CH. XI. s. 3. Sale of Land (Ordinarily expressed Conditions).

cannot avail himself of this condition to arbitrarily revoke the sale; there must be a reasonable ground for his unwillingness (u). And, speaking generally, in considering questions of this kind, a distinction is to be observed between cases in which by the conditions the vendor is not to be bound to produce evidence of a fact, and cases in which the fact is to be accepted by the vendee without question (x); it being held that, in the latter case, the vendee will be concluded by the conditions, unless they are such as can mislead him as to facts which are within the knowledge of the vendor; or where they require the vendee to assume, as the root of the vendor's title, that which he knows not to be the fact although he may have a perfectly good title on another ground (y).

Puffers, inva lidation of sale by employment of.

Sale of Land by Auction Act, 1867.

Sale" without reserve.

SECT. 4.-Sales by Auction.

The private employment by the vendor, of puffers at a sale by auction, was in law a fraud upon the purchaser, and would vitiate the sale. It was said, indeed, that in equity the employment by the vendor of one person to bid at a sale, in order to protect the property from being sold at an undervalue, was not fraud, although it was not notified (2). But at law it was held that, if a person were employed to bid, even with a view to save the auction duty, the sale was void, unless it was announced that there was a person bidding for the owner (a). And now, by the Sale of Land by Auction Act, 1867, 30 & 31 Vict. c. 48, s. 4, whenever a sale of land by auction would be invalid at law by the employment of a puffer, it is to be deemed invalid in equity also.

If the advertisements or particulars stated that the property would be sold without reserve, and there were any interference by the vendor, or by those coming in under him, to keep up the price, even a Court of Equity would not enforce the contract against the purchaser (b); and by sect. 5 of the Sale of Land by Auction Act,

(u) Dames and Wood, In re (1885), 29 Ch. D. 626, C. A., citing Mawson v. Fletcher (1870), L. R., 6 Ch. 91; and see too Duddell v. Simpson (1866), L. R., 2 Ch. 102.

(x) Per Baggallay, L.J., Best v. Hamand (1879), 12 Ch. D. 1, 10, C. A. ; and see In re Davis and Cavey (1888), 40 Ch. D. 601.

(y) Broad v. Munton (1879), 12 Ch. D. 131, C. A. ; and see per Cotton, L.J., ib. 149.

(z) See as to this, per Lord Cranworth, C., Mortimer v. Bell (1865), L. R., 1 Ch.

10, 14.

(a) Wheeler v. Collier (1827), Moo. & M. 123; Crowder v. Austin (1826), 3 Bing. 368; Rex v. Marsh (1829), 3 Y. & J. 331; and as to this and the old law, see 1 Parsons on Contract (Amer.), 6th ed., pp. 495 et seq., where the American law is stated.

(b) Per Lord Cottenham, C., Robinson v. Wall (1847), 11 Jur. 577; see also per Cur., Warlow v. Harrison (1858), 1 E. & E. 295, 316; Thornett v. Haines (1846), 15 M. & W. 367; Meadows v. Tanner (1820), 5 Madd. 34.

the particulars or conditions of sale shall state whether the land will be sold without reserve; and that if it is stated that the land will be sold without reserve, or to that effect, the seller may not employ any person to bid at such sale, or for the auctioneer to take, knowingly, any bidding from any such person.

But by sect. 6 it is enacted, that when any sale by auction of land is declared, either in the particulars or conditions of sale, to be subject to a right for the seller to bid, it shall be lawful for the seller, or any one person on his behalf, to bid at such auction, in such manner as he may think proper. The effect of these enactments is: first, that the particulars or conditions of sale must state whether there is a reserved price or not; and, secondly, that, if they do state that there is a reserved price, they must also state that a right to bid is reserved, otherwise it will not be lawful for the vendor to employ any person to bid on his behalf (c), and the right thereby reserved must be adhered to, for such a condition is to be construed strictly (d).

Fictitious bids by a mere stranger not the agent of vendor running up the price will not prevent the vendor obtaining specific performance against the purchaser who outbid such a person (e).

CH. XI. s. 4.

Sale of Land (by Auction).

Sale with

reserve of right to bid.

Effect of Sale

of Land by Auction Act.

Liability of

auctioneer for

breach of

sale.

Where an auctioneer puts up property for sale without disclosing his principal, and upon a condition that the sale shall be without reserve, he contracts with the highest bonâ fide bidder condition of that it shall be so; and if this contract be broken, such bidder has a right of action against the auctioneer (f). The common condition that the highest bidder shall be the purchaser gives a right of action against the vendor if it be broken, but this right of action is lost if the purchaser tender merely a cheque in payment of the deposit. In such a case the auctioneer may refuse the cheque and put the property up again (g).

auctioneer.

