case, unless the objon or requon shl have been in the meantime withdrawn, the sale shl, at the expiron of the notice, be annulled, the pchaser being in that event entled to a return of the deposit, but witht intt, costs, or compenson (e). 17 (A). IF any error, misstatemt, or omission shd be dis- Compensacovered in the parlars [or plan], the same shl not annul the misdescripsale, but a reasble abatemt or compenson in respt thof [except tion (ƒ). as to the quantities, wch are believed, & shl be taken to be correct], shl be allowed or pd by the vendors or pchaser, as the case may be, regard being had to the amt of the pchasemoy, provd the same shl be demanded in writg, prior to [the time hby fixed for] complon of the pchase [for wch ppose time shl be deemed to be of the essence of the contract] (g), the amt to be fixed by the auctioneer, or, " by two referees; one to be appted by each pty, or their umpire, psuant to the Arbitron Act, 1889," whose decision shl be final. where no deposit. (e) If there is no deposit, say, " & the vendor shl not be liable to Variation pay to the pchaser any costs or compenson." The following is sometimes added, " & thrupon the contract & abstract & all docs delivered by either pty to the other shl be returned." As to compensation for errors (f) As to this condition, see Dart, V. & P. 150 et seq. It has been said (Dart, p. 158), on the authority of White v. Cuddon, 8 Cl. & Fin. 766, that trustees are not justified in allowing compensation for their own where errors; but that case hardly supports the proposition in so broad a form, vendors and the judgments in Dunn v. Flood, 28 Ch. D. 591 et seq, seem to show trustees. that it may in some cases even be necessary to insert it; the general practice is believed to be to insert such a condition without regard to the question whether the vendors are trustees or not, and there seems no reason against using it if convenient. The point is not affected by the Trustee Act, 1893, repealing, and by s. 14 re-enacting, the Trustee Act, 1888, s. 3, as that applies only to depreciatory conditions, which this is not (Hobson v. Bell, 2 Beav. 17). There is, of course, no objection, especially since the Act just mentioned, to the use of the condition 17 (c) excluding compensation, which is now more usual. For another form of condition as to compensation, see p. 283. As to what misdescriptions are covered by such a condition, see Re Terry, 32 Ch. D. 14; Re Fawcett, 42 Ch. D. 150; Re Aspinalls, 60 L. T. 595. As to the measure of compensation, see Re Chifferiel, 40 Ch. D. 45. As to the position of a mortgagee vendor who allows compensation for an error of description, see Tomlin v. Luce, 41 Ch. D. 573, varied 43 Ch. D. 191. (9) It is now settled, after some conflict of authority, that in the absence of these words the purchaser could obtain compensation after completion; Dart, 904; Palmer v. Johnson, 13 Q. B. D. 351; and see Clayton v. Leech, 41 Ch. D. 103. K.E.-VOL. I. R The same. 17 (B). IF any error or omission shl be found in the parlars, Short form. the same shl not annul the sale, but a reasble compenson (if The same, excluding the right to compen sation (a). Non-compliance with con ditions (b). demanded in writg bfe complon) shl be allowed or pd by the vendors or pchaser, as the case may be, to be settled by two referees, or their umpire, in the usual way. 17 (c). THE ppty is believed, & shl be taken to be correctly described as to quantity & orwise; & any error, misstatemt, or omission in the parlars [or plan] shl not annul the sale, or be a ground for any abatemt or compenson on eir side. 18. IF the [any] pchaser fail to comply with any of these condons, his deposit shl be absolutely forfeited, & the vendors shl be at liberty (witht being obliged to tender a convce) to resell the ppty [lot or lots sold to him], eir by public auction or private contract; & the deficiency (if any) arisg on such resale, & all expses attendg the same or any attempted resale, shl be made good & pd by the pchaser at the psnt sale as liquidated damages; & any increase of price on such resale shl belong to the vendors. Mem, p. 232. MEMORANDUM (c). III. GENERAL CONDITIONS on SALE by AUCTION of LEASEHOLDS. VARIATIONS for a Sale in LOTS, and adapted to different circumstances (d). 1. As to biddgs, &c., p. 229. 2. Valuon of fixtures, &c. See SPECIAL CONDONS, I., III. 4. Posson & intt, p. 233. (a) See as to this, Dart, 731 et seq.; Re Terry, 32 Ch. D. 14; Re Beyfus, 39 Ch. D. 110. (b) See Essex v. Daniell, L. R. 10 C. P. 538; Howe v. Smith, 27 Ch. D. 89; Soper v. Arnold, 35 Ch. D. 384; 37 Ch. D. 96; 14 App. Cas. 429. (c) See note, p. 232. (d) See the notes to the last Precedent, and the Preliminary note, p. 224, and see also SPECIAL CONDITIONS, III. 5. THE ppty [each lot] is sold subjt to the rents, covts, & Easements, condons of the lease [or underlease] by wch the same is held as &c. tenancies, stated in the parlars, & subjt also to all rights of way, water, drainage, light, & other easemts, if any, affectg the same, & to the underleases or agrmts with the sub-tenants or occupiers. 6. Purchaser to have notice of contents of lease, d'c. (e), see p. 230. 7. THE title to the ppty [each lot] shl commce with the lease Title. [or underlease] under wch the same is held as stated in the parlars & the pchaser shl not call for the prodon of or make any objon or requon resptg the lessors or prevs title although. the same may be recited or refd to, or he may orwise have notice thof but shall assume that such lease was well granted [and that any lease purportg to be grted in exercise of a power was in conformity with such power] (ƒ). [8. As to recitals being evidee, p. 236.] 