recourse is therefore had to the corpus by sale or mortgage. But even if a definite time of payment be not an ingredient in the case, yet from the very nature of portions, as rents and profits without stint represent the whole estate, [*420] the Court assumes the jurisdiction of ordering a sale or mortgage (a); and where there is no suit pending the trustees of an estate subject to such a charge may sell or mortgage, if they can find a purchaser or mort gagee, without the intervention of the Court (b).

5. Out of annual rents only. If, however, the clear intention be that annual rents and profits only are meant, the Court cannot break in upon the corpus; and such is the case where the portions are directed to be raised expressly out of the annual rents (c); or where it is evident from the whole context that by rents and profits were intended the annual rents (d).

6. Out of rents or otherwise, except a sale. In Bennett v. Wyndham (e), where the trust was to raise the charge out of the rents and profits, or by such other ways and means except a sale as the trustees should think proper, the Court on the one hand collected an intention that annual rents and profits were meant, and on the other hand that the tenants for life were not to be deprived of all usufructuary enjoyment, and the Court adopted a middle course by holding that part of the rents should be impounded and part be handed over to the tenants for life, and referred it to cham

(a) Warburton v. Warburton, 2 Vern. 420; Sheldon v. Dormer, 2 Vern. 310; Baines v. Dixon, 1 Ves. sen. 41; Hall v. Carter, 2 Atk. 358, per Lord Hardwicke; Backhouse v. Middleton, 1 Ch. Ca. 173; Green v. Belcher, 1 Atk. 505; Trafford v. Ashton, 1 P. W. 415; Countess of Shrewsbury . Earl of Shrewsbury, 1 Ves. jun. 234, per Cur.; Okeden v. Okeden, 1 Atk. 550; and see Allan v. Backhouse, 2 V. & B. 65; [Re Barber's Settled Estates, 18 Ch. D. 624;] Bootle v. Blundell, 1 Mer. 233 Anon. 1 Vern. 104, in which it was said that rents and profits could not receive

this enlarged construction in a deed; Garmstone v. Gaunt, 1 Coll. 577; Lingon v. Foley, 2 Ch. Ca. 205; Mills v. Banks, 3 P. W. 1.

(b) Backhouse v. Middleton, 1 Ch. Ca. 176, per Cur. (c) Anon. 1 Vern. 104; Solley v. Wood, 29 Beav. 482.

(d) Mills v. Banks, 3 P. W. 1; Wilson v. Halliley, 1 R. & M. 590; Ivy v. Gilbert, 2 P. W. 13; Evelyn v. Evelyn, 2 P. W. 659, see 666; Earl of Rivers v. Earl of Derby, 2 Vern. 72; Okeden v. Okeden, 1 Atk. 550. (e) 23 Beav. 521.

bers to inquire what proportion of the rents ought to be impounded, and what to be paid to the tenant for life.

7. Mines and timber. In Offley v. Offley (ƒ) a term was created for raising 10,000l. for a daughter's portion, but the term was so short that the ordinary profits of the land would not raise above half the sum. There was an open coal mine in the land which the Court ordered to be wrought, with powers to the trustees to make soughs and drains as need should require, and Lord Commissioner Hutchins said that in such a case where the usual profits of the land would not raise the money appointed within the time, the Court might order timber to be felled off the land to make up the amount. 8. Out of rents by fixed annual payments. If the trusts of a term be to "raise and levy from time to time *a sum certain, by with and out of the rents and [*421] profits, by certain annual payments or sums in each year and not otherwise," the portional sum to be raised is a charge on the annual rents and profits generally, and the estate is not discharged at the expiration of six years, though the rents and profits during that period were sufficient to raise it (a).

9. Mortgage of undivided shares of the estate. Where portions are raisable at different times as they are wanted, it is usual, as each portion is raised, not to mortgage the entire estate charged, but a proportional part only. Thus if the proportional sum be 6,000l. divisible among three younger children, and secured by a term of 1,000 years, when the first 2,000l. is raised, the trustee of the term mortgages an undivided third part of the hereditaments comprised in the term, and when the second 2,0007. is raised, another undivided third part, and when the remaining 2,0007. is raised, the other individed third part. The result of this is, that each mortgage takes the legal estate in the subject of the mortgage, whereas if the entire estate had been comprised in the first mortgage, the two other securities would have been equitable, and exposed to all the consequent risks.

