1 Turner. 219. Fowl. Exch. Sometimes the petitioner is directed to be considered a bidder at the sum offered by him, if no other person advances on him. In the Exchequer, the terms of opening biddings are" that Prac. 2. 318. the sum offered in advance, shall bear a considerable proporciting Hodges b. Jones. tion in price above the last bidding; that the person opening May 1781. shall undertake to bid to that amount, and make a deposit of double that sum with the master, (double the advance I sup pose) pay the costs of the last bidder, and make the deposit on the new bidding within a month from the date of the order." If the order is obtained, the property is again exposed to sale. The time of the renewed advertisement seems to be in the Master's discretion. 1 Turner, 217. 292. This practice is of much importance, and has not prevailed 3 John. C. C. with us. The Chancellor observes in Williamson v. Dale, "that the practice of opening biddings has not prevailed here; that if it ought to be adopted, the case before him was not brought within it, for there was no offer of any specified advance price; that from what fell from Lord Eldon in White Va 14 Ves. 151. Wilson, it is questionable, whether the practice of opening biddings as freely as they do in England, be not productive of more injury than good.-He says, that half of the estates sold in court, are thrown away upon the speculation, that there will be an opportunity of purchasing afterwards by opening the biddings." Ex-parte Mi nor. I do not see the force of this observation of Lord Eldon :-A person neglecting to bid before the Master is supposed to do so with the intention of transferring his bid before the court. Of course he is acquainted with the time of doing this, and what will prevent him, if in his opinion the estate is sold below its value, and he is willing to give more, from applying to open the biddings ? His intention to bid is supposed; but before the court, instead of the Master. The only injurious effect would be where he is only willing to give an advance which the court does not think sufficient to open the biddings, conceiving it would be enough; but under the rules of the court as to the amount, this never could be sacrificing an estate. It should also be considered that the inducements to bid before the Master are far greater than to wait to open the biddings. The party must in the latter case, pay the former purchaser's costs, and then is not sure of the estate, as a fresh sale takes place. The objections generally taken to this system, are that purchases are rendered uncertain, and that the buyer is bound, 16 140. while his claim to the property is not absolute. 11 Ves. 561. In Prideaux v. 迥 3 es, 36. Prideaux, Lord Commissioner Hotham says,-" On a ground 1 Coxes cas- So it is stated by Mr. Fowler, that," the court very reluc- Exch. Prac. tantly receives applications for opening biddings upon sales of 1. 318. estates under its decrees, for reasons that are manifest; but as these sales are generally in aid of creditors, it is often an Whatever may be the solid objections to this practice, I ap- a mode by which the court can redress forced sales, and more In a case subsequent to Williamson v. Dale, the Chancellor C. 292. Mattark v. "A sale had been made by a Master under a decree of the Lansing v. court; the plaintiff became the purchaser at four hundred and 3 John. C. R. M'Pherson, fifty dollars. No report had been made, nor deed executed. 426. A petition was now presented to vacate an order taking the bill pro confesso so far as it related to a claim for any deficiency against the petitioner, one of the defendants, and that the biddings be opened, offering an advance of fifty per cent. The Chancellor clearly denied the first part of the petition to vacate the order, and open the case to a defence, for reasons stated in his opinion. As to the latter part of it, he says,—But I think the sale may be opened without injury or inconveni ence in this case, and justice would seem to require it, especially in favor of a defendant, who offers to give fifty per cent. in advance of the purchase money, and who is bound to supply the remainder of this debt, unsatisfied, by the sale. The plaintiff was here the purchaser, and the purchase has not been confirmed, nor the deed executed. Sale opened on condition that the defendant M. deposit with the register within eight days an advance of fifty per cent. on the sum bid by the plaintiff, and on his paying the plaintiff the expense he incurred of the former sale." SECTION 3. PAYMENT OF INCUMBRANCES. IT frequently occurs that there are charges and incumbrances upon the property, discovered by the purchaser after the sale, and which are not provided for in the terms. The course in such a case is, for the purchaser to move the court upon notice, that he may appropriate part of his purchase money to satisfy the charge; or if the money has been paid by him, that the Master or Register may apply a sufficient part of it. If the former is the application, the order should provide, that it be done with the privity of the Master or other officer, as there may be parties personally responsible, who have an interest in the payment being made. Mr. Sugden says," If the estate be subject to an incumbrance which appears upon the report, the purchaser should, after giving notice of his intention, apply to the court for leave to pay off the charge, and to pay the residue of the purchase money into the bank." "The Solicitor General moved, that a purchaser should be at liberty to apply part of his purchase money in discharge of a mortgage upon the estate. Some of the parties who were competent, consented. Some were infants. Lord Chancellor asked,-If it appeared upon the report that there was such an incumbrance; and