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.
Practice under the s.
Persons of unsound mind.
(z) Miles v. Jarvis, (1883) 50 L. T. 48.
(y) Platt v. P., (1880) 28 W. R. 533.
(z) Rimington v. Hartley, (1880) 14 Ch. D. 630.
(a) Porter v. P., (1888) 37 Ch. D. 420.
(b) Wallace v. Greenwood, (1880) 16 Ch.D. 362, 367; 50 L. J. Ch.289; and see Fowler v. Scott, (1871) 19 W. R. 972. If money is in Court representing the share of a married woman in an estate sold in a partition action, hut without her consent or request, she may on being separately examined elect to take the proceeds as money, and not as land: Standering v. Hall, (1879) 11 Ch. D. 652 ; 48 L. J. Ch. 382 ; Re Robins,
Where the committee of a lunatic, entitled as tenant in tail to three-fourths of an estate, applied in lunacy to be authorised to request a sale, the petition was referred to the Master; and on his reporting that a sale would be most beneficial, a sale was directed, and the committee ordered to join; but the proceeds were directed to be paid into Court, to remain subject to the same trusts as the estate sold was formerly subject to (d).
By an apparent oversight the Act of 1868 applied only where there was a suit for partition, so that, as a matter of form, it was still necessary that the bill should pray for a partition, and in the alternative for a sale under the Act (e). This defect has been remedied by s. 7 in the later Act, which provides that, for the purposes of the Act of 1868, and of the Act of 1876, an action for partition shall include an action for sale and distribution of the proceeds; and that, in an action for partition, it shall be sufficient to claim a sale and distribution of the proceeds, and it shall not be necessary to claim a partition.
Act of 1868 applied only where suit for partition.
The defect remedied by-Act of 1876.
A sale may be ordered at the hearing if all the parties interested (f) are before the Court, and the title is then proved (g) or admitted (h). In such cases no preliminary inquiries need be ordered; but any consequential or necessary inquiries may be directed in the same order which directs the sale (i). But the title should not be proved in Court in the first instance, unless the property is small and the title simple (k). As a general rule, the Court will not make an immediate order for sale, but an inquiry will be directed to ascertain who are the parties interested; but in simple cases, where the value of the property is small, the Court may at the trial order an immediate sale, upon being satisfied as to the persons interested (/). If all the persons interested are parties, but their titles are not proved at the hearing, an order for sale may be made, subject to the Master certifying that all persons interested are before the Court (m). But until all parties interested are before the Court, or are presumed by the Court to be dead (n), or have been served with notice of the judgment, or the Court has, under the Act of 1876 (o), dispensed with service upon them, the Court cannot order a sale. If it is uncertain whether some of the interested persons are out of the jurisdiction, an inquiry may be directed as to the parties interested, and in what shares, and whether such persons are out of the jurisdiction (})).
Sale when ordered at the hearing.
(1879) W. N. 95; and the separate examination will not be dispensed with even where the fund is under 200/. : Topham v. Burgoyne, (1879) 49 L. J. Oh. 213.
(c) Grange v. White, (1881) 18 Ch. D. 612 ; 50 L. J. Ch. 620 ; Wallace v. Greenwood, sup.; and see Croohes v. Whitnorth, (1878) 10
Ch. D. 289, which must probably be regarded as overruled.
(d) Be Pares, (1879) 12 Ch. D. 333.
(e) Teall v. Watts, (1871) 11 Eq. 213 ; 40 L. J. Ch. 176 ; Holland v. H., (1872) 13 Eq. 400 ; and see contra, Aston v. Meredith, (1871) 11 Eq. 601 ; 40 L. J. Ch. 241.
(f) An annuitant is not a necessary party to a partition action ; but the order will contain a declaration that it is without prejudice to the rights of the annuitant : Toole v. P., (1885) W. N. 15.
(g) Zees v. Conlton, (1875) 20 Eq. 20 ; 44 L. J. Ch. 556.
(h) Burnett v. B., (1879) 11 Ch.D. 213; 48 L. J. Ch. 412; Willis v. W., (1889) 61 L. T. 610; 38 W. R. 7 ; q.v. for form of order, followed in Crook v. C, (1890) W. N. 26.
(i) Burnett v. B., sup.
(k) Hawkins v. Herbert, (1889) 60 L. T. 142 ; 37 W. R. 300 ; Be Sted-man, (1888) 58 L. T. 709.
(t) Wood v. Gregory, (1889) 43 Ch. D. 82 ; 59 L. J. Ch. 232 ; Be Stedman, sup, explained.
(m) Senior v. Hereford, (1876) 4
Ch. D. 494. In such a case the judgment must not be prefaced with a statement that in the opinion of the Court a sale will be more beneficial than a partition : Be Hardiman, (1880) 16 Ch. D. 360 ; 50 L. J. Ch. 272.
(n) Jackson v. Lomas, (1875) 23 W. R. 744 ; Bawlinson v. Hitter, (1875) 1 Ch. D. 52; 46 L. J. Ch. 252.
(o) Sap. p. 1142.
(p) Silver v. Udell, (1869) 9 Eq. 227 ; 39 L. J. Ch. 118 ; where James, V.-C, intimated that if they had been out of the jurisdiction he would have made an immediate order for sale; and see Teal I v. Watts, (1871) 11 Eq. 213 ; 40 L. J. Ch. 176.
If all the persons interested are not before the Court, it was held, under s. 9 of the Act of 1868, that an inquiry must first he directed, and that an order for sale could only he made on further consideration (q) ; although the consideration need not be in Court, but might consist of an application in chambers for a sale, after certificate that all persons interested were either parties to the cause, or had been served with notice of the judgment (r). But it seems that now it is not absolutely necessary to reserve further consideration, but that an immediate order may be made, subject to the result of the inquiries (s). Where, however, by the decree a sale is directed, if, on inquiry, it be found that a sale will be more beneficial than a partition, and that all the parties interested are before the Court, the sale cannot be made until the Master has made his certificate (t). But where in fact all the parties interested were before the Court, and a title could have been made independently of the Act, a purchaser was not allowed to get off his bargain on the technical objection that there had been no certificate to that effect (u). Where the defendant admits the plaintiff's title, the latter may on motion under R. S. C. 1883, 0. XXXII. r. 6, at once obtain an order for the usual inquiries as to the persons entitled (x). And, in the same way, an order for sale may be made upon admissions in the pleadings (y), or in default of a defence being put in, even where the defendant is an infant, and the guardian ad litem fails to deliver one (s). Where the action is brought in a District Registry, the usual inquiries may be made there; but the order for sale can only be made on an application in chambers (a).