trust, trustees cannot sell without leave of the court;(m) Chapter II. it was, however, held by the Court of Queen's Bench, in a recent case, that the power of an executor to make a good title to the chattels real of the testator is not affected by the existence of an administration suit, so long as there is no decree.(n)

Trustees

power of

*Trustees of a power of sale, with the usual trusts for [*30] reinvestment in real estate, ought not to sell except for under some good reason :(0) the court, however, will not control sale. a bona fide exercise of their discretion ;(p) but a sale by a trustee, after a cestui que trust has become absolutely entitled to the property, is prima facie invalid.(q)

by author of

trust, cannot

be anticipa

ted, although

delay be prejudicial.

When the instrument creating the trust fixes the time Time fixed for sale, this cannot be anticipated either by the trustees or the court, however ruinous the delay may be to the estate: e. g.; where a testator directed an advowson to be sold upon the death of A. the incumbent, the court held that it had no jurisdiction to sell in A.'s lifetime, although upon his death it would be necessary to present a new incumbent before any sale could be effected.(r)

may be sold in settle

though

rights of

And, on the other hand, where a settlement of a rever- Reversion sion, in terms authorized a sale at any time with the con- under trust sent of the tenant for life under such settlement, it was ments, alheld that the trustees might proceed to an immediate sale, although its effect would be, under the trusts declared of the purchase-money, to vary the rights of the cestuis trust by giving such tenant for life an immediate income.(s)

que

parties are thereby altered.

Powers of and trusts for sale are often exercisable only Conditional under certain specified conditions; when this is the case, and trusts

(m) Walker v. Smalwood, Amb. 676.

(n) Neeves v. Burrage, 14 Jur. 177, sed qu.

(0) Sug. 62.

(p) 2 Sug. Pow. 470; as to the validity of a power of sale, with reference to the rule against perpetuities, see Wood v. White, 4 Myl. & Cr. Nelson v. Callow, 15 Sim. 353; and cases cited.

460;

(4) Jefferson v. Tyrer, 9 Jur. 1083, V. C. E.

(r) Johnstone v. Baber, 8 Beav. 233; see Blacklow v. Laws, 2 Hare, 40; Gosling v. Carter, 1 Coll. 652.

(s) Clark v. Seymour, 7 Sim. 67; and see Tasker v. Small, 6 Sim. 625; Blackwood v. Borrowes, 4 Dru. & War. 441; Giles v. Homes, 15 Sim. 359.

powers of

Subsequent

and prece

tion.

dent condi[*31]

Legal estate.

Chapter II and a sale is made in breach of a condition, the purchaser's safety would seem to depend upon the following considerations, viz: 1st, whether the condition is subsequent or precedent; and 2ndly, whether it affects the title to the *legal estate if it merely affect the equitable title, an apt declaration in the instrument creating the trust or power will protect the purchaser against the non-performance of a precedent,(t) and, a fortiori, of a subsequent condition; as in the case of an ordinary power of sale in a mortgage, which usually contains a precedent condition that certain notices shall have been given, and defaults made in payment; but with a declaration relieving purchasers from liability for a breach of such condition: if, on the other hand, the exercise of a power is to affect the legal estate, as where land is limited in strict settlement, and a power is given to trustees, in certain specified events, to sell, and, for that purpose, to revoke the old and appoint new uses, here, unless the required events occur, the old limitations remain unaffected, notwithstanding any attempted exercise of the power; and any declaration that purchasers shall not be bound to see that the events have happened, would, it is conceived, be inoperative.(u) ́

Difficulty

where legal

title depends

on exercise of power subject to precedent condition.

Right of tenant for

life to rents

of estate

directed to

be sold.

As to the manner of sale.

Power to sell

by auction,

A tenant for life, under a will, of the proceeds of sale of estates directed to be sold with all convenient speed, will, from the end of twelve months after the testator's decease, be entitled to the rents of the estates, although they remain unsold.(v)

(2.) How ought they to sell?

