MACLENNAN Judgment. applicable to a case where if the trustee had done his duty from the beginning, no suit would have been necessary. But that observation is not applicable to the present case, for the very breach of duty complained of is the not bringing of the action. No doubt the defendant might have sued, but he had the shares still as his security. He had no funds with which to carry on a suit, and it is clear if he failed in the action he could not have charged the plaintiff with the costs, or have added them to his debt, without her consent. If the plaintiff desired him to sue, she should at least have requested him to do so, and have put funds in his hands for the purpose: Cocks v Gray, 1 Giff. 77; Job v. Job, 6 Ch. D. 562. But even if a trustee for sale ought in such a case as this, to have sued, a mortgagee is not a trustee in the ordinary sense. In Warner v. Jacob, 20 Ch. D. 220, Kay, J., after reviewing the authorities, says, at p. "The result seems to be that a mortgagee is, strictly speaking, not a trustee of the power of sale. It is a power given to him for his own benefit, to enable him the better to realize his debt. If he exercises it bond fide for that purpose, without corruption or collusion with the purchaser, the Court will not interfere." In Martinson v. Clowes, 21 Ch.D. at p. 860, North, J., says: "The law, as to the position of a mortgagee exercising a power of sale, is, in my opinion, correctly laid down by Mr. Justice Kay in Warner v. Jacob. The language of Vice-Chancellor Stuart in the case of Robertson v. Norris no doubt goes considerably further in treating the mortgagee as a trustee; but that language goes beyond anything to be found in the cases relied upon as authorities for it, recently pointed out by the Court of Appeal in the recent case of Nash v. Eads." as was The nature of a trustee's duty, and the degree of negligence for which he may be responsible, is discussed in Smith on Negligence, 2nd ed., p. 111, referring particularly to Speight v. Gaunt, 22 Ch. D. 727, and S. C. 9 App. Cas. 1, 15, and Wilson v. Lord Bury, 5 Q. B. D. 518; see also Judgment. Lewin on Trusts, 8th ed., p. 908; Palmer v. Jones, 1 Vern. MACLENNAN 144; Pybus v. Smith, 1 Ves. at p. 193. But, as I have said, the defendant was not a trustee, but a mortgagee, and the responsibility of a mortgagee is thus stated in Fisher on Mortgages 4th ed., sec. 1454: "The mortgagee is not usually required to account for more than he has received ** unless it can be proved, that but for his gross default, mismanagement, or fraud, he might have received more. "Such may be evidenced by his refusal or removal of a sufficient tenant who offered or paid a certain rent; his refusal, in combination with the tenant, to receive the rent, or to take out execution on a judgment in ejectment; or his making an improper use of his security, by suffering the mortgagor himself to take profits to the prejudice of his other creditors, or where he is bankrupt, of his trustee. "But in these cases the proof must be distinct. * * And it is the duty of the mortgagor, if he has the opportunity, to give notice to the mortgagee, that the estate can be made, and to assist him in making it, more productive; which if he omit to do, and lie by, making no objection to the mortgagee's proceedings, he cannot afterwards charge him with mismanagement." It thus appears that even in the case of a mortgagee in possession, who is always chargeable for wilful neglect and default, the case must be one of gross default, mismanagement, or fraud, to make him liable. The present is not a case of a mortgagee in possession who has turned the mortgagor out of the management of his estate and taken it into his own hands, and who, therefore, cannot complain of a strict account being required of his acts, but it is a case in which the mortgagor was informed of everything, could have acted herself, and never suggested to the defendant to take the proceedings she now complains he neglected to take. In my judgment, it is out of the question to charge the defendant in this case as if he had been a mortgagee in J.A. Judgment. possession guilty of wilful neglect and default: Noyes v. MACLENNAN Pollock, 32 Ch. D. 53. J.A. There is still another way in which the question of the liability of the defendant may be tested and put in a strong light. If the defendant had any such duty as is supposed resting upon him, namely, of taking proceedings against the purchaser, it follows that the plaintiff could have brought suit in equity against the defendant to compel him to perform his duty by taking those proceedings: Lewin on Trusts, 8th ed., p. 853, and cases cited. Now, if this plaintiff had brought such a suit immediately, or soon after the sale, what would have been the answer? It would have been: 1. You have no need of the relief you ask, because in the altered state of the law there is nothing to prevent yourself from suing. 