6. Sales be. fore the mas

ter.

Sales before the master.

Our practice on this subject is variant from the En-' glish, and depends much on our statutes and rules of court which govern it.*

* The many and useful decisions, which have grown out of the English practice on the sale of mortgaged premises before a master, as well as the principles which govern them, have induced the compiler to give under this head, in the form of a note, a sketch of the English practice; in order that the practitioner may judge of the applicability of the English decisions to our practice, which in some leading points is variant from the English (a)

In England, at the time appointed for the sale, the person desirous of bidding attends at the master's office and subscribes his name in a book prepared for the purpose, to give a sum bid by him for the lot in question: if no person is found to advance upon the last bidder, he is declared the purchaser; he then procures a report from the master of his being the best purchaser; he must then proceed in the usual course of confirming the master's report. The purchaser after having confirmed the master's report absolutely, is entitled to a conveyance of the estate on payment of the purchase money, and may obtain an order for leave to pay in his purchase money, and be let into possession of the estates, and into the receipt of the rents and profits of the estate as from the last quarter day preceding the application; except in the case of collieries, when the purchaser is entitled to the profits only from the preceding month; there being no such thing as a quarter day in such concern, and the profits being settled monthly. 8 Ves. 502. But before the purchaser makes an application for the above order he ought to be well satisfied with the title; for the order recites that he is content with the title. If therefore the purchaser upon looking into the abstract of the title, finds objections to it, he ought to procure an order for a reference to the master upon the title, and if the master reports against it, he may be discharged from the purchase.

If the purchaser after the master's report confirmed, should be unwilling to complete his purchase, the plaintiff should obtain a

(a) Newland, 166, &c.

Where a decree directs estates to be sold, a particular of them must be prepared by the plaintiff's solicitor, which being allowed by the master, the advertisements for the sale are prepared and published; the master's signature having been previously put to the draft of

reference to a master to look into the title, if that reference has not been already obtained, and if the master approves of the title, he may obtain an order that the purchaser should pay in his purchase money within a certain time, or that an attachment should issue against him. 14 Ves. 512. Also the purchaser may, upon motion of the plaintiff, be discharged from his purchase, and a re-sale will be directed; if he takes no steps for a considerable time after, the order becomes absolute. 14 Ves. 512. But the court will not order the purchaser to pay in his purchase money before the confirmation of the report. 2 Ves. jun. 335.

But it may happen, that although a person is reported the best purchaser, yet before he has confirmed the report absolutely the bidding may be opened. For if a person will make a proper advance on the sum offered by the highest bidder for the lot in question, the former may by applying to the court before or on the day when the motion is made to confirm the order nisi, and offering the requisite advance, and giving notice to the purchaser, and the parties in the court, obtain an order to open the biddings; provided he did not attend at the sale, which would preclude him from opening the biddings, 5 Ves. 655. sed. vide 6 Ves. 513. The court however has permitted biddings to be opened upon a second application by the same person, the purchaser not appearing or objecting. 16 Ves. 140. There is no general rule which settles the amount of the advance which the court will require. In some cases, the court has taken ten per cent. vide observations of Lord Eldon, 14 Ves. 151. In some cases the court has required more, particularly in small sums, 4 Ves. 700. 7 Ves. 420. 8 Ves. 214. 2 Ves. jun. 487. and 6 Ves. 466. and in some cases the court has been satisfied with less. 1 Ves. jun. 453. 5 Ves. 148. The court likewise invariably (6 Ves. 513.) requires a deposit to be made by the person opening the biddings, usually twenty per cent. and sometimes more, 6 Ves. 466. 2 Ves. jun. 487. and also, that he should pay the purchaser his expenses incurred by the former bid dings, the court leaving it to the master to make the allowance

the advertisements. The sale is of a public nature, and usually conducted by an auctioneer, or some public officer employed on the occasion by the master, and under his immediate inspection and control, who executes a deed to the purchaser of the mortgaged premises upon his compliance with the terms of the sale, under the provisions of the act of the 10th of April, 1. Statutes re- 1813, sections 11, 12.(a) which directs that all sales of sales. mortgaged premises, under a decree of the court of Chancery, shall be made, and deeds executed for the same, by one of the masters of the said court, which

specting such

according to the practice. 2 Ves. jun. 286. But if the person who opens the biddings is out-bid at the re-sale, he will not be entitled to his costs, however highly his interference might have benefitted the estate, 8 Ves 214. unless he has opened the biddings, not for his own benefit, but for the benefit of all parties concerned. 9 Ves. 348. 12 Ves. 61.

