fc., vs. Benning, 4 Cranch C. C. R. 81; Rowan vs. Lamb, 1 G Greene 468. And where the legal title passes, Courts of law cannot take notice of departures of a trustee from the strict terms of his trust. Questions as to whether the power was discreetly or regularly exercised belong to a Court of Chancery: Rowan vs. Lamb, supra; Singleton vs. Scott, 11 Iowa 589; Newman vs. Jackson, 12 Wheat. 570; Waldron vs. Chasteny, 2 Blatchf. 62; Bayard vs. Colefax, 4 Wash. C. C. R. 38; Taylor vs. King, and cases, supra. But if, as we have seen, proper notice is not given, or the sale takes place on the wrong day, no title passes.

In ejectment by the alienee of the trustee, the plaintiff is not bound, as against the debtor or his assignee or vendee, to introduce evidence to establish the debt secured by the deed of trust or its bond fide character. The conveyance is presumed to be bona fide, and its recitals true, unless directly attacked for fraud:2 Huntley vs. Buckner, 6 Sm. & Mar. 70; Brown vs. Bartee, 10 Id. 268.

The law will not compel the trustee to covenant, except against his own incumbrances. Yet if, at the sale, he declares that he can make a good title, he must do so before he can exact the purchase-money: Ennis vs. Leach, 1 Ired. (Eq.) 416. If, however, the trustee enters into covenants, they will bind him personally: Hill on Trust. 281, note.

SEC. 32. Setting aside sales-General principles applicable to.-Being a harsh mode of disposing of the equity of redemption (supra sec. 3), sales "should be watched by the courts with a jealous eye, and should not be sustained unless conducted in all fairness and integrity:" Per CATON, J., 15 Ill. 507 "Upon the slightest proof of fraud or unfair conduct, or of departure from the power, they will be instantly set aside," and the party allowed to redeem: Longwith vs. Butler, 3 Gillman 32, 44. So if proper "notice is not given, or the proceedings be in any way contrary

1 In McCain vs. Wood,. 4 Ala. 258, and several subsequent cases in the same state, a different but untenable conclusion was reached.

2 Where the trustee executes the trust by making a sale and deed, his power ceases, and he cannot afterwards bind the parties by a new deed or any recitals or admissions: Doe vs. Robinson, 24 Miss. 688.

to equity and justice:" Per TANEY, C. J., Bronson vs. Kinsie, 1 How. 321; 11 Barb. 191; 10 Iowa 408.

If proper persons do not execute the trust (supra sec. 14), or the trustees do not act in person (sec. 19) or in good faith, and with the requisite diligence (sec. 20), or if the power has been extinguished (sec. 23), or if proper notices have not been given (sec. 25 et seq.), sales made will be set aside on timely application to Chancery: Rowan vs. Lamb, 4 G. Greene 468; supra sec. 31.

It may be useful briefly to illustrate the above general principles. Thus if the creditor deceives the debtor by a promise to extend, and on the faith thereof the debtor goes temporarily away, a sale made in his absence will be set aside: Schoonhoven vs. Pratt, 25 Ill. 457. But the expression of an erroneous opinion by third persons at the trustee's sale that there is a right of redemption, is no ground for setting the sale aside: Bloom vs. Rensselaer, 15 Ill. 503. But a sale will be set aside if the creditor pursues a course calculated to prevent competition: 3 Gill 32, supra. So if sale is made in violation of a valid agreement to extend: 25 Ill. 457. But an innocent purchaser will not be affected by an unrecorded agreement to extend, and mere possession by debtor is no notice of such an agreement: Beattie vs. Butler, 21 Mo. 313.

Sales will be set aside if the trustee is guilty of fraud or collusion Johnson vs. Eason, 3 Ired. Eq. 330; Jenks vs. Alexander, 11 Paige 619. Or if he makes a sale after tender of full amount due: 5 Johns. Ch. 35. Or if nothing is due: Wade vs. Harper, 3 Yerg. 383; Cameron vs. Irwin, 5 Hill 272. So a sale by a trustee, where the amount is altogether uncertain and disputed, ought not to be made, and is liable to be set aside: Gibson vs. Jones, 5 Leigh 370; 10 Id. 547; 2 Rob. (Va.) 1; Lane vs. Trdball, 1 Gilmer (Va.) 130; Infra sec. 39.

