cretion (apart from the authority usually given by the assignment) to sell at public or private sale, as may appear to be most for the interest of the creditors.1 The proper course is said to be, if he cannot sell the property for its fair cash value at private sale immediately, to sell at auction, giving to the creditors reasonable notice of the sale; and he cannot delay a sale for the purpose of retailing the goods. Where the deed expressly directs him to sell by public auction, the trustee is bound to conform to that mode of sale, and cannot adopt any other, although by doing so he may in reality promote the interests of those for whom he acts. And in general, a trustee for sale must follow the provisions of the trust deed.4

6

§ 411. Terms of Sale.-In some of the States, an assignee is allowed to sell the property for cash or credit, in his discretion, and the assignment itself frequently gives him this power in terms. But in New York, an assignee is not allowed to sell on credit without obtaining leave from the court, on application, with notice to the cestuis que trust, or without obtaining their consent; and an authority to sell on credit will render an assignment void. In Missouri,

1

7

Perry on Trusts, pp. 412, 415, 422; Ex parte Dunman, 2 Rose, 66; Ex parte Hurley, 1 D. & C. 631; Ex parte Ladbroke, 1 M. & A. 384; Ex parte Goding, 1 D. & C. 323; Huger v. Huger, 9 Rich. Eq. 217.

In order that a better price might be obtained for a debtor's property, certain execution creditors agreed with the sheriff that the assignee appointed after fi. fa. issued and levy made, should sell the property and account to the sheriff for the proceeds. It was held that in the absence of fraud, the execution being bona fide, the lien of the execution creditors was not made void by this agreement. Kent's Appeal, 87 Penn. St. 165.

Bebee v. De Baun, 8 Ark. 510. And as to the mode of sale, see Brock v. Headen, 13 Ala. 370.

'Neally v. Ambrose, 21 Pick. 185; Petrikin v. Davis, 1 Morris, 296; Conkling v. Conrad, 6 Ohio St. 611, 620, 621; Hopkins v. Ray, 1 Metc. 79; and as to what provisions are construed as conferring a power to sell on credit, see ante, § 224.

See ante, pp. 319 et seq.

'Barculo, J., in Burdick v. Post, 12 Barb. 184. As to obtaining the consent of creditors, see Mussey v. Noyes, cited post, p. 622, note 5.

Barney v. Griffin, 2 N. Y. 365; Nicholson v. Leavitt, 6 Id. 510.

sales by assignees are made under the supervision of the Circuit Court or a judge in vacation, who is required to direct the sale to be for cash or on credit, as shall appear to be for the interest of all concerned, and to direct the nature of the security to be taken at the sales. A similar provision is made in Kansas.2

In Indiana, the assignee is authorized to sell the real and personal property at public auction, after thirty days' notice of the time and place of sale, to the highest bidder for cash or upon credit, the trustee taking notes, with security to be approved by him, payable not more than nine months from date with interest. 3

In Connecticut, the trustee may be authorized by the court to sell on credit on the payment of at least one-quarter of the price in cash and the remainder secured in such manner as the court may approve.

In Ohio, the assignee is authorized to sell the real and personal property assigned, either for cash, or upon such terms as the court may order, at public auction, on notice of four weeks, but sales of real estate are not to be made at less than two-thirds of the appraised value. The property may be sold at private sale upon the order of the court, and the personal property may be sold for less than two-thirds of the appraisement, upon good cause shown to the court. If a sale of real estate is confirmed, deeds are to be made, conveying the title free from all liens for all debts due by the assignor. The real estate may be sold free of the wife's contingent right of dower, by making her a party to an application to the court for the purpose."

Where sales on credit are allowed, if the assignee sell at private sale except for cash, he may expose himself to lia

Rev. Stat. (ed. 1870), vol. I, p. 114, § 10. But the neglect of the assignee to

require security will not avoid the sale. Yargan v. Shriner, 26 Ind. 369.

'Laws of 1880, p. 189; see Conkling v. Conrad, 6 Ohio St. 611; Dwyer v. Garlough, 31 Id. 158; Aultman v. Seiberling, 31 Id. 201.

bility in the event of the failure of the purchaser. Thus, in Pennsylvania, where assignees sold some of the goods at private sale and delivered them to the purchaser, who failed to pay, it was held that they were chargeable with the amount, it appearing that the credit of the vendee was doubtful, and that the assignors had refused to trust him before the assignment.' And if an assignee sells the assigned property on a credit without taking security, he sells at his own risk, and is chargeable with any loss that may thereby accrue, although the sale is advised by some of the creditors and the debtor.2

Where the liens on the property, due and payable pres ently, are sufficient in amount to exhaust the purchase-money, the sale should be for cash unless all parties interested unite in requesting a time sale. If a time sale carries interest, the interest should be divided pro rata among the creditors, as the instalments of the principal fall due.3

In Vermont, if an assignee sells on credit, he will be charged with the cash value of the property at the time of the sale, and interest on the same from the time of the sale.* But he may sell on credit, under the advice and with the consent of the creditors.5 In case of a deed of trust, it has been held that the maker and beneficiaries may change the terms of the sale.

412. Notice of Sale.-Where the sale is by auction, it should be preceded by a public notice of the time and place," the usual mode of which is by advertisement. The length

4

Page v. Olcott, 28 Vt. 465; Bennett, J., Id. 468.

'Mussey v. Noyes, 26 Vt. 462, 464. The reason given in this case was, that it was customary to make such sales on credit in the country, and that thereby the property could be disposed of at higher prices. Id. ibid. But it appeared that the assignee had not lost or failed to collect the avails of any sale thus made on credit. ld. ibid.

