on the ground of after-discovered mistake in the material. facts, or fraud, where he is free from negligence. He is bound to examine the title, and not rely upon statements made by the officer conducting the sale as to its condition. If he buys without such examination, he does so at his peril, and must suffer the loss occasioned by his neglect. A purchaser at a mortgage foreclosure sale will not be relieved from completing his purchase on account of defective title, or on the ground of there being prior incumbrances on the property, when the true condition of the title is fully set out in the pleadings and the record of the proceedings under which the sale was made, as he is chargeable with notice of such material facts as the record discloses. Norton v. Taylor, 35 Neb. 466 (53 N. W. Rep. 481; 18 L. R. A. 88); Boorum v. Tucker, 51 N. J. Eq. 135 (26 Atl. Rep. 456). This is supported by Tarr et al. v. Robinson et al., 158 Pa. St. 60 (27 Atl. Rep. 859). The purchaser at a judicial sale is bound to look to the jurisdiction of the court granting the order of sale, but the truth of the record concerning matters within its jurisdiction cannot be disputed. Succession of Theze, 44 La. 46 (10 So. Rep. 412); Grevemberg et al. v. Bradford, 44 La. 400 (10 So. Rep. 786).

It is held that a purchaser at a void judicial sale made to satisfy a valid lien by reason of his subrogation to the lien, can hold the land until it is discharged. Mc Camant v. Roberts, Tex. (25 S. W. Rep. 731). It is held by a divided court that where a devisee purchases land at a sale made in the course of the settlement of the decedent's estate, under the belief that he is obtaining a fee simple title thereto, but owing to the failure to make certain remainder-men parties to the proceeding he obtains merely a life estate, he cannot be relieved from his purchase nor can he require the remainder-men to be bound by the proceeding. Smith et al. v. Winn et al., 38 S. C. 188 (17 S. E. Rep. 717). A purchaser may be released from liability on his bid where, on account of a mistake in the description of the property offered, it would be unconscionable to compel him to take the property. Pope et al. v. Erdman et al., Ky. (17 S. W. Rep. 145). Where a statute (Va. Code, § 3397) requires the officer making the sale to give bond, a payment of the purchase money to an officer who has failed to comply with the statute

is invalid, and does not discharge the purchaser.

Whitehead

v. Bradley et al., 87 Va. 676 (13 S. E. Rep. 195). A purchaser cannot have relief from a defect in the title, of which he had notice. In re Seard's Estate, 164 Pa. St. 435 (30 Atl. Rep. 298).

Confirma

Sec. 426. Confirmation of judicial sales. tion is the judicial sanction of the court and until it occurs the sale is incomplete and confers no rights. Whether the court will confirm the sale must, in a. great measure, depend upon the circumstances of each particular case. It is difficult to lay down any rule applicable to all cases; nor is it possible to specify all the grounds which will justify the court in withholding its approval. If there is reason to believe that fraud or mistake has been committed to the detriment of the owner or the purchaser, or that the officer conducting the sale has been guilty of any wrong, or breach of duty to the injury of the parties interested, the court will withhold a confirmation. Either party may object to the report and the purchaser himself, who becomes a party to the sale, may appear before the court and have any mistake corrected. Carr et al. v. Carr et al., 88 Va. 735 (14 S. E. Rep. 368). This rule applies to sales in partition proceedings. Burden v. Taylor, Mo.

(27 S. W. Rep. 349). Where the judgment debtor harvested a crop of wild grass after an execution sale of the land, but before the confirmation, it was held that the title to the grass did not pass to the purchaser of the land. Yeazel v. White et al., 40 Neb. 432 (58 N. W. Rep. 1020). A bidder at a judicial sale does not occupy the position of a purchaser until the sale has been confirmed by the court, the bid being a mere offer. As soon as the sale is confirmed the contract becomes complete, the bidder becomes a purchaser and may be compelled by process of court to comply with his contract. Hildreth et al. v. Turner, 89 Va. 858 (17 S. E. Rep. 471).

Sec. 427. Miscellaneous notes. A judicial sale is "a sale under a decree or order of the court, and which must be reported to the court for its approval." Noland v. Barrett, 122 Mo. 181 (26 S. W. Rep. 692). Under the Maryland Code, art. 16, § 198, courts of equity, having all of the parties before them who are interested, may decree the sale of any

K

Md.

(29 Atl. Rep.

Peake v.

kind of an estate. Downes v. Long, 827). Recitals in a deed under a judicial sale are not evidence of the authority to make the sale. Burt v. Hasselman, Ind. (38 N. E. Rep. 598). In Missouri, prior to the constitution of 1865, the legislature had power to authorize, by special acts, guardians, administrators, and other trustees to sell and convey land of their beneficiaries. Clusky v. Burns, 120 Mo. 567 (25 S. W. Rep. 585). A decree for the sale of land directing the sale and the taking of a bond and mortgage from the purchaser, implies the duty of conveying, and need not explicitly direct the execution of a conveyance. Young, 40 S. C. 41 (18 S. E. Rep. 237). Mass. Pub. Stat., ch. 120, §§ 18-20, applied-sale of land subject to contingent remainder. Pratt v. Bates, 161 Mass. 315 (37 N. E. Rep. 439). S. C. Gen. Stat., § 457, applied-master commissioner's successor-power of. Peake v. Young, 40 S. C. 41 (18 S. E. Rep. 237). Ky. Gen. Stat., ch. 63, art. 6, construed-sale of contingent interests in land. Newman et al. v. Ecton et al., Ky. (21 S. W. Rep. 526). Ky. Act, Aug. 23, 1862, construed-sale of contingent interest in land. Varble v. Philips, Ky. (20 S. W. Rep. 306). Wash. Code, § 519, applied-right to possession. Debenture Corporation v. Warren, 9 Wash. St. 312 (37 Pac. Rep. 451). Ill. Rev. Stat., ch. 77, § 29, applied-assignment of certificate of sale. Chytraus et al. v. Smith, 141 Ill. 231 (30 N. E. Rep. 450).

