No. XL. Conveyance to a Purchaser by Trustees under a Variations where the Vendors are Devisees in trust to sell. Also where the Owner of the Estate, or Persons entitled to the Purchase money join. And where the Purchaser is desirous of taking to uses to bar Dower, &c. &c. as in margin below. THIS INDENTURE of day of parts, made the in the year of the reign, &c. and in the year of our Lord (being trustees for sale of the hereditaments herein- (a Cestui que trust inheritance not (1) Where an absolute power of sale is given to the trustees, or owner of the with proper clauses for exonerating the purchaser from seeing necessary party. to the application of the purchase money, it is not necessary that the owner of the inheritance should be a party; but to guard against the consequences of any defect in the deed of conveyance to the trustees, his concurrence is generally required; and where he has not entered into covenants purchaser thereof) of the third part (1). WHEREAS PURCHASES. with the trustees for the title, it is proper that he should be made a party for the purpose of entering into those covenants with the purchaser. Trustees for necessary party. Neither is it now held to be necessary to make the heir at Heir at law not law a party, although disinherited by the devise to the vendors. See Cotton v. Wilson, 3 P. Wms. 190. Wakeman v. Duchess of Rutland, 3 Ves. jun. 233. Where, however, his concurrence can be obtained, it is very satisfactory, as tending to quiet the purchaser's title, by precluding the heir from disputing the validity of the devise, and preventing objections being raised on a future sale. Where the trustees are devisees under a will, it is usual in practice, (and more particularly where the heir at law does not join), to make all persons who are presumptively entitled to any considerable part of the purchase money, after payment of debts, parties to the conveyance to the purchaser, and covenant for the title, &c. and as the persons who are entitled to the money arising from the sale are the substantial and beneficial owners of the estate, this practice seems founded on sufficient reason, but it does not appear to have yet received that sanction from the courts which could be wished.-See Hord v. Griffith, 3 Atk. 264; Wakeman v. D. of Rutland, 3 Ves. jun. 233, 508; 8 Brow. P. C. 145; Bp. Winton v. Beaver, 3 Ves. jun. 314; and see 4 Cru. Dig. 92. Indeed the propriety of joining in a conveyance from trustees, the parties intitled to the money, was doubted by Lord Loughborough, in the case of Wakeman v. Duchess of Rutland, 3 Ves. jun. 233; in which he seems to insinuate, that it takes away the purchaser's indemnity arising from the declaration that the receipt of the trustees shall be a sufficient discharge. But quære this; and the practice does not accord. Celles que trusts of land sold under a will should be parties to the con veyance. (1) If the purchaser be married, and his wife dowable, make wife of pura trustee party, as Being a trustee named and appointed by and on behalf of the said (purchaser) for the purposes hereinafter mentioned, of the part," as ante, No. XXXI. p. 2, n. (1). chaser. PURCHASES. by indentures of lease and release (1), bearing date respectively on or about the Trustees for On sale for payment of debts and legacies, creditors and legatees should be parties, if purchaser not exempt from seeing to application of purchase money. Deficiency of personalty. Devisees. days of The release being of which was in the year and parts, and made or expressed to be made between the said (owner of inheritance) of the one part, and the said (trustees) of the other part; the messuages, lands, and And where in a devise, &c. for payment of debts and legacies, the purchaser was not exempted from seeing to the application of the purchase money, Mr. Bradley's mode was to make all the creditors and legatees parties to the deed if the estate was sold in the entirety; and where it was sold in lots he conveyed the whole estate by the creditors and legatees to a trustee to the use of the respective purchasers, and took separate receipts from them for each purchaser, see Brad. Points 71, pl. 147, &c. or the estate may be so conveyed with a declaration that the receipt of the trustee shall be a discharge; and he only be made a party to the conveyances to the respective purchasers. See Sug. Vend. & Pur. 386, and vid. Hardwicke v. Maynard, 1 Ambr. 109. Lord Braybroke v. Jurkip, 8 Ves. jun. 417. And when the trusts of the will are to sell for the purpose of making up the deficiency of the personal estate, and the purchaser is not exempted from seeing to the application of the trust money, or inquiring into the deficiency, Mr. Fearne used to recommend that the deed should recite the deficiency, but quære, as to the liability of a purchaser to ascertain such deficiency. And vid. Co. Lit. 290, b. n. 2. (1) Where the vendors sell under the trusts of a will instead of a deed, recite such will. "WHEREAS (the testator) late of &c. deceased, in and by his last will and testament in writing, bearing date on or about the day of and duly executed and attested, as by law is required, for devising real estates of inheritance, gave and devised unto the said (trustees) and their heirs, ALL, &c. upon trust, that they the said (trustees) or the survivor of them, or the heirs of such survivor, or their or his assigns, should," &c. as in the text. Trustees for trustees. hereditaments, hereinafter described (1), and in- PURCHASES. tended to be hereby granted and released, were (amongst other lands and hereditaments, if the case were so) for valuable considerations therein Recital of conmentioned, conveyed and assured unto and to veyance to the the use of the said (trustees) their heirs and assigns, upon trust, that they the said (trustees) or the survivor of them, or the heirs of such survivor, or their or his assigns, [or other the trustees or trustee for the time being of the said hereditaments under or by virtue of a proviso in the said indenture of release contained,] should or might, when and as they or he should think proper (2), make sale, and dispose of the same, or so much and such parts thereof as they or he should deem expedient, without the concurrence of or any further power or authority from the said (owner of the inheritance) or his heirs, (unless the same should be expressly required by the trustees or trustee for the time being, or any purchaser or purchasers thereof), either absolutely and in fee-simple, or for any term or terms of years, or for life, and either together or in parcels, and by public sale or private contract, at their or his discretion, for such price or prices, or sum or sums of money as to them or him should seem (1) If all the lands, &c. conveyed to the trustees are sold to Parcels. the same purchaser, they may be set out in the recital of the deed of trust, and referred to in the operative part of the purchase deed. (2) Pursue the words of the deed or will, directing the trustees to sell and dispose of the estate. PURCHASES. reasonable; and should or might, and they were Trustees for thereby fully authorized and empowered to sign, Sale. seal, deliver and execute, all proper and sufficient conveyances and assurances to any purchaser or purchasers, of the same hereditaments or of any part thereof; and it was thereby expressly declared, that the receipts or receipt of the said trustees, or of the survivor of them, his heirs or assigns, or of other the trustees or trustee for the time being acting in the execution of the trusts thereby created or declared, should be good and effectual discharges to any purchaser or purchasers, his, her, and their heirs, executors, administrators, and assigns, for the purchase money which in any such receipt or receipts should be expressed to be received; and that such purchaser or purchasers, his, her, or their heirs, executors, administrators, or assigns, should not afterwards be in any wise answerable or accountable for any loss, misapplication, or non-application of the same or any part thereof; or liable to see to the application of the same, or to inquire into the necessity or occasion of such sale in any manner whatsoever; and it was thereby further declared, that the messuages, lands, and hereditaments, which should be so sold and conveyed, should thenceforth be and remain to the use of the purchaser or purchasers thereof, and his, her, and their heirs and assigns, or executors and administrators, as the case might require, in such manner as in the conveyance or respective conveyances of the same should be expressed, freed and absolutely dis |