10. Custody of title deeds.

(f) Pr. Ch. 26.

Trustees of a term of years

(a) Re Forster's Estate. 4 I. R.

Eq. 152.

for raising portions as between them and the freeholder are not entitled to the custody of the title deeds, and cannot deliver them to a mortagee. But they and their mortgagees have a right in equity to the production of them for all necessary purposes (b).

11. 36 & 37 Vict. c. 66. By 36 & 37 Vict. c. 66, s. 34, subs. 3, all causes and matters for raising portions are to be assigned to the Chancery Division of the High Court of Justice.

(b) Churchill v. Small, 8 Ves. 322, note (b); Harper v. Faulder, 4 Mad. 129, 138; Wiseman v. Westland, 1 Y.

572

& J. 117; Hotham v. Somerville, 5 Beav. 360.

*CHAPTER XVIII.

DUTIES OF TRUSTEES FOR SALE. (1)

[*422]

THE subject of trusts for sale may be conveniently distributed under three heads: First, The general duties of trustees for sale; Secondly, The power of trustees to sign discharges for the purchase-money; and Thirdly, The disability of trustees to become purchasers of the trust property.

SECTION I.

THE GENERAL DUTIES OF TRUSTEES FOR SALE.1

1. Trustees may sell without applying to the Court. It need scarcely be observed that trustees for sale where they are not parties to a suit, are authorised to enter into contracts

[(1) It should be borne in mind that under the Settled Land Acts, restrictions are placed on the powers of trustees to sell settled land. This subject is dealt with in chap. xxiii. sect. 2, v. to which the reader is referred.]

1 Trustee for sale.—If the trust instrument contains an express or implied power, the trustee need not apply to court for power to sell; Lowe v. Grinnan, 19 Ia. 193; Iles v. Martin, 69 Ind. 114; Reeside v. Peter, 35 Md. 221; but see Foscue v. Lyon, 55 Ala. 440. The trustee may convey to the cestui que trust, even though there is a provision in case of the latter's death, if authorized; Sellew's App. 36 Conn. 186. This power of sale may go with the legal estate, or be entirely independent of it; Reid v. Gordon, 35 Md. 184; Prather v. McDowell, 8 Bush, 46; Tainter v. Clark, 13 Met. 220; White v. Howard, 52 Barb. 294; Peter v. Beverly, 10 Pet. 532; Jackson v. Burr, 9 Johns. 104. Where the land descends to the heirs, the executors having a power to sell, it is a naked power, and until executed, the rents and profits belong to the heirs; Braman v. Stiles, 2 Pick. 460; McKnight v. Wimer, 38 Mo. 132; Allen v. Demitt, 3 Comst. 276; Marsh v. Wheeler, 2 Edw. Ch. 156; so too, if a trustee is the devisee. In the United States there are statutory provisions for the sale of real estate by those holding a fiduciary relation, and the heirs, devisees, or wards, hold until the sale takes place. 4 Kent, 321, n.

No particular form of words is required to establish a power of sale, if the intention appear, or if certain duties, necessitating a sale, are to be performed, it is sufficient; Going v. Emery, 16 Pick. 107; Stockbridge v. Stockbridge, 99 Mass. 244; Savings Bank v. Ross, 11 Allen, 443; Williamson v.

without the previous sanction of the Court (a); but where a suit has been instituted for the execution of the trust, that

