¹ Fonblanque, , Treatise of Equity (1794), ii., 151Google Scholar: ‘where a man is a purchaser [of the legal estate] for valuable consideration, without notice, he shall not be annoyed in equity.’ The rule existed even in the sixteenth century: Holdsworth, , History of English Law, iv., 432.Google Scholar

² Those provisions of the Land Charges Act, 1925, which require certain equitable interests to be registered, are made to conform with the rule: see Law of Property Act, 1925, ss. 198 (1), 199 (1) (i).

³ Ware v. Lord Egmont (1854) 4 D. M. & G. 460, 473.Google Scholar

⁴ By the middle of the nineteenth century eminent judges were insisting that the doctrine ought not to be further extended: ibid. The Conveyancing Act, 1882, s. 3, accordingly stated its existing scope in a form designed to prevent its extension: Bailey v. Barnes [1894] 1 Ch. 25, 35.Google Scholar Section 199 (1) (ii) of L. P. A., 1925, is expressed in a similar restrictive fashion.

⁵ This type of power, designed to enable a legal owner of land to dispose of it free from equitable interests affecting it, was first employed in the eighteenth century in mortgages of land. It was settled by the end of that century that a legal mortgagee, having such a power, could dispose of the land free from the mortgagor's equity of redemption: see Holdsworth, , 7 H. E. L., 160–161.Google Scholar Similar overreaching powers (by way of power or trust to sell) given to trustees of land became common by the end of that century. These were originally employed mainly, if not exclusively, in devises of realty to executors (in the days when realty did not devolve upon executors as such) in order that its proceeds of sale might assist the testator's personal estate in the payment of his debts and legacies. Settlements inter vivos by way of trust for sale did not become common until the middle of the nineteenth century: see Lightwood, J. M., ‘Trusts for Sale,’ 3 Cambridge Law Journal, 59Google Scholar; Butler's notes, 231, § iii, 4. to Co. Litt. f. 271b, and 249, § xii, to Co. Litt. 290b; Cases and Opinions (1791), II., 114–115. Compare ‘bare’ powers (unattached to a legal estate), which are much older: see post, notes 9–12.

⁶ ‘Any person who takes from one whom he knows to be the trustee of a will, otherwise than under a conveyance or transfer authorized by the trusts or powers thereof, property which he knows to be part of the trust estate, takes such property subject to all the trusts and equities to which it was subject in the hands of the trustee as such’: per , Joyce J., Perham v. Kempster [1907] 1 Oh. 373, 380.Google Scholar See also Re Langmead's Trusts (1855) 20 Beav. 20, 25Google Scholar; Re Bourne [1906] 1 Ch. 113, 119Google Scholar; Re Baker and Selmon's Contract [1907] 1 Ch. 238, 242Google Scholar; Re Atkinson and Horsell's Contract [1912] 2 Ch. 1, 11Google Scholar; Williams, , Vendors and Purchasers, 3rd ed., i., 224–225, 577.Google Scholar

⁷ Precisely the same principle applied to the express powers of sale formerly contained in mortgage deeds (ante, note ⁵). See Sugden, , Vendors and Purchasers, 14th ed., 60Google Scholar; Selwyn v. Garfit (1888) 38 Ch. D. 273Google Scholar;and especially Re Harwood (1887) 35 Ch. D. 470Google Scholar, per Cotton L.J. at p. 472 (as to how these powers operate).

⁸ Williams, , op. cit., i., 224–225, 241, 577.Google Scholar A second exception occurs where the selling trustee makes title with the concurrence of the beneficiaries: ibid. 224–225, 241, 577. See, further, post, p. 40.Google Scholar The original practice was to require their concurrence n every case, in order to secure from them full covenants for title: Vaizey, , Settlements (1887), i., 291Google Scholar; Williams, , op. cit., 69Google Scholar;cf. note ²⁸, post.

⁹ Holdsworth, , 7 H. E. L., 156.Google Scholar The léading authority on this type of power was Sugden (subsequently Lord St. Leonards) on Powers, first published in 1808: references here are to the 8th ed., dated 1861.

¹⁰ This type of power operated under the Statute of Uses. Its overreaching effect was achieved by expressly or impliedly revoking the uses of the original will or settlement and by appointing in their stead a use in favour of the purchaser: Holdsworth, , op. cit., 157.Google Scholar It was ultimately decided that such powers impliedly carried the necessary power of revocation, and that their exercise automatically revoked the former uses: Sanders, , Uses and Trusts, 5th ed., 487 n.Google Scholar; Sugden, , Powers, 8th ed., 290, 837.Google Scholar

¹¹ That they were customarily called ‘trustees’ of the power, though holding no estate upon trust, makes it hard to tell when Sugden is alluding to bare powers and when to a trustee of land. See Sugden, , op. cit., 102Google Scholar, to the effect that all powers are mere declarations of trust—meaning, no doubt, that they are in a sense fiduciary.