7

6 Bebee v. De Baun, 8 Ark. 510.

' Hart v. Crane, 7 Paige, 37, 38; Johnston v. Eason, 3 Ired. Eq. 330.

8

of the notice is sometimes fixed by the assignment itself.1 In some instances it is regulated, as well as the mode of the notice, by statute. In New Jersey, the assignee is required to advertise and sell in the same manner as is prescribed in the case of an executor or administrator directed to sell lands by an order of the orphan's court for the payment of the debts of a testator or intestate." If no time is fixed, a reasonable notice should be given. In Minuse v. Cox, it was held that where a trustee is directed to sell the trust property, "by public auction or otherwise, and together or by parcels, at his discretion, upon giving three weeks' notice thereof," the direction as to notice applies to a sale at auction, and not to a private sale; and that, even if the notice was to be held to apply to both a public and a private sale, a sale without notice would be valid, and confer a good title on the purchaser; and the only consequence would be that the trustee might be responsible for any deficiency in the price for which it sold below the real value of the land."

5

In deeds of trust, it is sometimes left to the trustee or one of the creditors to prescribe the day of sale and the length of time for which notice shall be advertised. But in such

1 Minuse v. Cox, 5 Johns. Ch. 441. Where a deed of trust requires twenty days' previous notice of the time and place of sale, it is not sufficient to have it published but once. The obvious intent is to have the publication continued up to the sale. Stine v. Wilkson, 10 Mo. 75. Where a notice was published once in a newspaper called the "Evening Gazette," and then transferred to a newspaper called the "Atlas," it was held insufficient, although the Atlas was the weekly reprint of the Evening Gazette, a daily paper, it appearing that the Atlas was published for and circulated in the country, while the Gazette was almost entirely confined in its circulation to the city. Id. ibid.

Rev. Stat. (ed. 1878), p. 39, § 12.

'Walworth, C., in Hart v. Crane, ubi supra.. And a sale by an assignee without public notice, and without disclosing the nature of the debtor's interest, and for an inadequate price, is evidence of fraud, and the assignee will be personally liable to the creditors for the loss resulting from such fraud. Hays v. Doane, 11 N. J. Eq. 84.

45 Johns. Ch. 441.

"To give three weeks' notice of a private sale would be absurd." Kent, C., Id. 447.

• This doctrine is disapproved by Chancellor Tucker, who states the rule to be, that where a trustee is authorized to sell upon notice, if he sells without, and executes a deed, the legal title passes. 6 Munf. 358, 367. But the sale may be set aside in equity. 4 Munf. 421; 4 Cranch, 403; 2 Tuck. Com. [458] 446.

case, the failure to notify any of the creditors of the time and place will not warrant the inference that the sale was fraudulent as to one of the creditors provided for, who attended and purchased property; and the grantor who assents to the sale cannot upon that ground defeat an action by the purchaser for the recovery of the articles sold.1

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§ 413. Disability of Assignee to Purchase.--The general rule, as now settled in England, is that a trustee for sale is disabled from purchasing the trust property, whether it be real estate or chattels personal, whether the purchase be made in his own name or in the name of a trustee," by private contract or public auction, from himself as the single trustee, or with the sanction of his co-trustees; for he who undertakes to act for another in any matter cannot, in the same matter, act for himself. The situation of the trustee gives him an opportunity of knowing the value of the property, and as he acquires that knowledge at the expense of

1

Haynes v. Critchfield, 7 Ala. 189; and see Lamb v. Goodwin, 10 Ired. L.

320. 2 What follows in the text, to page 626, is chiefly taken from the valuable treatise of Mr. Lewin on Trusts and Trustees, republished in the Philadelphia Law Library, 1839. See Perry on Trusts, §§ 195, 199.

Fox v. Mackreth, 2 Bro. C. C. 400; s. c. 2 Cox, 320; affi'd in Dom. Proc. 4 Cro. P. C. 258; Lewin on Trusts, 376. The English cases are very elaborately reviewed in the case of Aberdeen R. R. Co. v. Blaklie Brothers, 1 Macy, 461, in the House of Lords.

Crowe v. Ballard, 2 Cox, 253; s. c. 3 Bro. C. C. 117; Killick v. Flexney, 4 Bro. C. C. 161; Hall v. Hallet, 1 Cox, 134; Whatton v. Toone, 5 Mad. 54; 6 Id. 153. A purchase by a trustee, under a trust for payment of creditors, of a debt owing by the insolvent, will be void by reason of the knowledge which his position as trustee enables the purchaser to acquire. Hamilton v. Wright, 1 Bell's (Scotch) Appeal Cas. 574.

5

Campbell v. Walker, 5 Ves. Jr. 678; s. c. 13 Id. 601; Randall v. Errington, 10 Id. 423; Crowe v. Ballard, 2 Cox, 253; Hall v. Hallet, 1 Cox, 134.

6

Campbell v. Walker, ubi supra; Randall v. Errington, ubi supra; Ex parte Bennett, 10 Ves. Jr. 381, 393; Ex parte James, 8 Id. 337, 349; Whelpdale v. Cookson, 1 Ves. Sr. 9; Ex parte Hughes, 6 Ves. Jr. 617; Ex parte Lacy, Id. 625; Lister v. Lister, Id. 631; Whichcote v. Lawrence, 3 Id. 740; Attorney General v. Lord Dudley, Coop. 146; Downes v. Grazebrook, 3 Mer. 200.

* Whichcote v. Lawrence, 3 Ves. Jr. 740; Hall v. Noyes, cited Id. 748; and see Morse v. Royal, 12 Id. 374.

Lord Rosslyn, in Whichcote v. Lawrence, 3 Ves. Jr. 750; Lord Eldon in Ex parte Lacy, 6 Id. 623.