(a) Earl of Bath v. Earl of Bradford, 2 Ves. 590, per Lord Hardwicke. Suydam, 6 Wall. 723; Stall v. Cincinnati, 16 Ohio St. 169; Rankin v. Rankin, 36 Ill. 293; instructions to make a division are insufficient; Mapes v. Tyler, 43 Barb. 421; Winston v. Jones, 6 Ala. 550; Moore v. Lockett, 2 Bibb. 69. The successor of a trustee may exercise the power of sale; Buchanan v. Hart, 31 Tex. 647. An authority to sell does not include the right to mortgage; Paine v. Barnes, 100 Mass. 470; Wood v. Goodridge, 6 Cush. 117; Ferry v. Laible, 31 N. J. Eq. 567; Stokes v. Payne, 58 Miss. 614; Huntt v. Townshend, 31 Md. 338; Tyson v. Latrobe, 42 Md. 325; but see Goehring's App. 81 Pa. St. 284; Zane v. Kennedy, 73 Pa. St. 183; but if trustee and cestui que trust are parties to it, they cannot invalidate it; Ryder v. Sisson, 7 R. I. 341. Where a trust is charged with debts, the trustee may have an option to sell or mortgage, the latter being favored; Britton v. Lewis, 8 Rich. Eq. 271; Duval's App. 38 Pa. St. 112; and a mortgage may be regarded as a conditional sale; Leavitt v. Pell, 25 N. Y. 474; a partial sale or a mortgage does not exhaust the power; Asay v. Hoover, 5 Barr, 21; if the court can provide for raising money it may decree a mortgage or a sale; Williamson v. Field, 2 Sandf. Ch. 533.

A power to sell does not include an exchange; King v. Whiton, 15 Wis. 684; School v. McCully, 11 Rich. 424; nor a partition; Borel v. Rollins, 30 Cal. 408; Bradshaw v. Fane, 3 Drew, 536; but power to "sell and exchange authorizes partition; Phelps v. Harris, 51 Miss. 789; trustees may have power to have a partition, although they personally cannot make it; Naglee's Est. 52 Pa. St. 154; nor does a power include the right to convey to a cestui trust or a legatee; Goode v. Comfort, 39 Mo. 313; Russell v. Russell, 36 N. Y. 581; or to lease; Hubbard v. Elmer, 7 Wend. 446; but see Treat v. Peck, 5 Conn. 280; unless strong reasons could be shown by the trustees; Blake v. Sanderson, 1 Gray, 333; Hedges v. Riker, 5 Johns. Ch. 163; where the heirs hold until sale, they have power to reap the profits; Seymour v. Bull, 3 Day, 389. The trustees in selling must act for the best interest of the cestuis que trust; Gould v. Chappele, 42 Md. 466; Chesley v. Chesley, 49 Mo. 540.

Trustees must give sufficient notice of the sale to bring about all reasonable competition, but no particular form of advertising is required; Harper v. Hayes, 2 Gif. 216; Reeside v. Peter, 33 Md. 120; Stephenson v. January, 49 Mo. 465; Newman v. Jackson, 12 Wheat. 570; Cushman v. Stone, 69 Ill. 516; if notice must be given at a particular place, notice elsewhere is void; Sears v. Livermore, 17 Ia. 297; if in discretion of trustee, advertising may be dispensed with; M'Dermut v. Lorillard, 1 Edw. Ch. 273; any statutory requirements must be followed; Campbell v. Tagge, 30 Ia. 305; Stine v. Wilkson, 10 Mo. 75. Mere inadequacy of price is not sufficient cause for setting aside a sale; Booker v. Anderson, 35 Ill. 66; Boehlert v. McBride, 48 Mo. 505; Carter v. Abshire, 48 Mo. 300; Waterman v. Spaulding, 51 Ill. 425; Clark v. Freedman's Savings Co. 100 U. S. 149; see also Carpenter v. Robinson, 1 Holmes, 67; Horsey v. Hough, 38 Md. 130; McNeil v. Gates, 41 Ark. 264; Morse v. Hill, 136 Mass. 60; if there are two equally advantageous offers, the trustee may choose between them; Selby v. Bowie, 4 Gif. 300.

A trustee who takes no part in the sale is nevertheless responsible, for he cannot delegate his power; Oliver v. Court, 8 Price, 166; Berger v. Duff, 4