An agent or trustee, simply authorized to sell by public auction for a given sum, cannot, whatever may be the price offered, sell by private contract (w).

And an express authority to sell by private contract, would not, it is conceived, justify a sale by auction (x); unless the authority were to sell for a given sum, and the price obtained at the auction (after payment of the incidental expenses) exceeded or equalled that amount.

Legal estate.

Difficulty where legal title depends on exercise of power subject to precedent condition.

Right of tenant for life to rents of estate directed to be sold.

As to the manner of sale.

Power to sell by auction, does not authorize sale by private contract.

Whether power to sell by pri(t) 2 Sug. Pow. 473.

(u) See, as to the construction of a discretionary trust for sale, Lord Rendlesham v. Meux, 14 Sim. 249.

0) Victors v. Scott, 3 Myl. & K. 500

(to) Daniel v. Adams, Arab. 495; In re Loft, 8 Jur. 206, C.; Sug. 56.

(x) See and consider Daniel v. Adams, Amb. 495.

Nor does an authority to sell to A. for a given sum, necessarily justify a sale to B. for that (or, it is conceived, any greater) sum (y).

The assignees of a bankrupt may, although they incur a risk in so doing, sell by private contract; and they are justified in selling in lots (z); we may here remark, that a sale under the general order in Bankruptcy should be conducted by the assignees, and not by a mortgagee (a).

The assignees of an insolvent, under the 1 & 2 Vict. c. 110, (see s. 47,) must, if practicable, sell by public auction, in such manner, and at such place or places as shall be directed by the creditors: if, however, they ineffectually attempt to sell by auction, they can, after the expiration of the time (six lunar months) limited by the Act, sell by private contract, with the consent of the major part in value of the creditors present at a meeting duly convened for the purpose (b): nor is the sale necessarily invalid by reason of the directions of the creditors as to the manner of sale not having been strictly complied with (c).

Mortgagees, trustees, and agents for sale, may, in the absence of restriction, sell by private contract or public auction (d); they should, however, as a general rule, unless specially authorized to sell by private contract, sell by auction, to avoid questions with their beneficiaries, as to whether the price obtained was adequate.

They may also, as a general rule, sell either altogether or in parcels (e); subject, of course, to a liability to be called to account in Equity if they adopt a mode of sale which is clearly depreciatory: but it may be doubted whether, even at Law, a power (f) of sale, extending to the entirety of an estate, would be well exercised by a sale of an undivided share: and it has been decided that trustees for sale under a settlement must sell the standing timber with the estate, although the tenant for life be unimpeachable of waste (g); and that a sale of the estate, apart from the timber, is void at Law (h): the same doctrine would, it is conceived, in ordinary cases, apply to a reservation of minerals, or any other part of the inheritance, upon a sale by fiduciary vendors (i). vate contract, authorizes sale by auction.

Power to sell to A. does not authorize sale to B.

As to mode of sale by Assignees of Bankrupt; or Insolvent; or Mortgagees , Trustees, or Agents.

Estate may be sold in parcels.

(y) Bulteel v. Lord Abinger, 6 Jur. 410, V. C. W. (z) See Sug. 56.

(a) Ex parte Cuddon, 3 Mon. D. & De G. 302; L. C.

(b) Mather v. Priest man, 9 Sim. 352

(c) Wright v. Maunder, 4 Beav. 512.

(d) Sug. 56.

(e) Sug. 56. It would appear that a trust for sale of " any part of" an estate, at the discretion of the trustees, would authorize a sale of the entirety. Lord Rendlesham v. Meux, 14 Sim. 249; see Cooke v. Farrand, 7 Taunt. 122.

They are also bound to use all reasonable diligence to obtain a fair price (j): if, therefore, they sell by auction, they should give due notice of and advertise the sale: and if the estate have been advertised to be sold in one particular manner, (as in lots), they should not sell in any other way, (as altogether, or under a different plan of allotment,) without re-advertising the sale in accordance with the proposed alterations (k).

A harsh and improvident sale by a mortgagee, will not, however, be set aside in Equity, if clearly within the terms of the power; nor will a mere offer, unaccompanied by actual tender, of the amount due to him, be sufficient to prevent a sale (l): where, as is usually the case, the power is exerciseable only upon notice, a contract for sale is not invalid by reason of its being entered into before the expiration of notice duly given (m): but where the equity of redemption has been incumbered, and the power does not contain the usual clause making an irregular sale valid as in favour of a purchaser, a sale without the required notice is invalid as against the subsequent incumbrancers, even although the mortgagor expressly waive the notice and consent to the sale (n).

But not in undivided shares; semble, standing timber, etc., must be sold with the fee.

Sales, and proposed alterations in, should be duly advertised.

Oppressive sale by mortgagee not necessarily invalid.

(f) Chance on Powers, 2441.

(g) Cockerell v. Cholmeley, 1 Russ. &M. 418.

(h) Cholmeley v. Paxton, 3 Bing. 207: see a case of Silvester v. Bradley, 13 Sim. 75, where it was, unsuccessfully, contended that the inheritance of the timber was, in equity, severed from the inheritance of the soil; and Butler v. Borton, 5 Madd. 40.

(i) But not (it is conceived) to a reservation of Mines, on sales to Railway or Waterworks Companies; see 8 Vict. c. 20, s. 77, and 10 Vict. c. 17, s. 18.

(j) 3 Mer. 208.

(k) Ord v. Noel, 5 Madd. 438; see p. 441.