Trustees for sale must sell for money.

(o) Dance v. Goldingham, L. R. 8 Ch. 902.

(p) Rede v. Oakes, 4 De G. J. & S. 505; Dunn v. Flood, 25 Ch. D. 629, 28 Ch. D. 586.

(q) Stat. 56 & 57 Vict. c. 53, s. 14, replacing 51 & 52 Vict. c. 59, s. 3.

(r) Stat. 56 & 57 Vict. c. 53, s. 15, replacing 37 & 38 Vict, c. 78, s. 3.

(s) Stat. 44 & 45 Vict. c. 41, s. 66.

(t) Above, p. 264.

(u) Above, p. 265, n. (m).

(x) Above, p. 1; Stirling, J., Payne v. Cork Co., Ltd., 1900, 1 Cb. 308, 314; see also Re A. £., 1899, W. N. 233; and cf. Re Ware, L892, i Ch. 344.

(y) Read v. Shaw, Sug. Pow. 8th ed.: ibid. 864; cf. Re Ware, L892, 1 Ch. 344; Farwell on Powers, 559, 2nd ed.

(z) See Re Morgan, 24 Ch. D. 114, 115. In Re Jackson, 44 Sol. J. 573, it was held that trustees empowered to sell a testator's real estate, "upon such terms and conditions and generally in such manner its they could do if absolute owners thereof," were at liberty to Bell either wholly or partly in consideration of a fee farm rent.

(a) See Re Morrison, 1901, 1 Ch. 701: ft Veto, 1901, 2 Ch. 534, 544, 545; Re Tollemache, 1903, 1 Ch. 457, 955. This rule is, however, subject to an exception, where owing to circumstances unforeseen by the author of the trust there arises some emergency which can only be met by taking some course of action not expressly authorised; and in such cases, but in such cases only, the Court may and, if it thinks fit, will sanction the performance by the trustees of acts of this kind; see the two last cases cited; and Re Welle, 1903, 1 Ch. 848.

(b) M'Queen v. Farquhar, 11 Ves. 467; Sug. Pow. 857, 858, 8th ed. But where there is a power of sale and investment of the proceeds in the purchase of other hereditaments, it appears that an exchange or a partition may be effected circuitously by sale and investment of the purchase money in the lands desired to be taken in exchange or held in severalty; Sug:. row. 858 8th ed. As to effecting a partition under a power of sale and exchange, see Re, Frith and Osborne, 3 Ch. D. 618.

(c) Observe the term.- of the contract for sale under the Settled Land Acts sanctioned by the House of Lords in Bruce v. Ailes-bury. 1892, A. C. 356, 357; and see Thurlow v. Mackeson, L. R. 4 Q. B. 97; Bettyes v. Maynard, 31 W. R. 461; Re Hotham, 1902, 2 Ch. 575. Such a contract may be enforced specifically; Starkey v. Barton, 1909, 1 Ch. 284.

Whether a trust for or power of sale authorizes a mortgage.

Whether a trust or power to mortgage authorizes a sale, or a mortgage with power of sale.

(d) Haldenby v. Spqforth, 1 Beav. 390; Stroughill v. Anstey, 1 De G. M. & G. 635; Page v. Cooper. 16 Beav. 396; Devaynes v. Robinson, 24 Beav. S6.

(e) See Stroughill v. Anstey, 1 De G. M. & G. 465; Page v. Cooper, 16 Beav. 400; Sug. Pow. 425, 8th ed.; Lewin on Trusts, 377, 6th ed.; 497, 11th ed.

(f) Brake v. Whitmore, 5 De G. & S. 619; Cook v. Dawson, 29 Beav. 123.

(g) Clarke v. Royal Panopticon, 4 Drew. 26.

(h) Bridges v. Longman, 24 Beav. 27, 29; Cook v. Dawson, 29 Beav. 123, 128; Re Chawner's Will, L. R. 8 Eq. 569; Farwell on Powers, 447-450, 2nd ed.

(i) Evans v. Jackson, 8 Sim. 217. An executor or administrator, however, where the assets include leaseholds, may grant an underlease if such a mode of disposition be beneficial to the estate, but not otherwise, and the title of the underlessee is dependent on the underlease being beneficial; Wms. Exors. 939, 940, 7th ed.; Keating v. Keating, LI. & G. t. Sug. 133; Hackett v. M'Namara, LI. & G. t. Plunk. 283; Oceanic Steam Navigation Co. v. Sutherberry, 16 Ch. D. 236, 243.

Sale of leaseholds by way of underlease.

Trustees for sale of land, unless expressly authorized by the instrument creating the trust, are not entitled to sell the land apart from the timber growing thereon (p), or to sell the surface reserving the mines and minerals thereunder (q). But under the Trustee Act, 1893 (r), replacing an Act of 1862 (s), the High Court may sanction the sale by a trustee, or other person authorized to sell land, of the land with an exception or reservation of any minerals, or of the minerals separately from the rest of the land, and in each case either with or without rights and powers of and incidental to the working, getting or carrying away of the minerals. And when such sanction has been once obtained, the trustee or other person may make such sales from time to time without any further application to the Court, unless forbidden by the instrument creating the trust or authority to sell (t). Trustees for sale of land should not agree to sell at a price to be fixed by valuation; for that would be a delegation of their discretion to decide what price they will accept (u). On these grounds it appears that they ought not to enter into a contract for sale containing the usual stipulations (x) as to taking timber at a valuation; but they should sell the whole property together at one price (y). The same reasoning is applicable in the case of fixtures. But a stipulation on a sale by trustees that the purchaser shall pay a fixed sum for the timber or fixtures in addition to the price of the land does not appear to be objectionable; as that is, in effect, a sale of the whole property at one price settled by the trustees themselves (z). A trustee for sale is not entitled to enter into an agreement giving some person an option to purchase the property at a future time (a).

Timber and minerals.

(k) Re Judd and Poland and Skelcher't Contract, 1906, 1 Ch. 684, overruling /.'• Walker and Oakshatt's Contract, 1901, 2 Ch. 383: and Bee, Re Webb, 1897, 1 Ch. 144, 149; above, pp. 1. 267.

(I) Above, p. 264.

(m) Re Judd and Poland and Sketcher's Contract, ubi sup.; above, p. 82; below, Chap. X. Sec. 2, at end; Appendix .A.

(n) Re Webb, 1897, 1 Ch. 144, approved, Re Judd and Poland and Skelcher's Contract, 1906. 1 Ch. 684, 690. 691.