(q) Mandeno v. M., (1853) Kay, App. ii.

But a sale will not be ordered in an administration action, when the testator has himself directed all necessary expenses to be raised by mortgage {b); so, where a testatrix directed that an advowson which she devised to trustees should be sold by them immediately after the death of the then incumbent, the Court refused, in his lifetime, to direct a sale of the next presentation for the benefit of the cestuis que trust (c). As against a specific incumbrancer, a sale could not be directed in an administration suit without his express consent, except subject to his charge (d). But now under s. 5 of the Conv. Act, 1881 (e), where land subject to any incumbrance, whether immediately payable or not, is sold by the Court or out of Court, the Court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court in order to meet the incumbrance to be ascertained as therein provided. It is conceived that the Court will not exercise its discretionary power under this s. so as to materially alter the rights of the parties (/). The Court has jurisdiction under this s. to discharge an incumbrance on the land sold, notwithstanding that, in doing so, it may be deciding as to future interests in such incumbrance (g). But the Court will not compel a vendor to pay money into Court under this s. for the purpose of discharging an incumbrance when the result of so doing would be to inflict a great hardship upon him (h). Where trustees with a discretionary power of sale disclaim, the Court will exercise the power, although infants are interested (i).

When sale will not be directed in administration action.

(r) Prince v. Cooper, (1853) 16 Beav. 546 ; Tulloch v. T., (1867) 3 Eq. 574.

(s) Mandeno v. M.} sup. ; and see sup. p. 1144.

(t) Zees v. L., (1872) L. R. 15 Eq. 151.

(u) Swarm v. Webb, (1852) 1 W. R. 90.

(x) Re Robinson, (1885) 31 Ch. D. 247 ; 55 L. J. Ch. 307 ; and see

Miles v. Jarvis, (1883) 50 L. T. 43.

(y) Re Staines, (1886) 33 Ch. D. 172; 55 L. J. Ch. 913.

(z) 0. LV. r. 2 (14); and see Ann. Prac. notes to O. LI. r. 1.

(a) Hyett v. Mekin, (1884) 25 Ch. D. 735 ; 53 L. J. Ch. 241.

(b) Drake v. Whitmore, (1852) 5 De G. & S. 619.

S. 5 of the Conv. Act, 1881.

The Court may sell the real estate of a testator for payment of his debts under the Administration of Estates Act, 1833, although the suit be instituted by a person interested under the will, instead of by a creditor (k); so, also, for the purpose of raising the arrears of a rent-charge (/).

Sale under 3&4Will.IV. c. 104.

(c) Rristoiv v. Skirroic, (1859) 27 Beav. 590.

(d) Langton v. I., (1855) 7 D. M. & G. 30 ; Wiekenden v. Hay son, (1855) 6 D. M. & G. 210 ; 25 L. J. Ch. 162. See under Chancery Procedure Act, 1852, s. 48, Wickham v. Nicholson, (1854) 19 Beav. 38, where a sale instead of a foreclosure was ordered, notwithstanding the dissent of a mortgagee, and see infra.

(e) Sec on the s., Patching v. Bull, (1882) 30 TV. R. 244 ; Lickin v. D., (1882) 30 W. R. 887 ; Milford, etc. Co.

V. Mowatt, (1885) 28 Ch. D. 402 ; 54 L. J. Ch. 567 ; Archdale v. Anderson, (1888) 21 L. R. Ir. 527.

(/) See Re G. X. R. Co. and Sanderson, (1884) 25 Ch. D. 788; 53 L. J. Ch. 445.

(g) Re Freme, 1895, 2 Ch. 778; 64 L. J. Ch. 862.

(h) Re G. N. R. Co. and Sanderson, sup. The s. only applies on a sale.

(0 Browner. Paull, (1852) 16 Jur. 707 ; and see Prentice v. P., (1853) 10 Ha. App. xxii.

Under s. 48 of the Chancery Procedure Act, 1852 (now repealed), a sale, even of an infant's estate (in), might be directed (n) in a foreclosure suit, at the hearing; but not on a prior interlocutory application (o); nor, it would seem, after a decree for foreclosure (p), except by consent (q) ; nor on the application of the mortgagor, unless he made a deposit to cover the probable expenses of the sale (r) ; and the money so paid into Court was, in the first instance, to be applied in indemnifying the mortgagee entitled to a foreclosure decree, against any costs which he might incur by the sale, or attempted sale (s). A sale might be directed, notwithstanding the dissent of the mortgagor (t), or some of the incumbrancers (u); so, also, although the mortgage deed contained the usual power of sale, and the bill prayed only for a sale, and not for foreclosure (x). Where a sale was directed at the instance of a puisne incumbrancer, besides a deposit to cover the probable sale expenses, a bidding was ordered to be reserved sufficient to cover the amount found due to the first mortgagee (y) ; and where a second mortgagee of a moiety of the estate was plaintiff, the conduct of the sale was given to a defendant, the first mortgagee of the entirety, as being a more convenient and less expensive course (z).

Sale when directed in foreclosure action.

(k) Price v. P., (1847) 15 Si. 484 ; Rodney v. P., (1848) 16 Si. 307; Dinning v. Henderson, (1845) 2 Coll. 330. As to a sale for payment of legacies, see Rowley v. Adams, (1844) 7 Beav. 548.

(l) Cupit v. Jackson, (1824) 13 Pr. 721; White v. James, (1858) 26 Beav. 191; 28 L. J. Ch. 179 ; Horton v. Hall, (1874) 17 Eq. 437 ; Scottish Widows' Fund v. Craig, (1882) 20 Ch. D. 208 ; 51 L. J. Ch. 363, where the rentcharge was charged upon the inheritance of glebe lands. Although future payments of an annuity may be secured by a charge on the real estate (see Seton, 6th ed. 1640), the property will not be ordered to be sold as long as payments are punctually made : Re Potter, (1884) 50 L. T. 8.

(m) Mean v. Best, (1853) 10 Ha. App. li.; Siffken v. Davis, (1853) Kay, App. xxi.

(n) Jenkin v. Row, (1851) 5 De G. & S. 107 ; and for form of order, see Staines v. Rudlin, (1852) 9 Ha. App.

LIII. n. ; Cator v. Reeves, (1852) 16 Jur. 1004. As to the practice under the s., see Seton, 6th ed. 1917 et seq.

(o) Wagn v. Lewis, (1853) 1 Dr. 487 ; 22 L. J. Ch. 1051; London and County Ranking Co. v. Dover, (1879) 11 Ch. D. 204 ; 48 L. J. Ch. 336.