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.
(s) Re Eyre's S. E., (1858) 4 K. &
J. 268 ; Seton, 6th ed. 354 ; but see Re Sheffield's S. E., (1876) W. N. 152.
(t) R. S. C, 0. LV. r. 34. As to the omission of these words where a party is in default, see Baxendale v. Lucas, (1895) W. N. p. 30.
(u) Hodgson v. Shaw, (1847) 11 Jur. 95 ; 16 L. J. Ch. 56.
(x) O. LI. r. 3.
(y) Harvey v. Brooke, (1853) 17 Jur. 1.
Upon the sale by the Court of leaseholds of a testator his executor, although he have not been in possession, is entitled to an indemnity against the rent and covenants (b), by the covenant of the purchaser, and also by a retainer of part of the assets, or by a security from the legatees to refund (c). And it would seem that a sum which had been set apart to answer such liabilities, will not be paid out without notice to the landlord (d).
Executor of lessee entitled to indemnity from purchaser of leaseholds.
The purchaser may require the concurrence of all persons having a legal title to, or remedy against, the property, although not parties to the action (e) ; except, perhaps, a dowress, whose dower is barred by a term or equitable jointure (/), or a person who claims in respect of an estate held merely in trust, or by way of mortgage (g) ; as also of equitable claimants or incumbrancers who are not parties to the action (//); but cannot, it would seem, "if he acquire the legal estate, require at the seller's expense, a release from equitable incumbrancers whose demands have been satisfied by the Court" (i) ; nor does it, in fact, appear, that he can insist on the concurrence, even at his own expense, of parties having mere equitable interests who are bound by the decree (k); and the Court has refused to make, under the T. Act, 1850, an order purporting to vest such an interest in the purchaser (/). To avoid disputes the purchaser is frequently bound by condition not to require the concurrence of owners of equities which are bound by the order (ll). If the decree directs all proper parties to convey, and a party to the action, or creditor coming in under the decree (m), whom the judge considers a proper party to the conveyance, refuses to concur, the purchaser's application should be against him (and not against the plaintiffs) that he do convey (n). It appears that a mortgagee, who has proved his debt, may be required to receive his money and to concur without the usual six months' notice (0) ; but in a later case, Lord Eomilly stated the rule to be that a mortgagee consenting to a sale is entitled to six months' interest from the date of his consent, if paid within that period; but if paid afterwards, then interest down to the time of actual payment (p). Where the conveyance to the purchaser depended in some measure upon a resettlement, which was impeached by annuitants who were parties to the suit, they were ordered to join in the conveyance without prejudice to their rights against the purchase-money (q).
Purchaser only requires the legal estate and to see that the equities are bound by the order.
(z) Pollock v. Rabbits, (1882) 21 Ch. D. 466.
(a) S. C.
(b) Cochrane v. Robinson, (1840) 11 Si. 378 ; 10 L. J. N. S. Ch. 109 ; see, too, Garratt v. Lancefield, (1856) 2 Jur. N. S. 177 ; Bean v. Allen, (1855) 20 Beav. 1 ; Brewer v. Pocoek, (1857) 23 Beav. 310; Waller v. Barrett, (1857) 24 Beav. 413; 27 L.J. Ch. 214.
(e) Dobson v. Carpenter, (1850) 12 Beav. 370; Smith v. S., (1854) 2 Eq. R. 727.
(d) Bauling v. Marriott, (1861) 7 Jur. N. S. 5G5; but see King v.
Maleott, (1852) 9 Ha. 692.
(e) See and consider Craddock v. Piper, (1844) 14 Si. 310; 19 L. J. Ch. 107.
(f) See sup. pp. 538, 539.
(g) Sap. p. 539.
(h) Piers v. P., (1837) 1 D. & Wal. 265 ; Rolleston v. Morton, (1841) 1 D. & War. 171, 177; Grey Coat Sosp.v. Westminster Commrs., (1857) 1 D. & J. 531 ; 27 L. J. Ch. 52 ; and see Knight v. Pocock, (1857) 24 Beav. 436; 27 L. J. Ch. 297.
(i) Sug. 6th ed. 107, citing Keatinge v. K, (1843) 6 Ir. Eq. R. 43 ; and Webber v. Jones, ib. 142.
Party refusing may be ordered to convey.
