Oppressive sale by mortgagee not necessarily invalid.

(h)See note (A), previous page.

(i) Dicker v. Angerstein, (1876) 3 Ch. D. 600; 45 L. J. Ch. 754. See Selwyn v. Garfit, (1888) 38 Ch. D. 673; Barker v. lllingworth, 1908. 2 Ch. 20.

(k) A tender may be made under protest: Greenwood v. Sittcliffe, 1802, 1 Ch. 1; 61 L. J. Ch. 59; but not by cheque to the mortgagee's solicitor, who has no authority to receive payment in this form: Blum berg v. Life Interests, etc. Corp., 1897, 1 Ch. 171; 66 L. J. Ch. 127; 1898. 1 Ch. 27; 67 L. J. Ch. 118.

(l) See Matthie v. Edwards, (1846) 2 Coll. 465; on app., 11 Jur. 761; Grugeon v. Gerrard, (1840) 4 Y. & C. 119. Money paid for expenses by mortgagor to mortgagee's solicitor, under a threat of an exercise of a power of sale, but not really due, may, it seems, be recovered at law: Close v. Phipps, (1844) 7 Man. & G. 586.

(m) Lockhart v. Hardy, (1846) 9 Beav. 349; 15 L. J. Ch. 347; Cockelt v. Bacon, (1852) 16 Beav. 158; Dymond v. Croft, (1876) 3 Ch. D. 512: 45 L. J. Ch. 604; Coote, 9th ed. p. 895.

(n) Dymond v. Croft, sup.; Farrer v. Lacey Hartland, (1885) 31 Ch. D. 42; 55 L. J. Ch. 149. The order prevents another action being-brought for the interest on a specially endorsed writ: Poulett v. Hill, 1893, 1 Ch. 277; 62 L. J. Ch. 466. Where a puisne mortgagee, against whom judgment for foreclosure has been obtained, makes a proper offer to disclaim, the plaintiff is entitled to no further costs against him: Greene v. Foster, (1862) 22 Ch. D. 566; 52 L. J. Ch. 470; Cootes 9th ed. pp. 1212, 1213.

(o) Palmer v. Hendrie, (1860) 28 Beav. 341; Budge v. Rrichens, (1873) L. R. 8 C. P. 358; 42 L. J. C. P. 127.

Where an estate in mortgage is contracted to be .sold by persons claiming the equity of redemption, and difficulties arise upon the title subsequent to the mortgage, it often happens that the mortgagee is requested to exercise his power of sale for the purpose of getting rid of the difficulty; and doubts have been expressed whether the mortgagee can safely comply with the request (x). Assuming that the power is exercisable according to its terms, it is clear that no valid objection can be made to such an arrangement, motive being immaterial in the exercise of a legal right. A person taking merely that which belongs to him, by means of the security which he has contracted for, does not act improperly in so doing, merely because one principal reason for his calling in the money is a wish to benefit another person.

Sale by mortgagee at request, for purpose of clearing a title.

(p) Paynter v. Carew, (1854) Kay, Ap. xxxvi.; 23 L. J. Ch. 596; Coote, 9th ed. pp. 735, 743.

(q) Kershaw v. Kalow, (1855) 1 Jur. N. S. 974; Coote, 9th ed. pp. 524-525.

(r) Jenkins v. Jones, (1860) 2 Gif. 99; 29 L. J. Ch. 493; and cf. Prichard v. Wilson, (1864) 10 Jur. N. S. 330; 3 N. R. 350.

(x) Hill v. Kirkwood, (1880) 28 W. R. 358.

(t) Hickson v. Darlow, (1883) 23 Ch. D. 690; 52 L. J. Ch. 453.

(u) Macleod v. Jones, (1883) 24 Ch. D. 289; 53 L. J. Ch. 145; Coote, 9th cd. pp. 525 - 526.

(x) The mortgagor cannot purchase from the mortgagee so as to defeat the second mortgagee: Otter v. Lord Vaux, (1856) 6 D. M & G. 638; 26 L. J. Ch. 129; see Far. Pow. 3rd ed. p. 634.

By s. 23 (1) of the T. Act, 1925, trustees may, instead of acting personally, employ and pay an agent, whether a solicitor or other person, to do any act required to be done in the trust, including the receipt and payment of money, and are not to be responsible for the default of any such agent if employed in good faith. And bysub-s. (3), without prejudice to such general power of appointing agents, a trustee may appoint a solicitor to be his agent to receive and give a discharge for any money or valuable consideration or property receivable by the trustee under the trust, by permitting the solicitor to have the custody of, and to produce, a deed having in the body thereof or endorsed thereon a receipt for such money or valuable consideration or property, the deed being executed, or the endorsed receipt being signed, by the person entitled to give a receipt for that consideration; and a trustee is not to be chargeable with breach of trust by reason only of his having made any such appointment; and the production of any such deed by the solicitor is to have the same effect as if the person so appointing had not been a trustee. And a trustee may also appoint a banker or solicitor to be his agent to receive money payable under a policy of insurance by permitting the banker or solicitor to produce the policy with a receipt signed by the trustee. But nothing in the sub-section is to exempt a trustee from liability, in case he permits any money or property to remain under the control of the banker or solicitor for a period longer than reasonably necessary to enable the banker or solicitor to pay or transfer the same to the trustee.

Trustees may-employ agents.

It seems to be doubtful whether, when a power is exercisable only with a specified consent a general prospective consent is sufficient (y); but it would seem that consent given after the execution of the power may be sufficient (z). Where consent in writing is required, a parol consent, even though followed by an act of part performance by the consenting party, will not be sufficient (a). If the power is only exercisable with the consent of named persons, and one of them dies, the power is gone (b); but where the consent of a class is required, it seems doubtful whether the death of one of the number destroys the power (c). Probably the power is destroyed by the death of any member of the class after the event lias happened on the occurrence of which the class is to be ascertained (d), but not by a death before that event, or before the power can be exercised (e).

Sale with consent, what consent sufficient.

(y) See Hawkins v. Kemp, (1803) 3 Ea. 410, 427.