money. But under a trust to sell "as absolute owners" trustees have been held justified in selling in consideration of a rent-charge (c).

Concurrence with other Owners.-Although trustees may concur with the owners of another property in selling both properties together, it is their duty to see that their share of the purchase-money is apportioned before completion; and a purchaser must take care of that likewise, because he can only pay trust money to the trustees. If it is not manifest that it is more beneficial to sell the two properties together, the purchaser should require the evidence of a competent surveyor that it is a prudent and right thing to do so (d).

Notwithstanding that the section quoted above gives the trustees power to sell "any part of the property," they cannot sell the trust estate separate from the timber standing on it (e); but it is conceived that there is no objection to the timber being sold at a separate valuation if the price is paid to the trustees. Nor can trustees sell the trust estate with an exception or reservation of minerals without the sanction of the court under s. 44 of the Trustees Act, 1893 (f).

Consent of Tenant for Life.-By sub-s. 2 of s. 13, this section only applies "if and so far as a contrary

(c) Re Jackson (1900), 44 Sol. J. 573.

(d) In re Cooper and Allen's Contract (1876), 4 Ch. D. 802. (e) Lewin, p. 495 ; and cf. s. 13 of Lord St. Leonards' Act; Settled Land Act, 1882, s. 35.

(f) In re Skinner, W. N. (1896) 68; and ef. Settled Land Act, 1882, s. 17.

intention is not expressed in the instrument creating the trust or power." Consequently where trustees are empowered to sell at the request and by the direction of the tenant for life, the purchaser should require evidence that such request and direction have, in fact, been given (g). Moreover, it should be borne in mind that if the land is settled land within the meaning of the Settled Land Acts, a power of sale cannot be exercised without the consent of the tenant for life (h), but the consent of any one of two or more persons constituting the tenant for life is sufficient (i), and it is not apparently necessary that the consent should be in writing (k). In the case of a trust for sale, the consent of the tenant for life is not necessary unless required by the terms of the settlement (l). If the consent of the tenant for life is required by the terms of the settlement, and the tenant for life has incumbered his life estate, the concurrence of the incumbrancer must be obtained (m).

A trustee who is either a vendor or purchaser may sell or buy without excluding the application of s. 2 of the Vendor and Purchaser Act, 1874 (n).

(g) Underhill on Trusts, p. 255.

(h) Settled Land Act, 1882, s. 56 (2); De Moleyns and Harris' Contract, [1907] W. N. 207.

(i) Settled Land Act, 1884, s. 6 (2); In re Osborne and Bright's, Limited, [1902] 1 Ch. 335.

(k) Gilbey v. Rush, [1906] 1 Ch. at p. 23; but ef. Phillips v. Edwards (1864), 33 Beav. 440.

(1) Settled Land Act, 1884, s. 6 (1).

(m) In re Bedingfield and Herring's Contract, [1893] 2 Ch. 332. (n) Trustee Act, 1893, s. 15.

SECTION 5.

PURCHASE BY PERSONS IN A FIDUCIARY POSITION.

Persons acting in a fiduciary character, such as trustees; executors, and administrators, trustees in bankruptcy, directors or liquidators of companies, governors of charities, agents for sale, and other persons occupying a position with reference to the property or affairs of another inconsistent with the duties or interests of a purchaser, cannot themselves purchase the property with which they are thus connected or entrusted (o). Thus, a receiver appointed by the court (p), an arbitrator contracting for unascertained claims of parties to the reference (q), commissioners for inclosure under a General Inclosure Act, who cannot purchase land in a parish in which an inclosure is made until five years from the date and execution of their award (r), or valuers acting under the Commons Inclosure Act, who are under a similar disability for the term of seven years (s), are all unable to purchase the property with which they are thus fiducially connected. A trustee, to preserve contingent remainders, may purchase from his cestui que trust (t).

A person who has never acted as trustee and has disclaimed the trust is under no disability (u), and it

p. 709,

(0) See Fox v. Mackreth (1788), Wh. & Tu., Vol. II., and notes thereto; Dart's Vendors and Purchasers, pp. 35-57. (p) Nugent v. Nugent, [1907] 2 Ch. 292.

(q) Blennerhasset v. Day (1811), 2 Ball & B. 116.

(r) 41, Geo. 3, c. 109, s. 2.

(8) 8 & 9 Vict. c. 118, s. 129.

(t) Parkes v. White (1805), 11 Ves. 226.

(u) Clark v. Clark (1884), 9 App. Cas. 733.

has been held that the fact that a man has once been a trustee twelve years before the sale is no reason why he should not purchase the property (x); but a trustee cannot get rid of his incapacity, after he has once acted as trustee, merely by retiring from the trust (y). A purchase by a trustee from himself, where he performs the two functions of seller and buyer, is always voidable, nor can he repurchase the property from his own purchaser so long as the contract is executory only, the original purchaser not having paid his purchase-money or taken up his conveyance (z). On the other hand, a purchase by a trustee from the cestui que trust may be supported if the relation of trustee and cestui que trust be previously dissolved, or the parties agree to stand with reference to each other in the character of vendor and purchaser (a), and the trustee behaves fairly and honestly.

A trustee may in some cases obtain the sanction of the court to a sale by him to himself. A preliminary contract should be entered into and submitted to the court for approval by summons under R. S. C., Order LV., r. 3.

A solicitor may purchase from his client, but it is essential that the client should be advised by some disinterested solicitor, and it would rest with the

(x) In re Boles and British Land Co.'s Contract, [1902] 1 Ch. 244.

(y) Ex parte James (1803), 8 Ves. 352.

(z) Delves v. Gray, [1902] 2 Ch. 606.

(a) Gibson v. Jeyes (1801), 6 Ves. 266; Coles v. Trecothick (1804), 9 Ves. 247; Underhill, pp. 405, 406; Lewin on Trusts, p. 555; Dougan v. Macpherson, [1902] A. C. 197.

solicitor purchasing to prove that he gave an adequate consideration (b); and if the solicitor purchase through the intervention of a third party, so that the client is not aware that the solicitor is the real purchaser, the transaction cannot be supported (c).

A relative of a disqualified person may purchase bonâ fide on his own account (d), and the court will in the absence of fraud decree a specific performance at the suit of the purchaser (e). It has been doubted whether a trustee can sell to his own wife, but although such a transaction would be open to the gravest suspicion (ƒ), it is not necessarily invalid (g).

A tenant for life under a settlement, whose consent is necessary to the exercise of a power of sale by the trustees, may nevertheless purchase from them under the power (h).

SECTION 6.

MORTGAGEES.

A sale by a mortgagee can be made either by virtue of an express power in the mortgage deed, or of the statutory powers conferred by the Con

(b) Edwards v. Meyrick (1842), 2 Hare, 63.

(c) McPherson v. Watt (1877), 3 App. Cas. 254. (d) Ferraby v. Hobson (1847), 2 Phil. 261.

(e) Prestage v. Langford (1771), 3 Wooddeson, 448 n. ; Coles v. Trecothick (1804), 9 Ves. 234.

(f) Dowager Duchess of Sutherland v. Duke of Sutherland, [1893] 3 Ch. 169.

(g) Gilbey v. Rush, [1906] 1 Ch. 11.

(h) Howard v. Ducane (1823), Turn. & R. 81; Dicconson v. Talbot (1870), L. R. 6 Ch. 32; and cf. Settled Land Act, 1890,