
    *Josey Gordon and Wife, and Others v. John Saunders, Executor, Nathan Sims, and Other
    On a rule to show cause against a purchaser why he should not comply with his bid. his answer by way of affidavit is admissible evidence. The chancellor hears other evidence than that only oliered before the commissioner. Where the purchaser in his answer to a rule to show cause why he does not comply with his bid. alleyes that he bid under a parol understanding- between himself and the other parties interested in the sale, that the purchase should be tor the benoht of them all, he must sustain such allegation by other proof than his own affidavit. But such an agreement between only a part of several interested will be no ground to avoid compliance with a bid. An answer to now facts as to which the defendant was not interrogated must be sustained by evidence aliunde. The answer alone is no evidence. Where the entry of the sale has been lost, the existence and loss may be proved by the commissioner who made the sale. The entry of sale need not be made in a book. Biddings not opened because the price is too high or too low. If the sale has been regularly conducted and fairly made, it is obligatory. Sales have been set aside by the court of chancery in this State, in Lownde’'s case the sale was set aside at the instance of the purchaser, on account of a serious mistake in the representa! ion of the lands. In lioper's case, because the land was knocked oil' to the purchase*.- prematurely by mistake of the auctioneer, who did not hear a h igher bid. Sales, how made in England and in South Carolina.
    
      Querré. If a sale can be set aside or the biddings opened, on «any other ground than that of surprise, accident or fraud, or other ground of purely equitable relief.
    The court prefers a bill to compel a purchaser to comply where it has any doubts. An auctioneer is the agent of both parties, whose entry and signature will take the case out of the statute.
    
      Qva-rc. Whore the case of the commissioner is within the statute.
    An entry of sale by the commissioner should be entered regularly in a book, but it is nevertheless valid if only entered on a loose piece of paper. There is no dillerence between a sale of lands and goods at auction. The auctioneer is the agent of both parties in either case. A purchaser under the decree of the court will ho compelled to execute the contract on rule to show cause without a bill, more especially where the purchaser was a party to the decree under which the sale was ordered. English mode of proceeding. That of New York. There may be cases w here it would be more proper to proceed by bill, but it will always be within the discretion of the court. That the party was surprised by the trial «uíTords no gronnil for the interference of this court. If they were not ready, it was for the court beiow to give time. Where evidence was allowed, all the effect which it could nave had if it had been admitted by the chancellor, it will afford no ground to allect the decree. The purchaser may iiave a reference before the master to ascertain il a good title can be made, but that motion ordinarily can only be made before the chancellor.
    In this case a tract of land was ordered to be sold by a decretal order of the court of equity. The sale took place by the commissioner, «and it was knocked off to Nathan Sims, one of the defendants entitled to a share of the estate, as the highest bidder, at the price of §3,000. Not having complied with the terms of the sale, a rule was taken out on Nathan Sims, to shew cause why he had not complied with the terms of the sale of the land in question, of which he had become the purchaser. It being stated on behalf of Sims, that he did not consider himself bound by the bid of §3,000 which he had made for the land, an order of reference was made to the present commissioner (there having been a late change of that officer,) to ascertain and report whether the sale of the land in question to Nathan Sims should be set aside or not. The commissioner upon the last mentioned reference afterwards made the followmg report, “ that it appeared from the former commissioner’s report puts affidavit, and also from his testimony on the reference before the present commissioner, that he had advertised the land for sale in pursuance of the order of the court, and proceeded to sell the same at public auction, at which sale Nathan Sims became the purchaser of the land at the price of §3,000. That the commissioner made an entry of the sale, which had since been lost or mislaid. That it also appeared in evidence, that it would be very much to the disadvantage of the estate to resell the land. The commissioner therefore reported that the sale of the land to Nathan Sims should not be set aside and ought to be confirmed.”
    *To rePort ⅛0 counsel for Nathan Sims filed the following exceptions, viz :
    
      First. That the commissioner, at the hearing of the case before him, refused to hear the affidavit of the defendant, Nathan Sims, which had been drawn up under the order of the court ordering the case to he referred to the commissioner.
    
      Second. That the commissioner received the affidavit of the former commissioner on the subject of the sale, though the defendant required the production of the entry made by the commissioner at the time of the sale.
    
