(i) Dicks v. Ratten, (1870) W. N. 173; Williams v. Games, (1875) 10 Ch. 204 ; Dyer v. Paynter, sup.

(k) Allen v. A., sup.

(1) Lys v. L., (1868) 7 Eq. 126 ; Pemberton v. Barnes, (1871) 6 Ch. 685; 40 L. J. Ch. 675; ef. Saxton v. Bartley, (1879) 27 W. R. 615; 48 L. J. Ch. 519, where the Court refused an order for sale. The mere fact of the re"parties interested " within this s., and are to be reckoned in calculating the proportion of parties interested on an application for sale (m). And on the same principle a tenant in common who has mortgaged his share cannot claim a partition or sale without the consent of his mortgagee, or without offering to redeem the mortgage (n). The owner of the equity of redemption of an undivided share cannot combine in the same action a claim against his own mortgagee to redeem him with a claim for partition against another defendant; and mortgagees of the entirety are not proper defendants to such an action (o). The fact that one of the persons entitled to less than a moiety is a lunatic does not bar the rights of the owners of the greater portion under this s. (p). The Court has, however, no jurisdiction under it to direct a sale where there is subsisting a valid trust for sale (q), although a mere discretionary power in trustees has not the effect of excluding the statutory power of the Court (r).

On the 5th s. a question has been raised whether the election of the other parties interested in the property to purchase the share of the party requesting a sale deprives the Court of its power to order a sale under the 3rd s. It is now settled that the 5th s. is not a proviso to the 3rd ; and that where the latter applies, the former has no operation. Thus, where parties entitled to three-sixteenths of house property in a town asked for a sale, which was resisted by the owners of the other thirteen-sixteenths, who offered to take the plaintiffs' shares at a valuation, the Court, being satisfied that a sale would be more beneficial, held that the case fell under s. 3, and ordered a sale of the whole (s). Consequently, too, a plaintiff who desires a sale instead of a partition, must expressly state in his pleadings that a sale will be more beneficial, so as to give notice to the opposite party that this is the relief he is claiming under s. 3 (t). The mere statement of facts which tend prima facie to show that a sale will be more convenient, but which do not exclude the operation of s. 5, will not debar the defendant from insisting, under the latter s., on a partition, on his offer to buy up the plaintiff's interest («). And even where the Court is not satisfied that a sale will be beneficial, it will not compel the plaintiffs who have claimed a sale of the whole to sell their interest at a valuation to the defendants, but will order a partition if the plaintiffs are unwilling to sell their shares (x). Upon an application for a sale of property held by tenants in common, made by the owner of less than a moiety, under s. 5 of the Act, the Court has a discretion; and is not bound to order a sale, even if none of the other persons interested will undertake to purchase the applicant's share ; the onus being on him to show some good reason why an order for sale should be made (y).

S. 6

Sisting party being in possession is not a "contrary reason :" Wilkinson v. Joberns, (1873) 16 Eq. 14 ; 42 L. J. Ch. 663 ; Houghton v. Gibson, (1877) 25 W. R. 268; 46 L. J. Ch. 366; nor is a possible loss of income to an infant defendant entitled to one moiety : Rowe v. Gray, (1876) 5 Ch. D. 263 ; 46 L. J. Ch. 279 ; Re Whit-welVt Est., (1887) 19 L. R. Ir. 45 ; and see generally, Porter v. Lopes, (1877) 7 Ch. D. 358.

(m) Davenport v. King, (1883) 31 W. R. 911.

(n) Gibbs v. Haydon, (1882) 30 W. R, 726 ; nor does s. 25 (2) of the

Conv. Act, 1881, alter the ride: ib.

(o) Sinclair v. James, 1894, 3 Ch. 554 ; 63 L. J. Ch. 873.

(p) Re Barker, (1881) 17 Ch. D. 241 ; 50 L. J. Ch. 334.

(q) Biggs v. Peacock, (1882) 22 Ch. D. 284 ; 52 L. J. Ch. 1 ; and see Cass v. Wood, (1874) 30 L. T. 670. Nor where there are overriding trusts to be administered can the Court decree partition or sale: Taylor v. Grange, (1880) 15 Ch. D. 165; 49 L. J. Ch. 794.

(r) Boyd v. Allen, (1883) 24 Ch. D. 622 ; 63 L. J. Ch. 701.

On any sale under the Act the Court may, by s. 6, authorise any of the parties interested to bid at the sale (z) on such terms as to non-payment of deposit, or as to setting off or accounting for the purchase-money or any part thereof, instead of paying the same, or as to any other matters, as it shall think fit (a). The provisions of the 30th s. of the T. Act, 1850, now replaced by s. 31 of the T. Act, 1893, are, by s. 7 of the Act, made applicable to all cases where a sale is directed (b), and the powers of the Court thereunder are extended to the interests of persons who, having been advertised for under the 3rd s. of the Act of 1876, have not come in and established their claims, as if they had been parties to the action. Thus, a decree for sale in a partition action may be made to bind the legal interests not only of non-existent persons (c), but also of persons who, although they may be in being, cannot be ascertained, e.g., the right heirs of a living person (d) ; and also of the persons mentioned in the 3rd s. of the Act of 1876. Nor did the express inclusion of s. 30 of the Trustee Act, 1850, exclude the powers of the Trustee Extension Act, 1852 (e) ; and, therefore, where an order for sale had been made in a partition action, but one of the necessary parties to the conveyance was out of the jurisdiction, the Court, on a petition under the Trustee Act and the Trustee Extension Act, made an order declaring that the persons entitled were to be deemed seised upon a trust within the meaning of the former Act, and appointed a person to convey for them (f). These parts of the Trustee Act, 1850, and the Trustee Extension Act, 1852, have been repealed by the T. Act, 1893; but, generally speaking, whatever could be done in the above respects under the former Acts can now be done under the latter (g).