This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
By s. 44 of the T. Act, 1893 (as amended by the Act of 1894), it is enacted that " where a trustee or other person is for the time being authorised to dispose of land by way of sale, exchange, partition, or enfranchisement, the High Court may sanction his so disposing of the land with an exception or reservation of any minerals, and with or without rights and powers of or incidental to the working, getting, or carrying away of the minerals, or so disposing of the minerals, with or without the said rights and powers, separately from the residue of the land." The s. also further provides that any such trustee or other person, with the said sanction previously obtained, may, unless forbidden by the instrument creating the trust or direction, from time to time without any further application to the Court, so dispose of any such land or minerals, and that nothing in the section shall derogate from any power which a trustee may have under the S. L. Acts or otherwise.
Trustee Act, 1893, s. 44.
This s. was passed to replace the provisions of the Confirmation of Sales Act, 1862, which was itself rendered necessary by the decision in Buckley v. Howell (n), which threw considerable doubt on the validity of sales by trustees, under the common power, of the surface apart from the minerals.
Confirmation of Sales Act, 1862.
With regard to the construction of the s., the words "other person " at the beginning of it include a mortgagee, as the same words in the replaced Act were held to have that meaning (o). It was also decided under the old Act that, on a petition by a mortgagee under it, service was unnecessary on subsequent incumbrancers and on the mortgagor (p), but at the present time it certainly seems necessary on the mortgagor (q). All parties who are beneficially interested should he served with notice of any application under the s. (r), though entitled in remainder only (s) : but where the power of sale is exerciseable with the consent of the tenant for life, the petition need not be served on the persons entitled in remainder (t) ; and an order will be made in general terms, without reference to any particular sale (u). In one cise service on a beneficiary in remainder out of the jurisdiction, known to object to a sale, was dispensed with (u). The necessity of applying to the Court is now, in the case of strict settlements, rendered unnecessary, as the tenant for life can carry out the transaction under s. 17 of the S. L. Act, 1882; however, in the case of settlements by way of trust for sale, leave must be obtained from the Court under S. L. Act, 1884, s. 7, to exercise the statutory powers, unless, as has become usual, these powers are expressly conferred on the trustee for sale.
Cases and mode of procedure under the s.
(n) (1861) 29 Beav. 546 ; 30 L. J. Ch. 525.
(o) Re Beaumont, (1871) 12 Eq. 86 ; 40 L. J. Ch. 400 ; He Wilkinson, (1872) 13 Eq. 634; 41 L. J. Ch.
392. On the practice under this s., and for forms of orders, see Seton, 6th ed. 1748.