An agent or trustee, simply authorized to sell by public

does not au- auction for a given sum, cannot, whatever may be the

thorize sale

by private price offered, sell by private contract.(w)[1]

contract.

(t) 2 Sug. Pow. 473.

(u) See, as to the construction of a discretionary trust for sale, Lord Rendlesham v. Meux, 14 Sim. 249.

(v) Vickers v. Scott, 3 Myl. & K. 500.

(w) Daniel v. Adams, Amb. 495; In re Loft, 8 Jur. 206, C.; Sug. 56.

[1] Such a sale would not be valid, although the price was greater than was required. Sug. on Vend. vol. 1, 62.

Whether power to sell private contract, au

And an express authority to sell by private contract, Chapter II. would not, it is conceived, justify a sale by auction ;(x) [*32] *unless the authority were to sell for a given sum, and the price obtained at the auction (after payment of the incidental expenses) exceeded or equalled that amount. Nor does an authority to sell to A. for a given sum, necessarily justify a sale to B. for that (or, it is conceived, rize sale any greater) sum.(y)[1]

thorizes sale by auction.

Power to sell

to A. does

not autho

to B.

of sale by Assignees of Bankrupt;

The assignees of a bankrupt may, although they incur as to mode a risk in so doing, sell by private contract; and they are justified in selling in lots;(z) we may here remark, that a sale under the general order in bankruptcy should be conducted by the assignees, and not by a mortgagee.(a)

The assignees of an insolvent, under the 1 & 2 Vict. c. or Insolvent; 110), (see s. 47,) must, if practicable, sell by public auction, in such manner, and at such place or places as shall be directed by the creditors: if, however, they ineffectually attempt to sell by auction, they can, after the expiration of the time (six lunar months) limited by the act, sell by private contract, with the consent of the major part in value of the creditors present at a meeting duly convened for the purpose :(6) nor is the sale necessarily invalid by reason of the directions of the creditors as to the manner of sale not having been strictly complied with.(c)

gees, Trus

Agents.

Mortgagees, trustees, and agents for sale, may, in the or Mortga absence of restriction, sell by private contract or public tees, or auction ; (d) they should, however, as a general rule, unless specially authorized to sell by private contract, sell by

(x) See and consider Daniel v. Adams, Amb. 495. (y) Bulteel v. Lord Abinger, 6 Jur. 410, V. C. W.

(z) See Sug. 56.

(a) Ex parte Cuddon, 3 Mon. D. & De G. 302; V. C. K. B. (b) Mather v. Priestman, 9 Sim. 352.

(c) Wright v. Maunder, 4 Beav. 512. (d) Sug. 56.

[1] If the testator, by will, directs that after the death of his son, his executors should sell his land, by the advice of A. and B. and A. die in the life of the son, a sale afterwards, by the executors, would not be good, for the assent of A. as well as B. was essential. Cro. Eliz. 26; 1 Leon 286; 3 Ib. 106.

Chapter II. auction, to avoid questions with their beneficiaries, as to whether the price obtained was adequate.

Estate may be sold in

parcels.

*33]

But not in undivided shares; semble.

standing

They may also, as a general rule, sell either altogether or in parcels; (e) subject, of course, to a liability to be "called to account in Equity if they adopt a mode of sale which is clearly depreciatory: but it may be doubted whether, even at law, a power(ƒ) of sale, extending to the entirety of an estate, would be well exercised by a sale of an undivided share: and it has been decided that trustees for must be sold sale under a settlement must sell the standing timber with the estate, although the tenant for life be unimpeachable of waste;(g) and that a sale of the estate, apart from the timber, is void at law :(h) the same doctrine would, it is conceived, in ordinary cases, apply to a reservation of minerals, or any other part of the inheritance, upon a sale by fiduciary vendors.(i)

timber, &c.,

with the fee.

