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.
An estate, when sold by the Court, is usually sold by public auction; the Court will, however, at once accept an advantageous offer actually made for the property (a) ; and if the affidavits on an application in Court are satisfactory, the matter need not be referred to chambers (b). Occasionally a sale is effected by means of sealed tenders (c) sent into the judge's chambers (d) ; or by auction before the Master (e) : and the Court has power to authorise the sale to be carried out either by laying proposals before the judge in chambers, or by proceedings altogether out of Court, any moneys produced thereby being paid into Court, or to trustees, or otherwise dealt with as the judge in chambers may order (f). But the proceedings altogether out of Court are not to be authorised until the judge is satisfied, by such evidence as he shall deem sufficient, that all persons interested in the estate to be sold are before the Court, or are bound by the order for sale; and every order authorising such proceedings must be prefaced by a declaration (g) that the judge is so satisfied, and a statement of the evidence (h) upon which such declaration is made (i), Where an order is made for a sale in a specified manner, and an abortive attempt is made to sell in that way, a further order should be obtained before the estate can be sold by means of sealed tenders (k). Where the cause is proceeding in a district registry, the sale may take place there; but whether it shall take place there or in chambers is a question entirely within the discretion of the judge (I).
Sale may be by auction or private contract.
(a) See Dowle v. Lucy, (1845) 4 Ha. 311 ; Bousfield v. Hodges, (1863) 33 Beav. 90. For form of order confirming a contract, see Seton, 6th ed. 336, 985. For special conditions of sale relating to sales by the Court, see Wolst. Forms and Prec. 6th ed.
(b) Pimm v. Insall, (1853) 10 Ha. App. lxxiv.
(c) As to effect of a tender of a sum, e.g., 500l., "beyond the amount of any other tender," see South Helton, etc. Co. v. Hastcell, etc. Co.,
1898, 1 Ch. 465 ; 67 L. J. Ch. 238.
(d) Osborne v. Foreman, (1856) 8 D. M. & G. 122 ; aff. sub nom. Barlow v. Osborne, (1858) 6 H. L. C. 566 ; 27 L. J. Ch. 308 ; Waterhouse v. Wilkinson, (1864) 1 H. & M. 636.
(e) Pemberton v. Barnes, (1872) 13 Eq. 349; 40 L. J. Ch. 675; 41 ib. 209.
(f) R. S. C. 1883, O. LI. r. 1a.
(g) Cumberland, §c. Bkg. Co. v. Maryport, §c. Co., 1892, l Ch. 92; 61 L. J. Ch. 227, 335.
Where the decree in an administration suit directed the Master to inquire and state what real estate passed by the will, and that the estates which he should find to have passed be sold with his approbation, it was held that he might, after having informed himself what estates passed, proceed to sell them, without making any previous report upon the preliminary inquiry (m) : but where an infant was interested in the real estate, it was doubtful whether the Court would direct a sale until the accounts had been taken, and the cause had been heard on further directions (n). But under s. 55 of the Chancery Procedure Act, 1852, a sale might be made in an administration (o) suit before decree (p) ; but only in cases where under the old practice a sale could have been directed at the hearing (q) ; and in which, for the protection of the property or other like cause, it was necessary to come to the Court; and not so as to enable a party in a contested suit, and upon an interlocutory application before the hearing, to obtain a decision upon the main questions at issue in it (r). A sale might, if necessary, be directed for payment of costs, although infants were interested (s), but not against the will of a person beneficially entitled, who submitted to pay his share of the costs (t). In a creditor's action for administration, a sale of real estate for payment of debts was ordered, though the heir-at-law was an infant (u). This section has been repealed by s. 4 of the Statute Law Revision Act, 1883, but its effect has been preserved by 0. LI. r. 1 of the R. S. C. 1883, which provides that if in any cause or matter relating to real estate, it shall appear necessary or expedient that the real estate or any part thereof should be sold, the Court or a judge may order the same to be sold. It has been held that, in spite of the omission from the rule of the words " for the purposes of the suit," which appeared in the repealed section, the rule must be confined to cases where a sale is necessary for the purposes of the action, and does not enable the Court to sell real estate when it would otherwise have no power to do so, e.g., the real estate of an infant (x). An action, in terms for administration, but in reality for an account of rents and profits, has been held not to be " a cause or matter relating to real estate " (y). The order will now be made on summons in chambers (z). An absolute order for sale, properly made in an administration action, operates as a conversion from the date of the order and before the sale has actually taken place (a).
When made in administration action.
Sale before decree.
(A) Willis v. W., (1889) 61 L. T. G10; 38 W. R. 7.
(i) O. LI. r. 1a, sup. p. 1141.
(k) Berry v. Gibbons, (1872) 15 Eq. 150; 42 L. J. Ch. 29, 231.
(l) Macdonald v. Foster, (1877) 0 Ch. D. 193.
(m) Dykes v. Taylor, (1847) 16 Si. 563 ; but see and compare Powell v. P., (1874) 10 Ch. 130 ; 44 L. J. Ch. L22, a case under the Partition Act; and vide sup. p. 1149.
(n) See Baillie v. Jackson, (1839) 10
Si. 167, where Shadwell, V.-C, refused to insert a direction for sale in the decree; but, in Lord St. Leonards' opinion, there is no invariable rule upon the subject; see Lynch v. Joyce, (1843) 3 D. & War. 349.
(o) See London and County Shy. Co. v. Dover, (1879) 11 Ch. D. 204; 48 L. J. Ch. 336.
(p) Belly. Turner, (1876) 2 Ch. D. 409; 45 L. J. Ch. 681.