Improper sale by Executor to purchaser with notice confers no title.

(z) 1 Ph. 717.

(a) 1 Ph. 721; Watkins v. Cheek, 2 Sim. & St. 199; 4 Myl. & Cr. 427. The distinction here suggested does not appear to be recognised in the comments of a learned writer upon Forbes v. Peacock, in 11 Jurist, part 2, p. 126.

(b) Ewer v. Corbet, 2 P. Wms. 148.

(c) Sug. 854; Wms. on Exors. 745 et seq., and cases there cited: Chambers v. Howell, 12 Jur. 905.

(d) See Eland v. Eland, 4 Myl. &

Somewhat similar in principle is the distinction between cases where the trustee is to sell, and apply the proceeds in making good a deficiency in the personal estate to answer debts and legacies, and those in which he is only authorized to sell in the event of the personal estate so proving deficient; in neither case is there any difficulty as to payment of the purchase-money to the trustee, for no purchaser can be expected to involve himself in the administration of the estate; and even in the second of the two cases, if there be a mere trust for sale, and a good title can, independently of its exercise, be made to the legal estate, a purchaser will, it appears, be protected from the necessity of ascertaining the existence of a deficiency, although the trust instrument do not (as it should do) contain a declaration to that effect (f) ; but if there be a mere power of sale, the title to the legal estate will depend upon the occurrence of the specified event (g); and the trustees' receipt clause will be ineffective, unless it be so worded as in terms to enlarge the power (h).

And where a testator devised estates A. and B., upon trust, if any debts remained unpaid, to sell first A., and then (if necessary) B., it was held that while estate A. remained unsold a good title could not be made to B., without clear evidence being adduced that the proceeds of A. would be insufficient for the purposes of the trust (i).

Distinction between the above, and cases in which the object of the sale is to provide for deficiency in personal estate.

Cr. 427; and see Braithwaite v. Britain, 1 Keen, 206.

(e) Eland v. Eland, 4 Myl. & Cr. 428; and see Higgins v. Shaw, 2 Dru. & War. 356.

(f) Sug. 847.

(g) See Dike v. Ricks, Cro. Car.

335; Culpepper v. Aston or Austin, 2 Ch. Ca. 115, 221; Sug. 847.

(h) See Sug. 848. See a case of Lord Rendlesham v. Meux, 14 Sim. 249; where the opinion of the trustees was in terms made the test of the necessity for a sale.

Where a testator himself contracted to sell the estate, the purchase-money must be paid to his executor, and the ordinary receipt clause in the Will does not enable his trustees to give a discharge for it, although the estate be devised to them in trust to complete the contract (k).

It has recently been held, that where the instrument creating the trust directs that any vacancy in the trust shall be filled up within a specified period, which direction is not complied with, the surviving trustees can nevertheless sell and give a good discharge for the purchase-money under the usual receipt clause (l): but this doctrine should perhaps be cautiously acted on. It has also been held, that payment of money to three persons, nominally trustees, but only one of whom was competent to receive it, and a joint and several receipt given by the three, sufficiently discharged the purchaser (m); this also, it is conceived, is a doctrine open to observation; it is clear that the effect of such a mode of payment might often be to bring the money under the sole eventual control of persons who had no right whatever to deal with it.

In the case of several trustees, all who have not disclaimed must join in the receipt (n).

And we may here refer to the repealed (o) Act of 7 & 8 Vict. c. 76; under which, from the 1st January to the 30th September, 1845, inclusive, the bond fide payment to and receipt of any person to whom any money was payable upon any express or implied trust or for any limited purpose, were an effectual discharge to the person paying the same.

On death of Vendor pur-chase-money is payable to his Executor and not to his Devisee in trust.

Surviving Trustees when able to sell and receive purchase-money.

Payment to trustees, some of whom are not duly appointed, whether valid.

All Trustees must join in receipt.

7 & 8 Vict. C. 76.

(i) Pierce v. Scott, 1 Y. & C. Ex. 257.

(k) Eaton v. Sanxter, 5 Sim. 517.

(l) Warburton v, Sandys, 14 Sim. 622.

(m) Miller v. Priddon, 18 L. J., N. S., Ch. 226, V.C. E.

(n) See Sug. 849, and cases cited. (o) See 8 & 9 Vict. c. 106, s. 1.

