Committee of LunaticCounsel

Creditor of Bankrupt, who had advised as to sale.

Executors and administrators

Guardians

Governor of Charity.

Mortgagee(c) Ex parte Bennett, 10 Ves. 381.

(d) Ex parte Baynton, 7 Jur. 214.

(e) 41 Geo. III. c. 109, s. 2. (f) 8 & 9 Vict. c. 118, s. 129. (g) Shelf. on Lunacy, p. 44G.

(h) Carter v. Palmer, 8 Cl. & Fin. 657.

(i) Ex parte Hughes, 6 Ves. 617.

(j) Killick v. Flexney, 4 Bro. C. C. 161; Watson v. Toone, 6 Madd. 153.

(k) See Sug. 892.

(I) Atl.-Gen. v. Lord Clarendon, 17 Ves. 491.

(m) Orme v. Wright, 3 Jur. 19; In re Bloyes' Trust, 1 Mac. & G.

A rector, purchasing in the name of his curate a portion of glebe sold for the redemption of the land-tax (q):

A solicitor to a commission of, or fiat in, Bankruptcy, purchasing the estate from the Commissioners (r); and a solicitor conducting a sale under a Decree and purchasing the estate (s): and the solicitor or agent of a person disqualified from purchasing, would, it is conceived, in general, be unable to purchase on his own account (t): but in a recent case, under special circumstances, the solicitor to a fiat was allowed to purchase part of the estate (u):

A steward contracting for a lease from his employer,to sustain which, he must show the fairness of the transaction (w):

(Who may, however, purchase from the mortgagor.)

Permission for, to bid, whether requisite on sale in Bankruptcy.

Rector buying glebe.

Solicitor to Fiat.

Solicitor of disqualified purchaser.

Steward.

488; and see Dowries v. Grazebrook, 3 Mer. 200.

(n) Sug. 888; and see Waters v. Groom, 11 Cl. & Fin. 684; Knight v. Marjoribanks, 2 Mac. & G. 10.

(o) Sug. 889, and cases cited. The costs of an application merely for leave to bid, are, it appears, allowed to the mortgagee only when the petition is presented at the request of the assignees; Ex parte Coort, 7 Jur. 864; Ex parte Danks,

12 L. J., N. S. 45; Ex parte Smith,

13 Jur. 1044. In a case of Ex parte Pedder, 1 Mon. & Ayr. 327, the Court, after the sale, made an order for the mortgagee to bid, nunc pro tunc; to which Sir Edward Sugden adds a query; but a similar order seems to have been made in the recent case of Ex parte Yorke, 3 Mon. D. & De G. 329.

(p) See Ex parte Cuddon, 3 Mon. D. & De G. 302.

(g) Grover v. Hugell, 3 Russ. 428.

(r) Ex parte Bennett, 10 Ves. 381.

(s) Sidny v. Ranger, 12 Sim. 118.

(t) Downes v. Grazebrook, 3 Mer. 209; Whitcomb v. Minchin, 5 Mad. 91; In re Bloyes' Trust, 1 Mac. & G. 488; but see Alvanley v. Kinnaird, 2 Mac. & G. 17.

(«) Ex parte Watts, 1 De G. 265.

Trustees, unless merely such in name (x), can only purchase subject to special restrictions (y): and there will be an additional objection to a purchase by a trustee, if the object of the trust were apparently to secure to the cestui que trust a continuing control over the property (z):

But, of course, the mere fact of a person having been named as a trustee will not affect his capacity to purchase, if he decline the trust ab initio; and it is not essential that he should execute a deed of disclaimer (a):

A trustee whose duty it is to purchase particular property for his cestui que trust, (e. g.: a trustee of renewable leaseholds, bound, if possible, to renew,) shall never buy it for himself; even though the proposed vendor positively refuse to part with it for the benefit of the cestui que trust (b).

But, in all the above cases, the transaction is binding on the purchaser; and voidable merely at the option of the parties originally interested in the property, or their representatives.

On the other hand An execution creditor may buy the property sold under the execution (c):

A solicitor, generally, is under no positive disability to purchase from his client; but, if the transaction be impeached, he must prove its fairness; and that he gave his client all the information respecting the subject of the purchase which he himself possessed: but he need not have pointed out a mere speculative advantage, (such as the possibility of an unplanned, though contemplated railroad, running near the property,) which might be reasonably supposed to be equally in the knowledge of both parties (d): nor does the fact of the consideration having in part consisted of costs necessarily invalidate the transaction (e); nor does the rule extend to prevent a purchase, by a solicitor, of his client's property in respect of which he has not been professionally employed (f); or his purchasing by auction his client's property if he have not acted for him professionally in respect of the sale (g).

Trustees.

Who have accepted trust.

Trustees for purchase.

Incompetent purchaser bound at option of parties interested.

Rule does not affect execution creditor.

General rule as to competency of solicitor to purchase.

(w) See Lord Selsey v. Rhoades, 2 Sim. & St. 49; 1 Bli. N. S. 1.

(x) See Waters v. Groom, 11 Cl. & Fin. 684; where the question was, whether the purchaser was a Trustee or merely a creditor holding security.

(y) As to which, vide infra, p. 21.

(z) Scott v. Davis, 4 Myl. & Cr. 87, 90

(a) Stacey v. Elph, 1 M. & K. 195.

(b) Ex parte Bennett, 10 Ves. 395; see Turner v. Trelawny, 12 Sim. 49.

(c) Stratford v. Twynam, Jac. 418

The son or other relation of a trustee or other disqualified person, may purchase bond fide on his own account; and, although, in the case of a trustee selling to a relation, the relationship is calculated to excite suspicion, which, if confirmed by any other circumstance, it would require a very strong case to remove (h), the Court will, in the absence of fraud, even decree specific performance at the suit of the purchaser (i).

A tenant for life under a settlement, whose consent is requisite to the exercise of a power of sale by the trustees, may, nevertheless, purchase from them under the power (k); but this is an avowed exception from the general rule; and was so decided by Lord Eldon, on the ground of its being dangerous to unsettle the practice of conveyancers (l).