¹² The difficulty was that the Courts were prone to construe the power (express or implied) to revoke the former uses, as conditional upon the due observance of the expressed or presumed intentions of the settlor. Conveyancers attempted to evade this difficulty by framing powers which would carry the title to a purchaser nonetheless: Sugden, , op. cit., 851–855Google Scholar; Perry, , Trusts and Trustees, 7th ed., ii, ch. XXVI, § 789.Google Scholar Cf. trustees holding a legal estate, who could at least convey that: ibid.; Robinson v. Briggs (1853) 1 Sm. & Giff. 188, 218.Google Scholar

¹³ See Butler's note 249, § XII, to Co. Litt. 290b, written at the close of the eighteenth century. He ooncludes that it might have been preferable if ‘the operation and consequences of trusts had been confined to the trustee and cestui que trust.’ Also Vaizey, , Settlements (1887), ii., 1410–1411.Google Scholar

¹⁴ Ashburner, , Equity (1902), 185–186Google Scholar; Story, , Equity Jurisprudence, 14th ed., ii., 661 n.Google Scholar; Boursot v. Savage (1866) 2 Eq. 134Google Scholar (notice of required consents—purchaser ordered to re-convey); Robinson v. Briggs (1853) 1 Sm. & Giff. 188Google Scholar (constructive notice of intent to misapply proceeds of sale); Re Cooper and Allen's Contract (1876) 4 Ch. D. 802, 818Google Scholar; Dunn v. Flood (1885) 28 Ch. D. 586, 595.Google Scholar See also Sugden, , Vendors and Purchasers, 14th ed., 62Google Scholar; Godefroi, , Trusts, 3rd ed., 419–420, 427, 445.Google Scholar

¹⁶ Best price: Sugden, , Powers, 8th ed., 863Google Scholar; Sugden, , Vendors and Purchasers, 14th ed., 60Google Scholar; see now Settled Land Act, 1925, s. 110 (1), but query whether it applies to trustees for sale. Depreciatory conditions: Godefroi, , Trusts, 3rd ed., 426–7Google Scholar; Williams, , Vendors and Purchasers, 3rd ed., i., 249–251Google Scholar; see now Trustee Act, 1925, s. 13. Application of proceeds: the rule of Equity was approximately that a purchaser was bound to see to the due application of the proceeds unless the settlement exonerated him expressly (i.e., trustees' receipt to be a good discharge) or by implication (e.g., where, as for payment of debts, he could not have been expected to know and supervise their due application): see, e.g., Butler's note 249, § XII, to Co. Litt. 290b; Booth, , Cases and Opinions, ii., 114–115Google Scholar; Fonblanque, , Equity, ii., 151–154Google Scholar; Sugden, , Powers, 8th ed., 855Google Scholar; Vaizey, , Settlements, ii., 1409–1411Google Scholar; Godefroi, , op. cit., 443–445.Google Scholar See now L. P. A., 1925, s. 27Google Scholar; Trustee Act, 1925, s. 14.Google Scholar

¹⁶ Such provisions did not protect a purchaser who acted in collusion with the trustee or was aware of an intended breach of duty: Re Bourne [1906] 1 Ch. 113, 119Google Scholar (intent to misapply proceeds); Sugden, Vendors and Purchasers, 14th ed., 661; or who had notice, actual or constructive, that the sale was a breach of trust: Godefroi, , op. cit., 445.Google ScholarSemble, notice of intent to misapply is perhaps now irrelevant (neither L. P. A., 1925, s. 27Google Scholar, nor T. A., 1925, s. 14Google Scholar, seems to prescribe good faith), as also are depreciatory conditions in the absence of collusion (T. A., 1925, s. 13).Google Scholar

¹⁷ Prescribed consents: Sugden, , Powers, 8th ed., 252Google Scholar; Williams, , op. cit., i., 577–578Google Scholar; Mortlock v. Buller (1804) 10 Ves. Jun. 292, 308–309Google Scholar (sale without prescribed consents is a breach of trust); Boursot v. Savage (1866) 2 Bq. 134Google Scholar (purchaser with actual or constructive notice of this takes subject to the trusts). Authority to sell: depends on true construction of the settlement: Re Pope's Contract [1911] 2 Ch. 442Google Scholar (implied from implied power to vary investments); if not subsisting at date of salo, purchaser with notice of trust ordinarily takes subject to it: Perham v. Kempster [1907] 1 Ch. 373, 380.Google Scholar

