the additional price into court for the benefit of the estate.1 Where all parties consent to the substitution, the usual affidavit required to satisfy the court that there is no under-bargain may be dispensed with.2

§ 582. The sale proper - Continued. The duty of the master making a sale is to sell the property to the best advantage, so it will bring the most money, and to sell no more property than is necessary to satisfy the debt and costs. He should, therefore, where the property is susceptible of division, sell it, or at least offer it for sale in separate parcels. But this rule does not require a master to subdivide a quarter-section into eighties or forties, and offer such smaller tracts first, for sale, where the mortgage being foreclosed is on the larger tract. What is meant is this: where the mortgage and decree describe the land as a single tract, it is not the duty of the master to divide the land into parcels in making the sale; but where several distinct tracts are ordered sold, then it is the duty of the master to sell each parcel separately. Where several tracts are to be sold it is the duty of the officer making the sale to offer each tract separately, and, if one tract will not sell separately, add another to it, and add a third tract if no bid can be had for two tracts, and so on, and in that manner he may, upon a reasonable bid, sell the whole en masse. But a sale en masse should not be made merely because bids cannot be had for separate tracts when offered separately. After the property is knocked off to the highest bidder it is his duty to at once complete his part of the contract by paying the purchase price to the master, and this he may do without any apprehension of being held responsible for the proper distribution of the fund. A purchaser at a master's sale is not bound to see that the proceeds are distributed or paid out in accord4 Patton v. Smith, 113 Ill. 499, 509.

1 Hodder v. Ruffin, 1 Tamlyn, 341; 2 Daniell, Ch. Pr. (1st ed.) 922. As to the caution exercised by the court upon a motion to allow one purchaser to be substituted for another, see Blackbeard v. Lindigren, 1 Cox, 205.

2 Matthews v. Stubbs, 2 Brown, 391. 3 Dates v. Winstanley, 53 Ill. App. 623, 628; Davis v. Dresback, 81 Ill. 393; Patton v. Smith, 113 Ill. 499.

5 Henderson v. Harness, 184 Ill. 520, 529, 56 N. E. 786; Phelps v. Conover, 25 Ill. 309; Morris v. Robey. 73 Ill. 462; Douthett v. Kettle, 104 Ill. 356. For remedy of party aggrieved by failure of master to offer to sell the property in separate parcels, where it consists of different tracts, see post, § 600.

ance with the order of the court,' and when he pays the price of the land he is in no way responsible for the fraud of the master and cannot be made to suffer thereby. An officer conducting an official sale may misappropriate the proceeds of the sale and be faithless to his trust, yet an innocent purchaser cannot be prejudiced thereby. If the purchaser pays the price and fails to get title by reason of fault of master, the latter is liable to him in the amount, and, having by his purchase made himself a party to the suit, he may invoke the aid of the court to compel the return of the money, together with interest, attorney fee for examination of title, and other legiti mate charges.

5

§ 583. Master's sales by private contract.— Thus far we have only spoken of sales made by the master at public auction, for the reason that this is the course generally adopted by courts of chancery in the conversion of property, real or personal, into cash; but the court always has the power, and will, in a case where it is for the interest of the parties, depart from this usual course and direct the master to dispose of the property by private contract; but, to justify such departure from the usual method, the master must be specially directed so to do by the decree, or order of the court, because if the decree is in the ordinary form, the master and parties will not be permitted to depart from its directions, without authority previously obtained from the court. If the master, in such a case, proceeds to sell at private sale, without a previous modification of the order, the court will decline to confirm the sale and will direct the master to proceed as directed in its order. In case the parties interested discover, after an order is made to sell at public sale, that it is for their best interest for the master to sell at private sale, application should be made to the court for a modification of its order, and, if an individual is desirous of purchasing by private contract, the proper course is for him to make a proposal to the vendor, or

1 Mulford v. Stalzenback, 46 Ill. 303, 309.

2 Oglesby v. Foley, 153 Ill. 19, 38 N.

E. 557.

4 Sexton v. Nevers, 20 Pick. 451. 5 See post, § 616.

6 Annesley v. Ashurst, 3 P. Wms. 282; 2 Daniell, Ch. Pr. (1st ed.)

Mulford v. Stalzenback, 46 Ill. 931. 303, 309.

to the plaintiff in the cause, and to procure him, or some other party to the cause, to make an application to the court for an order to refer it to the master to inquire, and state to the court whether it will be for the benefit of the parties interested in the estate that his proposal should be accepted. Daniell says that, sometimes, in cases of this nature, a contract is actually entered into by the parties, subject to the approbation of the master, before any application is made to the court, the advantage of which course appears to be, that a definite arrangement is entered into, subject to the master's approval, before any expense is incurred, either before the court or before the master.1