But generally the court will not permit biddings to be opened after the master's report has been confirmed absolutely, although a great advance is offered, 3 Bro. C. C. 475. 3 Anst. 656. or although the delay of the party not making the application sooner arose from the mista. ken idea, that another person had given notice of a motion for the same purpose. 11 Ves. 57. 14 Ves. 151. In cases however of fraud or misconduct in the purchaser, or where some principle arises out of his character as connected with the ownership of the estate, 11 Ves. 57. or where there is fraudulent negligence in the agent, of which it is against conscience that the purchaser should take advantage, 4 Bro. C. C. 172. 11 Ves. 57. et vide 1 Bro. C. C. 287. the confirmation of the master's report will not prevent the biddings from being opened.

Before we leave this subject, it is necessary to observe, that a person may be substituted for a purchaser without the necessity of an application for a re-sale upon the latter consenting to its being done, and the former paying the necessary deposit in court, and on an affidavit that there was no underhand bargain between them. 6 Ves, 515. Newland, 166, 167, 168, 169, 170.

(a) 1N. R. L. 490, s. 11-12.

deeds shall be as valid as if the same had been executed by the mortgagor and the mortgagee, and shall be an entire bar against each of them, and their heirs respectively, both at law and in equity, and the proceeds of the sale shall be applied to the discharge of the debt due and adjudged by the said court, and the costs awarded by said court, and the surplus, if any, shall be put out at interest for the benefit of the defendant and his legal representatives or assigns, on such security as the court shall approve, and shall be paid to him or them on application to and by order of the said court; provided always, that no greater estate in the premises shall vest in the purchaser upon any such sale than would have vested in the mortgagee, had the equity of redemption been foreclosed.

In cases where the decree, for the sale of mortgaged premises, shall be made by reason by non-payment of interest only, or of any portion or instalment on such mortgage, and where a bond or other instrument with a penalty shall have come forfeited, it shall be lawful for the said court to apply the proceeds of the sale of the said premises, as well to the interest, instalment or portion due, as towards the whole residue of the demand, which hath not become due or payable, and the residue (if any) to put out at interest and pay as in the preceding sections is directed; provided always, that in case the instalments, or portion which have not become due or payable do not bear interest, then the residue of the moneys, after discharging the moneys already due and payable, besides the costs, shall be put at interest upon such security, and in such manner as the court shall direct; and the same, together with the interest arising therefrom, shall remain under the direction of the said court, as a security to the com

2. Advertise. ment.

plainant, for the instalments or portion not due, and as the same from time to time become due, the court shall direct the payment thereof, and the overplus (if any) shall remain for the benefit of the defendant, his legal representatives or assigns, to be paid him or them upon application to and by order of the said court; and provided further, that if any defendant, who shall not have been served with the first process in the cause, shall before sale appear and pay such costs to the complainant as the court may award, it shall and may be lawful for the court to stay the said sale, and such proceedings may thereupon be had as if the defendant had been served with the first process, and had regularly appeared thereupon.(a)

Advertisement of sale.

A description of the mortgaged property intended to be sold,shall be inserted in two public newspapers,agreeably to the order of the court; the advertisement shall specify the time and place, when and where the sale will take place. The form of which is as follows:

In Chancery.

Between

A. B. Complainant,

SA.

and

C. D. E. F. G. H. Defendants.

In pursuance of a decretal order of the court of Chancery, made in the above cause, will be sold under the direction of the subscriber, at public auction, at the Tontine Coffee-House, in the city of New-York, on Thursday the next, at 12 o'clock at noon of that day, all those five certain lots of ground, &c. &c.

day

Dated, New-York,

1818.

I. H. Master in Chancery.

( a ) 1 N. R. L. 490. sec. 12.