¹⁸ E.g., Prescribed consents: L. P. A., 1925, s. 26Google Scholar, protects purchaser against those prescribed by the ‘disposition’ (but not against any prescribed by a separate trust instrument) if at least two are obtained. Duration of authority to sell: L. P. A., 1925, s. 23Google Scholar (formerly C. A., 1911, s. 10Google Scholar), protecting purchaser until land conveyed to or under direction of beneficiaries, goes little further than the previous case law (note ²⁵, post); see Godefroi, , Trusts, 3rd ed., 440Google Scholar; 2 Key & Elphinstone, Conveyancing Precedents, 14th ed., 547Google Scholar (where ‘continued’ should perhaps read ‘elected’). Powers to postpone sale: L. P. A., 1925, s. 25Google Scholar (2), perhaps protects him when they lapse: cf. note ²⁵, post; Williams, , Vendors and Purchasers, 3rd ed., i., 245–246.Google Scholar See, further, notes ¹⁵, ¹⁶, above. For a new cause of anxiety, introduced by the Acts of 1925, see notes ³², ⁷¹, post.

¹⁹ Williams, , op. cit., i., 224–225, 241, 577Google Scholar; also note ²¹, post.

²⁰ The trustee effectively conveys the legal estate because it is vested in him; the beneficial interest because his authority to sell is an authority to detach from the land the equitable interests of his beneficiaries: Re Harwood (1887) 35 Ch. D. 470, 472Google Scholar (re analogous power of legal mortgagee—cf. note ⁷, ante). But the power to give effective receipts and the purchaser's alternative responsibility for due application of the money were so strongly emphasized by Courts and text-books that these came to be regarded as a question of title: this was thought to be justified by saying (pace the doctrine of conversion—post, note ²⁴) that in Equity the cestuis que trust own the land and so prima facie their interests in it stand until they receive the proceeds of sale: Butler's note 249, § XII, to Co. Litt. 290b; Perry, , Trusts and Trustees, 7th ed., § 790.Google Scholar No doubt the evil influence was the false analogy of the bare power (ante, note ¹²). On principle, one would have expected every duly authorized sale to transfer the trusts from the land to the purchase-money; and any equitable duty on the purchaser, to see to its due application, should have concerned this money only. Cf. American Law Institute, Restatement of the Law of Trusts, § 321Google Scholar; Vaizey, , Settlements (1887), 1410Google Scholar, citing Lewin on Trusts, 4th ed., 309.Google Scholar

²¹ E.g., Williams, , Vendors and Purchasers, 3rd ed., i., 248Google Scholar: ‘the duties of trustees for sale, whether acting under a trust for or power of salo, are …’; Re Tweedie and Miles (1884) 27 Ch. D. 315, 318Google Scholar; also ante, note ¹¹.

²² Williams, , op. cit., 247–248.Google Scholar

²³ This turns, in the case of a trust for sale, upon the presence or absence of a power to postpone salo: Re Kipping [1914] 1 Ch. 62, 67Google Scholar; see now L. P. A., 1925, s. 25.Google Scholar But the power to postpone cannot usually bo exercised unless such trustees are unanimous: Re Hilton [1909] 2 Ch. 548.Google Scholar

²⁴ Farwell, , Powers, 3rd ed., 41Google Scholar: a trust for sale, ‘so long as it is absolute and effective, changes the nature of the estate; and the beneficiaries are entitled only to a share of the proceeds, not to the estate itself.’

²⁵ A trust for sale, unlike a power of sale, commonly endured until such beneficiaries unanimously elected to reconvert and requested the trustee to convey to them: Re Horsnaill [1909] 2 Ch. 631, 635Google Scholar; Re Douglas and Powell's Contract [1902] 2 Ch. 296, 312–313Google Scholar; Williams, , op. cit., i., 244Google Scholar; cf. Godefroi, , Trusts, 3rd ed., 438.Google Scholar But in each case it is a question of construction: Sugden, , Powers, 8th ed., 859–862.Google Scholar See now L. P. A., 1925, s. 23.Google Scholar

²⁶ Godefroi, , op. cit., 424.Google Scholar But section 63 of the Act of 1882 added importance to the distinction between a mere power of sale and a ‘trust or direction for sale’: where the latter existed, a life tenant had no statutory power of sale without the Court's consent: S. L. A., 1884, s. 7.Google Scholar See post, notes ⁷², ⁷³.