      Third. That the sale was void under the statute of frauds.
    
      Fourth. That the defendant, Nathan Sims could not be compelled to a specific execution of the contract said to have been made at the commissioner’s sale, in this summary way; but if he could be compelled to comply with the terms of sale at all, it could be done only by bill regularly filed for that purpose.
    DeSaiissure, Chancellor. As to the first exception, I regret that the commissioner refused to receive and consider the affidavit. It was the return to the rule to shew cause, and should have been received and read. That, and all other evidence which went to show that Sims ought not to be bound by Lis purchase, formed proper matter for consideration. It is this opportunity to be fully heard on the motion and rule to show cause which renders it unncessary to proceed by bill and answer. If therefore Sims could be injured by the rejection of his affidavit by the commissioner, I should send the case back to the commissioner with instructions to receive and consider it, however reluctant I might be to occasion further delay. That however cannot occur; for it is habitual with the court to receive new evidence not offered to the commissioner, or evidence offered and *rejected by him. If this were not done, the business of the court would be greatly delayed to the prejudice of the parties. In the case we are considering-, the affidavit of Sims, as an answer and return to the rule, is now before me, and he shall have the full benefit of it. It states “ that he denies that he ever considered himself as a purchaser of the land ; hut that he admits that he bid off the land for the benefit of the estate, under the following circumstances; that is, on the day of the sale, he, the deponent, with two others of the principal devisees of the land, did attend the sale, and before the biddings were commenced, had a consultation as to what was the lowest bid that the land should gooff at; and it was mutually agreed that if it did not go off for more than $3,000, it should be bid in for the benefit of the estate, as they all (the three above mentioned) agreed that it was worth much more than that sum; and he still thinks it would be a great sacrifice, and if he wanted land, he would give more for it. That deponent is informed that no one is opposed to a resale but Matthew Sims. That said Matthew Sims, as deponent is informed, was willing to take the land at $3,000, which the deponent was willing he should do. That a considerable time after the sale, at a reference in this case before the commissioner, all the facts were stated, and all the parties except Matthew' Sims, agreed that it was but justice that the land should be resold. That deponent has been informed and believes that Matthew Sims, when first informed of the lands having been bid off at $3,000, was very much dissatisfied; but as soon as he was informed that it was bid in for the estate, he seemed well satisfied. That deponent would not have availed himself of the purchase, if the land had been knocked off to him at $100. The deponent further says, that the devisees (except Matthew Sims,) who had made these arrangements to bid in the land, also agreed that no advantage should be taken by any of the *parties of the said arrangements not being fully reduced to writing.”
    In considering this affidavit or answer to the rule to show' cause, it must of course be subject to all the rules applicable to an answer, and the general rules of evidence, and the rules of this court. With these preliminaries in our minds, wre will proceed to analyze the affidavit tnade in answer to the rule of court to show cause why he should not proceed to complete his purchase. The affidavit or answer of Nathan Sims admits that he bid off the land at $3,000, but denies that he considered himself a purchaser. The mere denial that he considered himself a purchaser concludes nothing. That is a point on which the court is to form its judgment from the facts of the case. Now the facts of the case are very clear. The land was by public authority ordered to be sold. It was properly advertised and duly sold by the public officer. It was bid off by Nathan Sims as the highest bidder after a real competition of bidders. The officer of the court made an entry in writing of the purchase and of the price. Nathan Sims knew of all this, and of the entry of him as purchaser. He knew the, land well, was satisfied that it was worth more money, and at that time he made-no objection. From these facts it is clear that he was a purchaser in the common sense of the word. But he endeavors to avoid that conclusion by stating that ho did not consider himself a purchaser. Surely it would be most unsafe to allow a man to evade an obligation which he had thus contracted by such a declaration; and no sales could stand if such a declaration should be allowed to prevail against the plain facts which constitute him a purchaser. To avoid the force of this reasoning, reliance is placed on the facts stated in the affidavit, to show the agreement of the heirs and the purchase made for the benefit of the estate ; whence it is concluded that Nathan Sims was not a purchaser, and *is not bound to complete the purchase. But giving Mr. Sims the full benefit of his affidavit, as if it were an answer on oath to a bill for a specific performance, this statement of facts by him cannot be received as evidence, because it is not an answer lo any allegation against him. It is a new allegation on his part which ought to be supported by proofs. To supply this proof, was produced a letter of Mr. Benjamin Maybin, dated the 17th of January, 1823, addressed to the commissioner, which does corroborate with the statement of Mr. Sims in its essential parts, and particularly as to the value of the land, even to the amount of §3,500. On the other hand, Reuben Sims, one of the heirs of the estate, and one of those referred to in the affidavit of Nathan Sims, distinctly states in an