tract is completed, be restrained by injunction from committing waste(j). SECTION II. Of opening the Biddings, and of rescinding the Contract. THUS far we have traced a sale before a Master where no opposition is made to the absolute confirmation of the Master's report of the best bidder, and the sale is regularly concluded. But where estates are sold before a Master under the decree of a court of equity, the Court considers itself to have a greater power over the contract than it would have were the contract made between party and party(k); and as the chief aim of the Court is to obtain as great a price for the estate as can possibly be got, it is in the habit of opening the biddings after the estate is sold (27). It seems to have been thought that the (j) Cassamajor v. Strode, 1 Sim. & Stu. 381. (k) See 1 P. Wms. 747. Ford v. Herron, (27) See Fairfax v. Muse's Exrs. 4 Munf. 124. 4 Munf. 316. Wood's Exr. v. Hudson, 5 Munf. 423. In the State of New-York, the English practice of opening biddings at a master's sale, is not adopted: But where the executors of a mortgagee were innocently misled, and induced to believe, that the sale of the premises would not take place on the day appointed, and there being no culpable negligence on their part, the court, under the special circumstances of the case, set aside the sale, and ordered a re-sale, on condition that the defendant should pay the purchaser all his costs and expenses, and the costs of the application, though the sale was perfectly fair. Williamson v. Dale, 3 Johns. Ch. Rep. 290. See Lansing v. M'Pherson, 3 Johns. Ch. Rep. 424. (*)same rule may be extended to sales under a commission of bankruptcy(). This, however, never has been done, nor is there any reason to apprehend that so mischievous an extension of the rule will ever take place. Where a person is desirous of opening a bidding, he must, at his own expense, apply to the Court, by motion for that purpose, stating the advance offered. Notice of the motion must be given to the person reported the purchaser of the lot, and to the parties in the cause(m). If the Court approve of the sum offered, the application will be granted, and on the order being drawn up, entered and served, a new sale must be had before the Master. The order is made at the expense of the person opening the biddings, and he must bear the expense of paying in his deposit, and pay the costs of the first purchaser(n), and interest at the rate of 41. per cent. on such part of the purchase-money as the Master shall find to have lain dead(o). Mere advance of price, if the report of the purchaser being the best bidder is not absolutely confirmed, is sufficient to open the biddings, and they will be opened more than once, even on the application of the same person, if a sufficient advance be offered(p); but the Court will stipulate for the price, and not permit the biddings to be opened upon a small advance(q); and, although an advance of 10 per cent. used generally to be considered suffi (1) Ex parte Partington, 1 Ball & Beatty, 209. (m) For a form of the notice, see 2 Turn. Pract. 649, 650. (n) 2 Fowl. Pract. 318; 1 Turner's Pract. 131. (0) This was directed on opening the biddings for Gen. Birch's estate, MS. (p) Scott v. Nisbitt, 3 Bro. C. C. 475; Hodges v. Jones, 2 Fowl. Pract. 318; see Baillie v. Chaigneau, 6 Bro. P. C. by Toml. 313; Preston v. Barker, 15 Ves. jun. 140. (9) Anon. 1 Ves. jun. 453; Anon. 2 Ves. jun. 487; Upton v. Lord Ferrers, 4 Ves. jun. 700; and Anon. 5 Ves. jun. 148. (*)cient on a large sum, yet no such rule now prevails(r) ; but in the case of a sale under a creditor's suit, the Court permitted the biddings to be opened, upon an advance of 5 per cent on 10,000l.(s). An advance of 350l. upon 5,300l. was refused, and it was said that the former cases only established that where an advance so large as 500l. is offered the Court will act upon it, though it be less than 10 per cent(t). Biddings, it seems, will not be opened unless 401. at least be offered in advance(u); and the common rule does not apply to a colliery(w). The determinations on this subject assume a very different aspect when the report is absolutely confirmed. Biddings are in general not to be opened after confirmation of the report(x): increase of price alone is not sufficient, however large, although it is a strong auxiliary argument where there are other grounds. In a case(y), however, before Lord Rosslyn, this rule, although so frequently acknowledged and acted upon, was not attended to, but biddings were opened after the report was absolutely confirmed, merely on an advance of price. This case is now completely overruled. But very particular circumstances may perhaps induce (r) Andrews v. Emerson, 7 Ves. jun. 4; White v. Wilson, 14 Ves. jun. 151. See Anon. 3 Madd. 494. (s) Brooks v. Snaith, 3 Ves. & Bea. 144. (t) Garstone v. Edwards, 1 Sim. & Stu. 20; Lefroy v. Lefroy, 2 Russ. 606. (u) Farlow Weildon, 4 Madd. 460; Brookfield v. Bradley, 1 Sim. & Stu. 23. (w) Williams v. Attenborough, 1 Turn. 70. (x) 2 Ves. jun. 53; Scott v. Nisbitt, 3 Bro. C. C. 475; Boyer v. Blackwell, 3 Anstr. 