The warrandice does not resemble that of the seller of an estate. It merely imports that the purchaser shall, for his indemnification, recover from the creditors what they have received of the price.

The purchaser is entitled to have warranted to him every thing described in the judicial rental as part of the lands. If he is deprived of any part included in that description, he is entitled to a proportionate deduction. (a)

In judicial sales, the purchaser is to trust to no statement that may be held out of value, or of peculiar advantages. He is bound to examine every thing himself, and to proceed only upon the information which he so acquires. The measurements and values stated in the rental are intended, not as grounds of warrandice, or as conveying information to the purchasers, but as data to the court in deciding upon the question of bankruptcy, and in fixing the upset price. (b)

A measurement entering into the description of the lands has been held to be a bounding description. But a measurement which is merely spoken of in the advertisements, or which appears upon a plan or survey of the estate, is to be considered only as intended to give information of the probable extent of the estate or as a mere relation of apparent advantages, which the purchaser is not entitled to consider as a condition, or as relieving him from the obligation to satisfy himself by his own inquiries. (c)

If, in the description, the lands are stated as a fortyshilling land of old extent, or as of £400 valued rent,

(a) Wilson v. Sir J. Campbell, Nov. 14th, 1764, Dict. 13,330. (b) Hay of Drummelzier's Case, July 20th, 1697, Dict. 13,328. Coutts v. Creditors of Halgreen, Jan. 13th, 1725, Dict. 13,328. Creditors of Cockpen, Dec. 22nd, 1732, Dict. 13,329. Wilson v. Creditors of Sir J. Campbell, Nov. 14th, 1764, Dict. 13,330. Inglis v. Dempster, June 27th, 1788, Dict. 13,335.

(c) Hanway v. Cred. of Bargalay, Jan. 26th, 1785, Dict. 13,334. 2 Bell's Com. 284.

or generally as sufficient to afford a freehold qualification; the purchaser would appear to have no right to insist on a warrandice to that extent. He must himself ascertain whether this advantage is really attached to the purchase. (a)

SECTION III.

SALES BY AUCTION AND JUDICIAL SALES UNDER THE LAW

OF ENGLAND.

Sales by auction.-General Principles.-Puffing.-Meaning of the expression, "without reserve."-Sales under decrees of courts of equity.Substitution of another purchaser.-How far purchaser affected by irregularity in the proceedings in which the decree obtained.-In what cases he can procure purchase-money to be applied in discharging incumbrances. When the sale is complete.-Proceedings to confirm the master's report.-Purchaser refusing to complete the purchase, and consequences. Opening biddings.-Control exercised by the court over the Sale.

It has been seen that the civil law treated the vendor's employment of a puffer as a fraud on the good faith of the contract by which the vendor agrees to sell the property to the highest bidder. This doctrine was at one period adopted by the law of England. (b) The legislature has, however, by exonerating them from the duty it imposed on auctions, sanctioned those sales by auction in which the owner, or any other person on his behalf, buys in the same, without fraud or collusion; (c) provided notice be given in writing (d) to the auctioneer

(a) 2 Bell's Com. 284.

(b) Bexwell v. Christie, Cowp. 395. (c) 19 Geo. 3, c. 56, § 12.

(d) 28 Geo. 3, c. 37, § 20.

before bidding, signed by the owner and the person intended to be the bidder, of the latter being appointed by the former, and having agreed accordingly to bid at the sale for his use; and provided the delivery of such notice be verified by the oath of the auctioneer, as also the fairness of the transaction, to the best of his knowledge.

It became, therefore, settled by decision, that a bidder may be privately appointed by the owner to prevent the estate being sold at an under-value; and that if there were real bidders at a sale, it must be supported, although the bidding immediately preceding the purchaser was fictitious; (a) and that where public notice has been given the contract will be binding on the purchaser, although there was no contest between real bidders, but the bidding was only between the purchaser and the person employed to bid. (b)

It has been considered as a consequence resulting from these authorities, that the rule would be the same, even where public notice had not been given, provided the bidder was appointed only to protect the vendor's interest. (c)

But where a person is employed, not for the bona fide purpose of preventing a sale at an undervalue, but in order to take advantage of the eagerness of bidders to screw up the price, that will be deemed a fraud. (d)

If the estate be advertised to be sold without reserve, the sale would be void against a purchaser, if any person were employed as a puffer, and actually bid at the sale. (e) The plain meaning of the words without reserve in a particular of sale, is, that no person will be employed to bid on behalf of the vendor for the purpose

(a) 3 Ves. 625 n. Twining v. Morris, 2 Bro. C. C. 326. 6 T. R. 642.

