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.
Sale of standing timber separately.
(v) T. Act, 1925, 8. 10 (2). As to the old law, see Bavey v. Durrani, (1857) 1 D. & J. 535: 26 L. J. Ch. 830.
By s. 49 (2) of the S. L. Act, 1925, a sale may be made subject to a stipulation that all or any of the timber and other trees, pollards, tellers, underwood, saplings, and plantations, or any articles attached to the land, shall be taken by the purchaser at a valuation, and the amount of the valuation shall form part of the price of the land; and by s. 50 of the same statute, a sale, lease, or other authorised disposition, may be made either of land, with or without an exception of any of the mines and minerals, or of any mines and minerals, and in any such case with or without a grant or reservation of powers of working,
Sales under S. L. Act, 1925.
(x) Cockerell v. Cholmeley, (1830) 1 Russ. & M. 418; 1 Cl. & Fin. 60; see Watlington v. Waldron, (1853) 23 L. J. Ch. 713; 4 D. M. & G. 259; Buckley v. Howell, (1861) 29 Beav. 546; 30 L. J. Ch. 525; Re Duke of Rutland's 8. E., 1900, 2 Ch. 206; 69 L. J. Ch. 603.
(y) Cholmeley v. Paxton, (1825) 3 Bing. 207.
(z) See Re Llewellin, (1887) 37 Ch. D. 317.
(a) Davies v. Wescomb, (1828) 2 Si. 425; Marker v. Kekewich, (1850) 8 Ha. 291; 19 L. J. Ch. 492; but see Kekewich v. Marker, (1851) 3 M. & G. 311; 21 L. J. Ch. 182. See Silvester v. Bradley, (1842) 13 Si. 75; 11 L. J. Ch. 365, where it was unsuccessfully contended that the inheritance of the timber was, in Equity, severed from the inheritance of the soil; and Butler v. Borton, (1820) 5 Mad. 40. See, too, Bennett v. Wyndham, (1857) 23 Beav. 521.
(i) But not (it is conceived) to a reservation of mines, on sales to railway or waterworks companies, or to local authorities for purposes of sanitary work: see R. C. C. Act, 1845, s. 77; Waterworks Clauses Act, 1847, 8. 18; Public Health Act, 1875 (Support of Sewers), Amendment Act, 1883, ss. 2, 3. As to what are mines within s. 77 of the R. C. C. Act, see Midland R. Co. v. Haunchwood Brick and Tile Co., (1882) 20 Ch. D. 552; 51 L. J. Ch. 778; M. R. Co. v. Robinson, (1887) 37 Ch. D. 386; 57 L. J. Ch. 441; 15 A. C. 19; 59 L. J. Ch. 442.
Etc, in relation to the settled land, or any part thereof, or any other land.
And by s. 38 (i), a tenant for life may sell the settled land, or any part thereof, or any easement, right, or privilege of any kind over or in relation to the land; and by s. 56 on or after or in connection with a sale or grant for building purposes, or a building lease, or the development as a building estate of the settled land or any part thereof, or at any other reasonable time, the tenant for life, for the general benefit of the residents on the settled land or on any part thereof, may (inter alia) cause, any parts of the settled land to be appropriated for streets and open spaces; and in regard to the dedication of land for such public purposes, a tenant for life is to be in the same position as if he were an absolute owner.
It is important to observe that trustees for sale (c), and personal representatives (d), have been given the powers possessed by tenants for life under the S. L. Act (e).
A mortgagee .can be restrained from parting with the legal estate /pending a suit to redeem (f), but the power of sale is not superseded by an action for redemption (g); nor by an order nisi for foreclosure, though then ,it can only be exercised by leave of the Court (h). A bond fide purchaser without notice may obtain a good title, although a foreclosure order nisi has been made, and the Court's leave to the exercise of the power of sale has not been sought (h).
Sale by mortgagee pending suit.
(c) L. P. Act, 1925, e. 28 (1).
(d) A. E. Act, 1925, 8. 39 (1).
(e) In cases not falling within the new statutes, which came into operation on the 1st January, 1926, a distinction exists, as regards selling the minerals and surface separately, between the powers of trustees for sale and the powers of personal representatives. Trustees for sale could not sell the minerals and surface separately without the leave of the Court, which could be obtained under s. 44 of the T. Act, 1893; but legal personal representatives (in whom the legal estate vested under the L. T. Act, 1897) could sell the minerals and surface land separately without such leave: Chaplin, etc. Waterworks Co.'s Contract, 1922, 2 Ch. 824.
(f) Modes v. Buckland, (1852) 16 Beav. 212. (g) Adams v. Scott, (1859) 7 W. R. 213.
(h) Stevens v. Theatres, Ltd., 1903, 1 Ch. 857; and see Halkett v. Earl Dudley, 1907, 1 Ch. 590. 603.
A sale by a mortgagee, though harsh and improvident, will not be set aside, if clearly within the terms of the power (i); nor will a mere offer, unaccompanied by actual tender (k) of the amount due to him, be sufficient to prevent a sale (l). Whilst anything remains due on the security, a mortgagee may pursue all his remedies concurrently (m); and may do so in the same action, and may at the same time obtain personal judgment for the debt and judgment for foreclosure (n); but where on a sale he allows his agent to receive the sale moneys, he cannot, if they are misapplied or lost, sue the mortgagor for the mortgage debt (o). If acting in good faith, a mortgagee can only be stopped by tender of principal, interest, and costs (p); and it would require a very strong case to induce the Court to restrain an intended sale by a mortgagee under special conditions, on the ground of their undue stringency (q); but of course if the sale be clearly oppressive, as e.g., where the mortgagee overstates the amount of his debt, and thus deters the person entitled to redeem from paying it off, the Court will interfere (r). The established rule is that the Court will only stay a sale on tender of what the mortgagee swears to be due(s); but if it is clear on the surface that less is due than the sum to which the mortgagee swears, and tender is made of what is manifestly due, the Court will restrain a sale (t). And the Court will always restrain a sale, if the mortgagee holds a fiduciary relationship towards the mortgagor (u).