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.
Mere lapse of time does not affect the authority to sell.
Under the A. E. Act, 1925, s. 1 (which takes the place of s. 1 of the L. T. Act, 1897), the legal title to the real estate of a deceased person vests in the legal personal representative, in the same manner as a chattel real; and in the event of an intestacy as to any real or personal estate, the same is held by the personal representative upon trust for sale (b). And now, having regard to s. 36 of the A. E. Act, 1925, lapse of time is immaterial to a purchaser who satisfies himself that no previous assent or conveyance has been given or made, even though he may have notice that all the debts, etc. of the deceased have been discharged.
(x) Hodkinson v. Quinn, (1860) 1 J. & H. 303; 30 L. J. Ch. 118; Re Wise, (1852) 5 De G. & S. 415. See also ss. 14 - 18 of 22 & 23 Vict. c. 35, now repealed.
(y) Re Tanqueray-willaume and Landau, sup.
(z) Re Whistler, (1887) 35 Ch. D. 561; 56 L. J. Ch. 827; Re Venn and Furze, 1894, 2 Ch. 101.
(a) Re Verrell, 1903, 1 Ch. 65. (b) S. 33.
(4) Amount payable in respect of purchase-money; - how ascertained, increased, or diminished.
When the contract leaves the price to be fixed by arbitration (c), the arbitrators (d) must strictly pursue the terms of their authority (e): if directed to choose an umpire, they must do so by an exercise of discretion, and not by lot (/),. or chance (g); nor can they, nor can the umpire, previously agree to adopt, though they may be assisted by and act upon, the opinion of a third person (h). Misconduct in making the valuation will invalidate the award (i); as, e.g., if trustees appoint one of their own number, who happens to be a surveyor, to act as surveyor for the purposes of the L. C. C. Act (k); but either party to the contract may bind himself by acquiescence in a voidable award (l): and mere irregularity in the proceedings, e.g., the election by lot of an umpire, may be waived by the parties or their agents authorised to act in the matter of the reference (m): and where the parties have left the price to be determined between them by a sole valuer, the Court, in the absence of fraud or mistake, will enforce the contract, notwithstanding that the price fixed is exorbitant (n). Where, however, the arbitrator has, upon his own showing, made a mistake, either as to the subject-matter of the reference, or as to the legal principle on the basis of which the award was to be made, the award may either be set aside, or referred back to him (o); and in all cases of reference to arbitration the Court has a discretion under s. 10 of the Arbitration Act, 1889, to remit the award (p); and his own evidence is admissible in explanation of the award (q); but he cannot be asked what passed in his own mind when exercising his discretionary power in the matters submitted to him(n). Where the award or valuation is made by two arbitrators, it should be signed by them both at the same time and place (s).
Purchase-money determined by arbitration.
(c) As to agreement to arbitrate as to value, and agreement to have a valuation, see Taylor v. Yielding, (1912) 56 Sol. Jo. p. 253.
(d) The appointment of an arbitrator must be communicated to the other party within the time limited for making the appointment; Tew v. Harris, (1847) 11 Q. B. 7; 17 L. J. Q. B. 1.
(e) See Emery v. Wase, (1801) 5 Ves. 846; Milnes v. Gery, (1807) 14 Ves. 400, 406; Gourlay v. Duke of Somerset, (1815) 19 Ves. at p. 432.
(f) Re Hodson and Drewry, (1839) 7 Dowl. 569; Backhouse v. Taylor, (1861) 2 Pract. R. 75; 20 L. J. Q. B. 233.
(g) See Re Greenwood and Titterington, (1839) 9 A. & E. 699.
(h) Emery v. Wase, (1801) 5 Ves. 848; Hopcraft v. Hickman, (1824) 2 S. & S. 130; Anderson v. Wallace, (1835) 3 C. & F. 26.
(i) Re Hawley, (1848) 2 De G. & S. 33.
(k) Peters v. Lewes, etc. R. Co., (1881) 18 Ch. D. 429; 50 L. J. Ch. 172, 839.
(l) Blundell v. Brettargh, (1810) 17 Ves. 232, 241; Re Elliot, (1848) 2 De G. & S. 17; Ex p. Harrison, (1849) 13 Jur. 381.
(m) Backhouse v. Taylor, (1851) 2 Pract. R. 70; 20 L. J. Q. B. 233; and see sup. p. 222 et seq.
(n) Collier v. Mason, (1858) 25 Beav. 200; and see Fuller v. Fenwick. (1846) 3 C. B. 705; 16 L. J. C. P. 79; Hodgkinson v. Fernie, (1857) 27 L. J. C. P. 66. As to invalidating an award on the ground that the arbitrator has not used his own judgment, see Bads v. Williams, (1854) 4 D. 31. k, G. 674. As to an agreement between parties that the award shall not be impeached on the ground of fraud, see Tullis v. Jacson. 1892, 3 Ch. 441; 61 L. J. Ch. 655; and cf. Czarnikow v. Roth Schmidt & Co., 1922, 2 K. B. 478.
Sect. 9 of the L. C. C. Act, 1845, provides that, in the case of a party under disability or incapacity, the purchase or compensation money payable to him shall not, except where the same shall have been determined by the verdict of a jury or by arbitration, or by the valuation of a surveyor appointed by two justices under the Act, be less than shall be determined by two able practical surveyors, one nominated by the promoters, and the other by the party under disability, or incapacity; with provision for the appointment of a third surveyor, in case the two originally named fail to agree. The requirements of this section must be strictly complied with (t). Sect. 9 applies to compensation for injuriously affecting lands not taken, as well as to compensation for land actually taken (u). By the L. P. (Amend.) Act, 1924, 9th Sched., para. 2, the L. C. C. Acts, and other statutes giving powers to make title in case of persons under dis-ability, take effect as if the references to the disabilities which have been removed had been omitted. It should be borne in mind, however, that where practicable title should be made under the L. P. Act, 1925, or the S. L. Act, 1925, or the A. E. Act, 1925, instead of under the L. C. C. Act (a;).
Under L.c.c. Act.
(o) Re Dare Valley R. Co., (1869) 4 Ch. 554.