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.
Terms of resale.
In the case of a resale, the beneficiaries cannot, if the estate were bought in one lot, insist on its being put up in several lots (l), nor, it is conceived, allotted otherwise than as it was bought; to effect any such change the beneficiaries must take it off the purchaser's hands on the terms above mentioned.
Estate not re-allotted.
The rule by which a trustee who has resold at a profit may be made to account for the same, would extend to a purchaser who, by sale of wood, minerals, etc, had more than repaid himself his purchase-money, expenses, and interest (m); or who had made a similar profit by merely letting the property (which in the case of unexpected public improvements might often easily happen in the course of a few years, though the original price were perfectly fair). It is apprehended that, in either of these cases, he would not only have to reconvey, but also to pay the balance found due from him (n).
Purchaser must account for the balance due from him.
(g) Trevelyan v. Charter, (1846) 9 Beav. 140. (h) Shallcross v. Weaver, (1849) 12 Beav. 272. (i) Ex p. Hughes, (1802) 6 Ves. 617.
(k) Williamson v. Seaber, (1839) 3 Y. & C. 717; Ex p. Hughes, sup. (l) Ex p. James, (1803) 8 Ves. 337.
(m) York Buildings Co. v. Mackenzie, (1795) 8 Br. P. C. 42, 71. (n) S. C; and see Ex p. Hughes, (1802) 6 Ves. 622, and the decree in Neesom v. Clarkson, (1842) 2 Ha. at p. 176; 4 Ha. 97.
If, in any of the above cases, the purchaser has paid purchase-money into Court, and it has been invested, he will neither gain nor suffer by a rise or fall in the funds (o).
Variations in funds on payment into Court.
Of course, if the beneficiaries on being made cognisant of the facts, decline to interfere with the transaction, the trustee or other incapacitated purchaser may retain the benefit of it, however advantageous it may be (p).
If beneficiaries decline, trustee may take the benefit of the purchase.
As a general rule, a trustee, though free from fraud, must pay the costs of a suit occasioned by his improper dealing with the estate (q); such is the almost invariable practice where the beneficiaries are infants (r); in other cases, however, the rule is sometimes relaxed where the trustee is free from all moral blame (s); and in one instance it seems he was even allowed to receive a sum on account of costs (t).
Mere lapse of time, except where it is a statutory or positive bar to relief, is only evidence of acquiescence (u);, but a beneficiary wishing to impeach a sale must do so within a reasonable time (x); which, as a matter of fact, is generally less than the time allowed by the Statute of Limitations (y); though independently of statutory limitation, no positive limit of time can be imposed, and each case must be governed by its own circumstances (z). A delay of eighteen years has been held to be an implied confirmation of the transaction (a); ten and eleven years have been held insufficient in the case of an individual (b); and twelve in the case of creditors (c); but the general tendency of modern decisions and of recent legislation is to discourage stale demands; and where there are other circumstances, showing acquiescence, beyond the mere lapse of time, a short delay will be a sufficient bar to relief (d). A longer time, however, is allowed to a class of persons, e.g., creditors, than would be allowed to an individual (e).
Time allowed for impeaching sale.
(o) Ex p. James, (1803) 8 Ves. 337.
(p) Barwell v. B., (1866) 34 Beav. 371.
(q) Sug. 14th ed. 695; Plowright v. Lambert, (1885) 52 L. T. 646.
(r) Sanderson v. Walker, (1807) 13 Ves. 601.
(s) Baker v. Carter, (1835) 1 Y. & C. 250; 4 L. J. N. S. Ex. Eq. 12.
(t) Dowries v. Grazebrook, (1817.) 3 Mer. 200; An. Pr. note, "Trustees and Executors," to Ord. LXV. r. 1.
(u) Life Association of Scotland v. Siddal, (1861) 3 D. F. & J. 58. As to what is acquiescence, see Redgrave v. Surd, (1881) 20 Ch. D. 1; 51 L. J. Ch. 113; De Bussche v. Alt, (1878) 8 Ch. D. 286, 312 et seg.; 47 L. J. Ch. 386; Archbold v. Scully, (1861) 9 H. L. C. 360, 383.
(x) Chalmer v. Bradley, (1819) 1 J. & W. 51; Lord Selsey v. Rhoades, (1827) 1 Bli. N. S. 1; Beaden v. King, (1852) 9 Ha. at p. 532; 22 L. J. Ch. 111; Baker v. Read, (1854) 18 Beav. 398; aff. 3 W. R. 118.
(y) Morse v. Royal, (1806) 12 Ves. 374.
(z) Per Turner, L. J., in Gresley v. Mousley, (1859) 4 D. & J. 78; 23 L. J. Ch. 620; see Redgrave v. Hurd, (1881) 20 Ch. D. 1; 51 L. J. Ch. 113.
Classes more favoured than individuals.
Time will not run against a beneficiary under disability, so as to preclude relief on the ground of acquiescence, until such beneficiary is sui juris (f), and aware that the trustee was improperly the purchaser; and it will require a strong case for a beneficiary to be affected by acquiescence, where his interest is contingent, or reversionary (g), and (in particular) where it is dependent on the will of the purchasing trustee, or of a party implicated in the breach of trust (h). The mere circumstance that an interest is reversionary does not make a beneficiary incapable of assenting to a breach of trust (i); and though the rule is, that the onus lies on the party relying on acquiescence to prove the facts from which the consent of the beneficiary is to be inferred, yet there may well be cases in which, from great lapse of time, such facts ought to be presumed (k).
From what period time begins to run.
(a) Gregory v. G., (1815) G. Coop. 201; Jac. 631; Champion v. Rigby, (1830) 1 Russ. & M. 539; Harcourt v. White, (1860) 28 Beav. 303; 30 L. J. Ch. 681; Barwell v. B., (1865) 34 Beav. at p. 375; see, too, Seagram v. Knight, (1867) 3 Eq. 398; 36 L. J. Ch. 310; varied on app. 2 Ch. 628.
(b) Hall v. Noyes, (1792) cited 3 Ves. 748; 3 Bro. C. C. 483; Murphy v. O'shea, (1845) 2 Jo. & Lat. 422; Nutt v. Boston, 1900, 1 Ch. 29; 69 L. J. Ch. 46.