44 & 45 Vict. Ch. D. 463; Woolley v. Colman, 21 Ch. D. 169; Davies v. Wright, 32 Ch. c. 41, s. 25. D. 220; see R. S. C. Ord. 51, r. 1a). But a sale out of court can only be ordered when all parties interested are before the court or bound by the order (R. S. C. Ord. 51, r. 1a); e. g., a second mortgagee (Brewer v. Square, 1892, 2 Ch. 114). As to when a sale is "altogether out of court,' see Cumberland Banking Co. v. Maryport Co. (1892, 1 Ch. 92). Conduct of sale. At what time sale will be ordered. Sale refused. Form of statutory mortgage in schedule. The conduct of the sale has been given to the mortgagor (Woolley v. Colman, sup.; Davies v. Wright, sup.: Brewer v. Square, sup. ; see Christy v. Van Tromp, 1886, W. N. 111). Where the mortgagor requests a sale he should give security for costs where the conduct is to be by the mortgagee (Davies v. Wright, 32 Ch. D. 220; see Weston v. Davidson, 1882, W. N. 28); and the mortgagor has been ordered to give security where he has the conduct himself (Woolley v. Colman, 21 Ch. D. 169; Brewer v. Square, 1892, 2 Ch. 111; but see Davies v. Wright, sup.). When the mortgagee requests the sale and the conduct is given to the mortgagor, the mortgagor need not give security (Davies v. Wright, sup.). A sale may be ordered on an interlocutory application (Woolley v. Colman, 21 Ch. D. 173); or upon motion for judgment (Wade v. Wilson, 22 Ch. D. 235); or at any time before a foreclosure decree has become absolute (Union Bank v. Ingram, 20 Ch. D. 463); as when application for final order is made (Weston v. Davidson, 1882, W. N. 28). A sale has been refused when in an action for foreclosure alone it was asked for in the absence of the mortgagor, and without notice to him (South Western Bank v. Turner, 47 L. T. 433; 31 W. R. 113); also when asked by a second mortgagee in a case where the value was clearly insufficient for the first mortgage (Merchant Banking Co. v. London, &c., 55 L. J., Ch. 479); also when the order asked for would necessarily include property not subject to the mortgage (Gibbs v. Hayden, 47 L. T. 184; 30 W. R. 725). This section does not enable the court, at the instance of debenture holders, to order a sale of an undertaking of a public character (Blaker v. Herts, &c. Co., 41 Ch. D. 406). V.-STATUTORY MORTGAGE. 26. (1.) A mortgage of freehold or leasehold land may be made by a deed expressed to be made by way of statutory mortgage, being in the form given in Part I. of the third schedule to this act, with such variations and additions, if any, as circumstances may require, and the provisions of this section shall apply thereto. (2.) There shall be deemed to be included, and there shall by virtue of this act be implied, in the mortgage deed First, a covenant with the mortgagee by the person expressed therein to convey as mortgagor to the effect following (namely) : That the mortgagor will, on the stated day, pay to the mortgagee the stated mortgage money, with interest thereon in the meantime, at the stated rate, and will thereafter, if and as long as the mortgage money or any part thereof remains unpaid, pay to the mortgagee interest thereon, or on the unpaid part thereof, at the stated rate, by equal half-yearly payments, the first thereof to be made at the end of six calendar months from the day stated for payment of the mortgage money: Secondly, a proviso to the effect following (namely): c. 41, s. 26. time thereafter, at the request and cost of the mortgagor, 44 & 45 Vict. transfer of 27. (1.) A transfer of a statutory mortgage may be made Forms of by a deed expressed to be made by way of statutory transfer of statutory mortgage, being in such one of the three forms (A.) and (B.) mortgage in and (C.) given in Part II. of the third schedule to this act as schedule. may be appropriate to the case, with such variations and additions, if any, as circumstances may require, and the provisions of this section shall apply thereto. (2.) In whichever of those three forms the deed of transfer is made, it shall have effect as follows (namely): (i.) There shall become vested in the person to whom the benefit of the mortgage is expressed to be transferred, who, with his executors, administrators, and assigns, is hereafter in this section designated the transferee, the right to demand, sue for, recover, and give receipts for the mortgage money, or the unpaid part thereof, and the interest then due, if any, and thenceforth to become due thereon, and the benefit of all securities for the same, and the benefit of and the right to sue on all covenants with the mortgagee, and the right to exercise all powers of the mortgagee: (ii.) All the estate and interest, subject to redemption, of the mortgagee in the mortgaged land shall vest in the transferee, subject to redemption. (3.) If the deed of transfer is made in the form (B.), there shall also be deemed to be included, and there shall by virtue of this act be implied therein, a covenant with the transferee by the person expressed to join therein as covenantor to the effect following (namely): That the covenanter will, on the next of the days by the mortgage deed fixed for payment of interest, pay to the transferee the stated mortgage money, or so much thereof as then remains unpaid, with interest thereon, or on the unpaid part thereof, in the meantime, at the rate stated in the mortgage deed; and will thereafter, as long as the mortgage money, or any part thereof, remains unpaid, pay to the transferee interest on that sum, or the unpaid part thereof, at the same rate, on the successive days by the mortgage deed fixed for payment of interest. (4.) If the deed of transfer is made in the form (C.), it shall, by virtue of this act, operate not only as a statutory transfer of mortgage, but also as a statutory mortgage, and the provisions of this section shall have effect in relation thereto, accordingly; but it shall not be liable to any increased stamp duty by reason only of it being designated a mortgage. 