Son of disqualified purchaser.

Tenant for life on sale by Trustees with his consent.

(d) See Edwards v. Meyrick, 2 Ha. 60, where the earlier cases are cited and reviewed: see Rudd v. Sewell, 4 Jur. 882, C.; and Thomas v. Phillips, 11 Jur. 80.

(e) Edwards v. Meyrick, ubi supra.

(f) 2 Y. & C. Exch. 520; 2 Ha. 68.

(g) Austin v. Chambers, 6 Cl. & Fin. 1.

(h) See Ferraby v. Hobson, 2 Ph. 261.

(i) Sug. 892; see Coles v. Tre-cothick, 9 Ves. 234.

(k) Howard v. Ducane, Turn. & R. 81.

(l) Turn. & R.86 & 87; 3 Russ. 432.

A trustee may either simply, though expressly, hold the property in trust for others; or, although not nominally a trustee, he may yet owe duties to others in respect of it which invest him with a fiduciary character in the contemplation of the Court; or he may actually hold it in trust to effect a sale.

So, his cestuis que trust may be either sui juris, or the contrary, - as infants, married women, etc. etc.

It does not appear that the rule against purchasing affects mere dry trustees; e. g.: a trustee to preserve contingent remainders (m), or (it is conceived) a trustee to bar dower, or of a term for years assigned to attend the inheritance, or of a mere outstanding legal estate, or, in fact, a trustee of any description who cannot possibly derive in the transaction any advantage from his fiduciary character (n).

Nor is a trustee who comes within the restrictive rule incapable of purchasing from the cestuis que trust, if they be sui juris; but, in any such case, the Court looks at the transaction with a jealous eye (o); and the question to be determined is, not whether the price is fair, but whether the purchaser, having held a confidential situation previously to the purchase, has, at the time of the purchase, shaken off that character, by the consent of the cestuis que trust, freely given, after full information, and has bargained for the right to purchase (p).

So, where the sale by auction is in fact conducted by the cestui que trust, a purchase at an adequate price by the trustee for sale may, perhaps, be supported (q).

In the case of a trust for the benefit of creditors, there is little doubt that the consent of the majority will not bind the minority, so as to render valid a purchase by the trustee for sale (r).

As to purchase by Trustees- different kinds of trust.

Dry Trustees may purchase.

Purchase by active trustees from cestui que trust may be valid.

Test of validity.

Sale apparently by Trustee, but substantially by cestui que trust, whether valid.

Purchase by Creditors'

(m) 11 Ves. 226. (n) See 1 Sim. & St. 567. (o) Davidson v. Gardner, Sug. 890.

(p) Per Lord Eldon, Ex parte James, 8 Ves. 353.

(q) See Coles v. Trecothick, 9 Ves. 234.

The solicitor of a cestui que trust has no general authority to authorize a purchase by the trustee (s).

A trustee cannot get rid of his incapacity by resigning the trust or confidential situation; for he would still retain the knowledge he had acquired while in office (t).

And the circumstance of a trustee or agent purchasing in the name of a third person is indicative of fraud, and the sale will more readily be set aside (u).

Where the cestuis que trust or any of them are not sui juris, a purchase by a trustee, who comes within the restrictive rule, can be safely effected only under an order of the Court; which order will not be made unless to the evident advantage of the trust (v); and it is presumed that he would have to pay the costs of the suit.

We may next consider the nature of the risk incurred by the trustee or other person purchasing while under any incapacity of the second description.

1st, He may be required to reconvey the estate, supposing he has not sold it (w).

2ndly, He may be obliged to let it be put up to sale, and to reconvey to another purchaser if a better can be found; but if not to keep it (x).

3rdly, If he have resold it at a profit, he may be required to account for such profit (y).

And a sub-purchaser, buying with notice of the circumstances creating the incapacity in the original purchaser, is in the same predicament, if the sale be impeached (z).

Trustee, with consent of majority, invalid.

Solicitor of cestui que trust cannot consent to the purchase.

Resignation of trust once accepted immaterial.

Purchase in name of another suspicious.

Purchase by decree, if cestuis que trust are under disability.

Risk incurred by disqualified purchaser.

He may be forced to reconvey; or let the estate be resold; or to account for profit if he has sold.

Sub-purchaser with notice is

(r) Sug. 895; 6 Ves. 628.

(s) Dowries v. Grazebrook, 3 Mer. 209.

(t) 8 Ves. 352; and see Carter v. Palmer, 8 Cl. & Fin. 657.

(u) Lord Hardwicke v. Vernon, 4 Ves. 411; In re Bloyes' Trust, 1

Mac. & G. p. 497.

(v) See 5 Ves. 681.

(w) 6 Ves. 627.

(x) Ex parte Reynolds, 5 Ves. 707.

(y) Fox v. Macreth, 2 Bro. C. C. 400.

In the first of the above cases, the purchaser will be credited with his original purchase-money and interest at £4 per cent., and all sums expended by him in substantial improvements, (unless he have been guilty of actual fraud) (a), (as, in one case, buildings erected, and inclo-sures made) (b) or in repairs (c); and interest from the time of the advances; and will be debited with rents received by him, an occupation rent for any part occupied by himself (d), and his receipts for the sale of timber, etc., with interest; and also with the estimated amount of deteriorations, (if any) (e); and on receiving the balance, (if in his favour,) he must reconvey.

And if nothing appear to be due to him, he must give up his purchase without receiving any further considera-tion(f).

In making the above estimates, buildings pulled down, will, if incapable of repair, be valued as old materials, but otherwise as buildings standing (g).