CHAPTER IV. SALES BY AUCTION AND JUDICIAL SALES. SECTION I. I. Licitatio.-Persons who are precluded from bidding.-The addictio or adjudication to the highest bidder.—Adjectio pretii aut melioris conditionis allatio, or advance on the last bidding.-When the sale is complete. The act of adjudication, or tabulæ addictionis.-Grounds on which it may be set aside, as being ipso jure void, or iniquitatis causá. -Consequence of its being set aside.-Effect of the sale in respect of the rights of third persons in the property.—Oppositions.—Obligations, rights, and liabilities of vendor and purchaser.-Their respective risks. -Consequences of the default of the public officer by whom the sale is conducted. II. Present practice in British Guiana, the Cape of Good Hope, and Ceylon. III. The law of Spain.-Trinidad. IV. The vente en justice, and décret volontaire.-The exoneration of the estate from incumbrances under the former and present law of France. V. In Lower Canada. VI. St. Lucia. I. The sale of which the preceding chapter treated, was that effected by the private contract of the vendor and purchaser. The rules by which it is governed are equally applicable to a sale by auction, when that auction takes place at the instance of the vendor sponte suȧ, and not under any judicial authority. But when the sale is made ex decreto judicis, whether it be in invitum or by willing condemnation, it is always effected by auction. There are some principles peculiar to the latter species of sale which require consideration. When the immoveable property of the debtor has been taken judicati exequendi gratiâ, or in consequence of the debtor absconding, or of his death and his succession not being taken by any heir, or when the property of a minor, or of the state, or of any public body was sold, the civil law required that the sale should take place by public auction. (a) This public auction was called, "subhastatio, ab hastâ, quæ in foro ponebatur, ut indicio esset." (b) The advertisements of the sale, tabulæ auctionariæ, specifying the time, place, and particulars of sale, were published in the most frequented parts. A public place was selected, where the hasta was fixed, and the cryer, præco, stood by and announced the price offered. When the sentence had been passed under which the immoveable property of the debtor might be taken in execution, and those previous proceedings had been adopted which were necessary to entitle the officer to seize it, a proclamation or advertisement of the time and place of the intended sale was given in the most public manner. The various persons, who, it has been seen in a preceding chapter, are not permitted to purchase by private contract, are equally precluded from being purchasers at a public auction, either by themselves or per interpositas personas. (c) It is competent for the creditors, and, it seems, even for the debtor himself, to bid and become the purchaser. (d) If any person bid on behalf of another, it was necessary he should have a special authority for that purpose, and that, at the time of his bidding, he should name his principal, for otherwise he was himself personally bound. (e) (a) Cod. lib. 7, tit. 53, De Exec. Rei Judic. lib. 10, tit. 3, and lib. 7, tit. 34. Dig. lib. 42, tit. 1. (b) Matth. de Auct. lib. 1, c. 1, n. 4. (d) Ib. and n. 10, (c) Ib. lib. 1, c. 10, n. 1. (e) Ib. n. 14. A bidding is fraudulent, and will confer no right on the party by whom it is made, if the purchaser procures another to bid, who, by collusion with him, either becomes himself or allows the other to remain the highest bidder, or if the vendor procures a person to bid for the mere purpose of raising the price. (a) The addictio, or adjudication of property to the highest bidder then takes place. "Addictio verò decretum est, quo res proscripta adjicitur ei, qui vicerit licitatione." (b) Until this act takes place, it is competent for any person to make an advance on the sum bid. This advance is called, "adjectio, adjicere est augere pretium, meliorem conditionem adferre." (c) This advance might be offered, even on the very day of the addictio, until the breaking off the seal from the letters of decree, which is done by the commissary when the last bidding takes place, as a token of the adjudication of the property to the purchaser. When the auction is at the instance and by the voluntary act of the vendor, the sale is complete when the power of advancing on a bidding no longer exists. But in an auction ex decreto, it is not complete until