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.
Power of the Court as regards the sale.
(s) Pitt v. Jones, (1880) 5 Ap. Ca. 651 ; 49 L. J. Ch. 795, affirming 6'. C. sub nom. Gilbert v. Smith, (1879) 11 Ch. D. 78; 48 L. J. Ch. 352.
(t) Evans v. Evans, (1883) 52 L. J. Ch. 304 ; 48 L. T. 567. (u) S. C.
(x) Williams v. Games, (1875) 10 Ch. 204 ; Pitt v. Jones, (1880) 5 Ap.
Ca. 651 ; 49 L. J. Ch. 795.
(y) Richardson v. Feary, (1888) 39 Ch. 45; 57 L. J. Ch. 1049.
(z) Leave to bid will not be given to the persons having the conduct of the sale : Verrall v. Catheart, (1879) 27 W. R. 645, not following Pennington v. Dalbiac, (1870) 18 W. R. 684 ; but in the latter case none of the parties objected.
The provisions of ss. 23 to 25 of the Settled Estates Act, 1856, are also, by s. 8, incorporated in the Act (h), the effect of which is, in the case of all persons under of ss. 23 - 25 of S. E. Act, 185G.
[a) Wilkinson v. Joberns, (1873) 16 Eq. 14 ; 42 L. J. Ch. 663 ; Gilbert v. Smith, (1879) 11 Ch. D. 78 ; 48 L. J. Ch. 352 ; Re Dracup, 1894, 1 Ch. 59 ; 63 L. J. Ch. 238.
(b) For form of judgment in case of infant undivided owner, see Davis v. Ingram, 1897, 1 Ch. 477; 66 L. J. Ch. 386.
(c) Lees v. Coulton, (1875) 20 Eq. 20 ; 44 L. J. Ch. 556.
(d) Basnett v. Moxon, (1875) ib. 182 ; 44 L. J. Ch. 557.
(e) Beckett v. Sutton, (1882) 19 Ch. D. 646; 51 L. J. Ch. 432.
(g) See ss. 31, 33, etc.
(h) It must be remembered that
Disability, to reconvert the proceeds of sale into realty (i); and this applies to all sales under the Partition Acts, whether or not the estate sold was settled (k). But it would seem to be otherwise in the case of persons mi juris (/) ; so that if a person mi juris dies entitled to the proceeds of a sale made under the Acts, the money, not having been re-invested in land, will as between his real and personal representatives belong to the latter (m).
In all cases where a sale, mortgage, partition or exchange is ordered, the Court has power, in addition to its other powers, with a view to avoiding expense or delay, or for other good reason, to authorise the same to be carried out, either in the ordinary way by laying proposals before the judge in chambers for his sanction, 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 (n). 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, mortgaged, partitioned or exchanged are before the Court; or are bound by the order for sale, mortgage, partition or exchange; and every order authorising such proceedings altogether out of Court must be prefaced by a declaration that the judge is so satisfied, and a statement of the evidence upon which such declaration is made (n). In a sale out of Court three things are now commonly required - that the reserved bid should be fixed by the Master; that the auctioneer's remuneration should be similarly fixed; and that the purchase-money should be paid directly into Court (o).
Power of the Court under R. S. C. O. LI. r. 1a.
These ss., and especially the 25th, are not so comprehensive as the corresponding ss. 34 - 36 of the S. E. Act, 1877, which do not apply ; see sup. p. 1126.
(i) Foster v. F., (1875) 1 Ch. D. 588 ; 45 L. J. Ch. 301 ; Be Norton, 1900, 1 Ch. 101; 69 L. J. Ch. 31, the case of an infant who has joined in requesting a sale in lieu of partition ; Mildmay v. Quiche, (1877) 6 Ch. D. 553; 46 L. J. Ch. 667; a curator ad bona of a lunatic's estate, appointed by a foreign Court to get in and administer, cannot obtain a transfer of proceeds of sale in a partition action : Grimwood v. Bartels,
(1877) 25 W. R. 843; 46 L. J. Ch. 788.
(k) Re Barker, (1881) 17 Ch. D. 241 ; 50 L. J. Ch. 334.
(/) Steed v. Preece, (1874) 18 Eq. 192 ; 43 L. J. Ch. 687 ; Arnold v. Dixon, (1874) 19 Eq. 113; and see Byett v. Mekin, (1884) 25 Ch. D. 735 ; 53 L. J. Ch. 241.
(m) Mordaunt v. Benwell, (1881) 19 Ch. D. 302; 51 L. J. Ch. 247 ; Be Bickard, (1885) 53 L. T. 293.
(n) R. S. C. O. LI. r. la ; Cumberland, §c. Bdg. Co. v. Mary port, §c. Co., 1892, 1 Ch. 92 ; 61 L. J. Ch. 227, 335 ; Willis v. TF., (1889) 38 W. R. 7 ; 61L. T. 610.
In an ordinary partition action it was essential that all persons legally interested should be parties before an order could be obtained. But the 9th s. of the Partition Act, 1868, provided that an action might be maintained agaiust one or more of the parties interested without service upon the others, and that at the hearing the Court might direct such inquiries as it should think necessary or proper, with a view to an order for partition or sale being made on further consideration (p) ; but that all persons who would before the Act have been necessary parties must be served with notice of the order on the hearing, and would thereafter be bound by all subsequent proceedings, as if they had been originally parties (q). Under this enactment it was impossible to proceed until notice of the order had been served on all persons interested who were not parties (r).
Absence of some of parties interested.
But now, by s. 3 of the Act of 1876 the service of notice may by leave of the Court be dispensed with in cases where service is impossible or can only be effected at an expense disproportionate to the value of the property; and in lieu thereof the Court will order advertisements (s) to be issued for all persons upon whom service has been dispensed with. At the expiration of the time fixed by such advertisements for them to come in and establish their claims, those who have not done so, whether within or without the jurisdiction (including persons under disability), will be bound by the proceedings as if they had been served with notice of the judgment; and thereupon the powers of the Court above pointed out (t) under the Trustee Acts will extend to their interests in the property to which the action relates, as if they had been parties to the action ; and the Court may thereupon, if it shall think fit, direct a sale of the property and give all necessary or proper consequential directions.