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. 3 of the Partition Act, 1868, "in a suit for partition where, if the Act had not been passed, a decree for partition might have been made ; then, if it appears to the Court that by reason of the nature of the property to which the suit relates, or of the number of the parties interested, or presumptively interested, therein, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and give all necessary or proper consequential directions (x) ; " and, by s. 4, "if the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the property to which the suit relates, request the Court to direct a sale of the property and a distribution of the proceeds, instead of a division of the property between or among them, the Court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly (y);" and, by s. 5, " if any party interested in the property to which the suit relates, requests the Court to direct a sale of the property, and a distribution of the proceeds, instead of a division of the property between or among the parties interested, the Court may, if it thinks fit, unless the other parties interested in the property, or some of them, undertake to purchase the share of the party requesting a sale, direct a sale of the property, and give all necessary or proper consequential directions ; and in case of such undertaking being given, the Court may order a valuation of the share of the party requesting a sale in such manner as the Court thinks fit."
Partition Act, 1868.
(q) Re Hirst, (1890) 45 Ch. D. 263.
(r) Re Brown, (1862) 11 W. R. 19 ; 32 L. J. Ch. 275 ; Re Palmer, (1872) 13 Eq. 408; 41 L. J. Ch. 11.
(s) Re Hardstaff, (1899) W. N. p. 256.
(t) RePryse, (1870) 10 Eq. 531; 39 L. J. Ch. 760 ; Re Nayle, (1877) 6 Ch. D. 104 ; Re Wadsworth, (1890)
W. N. p. 163.
(u) Re Willway, (1863) 1 N. R. 469; 32 L. J. Ch. 226 ; Re Wynn, (1873) 16 Eq. 237 ; 43 L. J. Ch. 95 ; Re Skinner, (1896) W. N. p. 68
(v) Re Skinner, sup.
(w) For the text and notes on the Acts, see Chitty's Statutes.
These three ss., and especially the 5th, have been the subject of much judicial difference of opinion ; but their true construction and effect may, it is conceived, be stated as follows.
Difficulty of construing the ss.
The three ss. are to be read together, although they are independent of one another, and though neither the 4th nor 5th is to be construed as a proviso to or as restricting the operation of the 3rd (z). And it is therefore important that a plaintiff should mention in his Statement of Claim under which s. he is applying, and, if he is applying under the 3rd s., he should state that a sale will be more beneficial (a).
Construction of them as a whole.
(x) This s. is retrospective, and applies to a suit instituted before the Act; see Lys v. L., (1868) 7 Eq. 126 ; but the Court cannot under this 8. direct a sale in a suit, where a decree for partition, though not acted on, was made before the passing of the Act: Pryon v. P., (1875) 10 Ch. 469; 44 L J. CI,. 535.
(y) This s. is imperative ; see Pemberton v. Barnes, (1871) 6Ch. 685 ; 40 L. J. Ch. 675 ; inf. p. 1137.
(z) Drinkwater v. Rateliffe, (1875) 20 Eq. 528; 44 L. J. Ch. 605 ; Pitt v. Jones, (18S0) 5 Ap. Ca. 651, 659; 49 L. J. Ch. 795.
(a) Evans v. E., (1883) 52 L. J. Oh. 304; 48 L. T. 567.
Considering the ss. in detail, the 3rd s. confers upon the Court power, at the request of any party interested in however small a degree (b), to order a sale in any case where prior to the Act a decree for partition might have been made, if, in its unfettered discretion (c), it is of opinion that a sale would be more beneficial than a partition (d). What, therefore, a party claiming a sale under this s. has to do, is to satisfy the Court that a sale is more beneficial (e) for the parties interested generally, and not for all or for any one particularly (/); and the test of advantage is a pecuniary one, to which questions of sentiment do not apply (g). The fact that the will under which the property is held directs that no sale shall take place until the youngest tenant in common attains twenty-one, has been held in Ireland not to prevent the Court from exercising its powers under this s., if it thinks fit, during the minority of some of the owners (h). The Court has full power to make an order for partition instead of sale, if it thinks fit (i), and may even do so in opposition to the Master's certificate (k).
Construction of them in detail.
The 4th s. throws on the parties resisting a sale which is claimed by persons interested to the extent of a moiety or upwards, the onus of proving that a partition is more advantageous than a sale; and unless this onus is discharged, the Court has no discretion to refuse a sale (/). Mortgagees are
(b) See Mason v. Keays, (1898) 78 L. T. 33, for small degree of interest of defendant.
(c) The Court of Appeal will not as a rule interfere with the judge's discretion as to this : Dyer v. Paynter, (1885) 33 W. R. 806 ; 54 L. J. Ch. 1133.
(d) For the settled form of order under this s. see Re Hardiman, (1880) 16 Ch. D. 360; 50 L. J. Ch. 272; Waite v. Bingley, (1882) 21 Ch. D. at p. 683; 51 L. J. Ch. 651.
(e) Drinkwater v. Rateliffe, sup. ; Allen v. A., (1873) 21 W. R. 842 ; 42 L. J. Ch. 839 ; Dyer v. Paynter, sup.
(/) Fleming v. Crouch, (1884) W. N. 111.
(g) Drinkwater v. Rateliffe, sap.
(h) Thompson v. Richardson, (1872) 6 I. R. Eq. 596 ; but see Swaine v. Denby, (1880) 14 Ch. D. 326 ; 49 L. J. Ch. 734.