The auctioneer is agent for both seller and buyer, and can bind Authority of the buyer by signing a memorandum within the Statute of Frauds (h). But the implied authority ceases after the sale, and does not extend to the auctioneer's clerk (i), though such clerk may be expressly authorised by word or sign (k).

The auctioneer, if he receives the deposit (as he frequently Payment of does), receives it as a stakeholder for both parties to pay over to

deposit.

CH. XI. s. 4. one of them according to the event, but this rule does not apply to the case of a solicitor receiving the deposit as agent for the vendor, to whom he must pay it over on demand (1).

Sale of Land (by Auction).

l'urchase of

wrong lot by mistake.

A bidder purchasing a wrong lot solely by his own mistake will not be relieved from specific performance (m).

Contract must

signed by party to be charged.

SECT. 5.-The Statute of Frauds.

By the fourth section of the Statute of Frauds :—“No action be in writing shall be brought whereby to charge any person upon (see ante, p. 77) any contract or (n) sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised" (o).

What contracts are

within the

the statute, as creating an interest in

land.

(a) What Contracts within Statute.

An agreement to convey an equity of redemption in land is within the 4th section, and must be in writing; for a Court of

4th section of Equity treats the equity of redemption as the land itself, or at all events as an interest in land (p). So, an agreement between the plaintiff and the defendant, that if the plaintiff, the tenant of a farm, would surrender her tenancy to her landlord, and would prevail on her landlord to accept the defendant as his tenant in place of the plaintiff-he, the defendant, would pay the plaintiff 100l. as soon as he should become tenant of the land, was held to be a sale of an interest in the land within the meaning of the statute (q); also an agreement by the defendant, the landlord of a house, to put certain furniture into the house in consideration that the plaintiff would become tenant thereof (r); also an agreement by the plaintiff to let a house to the defendant, and to sell

(1) Ellis v. Goulton, [1893] 1 Q. B. 350, C. A.; Edgell v. Day (1865), L. R., 1 C. P. 80.

(m) Van Praagh v. Everidge, [1902] 2 Ch. 266, per Kekewich, J., pointing out that Malins v. Freeman, 2 Keen, 25, contra, is inconsistent with Tamplin v. James (1880), 15 Ch. D. 215; and see Fry on Specific Performance, 4th ed., sect. 765; Williams on Vendor and Purchaser, vol. i., at p. 19.

(n) "Or" is no misprint for "for" or "of;" see p. 77 (v), ante.

(0) As to the contents and signature of the memorandum or note in writing,

see ante, pp. 80 et seq.; and see Shardlow v. Cotterell (1881), 20 Ch. D. 90, C. A.; Studds v. Watson (1884), 28 Ch. D. 305.

(p) Per Cur., Massey v. Johnson (1847), 1 Exch. 241, 255.

(q) Cocking v. Ward (1845), 1 C. B. 858, 867; followed in Kelly v. Webster (1852), 12 C. B. 283. (In both these cases there was a "part performance which might have assisted the plaintiffs had they been decided since the Judicature Acts.)

(r) Mechelen v. Wallace (1837), 7 A. & E. 49.

CH. XI. s. 5.
Sile of Land

(Requirement
of Writing).

Sale of deben

him furniture and fixtures therein, and to make alterations and improvements in the house, the defendant agreeing to take the house, and to pay for the furniture, fixtures, and alterations (s). An agreement to sell a debt, secured by bond and also by a mortgage of land (t), or to sell debentures of a company possessed tures, &c. of land charging all its property whatsoever and wheresoever (u), is a contract for the sale of an interest in land within the statute (t); and so is an agreement between two or more persons to become partners in a colliery, to be demised on royalties to be divided among them in certain proportions (x); an agreement by A. who had borrowed a sum of money from his bankers in July, to repay the loan out of the rent of a farm to become due to him, A., at the Michaelmas following (y); and an agreement for regulating the height of a party-wall to be Easement. pulled down and rebuilt, and the position and shape of skylights Me Manus v. on either side of it (z). And it may be stated, generally, that wherever the conferring of an interest in land by one party is the consideration for the promise of the other, the agreement between them must be in writing (a); even although the party agreeing to confer such interest may not, at the time, have been possessed of any interest in the land in question, as was held in an action against a public-house broker for breach of contract to procure a lease of a public-house to be transferred by the lessee to the plaintiff (b).

