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persons whatsoever; to hold the same unto the said J. Harmer and J. Swift, their heirs, executors, administrators and assigns, according to the nature of the several estates respectively, upon the same trusts as the testator held the same respectively. He also appointed them his executors. He died in 1854, and his executors, J. Harmer and J. Swift, in March, 1855, conveyed the messuage and premises in question to Samuel Swift, the plaintiff's vendor, in fee. The purchase money paid by Swift was only 737. 4s.; but he, in the same month of March, 1855, raised a sum of 50%. on a mortgage of the premises, and a further sum of 50l. in February, 1857.

The following are extracts from the correspondence which took place between Mr. Patten, the plaintiff's solicitor, and Messrs. Cripps and Clarkson, the vendor's solicitors, with reference to the exceptions taken by the former to the title.

"Dear Sirs,

"4th April, 1860.

"Swift and Stevens.

"From a perusal of the abstract and inspection of the deeds comprised in it, it is impossible not to form an opinion that Mr. Samuel Swift, the vendor, gave a very inadequate price for the property he has contracted to sell to Mr. Stevens. The sale to him is so recent, and the property is shewn to have been, both before and after the sale, of so much greater value than the price given for it, that the purchaser is necessarily put upon inquiry. I beg therefore to know whether you can give any explanation of the circumstances under which the sale to Mr. Swift was made. Irrespective of this objection, it does not appear that the devisees of Henry Swift were duly appointed trustees of the will of Samuel Swift; and even if they were, his devisees and executors had no

authority to execute the trust for sale, not having the

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legal estate.

"Messrs. Cripps and Clarkson."

"James Patten."

AUSTEN.

"7th April, 1860.

"Dear Sir,

"Swift to Stevens.

"Your first objection appears to us unnecessary to answer, The trustees, Messrs. Harmer and Swift, no doubt obtained the best price they could for the property. Our client had been in possession for many years. Messrs. Harmer and Swift will no doubt be happy to answer any inquiries you may address to them. As to the other objection, we can only rely upon Mr. Francis Turner's opinion, which is set out in the abstract. This opinion appears clear and positive.

Notwithstanding your letter, received this morning, treats my first objection so lightly, there can be no doubt that it is a valid one unless Messrs. Harmer and Swift can satisfactorily explain why, so recently as five years since, they sold the property in question for so small a sum as 731. 4s., when it was manifestly worth much more. Without such satisfactory explanation, their having done so must be looked upon as such a palpable breach of duty as affects your client's title. My client has nothing to do with Messrs. Harmer and Swift, and will look to your client alone for the required explanation. As to the other objection, although I have a great respect for Mr. Turner's opinion, yet, as I consider the case submitted to him omitted to call his

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attention to what ought to have been stated in it, I cannot consider his opinion satisfactory, much less conclusive.

"Messrs. Cripps & Clarkson."

"James Patten."

There was some further correspondence; in which Messrs. Cripps and Clarkson stated, as explaining the inadequacy of the price paid by Samuel Swift for the property, that he was really the person beneficially entitled to it. They, however, offered no proof that such was the fact. Ultimately the plaintiff, through his solicitor, refused to complete the purchase, and, after demanding back his deposit, brought this action.

The plaintiff obtained a verdict, leave being reserved to the defendant to move to enter it for him.

Hawkins, in last Michaelmas Term, obtained a rule calling on the plaintiff to shew cause why the verdict should not be entered for the defendant, on the ground that there were no such defects in the vendor's title as entitled the plaintiff to rescind the contract and recover back the deposit.

Tompson Chitty now shewed cause. The plaintiff was entitled to rescind the contract, the vendor's title being defective in two respects. First; the original devise having been to two named trustees, their heirs, executors and administrators, upon trust that they, or the survivor of them, or the heirs, executors, or adminis trators of such survivor, should sell the property, the survivor of these trustees was unable, by reason of the omission of the word "assigns" in the words creating the trust, to give his devisees the power of sale which he might have exercised himself. Henry Swift's devisees and executors,

therefore, could not make a good title to Samuel Swift,
their vendee and the plaintiff's vendor. In Cooke v.
Crawford (a), where an original devise to trustees was
in similar terms, omitting the word "assigns," Shadwell
V. C., following his previous decision in Bradford v.
Belfield (b), held that the persons to whom the surviving
trustee devised could not execute the trust for sale. In
the course of his judgment he says (c), "My opinion is
that it is not beneficial to the testator's estate that he"
(the surviving trustee) "should be allowed to dispose of
it to whomsoever he may think proper; nor is it lawful
for him to make any disposition of it. He ought to
permit it to descend; for, in so doing, he acts in accord-
ance with the devise made to him." In Ashton v.
Wood (d), the first devise was to trustees and the sur-
vivor of them, and the heirs and assigns of such sur-
vivor; yet Stuart V. C. held that there was sufficient
doubt upon the point whether the trust to sell passed by
the devise of the survivor, to prevent the Court from
forcing the title on a purchaser. In Sugden on Powers,
ch. 4. s. 1. p. 133. (ed. 8.), it is laid down that "A
mere power cannot be transferred by the donee by act
inter vivos or by will. Where trustees take the legal
estate simply upon trust, e. g. to sell, the case admits of
a different view; although the testator speaks of his
trustees, yet, as the legal estate survives, and the trusts
bind it, the survivor can execute the trust. But where
the trust is limited to the trustee and his heirs, he, of
course, cannot constitute another a trustee by convey-
ance."
"Where the trust is reposed in assigns, it has
been held and appears now to be settled that the devisees

(a) 13 Sim. 91.

(c) 13 Sim. 97, 98.

(b) 2 Sim. 264.

(d) 3 Sm. & G. 436.

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of the surviving trustee are capable of executing the trusts. Where the trust was not extended to assigns, the title under a devisee of the trustee has in several instances been decided not to be a marketable one." [Hill J. Wilson v. Bennett (a) is much in point. There, copyhold hereditaments were devised to three trustees, and their heirs, executors and administrators, in trust for two tenants for life successively, with a power to the trustees, and the survivors and survivor of them, his heirs, executors, or administrators, to sell the same. The survivor of the three trustees devised all estates vested in him as trustee to two trustees, whom he also appointed his executors, of whom one was his customary heir; the two contracted to sell, and the purchaser declined to complete. Parker V. C. held that the title was too doubtful for the Court to compel the purchaser to take it. Blackburn J. A Court of equity will not compel a purchaser to take a doubtful title; but must not we, in a Court of law, determine whether the title is legally good or bad? Hill J. In Boyman v. Gutch (b), which was an action to recover the deposit on a purchase, Tindal C. J., in delivering the judgment of the Court of Common Pleas, held that the only question for the Court to consider was, whether the defendant had or had not a legal title to convey to a purchaser. But in Jeakes v. White (c), which was followed in Simmons v. Heseltine (d), it was said by the majority of the Court of Exchequer that, where a question arises at law as to the meaning of a good title, such a title must be understood as a Court of equity would adopt as a sufficient ground for compelling specific performance by a pur

(a) 5 De G. & Sm. 475.
(c) 6 Exch. 873.

(b) 7 Bing. 379.
(d) 5 C. B. N. S. 554.