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Conditions op nants, except several covenants by the vendors, that they
SALE By i
Trustees, &c. nave not incumbered the property.
and the [like stipulations are breaches of trust is clear, viz. that no trustee or agent having money to lay out in the purchase of land, no person who is advised by his lawyer, and, in short, no prudent person sufficiently informed as to the effect of such conditions, would venture to purchase subject to them; for the effect of them is that a purchaser shall have only an insufficient title, or no title at all, or that he must make if. out at his own expense. But if a numerous class of persons is deterred from bidding at a sale by the use of such conditions, and competition, consequently, is diminished, it is manifest that a less price will be got for the property than might have been obtained at a fair sale; and trustees are not warranted in speculating on the contingency, that the expense the conditions save will more than make up the deficiency of price those conditions occasion. To sell subject to conditions of the foregoing nature, is, in fact, to speculate on the ignorance and heedlessness of purchasers, and it is the duty of trustees not to enter into speculations, but to make out the best title that can be made out by reasonable diligence, and at a reasonable cost, and then, if necessary, by appropriate conditions of sale, to guard against the defects which they cannot remedy.
Trustees should also take care that they do not incumber their sales by conditions for the purchase of fixtures belonging to a tenant for life, or any conditions of a like nature; for as such stipulations obviously tend to diminish the sums to be bid for the corpus of the estate, they are in the same proportion injurious to the interests of the cestui que trusts, and, consequently, amount to a breach of trust in the trustees.
In order to avoid disputes as to the stipulations which trustees are authorized to enter into, it has become usual to insert in all trusts and powers of sale, a declaration that the trustees, or the donees of the power, may make such special stipulations as to title or otherwise, as they may deem fit. But it must be understood that the license so given does not authorize the employment of unnecessary or extravagant conditions, but merely enables the trustees to make such stipulations as an absolute owner of common understanding would in like cases make.J And the practice that has arisen of authorizing trustees to use special stipulations, although it proves the opinion of conveyancers to be, that the use of such stipulations may be, in some cases, beneficial to the estate, yet it would not, in all probability, be taken to prove that the power, being beneficial, is, therefore, necessarily incident to the office of a trustee. For in the familiar and parallel case of giving trustees a power to buy in premises upon a sale by auction, (which is now invariably done), it has never been held that, because the power is extremely useful, therefore trustees are necessarily entitled to it by virtue of their office.
When a purchaser objects that a sale is invalid because the vendors, being mere trustees or persons in part only beneficially entitled, have sold subject to improper conditions, the vendor's answer usually is, that Conditions Of when the purchaser entered into the contract, he knew that the vendors Sale By were trustees, and cannot, therefore, be afterwards heard to allege that TRUSTEE»' &c' they had no right as trustees to enter into such a contract. But the vendors, to avail themselves of this reply, must have given clear notice of the character in which they sell, and even then the answer is not conclusive; for the purchaser is entitled to argue that, when he saw the conditions, he had a right to presume, till by a perusal of the abstract he learned the contrary, that the vendors had a special power to make such stipulations, or that they were absolutely required by the state of the title; and that, at all events, a court of equity will never compel him to complete a breach of trust, merely because he has already commenced it If a sale, subject to special stipulations, be a breach of trust, it is quite clear that a specific performance would never be decreed against a purchaser, because he had notice of the character of the vendors, when he entered into the contract; (Mortlock v. Buller, 10 Ves. 292; Brian v. Acton, 5 Vin. Abr. 533, pi. 33; Stratford v. Lord Aldborough, 1 Ridg. P. C. 281); but whether the purchaser could recover his deposit in an action at law, is a more doubtful question. The point discussed in the preceding note has been mentioned but not decided in Robinson v. Musgrove, 2 Moo. & Rob. 92; see, too, the observations of Sir W. Grant, M. R. 1 Mer. 268.
On the principles above stated, it follows a fortiori that a mortgagee who settles or incumbers the mortgage debt, and then exercises a power of sale, but clogs the sale with special and unusual stipulations relating to his own settlements and incumbrances, cannot make a good title to a purchaser, for, otherwise, the equity of redemption might be rendered of no value by the acts of the mortgagee himself.
In connexion with the foregoing subject it may be observed, that The title to be
trustees who have money to lay out in the purchase of land, are bound to required >'y
, _ ... , , trustees pur
require such a title as a court of equity would compel them to accept, basing
and would aid them in forcing upon any person who contracted to purchase from them without any special conditions of sale. Of course, therefore, as has been before observed, trustees cannot purchase subject to special conditions as to title; and it is equally contrary to their duty to purchase subject to any condition which throws upon them any part of the expense usually bome by the vendor, or subject to a condition limiting the time within which they are to make their objections to title, or subject to any other condition which is not usual. If trustees enter into a contract subject to improper stipulations, perhapB a court of equity would not assist the vendor, by compelling them to specifically perform their contract, but would leave him to his remedy at law. If, however, they should complete a purchase, with a title not marketable except under special conditions, doubtless, the cestui que trusts may repudiate the purchase, and compel the trustees to make good the monies expended by ihem.