SEC. 33. Setting aside sales--Inadequacy of price.-Though the land was duly advertised, and the sale properly made, yet it was set aside for gross inadequacy alone, and a resale ordered, the land being worth $500, and having sold for $50: Wright vs. Wilson, 2 Yerg. 294. Other courts hold that gross inadequacy

alone is not sufficient, applying to trustees' sales the rule as to judicial sales: Singleton vs. Scott, 11 Iowa 589. If the inadequacy is great, the bidders few, and the trustee has not used diligence and discretion by an adjournment in proper cases (supra sec. 29), it seems, on principle, that sales under such circumstances should be set aside if applied for seasonably. But if the inadequacy was occasioned by the acts of the party seeking to set aside the sales, as where he improperly forbid others to purchase at the sale, it will not set aside: Jones vs. Neale, 2 Patt. & Heath 339; Forde vs. Herron, 4 Munf. 316.

SEC. 34. Setting aside sale-Selling property en masse.—Here the directions of the power must be complied with. If the trustee has a discretion he must not abuse it: Supra sec. 20. If by the terms of the trust a right to sell in parcels is excluded, it should not be sold in parcels: Quarles vs. Lacy, 4 Munf. 25. If the debtor has not provided for a sale in parcels, a sale of the entire tract will not be set aside unless the trustee had a discretion to sell less and abused it: Singleton vs. Scott, 11 Iowa 589; 1 Hill on Trust 143. Where the power is "to sell together or in lots," the debtor can object to a sale en masse, unless fraud was worked or great loss occasioned: Turner vs. Johnson, 10 Ohio 204; s. c. 7 Id. 216, part 2; Lamerson vs. Marvin, 8 Barb. 9; Although advertised as an entirety, the trustee may, in the exercise of a wise discretion, sell in parcels: Gray vs. Howard, 14 Mo. 341. If there is a discretion to sell in parcels, a failure to exercise it wisely would not, according to WRIGHT, C. J. (arguendo), 11 Iowa 597, "vitiate the title of the party purchasing, who was ignorant of what would be most for the interest of the beneficiary. The trustee might be liable for an abuse of the trust, but the sale would not be invalid."

SEC. 35. Setting aside sale because of purchase by mortgagee or trustee. Where the power to sell is conferred upon a third person the cestui que trust may purchase as freely as any other person: Lyon vs. Jones, 6 Humph. 533, substantially overruling Wade vs. Harper, 3 Yerg. 383; Walker vs. Brungard, 13 Sm. & Mar. 723. But as the mortgagee cannot convey to himself he cannot, without

an enabling statute, purchase at a sale made by himself: Arnot vs. McClure, 4 Denio 41; Jackson vs. Colden, 4 Cowen 266; 1 Paige 48; 16 Barb. 347; Huff vs. Earle, 3 Port. (Ind.) 306; 7 Id. 699; Lead. Cas. in Eq. 150; Nichols vs. Baxter, 5 Rh. Island 491; 4 Met. 325; 3 Id. 311; Hyndman vs. Same, 19 Verm. 9; 9 Verm. 164; nor can he procure another to purchase for him: Pettibone vs. Perkins, 6 Wis. 616; contra, The Howards vs. Davis, 6 Texas 174. The trustee cannot buy at his own sale directly or indirectly, or from the grantor: 3 Humph. 442; Bailey vs. Robinson, 1 Gratt. 4; Robbins vs. Butler, 24 Ill. 387; 2 Dev. (Eq.) 292; 3 Jones (Eq.) 17; 3 Ired. (Eq.) 330; Saltmarsh vs. Beene, 4 Port. (Ala.) 283; 1 Stockt. 218; 11 Foster 70; 3 Harr. 74; 1 Halst. Ch. 319. A sale to his partner, though for a fair price (3 Yerg. 201), or to his co-trustee (1 Har. & Gill.), will be set aside. If he buys in a prior incumbrance on the trust estate it will enure to the benefit of the cestui que trust, the trustee being reimbursed: Critchfield vs. Haynes, 14 Ala. 49; 16 Id. 616; Gunter vs. Jones, 9 Cal. 643. Where the mortgagee or trustee buys at his own sale, the right of redemption still attaches: Hyndman vs. Same, 19 Verm. 1; Benham vs. Rowe, 2 Cal. 387.

