Trust for sale must be exercised in accordance with con ditions prescribed. But a trust to sell within a given time may be exercised afterwards. Sale of land without timber, or surface sale is vested in trustees, they may sell either subject to prior charges or not, and either together or in lots, by public auction or by private contract, subject to any such conditions respecting title or evidence of title, or other matter, as they may think fit, with power to vary any contract for sale and to buy in or rescind any contract for sale, and resell without being answerable for loss. A trust for sale to take effect at a future time, or on certain conditions, can only be exercised at the time and in accordance with the conditions prescribed. Thus, where a testator devised an advowson to trustees upon trust to sell on the death of A. A. was the incumbent, so that on his death no sale could be made until the vacancy was filled up. It was held that the Court had no jurisdiction to authorize a sale in A.'s lifetime on the ground that it would be beneficial to the parties (d). Again, where a testator gave real and personal estate to trustees upon trust for sale, and declared that no sale should be made without the consent in writing of his sons and daughters, it was held that a contract entered into by the trustees after the death of one of the daughters could not be specifically enforced, although her representative concurred (e). But a trust to sell within a given time will not preclude the trustees from selling after that time, if the nature of the trusts requires that there must certainly be a sale notwithstanding the lapse of time, either by the trustees or by the Court (f)." Trustees for sale must sell the timber with the estate, although the tenant for life is unimpeachable for without mines. Waste (g); and in the case of Buckley v. Howell (h), it was decided that the ordinary power of sale and exchange did not authorize a sale by the trustees of the surface, reserving the minerals. In consequence of this decision, which affected many existing titles, an Act was passed (i) which confirmed all sales, ex (d) Johnstone v. Baber, 8 Beav. (e) Sykes v. Sheard, 33 Beav. 114. (g) Cockerell v. Cholmeley, 1 R. & M. 418. (h) 29 Beav. 546. (i) 25 & 26 Vict. c. 108. minerals may under Settled separately Land Act. powers of sale cease when changes, partitions, and enfranchisements previously made, of the surface without the minerals, or of the minerals without the surface, and authorized similar dispositions in future, with the sanction of the Court(k). This Act was held to apply to mortgagees with a power of sale as well as to trustees strictly so called (7). The last-mentioned Act is practically superseded by Surface and sect. 17 of the Settled Land Act, 1882 (m), which en- be sold, &c., ables the surface and the minerals to be sold, exchanged, or leased separately under the powers of that Act. A power of sale vested in trustees by a settlement, Unlimited the proceeds being directed to be laid out in the pur- in a settlement chase of lands to be settled to the like uses as the valid. lands sold, or being otherwise liable to trusts corresponding with those uses, does not transgress the rule against perpetuities, although no limit is imposed by the terms of the instrument as to the period during which it may be exercised. Such a limit is in fact Such powers implied from the nature and object of the power, the estate vests which is intended to enable alienation during the con- in possession. tinuance of the particular estates created by the settlement, and when those estates determine and the lands become vested in fee simple in possession, either under the ultimate limitation in the deed or by reason of a disentailing assurance, the power ceases also. Thus, if lands are settled on A. for life, with remainder to the sons of A. successively in tail, with remainder to B. in fee simple, and a power of sale unlimited in terms is vested in trustees, such power remains in force during A.'s life, and if he leaves male issue, until a tenant in tail attains twenty-one, and bars the entail, and upon that event happening, or on the death of A., if he has no male issue, the power ceases (n). And it seems that the existence of a jointure rent-charge, the fee simple being vested in possession subject to such jointure, will not keep alive the power (0). (k) Sects. 1, 2. Re Wilkinson's Estates, L. R. 13 Eq. 634. (m) 45 & 46 Vict. c. 38. (n) Mortlock v. Buller, 10 Ves. 315; Biddle r. Perkins, 4 Sim. 135; Waring v. Coventry, 1 M. & K. 249; (0) Wheate v. Hall, 17 Ves. 86. in fee simple Power remains although an undivided share has become vested If property is settled, as to one undivided share, for one class of persons, and as to the other share for another class, the fact of one share having become in possession. absolutely vested in possession does not put an end to the power, which remains in force until the entirety has become so vested (p). Doctrine does not apply division. The doctrine that a power of sale unlimited in terms where power is ceases so soon as the property becomes absolutely for purpose of vested, does not (in the opinion of Jessel, M. R.) apply to a case where the power is made to take effect on the coming into existence of the absolute limitation, e.g., where property is given to trustees in trust for a class of persons absolutely, with a power to sell "for the purpose of division." His Lordship considered that a power of this kind was from its nature exercisable within a reasonable time, and therefore valid (9). Power limited in terms, may property has Where a power of sale is conferred so as in terms to continue after be exercisable only within the permitted period, such become vested. a power remains in force notwithstanding that the property has become absolutely vested, if such appears to be the settlor's intention and there has been no election by the cestuis que trustent to put an end to it (r). Power of sale, where it authorizes a mortgage. A power to sell in order to raise a sum of money implies, it has been said, a power to mortgage, which is a conditional sale (s); but this is only the case when the purpose of the trust will be answered by a mortgage; for if the intention appears that a sale out and seems prima facie to conflict with (p) Trower v. Knightley, 6 Mad. (9) Peters v. Lewes, &c. Rail. Co., 18 Ch. D. 429. The view of the M. R., as stated above, and also the decision of Bacon, V.