IV. REPORT OF SALE AND ITS CONFIRMATION.

§ 584. Master's report of sale. In all cases of judicial sales, unlike sales made by a sheriff under an execution, the successful bidder acquires no title by the sale alone, but only. the right to have his claim presented to the court to be passed upon; that is, as we have already seen, he is not a purchaser, but has been simply declared by the agent of the court to have been the highest bidder, and, as such, is entitled to have the court advised of that fact in order that it may take such further action as may be necessary to confirm his title. As all chancery sales are made subject to the approval of the court, it follows, as a matter of necessity, that some means must be adopted to inform the court as to what has been done by the officer under its order; in other words, the court must be advised in what manner its order of sale has been executed. To use the language of the court in a Kentucky case, "the accepted bidder at such a sale acquires by the mere acceptance of his bid no independent right, as in the case of a purchaser under an execution, to have his purchase completed, but is nothing more than a preferred bidder or proposer for the purchase, depending upon the sound, equitable discretion of the chancellor for the confirmation of a sale made by a ministerial agent." Hence, as above stated, the necessity of the court

1 Loc. cit. 931. For full details of practice in such cases, see 2 Smith, Ch. Pr. (ed. 1834), 198 et seq. 2 Busey v. Hardin, 2 B. Mon. 407, 411.

being advised as to the manner in which its "ministerial officer" has discharged the duty devolved upon him. The court therefore requires that the master, commissioner, or other offi cer executing its order, shall make a report "disclosing generally what notice was given of the intended sale, what property was sold, the name of the purchaser, and such other facts as may assist the court in determining whether the sale was fairly and lawfully made and ought to be approved."1 A decree in chancery authorizing a master, commissioner, or other officer, to make a sale of real estate, receive the purchasemoney, and make title, without requiring a report and confir mation of the sale, is irregular and erroneous. As to the requirements of the report of sale, it may be briefly said that the report must be full enough to show to the court in what manner the master has executed all the material duties devolved upon him by the order of sale. The master, being purely a ministerial officer, as to all matters provided for in the decree, has no discretion, his duty being simply to obey. As already shown, the decreè constitutes the master's sole authority to make the sale, and unless he follows the authority there given the sale cannot be approved, if objection is made in apt time.'

It follows that, to determine what are the essential requirements of a master's report of sale in a given case, we must know the provisions of the decree of sale. In an ordinary foreclosure sale the master's report should show as follows:

First. The report should state fully the facts in regard to the notice of sale given by the master. What the court wants here are the facts, so that the court can determine whether the master has complied with the terms of the decree, or the stat ute, if there is a statutory provision covering the subject.

Not only must the facts in regard to the notice be stated in his report, but such statement should be accompanied by proof of such facts. The burden is on the master to show that he has complied with the decree. If he posted notices, his report must show that fact and where they were posted. If

1 Freeman, Void Judicial Sales, sec. 41d; Freeman on Executions, sec. 304a.

Quick v. Collins, 197 Ill. 391, 394, 64 N. E. 288; Jacobus v. Smith, 14 Ill. 359; Sowards v. Pritchett, 37 IL

2 Id. See also Dula v. Seagle, 98 N. 517. C. 458, 4 S. E. 549.

such notices were posted by others, the report should show such fact, and should also be accompanied by affidavits proving the posting. As to the fact that the proper notice of the sale was given, some proof, other than the bare assertion of the master, is required. The report should be accompanied by a copy of the notice with an affidavit that it was duly posted as required by the decree, or, if printed in a newspaper, the usual certificate of the printer should be attached. But, in another Illinois case, it is said that it is not necessary for the master to set out the notice in his report of sale, but on application for its confirmation all that is necessary is that the court shall be satisfied that the sale was made in accordance with the requirements of the decree. It is not necessary that evidence of that fact be preserved in the record, unless the confirmation of the report is resisted and it is desired by one of the parties, the presumption being that the court had sufficient evidence to warrant the confirmation.3

Second. The report should show that the master attended at the time and place named in the notice, and, if the sale was adjourned for want of bidders, or for any other reason, the report should state such fact; and further, it should show what additional notice was given; but, if no adjournment was had and the property was sold, then the report must show the facts, as follows:

(a) That the property was offered for sale at public auction, to the highest bidder, for cash, or in accordance with the terms of the decree, as the case may be.

(b) The report should show how the property was offered, whether in separate parcels, or en masse.

(c) The report must show the name of the highest and best bidder, to whom the property was struck off, and the amount of his bid.

Third. The report must show the total amount realized from the sale.

Fourth. When the proceeds of the sale are ordered to be disbursed by the master, then it should show to whom payments were made, the amount of each payment, the amount retained by the master as fees, and vouchers for each item.

1 Quick v. Collins, 197 Ill. 391, 64 N. E. 288.

2 Tibbs v. Allen, 29 Ill. 535, 549.

3 Moore v. Titman, 33 Ill. 358, 366.