But the trustee's purchase at his own sale is not void, and the beneficiary may repudiate it or hold him to it: Pitt vs. Petnay, 12 Ired. (Law) 69; 7 Id. (Eq.) 150; 9 Rich. (Eq.) 223. Third persons cannot make the objection or complain: Edmondson vs. Welsh, 27 Ala. 578. Such purchase being voidable simply, the grantee of the trustee for value and without notice will obtain a good title: Robbins vs. Bates, 4 Cush. 104. Even the trustee's title may be ratified by knowledge and acquiescence beyond a reasonable time: Scott vs. Freeland, 7 Sm. & Mar. 409. It is no ground for setting aside the sale (there being no fraud or collusion) that the trustee knew that the purchaser was bidding for the beneficiary (Lucas vs. Oliver, 34 Ala. 626), or that the creditor requested the auctioneer to bid for him a certain sum. But it would be otherwise if the auctioneer was employed to buy for the creditor as low as possible: Richards vs. Holmes, 18 How. 143.

SEC. 36. Bill to set aside sale-Onus of proof.-On a bill by

trustor or his heirs against trustees and purchasers to set aside the sale for want of due notice, the onus of proving that proper advertisement was made is on the parties who insist upon or claim under the sale: Gibson vs. Jones, 5 Leigh 370; Norman vs. Hills, 2 Patt. & Heath 676; supra, sec. 31. And, aside from special statute, this must be shown by common law evidence: Arnot vs. McClure, 4 Denio 41; 5 Paige 104.

SEC. 37. When sales will not be set aside- Waiver-Estoppel.— There are cases where, though the power has not been strictly followed or has been exceeded, the sale will not be set aside, as where the sale has been acquiesced in, the property having brought full value, the purchaser having made improvements and the parties seeking relief having been negligent. Such cases stand on special grounds. As examples, see 3 Leigh 654; Taliaferro vs. Minor, 1 Call 524; Caldwell vs. Chapline, 11 Leigh 342; 5 Id. 391; Pierce Twiggs, 10 Leigh 406, where infants ineffectually sought relief from an irregular sale.

VS.

So waiver and estoppel apply to such sales. As limitations on the power are for the benefit of the debtor the latter may waive them, and he is estopped from objecting that a duty has not been done which he himself prevented: Beebe vs. De Baum, 3 Eng. 510; Greenleaf vs. Queen, 1 Pet. 138; Echols vs. Dinick, 2 Stew. 144; Foster vs. Goree, 5 Ala. 428; 11 Ala. 514; Gift vs. Anderson, 5 Humph. 577; 14 Verm. 268; Hall vs. Harris, 11 Texas 300; 4 Ired. (Eq.) 288. So irregularities in the mode of sale will be waived by the debtor if he is present and does not object: Lamb vs. Goodwin, 10 Ired. (Eq.) 320; Chowning vs. Cox, 1 Rand. 306; 3 Leigh 654.

In Greenleaf vs. Queen, above cited, the purchaser objected that the trustee had not complied with the requirements of the power, but the Court replied that as the grantor and beneficiaries waived all objection no one else could complain. So a stranger or one who shows no interest in the property cannot object to irregularities of the trustee in the execution of the power: Hannah vs. Carrington, 18 Ark. 85; Foster vs. Goree, 5 Ala. 428; Bayard vs. Colefax, 4 Wash. C. C. R. 38; 16 Ala. 581; supra, sec. 28.