It is sometimes said that a trustee cannot sell or mortgage the trust property except under a direction or authority in the trust instrument or under some statutory authority (k). This is, however, misleading language. A trustee who has the legal estate has the same power to convey that estate at law as is possessed by any other owner of the legal estate who has capacity to dispose of property, and that power is not affected by the fact that the conveyance is in breach of trust, even if this fact is known to the grantee. In equity likewise it is recognized that the conveyance or mortgage by the trustee has the effect of vesting the legal estate in the grantee or mortgagee, but it does not follow that the transferee takes free from the equitable rights of the cestuis que trust. The trust may be enforced against all persons who take the trust estate by act of law or by gratuitous conveyance from the trustee. as his heirs, executors, administrators, devisees, donees and creditors, or against transferees for value with notice of the trust, but not against a person who takes the legal estate for value in good faith and without notice of the trust. This exception to the enforceability of the trust against the property shows that the interest of the cestui que trust is not a true right of ownership, enforceable against the land directly, but merely a personal obligation imposed in equity upon the trustee in the first place as legal owner of the land and enforceable against some but not all of the persons who succeed to his estate (I). The alleged lack of power of the trustee to sell or mortgage without a direction or authority in the trust instrument or some statutory authority is not incapacity or true lack of power, because if it were there would be no exception in favor of a purchaser for value in good faith and without notice (m).

(i) The equitable doctrine of undue influence is of course not related to the question of capacity, but it seems convenient to mention the doctrine here because the question of its application to mortgages and contracts made by married women is of special interest and has been settled only in recent years. The doctrine itself belongs rather to the general law of contracts and is beyond the scope of a book of moderate size on the law of mortgage. A full discussion of the general subject of undue influence will be found in standard works on contracts, e.g., in Pollock on Contracts, 11th ed., pp. 640-681. See also the notes to Huguenin v. Baseley in 1 W. & T.L.C. Eq. 278 ff.

(j) Bank of Montreal v. Stuart, [1911] A.C. 120, disapproving Cox v. Adams, 1904, 35 Can. S.C.R. 393; Euclid Avenue Trusts Co. v. Hohs, 1911, 24 O.L.R. 447, 23 O.L.R. 377; Macdonald v. Fox, 1917, 39 O.L.R. 261, 35 D.L.R. 198; Hutchinson v. Standard Bank of Canada, 1917, 39 O.L.R. 286, 36 D.L.R. 378. As to the question whether a married woman is in a position to exercise free will, see Johnson v. Clark, [1908] 1 Ch. 303. As to the plea of non est factum by a married woman, see Morgan v. Dominion Permanent Loan Co., 1914, 50 Can. S.C.R. 485, 22 D.L.R. 163, reversing 17 B.C.R. 366, 4 D.L.R. 331.

(k) See, e.g., Underhill, Law of Trusts, 7th ed., p. 335.

As a rule a cestui que trust under a trust of land cannot make a legal mortgage without the concurrence of the trustee or other person having the legal estate (n).

It is provided in Ontario by the Devolution of Estates Act, R.S.O. 1914, c. 119, ss. 25, 19, 20 and 21, as follows:

(l) Williams, Real Property, 21st ed., pp. 181,182; Maitland, Equity and the Forms of Action, pp. 92, 93.

(m) See chapter 7, Equitable Principles governing Priorities.

(n) See chapter 5, Equitable 'Mortgages, Sec. 43.

25.-(1) The powers of a personal representative under this Act (o) shall include

(c) Power to mortgage for the payment of debts.

(2) The written approval of the Official Guardian to mortgaging shall be required where it would be required if the real property were being sold (p).

19.-(1) Where an infant is interested in real property which but for this Act would not devolve on the personal representative (q), no sale or conveyance shall be valid under this Act without the written approval of the Official Guardian appointed under the Judicature Act, or, in the absence of such consent or approval, without an order of a Judge of the Supreme Court (r).

20. Except as herein otherwise provided the personal representative of a deceased person shall have power to dispose of and otherwise deal with the real property vested in him by virtue of this Act, with the like incidents, but subject to the like rights, equities and obligations, as if the same were personal property vested in him (s).

21.- (1) The powers of sale conferred by this Act on a personal representative may be exercised for the purpose not only of paying debts, but also of distributing or dividing the estate among the persons beneficially entitled thereto, whether there are or are not debts, and in no case shall it be necessary that the persons beneficially entitled shall concur in any such sale except where it is made for the purpose of distribution only (t).

(o) As to the sections of the statute providing for the vesting of the real property of a deceased person in his personal representatives, see chapter 13, Persons entitled on Death of the Mortgagee, Sec. 123.

(p) As to the cases in which the consent of the Official Guardian is required, see s. 19 of the statute. In view of the provisions of ss. 20 and 21, it would appear that the concurrence of adult beneficiaries in a mortgage "for payment of debts" is not necessary.

(q) If, e.g., land is devised to the executor upon trust to sell, the executor takes independently of the statute and the consent of the Official Guardian to a sale would not be necessary. So if lands are held by two or more persons as partnership assets, on the death of one partner his interest in the land devolves upon his personal representative virtute officii and not by virtue of the statute, and consequently the consent of the Official Guardian to a sale by the personal representative is not necessary. Re Fulton and Mclntyre, 1904, 7 O.L.R. 445.