²⁷ Section 108 (2). For the vital importance of trusts for sale to-day, see notes ³², ⁷¹, post.

²⁸ Williams, , op. cit., i., 225, 228, 241, 244, 577.Google Scholar Similarly, trustees for sale selling in circumstances which would otherwise be a breach of trust can thus make title: ‘He [the purchaser] required the beneficiaries… to join in the conveyance. He had no right to require this unless the trustees had sold under terms which they had no right to impose’: per Fry L.J., Dunn v. Flood (1885) 28 Ch. D. 586, 594.Google Scholar Cp. note ⁸, ante.

²⁹ See Re Baker and Selmon's Contract [1907] 1 Ch. 238, 241.Google Scholar Hence the purchaser frequently objected that this is a different title from that which the trustees contracted to give: e.g., ibid. at p. 241; Re Heads' Trustees and Macdonald (1890) 45 Ch. D. 310, 314, 316–317.Google Scholar Nevertheless, it was ultimately settled that he must take it: Re Atkinson and Horsell's Contract [1912] 2 Ch. 1. 11Google Scholar; and see note ³⁰. below.

³⁰ See note ²⁹, above; also Brickles v. Snell [1916] 2 A. C. 599, 607–608.Google Scholar But the selling trustees must offer the concurrence of the beneficiaries in good time, e.g., before the purchaser repudiates for want of title; and perhaps must show that they can compel such concurrence (e.g., beneficiaries had requested or consented to the sale before the contract was made): Re Hailes and Hutchinson's Contract [1920] 1 Ch. 233.Google Scholar

³¹ Re Spenser and Hauser's Contract [1928] Ch. 598, 606, 608Google Scholar: a statement that vendors will make title as trustees for sale is prima facie a mere statement of intention, not a warranty.

³² Unless they hold on trust for sale as defined by L. P. A., 1925, s. 205Google Scholar (1) (xxix), they will not ordinarily have or have power to convey the legal estate: S. L. A., 1925, ss. 4Google Scholar (1), 13—cf. ss. 23, 24; nor can they require their purchaser to accept a title from the life tenant: Re Bryant and Barningham's Contract (1890) 44 Ch. D. 218.Google Scholar

³³ See Dunn v. Flood (1885) 28 Ch. D. 586Google Scholar, quoted ante, note 28; Emmet, , Notes on Perusing Titles, 12th ed., i., 154Google Scholar; Dart, , Vendors and Purchasers, 8th ed., i., 460Google Scholar (suggesting a device for concealing the matter). Section 42 (1) of L. P. A., 1925, does not prevent trustees from making title in this way, for it attacks only stipulations contained in the contract.

³⁴ Patman v. Harland (1881) 17 Ch. D. 353, 356Google Scholar; see also note ⁴, ante.

³⁵ Re Chafer and Randall's Contract [1916] 2 Ch. 8, 19Google Scholar; Re Soden and Alexander's Contract [1918] 2 Ch. 258, 264.Google Scholar Moreover, ‘the draftsman's aim should be to frame a deed which shall be capable of serving as a good root of title’: Williams, , Vendors and Purchasers, 3rd ed., i., 592Google Scholar; Dart, , Vendors and Purchasers, 8th ed., i., 460, 461.Google Scholar

³⁶ Re Soden and Alexander's Contract, supra, at p. 264.Google Scholar

³⁷ Such recitals were employed, e.g., in the cases cited in note ³⁵, above, and in Re Balen and Shepherd's Contract [1924] 2 Ch. 365.Google Scholar

³⁸ Re Soden and Alexander's Contract, supra, at p. 263.Google Scholar

³⁹ Aliter if something on the title definitely suggests that the recital is a falsehood, e.g., a recital before 1926 by personal representatives, inconsistent with their testator's will, that X had become entitled in equity: Re Balen and Shepherds' Contract, supra; but cf. Re Harman and Uxbridge, etc. Ry. Co. (1883) 24 Ch. D. 720.Google Scholar Moreover, it is dangerous to imply that X became entitled in equity by virtue of some document—which the purchaser could then claim to see: Re Chafer and Randall's Contract, supra, at pp. 15, 19, 20–21, 23.Google Scholar The system ordinarily depends upon an assumption that the legal owner, who is reciting that X is now entitled in equity, himself had the equitable ownership and has conferred it upon X (either by parol or by the recital itself): ibid. at pp. 15–16: Re Balen and Shepherd's Contract, supra, at pp. 375, 377.Google Scholar

⁴⁰ Williams, , Vendors and Purchasers, 3rd ed., i., 226Google Scholar, quoted with approval in Re Chafer and Randall's Contract, supra, at pp. 12, 19Google Scholar; Re Soden and Alexander's Contract, supra, at pp. 263, 265.Google Scholar See also note ⁸¹, post.

