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.
Service of notice may be dispensed with.
(n) See last note.
(o) Pitt v. White, (1887) 57 L. T. 650; Re Stedman, (1888) 58 L. T. 709.
(p) It was formerly held that after directing inquiries the Court would not go on at once to direct a sale, but would await the result of the inquiries: Buckingham v. Sellick, (1870) 22 L. T. 370 ; Harper v. Bird,
(1875) 23 W. R. 646 ; Lawe v. Stoney,
(1876) W. N. 141. But nowit seems that an order for sale may be made at the hearing, subject to the result of the inquiries being satisfactory : Powell v. P., (1874) 10 Ch. 130; 44 L. J. Ch. 122 ; and see inf. p. 1148.
(q) In Stace v. Gage, (1878) 8 Ch.
D. 451 ; 47 L. J. Ch. G08, where the plaintiffs were trustees for sab; of two-thirds of the property, and defendants were trustees for sale of the remaining one-third subject to the life interest of a co-defendant, it was held that the interests of the beneficiaries were sufficiently represented, and a sale and partition were directed without notice to them. And as R. S. C. O. XVI. r. 8 applies to partition actions, this is clearly so : Simpson v. Denny, (1878) 10 Ch. D. 28.
(r) Hurry v. H., (1870) 10 Eq. 346 ; 39 L. J. Ch. 824; Peters v. Bacon, (1869) 8 Eq. 125 ; 38 L. J. Ch. 571 ; Mildmay v. Quiche, (1875) 20 Eq. 637.
Where an order has been made under the last s. dispensing with service of notice of the judgment and the property is sold by order of the Court, the 4th s. provides that: (1) The proceeds of sale shall be paid into Court to abide further order; (2) The Court shall fix a time at the expiration of which the proceeds will be distributed, and may from time to time extend the time so fixed ; (3) The Court shall direct such notices to be given, by advertisements or otherwise, for notifying to any persons on whom service is dispensed with, and who may not have previously come in and established their claims, the fact of the sale, the time of the intended distribution, and the time within which a claim to participate in the proceeds must be made (u) ; (4) If at the expiration of the time so fixed or extended the interests of all the persons interested have been ascertained, the Court shall distribute the proceeds in accordance with the rights of those persons; (5) If at the expiration of the time so fixed or extended, the interests of all the persons interested have not been ascertained, and it appears to the Court that they cannot be ascertained, or cannot be ascertained without expense disproportionate to the value of the property or of the unascertained interests, the Court shall distribute the proceeds in such manner as appears to the Court to be most in accordance with the rights of the persons whose claims to participate in the proceeds have been established, whether all those persons are or are not before the Court, and with such reservation (if any) as to the Court may seem fit in favour of any other persons (whether ascertained or not), who may appear from the evidence before the Court to have any prima facie rights which ought to be so provided for, although such rights may not have been fully established, but to the exclusion of all other persons. And the effect of such a distribution is to exclude all such other persons from participation in the proceeds, but not to prejudice the right of any person so excluded to recover from any person who has participated the portion of the share to which such excluded person is entitled. And where the whole property is not sold at one sale, the 5th s. provides a further remedy for any person who, although really entitled, has been thus excluded from participation, by directing that if any such person establishes his claim before the distribution in a subsequent sale, the shares of the other persons interested in the proceeds of the subsequent sale shall abate to the extent to which they were increased by the non-participation of the excluded person in the proceeds of the previous sale, and shall to that extent be applied in or towards payment to that person of the share to which he would have been entitled in the proceeds of the previous sale, if his claim thereto had been established in due time.
Practice where notice dispensed with, and property sold.
(s) The Court has no power to dispense with these : Hacking v. Whalley, (1882) 51 L. J. Ch. 944.
(t) See p. 1140.
(u) This sub-s. is imperative, and the Court has no jurisdiction to dispense with the advertisements of an intended distribution. The order dispensing with service of the judgment should provide for the issue of advertisements : Phillips v. Andrews, (1887) 56 L. T. 108.
Saving of rights of absent parties.
As to no order of the Court being now invalidated as against a purchaser on the ground of want of jurisdiction, or of any want of concurrence, see s. 70, the Conv. Act, 1881, and p. 1187, infra.
Order for sale not now invalidated as against a purchaser.
Certain difficulties which arose under the Act of 1868 as to persons under disability were remedied by the 6th s. of the
Persons under disability; s. 6 of Act of 1876.
Act of 1876, which provides that, in an action for partition, a request for sale may be made, or an undertaking to purchase given, on the part of a married woman, infant, person of unsound mind, or person under any other disability, by the next friend, guardian, committee in lunacy (if so authorised by order in lunacy), or other person authorised to act on behalf of the person under such disability, but the Court shall not be bound to comply with any such request or undertaking on the part of an infant, unless it appear that the sale will be for his benefit.
With reference to the construction and practice under this s., it must, in the first place, be observed that it applies only to cases within the Act of 1868, and therefore gives the Court no jurisdiction to order a sale at the request of infants where, before that Act, a decree for partition could not have been made, e.g., where the estate was liable to be divided into an unascertained number of shares (x). Secondly, the words of the s. are not to be construed reddendo singula singulis, as was held in one case by Malins, V.-C. (y). And accordingly, the guardian, to make the request on behalf of an infant, need not be a testamentary guardian or one appointed by the Court, but may be merely the guardian ad litem (z). So, too, a person of unsound mind not so found may, under this s., be plaintiff by his next friend in an action instituted for the purpose of obtaining a sale (a). As regards a married woman consenting to or requesting a sale of her real estate under this s., the effect of the Act is to put her in the same position as if she had converted the property by an acknowledged deed (b). Hence the Court is very particular that her consent shall be fully proved; and for this purpose there should be a request in writing signed by the married woman, authorising and requesting her solicitor to instruct counsel to ask for a sale (c). Of course, the provisions of this s. only apply to those cases where the married woman's share is neither her separate property, nor affected by the M. W. P. Act, 1882; in either of which cases she can deal with it as a, feme sole.