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.
Where all parties not before the Court.
(q) See Mildmay v. Quiche, (1875) 20 Eq. 537.
(r) S. C.
(s) Seton, 6th cd. 1878, 1879.
(t) Powell v. P., (1874) 10 Ch. 130; 44 L. J. Ch. 122; Milthnay v. Quiche, sup.
(u) Rawlinson v. Miller, (1875) 1 Ch. D. 52 ; 46 L. J. Ch. 252 ; and the Conv. Act, 1881, 8. 70, would seem to be a bar to such an objection by a purchaser ; see Re Hall-Dare,
(1882) 21 Ch. D. 41 ; 51 L. J. Ch. 671; and inf. p. 1187.
(x) Gilbert v. Smith, (1876) 2 Ch. D. 686 ; 45 L. J. Ch. 514.
(y) Burnell v. B., (1879) 11 Ch.D. 213; 48 L. J. Ch. 412.
(z) Fitzwater v. Waterhouse, (1882) 52 L. J. Ch. 83 ; and Pearson, J., dispensed with any affidavits verifying the statement of claim: Ripley v. Sawyer, (1886) 31 Ch. D. 494; 55 L. J. Ch. 407.
The Court may, instead of ordering a sale, adopt and confirm a previous contract for sale entered into by the parties, where they are all before the Court, and the title is proved (b) ; or it may order a partition of part of the property and a sale of the rest (c) ; but where one part-owner desired a sale, and others a partition, the Court held that it had no jurisdiction to order a sale by the one part-owner to the others, and then to decree a partition (d). Where a married woman was entitled to a part for her separate use but with a restraint on anticipation, the Court has got rid of the restraint by making her costs a charge on her share of the estate, and ordered a sale (e); but it has refused to order a sale reserving the minerals (f).
Court may-adopt and confirm previous contract
A tenant in common, claiming partition, is entitled, whether charged with occupation rent or not, to have in the judgment for partition an inquiry as to expenditure properly made in permanent improvements to the property, during the co-ownership, and the inquiry should be reciprocal (g).
Tenant in common: claim for improvements.
The Court is, by s. 10 of the Act of 1868, empowered to "make such order as it thinks just respecting costs up to the time of hearing"; and it is now the settled practice to order the entire costs, both up to and subsequently to the hearing, to come out of the estate (h) and to be borne by the parties in proportion to their interests (i), unless the Court is of opinion that there are special circumstances to which the rule must yield (k). The costs will be taxed only as between party and party, unless the parties consent to their being taxed as between solicitor and client (/). The costs of a summons taken out to determine the rights of the defendants among themselves, pending the usual inquiries in chambers, will have to be borne by the share of the defendants, and will not come out of the whole estate (m).
(a) Sykes v. Schofield, (1880) 14 Ch. D. 629 : 49 L. J. Ch. 833.
(b) Grove v. Comyn, (1874) 18 Eq. 387.
(c) Roebuck v. Chadebert, (1869) 8 Eq. 127 ; 38 L. J. Ch. 488 ; Allen v. A., (1873) 21 W. R. 842 ; 42 L. J. Ch. 839 ; and see Pennington v. Dalbiac, (1870) 18 W. R. 684, where it was left to he settled in chambers which part should be sold, and which partitioned : Seton, 6th ed. 1870.
(d) Williams v. Games, (1875) 10 Ch. 204.
(e) Fleming v. Armstrong, (1864) 34 Beav. 109 ; and see Siggs v. Dorkis, (1872) 13 Eq. 280 ; 41 L. J. Ch. 150.
(f) Lome v. Stoney, (1876) W. N, 141.
(g) Kenrick v. Hountsteven, (1899) 48 W. R. 141, approving Williams v. W., (1899) 68 L. J. Ch. 528 ; 81 L. T. 163, which see for form of judgment.
(h) Osbom v. O., (1868) 6 Eq. 338; Miller v. Harriott, (1868) 7 Eq. 1 ; Simpson v. Ritchie, (1873) 16 Eq.
The Court will only allow, as a general rule, one set of costs out of the entire proceeds of sale in respect of each share of the property, and, where a share is incumbered, the first mortgagee receives the full benefit of the costs allowed in respect of his share (n).
We may here refer to the power of the Court to direct a sale of lands delivered in execution to a judgment creditor under the 27 & 28 Vict. c. 112 (o) ; and to the provisions of s. 25 of the Conv. Act, 1881 (p), under which the Court may now direct a sale instead of foreclosure.
103 ; 42 L. J. Ch. 543 ; Gilbert v. Smith, (1878) 8 Ch. D. 548, 558; 11 ib. 78; Graham v. Lord Clinton, (1899) 81 L. T. 717.
(i) Cannon v. Johnson, (1870) 11 Eq. 90 ; Thompson v. Richardson, (1872) 6 I. R. Eq. 596 ; Ball v. Kemp-Welch, (1880) 14 Ch. D. 512; 49 L. J. Ch. 528 ; and the rule is the same where partition, and not sale, is asked for : Bowes v. Marq. of Bute, (1879) 27 W. R. 750.
(k) Wilkinson v. Joberns, (1873) 16 Eq. 14, 17 ; 42 L. J. Ch. 663 ; Simpson v. Ritchie, (1873) 16 Eq. 103 ; Porter v. Lopes, (1877) 7 Ch.D.
358, 367 ; Corp. of Huddersfield v. Jacomb, (1874) W. N. 80.
(/) Ball v. Kemp-Welch, sup. As to solicitors' costs in reference to the conveyance in a partition action, see Humphreys v. Jones, (1885) 31 Ch. D. 30; 55 L. J. Ch. 1.
(m) Jennings v. Foster, (1884) W. N. 200.
(n) Cotton v. Banks, (1893) 2 Ch. 221 ; 62 L. J. Ch. 600 ; not following Belcher v. Williams, (1890) 45 Ch. D. 510 ; 63 L. T. 673 ; Re Vase, (1901) 84 L. T. 761.
(o) See inf. pp. 1204 et scq.
(p) See inf. pp. 1156 et seq.