28. In a deed of statutory mortgage, or of statutory transfer Implied of mortgage, where more persons than one are expressed to covenants, convey as mortgagors, or to join as covenantors, the implied joint and covenant on their part shall be deemed to be a joint and several covenant by them; and where there are more mortgagees or several. 44 & 45 Vict. c. 41, s. 28. Form of reconveyance of statutory mortgage in schedule. Devolution of trust and mortgage estates on death. 37 & 38 Vict. c. 78. 38 & 39 Vict. c. 87. Appointment of new trus tees, vesting of trust pro. perty, &c. more transferees than one, the implied covenant with them shall be deemed to be a covenant with them jointly, unless the amount secured is expressed to be secured to them in shares or distinct sums, in which latter case the implied covenant with them shall be deemed to be a covenant with each severally in respect of the share or distinct sum secured to him. 29. A re-conveyance of a statutory mortgage may be made by a deed expressed to be made by way of statutory reconveyance of mortgage, being in the form given in Part III. of the third schedule to this act, with such variations and additions, if any, as circumstances may require. VI. TRUST AND MORTGAGE ESTATES ON Death. 30.-(1.) Where an estate or interest of inheritance, or limited to the heir as special occupant, in any tenements or hereditaments, corporeal or incorporeal, is vested on any trust, or by way of mortgage, in any person solely, the same shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time, in like manner as if the same were a chattel real vesting in them or him; and accordingly all the like powers, for one only of several joint personal representatives, as well as for a single personal representative, and for all the personal representatives together, to dispose of and otherwise deal with the same, shall belong to the deceased's personal representatives or representative from time to time, with all the like incidents, but subject to all the like rights, equities, and obligations, as if the same were a chattel real vesting in them or him; and, for the purposes of this section, the personal representatives, for the time being, of the deceased, shall be deemed in law his heirs and assigns, within the meaning of all trusts and powers. (2.) Section four of the Vendor and Purchaser Act, 1874, and section forty-eight of the Land Transfer Act, 1875, are hereby repealed. (3.) This section, including the repeals therein, applies only in cases of death after the commencement of this act (g). (g) The wording of this section raises some difficulty as to where the legal estate is when there is no personal representative (Re Pilling, 26 Ch. D. 432); see the form of vesting order now usually adopted under the Trustee Acts, ante, p. 523. Copyholds were held to be within the section (Re Hughes, 1884, W. N. 53; see, however, Re Mills, 40 Ch. Div. 18), but they have now been excluded (50 & 51 Vict. c. 73, s. 45). This section does not enable a personal representative to execute a trust for sale where before the act the heir could not have done so (Re Ingleby, 13 L. R. Ir. 326). VII. TRUSTEES AND EXECUTORS. 31.-(1.) Where a trustee, either original or substituted, and whether appointed by a court or otherwise, is dead, or remains out of the United Kingdom for more than twelve months, or c. 41, s. 31. desires to be discharged from the trusts or powers reposed in or 44 & 45 Vict. conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, then the person or persons nominated for this purpose by the instrument, if any, creating the trust, or if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee, may, by writing, appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of the United Kingdom, desiring to be discharged, refusing or being unfit, or being incapable, as aforesaid. (2.) On an appointment of a new trustee, the number of trustees may be increased. (3.) On an appointment of a new trustee, it shall not be obligatory to appoint more than one new trustee, where only one trustee was originally appointed, or to fill up the original number of trustees, where more than two trustees were originally appointed; but, except where only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there will be at least two trustees to perform the trust. (4.) On an appointment of a new trustee any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees, shall be executed or done. (5.) Every new trustee so appointed, as well before as after all the trust property becomes by law, or by assurance, or otherwise, vested in him, shall have the same powers, authorities, and discretions, and may in all respects act, as if he had been originally appointed a trustee by the instrument, if any, creating the trust. (6.) The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator; and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section. (7.) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained. (8.) This section applies to trusts created either before or after the commencement of this act (h). (h) This section applies to trustees for the purposes of the S. L. Acts (S. L. Act, 1890, s. 17, post, p. 724); and also to trustees of land held for religious or educational purposes (Trustees Appointment Act, 1890, s. 3; see Re Coates to Parsons, 34 Ch. D. 370). Where an appointment can be made under this section, application should not be made under the Trustee Act, 1850 (Re Gibbons, 45 L. T. 756; 30 W. R. 287; Re Higginbottom, 1892, W. N. 121. See Re Soulby, 21 W. R. 256; Re Jackson, 16 W. R. 572; Re Shafto, 29 Ch. D. 247). 44 & 45 Vict. c. 41, s. 31. Vacancies. Who can appoint. Number of trustees. Contrary intention. Retirement of trustee. Where a trustee had resided for twelve months abroad, a new trustee was appointed under this section (Re Walker and Hughes, 24 Ch. D. 698). It seems that a trustee who disclaims, refuses to act within this section (D'Adhemar v. Bertrand, 35 Beav. 19), although he has no legal estate in him (Re Birchall, Birchall v. Ashton, 1889, W. N. 31). A new trustee cannot be appointed under this section, in place of an infant (Re Tallatire, 1885, W. N. 191). When the trustees named in the will of a testator all die before him, qu. whether (notwithstanding sub-sect. 6) new trustees can be appointed under this section (Re Ambler, 59 L. T. 210; the case of a sole trustee, Re Orde, 24 Ch. Div. 271; Re Lightbody, 52 L. T. 40; 33 W. R. 452). As to a trustee becoming insane during the life of a testator, see Newton v. Newton, noticed in L. T. Jour., vol. 55, p. 56. Where a deed executed before this act declared that certain persons should have "power to appoint new trustees," they were held to be " persons nominated for this purpose" within this section (Re Walker and Hughes, 24 Ch. D. 698). Where the person nominated for the purpose of appointing is a lunatic an appointment can be made under this section by the continuing trustees (Re Blake, 1887, W. N. 173). Where the persons nominated cannot agree, the personal representative of the last surviving trustee can appoint (Re Sheppard, 1888, W. N. 234). A surviving trustee who is about to retire can under sub-sect. 6 appoint (Re Coates to Parsons, 34 Ch. D. 370). But where the surviving trustee is abroad and will not appoint, application must be made to the court (Re Clift, 27 S. J. 199). So where he is incapable (Re Lemann, 22 Ch. D. 633). A deceased sole trustee is a "last surviving or continuing trustee," and his executor can appoint (Re Shafto, 29 Ch. D. 247). The personal representative is not bound to appoint under this section (Re Knight, 26 Ch. D. 82). A judgment for the execution of the trusts of an instrument will not prevent the donee from exercising his power of appointing under this section (Re Gadd, Eastwood v. Clark, 23 Ch. D. 134; Re Hall, Hall v. Hall, 51 L. T. 901); but his nominee must be approved by the court (ld.; Re Norris, Allen v. Norris, 27 Ch. D. 333). Where there is no such judgment, the donee might possibly appoint a person whom the court would not have sanctioned (Re Norris, 27 Ch. D. 341); but he cannot appoint himself (Re Skeats, Skeats v. Evans, 42 Ch. D. 522). The power in this section to increase the number of trustees only applies where a vacancy is being filled (Re Gregson, 34 Ch. D. 209); but even where there is no vacancy the court ean increase the number, either under the Trustee Act, 1850 (Ib.), or under its general jurisdiction (D'Adhemar v. Bertrand, 35 Beav. 19). The appointment of a single trustee under sect. 27 of 23 & 24 Vict. c. 145 was held valid (West of England Bank v. Murch, 23 Ch. D. 138). As to whether a corporation can be appointed a new trustee under this, see sect. 2, sub-sect. (xvii.); Billing v. Brogden, 1888, W. N. 238; Law Guarantee Society v. Bank of England, 24 Q. B. D. 406. As to appointing a separate set of trustees of property held on separate trusts, see Conv. Act, 1882, s. 5 (post, p. 630), and Conv. Act, 1892, s. 6 (post, p. 634). An appointment made under this section will be free from any limitation to which a power in the trust instrument is subject (Cecil v. Langdon, 28 Ch. Div. 1; Re Lloyd, 57 L. J. Ch. 246). Where the instrument of trust contains an express power of appointing new trustees which either is subject to restrictions, or is incomplete, this does not amount to a contrary intention within sub-sect. 7, so as to prevent the statutory power from applying free from the restrictions, or in cases not mentioned in the express power (Re Lloyd, 57 L. J. Ch. 246; Cecil v. Langdon, 28 Ch. Div. 1; Re Coates to Parsons, 34 Ch. D. 370; see the argument in Re Jackson, 16 W. R. 572). 32.-(1.) Where there are more than two trustees, if one of them by deed declares that he is desirous of being discharged |