⁴¹ See authorities cited in notes 35–40, above.

⁴² See note ³⁹, ante. The former practice of describing them as trustees was obviously unsafe: Re Chafer and Randall's Contract [1916] 2 Ch. 8, 20.

⁴³ For cases where a vendor's solicitor mistakenly disclosed the existence of trust instrument and trust respectively, see Re. Blaiberg and Abrahame [1899] 2 Ch. 340Google Scholar; Re Soden and Alexander's Contract [1918] 2 Ch. 258.Google Scholar

⁴⁴ Williams, , op. cit., i., 225.Google Scholar See now L. P. A., 1925, ss. 112, 113Google Scholar, giving a purchaser independent protection against possible breaches of trust by a trustee-mortgagee.

⁴⁵ Re Chafer and Randall's Contract, supra, at pp. 12, 13Google Scholar; Re Soden and Alexander's Contract, supra, at p. 263.Google Scholar

⁴⁶ E.g., Re Soden and Alexander's Contract, supra (where they mistakenly disclosed to purchaser that they were trustees); Re Pope's Contract [1911] 2 Ch. 442 (same)Google Scholar; Re Chafer and Randall's Contract, supra (was apparently a purchase by trustees, successfully disguised); see also Carritt v. Real and Personal Advance Co. (1889) 42 Ch. D. 263, 271, 273.Google Scholar Similar fictitious recitals may be employed in order to keep off the title intricate questions relating to equitable interests: e.g., Pearce v. Bulled [1916] 2 Ch. 844Google Scholar (trust fraudulently but successfully concealed from mortgagee without notice); Re Balen and Shepherd's Contract [1924] 2 Ch. 365Google Scholar (unsuccessful attempt to conceal former breaches of trust, since condoned).

⁴⁷ Ante, note ⁴; Re Soden and Alexander's Contract, supra, at p. 264.Google Scholar

⁴⁸ The fact that trustees, thus disguised as joint beneficial owners, now give the impression to a purchaser that they hold on trust for sale (L. P. A., 1925, s. 36Google Scholar), should tend to facilitate the operation of this device.

⁴⁹ Ordinarily, it would now seem to be unfair thus to conceal the existence of a trust unless one is certain that the trustees, whom one intends to disguise as beneficial owners, will have an effective trust for sale as defined by the Property Acts of 1925: see ante, note ³²; post, note ⁷¹. When used in such a case the device absolves purchasers from any concern lest the sale may constitute a breach of trust.

⁵⁰ 29 Halsbury, , Laws of England (ed. Hailsham), 550Google Scholar; Emmet, , Notes on Perusing Titles, 12th ed., ii., 549.Google Scholar If created by will, there are now invariably two documents—the will and the assent. The modern system of employing two documents to effectuate a change of trustees (T. A., 1925, s. 35Google Scholar) was also in vogue before 1926: Vaizey, , Settlements (1887), i., 293.Google Scholar

⁵¹ Martin, , Conveyancing (ed. 1840), iv., 341Google Scholar, and see p. 342 n. (recommending the trust for sale); Dart, , Vendors and Purchasers, 3rd ed. (1856), 214Google Scholar; Lightwood, J. M., 3 Cambridge Law Journal, 62–63.Google Scholar But some of the books of precedents did not at first follow their own advice on this point: e.g., Davidson, , Common Forms in Conveyancing (1846), 128, 130 n.Google Scholar; Davidson, , Precedents in Conveyancing, 2nd ed. (1855), i., 293 n.Google Scholar; ibid. 3rd. ed (1860), i., 287, 290 n.

⁵² E.g., Key & Elphinstone, Conveyancing Precedents, 14th ed., ii., 566 n.Google Scholar Cf. Hood & Challis's, Property Acts, 8th ed., 96Google Scholar (‘is in most cases an obvious advantage’). Davidson's works, cited ante, note ⁵⁰, give no reason.

