Nor when the seller is plaintiff can parol evidence be admitted on his behalf, of the declarations at the sale, although the purchaser by the written agreement bind himself to abide by the conditions and declarations made at the sale(h)(6). But a question has been raised, whether, if by a collateral representation a party be induced to enter into a written agreement, different from such representation, he may not have an action on the case for the fraud practised to lay asleep his prudence(i)(7). (*)And if the purchaser have particular personal information given him of an incumbrance, or of the nature of the title, it seems that the parol evidence may be admitted(j). It may therefore be proved that the purchaser perused the original lease before the sale(k). Such evidence may be used in equity as a defence against the specific performance, if the parol variation was in favor of the defendant, and the plaintiff seek a performance in specie according to the written agreement()(8). (h) Higginson v. Clowes, 15 Ves. jun. 515. (i) See Powell v. Edmunds, 12 East, 6. (j) Gunnis v. Erhart, 1 H. Black. 289; and see Pember v. Mathers, 1 Bro. C. C. 52; Fife v. Clayton, 13 Ves. jun. 546, where the particular was altered before the sale. Ogilvie v. Foljambe, 3 Mer. 53. (k) Bradshaw v. Bennett, 5 Carr. & Pay. 48. (1) Higginson v. Clowes, ubi sup. by the verbal declarations of the auctioneer, publicly made at the sale, and before the biddings commenced, not variant from the terms advertised, but merely additional and explanatory; and that the purchaser may be compelled to complete his purchase according to the terms so explained. Cannon v. Mitchell, 2 Des. 320. See Wainwright v. Read et al. 1 Des. 573. (6) See Contra. Grantland v. Wight, 2 Munf. 179. (7) See Bulkley v. Storer, 2 Day, 531. Monell v. Colden, 13 Johns. Rep. 395. (8) See Ten Broeck v. Livingston, 1 Johns. Ch. Rep. 357. Wainwright v. Read et al. 1 Des. 573. If it be the custom in a public auction-room to paste up the conditions of sale in the room, and the auctioneer announces that the conditions are as usual, they will, if pasted up according to the usual custom, be binding on the purchaser, although he did not see them(m). This can seldom, however, happen upon a sale of estates. The late Mr. Bradley recommended, that where it is understood, at the time of sale, that the vendor has only a doubtful title, a provisional clause, to the following effect, should be inserted in the conditons of sale and articles of purchase; which would be sufficient, he thought, to obviate any doubt that might otherwise arise at the sale: "That if the counsel of the purchaser shall, on the examination of the title, be of opinion that a good title and conveyance cannot be made of the purchased premises, within the time limited by the articles for carrying the same into execution; in that case, the same articles shall be discharged, and not further proceeded in on either side." (*) The estate cannot be too minutely described in the particulars; for although, as Lord Thurlow observed, it is impossible that all the little particulars relative to the quantity, the situation, &c. should be so specifically laid down, as not to call for some allowance and consideration, when the bargain comes to be executed(n); yet, if a person, however unconversant in the actual situation of his estate, will give a description, he must be bound by that, whether conusant of it or not(o)(9). (m) Mesnard v. Aldridge, 3 Esp. Ca. 271. (0) See 1 Ves. jun. 213, per Lord Thurlow; Schneider v. Heath, 3 Camp. Ca. 506. (9) See Judson v. Wass, 11 Johns. Rep. 525. M'Ferran v. Taylor, el. alt, 3 Cranch, 270. State v. Gaillard et. al. 2 Bay, 11. Lord Ellenborough has observed, that a little more fairness on the part of auctioneers, in the forming of their particulars, would avoid many inconveniences. There is always either a suppression of the fair description of the premises, or there is something stated which does not belong to them; and in favor of justice, considering how little knowledge the parties have of the thing sold, much more particularity and fairness might be expected. The particulars, his Lordship added, are in truth like the description in a policy of insurance, and the buyer knows nothing but what the party communicates(p). In one case(q) the conditions of sale stated a house to be "a free public-house." The lease contained a covenant to take beer from the lessors; the auctioneer read over the whole lease in the hearing of the bidders, but he stated erroneously that the covenant had been