Upon sales by trustees, mortgagees, and other persons filling a fiduciary character, great care is requisite in the use of special conditions; since, if improperly used, they may not only involve the vendors in personal liability to their cestui que trust. etc, but also prevent their making a good title.

In order to have this effect the conditions must be unnecessary, and of such a depreciatory character that their use amounts to a breach of trust: it may, however, often be difficult to determine whether a given condition comes within this definition.

As to use of special conditions by trustees, etc.

When it amounts to breach of trust.

(p) See 3 Dav. Conv. 84.

(q) Vide infra, Ch. VIII.

(r) See Boswell v. Mendham, 6 Madd. 373.

(s) Shelley v. Nash, 3 Madd. 232; et ride infra, Ch. XIV.

Upon a sale by a mortgagee, the use of conditions compelling a purchaser to take all objections within 21 days from the delivery of the abstract, that all copies of deeds, etc, not in the vendor's possession, should be obtained at the expense of the purchaser, that any mis-statement, ice, should not annul the sale but be the subject of compensation, and that the vendor might resell on breach of conditions by the purchaser, was considered by Lord Langdale to form no objection to the title (t).

Upon a sale by a mortgagee, with a title believed to be marketable although complicated, the use of a condition authorizing the mortgagee, in the event of objections, fee., being taken which he could not remove, to rescind the contract on returning deposit, interest, and costs, and of a condition that purchasers, whose purchase-money should not amount to a specified sum, should pay for their abstracts, (except the abstract of the mortgage deed.) was sanctioned by a late very eminent conveyancer.

On a sale in a single lot, there would seem to be considerable difficulty in drawing any distinction between a condition throwing on a purchaser the expenses of copies of deeds. etc., (as in Hobson v. Bell) , and one imposing on him any expenses connected with the sale which would be incurred merely on his own requisition, whether regarding the verification of the abstract or otherwise: in each case the purchaser submits to pay certain indefinite expenses in the event of his insisting on their being incurred; and, in general, the trust estate probably saves in costs what it loses in purchase money. The case, however, is different on a sale in several lots, where the expenses of verifying the abstract are thrown generally on the purchasers; for then, although the expenses can be but once saved to the estate, each purchaser may think that he will have to bear them, and may be supposed to reduce his biddings accordingly.

Use of certain special conditions by mortgagee approved of.

As to expenses, difference suggested between use of such conditions by trustees, etc. on sale in several lots and on sale in one lot.

(0 Hobson v. Bell, 2 Beav. 17; and see Borell v. Dann, 2 Hare, 443. 455.

Conditions restrictive of a purchaser's right to a marketable title, or the ordinary evidences of title, should be used only so far as may be requisite from the state of the title (u).

Powers of and trusts for sale, at the present day, usually authorize a sale "under special conditions as to title, evidences of title, expenses or otherwise; " such an authority may reasonably be supposed to give to a fiduciary vendor somewhat wider limits than he would otherwise enjoy, and would probably turn the scale in a doubtful case; but it is hard to say what is its precise effect; it certainly would not authorize capricious or obviously unnecessary conditions, and necessary or provident conditions may and should be used without an express authority: it has, however, become very usual to insert in such trusts and powers a declaration, that the use of unnecessary or improper conditions shall not affect the sale; but even such a declaration, of course, does not relieve a fiduciary vendor from liability to his beneficiaries.

And the condition as to compensation for misdescription by the vendor, cannot, it appears, be enforced upon a sale by trustees, etc. (v); although the use of the condition may not in itself be a breach of trust (w).

Although it is a general rule that a trustee or mortgagee, etc, enters into no covenant except that against incumbrances (x), it is not unusual to insert a special condition to that effect.

As to title etc, should be adapted to particular title.

Power to sell under special conditions, its effect.

As to declaration that improper conditions, etc. shall not affect purchaser.

Condition as to misdescriptions useless to trustees, etc.

As to covenants on sale by trustees, etc.

(u) Supra, p. 34; see, however, Borell v. Dann, 2 Ha. 443, 445.

(v) White v. Cuddon, 8Cl. & Finn. 766.

(w) See Hobson v. Bell, 2 Beav. 17.

(x) See Worley v. Frampton, 5 Ha. 560.

Lastly, it may be remarked, that those conditions which to an unprofessional eye appear the simplest, are often the most dangerous; and those which appear difficult and complex to the unlearned purchaser may not unfrequently produce an impression favourable to the title upon the mind of his legal adviser. The conveyancer who, upon the purchase of a large estate, peruses a series of special stipulations, which have evidently been framed with reference to points which might be made matters of serious annoyance by a litigious, but are of little practical importance to the willing, purchaser, is naturally disposed to believe that no real difficulties exist where minor objections have been so carefully anticipated; and, on the other hand, nothing is more common than to see conditions whose concise simplicity disarms the suspicion of the unprofessional reader, but whose sweeping clauses reduce counsel to the dilemma of either advising a client to complete under serious uncertainty whether he will acquire even a tolerable safe holding title, or of involving him in inquiries, which are almost sure to be heavily expensive, and may probably prove wholly unsatisfactory.

Concluding remarks on special conditions.