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.
Sect. 36 (7) of the A. E. Act, 1925, provides that an assent or conveyance by, a personal representative in respect of a legal estate shall, in favour of a purchaser, unless notice of a previous assent or conveyance has been placed on or annexed to the probate or administration, be taken as sufficient evidence that the person in whose favour the assent or conveyance is given or made is the person entitled to have the legal estate conveyed to him
(y) (1882) 20 Ch. D. 465; 51 L. J. Ch. 434.
(z) Re Whistler, (1887) 35 Ch. D. 561; 56 L. J. Ch. 827; Re Venn and Furze, 1894, 2 Ch. 101; 63 L. J. Ch. 303; but see Re Verrell, 1903, 1 Ch. 65; 72 L. J. Ch. 44.
Trustees holding land on trust for sale are not, by a direction to sell " with all convenient speed," precluded from exercising a reasonable discretion as to the time of sale; nor need one co-trustee adopt the opinion of another (a);, but in cases of clearly improper delay they may become responsible for consequential loss to the estate (b). A direction to sell with all reasonable expedition, and within a specified time, does not preclude a sale after the expiration of 6uch period, or incapacitate the trustees from making a good title to a purchaser; but as between themselves and their beneficiaries (c), the onus of showing that the beneficiaries are not prejudiced by the time for sale being extended, is thrown upon the trustees, and where a sale has been postponed until long after the time at which it apparently ought to have been effected, a purchaser should ask for some explanation of the delay, at all events if beneficiaries are in possession (d). "In regard to the general question of distance of time," said Lord St. Leonards, " people who deal with trustees raising money at a considerable distance of time and without an apparent reason for so doing, must be considered as under some obligation to inquire and to look fairly at what they are about" (e).
Trustees for sale.
(a) Marsden v. Kent, (1877) 5 Ch. D. 598; 46 L. J. Ch. 497; following Buxton v. B., (1835) 1 My. & C. 80.
(b) Pattenden v. Hobson, (1853) 22 L. J. Ch. 697; Cuff v. Hall, (1855) 1 Jur. N. S. 972; Devaynes v. Robinson, (1857) 24 Beav. 86; 27 L. J. Ch. 157; Fry v. F., (1859) 27 Beav. 144; 28 L. J. Ch. 591.
(c) Pearce v. Gardner, (1852) 10 Ha. 287; Cuff v. Hall, (1855) 1 Jur. N. S. 972; Lewin, 13th ed. 1062.
(d) Stroughill v. Anstey, (1852) 1 D. M. & G. 635; 22 L. J. Ch. 130; and see judgment in Devaynes v. Robinson, sup.
(e) 1 D. M. & G. p. 654.
For the purpose of determining the relative rights of tenants for life and remaindermen, twelve months will be considered a reasonable period within which to execute a trust to sell or purchase "with all convenient speed" or, "so soon as conveniently may be"; and this though the property be a reversion (f). Where trustees are directed to sell "with all convenient speed," or "so soon as con-veniently may be," but the time for sale is left entirely to their own discretion, they may not arbitrarily postpone the sale for an indefinite period; especially in cases where such postponement may have the effect of varying the relative rights of tenants for life and remaindermen (g).
After an action is commenced for the administration of the trust, trustees cannot sell without leave of the Court (h); but the power of an executor to make a good title to the assets of the testator is not affected by the existence of an administration decree (i).
Administration action - effect on power of sale.
Where there is a future trust or power of sale an immediate sale can now be effected under the S. L. Act (k). But formerly when the instrument creating the trust fixed the time for sale, this could not have been anticipated either by the trustees or the Court, however injurious the delay might have been to the estate (l); and where trustees, with the consent of the tenant for life and of some of the beneficiaries, attempted to sell in anticipation, they were not allowed costs of the attempted sale and litigation, as against the beneficiaries who were under disability (m).
Time fixed for sale.
(f) Parry v. Warrington, (1820) 6 Mad. 155; Tickers v. Scott, (1834) 3 My. & K. 500; 3 L. J. N. S. Ch. 223; Greisley v. Lord Chesterfield. (1851) 13 Beav. 288; Wilkinson v. Duncan, (1857) 23 Beav. 469; 26 L. J. Ch. 495.
(g) Walker v. Shore, (1815) 19 Ves. at p. 391; Re Elford, 1910, 1 Ch. 814; Re Marshall, 1914,. 1 Ch. 192.
(h) Walker v. Smalwood, (1768) Arab. 676; see Farwell, Pow. 3rd ed. (k) Berry v. Gibbons, (1873) 8 Ch. 747; Coote, 9th ed. 424.
(k) 8. L. Act, 1925, s. 30, sub-s. (I) (iv).
(l) Johnstone v. Baber, (1845) 8 Beav. 233; see Blacklow v. Liws, (1842) 2 Ha, 40; Gosling v. Carter, (1845) 1 Coll. 644; 14 L. J. Ch. 218; Want v. Stallibrass, (1873) L. R. 8 Ex. 175; 42 L. J. Ex. 108.
(m) Leedham v. Chawner, (1858) 4 Kay & J. 458
A trust for sale is not necessarily spent because the beneficiaries are all sui juris (n). And now by the L, P, Act, 1925, section 23, where land is subject to a trust for sale, such trust, so far as regards the safety and protection of any purchaser thereunder, is to be deemed to be subsisting until the land has been conveyed to or under the direction of the persons interested in the proceeds of sale. This provision applies to sales made before or after the commencement of the Act. And by s. 25 (1), a power to postpone sale, in the case of every trust for sale of land, is to be implied unless a contrary intention appears. Where there is a power to postpone, then by sub-s. (2), subject to a direction to the contrary, the trustees are not to be liable in any way for postponing the sale, in the exercise of their discretion, for any indefinite period; nor is a purchaser of a legal estate concerned with any directions respecting the postponement of sale. Where a disposition coming into operation after the commencement of the Act contains a trust either to retain or sell land, it is to be construed as. a trust to sell with power to postpone (o).