party himself, or from ill-will toward the other, or from mere wantonness, is immaterial. And in these cases, to use the language of Sir William Grant, it will be sufficient proof of fraud to show, first, that the fact as represented is false; secondly, that the person making the representation had a knowledge of a fact contrary to it. The injured party cannot dive into the secret recesses of the other's heart, so as to know whether he did or did not recollect the fact; and therefore it is no excuse in the party who made the representation to say, that though he had received information of the fact, he did not at that time recollect it.

And on the same ground, if a person having a right to an estate permit or encourage a purchaser to buy it of another, the purchaser will be entitled to hold it against the person who has the right, although a married woman, or under age. And the same rule has even been extended to a case where the representation was made through a mistake, as the person making it might have had notice of his right.

If you suspect that any person has a claim on an estate which you have contracted to buy, you should, before proper witnesses, inquire the fact of him, at the same time stating that you intend to purchase the estate; and if the person of whom the inquiry is made have an encumbrance on the estate, and deny it, equity would not afterwards permit him to enforce his demand against you. The witnesses in this case should take a note of what passes, because a witness may refresh his memory by looking at any paper, if he can afterwards swear to the facts from his own memory.

Where it is stated upon a sale, even by auction, that the estate is in lease, and there is no misrepresentation, the purchaser will not be entitled to any compensation, although there are covenants in the lease contrary to the

EXAMINATION OF LEASES.

37

custom of the country, because whoever buys with notice of a lease is held to have knowledge of all its contents. If, therefore, you have notice of a lease, or even that the estate is in the occupation of a tenant, you should not sign a contract for the purchase of the estate until your solicitor has seen and read the leases, unless the vendor will stipulate in writing that they contain such covenants only as are justified by the custom of the country. And even such a stipulation is not quite satisfactory, for there is frequently great difference of opinion as to what is the custom of any particular place.

And in buying a leasehold estate, it is absolutely necessary to know the contents of the lease, particularly the covenants on the tenant's part. They may be onerous, and may, for example, prohibit you, as the purchaser, from assigning without the landlord's consent; yet you would be bound by them, because you would be held to have bought with implied notice of them. So it is not unusual to stipulate, in conditions of sale of a leasehold property, that the production of a receipt for the last half-year's rent shall be accepted as proof that all the lessee's covenants were performed up to that period. And now by an Act of Parliament, for which I am responsible, a purchaser without notice is safe where there is such a receipt, and even relief can be granted in equity against a neglect to insure not occasioned by fraud or gross negligence,* but in purchasing a leasehold estate where the tenant is bound to insure, take care to see that there is an existing valid policy, and if necessary advance the money yourself to keep the policy on foot where the purchase is not completed before the existing policy expires.

Where difficulties arise in making out a good title, you should not take possession of the estate until every * See this explained in the Note to the 7th Letter.

38

WHEN POSSESSION MAY BE TAKEN.

obstacle is removed. Purchasers frequently take this step under an impression that it gives them an advantage over the vendor, but this is a false notion: such a measure would, in some cases, be deemed an acceptance of the title. If, however, the objections to the title can be remedied, and you should be desirous to accept possession of the estate, you may in most cases venture to do so, provided the seller will sign a memorandum importing that your taking possession shall not be deemed a waiver of the objections to the title. And although it is not advisable to do so, yet you may, with the concurrence of the seller, safely take possession of the estate at the time the contract is entered into; because you cannot be held to have waived objections of which you were not aware; and if ultimately the purchase cannot be completed, on account of objections to the title, you will not be bound to pay any rent for the estate, unless it is provided for by the contract. When you sell you should keep this in view.

THE AUCTION-ROOM.

39

LETTER VI.

I HAVE not yet dismissed you from your character as a purchaser; but now that you have, according to my suggestions, viewed the property you wish to purchase, and inquired into the nature of the leases, or if it be a leasehold estate, into the liabilities of the lessee or assignee, and carefully considered the conditions of sale, you may venture into the auction-room. But it has become so usual to issue conditions of sale to which no prudent purchaser ought to submit, that it is considered. inexpedient on the part of the seller to produce the conditions until the last moment-in what auctioneers term their second and third editions-and even sometimes it is stated that the conditions will be produced at the time of sale. I remember a sale where there was no such statement, and the estate, sold in lots, was of very considerable value. One copy only of the conditions was handed round at the sale, and no man could retain it more than a few moments. Yet the auctioneer sometimes feels himself justified in stating that the conditions are the usual ones, and he supposes he need not read them. It is seldom that an intended bidder ventures to enter into a discussion with the auctioneer, for several reasons, but more particularly that he does not wish to draw attention to himself as a buyer. Conditions seldom state the rentals and the outgoings; and it is not unusual where part of the property is in hand to affix an estimated value on it, and then to state the aggregate of the actual and estimated rental as actual rental.

40

THE AUCTION-ROOM.

I can assure you that it is most dangerous to buy an estate before your solicitor has time to consider the conditions. Upon one occasion when I was desirous to become a purchaser, the conditions were so long and elaborate-binding the purchaser to so many things and excluding his right to so many others-that it occupied me several hours to make out, as well as I could from the conditions, the several objections to the title, to which, if the purchaser, I was not to object, in order to form any opinion whether, under those conditions, I should have a safe title: a marketable title was not offered. If, under such conditions, you are assured you will have a safe title, yet you should consider them as an undue charge upon you of some few hundreds of pounds, and limit your biddings accordingly. It has indeed now become dangerous to buy at an auction. Sales are made constantly under conditions which not only render the purchaser liable to every expense which ought to fall on the vendor, besides his own proper expenses, but make him pay for the proof and perfection of the seller's title. And more than this, they preclude the purchaser from requiring evidence as to identity of parcels, that is, description of the property, pedigree, and other important matter, without which no one can say that the purchaser will have even a safe title; and to crown the whole, they stipulate for interest during a delay, whatever may be the cause, at a high rate, thus rendering the seller wholly indifferent to time. I have just had sent to me some conditions, &c., of sale of property of little value, with to me a new condition -that any deeds unstamped shall be stamped, and the fines paid, by the purchaser. If a man is about to buy an estate by private contract, he generally takes all proper precautions, and pertinaciously objects to any unusual stipulations in the contract on the part of the