case spalding versus SHALMER saint amond all februar Eq can ab pl S p where  land be to be sell for payment of particular debt the purchaser must take old  care to see his purchase money right apply and where land be vest in trustee  by Act of parliament to be mortgage for a particular purpose it be incumbent  on the mortgagee to see the money apply accord cotterell all v Hampson all  post vol Ch can but if more be sell than be sufficient to pay the debt that  shall not turn to the prejudice of a purchaser the case be that Augustine  Spalding the plaintiff father do in April convey several manor and land lie in  Hutton Blagdon Congresbury and Kingston Seymour in the county of Somerset to  Alexander dyer Thomas white decease and the defendant Shalmer and their heir  to the use of they and their heir until they have raise by sale or profit  sufficient to pay the debt in a schedule to the deed of trust annex amount to  and also to pay pound to one Codrington in case he shall convey a estate in  Hutton accord to article make betwixt he and Spalding date saint march and  after payment of the debt and the pound and all charge relate to the say trust  the trustee be to stand seize of the remainder of the land unsold to the use  of the plaintiff the son of the Vernon chancery case say Spalding in tail male  with remainder to the right heir of the say Augustine Spalding the trustee  enter and undertake the trust and in sell unto Robert and Richard Viccaris the  land at Congresbury for pound and sell other land at Hutton to several other  person for pound more and so raise by sale in all pound and after this the  trustee in convey the land at Kingston Seymour to Nixon and newcourt which be  mention to be in consideration of pound but no money be actual pay and the  conveyance to Nixon and newcourt be only in trust for Alexander dyer and as  touch the pound to be pay to Codrington he can not make a good title and so  the purchase be break off and instead of pay the pound to he there be a decree  make in that Codrington shall pay to the trustee pound be part of the  purchasemoney that Spalding have advance in his lifetime which pound be accord  pay so that near the trustee have receive pound whereas the schedule debt  amount but to pound and the receipt and payment be all endorse on the deed of  trust after this videlicet in dyer the trustee owe pound by bind to the  defendant saint amond saint amond lend he pound more and thereupon the say  Alexander dyer and Nixon and newcourt his trustee make a mortgage to the  defendant saint amond of the land at Kingston Seymour for secure the pound and  interest and deliver to he the deed of trust by which he have notice that the  trust be only for payment of the schedule debt which amount but to pound and  the pound to Codrington and have also notice by the endorsement that the  trustee have raise by sale before the conveyance to Nixon and newcourt pound  but it do not thereby appear whether Codringtons pound be to be pay or not  Vernon chancery case upon the hear this cause the question be how far the  trustee shall be charge with this breach of trust and whether saint amond S  mortgage he come in with notice of the trust shall stand good against the heir  for the plaintiff it be insist that all the trustee be answerable to the  plaintiff for the breach of trust in regard the deed of trust be particular  that they shall sell for payment of the debt in the schedule only and when  they have raise by the sale make to Robert and Richard Viccaris pound that be  sufficient to pay the debt in the schedule with a overplus and all the  subsequent sale wherein they all join be breach of trust but as to that it be  answer by the defendant counsel that when the land at Hutton be sell and the  land at Kingston Seymour convey to Nixon and newcourt the contract with  Codrington be not break off for the decree be subsequent to those sale and it  do not then appear but pound be necessary to be raise for the carry on that  purchase whereunto for the plaintiff it wag reply that saint amonds mortgage  be subsequent to the decree and he ought to have inquire whether Codrington  have convey the land at Hutton for by the deed of trust the pound be not to be  raise till he have convey Lord keeper each trustee shall be charge for no more  than he actual receive but where they join in receipt there they shall be all  charge and as to saint amonds Vernon chancery case er p mortgage that be hold  to be good where land be to be sell for payment of particular debt the  purchaser must take care to see his money right apply and if the debt be not  pay that be such a breach of trust as shall affect the purchaser but if more  be sell than be sufficient to pay the debt that shall not turn to the  prejudice of the purchaser for he be not oblige to enter into the account  unless there be a lie to hang between the heir and trustee Culpepper v Aston  Ch can and the trustee can sell just so much as be sufficient to pay the  Vernon chancery case debt and he observe the deed of trust be not only for the  payment of debt in the schedule but also to pay the trustee their cost and  charge it be then say for the plaintiff that pound of the money on saint  amonds mortgage be not advance upon account of the trust but be a debt owe by  dyer and there before ought not to be charge on the trust estate say non  allocatur the court also direct that the money disburse by the trustee for the  maintenance of August Spaldings child though not within the trust shall be  allow vide fellow v Mitchell and Owen post vol p wms and case cite and arrange  by Mr Cox in note there note the defendant Shalmer in the principal case by  his answer admit that he have join not only in the several make of the trust  estate but also in the conveyance of the land at Kingston Seymour to Nixon and  newcourt but he deny that any of the money arise by the sale come to his hand  but that the same be receive pay and dispose of by dyer and white and he say  he do not remember on what trust or to what intent and purpose the conveyance  to Nixon and newcourt be make r l and in addition to the case refer to in Mr  Cox note the follow on this subject have since occur Balchen v Scott Ves jun  where executor prove but never have act receive a bill in payment and  immediate send it to the act executor hold not liable as such receipt and  transmission be no act so the mere take probate and join with the other  executor in act necessary to enable he to administer e g in a receipt perhaps  not actual necessary will not necessary bind he Hovey v Blakeman Ves by if the  executor go further and concur in the application of the money or other act of  administration of the asset ibidem as where one be executor and trustee join  the other in the sale of stock and the other receive the money and abscond the  executor join in the sale hold liable chamber v Minchen Ves et vide Bacon v  Bacon Ves Fonbl Tr Eq book ch sect Mr Sanderss note to leigh v Barry atk from  these case and the case refer to by they it appear saint that a distinction be  allow and take between executor and trustee d between the necessity and  nonnecessity of the act in which they join and on which distinction indeed the  first be a good deal find d as between executor act and executor not act that  between the act that be general act of administration of the testator asset  and the act that be mere necessary to enable that executor who accord to the  principle of the court be consider as the act executor to administer the asset  duly and that the court in form its decision on all the case in every class  will have regard to the circumstance that attend each particular case see  further harden v parson Eden Westley v clarke ibidem Brice v Stokes Ves  Langford v gascoigne Ves Shipbrook v hinchinbrook Ves joy v Campbell Sch l  Doyle v black Sch l Underwood v Stevens mere walker v simons swan it appear  that there be a account state and settle between the plaintiff and dyer on the  that April and though the plaintiff by his answer to the crossbill of the  defendant Shalmer charge that fact state that at the settle such account it be  agree between he and dyer that if the balance due thereon be not well secure  within a week from that time and if in that space of time the like security be  not give by dyer that he will convey to plaintiff and his heir the land in  Kingston Seymour and deliver to plaintiff all the write relate to the trust  estate that the say account shall be of none effect and that none of those  matter be perform by the say Alexander dyer yet the account be decree to stand  but the defendant Lovel the executor of dyer be order after have all proper  allowance to apply the residue of dyer estate in payment of what shall be find  due to plaintiff from dyer on the say account but the same be to be without  prejudice to any equity the other creditor of dyer may have against plaintiff  or any other person to who the estate of dyer shall go by virtue of that  decree for satisfaction of any debt due to they from dyer at the time of his  death and who have a bill depend against Lovel and other for that purpose Reg  lib b fol enter Spalding v Lovel Vernon chancery case er p