⁵³ Accordingly, it has never been necessary to abstract the equitable interests under a trust for sale (whether or not contained in a separate instrument), unless title is being made with the concurrence of the beneficiaries. It is enough that the abstract shows a sufficient power to sell, with adequate authority (now statutory) to give receipts: Preston, , Abstracts of Title, 1st ed. (1818), i., 134–135Google Scholar; Re Soden and Alexander's Contract [1918] 2 Ch. 258, 263.Google Scholar See now L. P. A., 1925, s. 10 (1).Google Scholar

⁵⁴ Martin, , Conveyancing (1840), iv., 342 n.Google Scholar; Davidson, , Precedents, etc., 3rd ed., iii. (1873), 57–59Google Scholar; Vaizey, , op. cit., i., 291Google Scholar; Williams, , Vendors and Purchasers, 3rd ed. (1922), i., 641Google Scholar; Encycl. of Forms and Precedents, 2nd ed. (1925), xvi., 78, 231 n.Google Scholar; 29 Halsbury, , Laws of England (ed. Hailsham), 550Google Scholar; Gibson, , Conveyancing, 15th ed. (1938), 441.Google Scholar

⁵⁵ In such a case the purchaser ordinarily covenanted to produce the document when required: Davidson, , op. cit., 58–59Google Scholar; and semble, even apart from covenant, he was compellable in Equity: Sugden, , Vendors and Purchasers, 14th ed., 445 n., at p. 447.Google Scholar Since 1925, the trustees can now retain the document: L. P. A., 1925, s. 45 (9).Google Scholar

⁵⁶ Vaizey, , Settlements, i., 294Google Scholar; also Butler's note 249, § XII, to Co. Litt. 290b—recommending this device in the eighteenth century for settlements of mortgage moneys.

⁵⁷ Receipt clauses were implied by statute during the first nine months of 1845, and from August 13, 1859, onwards: Sugden, , op. cit., 657–658.Google Scholar See, further, note ¹⁶, ante.

⁵⁸ Davidson, Precedents, etc., 3rd ed., iii., 59; Vaizey, , op. cit., 291–292, 293.Google Scholar

⁵⁹ The usual direction that interim rents and profits be applied or be treated as income of the proceeds of sale [see now L. P. A., 1925, s. 28Google Scholar (2)] was intended semble to ensure a trust for sale effecting an immediate notional conversion: ‘Davidson, , op. cit., 57–58.Google Scholar Such a direction might be implied: Vaizey, , op. cit., 294Google Scholar; but an indication that interim rents are to be regarded as realty might reduce the trust for sale to a mere power: Re Hotchkys (1886) 32 Ch. D. 408.Google Scholar In testamentary trusts for sale comprising residuary personalty such a direction would also operate to exclude the apportionment rule in Howe v. Dartmouth: see 4 Cambridge Law Journal, 357 et seq.

⁶⁰ Dart, , Vendors and Purchasers, 3rd ed., 214.Google Scholar This follows from the rule that subsequent purchasers are entitled to assume that any previous trust for sale was duly exercised. But this rule is displaced where the facts (e.g., undervalue) suggest that the sale was a breach of trust: Williams, , Vendors and Purchasers, 3rd ed., 274–275Google Scholar.

⁶¹ Dart, , op. cit., 214Google Scholar; Davidson, , Precedents, etc., 3rd ed., iii., 59 n.Google Scholar Note that their contention is not that the instrument ought necessarily to be abstracted, but that its omission from the abstract does not enable a purchaser to assume that it contains nothing material to him. Cf. notes ⁵³, ante, ^84–87, post.

⁶² Martin, , Conveyancing (1840), iv., 333 n.Google Scholar (concerning the use of this device in settlements of mortgage money, and suggesting that the difficulty be met by concealing the existence of the trust).

⁶³ Martin, , Conveyancing (1840), iv., 333n.Google Scholar (in relation to settlements of money out on mortgage).

⁶⁴ Dart, , op. cit., 214.Google Scholar

⁶⁵ Sugden, , Vendors and Purchasers, 14th ed., 418Google Scholar; but he gave no reason or authority for introducing this exception to his general rule that ‘negative evidence, if in the vendor's possession, must be produced’: ibid. As to this general rule, see also Dart, , Vendors and Purchasers, 8th ed. (1929), i., 325–326.Google Scholar

⁶⁶ Davidson, , op. cit., 59 n.Google Scholar (arguing on the ground of a purchaser's right to have all relevant enquiries answered); Vaizey, , Settlements (1887), i., 291–292.Google Scholar

⁶⁷ Gover, , Hints as to Advising on Title, 4th ed., 108Google Scholar, citing Sugden (see note 64, supra).

