463). A trust follows the legal estate wheresoever it goes, except it comes into the hands of a purchaser for valuable consideration, without notice. Reeves v. Evans, N. J. Eq. (34 Atl. Rep. 477). Courts of equity have inherent jurisdiction over all matters of trusts and trustees, and they never allow a trust to fail for want of a trustee. Under the Civil Code of California, courts of equity may remove a trustee unfit to execute his trust, and may accept the resignation of a trustee and may appoint another. Fatjo v. Swasey, 111 Cal. 628 (44 Pac. Rep. 225). The beneficiaries of a trust may pursue the proceeds of church property and charge with the original trust any property in which they may be invested as against all who have actual or presumptive notice of the trust. Butler v. Butler, 164 Ill. 171 (45 N. E. Rep. 426). Citing, Breit v. Yeaton, 101 Ill. 242. Before the beneficiaries of a trust can have their equities enforced in a court of chancery, they must have moved the trustee to act in the matter for the protection of their interest, the legal title being in such trustee. Bailey v. Selden, 112 Ala. 593 (20 So. Rep. 854). The beneficiaries of a trust are necessary parties to a proceeding for the removal of one trustee and the appointment of another. Butler v. Butler, 164 Ill. 171 (45 N. E. Rep. 426).

Sec. 949. Power of court to order sale and reinvestment. For the purpose of preserving a trust, a court has power to order a sale, mortgage, or lease of the trust property, although the trust instrument contains no power or authority for so doing, and to bind by its judgment parties, not in being, who may thereafter become beneficiaries of the trust. A contingent interest in real estate is bound by judicial proceedings affecting the property, where the court has before it all the parties that can be brought before it, and the court acts upon the property according to the rights that appear, without fraud. These powers are inherent in a court of equity, and rest upon considerations of necessity and expediency. Mayall v. Mayall, 63 Minn. 511 (65 N. W. Rep. 942). The court say: "The inherent power of a court of equity to do these things in such a case rests upon the paramount consideration of necessity and high expediency.' Neither statutory authority nor express authority, in the deed or other instrument of

Even in There is

trust, is necessary. At common law a court of equity had the inherent power to do what was necessary to be done to preserve the trust from destruction. The district court, as a court of general jurisdiction both at law and in equity, has the same inherent power, in that respect, as was possessed by a court of chancery. The authorities are all one way on this question. Hale v. Hale, 146 Ill. 227 (33 N. E. Rep. 858); Trust Co. v. Roche, 116 N. Y. 120 (22 N. E. Rep. 265); Anderson v. Mather, 44 N. Y. 249. The power of the court is exercised, not to defeat or destroy the trust, but to preserve it. case of absolute sale, the trust is not destroyed. merely a change in the form of the trust property. The proceeds are impressed with the trust, and are to be administered in accordance with its terms, under the direction of the court. The distinction must be kept in mind between the power to sell or mortgage merely for the benefit of the cestui que trust, and the power to sell or mortgage in order to preserve the trust from complete destruction. The court will always exercise the power for the latter purpose, while it might not, and usually would not, for the former. In re Roe, 119 N. Y. 509 (23 N. E. Rep. 1063). * * The power of the court to bind parties not in being, but who may hereafter come into being and have an interest in the trust, rests upon the same ground of necessity and high expediency.' All persons in being who have an interest in the trust have been made parties. Of course, those not in being cannot be made parties; and if the court cannot bind them by its decree or judgment, its inherent power to do with the property whatever is necessary to preserve the trust would be so hampered and limited as to be in a great measure rendered nugatory. The rule that only those who are parties to a suit are affected by the decree is subject to certain well-recognized exceptions in equity. Thus where there is real estate in controversy which is subject to an entail, it is generally sufficient, all parties having antecedent estates being before the court, to make the first tenant in esse in whom an estate of inheritance is vested a party with those claiming the prior estates, without making any persons parties who may claim in remainder or reversion after such vested estate of inheritance. Story, Eq. Pl., § 144."

*

Sec. 950. Trustees' dealings with trust estates. One who is intrusted with the sale of real estate for another will not be permitted to become a purchaser through a third party, even though the price paid was all that was demanded by the owner. Such sale will be set aside on the ground that a trustee or agent will not be permitted to deal with himself, in the matters of his trust. Rich v. Rich v. Black, 173 Pa. St. 92 (33 Atl. Rep. 880). Where the statute requires directors of a corporation to be stockholders, one, not a stockholder, who is elected as a director without his knowledge and who never acts as such, does not occupy such a fiduciary relation to the corporation as to prevent his purchasing its property at a judicial sale, although subsequent to his election a share of stock was issued to and accepted by him. Rozecrans Min. Co. v. Morey, 111 Cal. 114 (43 Pac. Rep. 585). Even though a trustee be authorized to invest the funds and keep them invested in his discretion, he will not be permitted to pervert the funds by investing them in land in his own name and mortgage the same to procure money to carry on his own business. Butler v. Butler, 164 Ill. 171 (45 N. E. Rep. 426). A member of a corporation who acts in its behalf, either as a director or member of a purchasing committee, though he may not be a trustee in the strict sense, assumes toward the corporation relations of a confidential and fiduciary character and he cannot, while acting in such capacity, deal with the corporation in his own behalf or for his own private interests. Redhead v. Parkway Driving Club, 148 N. Y. 471 (42 N. E. Rep. 1047). A trustee is not authorized to charge his trust estate with the cost of buying in an outstanding title without the consent of the beneficiaries of the trust. Shaw v. Devecmon, 82 Md. 643 (33 Atl. Rep. 716). Where a parent as trustee for himself and child makes an investment of funds in which he has a life estate and the child owns the remainder, fraud and mismanagement will not be presumed but must be averred and proven. Hyatt v. Vanneck, 82 Md. 465 (33 Atl. Rep. 972).

