ported against the title, yet if the vendor under the decree be in a situation to make it good before the purchaser brings on his mo[ *252 ] tion to be discharged from the purchase, the court will refer it back to the Master to review his report.

In order, however, to entitle the vendor to this favour, his conduct must be characterised by perfect good faith, for if he have been guilty of any misrepresentation or concealment, as to the state of the title, or vexatious or needless delay in perfecting it, he will not be entitled to such indulgence; but in the case of a suit for specific performance his bill will be dismissed, and in the case of a sale under a decree of the court, the purchaser will be discharged from his purchase, notwithstanding the vendor may in the mean time have put himself in a situation to perfect, or even have actually perfected his title.

The latter branch of the proposition is illustrated by the recent case of Dalby v. Pullen.(g) There Sir Robert Wigram having been declared the purchaser of certain lots, it appeared on the abstract being delivered to him, that part of the property which he had bought was derived from J. C., and that it had been conveyed to him subsequently to the date of his will; so that it would not pass to Nicholas C., his devisee, under the trusts of whose will the sales in question were ordered by the court. Sir Robert Wigram, therefore, required proof that N. C. was the heir of J. C. Statements were made by the solicitor of the plaintiffs, which appeared to be satisfactory, and some other [ *253 ] objections to the title having been removed, the report of Sir Robert being the purchaser was confirmed, and the purchase-money paid into court. Before any conveyance was executed, Sir Robert Wigram was informed, by persons who were not parties to the suit, that Nicholas C. was not the heir of J. C. Search was accordingly made, and it was soon ascertained that N. C. was not the heir-at-law, but that there was living an heir of an elder brother deceased, who now claimed to be entitled to the after-purchased lands. In this state of circumstances an order was made referring back the title to the Master; he reported against it and to his report exceptions were taken. Pending the exceptions, the heir-at-law executed a release and conveyance of all his interest. Shortly afterwards the exceptions were argued and overruled, and as soon as they were disposed of, two motions were made; one by the purchaser to be discharged from his purchase, and the other by the plaintiffs, that it might be referred back to the Master to review his report and inquire whether the vendors could now show a good title.

There were further affidavits, the effect of which, on the whole, went to show that the plaintiff's solicitor had been guilty of some degree of concealment of his knowledge as to the heir-at-law of John Carter and on these affidavits the Vice-Chancellor granted Sir R. Wigram's motion, and refused the *other with costs. (h) From this or[ *254 ] der there was an appeal to the Lord Chancellor. There were two questions; first, whether all the parties to the suit were to be bound by the conduct of Mr. Street, the plaintiff's solicitor; and Lord Lyndhurst was clearly of opinion "that with reference to the purchase

(g) 1 Russ. & Mylne, 296, on appeal from an order of the Vice Chancellor, 3 Sim. 29, which was confirmed.

(h) 3 Sim. 29.

and sale, he must be considered to be acting for all the parties in the cause," and that to decide that he was not, and on such a ground to hold the purchaser to his contract, might lead to the greatest hardship and injustice as respected the purchaser; and the court being of opinion upon the affidavits that Mr. Street had discovered that Mr. Nicholas was not the heir-at-law during the discussion as to the title, proceeded thus: "Now, Mr. Street having represented in the first instance that' Nicholas Carter was the heir-at-law of his brother John, and having during the progress of the discussion on the other points, discovered that in that respect he was mistaken, and that another person was the heirat-law, it was his duty, in fair and honest dealing, to have communicated that circumstance to the purchaser; and he not having communicated that circumstance to the purchaser, and the purchaser having, after the other objections to the title had been cleared up, discovered it by accident in consequence of a communication from another quarter, and this court having determined upon *exceptions to the master's report, that it constituted a good objection to the title; [ *255 ] it appears to me quite impossible, that the parties in this suit, if they are bound by the acts of Mr. Street, have any equity to come into this court to say that a further reference should be directed to the master for the purpose of ascertaining whether a good title can or not be now shown; for it is quite obvious that if this discovery had not been made, the vendors would have forced the purchasers to have taken the title such as it was, knowing that defect to have existed in it, which has since been discovered. Under these circumstances it is quite impossible that the purchaser can be held to his contract; the application made on the part of the vendors must be dismissed with costs."

SECTION VII.

Of Exceptions to the Master's Report.

If either party be dissatisfied with the Master's report on the title, he brings his objections to it before the court in the shape of exceptions, when the points in dispute are fully argued and settled.

If upon argument of an exception the court should be against the title, the vendor should obtain an order that the exception may stand over; as otherwise, it would appear upon record that a *good title could not be made. (i) The court, however, will not al- [ *256 ] ways permit this; especially where the vendor's conduct has been vexatious, or even dilatory only: thus, in a recent case of Andrew v. Andrew,(k) Sir J. Leach allowed the exception, refusing to permit it to stand over, to give the vendor an opportunity of remedying the defect, notwithstanding very urgent application on the part of the vendor's counsel, who stated that it was the universal practice not to allow the exception but to permit it to stand over. His Honour expressing great surprise that counsel should make such an assertion, said that he had known it done very frequently. In that case, however, it ought to be observed, that the vendor's conduct had not been such as to entitle him.