affidavit, that he the deponent and Nathan Sims and Benjamin Maybin, “met at Union court house and agreed with each other that the land in question was worth §3,000, and if it sold for less than that sum it should be purchased in for the estate, and that neither would take advantage of the other. But neither of the three parties present undertook that the absent persons interested would accede or come into the agreement above stated. Nor was the agreement intended to be binding on them. That said deponent, Reuben Sims, is willing there should be a re-sale; but he does not conceive that Nathan Sims can be relieved from his purchase without the consent of the other heirs. That Col. Maybin purchased another tract of land of the estate on the same terms, and has complied with the terms of sale. That on the day after the sale, the said Nathan Sims offered the tract of land he purchased to Matthew Sims upon the same terms upon which he had bid it off, and Matthew seemed to signify that he was willing to take the land on the terms stated, but that he required time to consider of it. That after considering upon the matter *for about a week, Matthew' agreed to take the land provided he had three years to pay for it in; but before the papers were executed, the ^aid Matthew refused to take the land or have anything to do with it; though it was by the consent and perfect approbation of the said Matthew Sims, that the said papers were prepared.”
    On these two papers it is to be remarked that the letter of Colonel Maybin, which corroborates Nathan Sims’ statement is not on oath, and therefore not legal evidence; and that the statement of Reuben Sims is on oath. Admit them, however, both to have been correctly received, they neutralize each other where they disagree; especially as to the operation of the agreement of part of the heirs to bid in the land on the other heirs: and the affidavit or answ’er of Nathan Sims stands alone alleging new facts to which he was not interrogated, and therefore not legal evidence. But Reuben Sims in his answer puts the question on the true ground. Matthew Sims was no party to this private agreement; was not intended to be bound by it; was a real and earnest bidder at the sale (through an agent;) and if he had purchased the land at §3,000, or even at a higher price, he could not have been relieved as of right from the purchase; consequently neither he nor the other heirs in his situation are bound by the private agreement of three of the heirs, and Nathan Sims must comply with the terms of the sale as far as they all have interest. This may be done by paying to those heirs their proportions of the price. It would be very mischievous, if a part of the heirs of an estate could make private agreements as to the sale and control of the same, without the concurrence of the other heirs. Nor will the decision injure Nathan Sims; for it is agreed by him and every party before the court, that the land is worth more money than 83,000. The rest of the affidavit of Reuben Sims applies to an alleged negotiation between Nathan Sims *and Matthew Sims, as to the sale by the former tothe latter of the land, which he (Nathan) had purchased at the commissioner’s sale, at the same price he had given for it. It was altogether a distinct and subordinate transaction, and fell through on Matthew Sims’ declining to make the purchase from Nathan. It has no relation to the question before us, nor any bearing on it, except so far that Nathan Sims’ undertaking to make a bargain for the sale to Matthew furnishes evidence of the light in which he then considered himself; that is, as a real purchaser, and entitled to make a sale of the land to any third person, though he afterwards contended that he considered himself merely as having bid in the land for the estate.
    Upon the best consideration then which I could give to this exception, and I have examined it carefully, I think that the first exception ought to be overruled; and it is so accordingly.
    With regard to the second exception, I think the commissioner did right in receiving the evidence of the former commissioner respecting the sale. The reference to him was to get at the facts. The former commissioner was a competent witness. He had no interest. He also best knew the facts, having conducted the sale. He testifies to the regularity of the sale, and to the purchase by Nathan Sims. In Jenkins v. Hogg, the commissioner was the principal witness.
    It is true that Nathan Sims was entitled to the production of the written entry if it existed. But the commissioner who swears to the written entry of the sale having been made, swears also that the entry has been been lost or mislaid. And it is clear that not only an entry of sale, but the most solemn instruments, deeds and even judgments, which are proved to have once existed, may be supplied, on proof of the existence and loss, and of *the contents. All this has been done in this case. The counsel for Nathan Sims insisted that the entry of sale was imperfect because it was not made in a sale book kept for that purpose. That certainly would be the safest course to be pursued by the officer of the court, as it would prevent those losses of loose entries which breed these disputes. But no law prescribes that course. The entry may be made in any way which the commissioner may think proper. He swears that he did make an entry, in this case, of the sale of the land, conformably to the advertisement, the price and the purchaser; and that this entry has been lost. His testimony on plenary examination and cross examination supplies the defect. This exception is therefore overruled.
    The third exception ought to have stated more distinctly in what respect the sale was void under the statute of frauds. If it be on the ground that there was no written entry of the sale, that has not been established. It was argued for the defendant, Nathan Sims, though not distinctly under this exception, nor indeed under any of the ex-
    
