the auction, bind the purchaser to misdescriptions in the particulars. A mere general statement to the company will not affect you, either at law or in equity. I need not suggest to you how far a man may, consistently with good faith, take advantage of the omission in the particulars, if he distinctly understood the verbal statement at the sale.

When the sale is concluded, if you are the purchaser, you will be called up by the auctioneer and required to sign a short agreement already prepared at the end of the particulars and conditions of sale. But usually the auctioneer does not offer to sign a reciprocal agreement as the agent of the seller. You should not sign unless a like contract is signed and delivered to you by the auctioneer.

I have already informed you, that if your agent bid more for the estate than you empowered him to do, he himself would be liable, but you would not. But unless you expressly limited him as to price, it seems that you would be bound.

If after employing a man to bid, you should be so dishonest as to deny the authority (in seeking instruction you must not quarrel with your master's mode of conveying it), the agent, unless he could prove the commission, would be compelled to complete the purchase himself; but he would afterwards be able to put you to your oath as to the transaction; and if you admitted, or he could prove the authority, you would be compelled to take the estate at the sum which you authorised him to bid for it. I need not tell you, that by falsely denying the authority, you would incur the penalty attached to the commission of perjury. On the other hand, if you

C

34

PURCHASE BY AGENT.

merely employ a man by parol, that is, by word of mouth, to buy an estate for you, although he buy it accordingly, yet if he hold himself out as the real purchaser, and no part of the purchase-money was paid by you, you cannot compel him to convey the estate to you, because that would be directly against the provisions of an Act of Parliament, called the Statute of Frauds (29 Charles II., chap. 3), which requires a writing in such And although the man should afterwards be convicted of perjury in denying the trust, yet that will not enable equity to compel him to convey the estate to you; but you would be a competent witness to prove the perjury. You would therefore have at least the satisfaction of making an example of him.

cases.

The vendor cannot object that your agent purchased in his own name, whereas he is a trustee for you; for it happens in a vast proportion of cases that the contract is entered into in the name of a trustee; and the mere fact of a quarrel having taken place between the seller and you, totally unconnected with the subject of the contract, or even a bare refusal by the seller to deal with you, is not a sufficient ground for his refusing to convey to you.

But if you applied to purchase the estate, and the owner expressly refused to treat with you unless the money was paid down, which you were unable to pay, and then you procured some other person to purchase. the estate on your account, it seems clear, that at least. the purchase-money must be ready at the very day appointed. So if you should apply to Mr Bigg, to sell you an estate on behalf of Tompson, for whom, as we know, he has a great affection, and Bigg should on that account be induced to take less for the estate than he otherwise would have done, or even, perhaps, without this circum