-C., in Re Cooke's Contract, 4 Ch. D. 454, may be supported by considering that where there is a trust to divide, with a power to sell for the purpose of division, the power is not a power in the proper sense of the term, i.e., an authority to defeat or divest interests vested in default of its exercise, but is merely part of the machinery for carrying out the trust for division. It is in effect a trust to divide the property among the objects either by selling and distributing the proceeds, or by specific allotments or otherwise. (r) Re Cotton's Trustees v. The London School Board, 19 Ch. D. 624. (8) Mills v. Banks, 3 P. Wms. 9. out shall be made, a mortgage will not be a valid exercise of the power (†). authorized by exchange, but not by a power of sale. A power of sale does not authorize a partition (u), A partition and until lately it was considered doubtful whether a power of partition could be carried into effect under a power of exchange (x). But the doubt on this point may be considered as set at rest by a recent case (y), where Jessel, M. R., reviewed all the authorities, and arrived at the conclusion that a partition of an estate held in moieties could be made under such a power, and intimated his opinion, although it was not necessary to decide the point, that there was no difference in this respect between an estate held in moieties, and one held in a greater number of undivided shares (z). Land subject to a discretionary power of sale retains Land remains its character of real estate until sale (a). real estate, conjointly Trust property may be sold conjointly with property belonging to other persons or held on different trusts, may be sold if by reason of the situation of the two properties, or with other for any other reason, a joint sale is likely to produce a property. better price than separate sales (b). On this principle a joint sale by trustees of the reversion expectant on a lease, and by the owner of the lease, was held good (c). In the case of a joint sale the trustees have authority to agree with the other vendor as to the apportionment of the purchase-money, which must be done before the purchase is completed, and the purchaser dividing his money according to such apportionment is safe unless he has notice that the apportionment is an improper one (d). If, however, the two properties are so situate that, prima facie, nothing will be gained by a joint sale, (t) 1 Sug. Pow. 538; Haldenby v. Spofforth, 1 Beav. 390; Stroughill v. Anstey, 1 De G. M. & G. 635; Devaynes v. Robinson, 24 Beav. 86. (u) M'Queen v. Farquhar, 11 Ves. 467. (x) Dart, V. & P. 78; Sug. Powers, pp. 856, 857, 859. (y) Frith v. Osborne, L. R. 3 Ch. D. 618. (z) See also Abel v. Heathcote, 4 B. C. C. 278; Doe v. Spencer, 2 Exch. 752. (a) Walter v. Maunde, 19 Ves. 424. (b) Cavendish v. Cavendish, 10 Ch. 319; Re Cooper, &c., 4 Ch. D. 803. As to the including of two trust properties in one mining lease, see Tolson v. Sheard, 5 Ch. D. 19. (c) Morris v. Debenham, 2 Ch. D. 540. (d) Re Cooper, &c., ubi suprà. Contract if a breach of trust the onus lies on the trustee to show that it is a prudent and right thing (e). If a trustee enters into a contract of sale which is not enforced. under the circumstances a breach of trust as between himself and his cestui que trust, the Court will refuse to enforce its specific performance either at the suit of the vendor or of the purchaser, and will, even at the suit of the cestui que trust, restrain the vendor from carrying it into effect, leaving the purchaser to his remedy in damages, if any (f). If under such a contract the property has been actually conveyed to the purchaser, the question whether it will be set aside will depend on whether he had notice of the breach of trust. Under old law trustees could give good receipts in certain cases only. How money to be paid to trustees. According to the old law, a purchaser from a trustee was liable to see that his purchase-money was properly applied, unless the instrument expressly declared that the trustee's receipt should be a good discharge, or unless such an intention was to be inferred from the nature of the trust. But by the Conveyancing Act, 1881, sect. 36, it is provided that "the receipt in writing of any trustees or trustee for any money, securities, or other personal property payable, transferable, or deliverable to them or him under any trust or power shall be a sufficient discharge for the same, and shall effectually exonerate the person paying, transferring, or delivering the same, from seeing to the application or being answerable for any loss or misapplication thereof," and this enactment is made applicable to trusts created either before or after the commencement of the Act (g). Trustees are not, as a general rule, justified in delegating to an agent, or even to one of themselves, the power to receive money, and until the recent Act a purchaser, or other person liable to pay money to trustees, was entitled to insist on all the trustees being personally present to receive and take charge of it, or on their giving a written authority for payment of it (e) Re Cooper, &c., ubi suprd. f) Mortlock v. Buller, 10 Ves. 392; Ord v. Noel, 5 Madd. 438; Turner v. Harvey, Jac. 169; Rede v. Oakes, 4 De G. J. & S. 513; Dance v. Goldingham, L. R. 8 Ch. (g) See also 22 & 23 Vict. c. 35, 8. 23. |