This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Unless the instrument creating the trust or power direct the contrary, trustees and agents for sale might, even before Lord Cranworth's Act (m), sell by private contract (n); and were not bound to offer the estate to public competition (o). They might also, as a general rule, sell either together or in parcels (p); subject of course to a liability to be called to account in Equity if they adopted a mode of sale which was clearly depreciatory. By the T. Act, 1925, s. 12 (1), where a trust for sale or a power of sale is vested in a trustee, he may sell or concur with any other person in selling, all or any part of the property, either together or in lots, by public auction or by private contract.
By auction or private contract.
(h) See Doe v. Martin, (1790) 4 T. R. 39; Watkins v. Williams, (1851) 3 Mac. & G. 622; 21 L. J. Ch. 601; Ferrand v. Wilson, (1845) 4 Ha. at p. 385; 15 L. J. Ch. 41; Hougham v. Sandys, (1827) 2 Si. 95, 145; 6 L. J. (0. S.) Ch. 67.
(l) Jenkins v. Jones, (1860) 6 Jur. N. S. 391; 29 L. J. Ch. 493; Parkinson v. Hanbury, (1860) 1 Dr. & S. 143; 36 L. J. Ch. 292; Selwyn v. Garfit, (1888) 38 Ch. D. 273; 57 L. J. Ch.*609; Re Thompson and Holt, (1890) 44 Ch. D. 492; 59 L. J. Ch. 651.
(m) 23 & 24 Vict. c. 145.
(n) Sug. 14th ed. 61.
(o) Davey v. Durrant, (1857) 1 D. & J. 535, 538; 26 L. J. Ch. 830, a case of mortgagee selling under power; Harper v. Hayes, (1860) 2 D. F. & J. 542, a case of trustee.
(p) Sug. 14th ed. 61. It appears that a trust for sale of "any part of " an estate, at the discretion of the trustees, would authorise a sale of the entirety: Lord Rendlesham v. Meux, (1844) 14 Si. 249; Cooke v. Farrand, (1816) 7 Taun. 122.
Where the trust is to sell for purposes which may, but will not necessarily, require a sale of the entirety, a purchaser need not see that no more is sold than is requisite (q). Sect. 17 of the T. Act, 1925, expressly provides that no purchaser or mortgagee paying or advancing money on a sale or mortgage purporting to be made under a trust or power vested in trustees, shall be concerned to see that such money is wanted, or that no more than is wanted is raised (r).
Excessive sale for limited purpose.
Formerly, fiduciary vendors were not, without special authority, justified in selling under any depreciatory conditions (such as a condition that the purchaser should take, at a vaulation, fixtures belonging to a third person); or that he should take the property saddled with a disadvantageous contract into, which they had improvidently entered (u); or conditions unnecessarily restrictive of the purchaser's right to a marketable title. Even without express authority, a fiduciary vendor might insert a condition enabling part of the purchase-money to remain on the security of the property. And under the present law, in the absence of a contrary intention being expressed, trustees, personal representatives, tenants for life and statutory owners, are authorised to insert a condition of sale that any part not exceeding two-thirds of the purchase-money may remain on mortgage (v).
(q) Spalding v. Shalmer, (1684) 1 Vern. 301; Bolton v. Hewen, (1821) 6 Mad. 9; Sug. 14th ed. p. 658; Thomas v. Townsend, (1852) 16 Jar. 736.
(r) See also S. L. Act, 1925, s. 16 (2) and s. 95.
(s) Downes v. Grazebrook, (1817) 3 Mer. at p. 208.
(t) See Ord v. Noel, (1820) 5 Mad. 438, 441.
(u) Marriott v. Anchor Reversionary Co., (1861) 3 D. F. & J. 177; 30 L. J. Ch. 571; Dance v. Goldingham, (1873) 8 Ch. 902; 42 L. J. Ch. 777; Dunn v. Flood, (1885) 28 Ch. D. 586; 54 L. J. Ch. 370; Re Rayner's Trustees and Greenaway, (1885) 53 L. T. 495.
Under s. 12 (1) of the T. Act, 1925, a sale may be made subject to prior charges or not, and to such conditions respecting title or evidence of title or other matter as the trustee thinks fit, with power to vary any contract for sale, and to buy in at any auction, or to rescind any Contract for sale and to res-ell without being answerable for any loss; and by s. 12 (2), a trust or power to dispose of land includes a trust or power to dispose of part thereof, whether the division is horizontal, vertical, or made in any other way. And by s. 13 (1) - re-enacting s. 14 of the T. Act, 1893 - no sale made by a trustee shall be impeached by any beneficiary upon the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory, unless it also appears that the consideration for the sale was thereby rendered inadequate.
By s. 13 (2) of the T. Act, 1925, no sale made by a trustee shall, after the execution of the conveyance, be impeached as against the purchaser upon the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory, unless it appears that the purchaser was acting in collusion with the trustee at the time when the contract for sale was made. And by sub-s. (3), no purchaser, upon a sale made by a trustee, shall be at liberty to make any objection against the title upon any of the grounds mentioned in sub-ss. (1) and (2).
Trustees with a power of sale were obliged to sell the standing timber with the estate, though the tenant for life was unimpeachable for waste (x); and a sale of the estate, apart from the timber, was invalid at law (y); a tenant for life selling under the S. L. Acts had also to sell the timber with the land (z). Where the trust was to sell for payment of debts or other limited purposes, and subject thereto the estate was settled on A. for life, with remainders over, the trustees could not fell and dispose of the timber, instead of selling the fee simple of part of the estate (a); the same doctrine applied to a reservation of minerals, or any other part of the inheritance, upon a sale by trustees for sale (b).