Sales, and proposed al

They are also bound to use all reasonable diligence to terations in, obtain a fair price :(j) if, therefore, they sell by auction, ly advertised they should give due notice of and advertise the sale:

should be du

and, if the estate have been advertised to be sold in one particular manner, (as in lots,) they should not sell in any other way, (as altogether, or under a different plan of allotment,) without re-advertising the sale in accordance with the proposed alterations.(k)[1]

(e) Sug. 56. It would appear that a trust for sale of "any part of” an estate, at the discretion of the trustees, would authorize a sale of the entirety. Lord Rendlesham v. Meux, 14 Sim. 249; see Cooke v. Farrand, 7 Taunt. 122.

(f) Chance on Powers, 2441.

(g) Cockerell v. Cholmley, 1 Russ. & M. 418.

(h) Cholmley v. Paxton, 3 Bing. 207: see a case of Silvester v. Bradley, 13 Sim. 75, where it was, unsuccessfully, contended that the inheritance of the timber was, in equity, severed from the inheritance of the soil; and Butler v. Borton, 5 Madd. 40.

(i) But not (it is conceived) to a reservation of Mines, on sales to Railway or Waterworks Companies; see 8 Vict. c. 20, s. 77, and 10 Vict. c. 17, s. 18.

(j) 3 Mer. 208.

(k) Ord v. Noel, 5 Madd. 438; see p. 441.

[1] Where the sale by trustees, &c., is made by auction, with all those circumstances of caution which a provident owner would have applied.

sale by mort

cessarily in

[*34]

A harsh and improvident sale by a mortgagee, will not, Chapter II. however, be set aside in Equity, if clearly within the Oppressive terms of the power; nor will a mere offer, unaccompa- gagee not nenied by actual tender, of the amount due to him, be suffi- valid. cient to prevent a sale:() where, as is usually the case, *the power is exerciseable only upon notice, a contract for sale is not invalid by reason of its being entered into before the expiration of notice duly given :(m) but, where the equity of redemption has been incumbered, and the power does not contain the usual clause making an irregular sale valid as in favor of a purchaser, a sale without the required notice is invalid as against the subsequent incumbrancers, even although the mortgagor expressly waive the notice and consent to the sale.(n)[2]

(1) See Matthie v. Edwards, on appeal, 11 Jur. 761; and (as Jones v. Matthie) 11 Jur. 504, reported below, 2 Coll. 465; and see Grugeon v. Gerrard, 4 Y. & C. 119. Money paid for expenses by mortgagor to mortgagee's solicitor, under a threat of an exercise of a power of sale, but not really due, may, it seems, be recovered at law; Close v. Phipps, 7 Man. & Gr. 586.

(m) Major v. Ward, 5 Ha. 598; which also see, as to mode of giving notice: notice of dissolution of a partnership has been held good, although the party served was a lunatic; and the court said, it would have been good had he been totally blind and deaf; Robertson v. Lockie, 10 Jur. 533, V. C. E.; but see other cases there referred to.

(n) Forster v. Hoggart, 15 L. T. 134, Q. B.

in the care of his own property, it would form no objection to the specific performance of the contract, that the estate had not obtained a full price. Those who sell by auction, submit themselves to the chance of competition, and must abide by it. Sug. on Vend. vol. 1, p. 63.

[2] "When a foreclosure takes place by a sale of the mortgaged premises, under a power, it is usual, in England, to provide in the mortgage itself for due notice of the sale, so as to afford a fair opportunity of an advantageous sale. If the mortgagee omits to give proper notice, whether directed by the power or not, the sale may be impeached in chancery. In New York, and probably in other states, a sale under a power, is made the subject of a statute provision; but, as the title under such a sale does not affect any mortgagee or judgment creditor whose lien accrued prior to the sale, it must be rather a hazardous and unsatisfactory title, and far inferior to one under a decree in chancery, founded on a view of the rights of all encumbrancers who are brought before the court. The sale under a power, if regularly and fairly made, according to the directions of the statute, is a final and conclusive bar to the equity of redemption. This has been the policy and language of the law of New York, from the time of the first introduction of the statute regulations on the subject, in