656; Prideaux v. Prideaux, 1 Bro. C. C. 287; 2 Ves. jun. 53; 1 Cox, 35. (y) Chetham v. Grugeon, 5 Ves. jun. 86; and see his Lordship's decision in Prideaux v. Prideaux, ubi sup. when Lord Commissioner. (*67) the Court to open the biddings after confirmation of the report, if the advance be considerable(I). (*) Thus, in a case(z) where the owner of the estate (who joined in a motion for the purpose of opening biddings after the report was absolutely confirmed) was in prison at the time of the confirmation, and it appeared that he would have opened the biddings before confirmation of the report, had he been able, and had even directed persons to bid more than what the estate sold for, who deceived him, and an advance of 4,000l. (being more than one fourth of the original purchase-money) was offered, the biddings were opened on the deposit of the 4,000l. being made. Strong as the circumstances in this case were, Lord Eldon, in a late case, expressed great disapprobation of the decision, and determined generally, that after a purchaser has confirmed his report, unless some particular principle arises out of his character, as connected with the ownership of the estate, or some trust or confidence, or his own conduct in obtaining his report, the bidding ought not to be opened (a). And Lord Redesdale, also, in a case before him, held that biddings could not be opened after the report was absolutely confirmed, unless on the ground of fraud on the part of the purchaser. And he considered it to the advantage of suitors to observe greater strictness in opening biddings, as it would procure better sales(b). (z) Watson v. Birch, 2 Ves. jun. 51; 4 Bro. C. C. 172. . (I) In Ireland, a sale under a decree was actually set aside after the purchaser was put in possession, and the conveyance to him executed and registered, because another person offered 2001. more than the purchaser had paid. Conran v. Barry, Vern. and Scriv. 111. See Ex parte Partington, 1 Ball and Beatty, 209. In a still later case, Lord Eldon adhered to the same rule, and said that he could not do a thing more mischievous to the suitors than to relax further the binding nature of contracts in the Master's office: half the estates (*) that are sold in the Court being thrown away upon the speculation that there will be an opportunity of purchasing them afterwards by opening the biddings(c). Fraud will, of course, be a sufficient ground for opening the biddings. Therefore, if the parties agree not to bid against each other(d), or a survey be made of an estate with some degree of collusion with the tenants(e), and it misrepresents the value and quality of the estate, and some of the purchasers are aware of this fraud in making the survey, and the owner is ignorant of it; or the purchaser of the estate be partner with the solicitor of the cause, and is in possession of some particular knowledge to the benefit of which the other parties were entitled(f); in all these cases the Court would open the biddings, although the report had been absolutely confirmed. Where the biddings are opened, the advance is ordered to be deposited immediately (g), and the costs of the purchaser to be paid by the persons opening the biddings(h); but the Court will not direct the Master to allow a specific expense(i). If the biddings are opened, the estate may be allotted for sale in a different manner to what it at first was(j). (c) White v. Wilson, 14 Ves. jun. 151. (d) See 2 Ves. jun. 52. (e) Ryder v. Gower, 6 Bro. P. C. 148; and see 2 Ves. jun. 53. (f) Price v. Moxon, July 14, 1754, before Lord Hardwicke. See 6 Bro. P. C. 155; 2 Ves. jun. 54. (g) Anon. 6 Ves. jun. 513. (h) See Watts v. Martin, 4 Bro. C. C. 113; and see ibid. 178 ; Upton v. Lord Ferrers, 4 Ves. jun. 700. (i) Annon. 1 Ves. jun. 286. (j) Watts v. Martin, 4 Bro. C. C. 113. |