It was held, however, in Boston v. Boston (c), that where a wife merely said to her husband that if he would buy a certain house for their residence, which he thereupon bought and lived with her in for five years, she would make him a present of it, the husband could claim repayment of the purchase-money from her. This decision, which proceeded on the ground that there was no contract between the parties for the sale of land or an interest therein, but only a contingent contract to repay the purchase money if the land should be bought, is sustainable also on the ground of part performance.

(s) Vaughan v. Hancock (1846), 3 C. B. 766.

(t) Toppin v. Lomas (1855), 16 C. B.

145.

(u) Driver v.. Broad, [1893]1 Q. B. 744, C. A.

(x) Caddick v. Skidmore (1857), 27 L. J., Ch. 153.

(y) Ex parte Hall (1879), 10 Ch. D. 615, C. A.

(z) McManus v. Cooke (1887), 35 Ch.D. 681, per Kay, J.

(a) See Buttemere v. Hayes (1839), 5 M. & W. 456; Earl of Falmouth v. Thomas (1832), 1 C. & M. 89.

(b) Horsey v. Graham (1869), L. R., 5 C. P. 9, per Bovill, C.J., and Brett and Byles, JJ. Keating, J., dub., on the ground that no case had been adduced in which the party to the contract did not part with some interest in land.

(e) Boston v. Boston, [1904] 1 K. B. 17, C. A. The matrimonial relationship does not appear to affect the result. On the point of construction, the case is hard to reconcile with Horsey v. Graham, supra, and Atkins v. Rowe (1728), Moseley, 39; but is supported by Lomas v. Bayley (1708), 2 Vern. 627.

Cooke.

Contract to money of land bought.

pay purchase

Boston v.

Boston.

CH. XI. s. 5. Sale of Land (Requirement of Writing).

Sale of grow. ing crops. Emmerson v. Heelis.

General rule deducible from these

cases.

Effect of Sale of Goods Act, 1893.

(b) Sale of Growing Crops.

An agreement for prima vestura or growing grass, whereby the exclusive right to the land is obtained for a limited time, and for given purposes, has been held to be within the statute (d). And so has a contract for the sale of growing hops (e), or growing turnips (ƒ), in which no time was stipulated for their removal, and where the parties did not treat the land as a mere warehouse for the hops and turnips.

It is difficult to reconcile all the decisions and dicta on this subject; there being, as has been said, no general rule laid down in any one of the cases, that is not contradicted by some other (g). But thus much appears to have been settled before the passing of the Sale of Goods Act, 1893, viz., that with respect to emblements or fructus industriales, a contract for the sale of them while growing, whether they have arrived at maturity or not, and whether they are to be taken off the ground by the buyer or the seller, is not a contract for the sale of an interest in land; but that a contract for the sale of a crop which is the natural produce of the land, if it be unripe at the time of the contract, and is to be taken off the land by the buyer, is a contract for the sale of an interest in land within the statute (h).

The Sale of Goods Act, 1893 (see Ch. XIII., post), enacts by sect. 4 that a contract for the sale of "goods" of the value of ten pounds or upwards is not to be enforceable unless part be accepted, or part price paid, or the contract be in writing, signed by the party to be charged; and by sect. 62 of that Act that

"Goods" includes all chattels personal other than things in action and money, and in Scotland all corporeal moveables except money. The term includes emblements, industrial growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.

It has been held, that an agreement by the landlord with an out-going tenant, to take the tenant's fixtures at a valuation, is not an agreement relating to an interest in land within the statute (i), and that where a contract consists of two collateral

(d) Crosby v. Wadsworth (1805), 6 East, 602; 8 R. R. 586; Carrington v. Roots (1837), 2 M. & W. 248.

(e) Waddington v. Bristow (1801), 2 B. & P. 452. But probably such a case would now be decided differently. Per Parke, B., Rodwell v. Phillips (1842), 9 M. & W. 501, 503.

(f) Emmerson v. Heelis (1809), 2 Taunt. 38; 11 R. R. 520.

(g) Per Lord Abinger, Rodwell v. Phillips (1842), 9 M. & W. 501, 505; and see

per Coleridge, C.J., in Marshall v. Green (1875), 1 C. P. D. 35; and per Chitty, J., in Lavery v. Pursell (1888), 39 Ch. D. 508.

(h) Jones v. Flint (1839), 10 A. & E. 753; Rodwell v. Phillips (1842), 9 M. & W. 501; Sainsbury v. Matthews (1838), 4 M. & W. 343; Carrington v. Roots (1837), 2 M. & W. 248.

(i) Hallen v. Runder (1834), 1 Cr., M. & R. 266; Lee v. Gaskell (1876), 1 Q. B. D. 700.