It may be noted here that, whenever an abstract of title mentions some express power of which the exercise might affect the property sold, but no exercise thereof is subsequently stated in the abstract (e), the purchaser's advisers should inquire whether the power has been exercised.

When property is sold or conveyed in the exercise of a power created by statute, there is the same necessity for exact compliance with all the terms and conditions of the power as exists in the case of a power created by the act of parties (f); and in default of such compliance any instrument purporting to exercise the power is, as a rule, void (g). At the present time the most important was on the ground that publication of a will is equivalent to delivery thereof.

Inquiry whether a power mentioned in the abstract has been exercised.

Sale under statutory power.

(b) See Vincent v. Bishop of Sodor and Man, 4 De G. & Sm. 294; o Ex. 683, where a power required to be exercised by will signed anil published in the presence of and attested by two or more witnesses was held to be well executed by a will purporting to be signed and sealed in the presence of two witnesses, on the ground that sealing in the presence of witnesses must naturally and reasonably be considered to be a publication of the will; Smith v. Adkins, L. R. 14 Eq. 102, where a power to he exercised by any instrument in writing signed, sealed and delivered in the presence of two or more witnesses was held to be well executed by a will stated in the attestation clause to be signed, sealed, published and acknowledged to be the last will of the donee of the power; this statutory power of sale is that given by the Settled Land Acts, 1882 to 1890. When title is made by means of the exercise of this power of sale, the points to which the attention of the purchaser's counsel should be principally directed are the following: - In the first place he must ascertain that the property so conveyed or to be conveyed is settled land (h), and that the person who has exercised or is to exercise the power is a tenant for life or a person having the powers of a tenant for life within the meaning of the Acts (i). He must next inquire whether such property comprises the principal mansion-house on the settled land and the pleasure grounds and park and lands usually occupied therewith or any part of the same, and if so, he must see that the assurance of that part of the property was or shall be made with the consent of the trustees of the settlement or under an order of the Court as required by the Settled Land Act, 1890 (k). Thirdly, he must assure himself that the purchase money was or shall be paid to duly constituted trustees of the settlement for the purposes of the Acts(l), or into Court(m). This is essential to the valid exercise of the power of sale given by the Acts; and even where the settled land is subject to some incumbrance, which is prior to the settlement, and of which the amount exceeds the whole price, the purchase money cannot properly be paid to the incumbrancer on a sale under the Acts unless the trustees concur in the conveyance to direct such payment (n). Fourthly, he must be satisfied that all the estate, to which title is alleged or required to be made under this statutory power, has been or will be duly assured by the exercise of the statutory power of conveyance (o) by the tenant for life, either alone or with the concurrence of all other necessary parties, if any. He must also see that there is nothing in the whole transaction carried out by exercising the statutory power which is inconsistent with the duty of the tenant for life, in exercising the statutory power, as trustee for all parties entitled under the settlement (p). As is well known, a tenant for life intending to exercise the statutory power is required to give one month's previous notice of his intention to the trustees of the settlement (q), but a person dealing in good faith with the tenant for life is not concerned to inquire respecting the giving of the notice so required (r). It is therefore unnecessary, when title is alleged or promised under an exercise of the statutory power, to make any inquiry whether notice has been duly given to the trustees. And it is improper to make any such inquiry; for if the purchaser ask this question and be informed in answer of facts disclosing some irregularity, he may lose the benefit of the protection undoubtedly afforded to those who abstain from inquiry (s). It has been held that it is not a condition precedent to making a valid contract for sale under the Settled Land Acts that the tenant for life should give notice of his intention to the trustees; he can enter into a binding contract for sale without giving any such notice (t), even though there be no trustees of the settlement in existence (u); and it will be sufficient to give the purchaser a good title if trustees be duly appointed before the contract is completed (u). But although the purchaser is not concerned to inquire whether notice of the intention to sell were given to the trustees, he is not equally unconcerned with the question, whether there are any trustees of the settlement in existence at the time when the statutory power is completely exercised by conveyance. The Act provides that capital money arising from a sale made thereunder shall be paid either to the trustees of the settlement or into Court, at the option of the tenant for life (w); and it is held that the existence of such trustees is a condition precedent to the exercise of this option (or). Consequently, a vendor selling under the Settled Land Acts cannot make a good title, where there are no trustees of the settlement for the purposes of the Acts and the purchaser has notice of this fact, by requiring the purchase money to be paid into Court and conveying in consideration of such paymen(y); but trustees must first be duly appointed, and then the sale can be completed. It appears, however, that if the purchaser, supposing that there are trustees of the settlement in existence and in ignorance that there are not, pay the purchase money into Court in good faith at the vendor's request, he will obtain a good title by a conveyance in consideration of such payment (z). It seems therefore that, if on a sale under the Settled Land Acts it appear from the abstract that trustees of the settlement were duly constituted or appointed, a purchaser directed to pay his purchase money into Court need not inquire whether such trustees still remain in existence. But if it appear from the abstract that there are no such trustees in existence, then the purchaser must require trustees for the purposes of the Acts to be appointed, and cannot safely pay the money into Court and accept a conveyance accordingly, without first seeing that such appointment has been duly made. Where the vendor's title depends on a former exercise of the power of sale given by the Settled Land Acts whereon the purchase money was paid into Court, and it appears from the abstract that there were no trustees of the settlement in existence at the time when the power was exercised by conveyance, the purchaser should, it seems, take the objection that the power was not well exercised unless there were such trustees in existence at that time, and should require proof of their existence to be furnished accordingly. If, however, such proof cannot be furnished, it will have to be considered whether a good title can be made on the ground that the purchaser from the tenant for life, supposing that there were such trustees, bought in good faith in ignorance of the fact that there were none (a). It has been held in the case of a building lease made by a tenant for life under the Settled Land Acts in the absence of any trustees, where no capital money was payable on granting the Lease, that the existence of trustees of the settlement was not a condition precedent to the validity of the lease, and that a purchaser from the lessee must presume, in the absence of evidence to the contrary, that the lessee acted in good faith and had no notice of the irregularity (b). But in such a case, the only necessity for trustees is that due notice of the intention to lease may be given to them; and lessees and purchasers are expressly exonerated from the obligation of inquiring as to the giving of such notice (c). Where, however, any capital money has to be paid by a lessee or purchaser, the case is different (d); and there is not the same statutory absolution from the duty of inquiring into the existence of trustees. But even on a sale of settled land, the trustees have no active duty to perform, if the tenant for life desire that the purchase money shall be paid into Court. And as it is provided that a purchaser dealing in good faith with a tenant for life shall, as against all parties entitled under the settlement, be conclusively taken to have complied with all the requisitions of the Act (e), and it is presumed generally that everything is rightly done until the contrary be shown (f), it seems that in this case also it would be presumed that the purchaser from the tenant for life acted in good faith without notice of the irregularity (g); and if nothing appeared to rebut this presumption, the title would be unimpeachable.