An agent for sale, should, subject to a reasonable exercise of discretion, sell with all convenient speed.

On sales by

Fiduciary

Vendors.

As to time, consideration for, and manner of sale.

As to time for sale.

By agents.

Assignees of a bankrupt should also sell without any unnecessary delay (a); and any single creditor may insist on a sale; and, if he so insist, it is doubtful whether the Court can refuse its assent (b); until creditors' assignees are chosen, the official assignee alone may sell under the order of the Court, if the Court consider that delay would be prejudicial to the bankrupt's estate; after creditors' assignees are chosen, the official assignee is not to interfere in directing the time or manner of effecting a sale (c).

An assignee of an insolvent, under the 1 & 2 Vict. c. 110, must, in the absence of special direction by the Court, sell, if practicable, within six (lunar) months after his appointment (d); but a sale is not necessarily invalid by reason of its being made after such period has elapsed (e).

A mortgagee with power of sale may sell without waiting for the concurrence of the mortgagor; nor does a stipulation in the mortgage deed that the mortgagor shall, if required, join in any sale, entitle a purchaser to require his concurrence (f).

Statutory owners must, of course, sell within such limits (if any) as to time as are prescribed by the Act under which they derive their powers; the Lands Clauses Consolidation Act, 1845, seems to impose no restriction as to time upon the purchase of lands by agreement; although it limits the time for compulsory purchases by the Company to a period of three years from the passing of the special Act, unless some other period be therein prescribed (g); and it would seem that, in the absence of restriction, even a compulsory power could be exercised without reference to lapse of time (h). It is sufficient if the Company, within the limited period, give notice of their intention to take the lands, and summon a jury to assess their value (i).

Assignees of Bankrupts: single Creditor may insist on sale.

Assignees of Insolvent.

Mortgagees.

Statutory-owners.

(a) Ex parte Goring, 1 Ves. jun. 169.

(b) S. C.; and see 6 Ves. 622; Ex parte Miller, 1 Mon. D. & De G. 44.

(c) 12 & 13 Vict. c. 106, s. 40; and as to estate of Insolvents petitioning under 5 & 6 Vict. c. 116, see

7 & 8 Vict. c. 96, s. 10.

(d) See s. 47; and see last note.

(e) Mather v. Priestman, 9 Sim. 352; Cole v. Coles, 6 Hare, 517.

(f) Carder v. Morgan, 18 Ves. 344.

(g) L. C. C. Act, 1845, sect. 123.

Trustees for sale are not, by the usual direction to sell with all convenient speed, precluded from exercising a reasonable discretion as to the time of sale; nor need one co-trustee adopt the opinion of another (j).

It is laid down that, in the absence of any special direction, trustees for sale, should, subject to a reasonable exercise of discretion, sell with all convenient speed (k); in practice, however, trustees of a will or settlement are not generally considered bound, under the ordinary trust for sale, nor is it usual for them, to sell, except upon the request of some one or more of their cestuis que trust, or under circumstances which render a sale necessary or expedient (l); or unless the property is not of a permanent character: after a bill is filed for the administration of the trust, trustees cannot sell without leave of the Court (m); 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 for sale.

Whether bound to sell immediately.

(h) Thicknesse v. Lancaster Canal Company, 4 Mee. & W. 472.

(i) Brocklebank v. Whitehaven Junction Railway Company, 15 Sim. 632; and see Reg. v. Birmingham and Oxford Junction Railway Company, 15 L. T. 392.

(j) Buxton v. Buxton, 1 Myl. & Cr. 80; but see Taylor v. Tabrum, 6 Sim. 281. It has been recently held, by the Vice-Chancellor of England, that surviving trustees can make a good title and receive the purchasemoney, although the trust-instrument directs any vacancy to be filled up within a specified time which has elapsed; Warburton v. Sandys, 14 Sim. 622; sed qu.

(k) Sug. 57.

(l) Davidson's Conv. vol. iv. p. 342, n.

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

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

Trustees of a power of sale, with the usual trusts for reinvestment in real estate, ought not to sell except for some good reason (o): the Court, however, will not control a bond 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).

When the instrument creating the trust fixes the time 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).

And, on the other hand, where a settlement of a reversion, in terms authorized a sale at any time with the consent of the tenant for life under such settlement, it was held 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 que trust by giving such tenant for life an immediate income (s).

Powers of and trusts for sale are often exercisable only under certain specified conditions; when this is the case, 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 a purchaser against the nonperformance 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).

Trustees under power of sale.

Time fixed by author of trust, cannot be anticipated, although delay be prejudicial.

Reversion may be sold under trust in settlements, although rights of parties are thereby altered.

Conditional powers of and trusts for sale.

Subsequent and precedent condition.

(o) 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. Wood, 4 Myl. & Cr. 460; Nelson v. Callow, 15 Sim. 353; and cases cited.

(q) 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.

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).