service. One order may include the delivery of all the deeds to the different purchasers.

At the time when the conveyance is executed, and the deeds or attested copies are delivered up to the purchaser, it is prudent for the vendor's solicitor to procure a written authority from the purchaser to consent in his name to the distribution or payment of the purchase-money, as the Court may direct. If this authority is not obtained, it will be necessary to apply to the purchaser for a consent, or to serve him with a written notice, before any part of the *purchase-money can be taken out of court; [196] and the decree or order for the payment or distribution of such money, or any part of it, can only be made on such consent, or on an affidavit of notice to the purchaser, and an affidavit that the conveyance to him has been executed. (Noel v. Weston, April, 1821; Newton v. Bradshaw, 2d July, 1804.)

Although the purchase-money is not to be paid out without notice to the purchaser, he is not bound to see to the application of it. Neither is a purchaser under a decree affected by irregularities and defects in the decree, by which the application of the money may not have been properly secured; (Curtis v. Price, 12 Ves. 89 ;)[a] but he is bound to see that the sale is made according to the decree. (1 Sudg. V. & P. 58.) It is no objection on the part of a purchaser of land by a Master, that more land has been sold than is necessary for the purposes of the testator's will. (Lutwych v. Winford, 2 Bro. C. C. 248.)

A purchaser cannot prevent the distribution of a fund arising from purchase-money, because the heir is an infant, or retain a part of the purchase-money, to answer the expense of a fine contingent on his dying under age. (Morris v. Clarkson, 3 Swanst. 558.)

[a] A purchaser at a chancery sale is not answerable for any disposition which the Court may make of the purchase-money. Brown v. Wallace, 4 Gill & Johns. 479.

CHAPTER XIX.

SUBSTITUTED PURCHASER.

Upon what terms a substituted purchaser allowed, 197. How order for obtained, 198. Effect of purchaser selling at a profit before purchase confirmed, 198.

THE Court will not allow another person to be substituted for the purchaser, even though the purchaser consent, excepting upon the terms of such person paying the purchase-money into court, and upon his making an affidavit that there has been no under bargain. (Rigby v. M'Namara, 6 Ves. 515. Vale v. Davenport, 6 Ves. 615.)[a] Before the time of Lord Eldon, the Court appear to have allowed one purchaser to be substituted for another, if such purchaser consented, without requiring an affidavit that there was no under bargain. In Matthew v. Stubbs, 2 Bro. C. C. 391, a motion was granted by consent to substitute one purchaser for another, merely upon the allegation that one party was agreeable to complete his purchase, and the other willing to take it at the price which had been bidden; but such is not the present practice.

One purchaser may be discharged, and another substituted by consent, where the Court is satisfied there has been a mistake, and there has been no underhand bargain ; and, under circumstances, a purchaser may be discharged altogether from his purchase. If an agent, instructed to purchase for his principal, sign the agreement in his own [*198] *name instead of as agent for another, the Court by consent, and upon an affidavit of the fact, will allow such principal's name to be substituted for the supposed purchaser. So also if a person is desirous of being substituted for the purchaser, the Court, upon the purchaser's consent, and being satisfied by affidavit that there is no underhand bargain, and upon the substituted purchaser paying the purchase-money into court, will order such substitution.

[a] "It is the constant practice of this court, to permit the purchaser at a Master's sale to assign his bid, and to direct the conveyance to be made to the assignce; without prejudice, however, to any equitable rights or liens of third persons, as against the original purchaser, which may have become vested before such assignment of his bid.” Per Chancellor Walworth,-Proctor v. Farnan, 5 Paige, 619, 620.

The Court will not discharge the solicitor in the cause from a purchase before the Master which he made with a view of preventing a sale at an undervalue. (Nelthorpe v. Pennyman, 14 Ves. 517.)

To obtain liberty for one person to be substituted for another as the purchaser, a notice of motion is served on such purchaser, or on his solicitor or town agent, and on the clerks in court of all the parties in the cause to the effect, "that upon -paying into court. (the amount of the purchase-money,) he may be substituted, as the purchaser, for A. B.; and that A. B. may thereupon be discharged." In support of this application there is an affidavit that there is no under bargain. The order is made on the purchaser's consent, and on an affidavit of the service of the notice of motion.

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 must pay the additional price into court, for the benefit of the estate. (1 Sugd. V. & P. 57.)

