GIBBS VS. CUNNINGHAM. 51

not undertake to sell these lands at private sale, until a fruitless
effort had been made to dispose of them according to the terms
of the decree; and that even after he had failed in this effort,
they were constantly kept in the market by advertisement offer-
ing them at private sale. It is not the case, therefore, of a
trustee who has undertaken to depart from the terms of the
authority under which he acts, without first making an effort to
comply with them; but it is the case of a deviation from the
terms, after an effectual endeavor to conform to them. It is
also a circumstance very material to be considered, that the
price at which the trustee has contracted to sell these lands
greatly exceeds the best offer he could get for them when ex-
posed to public sale; and another very strong recommendation
of the sale made, is to be found in the circumstance, that the
property was never withdrawn from the public eye, but kept
always before it and in the market by advertisements in the
newspapers.

In Tyson vs. Mickle, 2 Gill, 383, a private sale made by a
trustee was confirmed by the court, though the amount of the
private bid was considerably less than had been offered for the
same property when exposed publicly^ and the court in that
case, say, that Chancery will always ratify an act when done,
which upon a previous application would have been authorised.
It is true that in the case of Tyson and Mickle, the parties in-
terested consented to the sale, but one of those parties, and
one largely interested, was a minor, and, therefore, incompetent
to consent. Adopting the principle of the Court of Appeals,
that an act when done will be ratified, which the court, if ap-
plied to beforehand, would have authorised, I am of opinion
that the objection to the act of the trustee in this case, founded
upon the form of the sale, cannot prevail; as it seems to me» that
upon an application, setting out all that has taken place, prior to
the sale, to Mr. Markell, the trustee would have been authorised
to accept his offer.

Whilst the Chancellor would consider it his duty to vacate
sales made by officers of his appointment, under the influence
of error, fraud, misrepresentation, or injurious mistake; he,