(k) Webber v. Jones, sup. ; Cole v. Sewell, (1850) 17 Si. 40; and see Thompson v. Raine, (1873) 28 L. T. 362; Re Williams' S. E., (1852) 5 D. & S. 515 ; 21 L. J. Ch. 437 ; Cottrell v. C, (1866) 2 Eq. 330 ; 35 L. J. Ch. 466.
(I) Re Williams' Est., (1852) 5 De G. &S. 5!5; 21 L. J. Ch. 437 ; but see Lechmrre v. Clamp, (1862) 31 Beav. 578 ; 30 L. J. Ch. 651 ; 32 ib. 276, where a mortgagor who could not be found was declared to be a trustee, and a vesting order made.
(ll) Wolst. Prec. 6th ed. 56. And see Conv. Act, 1881, s. 70; Mostyn v. M., 1893, 3 Ch. 376. But an interest will not be bound if from the order it appears that such was not the intention of the Court: Jones v. Barnett, 1899, 1 Ch. 611; 1900, 1 Ch. 370; s. 70 does not help in this case.
(m) See Usher v. Scanlan, (1841) Fl. & K. 243. A direction that the vendor shall convey is tantamount to a direction that he and all necessary parties shall convey: Minton v. Kir-wood, (1868) 3 Ch. 614; and see R. S. C. 1883, O. LI. r. 3.
(n) Stilwell v. Mellersh, (1839) 4 M. & C. 581 ; 20 L. J. Ch. 356.
(o) Matson v. Swift, (1841) 5 Jur. 645.
(p) Day v. D., (1862) 31 Beav. 270; 31 L. J. Ch. 806.
(q) Sullivan v. S., (1860) 28 Beav. 102 ; but see Thompson v. Raine, (1873) 28 L. T. 362.
An order to convey was refused, as against a woman married before the M. W. P. Act, 1882, came into operation, in respect of her real estate not settled to her separate use (r); but it will be made against an infant (s) ; and if he refuse to execute, an attachment may issue against him (t).
Against whom order will be made.
But the usual course, where a party to an action refuses to execute, is to treat him as a trustee within the T. Acts for the time being in force (u), and to obtain a vesting order, or the appointment by the Court of some other person to convey. The law governing this subject now is contained in ss. 30 et seq. of the T. Act, 1893, which already have been dealt with (x).
Party refusing1 may be declared trustee.
And now, too, by the Judicature Act, 1884, s. 14, where any person neglects or refuses to comply with a judgment or order directing him to execute any conveyance, the Court may, on such terms and conditions as may be just, order that such conveyance shall be executed by such person as the Court may nominate for that purpose; and the conveyance so executed will have the same effect as if the person originally directed to execute it had done so (y).
Judicature Act, 1884, s. 14.
(r) Jordan v. Jones, (1846) 2 Ph. 170 ; but in such a case the married woman may now be declared a trustee, and a vesting order obtained under the T. Act, 1893.
(s) As to conveyances on sales in creditors' actions, see 1 Will. 4, c. 47, ss. 11, 12, amended by 2 & 3 Vict. c. 60, and 11 & 12 Vict. c. 87; and see Penny v. Pretor, (1838) 9 Si. 135 ; Walker v. Aston, (1844) 14 Si. 87; Seming v. Archer, (1814) 7 Beav. 515 ; (1845) 8 ib. 294 ; 14 L. J. N. S. Cli. 169. An infant tenant in tail may bo ordered to convey: Radcliffe v. Eccles, (1836) 1 Kc. 130 ; Penny v. Pretor, sup. ; it is doubtful whether a conveyance by a person appointed to convey in place of infant would have the same effect: Wood v. Beetlestone, (1854) 1
K. & J. 213. In an action by a registered judgment creditor to realize his security, a tenant in tail in possession may be directed to execute a disentailing assurance : Lewis v. Buncombe, (1855) 20 Beav. 398. Quacre, whether under the
I Will. 4, c. 47, and the 3 & 4 Will. 4, c. 104, the Court can sell copyholds : see Branch v. Browne, (1848) 12 Jur. 708 ; 17 L. J. Ch. 435.
(t) Thomas v. Gwynne, (1815) 8 Beav. 312 ; and see Re Beech, (1819) 4 Mad. 128.
(u) Sec sup. pp. 606 et seq.
(x) Sup. Ch. XII.
(y) See Re Edwards, (1885) 33 W. R. 578 ; Howarth v. H., (1886)
11 P. D. 95; 55 L. J. P. 49. The words of the s. seem wide enough to