3 T. R. 93, 95. Smith v. Clarke, 12 Ves. 477.

(b) Oldfield v. Round, 5 Ves. 508.

(c) 1 Sugd. Vend. and Pur. 26.

(d) See 12 Ves. 483.

Vend. and Pur. 27.

Fitzgerald v. Forster, July 31st, 1813, 1 Sugd.

(e) Meadows v. Tanner, 5 Madd. 34.

of keeping up the price; and that the vendor could have no claim to the aid of a court of equity, to enforce a contract against a purchaser, into which he might have been drawn by the vendor's want of faith.

On the other hand, if a purchaser by his conduct deter other persons from bidding, the sale will not be binding. (a)

In England, the lands of the debtor are not sold under any execution issued against them on judgments obtained against him in courts of law, but the creditor merely receives and holds a moiety, or, in some cases, the whole of the debtor's lands, until the debt is discharged out of their rents and profits. The sale of lands takes place under the decrees of the courts of equity. These sales are not subject to the

auction duty. (b)

It is not required that any notice should be given, previously to the sale of an estate under a decree, of the vendor's intention to buy in the estate if a particular price be not bid for it. But where a fraud is committed on the purchaser, by puffing at the sale, it invalidates a sale under a decree, no less than that which takes place by auction under similar circumstances. The court will, however, in a proper case, authorize a bidding to be reserved, and to be made one of the conditions of sale. (c)

It will also discharge the purchaser, and substitute any other person in his stead, provided such person pays in the money, and an affidavit is made that there is no under-bargain. (d)

If the purchaser resell at a profit behind the back of the court, before his purchase is confirmed, the second. purchaser is considered a substituted purchaser, and

(a) Fuller v. Abrahams, 3 Brod, and Bing. 116. S. C. 6 Moore, 316. (b) 19 Geo. 3, c. 56, § 13.

(c) Jervoise v. Clarke, 1 Jac. and Walk. 389. Rigby v. M'Namara, 6 Ves. 515. Vale v. Davenport, ib. 615.

(d) 1 Sugd. Vend. and Pur. 57.

must pay the additional price into court for the benefit of the estate. (a)

The purchaser can make no objection to the sale, because more of an estate is sold than is necessary for the purposes of the trust, by virtue of which the decree was made, for the decree is a sufficient security to him. But if the decree were, that the master should sell Greenacre, and he sells Blackacre, an objection to the sale would be valid; (b) although it has been stated as a general rule, that a purchaser shall not lose the benefit of his purchase by any irregularity in the proceedings in a cause. (c)

If a decree be obtained by fraud, it may of course be relieved against; (d) and it has been said that a purchaser is bound to see that, at least as far as appears on the face of the proceedings before the court, there is no fraud in the case. (e) But it is a settled maxim that persons purchasing under decrees of the court are bound to see that the sale is made according to the decree. (ƒ)

A person having a legal lien, as a judgment-creditor not coming in under the decree, would not be bound by it, and might proceed against the purchaser, unless he obtained a legal interest over-reaching the lien; in which case, the claim being merely in equity, the court would protect the purchaser buying under its decree, or rather would not lend its aid to the judgment-creditor against him. (g)

In sales by auction or private agreement, the contract

(a) 1 Sugd. Vend. and Pur. 57.

(b) Lutwych v. Winford, 2 Bro. C. C. 248.

(c) Lloyd v. Johnes, 9 Ves. 37. Curtis v. Price, 12 Ves. 89. Bennett v. Hamill, 2 Scho, and Lef. 566. Burke v. Crosbie, 1 Ball and Beat. 489. Lightburne v. Swift, 2 Ball and Beat. 207. Baker v. Morgan, 2 Dow, 526. Mullins v. Townsend, 2 Dow and Clark, 430.

(d) Kennedy v. Daly, 1 Scho. and Lef. 355. Giffard v. Hort, ib. 386. (e) Gore v. Stacpoole, 1 Dow, 30.

(f) Colclough v. Sterum, 3 Bligh's App. Cas. 181.

(9) Barrett v. Blake, 2 Ball and Beat. 354.