9. Identity, p. 237. perform- 10. THE rect for the last rent accrued due prevsly to the Evidence of complon of the pchase in respt of the ppty [each lot] shl be accepted as conclusive evidce of the pformce of all the covts & covenants condons in the lease [or underlease] under wch the same is held [&, in the case of an underlease, of the paymt of all rent accrued due under, & the pformce or observce of all the covts & condons contd in, the superior lease], or of the effectual waiver of any breach of any covt or condon up to the complon of the pchase. [11. Expses, p. 237.] [12. Registron & stampg, p. 237.] 13. Convce & corts, pp. 237, 238. 14. THE pchaser [of each lot] shl covt to indemnify the Indemnity vendors [& the este of their testor] agst the rents & covts of against to vendors rent, &c. (e) See Reeve v. Berridge, 20 Q. B. D. 523; Re Davis & Cavey, 40 Ch. D. (h). 601; Cox v. Coventon, 31 Beav. 378. Midgler v. Smith, 1893, W. N. 120. Care should be taken not to misdescribe an underlease as a lease; see Re Beyfus, 39 Ch. D. 110. (f) As to the omission of this and the next condition under the V. & P. Act, 1874, s. 2 (2), and the Conv. Act, 1881, s. 3 (1, 4, 5), see above, p. 224. For other forms, see SPECIAL CONDITIONS, II. (9) As to the omission of this condition under the Conv. Act, 1881, s. 3 (4, 5), see above, p. 236. For other forms, see SPECIAL CONDITIONS, III. (h) The indemnity may be required although the vendor is only an As to assignee of the lease, as he or his testator may have entered into a similar indemnity the lease [under wch the same is held], & shl for that ppose, if required, exte & deliver to the vendors a duplicate of the assnmt to be prepared & stamped by & at the expse of the pchaser (a). 15. Custody of title deeds & acknmt as to prodon, de., if required, see SPECIAL CONDONS, XII. [16. Apportionmt of rents, &c., if necy, see SPECIAL CONDONS, VIII.] 17. Time for deliverg requons, &c., p. 239. 18. Compenson for misdescription, pp. 241, 242. 19. Non-compliance with condons, p. 242. Form of mem of contract, p. 232. Deposit. Removal. Completion. against rent, &c. 2. THE pchasers are when required to pay down immedly a deposit of 5s. in the pound, or such other sum as the auctioneer may name in pt paymt, each deposit to be applicable to any or all lots pchased, & to give their names & addresses when required, in default of wch the lot or lots so pchased to be at the disposal of the auctioneer. 3. No lot to be removed durg the progress of or on the days of sale. The lots to be taken away with all faults, imperfons & errors of every description at the pchaser's expse & risk, on the two days follg the last day's sale & the remr of the pchasemoy to be pd bfe delivery, the auctioneers not being respon covenant, and as it has been held that he remains liable to the lessor under the Apportionment Act, 1870, for an apportioned part of the current rent which becomes due after completion: Swansea Bank v. Thomas, 4 Ex. D. 94, a questionable decision. The provision may be omitted, as the purchaser is bound to give the covenant: Dart, V. & P. 629. (a) It is believed to be now usual to throw the expense of a duplicate of the conveyance (which is inconsiderable) on the purchaser. (b) No memorandum is required, as the contract becomes enforceable by the payment of the deposit (Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), 8. 4). An auctioneer's memorandum of contract of sale of moveable chattels is a bill of sale within the Act of 1878, if no part of the purchasemoney is paid, no earnest given, and no part of the goods is accepted and received by the purchaser, see the Sale of Goods Act, 1893 (supra): Re Roberts, 36 Ch. D. 196. sible for the correct description, genuineness or authenticity of or any default or defect in any lot; & make no warranty (c) whatever. In cases where one buyer pchases more than one lot the whole of the acct of the lots pchased is to be pd bfe any lot be delivered, & no allowce whatsr will be made for error in description or quantity, but the lots are to be cleared as shown at the sale. If from any cause the auctioneers shl be unable to deliver a lot, the deposit-moy (if any) shl be returned to the pchaser witht any compenson in respt of such non-delivery. 4. ALL lots left after the time specified will be liable to any expses that may arise from their not having been cleared in accordce with the 3rd condon. 5. THE рchasers to be ansble for all damage they may do to any lot or lots or to the premes in taking down or removg their respive lots. 6. UPON failure of complyg with the above condons the Non-commoy deposited shl be forfeited; the lots uncleared within the pliance. time afsd shl be resold eir by public auction or private contract & the deficiency (if any) at such second sale togr with all chges attendg the same, shl be made good by the defaulter or defaulters at this psnt sale & be recoverable as & for liquidated damages, but any surplus that may arise thfrom shl belong solely to the vendor. tions. 7. THE auctioneer reserves the rt of alterg the arrangemt Reservaof the lots by selling two or more lots as one lot or in any other way he may think pper; also of withdrawg any lot or lots & of alterg these condons at the time of sale. 8. No cheques taken. 9. THE auctioneer to be the sole arbitror in every mre of dispute. V. I. No pson to advce less than 5s. per acre at each biddg nor Biddings. The highest bidder to be the pchaser, & retract a biddg. (c) As to warranty, see Goodeve, P. P. 66. |