Where one party is

(b) Above, pp. 684, 723, 724.

(c) Above, pp. 759 - 761. (d) Above, p. 759.

{e) Above, p. 758. (f) Pp. 756 - 769. {g) Above, p. 874. trustee for the other of the property sold.

Gifts by cestui-que-trust

(h) Above, pp. 760, 761, 768.

{i) See note (m), below.

(k) Hylton v. Hylton, 2 Ves. sen. 547.

(l) Above, p. 876.

[m) Consider the judgment in Hylton v. Hylton, 2 Ves. sen. 547, 548, 549. "'The defendant appears to stand in the place, not of a common trustee barely of a particular estate, but of a trustee acting in fact as guardian for the minor, his nephew, and taking care of his person and his estate; so that the condition of these persons, the plaintiff and the defendant, comes within this rule "[i.e., of guardian and ward). It is submitted that the dicta of Brougham, C, in Hunter v. Atkins, 3 My. & K. 113, 135, 136, 140, with respect to bargains between trustee and cestui-que-trust, are too widely expressed and must be limited (where not confined to bargains dealing with the trust property) to a trustee occupying in fact a position of influence. Take for example the case of two men contracting with each other in the course of their business. One happens to be a trustee of the other's marriage settlement comprising property in no way connected with to the trustee by way of bounty for his services.

The law relating to contracts of this kind is as follows: - A trustee is at liberty to purchase from his cestui-que-trust either the whole or any part of the latter's interest in the trust estate; and this is equally the case where the trustee is a trustee for sale (]>).

Purchase by a trustee of the cestui-que-trusfs interest in the trust property.

His trade. It could not be contended that on proof of this fact alone their business contract would be voidable unless the trustee could establish the fairness of the bargain.

(n) Watch v. Hatch, 9 Ves. 292, 296, 2 7: Vaughton v. Noble, 30 Beav. 34, 39; Barrett v. Hartley, L. R. 2 Eq. 789; Wright v. Curler, 1903, 1 Ch. 27, 40, 49, 50, 57; see above, p. 759.

(o) Above, note (m).

(p) Gibson v. Jeyes, 6 Ves. 266, 270, 271, 277; Expte. Lacey, ib. 625, 626 (the rule is "not that a trustee cannot buy from his cestui-que-trust, but that he shall not

But as his duty as trustee is to make the most of the trust property for the other's benefit, and his position as trustee gives him the best opportunity of becoming acquainted with its true value, he is subject, on contracting to purchase the property himself, to the like obligation as is incumbent on a solicitor buying from his client (p). He is bound to take no undue advantage of the vendor and to disclose every circumstance known to him that may affect the value of the property (q). The sale is voidable at the vendor's option in case the trustee fail to discharge this obligation; and more than that, in any proceedings to set aside the contract, the vendor need only show that the other party was a trustee for him and bought the trust property from him, and the onus will then lie upon the trustee of proving the fairness of the bargain and of his conduct (r). It is said that, to enable a trustee to buy the trust property from his cestui-que-trust, the relation between them must be dissolved, and they must assume the position of independent bargainers (s). But this means that it is for the trustee to show, by proving the fairness of the transaction, that they did really occupy this position (s). It does not mean that a release from the trust will absolve the trustee from the obligation incumbent on him in case he afterwards purchase the trust property. As we have seen (7), if, while acting as trustee, he obtain information affecting the value of the trust property, and he retire from the trust and afterwards purchase the trust property from the beneficial owners, the sale is voidable by them in case he do not disclose the information so acquired. In all other respects purchases by a trustee of his cestui-que-trust's interest in the trust property are governed by the same rules as are applicable to a purchase by a solicitor from his client; and it seems unnecessary to repeat here what has been already said concerning such purchases (u). It will not be forgotten that where such a purchase by a trustee is set aside for his concealment of information, which he ought to have imparted, he will be required to account for the rents and profits received by him since the sale on the footing of wilful default (x).

Buy from himself," see below, p. 882); Coles v. Trecothick, 9 Ves. 234, 244, 246, 248; Franks v. Bollans, L. R. 3 Ch. 717, 718, 719.

(p) See previous note.

(q) Above, pp. 760, 761.

(r) Denton v. Donner, 23 Beav.

285, 290; Luff v. Lord, 34 Beav. 220, 227; Cairns, C, Thomson v. Eastwood, 2 App. Cas. 215, 236; Plowright v. Lambert, 52 L. T. 646; Dougan v. Macpherson, 1902, A. C. 197.

(s) See cases cited above, note

(P)

(t) Above, p. 761.

All contractual dealings, of whatever kind, between a trustee and his cestui-que-trust, for the acquisition by the former of the trust estate, or any interest therein, are subject to the same rules as govern the case of sale (y). Thus these rules are applicable where a trustee for purchase, who is (as we shall see (z) prohibited from buying his own property in exercise of the trust, sells the same to his cestui-que-trusts who pay the price with the trust money. The law as to gifts by a cestui-que-trust to his trustee of any interest in the trust property has been already stated (a). The principles regulating purchases of the trust property by a trustee from his cestui-que-trust apply in every case where one stands in a fiduciary relation to another as regards some particular land, being bound to make the most of it for the other's advantage, and he purchases it himself from the other; as for instance, where an agent for sale of land, or an agent or a steward entrusted with the management of land, buys it openly from his principal (b). Where such an agent secretly buys the land, with which he is so entrusted, taking a conveyance thereof in the name of another, or otherwise conceals from the principal any interest which he has in the purchase, the transaction is really a sale effected by the agent to himself, falls within the third class of cases above mentioned (c), and is voidable at the principal's option on mere proof of the facts, whether the terms of the bargain were fair or advantageous to the principal or not (d). The same rules apply, according to the circumstances of the case, where an agent for purchase openly sells his own land to his principal or secretly buys it for his principal in attempted exercise of his authority (e).