Illustration of the distinction.

Aside without prejudice to the interests of lessees and others who might have contracted bond fide with the person purporting to purchase; and this case has been cited as establishing a similar rule in English law; Lewin on Trusts, 429, 430, 6th ed.; 571, 573, 11th ed. But it is submitted that this was a mistake.

(c) Bailey v. Barnes, 1894, 1 Ch. 25; see also Jones v. Bowles, 3 My. & K.581; Young v. Young, L. R. 3 Eq. 801; above, pp. 345, 346, 420 - 423, 498.

(d) Above, p. 899.

(e) Charter v. Trevelyan, 11 CI. & Fin. 714.

(b) National Bank of Australasia v. United, etc. Co., 4 App. Cas. 391, 407; Bailey v. Barnes, 1894, 1 Ch. 25. these cases, it is submitted, recognise and illustrate the true principle applicable; which is, that where there is a fraud on a power, the exercise of the authority is altogether void, even as against persons claiming under it as purchasers for value in good faith, unless they can claim the protection of the legal estate; Daubeny v. Cockburn, 1 Mer. 626; Sug. Pow. 616, 8th ed. It should be noted, however, that in the old Scotch case of York Buildings Co. v. Mackenzie, 8 Bro. P. C. 42, 70, the sale was set

Here it may be noticed that, if an authority to sell land be exercised by a sale to a nominee for the benefit of the person authorised, and the sale be completed by the execution of a mere power (strictly so called) to convey the land, the nominee may not in some cases obtain the legal estate. He will obtain it if at law the terms of the power have been complied with (i): but otherwise not (k). For instance, it appears to be a condition precedent to the valid exercise at law of the power of sale and conveyance given to a tenant for life by the Settled Land Act, 1882, that the sale shall be made at the best price that can reasonably be obtained (l). So, if he wore to sell at an undervalue to a nominee for himself, it appears that the legal estate would not pass by his conveyance in attempted exercise of the statutory power (m). And it is thought that a sub-purchaser from the nominee could be in no better position, notwithstanding that he bought without notice of the facts avoiding the original sale (n).

The legal estate may not always pass on a sale by a person exercising an authority to sell to a nominee for his own benefit.

(/) Above, pp. G74 and n. (a), 746, 747, 767, 787 and n. (p), 900.

(g) Randall v. Erringtm, 10 Ves. 423, 429, where the sub-sale had obviously been completed by conveyance.

(h) National Bank of Australasia v. United, etc. Co., 4 App. Cas. 391, 407; Bailey v. Barnes, 1894, 1 Ch. 25.

(i) Above, p. 885.

(k) Above, pp. 302, 307.

The same principles apply in the case of an authority to buy land exercised by a purchase of the authorised person's own property. Those who gave the authority, or their successors in interest, have the right to set aside the sale and to claim repayment of the purchase money with interest at 4 per cent., but must themselves re-convey the land and account for the rents and profits received during their possession of it (o). It appears, however, that, as in the case of a purchase induced by fraud (p), the purchase cannot be set aside if by the purchaser's own act it has become impossible for him to make entire restitution of the land (q). Thus, where he has sold the whole or a substantial part of the land (r), or has extensively worked mines thereunder (q), he can no longer claim to have the purchase set aside. But it is not every act of waste or deterioration that will prevent the rescission of the transaction; if the consequent alteration of the property may be justly compensated by a money payment, a Court of Equity will nevertheless order the purchase to he set aside on the terms of the purchaser paying compensation accordingly (r). Where a man, exercising an authority to purchase vested in him in a fiduciary capacity, has covertly bought property, which is really his own, and the persons who gave the authority have by their own act, done in ignorance of the impropriety of the purchase, made it impossible for them to offer entire restitution, it appears that they may nevertheless recover compensation from him for any loss which they have suffered through his breach of trust. Thus, if the property were not fairly worth the price paid for it, they might, it is thought, recover the difference between the real value and the price (s). But where an agent for purchase, without fraudulent intent, buys land for his principal, which he had himself acquired before the commencement of the agency, and the principal becomes aware of the agent's interest and afterwards sells the land or works, as his own property, mines thereunder, then the principal, acting with knowledge of the facts, has in effect affirmed the purchase (t); and in this case he cannot, it appears, treat the agent as having been a trustee of the land for his benefit as from the time when the agent acquired it, and so make the agent accountable for any profit he has realised on the sale(u). If, however, the agent's conduct were actually fraudulent, the principal would be entitled to affirm the purchase and at the same time to claim compensation for any loss he had incurred (x); and where a trustee or a common agent for purchase covertly buys his own land for the cestui-que-trust, not disclosing his own interest in the transaction, such concealment is of itself sufficient evidence of fraud (y). Where an agent for purchase buys land on his own account after the agency has been constituted, and affects in exercise of his authority to purchase that land for his principal, at an increased price, he is of course accountable to the principal for any profit he has made, having been in effect a trustee of the land from the time when he bought it (z).

Terms of setting aside the sale where the authority is to purchase.

"Where entire restitution is impossible through the act of the party injured.