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as the said A. B. and C. D., or the survivor of them, or
so as to insure the usual chance of competition ; (Pechel v. Fowler, 2 Anst. 549; Anon. 6 Mad. 10; Ex parte Montgomery, 1 Glyn & Jam. 338); and, in some cases, an injunction will be granted against them if they are proceeding to sell without due notice. See the above cases.
It is usual to give trustees an express power to sell by private contract; but the effect of the additional power, it is presumed, is only to exempt them from the necessity of proving that they have made an advantageous sale, and to facilitate the obtaining of a purchaser; inasmuch as they may, without a special power, sell by private contract, if they choose to incur the liability, and can find a purchaser who will do so likewise. Assignees of a bankrupt may, if they please, sell by private contract. (Ex parte Dunman, 2 Rose, 66).
Trustees for sale may, if they think fit, sell by an agent, if such be the usual course of business; (Ord v. Noel, 6 Madd. 438; Ex parte Belchier, Amb. 218); but they will be held responsible if the agent be improperly selected. (Ord v. Noel, ubi supra; In the matter of the Earl of Litchfield, 1 Atk. 87; Hardwick v. Mynd, 1 Anst. 109).
It is common to add “ to any person or persons willing to become the purchaser or purchasers thereof;" but the words are nugatory, for a sale could not be made to a person who was not willing, and may be made to any person who is willing to become a purchaser.
(c) It is the practice to add “their or his assigns," or to insert before the words “ of such survivor” the words " or assigns.” If either is to be used, the first is the correct expression, as the latter does not extend to the assigns of both trustees, or of the heirs of the survivor ; but the best way is to omit all mention of assigns in the general clauses of the deed, and to leave their powers and estates to be defined by the trustee clauses, from which they derive their effective powers.
(d) If trustees or the assignees of a bankrupt buy in property at Trustees buy. a sale by auction, and the property is afterwards resold at a less price, ing in property. they will be compelled to make good the deficiency. (Taylor v. Tab
power to insert any special or other clauses, or stipulations, in any contract for or conditions of sale, and either as to title or otherwise, as they the said A. B. and C. D., or the survivor of them, or the heirs of such survivor, shall think fit (e), and to take such steps for enforcing the said present contract, either with or without such alterations or restrictions as aforesaid, or any other sale or contract as he or they shall think fit, and do and shall enter into all such other arrangements as the said A. B. and C. D., or the survivor of them, or the heirs of such survivor shall, in their or his discretion, think fit, in relation to any sale or sales of the said premises, or of any part thereof; and do and shall receive the purchase-money to arise from any sale or sales completed in pursuance of these presents, including the price of timber, and do and shall, out of such purchase-money, pay all the expenses attending such sale or sales as aforesaid, or otherwise incurred in the execution of any of the trusts or powers hereby declared, or herein contained, and do and shall hold all the residue of the same purchasemoney in trust for the said G. H., his executors, administrators, and assigns; and also shall receive the rents and profits of the said messuage or tenement, farm, lands, and other hereditaments, or of the unsold part or parts thereof for the time being, in the meantime and until the same shall be sold; and do and shall, out of the same rents and profits, pay all the rates, taxes, expenses (f), repairs, and other outgoings, in respect of the premises, and do and shall pay the surplus of such rents and profits to the said G. H., his executors, administrators, and assigns : Pro
--and of the rents and profits, until purchase be completed.
rum, 6 Sim. 281; Ex parte Lewis, 1 Glyn & Jam. 69). See, however, Ex parte Buxton, Id. 355; and Buxton v. Buxton, 1 My. & Cra. 80; and E.c parte Lacey, 6 Ves. 625, 629.
(e) As to the power of trustees to sell subject to conditions of sale, see ante, page 95, note (a),
(f) If the property consist of houses or other property subject to damage by fire, it will be right to insert “ (including the expense of keeping the premises adequately insured against loss or damage by fire).”
