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TRUST TO

EFFECTUATE A
CONTRACT FOR

SALE.

as the said A. B. and C. D., or the survivor of them, or
the heirs of such survivor (c), shall think reasonable, and E
with power to buy in the said premises, or any part thereof,
at any sale or sales by auction, and to rescind, abandon,
or vary any contract for sale, and to resell the premises
which shall be so bought in or the contract for the sale
of which shall be so rescinded or abandoned as aforesaid,
without being in anywise answerable for any loss which
may happen thereby respectively (d); and also with full

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

EFFECTUATE A
CONTRACT FOR

SALE.

TRUST TO power to insert any special or other clauses, or stipulations,

FOR 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 Trusts of pur- the purchase-money to arise from any sale or sales comchase-money ;

pleted 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 purchase

money in trust for the said G. H., his executors, adminis—and of the trators, and assigns; and also shall receive the rents and rents and profits, until pur

profits of the said messuage or tenement, farm, lands, and chase be com other hereditaments, or of the unsold part or parts thereof pleted.

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

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 Ex 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)."

EFFECTUATE A
CONTRACT FOR

re

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.

TRUST TO EFFECTUATE A CONTRACT FOR

SALE. Power to appoint new trustees.

between and by the parties to these presents, that if the
said trustees herein before named, or either of them, or any
trustee or trustees to be appointed as hereinafter is men-
tioned, shall die or be absent from this kingdom more than
six calendar months at any one time, or be desirous of ·
being discharged of and from, or refuse or decline, or be-
come incapable to act in the aforesaid trusts, before the
same shall be fully executed, then and so often as the same
shall happen, it shall be lawful for the surviving or con-
tinuing trustees or trustee for the time being, (and for this
purpose, any trustee or trustees retiring from or declining
to act in the aforesaid trusts shall, if willing to act in the
exercise of this present power, be considered a continuing
trustee or continuing trustees), or for the executors or ad-
ministrators of the last surviving or continuing trustee for
the time being, from time to time, to appoint any other
person to be a trustee or trustees in the stead of the trustee
or trustees so dying, or being absent from this kingdom,
or desiring to be discharged, or refusing, declining, or be-
coming incapable to act as aforesaid; and that, upon every
such appointment, the said trust estates, monies, and pre-
mises shall be assigned, transferred, or conveyed in such
manner, and so that the same may become vested in the
new trustee or trustees jointly with the surviving or con-
tinuing trustee or trustees, or solely, as the case may re-
quire; and every such new trustee shall have the same
powers as if he or they had been originally named a trustee
in these presents: Provided also, and it is hereby further
agreed and declared, between and by the parties to these
presents, that the trustees or trustee for the time being of
these presents shall not be answerable the one for the other
of them, and by no means for involuntary losses; and also,
that it shall be lawful for the said trustees or trustee for
the time being to reimburse themselves or himself out of
the monies which shall come to their or his hands, by virtue
of the trusts aforesaid, all their costs and expenses to be

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.

TRUST TO CONTRACT FOR

SALE.

incurred in or about the execution of the aforesaid trusts (1); [Covenants by G. H.--that notwithstanding any act done EFFECTUATE A by G. H., A. B., or C. D., or any of them fc., A. B. and C. D. are seised in fee, in trust for himthat A. B., C. D., and G. H. respectively, have right to couveyfor quiet enjoyment - free from incumbrances- and for further assurance, see Precedent XVI. p. 201). In Witness &c.

XXXI.

GRANT of an Advowson (a) by Joint Tenants.

GRANT OF ADVOWSON.

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

(k) 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.

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