A purchaser under a decree agreed to sell the lots he had purchased to A., and died, his heir being abroad. Ordered that A. should be substituted for him as the purchaser, and should be at liberty to pay the purchase-money into court, and be let into possession. (Pearce v. Pearce, 7 Sim. 138.)

CHAPTER XX.

PROCEEDINGS TO COMPEL THE COMPLETION OF A PURCHASE.

Duties and rights of the vendor's solicitor, 200. If the purchaser does not take the Master's report of purchase, what steps vendor's solicitor should take, 201. Motion for purchaser to pay in purchase-money, 201. Where reference of title directed, 202. Where purchase-money ordered to be paid, 203. If purchaser a peer or member of parliament, 203. Remedy by resale, 204. Terms of order for resale, 204. Applied when purchaser insolvent, 205. Where necessity to file a bill to compel purchaser to complete, 206. How completion of purchase enforced, if report of purchase taken, but not filed, 207. If taken and filed, but not confirmed, 207. If confirmed nisi, but not absolutely; if confirmed absolutely, but no order to pay in purchase-money, 207. Reference as to compensation to a purchaser, 208. Reference of title after decree, 209. Order for, 209. Report upon title, and exceptions to same, 210. If the Master reports in favour of the title, 210. If against the title, 211. If opinion that title doubtful, 211. Settling the conveyance, 212. How possession of purchased premises obtained, 213.

In the last two chapters have been detailed a concise epitome of the progress of the proceedings from the decree for a sale, down to the execution of the conveyance in a case, where all parties are desirous, and concur in carrying the same into effect, and where no obstacles arise from the nature of the title, or on any other grounds, to impede the completion of the purchase. It will be convenient now to consider the several obstacles which usually prevent or delay the completion of a purchase, and in what manner they may best be overcome.

Before explaining the manner in which the purchaser *200 ] under a decree may be compelled to complete his purchase, it may be useful to premise that the vendor's solicitor, or the party having the conduct of the sale, is entitled to prepare the abstract of the title for the purchaser; that it is his province to answer and satisfy all inquiries made by the purchaser; that it is his duty to compel the purchaser to confirm his report, and to oblige him to pay in his purchase-money, and that if there is a reference to the Master to inquire whether a good title can be made, that he is the only party strictly entitled to the costs of attending before the Master during the investigation. This last point was so decided by the Master in a cause of Chillingworth v. Chillingworth, MS., where only the party conducting the sale was allowed to attend

before the Master on the reference of title. This is an exception to the rule, that all parties interested in a proceeding are allowed to attend, and the ground of the exception appears to be, that inasmuch as the other parties are not cognizant of the proceedings between the vendor's and the purchaser's solicitors on the title out of the Master's office, and inasmuch as the inquiry before the Master is a continuation of such investigation, that the same reason which renders their assistance useless in the one case, makes it so in the other.

If the deeds are in the hands of a third person, and he is a party to the suit, the Master is at liberty, under the power contained in the decree, on a warrant taken out for the purpose, to order him to produce and leave the same in his office, but if such production is only required by the vendor, to enable him to make out an abstract of title, and the party holding the deeds tenders him a copy of the abstract, and offers no obstacles to the purchaser examining the same with the deeds; the Masters are [ *201 ] very reluctant to cause the deeds to be produced merely that the vendor's solicitor may have the fee for drawing the abstract, instead of the party holding the deeds. If an abstract of the title, or any part of it, is in existence, the vendor's solicitor should, if possible, obtain a copy of it, as if he could have obtained it, he will not be allowed for drawing a fresh abstract.

Having made these preliminary observations, I now proceed to explain the manner of compelling a purchaser to complete his purchase.[a] If the purchaser does not take the Master's report, certifying him to be the highest bidder of lot, the vendor's solicitor gives him notice that, unless he takes and confirms it within a given time, that he, the vendor's solicitor, will do so for him. If the purchaser delays after this notice to take the report, the vendor's solicitor should take it, and file and confirm it, by orders nisi and absolute in the usual way.

It is necessary that the report should be confirmed absolutely before any steps are taken by the vendor to compel the purchaser to complete; and a motion that the pur

[a] Where a person becomes a purchaser under a decree of the Court of Chancery, he submits himself to the jurisdiction of the Court, in that suit, as to all matters connected with such sale, or relating to him in the character of purchaser. Requa v. Rea, 2 Paige, 339. And he will be compelled to execute the contract, on summary application, with out a bill. See the cases cited, Vol. I. p. 441, note [a].