decided to be bad. The purchaser brought an action to recover his deposit. Lord Ellenborough said, that in the conditions of sale this is stated to be "a free public-house." Had the auctioneer afterwards verbally contradicted this, (*) he should have paid very little attention to what he said from his pulpit. Men cannot tell what contracts they enter into if the written conditions of sale are to be controlled by the babble of the auction-room. But here the auctioneer, at the time of the sale, declared, that he warranted and sold this a free public-house. Under these circumstances, a bidder was not bound to attend to the clauses of the lease, or to consider their legal operation. Where a lease is sold, the purchaser is not bound to complete his purchase if any part of the buildings demised have been removed, although he heard the lease (p) See 3 Smith, 439; and see Duke of Norfolk v. Worthy, 1 Camp. Ca. 337, and post. Waring v. Hoggart, 1 Ry. & Mood. 39. (q) Jones v. Edney, 3 Camp. Ca. 284. read, and the particulars did not comprise the building in question(r). But where the agreement was to sell the lease of a public-house, described as held at a certain net annual rent, under common and usual covenants, it was held that the contract was binding upon the purchaser, although the lease contained a covenant by the tenant to pay the land-tax, sewers rate and all other taxes, and a proviso for re-entry if any business but that of a victualler should be carried on in the house(s). In a case where the original lease contained a power of re-entry if certain trades were carried on upon the property, and the lessee granted under-leases containing no such stipulation, and upon a sale by the assignee of the original lessee, the conditions of sale stated the covenant in the original lease, and that such covenant would be inserted in the under-leases to be granted to the purchasers, but no mention was made whether the covenant was inserted in the under-leases already granted, the purchaser was allowed to recover his deposit from the (*)auctioneer(t). Lord Tenterden observed, that he was of opinion that it is the duty of every person truly and honestly to represent that which he is to sell. A careful man and a lawyer looking at these conditions of sale might ask what were the terms of the leases which had been granted: The purchaser is informed by the statement in the conditions, that the original lessee is restrained from carrying on these obnoxious trades, and that in the leases to be granted to him a similar covenant is to be entered into. None but a very careful person would suppose that it could be doubtful whether the (r) Granger v. Worms, 4 Camp. Ca. 83. (8) Bennett v. Womack, 7 Barn. & Cress. 627; S. C. 1 Man. & R. 644. (1) Waring v. Hoggart, 1 Ry. & Mood. 39. persons to whom under-leases had already been granted were bound in the same manner. He was, therefore, clearly of opinion that the plaintiff could not be bound to take the title. In stating an estate to be of any given "clear" yearly rent, the parties should attend to the meaning of the word "clear," in an agreement between buyer and seller; which is clear of all outgoings, incumbrances, and extraordinary charges, not according to the custom of the country, as tythes, poor-rates, church-rates, &c. which are natural charges on the tenant(u). As we have already seen, the statement that the property is in lease binds the purchaser to the covenants in the lease(v). In Barraud v. Archer(w) the particulars of sale described the estate, which was in the Isle of Ely, as consisting of fen land, and as being let to a tenant at the yearly rent of 165l., and stated that the lessor allowed the eau-brink-tax and land-tax. It appeared that the estate was also subject to other taxes for embanking and draining, under a local public act of (*)Parliament, and as they were not mentioned in the particulars, the purchaser claimed a compensation for them. On the part of the seller, it was insisted that there was no misrepresentation, and that the particular expressly mentioned that the estate was fen land, and enumerated all the taxes which the landlord allowed to the tenant, and that it was not usual to state the taxes which the tenant paid. The Vice-Chancellor held that the purchaser was not entitled to a compensation(x). But if there was a misrepresentation, of course the purchaser would be entitled to a compensation. (u) Earl of Tyrconnel v. Duke of Ancaster, Ambl. 237; 2 Ves. 500. (v) Supra, p. 9. (to) 2 Sim. 433. (x) Lord Townsend v. Granger, 2 Sim. 433. |