⁶⁸ Jackson & Gosset, Investigation of Title, 4th ed., 161.Google Scholar Also Williams, , Vendors and Purchasers, 3rd ed., i., 232Google Scholar; stating that it is imprudent not to inspect a document which may or may not affect the title, for (irrespective of the doctrine of notice) it may disclose some adverse legal interest. For the general duty of a purchaser from trustees to enquire whether the transfer is authorized by the trust, see Bank of Montreal v. Sweeny (1887) 12 App. Cas. 617.Google Scholar

⁶⁹ Re Robb's Contract [1941] Ch. 463, 471Google Scholar: ‘the purchaser, who cannot look at the trust instrument, has no means of knowing whether an ad valorem duty has been paid,’ unless (as was there held necessary) the conveyance to the trustees for sale bears an adjudication stamp.

⁷⁰ Section 10 (1) of the L. P. A., 1925, enacts that trust instruments are not to be abstracted if their contents will be overreached; but this is not the point. Nor is the point met by section 27 (1), which enacts that a purchaser from trustees for sale is not concerned with the trusts of the proceeds of sale: this is merely declaratory of the earlier law (Wolstenholme & Cherry, Conveyancing Statutes, 12th ed., i., 268).Google Scholar No doubt the reason for the conflict of opinions indicated in the text was uncertainty as to the true scope of the doctrine of constructive notice.

⁷¹ Unless there is an ‘immediate binding’ trust for sale—see L. P. A., 1925, s. 205Google Scholar (1) (xxix)—the land is likely to be settled land within the meaning of S. L. A., 1925. Thereupon section 4 (1) of the latter Act provides that the conveyance to the trustees (not being a vesting deed as therein defined) carries to them no legal estate. Apparently this difficulty does not arise, however, with trusts created by will: see S. L. A., 1925, ss. 6, 13Google Scholar (which expressly excepts dispositions, e.g., assents, made by personal representatives).

⁷² Most of these decisions concerned the question whether there was a ‘trust or direction for sale’ within the meaning of the Settled Land Act, 1882, s. 63; see note 26, ante. Seemingly, the tests employed by the Courts on this point were practically identical with the ‘immediate binding’ test imposed by the Acts of 1925.

⁷³ The nature of the trusts was a governing factor, e.g., in Re Hotchkys (1886) 32 Ch. D. 408Google Scholar, C. A. (‘upon trust at their discretion to sell’: held, a mere power), distinguished in Re Johnson [1915] 1 Ch. 435 (where the trusts were those ordinarily applicable to personalty); Re Newbould(1914) 110Google Scholar L. T. 6, C. A. (‘upon trust to sell when they think proper’: held, a mere power), where each judgment emphasized that the document as a whole, including the nature of the beneficial interests, must be considered. See also Williams, , Vendors and Purchasers, 3rd ed., i., 242Google Scholar; Emmet, , Notes on Perusing Titles, 12th ed., i., 648.Google Scholar Modern decisions as to the effect where some interest has priority to both trust for sale and trust instrument—e.g., Re Leigh's S. E. [1926] Ch. 852; Re Parker's S. E. [1928] Ch. 247—raise a different question.Google Scholar

⁷⁴ [1909] 1 Ch. 440; 78 L. J. Ch. 241; 100 L. T. 223; conveyance inter vivos to trustees upon trust, at the request of X during his life and after his death at their discretion, to sell, and to stand possessed of the proceeds of sale and the interim rents and profits upon the trusts declared by an instrument of even date. Held: a mere power of sale, because (inter alia) the trust instrument contained a provision that X could direct that any of the land should not be sold. The fact that the conveyance to the trustees was apparently drafted in a form similar to that now in use adds significance to this decision. See also Wolstenholme & Cherry, Conveyancing Statutes, 12th ed., i., 591Google Scholar, indicating that its facts, in modern times, would constitute a settlement—not a trust for sale within the Property Acts, 1925.

⁷⁵ Jessel, M. R., Smith v. Chadwick (1882) 20 Ch. D. 27, 62–63Google Scholar; Beal, , Legal Interpretation, 2nd ed., 117, 150Google Scholar; Norton, , Deeds, 2nd ed., 86–88.Google Scholar

⁷⁶ Rules of construction do not bow to questions of convenience: Bottomley's Case (1880) 16 Ch. D. 681, 686Google Scholar, per Jessel M.R. But the Court presumes that contemporaneous documenta, which themselves show an intention that one shall take effect in priority to the other, were executed in such order as will ‘give effect to the manifest intention of the parties’—whether or not they were in fact executed in that order: Gartside v. Silkstone, etc. Iron Co. (1882) 21 Ch. D. 762, 767–768Google Scholar, per Fry J. See also Preston, , Conveyancing, 3rd ed. (1825), ii., 241–242Google Scholar, to the same effect as regards lease and release executed in the wrong order.

