dissenting, said :
The case, in my judgment, is so plain for affirmance that I shall be brief in the statement of my views in regard to it. In view of the evidence in the record and the settled law on the subject, it is matter of surprise that the decree appealed from should be reversed. Fortunately, however, two of the judges being absent, the decision cannot be authority for any other ease. Whiting v. Town of West Point, 88 Va., 905, 912.
Much that is said in the opinion just announced is not rela-vant to any question before the court. The case is a simple one. The principal grounds upon which the injunction was prayed for to prohibit the advertised sale were (1) that the sale ought to be made on the premises; (2) that the property ought to be sold in parcels; and (3) that the notice of sale was not sufficient, the latter point being now abandoned.
The property is situate just outside the city limits. The place of sale is not prescribed in the deed of trust, but the provision is that in the event of a sale, “ the same shall be made after first advertising the time, place, and terms thereof for at least ten days in some newspaper published in the city of Richmond,” and the statute provides that the trustee in a deed of trust, which does not otherwise provide, shall, when called upon to sell, make sale after having first given “reasonable notice of the time and place of sale,” which, of course, implies that in such a case the sale need not be upon the premises, but that it may be at any other suitable place the trustee, in his discretion, may select. Code, sec. 2442; 1 Bart. Ch. Pr.,446.
The principle is that the trustee must exercise his discretion, so far as he has any, in an intelligent and reasonable manner. He must use every effort to sell the estate under every possible advantage of time, place, and publicity. 2 Perry, Trusts, sec. 602o.
This elementary principle was recognized by the Supreme Court of the United States in Richards v. Holmes, 18 How., *380143. There the trastee in a deed of trust, having advertised the sale to take place on the premises, adjourned the sale to a different time and place, and this action was approved. The court, speaking by Mr. Justice Curtis, said: “’We consider that a power to a trustee to sell at public auction, after a certain public notice of the time and place of sale, includes the power regularly to adjourn the sale to a different time and place, when, in his discretion fairly exercised, it shall seem to him necessary to do so in order to obtain the fair auction price for the property. If he has not this power, the elements or many unexpected occurrences may prevent an attendance of bidders, and cause an inevitable sacrifice of the property. It is a power which every prudent owner would exercise in his own behalf under the circumstances supposed, and which he may well be presumed to intend to confer on another.”
The case of Johnson v. Dorsey, 7 Gill, 269, is another authority in point. In that case, under a decree of foreclosure of a mortgage, a farm, situate just outside the city of Baltimore, was ordered to be sold, and the sale which was made, not on the premises, but in the city, was upheld.
Indeed, in Shurtz v. Johnson, 28 Gratt., 657, a sale by a trustee in Baltimore of a farm situate in York county, in this State, was sustained; and Judge Burks, in the course of his opinion, said: “I know of no law of this State forbidding such a sale, and no decision of any court has been cited in support of the general proposition, that a trustee who is invested with power to make sale of real estate for the payment of debts, without express limitation as to the place of sale, cannot lawfully make such sale at a place outside the territory and beyond the jurisdiction of the State in which such real estate may be. The powers of the trustee must be determined from an examination of the deed under which he acted. * * It appears that neither Baltimore nor any other place is specially designated in the deed as the place where the sale is *381to be made, but, by the plainest implication, the selection of such place is left to the discretion of the trustee, as is usual in deeds of this character.”
The learned judge also referred to Walker v. Beauchler, 27 Gratt., 511, and pointed outthe difference in the circumstances of the two cases, and that there was no conflict between the cases. Indeed, Judge Staples, speaking for the court in the Walker Case, expressly stated that where the place of sale is not prescribed by the deed of trust, much is left to the discretion of the trustee. He lays down no such proposition as that, in such a case, the sale must, as matter of law, be on the premises, or even in the county; neither does he impugn the general principle stated by Judge Burks in the Shurtz Case; but merely says that under the circumstances of the case with which he was dealing — the war being flagrant — the sale ought to have been at least in Alexandria county, where the property was situate, and not in Georgetown, outside the State. The case' is, in fact, an authority for the principle that whether a trustee has fairly exercised his discretion depends upon the circumstances of the case — a principle universally recognized, not only in regard to selecting the place of sale, but also as to selling the estate in whole or in parcels.
Now, remarkable to say, the conclusive and uncontradicted evidence on this point in the present case is utterly ignored in the opinion just announced.
It is proven, as the opinion of competent judges, that the property will sell to better advantage in Richmond than on the premises. This is sot out at large in the answers of the defendants, which were sworn to, and which were treated as affidavits on the motion to dissolve the injunction, there being no countervailing testimony. 1 Bart. Ch. Pr., 414; Muller v. Stone, 84 Va., 834. The answers aver that the premises are greatly out of repair, and by no means attractive in appearance. It is also stated that at a previous sale on the premises, under the deed of trust, the only bidders present were from the city; that *382the property, after extensive advertisement, was offered on that occasion both as a whole and in parcels, and that several thousand dollars more were bid for it as a whole than in parcels. Not enough, however, was bid either way to pay the secured debt,' and the chancery court refused to confirm the sale. It is also averred that there is no reasonable ground to believe that the property will ever sell for the amount of the debt, which has greatly increased by the accumulation of interest.
The answer of the trustee states that he would have indulged the appellants as to the place of sale had they expressed a preference (as they were given the opportunity to do) for the sale again to be on the premises. He also says that in view of the fact that at the previous sale on the premises not more than a half dozen persons from the country attended, he considered the ehauee of an advantageous sale better if the property were offered in Richmond, and accordingly advertised the sale to take place in front of the city hall.
"Why, then, should the advertised sale be enjoined instead of leaving the trustee to try the experiment of a sale in the city? Surely no one could have been injured by such experiment; for had the sale proceeded in the city without a just or satisfactory result, the chancellor could have refused to confirm it. The appellants thus had an ample remedy for the protection of their interests, without applying, as they did, to the judge of another court for an injunction to stop the sale. It is to the interest of all parties that the property shall bring the best possible price; and as it has once been offered on the premises without an adequate price being obtained, why should it. not be offered in the city, where, according to the evidence, the chance of obtaining a fair price is better? It is extraordinary, as it seems to me, that the decree dissolving the injunction should be reversed, with arbitrary directions to sell on the premises and in parcels, in view of the result of the effort that has already been made to sell in that way and all the other evidence in the case.
*383It is perfectly apparent from the record that the object of the appellants is to obtain delay, and in the meantime to remain in possession and enjoyment of the property. Their appeal, in my judgment, is wholly without merit, and it is to be regretted that it should find favor in a court of justice.
I am for affirming the decree.
Decree reversed.