      ceptions filed, that the purchaser ought not to be held liable under his purchase, because the price was too high, and it is the course to open biddings, and order another sale. It might be remarked that even in the English practice, it is not the course of the court to open biddings on the ground of the purchaser having given too much, unless in cases of misrepresentation, or some oilier clear and forcible objection. But it is enough to say, it is not the course of the court in this country, to open biddings either on the ground of too high or too low a price. The court looks to the sale, and, if it be regularly conducted and fairly made, considers it obligatory on both parties. Undoubtedly, several sales, made under the authority of the court, have been set aside. In the case of Mr. Lowndes, the sale was *set aside at the instance of the purchaser under the particular circumstances of the case, a serious mistake in the representation of the quality of the land. In Roper’s case the sale was set aside against the will of the purchaser on the ground that the land was knocked off to him prematurely, though another bid was made in due time, and not noticed by the auctioneer. These objections would have applied in any sale, and did not go on the general ground of opening biddings. So in Hall v. Frazier the sale was set aside on the special facts of the case, and the conduct of one of the parties injuring the sale. Perhaps these remarks are unnecessary,* as it has been settled, after much controversy and some discordant decisions, that the regulations of the statute of frauds do not apply to sales made under the ^authority of the court. Upon the whole, it seems to me that this exception must be overruled.
    With regard to the fourth exception, it is to be remarked* anew that this was a fair sale. That there was a competition of bidders, and one of them was displeased that Nathan Sims had become the purchaser at so moderate a price. That Nathan Sims was a party to the suit; and as the former commissioner proved, saw or knew of the entry of the sale to him, and made no objections at that time; and that Nathan Sims as a party is more immediately under the control of the court. In the exercise of that control the court sometimes directs a hill for a specific performance ; but it often decides the question on motion, and a rule to shew cause. It prefers a bill where it has some doubts; but, in cases which appear to be clear, it acts upon motion to show causo. And surely this is the proper course in most cases : for generally sales are made to settle estates, to pay creditors, to divide estates among heirs, and such purposes as require speed. This mode of proceeding prevents great delay, and saves great expense. The purchaser too has the benefit of any testimony he can produce to show that he ought not to he bound. There is not an objection which he may not urge as well on his return to the rule, as in the mode of proceeding by bill and answer. I think, therefore, it is proper to overrule this exception.
    It is therefore ordered and decreed, that the rule on Nathan Sims to show cause “ why he has not complied with the terms of sale of a tract of land sold in this case, and purchased by the said Nathan,” be made absolute ; and that he be decreed to do and perform all that may be considered necessary by the commissioner to complete his said purchase, and give the proper securities.
    Nathan Sims appealed from this decree on the grounds taken before the chancellor, with the additional grounds styled in the decree of this court Nos. 5, 6, 7, 8, viz:
    Fifth. “That the case ought to have been sent back *to the commissioner, as defendant, Nathan Sims, was taken by surprise, in not being allowed the benefit of all legal testimony before the commissioner, and conceiving that the commissioner’s decision would be overruled, did not produce before the commissioner all the testimony that he could and would have done, but for the consideration that he would have another opportunity.”
    Sixth. “ Because the decree does not allow the defendant the benefit of Benjamin Maybin’s letter, which was received as legal evidence on the hearing by consent, and especially as he is a party in interest, and his naked declarations are evidence against him or those he represents.”
    Seventh. “That there was no evidence of any plot of the land sold having been made, so that the court cannot say what was sold by the commissioner.”
    Eighth. “That the decree ought not in any view to make the defendant Nathan Sims liable to any of the heirs except Matthew Sims, as he appears to be the only one who is dissatisfied with the sale; and not even to him without giving him time to compel Benjamin Maybin attorney for Harris and wife, and Reuben Sims, his co purchasers, to contribute their portions of the purchase money.”
    A. W. Thompson, for the appellant.
    O’Neall, contra.
    
