that the agreement entered into by the plaintiff with Day and Sharpe for purchase of the premises should be carried into execution, and on the plaintiff's paying to Sharpe and Day, the residue of the purchase-money, they should execute an assignment to the plaintiff, and that Sharpe and Day should pay the plaintiff's costs, so far as the bills were not dismissed.

The second is the case of Corder v. Morgan (ƒ), in which the circumstances were almost precisely the same as in Clay v. Sharpe, at least so far as respected the language of the power of sale, and the bankruptcy of the mortgagor; but there was this difference between the cases, that in Clay v. Sharpe the purchaser was the plaintiff, and in Corder v. Morgan, he was the defendant, and the mortgagee the plaintiff. The defendant in the latter case submitted that the plaintiff was bound to procure the concurrence of the mortgagor and his assignees in the conveyance (g). The Master of the Rolls said, his opinion was, that the clause in the mortgage deed empowering the plaintiff to sell, whereby the mortgagor undertook to join in the conveyance, was

(f) Corder v. Morgan, 18 Ves. Jun. 344.

(g) The defendant in this case seems to have relied on one of the arguments used in Croft v. Powell, (supra,) viz. " that it was inconceivable, if Powell had expected an absolute estate, that he would not have insisted on Rouse joining in the conveyance,”and on an opinion expressed by Lord Kenyon, in the King v. The Inhabitants of Edington, 1 East, 288, that a Court of Equity would controul the exercise of a power of sale given to the mortgagee.

a mere contract between the mortgagor and mortgagee, to the benefit of which, the defendant as a purchaser was not entitled; and there was nothing in the nature of the contract between the plaintiff and his mortgagor which prevented the latter giving, and the former exercising such a power of sale as that upon which the present question arose. He therefore decreed specific performance, but he did did not think it a case for costs, as the case of Clay v. Sharpe was not in print.

These decisions have established the validity of these powers for sale; they also shew that the concurrence of the mortgagor cannot be required by a purchaser, although there be an express covenant on his part to join in the sale, and that a bill filed by a purchaser to compel the mortgagor to concur in the conveyance will be dismissed with costs; it may be also concluded from the case of Corder v. Morgan, that if a purchaser shall hereafter refuse to complete his sale by reason of the mortgagor not concurring in it, and a bill is filed against him by the mortgagee for specific performance, it will be decreed against him with costs.

If the power of sale be vested in a trustee, the Court will, it seems, grant an injunction against proceeding to a sale, if reasonable notice of the intended sale is not given to the mortgagor, the trustee being bound to attend to the interests of both parties (h). And if the trust for sale be confined to the

(h) Anon. 6 Madd. 10.

trustee and his heir, a sale by his assign will not be authorized (¿).

If the surplus produce of the sale be directed to be paid to the executors or administrators of the mortgagor, and the sale is made in his lifetime, it will be personal estate; but if not made until after his death, it will be real estate, and belong to the heir (k).

(i) Bradford v. Belfield, 2 Sim. 264.
(k) Wright v. Rose, 2 Sim. & Stu. 323.

3 Yo Holl 146

CHAPTER VI.

OF MORTGAGES UNDER TRUST TERMS, TO RAISE
PORTIONS AND MAINTENANCE.

IN all well drawn modern settlements and wills, where portions are intended to be provided, care is taken to express the time when the portions shall vest, the time when they shall be payable, and (if they are charged on real estate) the rate of interest they shall carry from the time they become payable until they are raised, with provisoes that the trustees may after the deaths of the tenants for life, or in their lifetime if they shall direct, raise any part of the portions for the advancement of the children, and shall after the deaths of the tenants for life, and until the portions are payable, raise certain sums for maintenance, not exceeding the amount of interest on the principal of the portion, and that the trustees shall not mortgage or sell until some one of the portions becomes payable. By these precautionary provisions, the questions which formerly so much perplexed the Courts in respect to the raising and payment of portions and maintenance rarely occur. But as the points may still arise under settlements and wills unskilfully penned, it will be proper to give the decided cases on this matter our consideration.

The doctrine to which we are about to advert was established on the principle of convenience, which is

not always the safest ground on which to rest judicial decisions; and it is singular that in the instance now under our consideration, the doctrine which was originally grounded on convenience, contrary, in some instances to the literal interpretation of the trust, was ultimately found in its application so extremely inconvenient and even ruinous to the estate, that later judges, although feeling themselves bound by the earlier decisions, have nevertheless taken advantage of apparently very trifling circumstances to free themselves from the difficulty.

The doctrine in question seems to be laid down with sufficient accuracy by Lord Chancellor Cowper, in Corbet v. Maidwell (a), that is, "first, that though a term is limited in remainder to commence after the death of the father, yet if the trust is to raise a portion payable at eighteen or day of marriage, without doubt the daughter shall not wait the death of her father, but at the age of eighteen or marriage may compel a sale of the term; secondly, so it is if the trust of a term for raising daughters' portions be limited to take effect, in case the father dies without issue male by his wife, and the wife die without issue male leaving a daughter; in such case the term is saleable in the life of the father."

The first of these propositions is supported by the case of Heyter v. Jones (b), which was decreed by the Lords Commissioners, the 14th November, 10

(a) Corbet v. Maidwell, 1 Salk. 159.

(b) Heyter v. Jones, 3 Rep. in Cha. 106.