There is very little variety in the formal parts, and infinite diversity in the essential stipulations of Agreements; and, therefore, forms and precedents are of less use in the preparation of those than of any other instruments. Hence, the number of Precedents of Agreements is, in this collection, intentionally small; and the draftsman, having once made himself acquainted with the usual shape of an agreement, must prepare such as come before him from a consideration of the peculiar circumstances of each case, with little regard to his precedent book. The leading terms of agreements are generally drawn out by the parties themselves, and the task of the professional draftsman consists in arranging those terms in proper order, clothing them with legal language, and supplying the deficiencies of provision for unforeseen contingencies. If the agreement to be prepared be special or complicated, this is a task of considerable difficulty, and one which can only be successfully accomplished by a person of considerable experience.
»ALE op COMMON Agreement for the Sale of Free
FREEHOLDS. HolD ESTATE (a).
Parties. A.RTICLES Of Agreement made and entered into this day of , 18—, Between A. B., of &c, [vendor],
(a) It will be seen, that the precedents of agreements for sales and purchases contain few special stipulations as to title, or otherwise. This is because a large number of these stipulations are to be found under of the one part; and C. D., of &c, [purchaser], of the other Sale 0f part (6); as follows, (that is to say): Each of them, the said
the head " Conditions of sale," arranged according to the subjects to which they relate. The forms there given may be very easily adapted for insertion in agreements for sale by private contract; and, therefore, to prevent needless repetition, the draftsman is referred to that source for such special stipulations as he may require.
(6) In all instruments in which any thing passes, or in which it is Order of the
agreed that any thing shall pass from one of the parties to another, P«r<>e» to ">T ,. , , ., ... • i 'strumcnUof
the name of the party from whom the thing passes, or is to pass, is convevance
placed first in the arrangement of the parties. Thus, in all purchase deeds, mortgages, leases, and settlements, the names of the grantors, mortgagors, lessors, and settlors, are placed first; and the arrangement is the same in all agreements for mortgages, leases, and settlements. If the legal estate be outstanding, and be vested in any of the persons who are parties, these persons are generally made parties of the first part, in all deeds of actual conveyance, because they are naturally the first to convey; and in any agreements to which such persons are parties, it is, in most cases, best to arrange them as though the agreement were the actual conveyance. Next to the person having the legal estate, generally follow all those having partial or temporary interests, such as second mortgagees, annuitants, tenants for life, and incumbrancers of every description; the persons having the whole ultimate interest subject to the preceding partial estates and incumbrances are placed last in the order of the conveying parties. In common agreements, the parties are seldom numerous, because the persons having the principal estates generally contract alone with the purchaser, or other opposite party, and the concurrence of incumbrancers and trustees, and other necessary parties, is assumed; but so tar as circumstances admit or require, it is proper to arrange the parties to agreements in such order as they would be placed in in the principal instrument.
In instruments, in which all parties or none bear the character of Order of the conveying parties, the order of arrangement is less formally prescribed Parties 1n olhcr by custom, and is often a matter of indifference. Thus, in exchanges and partitions, and in agreements for such purposes, it is obviously of no consequence in what order the parties are placed; the only thing needful is to observe, that the subsequent arrangement of the different parts of the instrument should correspond with that of the parties; as, in an exchange, that the person who is party of the first part should be the first to give in exchange.
Again, in instruments which are simply agreements, that particular things shall be done; as that disputes shall be referred to arbitration, or terminated in a manner stated, no particular order of A. B. and C. D., (so far as relates to the acts and deeds on his own part to be performed), doth hereby agree (c) with the other of them, That the said A. B. shall sell, and the said C. D. shall purchase, All That freehold, &c, [parcels], with their appurtenances, and the inheritance thereof, in fee simple in possession, free from incumbrances,
at or for the price or sum of £ , to be paid by the said
C. D. to the said A. B. in manner following, (that is to
say), the sum of £ , part thereof, immediately after the
execution of these presents, and the sum of £ , remainder thereof, on the day of next, at the office
of . That the said A. B. shall, within , from
the date of these presents, at his own expense, deliver to the
parties is required. But care must be taken, that the order once established be observed throughout the instrument; because, otherwise, not only will the draft lose generally in symmetry and perspicuity, but the references, especially those made to the parties "respectively," or, to the " respective" parties, are apt to become inaccurate and confused. In such instruments as those last mentioned, the order of parties may often be conveniently made according to the order in which they are mentioned in the recitals, or according to the order in which they are required to stand in the witnessing parts; and, indeed, if a particular order of parties is required in the witnessing parts, that is the order for the parties in the commencement of the instrument, because the arrangement in the two places should always, if possible, be the same.
(c) It is common to add here, "for himself, his heirs, executors, and administrators," but for what purpose is not obvious. With a view to a specific performance, the words are altogether superfluous; since, in equity, the estate becomes the purchaser's by virtue of the agreement; and a specific performance may be enforced by either party against all persons claiming through or under the other, without regard to their character of real or personal representatives. And as far as regards the purpose of bringing an action on the contract, the naming the representatives seems to be of as little use; for the instrument not being under seal cannot bind the heir, and the executors and admnistrators are bound without being named. (Co. Lit. 209. a.; Giffiard v. Manley, Cas. Tern. Tal. 108; Bac Abr. Heir, F.). If the agreement be under seal, it is needful that the heirs should be named; (Co. Lit. 209. a.; Gifftyrd v. Manley, ubi supra); and it is the universal practice to name the executors and administrators.
for sale and purchase.
Vendor to deliver abstract,