      
      
         These cases of Mr. Lowndes and Roper have never been reported. They were referred to by the chancellor upon his recollection of the cases, when they occurred some years since in Charleston.
    
    
      
       The case of Frazier v. Hall, or rather Center v. Frazier, was decided a few years since in Columbia,but the reporter, who was concerned for the purchaser, has reasons to believe that the court was afterwards dissatislied -with their decree. Upon a resale, the premises brought but one-third of the first sale, and a second attempt to set aside the sale was made before chancellor DeSaussure, who expressed great indignation at the imposition which had been put upon the court, on the former motion, by the defendant in the cause (Frazier.) It became evident to the court upon the second motion to open the biddings, that there had been a fraudulent combination to defeat the sale between the defendant in the cause and the person who pretended to make a higher bid. The chancellor conJirmed the second sale. This case therefore can form no authority for the future guidance of the court.
      We do not think that many of the English cases as to opening the biddings can apply in this State. The method of selling under decrees of the courts is entirely different in the two countries. In England, after the order for sale is entered, the solicitor for the party prosecuting the decree or order for sale, in such cases as the master thinks fit, is permitted to make out“ particulars of sale,” and to print and disperse as many as are deemed necessary under the direction of the master who is to make the sale. Beames’s Orders in Chancery, 4S3. 2 Ves. & Beam. 417. If the sale is to be made on the land, the master may appoint a deputy. An advertisement is published by the master of the time and place of sale. Sales before the master are generally conducted in his chamber. A particular of sale is prepared with a proper place left for bidders to sign their names. Every person who bids signs his name,withthe bid he makes. The highest bidder must obtain a report from the master of his being the highest bidder, which is filed, and upon which a motion is made and an order to confirm it granted unless cause is shown in a week alter notice. Upon the confirmation of the report, an order is taken out for the purchaser to pay the purchase money into court. Upon his doing so he receives a certificate. “lie then calls for an abstract of the title, a copy of which is furnished by the solicitor concerned for the sale, who leaves the original witli the master, and takes out a warrant for the master to approve the title if the parties differ. If the master approves it, a title is accordingly prepared by the solicitor lor the purchaser at his expense, in which all proper parties will be ordered to join and execute.” “If the title should not be good the purchaser will be repaid his money.” So far the contract is in fieri) and the purchaser may recede upon the discovery of any defect. If another person is disposed to open the biddings, he must make an ofl'er to the court bearing a considerable proportion in price above the last bidding, and must deposit double the sunn or sometimes ten per cent, with the master. If a purchaser refuses to comply with his bid, the court enforces a compliance by a reference to the master to see if a goodtitle can be made, and if he reports that it can be, the purchaser is ruledto shew cause, by a day fixed, why lie does not accept the title and pay the purchase money. The whole proceeding in the case of Sir William Yea is reported in 2 Fowlers Excheq. Frac. 318 — 325. To the same work the reporter begs leave to refer for the whole practice as to sales by the master, p. 300. For further information on this subject, see Flake's Cha. Frac. 312, in note. 1 Howard’s Cha. 200. 2 Howard’s Cha.110.
      We have thus given an account of the manner in which sales are effected in England and Ireland.
      In South Carolina, by the act of 1791, 1 Desaus. Hep. 77, the commissioners are required to male all ‘salen under the decrees of court. The practice under this act has been for the commissioner to advertise the premises with a description thereof, and the sale is effected before the court houses of each district, at public auction, by the commissioner, in the same manner as sherilf’s sales, and generally on the same day, the first Monday of every month. All titles are executed by the commissioner, and not by the persons concerned in the suit. Until the case of Center v. Frazier, it had been the habit of the commissioners, so far as the experience of the reporter extended, to give titles as soon as the purchaser paid the purchase money, or if sold on credit as soon as bonds and mortgages were signed. In that case chancellor DeSatjssure reprehended the practice, and ordered the commissioner never again to make titles before the report of sale was coniinned. Frevionsly to that time the commissioner of Columbia was in the practice of reporting the sales, the compliance with the sale, and the fact that the titles had been made, and, upon the report coming-in, it was coniinned. no cause being shown.
      By the English practice it is clear that the sale is still in fieri until the report of sale is conilrmcd and the conveyances executed by the parties. Up to that time neither party is absolutely bound. Futís it so in our court? Is it the fixed practice that the commissioner shall not make titles before continuation of the report'? In the mean time what is to be done with the purchase money, if the sale js for cash ; or the bonds and mortgages, if upon credit ? Bonds, ¿ce. cannot be taken before titles are made. The court of chancery sjls but once a year, and by the practice of the court the credit is usually six months. Suppose a sale is made soon after lhe“adjournment of court, is it to remain open until the succeeding session twelve months otf, or are these sales to be coniinned at chambers ? By the case of Gordon v. Sims the purchaser is bound by the entry of the bid. It is precisely as a shcrilf’s sale in that respect. If so, why should not the commissioner complete the sale, by receiving the purchase money and giving titles, and report the whole to the court? According to this view of the matter the court has the right and power both to compel the purchaser to comply with his bid, more especially when he is a party to the su it. Ful how are biddings to be opened? The reporter suggests with diilidence, whether the court has the power in this country to open them on any other ground than on some equitable principle of relief, which would give jurisdiction to the court of equity in any other case of contract of sale. There must he some fraud, mistake, accident or other ground of purely equitable cognizance. That another person oilers a higher bid since the sale is no more a ground for relief, than if a higher oiler had been made to a party alter a private sale. The sale of the master in England is in fact a private sale, not conclusive until the sale is confirmed and the titles made. We see no objection to the court's either confirming or opening a sale where there has been fraud, accident, mistake or other ground of equitable cognizance, on motion before the suit is finally ended, as well as to hear the matter by bill and answer; but unless some such ground is made we do not think the court of equity in this State has the power to open the biddings. See Williamson v. Dale, 3 Johns. Cha. Hep. 290. Blake’s Cha. 312. In England sales are opened on the ground of its being “in aid of creditors,” “and of those interested in the surplus, that the fund arising from them should be increased. The court therefore permits biddings to be opened, subject to certain terms to be imposed upon the new bidder.” 2 Fowler’s Excheq. Frac. 318, citing the case of Hodges v. Jones. 31 May, 1781.
    