(i) Cooper v. Denne, 1 Ves. Jun. 567.

(k) Rolls, 7th July, 1831. MS.

to indulgence; the exception, according to the statement of the purchaser's counsel having been allowed to stand over once or twice before, to give him an opportunity of getting certain parties to join in suffering a recovery, which would have cured the defect in the title, but which he had not done.

It is competent to the purchaser, at any time before the decree on further directions, to have the report (notwithstanding it may have been absolutely confirmed) referred back to the master to review it, on the discovery of a new fact affecting the validity of the title. Thus in Jeudwine v. Alcock, (2) the Master *having reported in favour [ *257] of the title, and no exceptions being taken, the report was absolutely confirmed. Afterwards another Master, in a different proceeding, made a report by which the title was affected; whereupon the defendants presented a petition, supported by an affidavit of the fact, that they were ignorant of the second set of proceedings, till after the Master's report was confirmed, praying a reference back to the Master as to the title, to review his report, which was ordered accordingly.

If exceptions be taken to the Master's report that a good title can be made and are over-ruled, other objections to the title cannot be made; but if the exceptions be allowed, and the report sent back to the Master to review it, and new abstracts be delivered, (m) further objections may be brought in, arising, either out of the new abstracts which appears to be perfectly reasonable, or out of the abstracts delivered previously to the Master's report, the propriety of which is not so obvious, because it may be said, that the parties, having had full opportunity already of examining the abstract, have precluded themselves from further objecting to it. This, however, is not so, as has been already observed, and the practice was so settled in Fildes v. Hooker. This was a suit to enforce the specific performance of an agreement to grant a lease for 21 years, of a house in Crescent Place, near Tavistock Square. The abstract referred only to a lease for 99 years, dated July 21st, 1809, from the Skinner's Company *to Burton, an under lease from [ *258 ] Burton to Kerry, dated 29th September, 1809, and a lease from Kerry to the plaintiff, dated 29th November, 1810, for 95 years and three quarters, wanting ten days. The Master reported that the plaintiff could make a good title to a lease for 21 years, according to the agreement; to this report the general exception was taken, "that the Master ought to have reported, that the plaintiff could not make a good title." The question raised upon this exception was "whether in the absence of express stipulation to the contrary, the vendor of a leasehold interest is bound to produce the title of the lessor?" Sir W. Grant, without deciding the general question, but,-taking the obvious distinction between the power of the court to compel the vendor to produce his lessor's title, and the propriety of its assisting him without such production, was of opinion, at all events, that if the vendor would not produce his lessor's title, equity ought not to assist him in forcing his agreement on the purchaser; because to say that the purchaser must be content with the title, which had been produced, "would be to say in other words, that he has no right to require any title whatever," and

(2) 1 Madd. 597. (m) Brooke v.

And see Dalby v. Pullen, 1 Russ. & Mylne, 298.
4 Madd. 212.

therefore allowed the exception; but as the Master by approving of the title, had rendered it unnecessary for the plaintiff to go further and produce, if that were in his power, the title of the ground-landlord, his Honour thought that he should have an opportunity of so doing, and accordingly allowed the exception, but directed the report to be sent back to the Master to *review it.(n) When the case went

back to the Master, a new ground was taken, and it was ob- [ *259 ] jected that the premises were, by former leases, made subject to covenants for rents and otherwise, to which it was alleged the premises still remained liable; upon which the Master reported that he was of opinion, "that, upon the plaintiff indemnifying the defendant against the performance of any covenant, which may have been entered into, by the plaintiff or any former lessees of the premises, for payment of any rents or otherwise, in respect of the premises, the plaintiff can make a good title to the premises, upon a lease for the term of 21 years, according to the agreement." The report was again excepted to, and Sir J. Leach allowed the exception. His Honour said, "it appears, that the house in question is one of the six houses built on ground demised by the Skinner's Company to Mr. Burton, for a term of 99 years, from Michaelmas, 1807, at a ground rent of £10, and in that lease is contained a proviso for re-entry, upon non-performance of any of the covenants contained in it. The plaintiff is now in possession by an assignment of an underlease, granted by Mr. Burton, of that particular house. This underlease contains all the covenants which are included in [ *260 ] the original lease; but it is obvious that the observance of these covenants by the holder of this underlease cannot alone protect his possession. If this defendant were to accept the lease, contracted for, from the plaintiff, and the covenants in the original lease, though well observed with respect to this particular house, were to be broken as to any other of the five houses, the Skinners' Company would be entitled to re-enter, not only on that particular house, but upon the whole property comprised in the original lease, and consequently on the premises in question. The plaintiff is necessarily, therefore, driven to admit, that he cannot give to the defendant a secure lease for the term of his contract."(o)