being answered in the negative, said, He doubted whether it could be done even by consent, because there was nothing to show the court that there was such an incumbrance; though perhaps, if all the parties were competent to consent, and did consent it might be done." The reason of the Lord Chancellor's difficulty in this case appears to have been, that this was a motion merely, and the incumbrance did not appear to the court, except by the statement of counsel. But it is not to be concluded from this case, that a report of the incumbrance is essential. I presume if authentically brought before the court in any other form, it would be sufficient. In the case of Lawrence v. Cornell and others, after a sale Mss. Case. by a Master, it was discovered by the plaintiff and the pur- 8 Aug. 1820. chaser, that the property had been sold to pay an assessment, which purchase was redeemable; and that there was an arrear of taxes upon it. Certificates of the street commissioner and collector as to these facts, and the amounts due, were laid before the Master, with a request for a report of sale, and that these charges might be stated in it, which upon notice to the opposite solicitor was given. On this a petition was presented by the plaintiff, praying that these charges might be extinguished out of the purchase money, stating that the premises were represented at the sale to be free from incumbrances. The Chancellor.-The facts stated in the petition remain uncontradicted. The premises were at the time of the sale represented to be free from all incumbrances, and the Master's report contains no allegation to the contrary, and it contains the evidence of the facts of such incumbrances, and the certificates shew that the evidence came to the Master's knowledge since the sale. The purchaser ought not to be held to his purchase under these circumstances, and we must intend that the lot was sold, and was purchased with the understanding, that the title was clear, and the price bid is to be taken as a fair and adequate consideration for the premises free from incumbrances. It is therefore just, and for the interest of all parties, that the purchaser, or the Master for him should be at liberty to apply part of the purchase money in discharge of these incumbrances, and Stretton's case, (though rather an 266. imperfect and unsatisfactory note) contains authority for this ante. direction, as we have, what was called in that case, the Master's report of the incumbrances. An order was made that the Master pay to the purchaser under the assessment, out of the proceeds of the sale, the amount given by him with the interest payable upon a redemption, and also the arrears of taxes with the interest, and bring the residue of the proceeds into court.” There cannot be a doubt that the certificates would have been sufficient, if produced to the court, without being mentioned in the report. It was on them in effect, as evidence of the charges, that the order was granted. This order was made on the fact of the sale being made free from incumbrances. The purchaser was not before the court; but it was concluded that he gave to the full value of the property from the statement, that it was sold clear of charges. 1 Ves. Jr. Serjeant case. Freeman's Rep. in Ch. 1. 1676. Ibid. 106. anon. I conceive however, that the proper course in these cases is, for the purchaser to move or petition the court upon notice that a sufficiency of his purchase money be applied, exhibiting some proof or vouchers of the charges, a report of his being the purchaser, and an affidavit of his own ignorance of the existence of the charges at the time of sale; or perhaps it would be sufficient to swear, that though informed of them, he bid to the full value, in the conviction that they would be paid out of the purchase money. It must be admitted, there would be a temptation opened to a purchaser in allowing this, and perhaps the court would require that such an affidavit should be strongly supported by other circumstances, such as the value of the property being no more than the bid, or about its amount, when clear of incumbrances. If the fact of an ignorance of the incumbrances is established by the purchaser, I apprehend he has a clear right, by the principles of the court, to have part of his purchase money applied. "In this case it was said by Mr. Attorney, that if a man sells anothers land, and covenant to discharge it of such particular incumbrances, and before the payment of the money, other incumbrances are discovered, that this will prevent any suit for the money, till all the incumbrances are discharged. It was said likewise by Mr. Reck, that if there be no covenants against incumbrances, yet, if before payment any are discovered, the party may retain his money, till they are cleared. Quod fuit consessum per cancellarium. But it was said by Sir John King, and not denied per curiam, that these must be incumbrances made by the vendor himself, or otherwise the vendee cannot detain the money, unless they be covenanted against." A case was cited by the Lord Keck, where a purchaser brought a bill to be relieved where incumbrances were conceal. ed; but was dismissed, for he ought to have provided against it by covenants. But it was said by Rawlinson commissioner, that if the purchaser had in that case had money in his hands, that the court would have helped him, but not after he had paid his money.". The rule furnished by these cases, even with the distinction taken by Sir John King, would be sufficiently extensive to reach the generality of cases, because what the owner, the mortgagor, suffered to incumber the property being bound to pay, should stand upon the same footing as what he actually charged upon it. The principle of the rule so stated is, that |