   Curia, per

Nott, J.

I concur in-opinion in this case with the chancellor, on the first and second grounds, for the reasons given in the decree. I would only remark with regard to the second, that it was not the affidavit alone of the former commissioner which was received, but he was called himself as a witness.

The third ground, however, appears to be the most important in the case. It has been long settled, that an auctioneer is the agent of both parties; and therefore, the entry of a sale made and signed bv him is a sufficient signing to satisfy the statute. Simon v. Motivos, 3 Burr. 1921. Hind v. Whitehouse, 7 East, 558. It appears that the decisions in England have gone further. It has been decided that a sale by the Master is a judicial sale, and that the confirmation of the report takes it out of the statute. Att. General v. Day, 1 Ves. 218. And the chancellor, in this case, appears to have been of that opinion. It is not necessary, however, to decide that question; for the entry of the sale was made and signed by the commissioner by whom the sale was effected. But there are two objections to this entry.

1. That it was made on a loose piece of paper, and not in a book kept by the commissioner for that purpose.

2. That this was a sale of land, and therefore, not embraced by the principles of the decisions above alluded to.

With respect to the first, it appears that the commissioner was not in the habit of keeping a book at that time in which the entry of sales made by him were kept. His practice was to enter them on loose pieces of paper, which were afterwards filed in his office. It was certainly a very careless and reprehensible practice, but cannot affect this question. This case must be decided on the ground of contract. And therefore, if sufficiently reduced to writing, and signed by the party or his agent, it cannot be material whether the entry constituting the evidence of it was made in a book or on a sheet of paper.