2. You owe the defendant a debt which you ought to pay; you have the remedy in your own hands; pay the debt, and you can then do what you please with the purchaser in your own name. 3. You owe the defendant a debt. He who seeks equity must do equity; you can get no relief in a Court of Equity without discharging your legal obligation to the defendant. The result is that the defendant could not be compelled to sue except on the terms of his debt being paid, and it follows that there was no obligation on him to do so except on the same terms. For these reasons I am brought to the conclusion that the judgment of Mr. Justice Rose is right and ought to be affirmed, and that the appeal ought to be dismissed. OSLER, J. A.: I am unable to extract from the evidence any legal ground on which to base the defendant's liability to account to the plaintiff on the footing of having received or negligently omitted to receive the purchase money of the shares in question, and therefore for the reasons stated in the judgment of my learned brother Maclennan, I think the judgment of Mr. Justice Rose should be affirmed. It is a Judgment. case in which I think the appeal may properly be dismissed without costs. HAGARTY, C. J. O. :— This case has given to all the members of this Court much anxious consideration, and we have been unable to arrive at a unanimous decision. For a long time I thought we could uphold the plaintiff's claim. It is possible that a strong sense of the harsh and unfair conduct of the defendant, and a desire to save the plaintiff from a heavy loss may have influenced the judgment I had first formed. I feel compelled, however, to hold that the view of my two learned brothers who precede me is sound. The defendant held the stock vested in himself subject to plaintiff's right to have it transferred to her on making certain payments. This right she still holds, and the defendant fully admits his liability to transfer it to her on her making such payments. The apparent fall in its value has caused all the difficulty. Treating the contract as in substance a mortgage transaction with a power of sale, will not, I fear, help the plaintiff in her present claim. If the sale at seventy-one cents on the dollar, could have been effected, she would have received several thousand dollars. I feel bound to hold that such sale has proved abortive, so far as not producing the named price. I thought for some time that there was sufficient evidence from the facts, and the conduct and correspondence with the defendant during the two months following the sale, to have fixed him with the value or price at which the property was sold. But I find that I cannot adopt this as the legal result of all that was done. The plaintiff by her agents was aware of all that occurred at and following the sale; and although it has turned out so much to her disadvantage that the sale at seventy-one cents has proved abortive, still OSLER HAGARTY Judgment. her rights of property remain unaffected. The substantial injury to her is not that she has lost any right, but that, as appears in evidence, the saleable or market value of the stock has been steadily declining. C.J.O. The defendant was not bound to sell at the time announced, or at any other time. If after commencing the sale, he had chosen to stop it, and forbade the auctioneer proceeding, he would not have been liable as here claimed. If the stock instead of declining had risen in value from the day of the auction till the day of issuing the writ, the plaintiff would not have sustained any substantial damages, as her right under the agreement remained unaffected. Unless, therefore, there be sufficient evidence to make the defendant liable for a failure to sell on the 11th of May, and consequently to hold him bound to indemnify her against the loss by the falling of the market, I cannot see her remedy. I think the appeal must be dismissed, but we should mark our sense of the defendant's apparently disingenuousconduct by refusing costs to him. This decision is not to affect any other proceeding the plaintiff may be advised to take. BURTON, J. A. : [The learned Judge stated the facts and continued :] The Master's report was, on appeal to Mr. Justice Rose, in effect reversed on the ground that the defendant, although recognized by the learned Judge as a trustee, was not liable to take proceedings to enforce the contract without request, and an indemnity, neither of which was shewn, and that there was no finding of damage resulting from delay, and that the plaintiff could have had either the stock or the benefit of the contract, and she demanded neither. The learned Judge has come to this conclusion on the assumption which, with great deference, is, I think, an erroneous one that this was a mere option to purchase, |