(7) See Matthie v. Edwards, on appeal, 11 Jur. 761; and (as Jones v. Matthie) 11 Jur. 504, reported below, 2 Coll. 465: and see Grugeon v. Gerrard, 4 Y. & C. 119. Money paid for expenses by mortgagor to mortgagee's solicitor, under a threat of an exercise of a power of sale, but not really due, may, it seems, be recovered at Law; Close v. Phipps, 7 Man. & Gr. 586.

Fiduciary vendors are not, without special authority, justified in selling under any unnecessary and depreciatory special conditions, (such as a condition that the purchaser shall take, at a valuation, fixtures belonging to a third person,) or conditions unnecessarily restrictive of the purchaser's right to a marketable title; it is by no means clear that, under such circumstances, they can make a title which a purchaser can be advised to accept (o).

If they employ an agent to sell, or confide the sale to a co-trustee, etc, they will be responsible for his acts (p).

It seems to be doubtful whether, when a power of sale is exerciseable only with a specified consent, a general prospective consent is sufficient; or whether there must not be a consent to the particular sale; also, whether consent given after the execution of the power is sufficient (q): we have seen that a consent is not necessarily invalid by reason of its effect being to benefit the consenting party (r).

Sale under depreciatory conditions, improper.

Trustees, etc, employing agent, are responsible for his acts.

Sale with consent, what consent sufficient.

(m) Major v. Ward, 5 Ha. 598; which also see, as to mode of giving notice: notice of dissolution of a partnership has been held good, although the party served was a lunatic; and the Court said, it would have been good had he been totally blind and deaf; Robertson v. Lockie, 10 Jur. 533, V. C. E.; but see other cases there referred to.

(n) Forster v. Hoggart, 15 L. T. 134, Q. B.

(o) 1 Mer. 268; 3 Dav. Conv. 95.

(p) 1 Atk. 87.

(g) See Chance on Powers, 727 to 737; and Att.-Gen. v. Sitwell, 1 Y. & C. Ex. 559: as to the question whe(3.) As to the price for which they should sell: They must sell for a gross sum of money, unless any other consideration be specially authorized: for instance, a sale in consideration of a rent charge (s) or annuity is invalid (t). Statutory owners under the Lands Clauses Consolidation Act (u) are expressly restricted to a sale for a gross sum.

They should use all reasonable diligence (v), as if the estate were their own, to obtain a fair price; and therefore, of course, should ascertain its value, even at the expense of a valuation, where circumstances seem to render such a course expedient; if bound to sell by auction, or, perhaps, in any case, they cannot safely, without special authority, fix a reserved bidding (w): but such authority, if possessed, should be exercised; or, if wanting, should, if practicable, be obtained.

It has been recently held by Lord Lang dale, that the assignee of an insolvent, selling by auction at a price below the sum fixed by the creditors for a reserved bidding, could make a good title to a purchaser; but that he was answerable to the creditors if the discretion which he had exercised was improper (x).

As to the consideration, they must sell for gross sum.

And may have estate valued.

But cannot, safely, without authority, fix a reserved bidding; semble, ther the consenting power of a tenant for life is affected by the alienation of, or incumbrances on, his life estate, see 5 Jarm. Conv. by Sweet, 161, et seq.; Warburton v. Farn, 16 Sim. 625; and Lord Leigh v. Lord Ash-burton, 11 Beav. 470, (where the life estate was subject to judgments,) and cases cited.

Assignee of Insolvent selling below reserved price, can make title.

(r) Clark v. Seymour, 7 Sim. 67, supra, p. 30.

(s) Read v. Shaw, 2 Sug. Pow. Appendix.

(t) Reid v. Shergold, 10 Ves. 370, 381.

(«) Sect. 10.

(v) Sug. 57.

(w) Taylor v. Tabrum, 6 Sim. 281: see in re Hamlet, 7 Jur. 660; where leave was given to Assignees in Bankruptcy to fix such reserved bidding as the Commissioner might approve.

(a?) Wright v. Maunder, 6 Jur. 71; 4 Beav. 512.

It appears (y) that the biddings for an estate sold in Bankruptcy may be opened before conveyance, upon terms similar to those on which biddings are opened in Chancery (z); and the practice, although disapproved of by Sir E. Sygden (a), has been followed by V. C. K. Bruce in a recent case (b).

As a general rule, fiduciary vendors, selling by auction, and using all proper precautions to effect an advantageous sale, incur no responsibility should the estate sell below its value; and Equity will even help the purchaser to his bargain (c).

Under the Lands Clauses Consolidation Act, statutory owners have no power to fix the price; this must be determined either by a jury, or arbitration, or valuation (d); it is conceived, however, that a company agreeing with a statutory owner to purchase at a certain price, is bound, if such price be subsequently ascertained, in manner prescribed by the Act, to be a fair value for the land (e).

Where real property is settled in the usual way, with a tenancy for life, and a discretionary power of sale in trustees, and a trust for reinvestment of the purchase-money in land, it may be a question whether the trustees could be advised to exercise the power for the purpose of a sale under the Lands Clauses Consolidation Act, except under a special stipulation that the company shall bear the costs of reinvesting the purchase-money, in the same way as if the sale had been made by the tenant for life under the statutory power (f); or with an increase of purchase-money, as a special compensation for such costs.

Biddings may be opened in Bankruptcy.

Fiduciary vendors not responsible for loss on sale by auction.

Statutory owners cannot fix price.

As to sales to Railway Companies, etc, by trustees under mere discretionary power; costs of reinvestment.

(y) Ex parte Hutchinson, 2 Mon. & Ay. 727; Ex parte Partington, 1 Ball & B. 209.

(z) Infra, Ch. XIX.

(a) Sug. 61.

(b) Ex parte Lee, 12 Jur. 995.

(c) 5 Madd. 440.

(d) Sect. 9.

(e) See Frend & Ware's Railway Conv. 69.

(f) See sect. 80.

Municipal Corporations can, under the above Act, sell only with the consent of the Treasury (g).

If the assignee of a bankrupt, being unauthorized by the creditors, buy in the estate, he will, unless they subsequently sanction the step, be deemed a purchaser on his own account (h): and where the assignees put up the estate in two lots, and bought in both without authority, and, on a resale, there was a loss upon lot A., but a gain upon lot B., they were charged with the loss, and were not allowed to set off the gain (i).

And trustees for sale, mortgagees, and agents, cannot, without incurring a risk of being held liable for any consequent loss, buy in the property, or annul a contract for sale without special authority so to do (j).

Sale by municipal corporations.

Assignee buying in estate is liable to be held the purchaser.

And cannot set off excess on resale of one lot, against deficiency on resale of another.

Trustees, etc, buying in or rescinding contract liable for loss; semble.