money on the property would be considered guilty of negligence if he did not stipulate by express condition for the right to inspect the head lease (1).

Inquiries Aliunde.—It is, therefore, important that a purchaser should make inquiries aliunde as to the lessor's title; and it is submitted that if, as the result of his investigations, he discovers that the lessor's title is defective, or that the property is subject to' restrictive covenants, he will be entitled to rescind the contract and recover his deposit (m).

It is possible, however, for the vendor by an express condition to preclude the purchaser from objecting to defects in the lessor's title which he may have discovered aliunde (n).

Upon a sale of renewable leaseholds, it may be desirable to negative the right of the purchaser to call for any of the leases prior in date to the subsisting lease (o).

Production of Lease. On a sale by auction of leaseholds, it is usual to state in the particulars and conditions that the lease will be produced at the sale, and that it may be inspected previously, and stipulate that the purchaser shall be deemed to purchase with full notice of its contents, and the condition of the premises as regards repairs and all other matters. The obligation to make a good title.

(1) Imray v. Oakshette, [1897] 2 Q. B. 218.

(m) Shepherd v. Keatley (1834), 1 C. M. & R. 117.

() As to the effect of this, see ante, p. 296, and post, p. 373.

(0) Hodgkinson v. Cooper (1846), 9 Beav. 304.

to leaseholds is not apparently removed by the knowledge of the purchaser at the time of sale that the title is bad by reason of a breach of the covenant to repair (p).

Last Receipt for Rent.-The Conveyancing and Law of Property Act, 1881, s. 3 (4), (5), provides that, on production of a receipt for the last payment of rent due before completion of the purchase, it shall be assumed, unless the contrary appears, that all the covenants and provisions under the lease or underlease sold have been observed and performed up to the date of completion of the purchase.

This provision, however, does not apply to the case of a building lease at a peppercorn rent (q); and in such a case an express condition should be made that possession by the vendor up to the time of completion shall be conclusive evidence of the performance of the covenants.

The Conveyancing Act only makes the landlord's receipt primâ facie evidence, and it is open to the purchaser to prove that the covenants and conditions in the lease have not in fact been performed and observed up to the time for completion (r). Consequently, if there is any question of waiver of breaches of covenant by the lessee, an express condition is desirable, making the last receipt for rent conclusive evidence of waiver (s); although even in the absence

(p) Barnett v. Wheeler (1841), 7 M. & W. 364. Sed quære whether this is not confined to the case of an express bargain to make a good title. Cf. Cato v. Thompson (1882), 9 Q. B. D. 616; In re Allen and Driscoll, [1904] 2 Ch., at p. 231.

(a) In re Moody and Yates' Contract (1885), 30 Ch. D. 344. (r) In re Highett and Bird's Contract, [1903] 1 Ch. 287. (8) Cf. Laurie v. Lees (1880), 14 Ch. D. 249.

of express condition, a purchaser may be compelled to presume a waiver on sufficient evidence, e.g., where there has been uninterrupted user of the premises as a public-house for upwards of thirty years, with the knowledge of the lessor, in contravention of a covenant in the lease (t).

In the case of an ordinary lease, it sometimes happens that the last receipt for rent cannot be found, and in that case a similar stipulation in the conditions of sale will be necessary (u).

On the sale of an underlease, a receipt given to the underlessee by the ground landlord is not sufficient (x).

Where the title to the reversion is in dispute, it is desirable to stipulate that the person giving the last receipt for rent shall be deemed to be the person entitled to the rent reserved by the lease; but it must not be supposed that where a purchaser buys a lease, the vendor is bound to deduce the title of the reversioner for the purpose of showing exactly who is the person entitled to receive the rent (y).

SECTION 18.

SALES BY AUCTION.

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Varying Particulars. In the courts of law evidence of declarations made by auctioneers correcting or explaining the particulars were held to be

(t) Gibson v. Doeg (1857), 2 H. & N. 615; In re Summerson, [1900] 1 Ch. 112.

(u) Cf. Ringer to Thompson (1881), 51 L. J. Ch. 42.

(x) In re Higgins and Percival's Contract (1888), 57 L. J. Ch.

(y) Pegler v. White (1864), 33 Beav. 406.

wholly inadmissible (). This would seem to have been the rule even where it was established that the purchaser heard the statement (a). In courts of equity declarations by auctioneers were also held to be inadmissible if offered on behalf of the plaintiff (b); but such evidence was admitted if offered by the defendant resisting specific performance for the purpose of showing fraud, surprise, or mistake (c). If the purchaser has heard and understood a statement by the autioneer correcting a misdescription in the particulars it is submitted that it would be fraudulent for him to set up this misdescription as a ground for compensation (d). But where the purchaser did not hear the statement there can be no question of fraud, nor can the defence of surprise be put forward, since the vendor is author of the particulars.

Unilateral mistake, which is not in any way contributed to by the plaintiff, is not a good defence in equity except in rare cases where hardship amounting to injustice would be inflicted by enforcing specific performance. Consequently a declaration made by the auctioneer can only be admitted where the vendor is defendant, and on the ground of mistake involving hardship. In Manser v. Back (e)

(z) Powell v. Edmunds (1810), 12 East, 6.

(a) Jenkinson v. Pepys, cited 6 Ves. 330; 1 V. & B. 528; but see Gunnis v. Erhart (1789), 1 H. Bl. 289.

(b) Higginson v. Clowes (1808), 15 Ves. 516.

(c) Clowes v. Higginson (1813), 1 V. & B. 524.

(d) Ogilvie v. Foljambe (1817), 3 Mer. 65; Re Eduards to Sykes & Co. (1890), 62 L. T. 447.

(e) (1848), 6 Hare, 446.

the evidence was admitted on this ground, for if specific performance had been decreed in that case, in accordance with the particulars and without the auctioneer's correction, the adjoining property of the vendor would have been rendered inaccessible. This decision was followed by JOYCE, J., in Re Hare and O'More's Contract (f), although no special case of hardship was made out, and there was an express condition in favour of compensation. It must, therefore, be now taken as decided that a clear and distinct statement by an auctioneer at the time of sale verbally correcting a material misdescription in the particulars disentitles the purchaser to specific performance with compensation even if he does not hear the statement. The proper course when the vendor discovers a mistake in the particulars is to alter them in writing before the sale, or else to issue a second edition; but care should be taken that the alterations are brought to the notice of the purchaser before he signs the contract of sale (g).

Bidding at an Auction.-On a sale by auction the conditions usually state that the highest bidder shall be the purchaser, and stipulate that not less than a specified sum shall be advanced at each bidding, and that no bidding shall be retracted.

In the absence of a condition against a bidding being retracted, a bidder may, before the fall of the

(f) [1901] 1 Ch. 93.

(g) Goddard v. Jeffreys (1882), 51 L. J. Ch. 57; Morton v. Noys, July 13th, 1900: BRUCE, J.