A power for trustees to lend the trust-money upon mortgage appears to carry with it a power to give sufficient discharges to the borrowers of the money (p).

As respects moneys charged upon the estate by the author of the trust, there is a difference between charges the satisfaction of which by means of a sale appears to be contemplated, and those for which the estate seems intended to be a continuing security (q).

If, for instance, a legacy be charged upon the estate and made payable at a future period, (as where it is given to an infant and made payable, at twenty-one,) and there be nothing to show that the author of the trust intended the property to be sold before the arrival of the time for payment and discharge of the legacy, no sale can in the interval be safely effected, except subject to the legacy (r); the same remarks apply to a life annuity charged upon the estate (s), which in fact stands on precisely the same reasoning, for a life annuity is merely a series of contingent legacies, payable at stated intervals and without interest: in all these cases the apparent intention of the charge is, that the estate shall remain a security for the money: in the case of portions for children it seems doubtful whether the estate can, except under special powers in the settlement, be discharged from any sums which have not become absolutely vested (t).

If, on the other hand, the moneys charged be made payable at the time appointed for sale, the charge seems to be merely equivalent to a trust for payment out of the proceeds of sale; in fact, as respects debts, a charge of them upon the estate is held to amount to a trust for sale (v): so, as we have already seen (w), when the charge is subject to a prior trust for payment of debts or other general purposes, a purchaser is unaffected thereby (x).

Power to lend on Mortgage implies power to give receipts.

As to application of purchase-money in payment of charges, distinction between the cases.

Between those where estate is intended to be a continuing security for legacy; or annuity; and those where an immediate sale seems to be contemplated.

Charge of debts equivalent to trust for sale to pay.

(p) Wood v. Harman, 5 Madd. 368; and see Sug. 848.

(q) See, on a similar point, Mills v. Osborne, 7 Sim. 30.

(r) Dickenson v. Dickenson, 3 Bro. C. C. 19.

(s) Elliot v. Merryman, Barnard. Ch. R. 82.

(t) Sheppard v. Wilson, 4 Ha. 392; but see, contra, Gillibrand v. Goold, 5 Sim. 149; and Leech v. Leech, 2 Dru. & W. 568.

The power possessed by creditors upon taking proper proceedings for that purpose, of obtaining payment of their debts out of the descended or devised real estate in the hands of the heir or devisee (y), may be defeated by a prior alienation for valuable consideration; and in the hands of the alienee the land is discharged, although the heir or devisee remains personally liable to the extent of the value of land alienated (z): therefore, since the land itself is free, the existence of debts does not relieve a purchaser from the devisee from the necessity of seeing to the payment of legacies, etc. (a): while, on the other hand, a purchaser, either from the heir or devisee, is not bound to see to the payment of either specialty or simple-contract debts (b).

It seems doubtful, when a sum charged upon an estate is assigned by way of mortgage, with the usual power of attorney to receive and give discharges, whether, upon the estate itself being sold, and the sum being paid off out of the proceeds of sale, the assignee can, as against incumbrancers on the equity of redemption of the sum, give a good discharge for the same in Equity under the power of attorney; especially if the deed contain a power to sell the security, and the usual clause expressly making his receipts a good discharge in Equity, in respect of the proceeds of any sale under the power (c).

But Statutes making real estate assets for payment do not amount to a charge of debts.

Receipt under usual powers of attorney on mortgage of a fund charged on land, whether a good discharge in equity.

(v) Shaw v. Borrer, 1 Keen, 559; Ball v. Harris, 4 Myl. & Cr. 264; Gosling v. Carter, 1 Coll. 644.

(w) Supra, p, 284.

(x) Page v. Adam, 4 Beav. 269.

(y) 3 & 4 W. & M. c. 14; 47 Geo. III. c. 74, sess. 2; 3 & 4 Will. IV. c. 104.

(z) Richard-ion v. Horton, 7 Beav.

193; Spackman v, Timbrell, 8 Sim. 253; see Pimm v. Insall, 1 Mac. & G. 449.

(a) Horn v. Horn, 2 Sim. & St. 448; Ball v. Harris, 4 Myl. & Cr. 264, 268.

(b) Sug. 834.

(c) Brasier v. Hudson, 9 Sim. 1.