The second question appears to be well settled by the modern decisions. For although it seemed at one time to be thought, that there was a distinction in that respect between a sale at auction of goods and lands, the distinction is without any foundation. The words of the statute are, “no action shall be brought to charge any *person on any contract or sale of land, &c, unless the agreement, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”

If therefore the auctioneer is the legally authorized agent of the party, signing by him is a fulfilment of the provisions of the statute. And that question being settled, the decisions apply as well to the sale of lands as goods. Emerson v. Heelis, 2 Taunt. 47. White v. Proctor, 4 Taunt. 208. Coles v. Trecothick, 9 Ves. 234. 1 Smith, 251. M’Comb v. Wright, 4 Johns. Cha. Rep. 665, and the cases there referred to.

I had at first some doubt on the fourth ground. But the chancellor, who has had great experience in the equity practice, and whose opinion therefore is entitled to great weight, does not appear to entertain any doubt on that question. And upon looking into the books I think he is well supported in the opinion which he has expressed. In the case of Cunningham v. Williams, 2 Anstr. Rep. 344, it is said, “A. B. was reported by the master the highest bidder on a sale before him of property in a cause. Having neglected to complete his purchase, it was moved by Burton and Cooke, last term, to confirm the master’s report, in order to compel him to complete the purchase. The court hesitating as to the practice, the matter stood over to this day, when Cooke stated two cases, Barker v. Holford, July 1793, and Egginton v. Flavel, November 1787, in chancery, where biddings were compelled to be completed; and that the practice in chancery is to confirm the report, and then, if the purchaser is supposed to be responsible, to get an order to inquire whether the party can make out a good title; and if he can, to obtain an order on the purchaser to complete the purchase. But if the purchaser is unable to complete ^ Purcbase, then on *the report being confirmed, it is moved to discharge him from the biddings. Ordered nisi, and no cause being shown, this was afterwards made absolute.” I have transcribed the whole case; because Anstruther’s Reports is a book with which the profession generally in this State is not very familiar; and because it is a leading case on the subject, and seems to have furnished a rule for the government of the courts of equity in England ever since. Child v. Lord Abingdon, 1 Ves. Jun. 94. 2 Ves. Jun. 335. In the case of Landsdown v. Elderton, 14 Yes. 512, Lord Eldon ordered the purchaser to pay the money in a fortnight, or to stand committed. And in New York, in a case not unlike the one now under consideration in its circumstances, Chancellor Kent ordered the purchaser to pay the money in six days, or that an attachment issue. Executors of Brasher v. Cortlandt, 2 Johns. Cha. Rep. 506. I also concur with the chancellor, that this course derives support from the circumstance that the purchaser is one of the parties to the suit before the court, and therefore more immediately under its authority. There may be cases where it would be more proper to proceed by bill than in this summary way; but that will always be within the discretion of the court. But 1 do not see anything in this case that made it the duty of the chancellor to direct that course to be taken.

The fifth furnishes no cause for the interposition of this court. It is the duty of the parties to be prepared for trial when required : and if, after using due diligence, their witnesses do not attend, they may obtain further time. But that is a question for the court below, and not for this court.

Whether Colonel Maybin’s letter ought to have been received as evidence or not, is a question of no importance. For although the chancellor rejected it as such, yet it was allowed all the effect which it could have had *if admitted. And the decision turned on other grounds which could not have been changed by the contents of that letter. For whatever agreement may have been made between some of the parties, it could not affect the rights of those who were not parties to that agreement.

The seventh ground does not appear to have been made in the court below, and therefore cannot be heard here. The party might have had the question referred to the master, to ascertain whether a good title could be made, and may perhaps do it still. But that is a question for the chancellor, and not for this court. I do not mean to say that this court will, in no case, order such an inquiry to be made, when it has not been moved before the chancellor. Possibly such a case may occur; but it is not a motion of course; and I see nothing in the circumstances of this case which seem to require it.

The last ground was also a matter within the discretion of the chancellor. The defendant is still at liberty to make what terms he pleases with the other parties interested. But without their consent the decree of the court must be carried into effect.

The decree must therefore be affirmed.

Decree, affirmed.  