Sec. 951. Termination and revocation of trusts. The trust cannot be abandoned by the trustees so as to terminate the trust, nor revoked by the trustor after its acceptance

actual or presumed, unless the declaration reserves a power of revocation, and in that case the power must be strictly pursued. Spence v. Widney, Cal. (46 Pac. Rep. 463). A resulting trust founded on parol may be rebutted, put down, or discharged by parol. Tynan v. Warren, 54 N. J. Eq. 402 (34 Atl. Rep. 1065). Where a trust deed in the nature of a voluntary settlement is intelligently and understandingly executed, with no power of revocation reserved, it cannot be revoked or set aside except upon proof of mental incapacity, mistake, fraud or undue influence. Taylor v. Buttrick, 165 Mass. 547 (43 N. E. Rep. 507; 52 Am. St. Rep. 530). For a case depending upon particular facts and illustrating the right of a grantor to revoke a deed creating a trust for his own benefit, see Neal v. Black, 177 Pa. St. 83 (35 Atl. Rep. 561; 34 L. R. A. 707).

VENDOR AND VENDEE.

FRAME v. SLITER.

(29 Ore. 121.)

Equitable lien for purchase money. It is held that a vendor who has conveyed by an absolute deed and placed his grantee in possession, has no implied lien for the unpaid purchase money.

BEAN, C. J.

Sec. 952.

Statement of the case-Prior rulings of this court. The single question in this case is whether a grantor of real estate, by absolute deed, followed by delivery of possession to his grantee, has an implied equitable lien thereon for the unpaid purchase money. It has been several times mooted in this court, but the doctrine of the English court of chancery, which recognizes and upholds such lien, has never been recognized or established here, although the state is classed by many text writers among those in which the lien prevails. The earliest case in which reference is made to the question, and the one most strongly relied upon to sus tain the doctrine, is Pease v. Kelly, 3 Ore. 417, but the court in that case only decided that, by taking a mortgage to secure

the payment of purchase money, the vendor waived the equitable lien, and therefore could not maintain the suit. Nothing more was in fact decided in that case, although it is stated in the opinion that" the lien exists if there is no higher security." It is next referred to in Kelly v. Ruble, 11 Ore. 75 (4 Pac. Rep. 593), where the court, after disposing of the case on other grounds, say: "We have thus far impliedly admitted the existence of the equitable lien of a vendor of real estate for the unpaid purchase price. But we doubt the actual existence of the lien in this state. Ahrend v. Odiorne, 118 Mass. 261 (19 Am. Rep. 449); Kauffelt v. Bower, 7 Serg. & R. 64 (10 Am. Dec. 428). It is not believed the existence of such a lien was decided in Pease v. Kelly, 3 Ore. 417.” The question again arose in Gee v. McMillan, 14 Ore. 268 (12 Pac. Rep. 417; 58 Am. Rep. 315); and Mr. Justice Strahan puts his decision in that case squarely on the doctrine of the existence of a grantor's lien, but Chief Justice Lord dissents in toto, and Mr. Justice Thayer, while concurring in the result upon other grounds, expressly disclaimed any intention to decide whether the principles upon which the doctrine is supposed to be founded are broad enough" to uphold a vendor's lien to the extent of raising a trust in favor of a grantor who has conveyed by deed of absolute conveyance, so as to admit of the purchase price being made a charge upon the property conveyed, in an ordinary case of sale of real estate." In Lewis v. Henderson, 22 Ore. 548 (30 Pac. Rep. 324); Thomas v. Thomas, 24 Ore. 254 (33 Pac. Rep. 565); and Jones v. Gates, 24 Ore. 415 (33 Pac. Rep. 989), where the doctrine is again referred to, the court carefully avoided approving it even by inference. From these decisions it is apparent that it has never received judicial sanction, or become a law of real property in this state, and its decision is now made necessary for the first time. We therefore feel at liberty to determine the question as one of first impression, and, after having given it the careful and deliberate consideration which its importance demands, we are clearly of the opinion that the doctrine of a grantor's lien is so opposed to the general policy and course of legislation in this state that it ought not to prevail here. The whole tenor of our legislation is to make the title to real estate as simple and easily understood as possible, and to facilitate