LANDLORD AND TENANT.

EPITOME OF CASES.

Sec. 428. As to when the relation of landlord and tenant exists. It is held that where the owner of real estate lets the same by a covenant in writing, for a term of years, for a share of the produce, with certain conditions as to the sale by the tenant, of the stock and produce and division of the proceeds, the fact that such covenant constitutes a tenancy

in common as to produce, does not destroy the relationship of landlord and tenant as to the land and the lessor must sue for possession for condition broken. Jones v. Durrer, 96 Cal. 95 (30 Pac. Rep. 1027). Where one occupies the lands of another without any recognition of him as landlord, or any agreement, express or implied, to hold under, or in subordination to him, is not a tenant, but a mere trespasser. Dixon v. Ahern, 21 Nev. 65 (24 Pac. Rep. 337). Where one tenant in common, by express contract, rents to his cotenant his undivided interest in the common property at a stipulated rent, such contract creates the relation of landlord and tenant between them as to that portion of the property. Grabfelder et al. v. Gazetti, Tex. Civ. App. (26 S. W. Rep. 436);

O'Connor v. Delaney, 53 Minn. 247 (54 N. W. Rep. 1108; 39 Am. St. Rep. 601). An officer holding possession of premises with the consent of the landlord for the purpose of enforcing a writ of attachment against a tenant may render himself liable for rent. Frizell v. Duffer, 58 Ark. 612 (25 S. W. Rep. 1111). Wrongful possession will not ripen into a tenancy from year to year. Chicago & N. E. R. Co. v. Perkins, Ind. (38 N. E. Rep. 487). In the case of urban property, occupation thereof and monthly payments of rent, as from month to month, standing alone are insufficient to create a tenancy from year to year. Johnson v. Albertson, 51 Minn. 333 (53 N. W. Rep. 642). One who occupies as the agent of the tenant does not thereby become liable to the landlord for rent without proof of an express agreement to that effect. Fisher v. Pforzheimer, 93 Mich. 650 (53 N. W. Rep. 828). A judgment debtor remaining in possession after a sale of his land on execution does not thereby impliedly become a tenant of the purchaser at such sale. Tucker v. Byers, 57 Ark. 215 (21 S. W. Rep. 227). The continuance of a vendor in possession after conveyance does not make him a tenant of the vendee and render him liable for rent as such. 1 N. Y. Rev. Stat., 748, § 26, applied. Preston v. Hawley, 139 N. Y. 296 (34 N. E. Rep. 906). A mortgagor may make himself a tenant of the purchaser at a foreclosure sale under a power given therein, by a special stipulation to that effect. Brewster v. McNab et al., 36 S. C. 274 (15 S. E. Rep. 233). Particular facts held sufficient to create the relation of land

lord and tenant. Schwarze v. Mahoney, 97 Cal. 131 (31 Pac. Rep. 908). Particular agreement held not to create the relation. Proctor v. Benson, 149 Pa. St. 254 (24 Atl. Rep. 279.

Sec. 429. Holding over. A tenant for a fixed period who holds over becomes a tenant for another period of like duration upon the same terms. Bateman et al. v. Maddox, 86 Tex. 546 (26 S. W. Rep. 51); Duffy v. Carman, 3 Ind. App. 207 (29 N. E. Rep. 454); Shirk v. Hoffman, Minn. (58 N. W. Rep. 990). Under S. Dak. Comp. Laws, § 8741, when a tenant remains in possession of leased property "after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one year." Banbury v. Sherin, S. Dak. (55 N. W. Rep. 723). A tenant for years holding over after the expiration of his term, without acknowledging a continuance of the tenancy, becomes either a trespasser or a tenant at the option of the landlord. Voss et al. v. King, 38 W. Va. 607 (18 S. E. Rep. 762); Drake v. Wilhelm et al., 109 N. C. 97 (13 S. E. Rep. 891). Where a tenant under a lease from month to month, who had, previous to the expiration of a current month notified the landlord that the premises were unfit for occupancy, and that he would remove therefrom, holds over after the end of the current month, the condition of the premises remaining unchanged, he becomes liable for another month's Flint v. Sweeney et al., 49 Minn. 509 (52 N. W. Rep. 136). In Rhode Island it is held that where a tenant holds over after the expiration of his term, even though he hold in good faith under a color or reasonable claim of right, he is a trespasser and the landlord may enter without legal process and forcibly eject him from the premises. Allen et ux. v. Keily, 17 R. I. 781 (24 Atl. Rep. 776; 33 Am. St. Rep. 905; 16 L. R. A. 798). The landlord may waive his right to treat a tenant holding over as holding for another term like the original. Drake v. Wilhelm et al., 109 N. C. 97 (13 S. E. Rep. 831). If a tenant is permitted to remain in possession after the expiration of the original tenancy the holding is presumed to be upon the terms of the original demise. Voss et al. v. King, 38 W.Va.

rent.