On a sale by auction or private contract, the sale is complete when the articles are signed; but on a sale by the Master, the purchaser is not entitled to the benefit of his contract till the report of his being the purchaser has been absolutely confirmed,-a rule founded clearly on the nature of the transaction; for the Master's report is merely to the effect, that a certain person is the best bidder, and therefore can amount to nothing till the court has accepted this bidding, which it does by confirming the report. Until the report has been confirmed, the transaction is

(n) 2 Mer. 424; "it is the course of the court, where the Master has, by expressing an opinion in favour of the title, prevented the vendor from showing, that if his opinion had been otherwise, still the title was good, to send it back to the Master to review his report, the party moving paying the costs of the motion." (Per Sir L. Shadwell, V. C., in Egerton v. Jones, 3 Sim. 392; Andrew v. Andrew, ibid. 390;) Egerton v. Jones, 1 Russ. & M. 694; Portman v. Mills, Id. 696.

(0) Fildes v. Hooker, 3 Madd. 193.

nothing more than a proposal by one side, which may be approved or rejected by the other. Not therefore, till the court has acquiesced in [ *261 ] this proposal, is there any contract. Not therefore, till the *report has been confirmed, is the property changed in equity. The confirmation of the report has all the effect of signing a written agreement between private persons; and there seems to be no principle, or any authority, for contending, that it has any other or different effect from a contract in writing and signed. Attending to these considerations, the doctrines of equity on the subject will be perfectly clear and intelligible. (p)

1

*Hence, if the property have been injured or destroyed [ *262 ] by fire in the interval, before the confirmation of the report, the loss falls on the vendor.(g) Hence, also, a purchaser being served with a notice to open the biddings cannot proceed to confirm the report absolutely, the notice being tantamount to a declaration that the bidder's proposal has not been accepted, and that the contract is at an end.(r) Nor can the court, until the report has been confirmed, pro[ *263 ] ceed summarily against the purchaser;(s) to *found this ju

risdiction, the contract must first be made complete; the vendor may then proceed to obtain an order that the purchaser shall pay in his purchase-money, and be let into possession from a given day;

(p) This seems to concur with the view taken of this subject by Lord Eldon in ex parte Minor, (11 Ves. 561,) which was a petition by the purchaser to have the value of certain premises, destroyed by fire before the confirmation, ascertained, and the amount deducted from the purchase-money: the only question upon this was, as to the time when there was a complete contract, for until then the property was not changed. Lord Eldon observed, "what is the date and time of the contract, at which it can be said to have been complete? Is the bidding in the Master's office the contract between the court and the bidder, or only an authority to the Master to tell the court, that if the court approves, the court may make a contract with him upon the terms proposed? Let the Master certify to me what were the conditions of sale, and what has been the deterioration in value by the fire, and reserve the question; for though the sum is not large, the question is one of the most considerable that has occurred for some time. In some of the cases that have been cited, the change of property is said to be from the date of the report; in others from the time of the conveyance; so that, though confirmed as the best purchaser, if he had not got the conveyance, he would have been entitled to say the estate was not his. That cannot be according to the principle. Suppose this person had insured the premises, while in the Master's office, from fire, would he, according to the cases in late times have had an insureable interest? His interest is not near so thin as many, that have been considered insureable ;" and he accordingly on taking time to consider, declared in conformity with the tenor of the preceding observations, that the loss occasioned by the fire must fall upon the vendor, and made the order accordingly with (See post. p. 265, 266, from which it would seem that Lord Eldon afterwards entirely forgot the doctrines he has here stated.) A similar view seems to result from the judgment of Lord Hardwicke, in Mackrell v. Hunt (2 Madd. 34, n.,) where his Lordship observes, a purchaser under the decree of the court is not considered to be the owner, and consequently not entitled to the rents and profits of the estate, till after the time for paying the money into the bank. The bidding is general, and though the report may be confirmed, yet the purchase is not completed till the title is accepted and the money brought into court; for, till then, objections to the title may avoid the bidding, though it seems to be otherwise, when, upon the reports being confirmed, the purchaser comes into court, and, to accelerate the purchase, declares he is satisfied with the title, and brings in the purchase-money." (9) Ex parte Minor, 11 Ves. 559; and see Twigg v. Fifield, 13 Ves. 517. (r) Vansittart v. Collier, 2 Sim. & Stu. 608.

costs.

(8) Anon. 2 Ves. Jun. 335. In this case the report had been confirmed nisi; on the motion, that the person reported purchaser should complete his purchase and pay in his money by a given day, Lord Loughborough said, " he felt a difficulty, as until confirmation the purchaser is always liable to have the biddings opened, until that non constat that he is a purchaser."