VIDED ALWAYS, and it is hereby agreed and declared, be- TRUST TO tween and by the parties to these presents, that the receipt El or receipts in writing of the said A. B. and C. D., and the SALE. survivor of them, and the heirs of such survivor, or of the Power to trustrustees or trustee for the time being acting in the execu- tees to giv
ceipts. tion of the trusts of these presents, for any sum or sums of money payable to them or him as the purchase-money of the said premises, or any of them, or otherwise, under or by virtue of these presents, or in the execution of the trusts hereof, shall be a sufficient and effectual discharge, or sufficient and effectual discharges for the same respectively, or so much thereof respectively as in such receipt or receipts shall be expressed or acknowledged to be received, and that the person or persons to whom the same shall be given, his, her, or their heirs, executors, administrators, or assigns, shall not afterwards be answerable or accountable for any loss, misapplication or nonapplication, or be in anywise obliged or concerned to see to the application of the money therein mentioned and acknowledged to be received (g): PROVIDED ALWAYS, and it is hereby agreed and declared,
(9) Although purchase-money may be payable to trustees, yet, in Trustees' power very many cases, equity will hold the purchaser bound to see that to give receipts. the money is applied according to the trust. (See a full discussion of the cases in 2 Sugd. V. & P. ch. xi. ss. 1, 2; and see the recent cases of Braithwaite v. Britain, 1 Keen, 206; Pierce v. Scott, 1 You. & Col. 257; Shaw v. Borrer, 1 Keen, 559; Wood v. Harman, 5 Madd. 368). The case of Johnson v. Kennett, cited 2 Sugd. V. & P. 39, and reported 6 Sim. 384, has been reversed by the Lord Chancellor. 3 My. & Ke. 624. (See, too, Rogers v. Rogers, 6 Sim. 364).
Perhaps, it may fairly be deduced from the above authorities, that, generally, a purchaser is not bound to see to the application of his purchase-money, where there is a hand appointed to receive the money; but the doctrine cannot, with safety, be relied on in practice. The draftsman's rule is always to insert in his trust deeds a special clause, that the receipts of the trustees for the time being shall be discharges for the money payable to them as purchase-money, or otherwise, by virtue or in execution of the trust.
It is prudent to give effect to the receipts, not only of the trustees by name, and the survivor of them, and his representatives, but also to those of the trustees or trustee for the time being acting in the execution of the trusts. For, otherwise, difficulties may be made by some of the trustees disclaiming or declining to act. (See 2 Sugd.
between and by the parties to these presents, that if the
V. & P. 50, 51; and the cases of Townson v. Tickell, 3 B. & Ald. 31 ; Stacey v. Elph, 1 My. & Ke. 195; Begbie v. Crook, 2 Bing. N. C.
incurred in or about the execution of the aforesaid trusts (h); [Covenants by G. H.—that notwithstanding any act done by G. H., A. B., or C. D., or any of them gc., A. B. and C. D. are seised in fee, in trust for him—that A, B., C. D., and G. H. respectively, have right to couvey-for quiet enjoyment-free from incumbrances- and for further assurance, see Precedent XVI. p. 201]. In Witness &c.
GRANT of an Advowson (a) by Joint Tenants.
THIS INDENTURE, &c. BETWEEN A. B., of &c. and Parties. C. D., of &c. (vendors], of the one part; and E. F., of &c. [purchaser], of the other part: WHEREAS, by an indenture, Recital of con
(h) The powers and provisoes here given for the appointment of Trustee clauses. new trustees, and for the indemnity and reimbursement of the trustees, are of the shortest possible description. The longer forms, which are in ordinary use, with the remarks on their frame and application, will be found in those parts of this work which are devoted to precedents of wills and settlements.
It may, however, be noticed, that the short forms given in the text are probably, in common cases, quite as efficient as the longer ones generally employed. The events in which new trustees may be appointed are specified in the short forms, quite as clearly and fully as in the others, and the new trustees are invested with the same powers as the old trustees. The clauses abridged are those which direct the manner of appointment and conveyance, and relate to indemnity and reimbursement; and which, in their extended form, are either concerned with things not essential, or with matters which the law would imply, at least, when aided by the expression of intention contained in the short forms. The short forms will be found extremely useful in cases in which it is desirable to save expense, and may be very safely relied on.
(a) See the previous observations in regard to purchases of advowsons, ante, Precedent IV. p. 113, notes (a) and (c); and see Alston v. Atlay, 2 Nev. & Per. 292, and the authorities and cases there cited.