⁷⁷ Re Robb's Contract [1941] Ch. 463Google Scholar, per Simonds J., at p. 470; ibid.per Greene M.R., at p. 473.

⁷⁸ See Re Chafer and Randall's Contract [1916] 2 Ch. 8, C. A., at pp. 18–19, 19–20.Google Scholar

⁷⁹ Patman v. Harland (1881) 17 Ch D. 353, 356Google Scholar; Parker v. Judkin [1931] 1 Ch. 475, 486.Google Scholar See also Daynes, K.C., arg., Re Robb's Contract, supra, at p. 465Google Scholar (‘the conveyance on trust for sale is the link in the chain of title’).

⁸⁰ Jones v. Smith (1843) 1 Ph. 244, 253–254Google Scholar (mortgagee knew that mortgagor had made a settlement, but was told it did not affect the land to be mortgaged). This decision was subsequently extended (avowedly as regards choses in action only) to documents which, though known to affect the property, may or may not restrict in Equity the powers of the disposing party: English, etc. Investment Co. v. Brunton [1892] 2 Q. B. 700Google Scholar; Re Valletort Laundry Co. [1903] 2 Ch. 654.Google Scholar

⁸¹ Patman v. Harland (1881) 17 Ch. D. 353, 357Google Scholar; Re. Cousins (1886) 31 Ch. D. 671, 675Google Scholar: ‘omnia praesumuntur rite esse acta’ (solicitor acting for both parties assumed to have obtained from himself a proper abstract of title and to be an honest gentleman). See also note 40, ante.

⁸² Cothay v. Sydenham (1788) 2 Bro. C. C. 391, 393Google Scholar; Jones v. Smith (1841) 1 Ha. 43, 63–64Google Scholar; ibid. (1843) 1 Ph. 244, 256–257 (where Lord Lyndhurst insisted that the doctrine of constructive notice should rest on gross negligence, not on what an exceptionally prudent purchaser would do). See also Sugden, , Vendors and Purchasers, 14th ed., 779.Google ScholarQuaere ‘whether these dicta can apply where (as with trusts for sale) the legal title includes a statement of present intention, under seal, to execute the draft deed immediately.

⁸³ See now L. P. A., 1925, s. 199 (1) (ii)Google Scholar; also note ⁴, ante.

⁸⁴ Williams, , Vendors and Purchasers, 3rd ed., i., 239.Google Scholar Compare Lord Lyndhurst's dictum mentioned above, note ⁸².

⁸⁵ See also Williams, , op. cit., i., 227Google Scholar: ‘where the legal title is correct on the face of the abstract, the purchaser is not entitled to object to it on the mere suspicion of some Equity adverse to the title’—quoted with approval in Re Chafer and Randall's Contract [1916] 2 Ch. 8, at pp. 12. 19.Google Scholar

⁸⁶ Re Ford and Hill (1879) 10 Ch. D. 365, 370Google Scholar; Re Chafer and Randall's Contract, supra, at pp. 11–12, 24.Google Scholar Note also, ibid. at p. 11, the avowed reluctance of Younger J. to ‘express any opinion which might have the eifect of disturbing titles.’ See, further, Holdsworth, , History of English Law, vii., 385–386Google Scholar; xii., 301.

⁸⁷ Aliter, of course, if the trustees' solicitor specifies in the abstract any provisions of the trust instrument which indicate that the proposed sale is a breach of trust. Before 1926, it would seem that, theoretically, he was expected to do this. Whether he should do so to-day, depends upon the true meaning (undefined) of ‘overreached’ in section 10 (1) of the L. P. A., 1925.

⁸⁸ Otherwise it would seem that the trust instrument is ‘on the title,’ and should be investigated, both (i) at common law (because it may conceivably have conferred some legal interest), and (ii) as a result of the Property Acts of 1925 (because its contents may have negatived ab initio the creation of an ‘immediate binding’ trust for sale—see ante, note ⁷¹).

⁸⁹ A more likely hint, to be found in a trust instrument, that a projected sale may possibly be a breach of trust, is that all the beneficiaries are absolutely entitled; for then, if sui juris and unanimous, they can cancel the trustees' authority to sell—ante, note 25. But purchasers, since 1911, are now protected against this possibility—ante, note 18.