the instrument, or act of addiction or adjudication, tabulæ addictionis, has been perfected and sealed. (d) In sales by private contract, property may be sold subject to a condition, that if another person, within a given time, makes a better offer, it shall be sold to the latter. This condition is called addictio in diem. The sale is, however, deemed perfect, notwithstanding it takes place under this condition. The condition does not suspend, but, if it takes effect, resolves a sale previously made. If, however, the sale be ex decreto, neither the vendor can demand the price, nor the purchaser the pro (a) Matth. de Auct. lib. 1, c. 10. (c) Ib. (b) Ib. lib. 1, c. 1, n. 6. perty until the addiction or act of adjudication has been made. Until that act, the property is not at the risk of the purchaser, because not only he may be deprived of it by another making an advance on his bidding, but he contracts by that bidding an obligation, not absolute, but suspended by the condition that no person makes an advance before the act of adjudication is passed. The obligation thus contracted by him is not discharged by a second bidder making an advance on him, unless the latter be accepted, and the addictio made to him. "In omnibus venditionibus quæ publicè per auctionem fiunt, unusquisque dicto suo promissove stare debet: nec liberatur licitator antequam adjectio à secundo licitatore facta acceptata fuerit." (a) The advance which has been made on the bidding cannot be revoked. (b) The debtor is summoned to appear at the addictio, which takes place at a certain day appointed for that purpose, after the oppositions made to the sale by the debtor or others have been filed and disposed of. The effect of the addictio is to divest the debtor of all dominium in the property, and to transfer it to the purchaser as well as the possession. It is thus expressed : "Viso tali instrumento, &c., et oppositione, &c., et licitationibus, &c., et quia nobis constitit Lucium Titium postremum licitatorem alios vicisse, idcirco per nostrum decretum adjudicamus illi talem rem, &c.," "hæredibusque ejus, aut quibus ille jus suum cesserit, plenum dominium et possessionem: ita ut eum fundum in perpetuum possideat, eo utatur, fruatur perinde ac suâ re propriâ, &c.” (c) The instrument or act containing the addictio obtained the name of the tabulæ addictionis. It was not delivered to the purchaser until he had paid or made consignation of the purchase money. The debtor then became com (a) Matth. de Auct. lib. 1, c. 10, n. 41. (c) Ib. lib. 1, c. 12, n. 9, 15. (b) Ib. n. 43. VOL. II. P P pletely divested of the property, and could never invito emptore redeem it. (a) If the purchaser made default in making the payment or consignation of the purchase money within the time prescribed for that purpose, the property was again put up to sale, and he became responsible for any loss sustained on the resale. (b) 66 The adjudication might be invalidated on various grounds. Thus it would be set aside if it had been made ex falsâ causâ, per dolum, fraudem et fallaciam,” or if the court had no jurisdiction, or if the sale or the advances on the bidding had been made at another place or on another day than had been announced in the advertisement, or if the property had not been taken in execution, or if there had been a neglect to publish the requisite advertisements. The latter ground could not be urged by any person who was present at the sale. So, if there has been any fraudulent suppression of such particulars of the sale as might have attracted more bidders. If any of these grounds should be alleged and proved, the sale is ipso jure void. But the presumption is, that the solemnities which ought to precede it have been observed, and the burthen of proving the omission of any of them rests on the person who alleges it. (c) The purchaser is bound to ascertain that the sale has been made in conformity with the sentence of the court and the solemnities prescribed by law. (c) It is not, however, to be understood that the omission of some formal solemnity, which has not for its object the benefit of the debtor or creditors, will invalidate the sale. Neither is it a ground for rescinding the sale, that, in the execution under which the property was taken, the officer disregarded the order in which the different species of the defendant's property were to be levied on, or that he had taken more than was sufficient to satisfy (b) Ib. n. 11. (a) Matth. de Auct. lib. 1, c. 12, n. 12. (c) Ib. n. 12. Ib. c. 16. |