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.
Persons selling under the Clauses Acts must, of course, sell within such limits (if any) as to time as are prescribed by the Act under which they derive their powers. The L. C. C. Act, 1845, imposes no restriction as to time upon the purchase of lands by agreement; though it limits the time for compulsory purchases by the company to a period of three years from the passing of the special Act, unless some other period be therein prescribed (h). A railway company cannot, it seems, exercise its compulsory powers in respect only of part of the proposed scheme when it is evident that the entire line cannot be completed, or when the original undertaking is found impracticable (i). It is-sufficient if the company, within the limited period, give notice (k) of their intention to take the lands, and summon a jury to assess their value (l); or merely give notice and take possession, in which latter case it rests with the landowner to have the value ascertained (m); or give notice and deliver the usual bond (n), or even merely give notice (o); but if, after giving notice, they neglect to take the necessary steps for summoning a jury, the issue of the warrant to the sheriff may be enforced against them by a mandamus (p) under R. S. C. 1883, 0. 53, r. 1 (q). In the G. W. Ry. Co. v. Midland Ry. Co. (r), it was held that where an Act of Parliament which authorises a company to construct a railway provides that if it is not completed within a certain period the powers by the Act given to the company for making and completing the railway are to cease, such a provision applies only to powers which the company could not exercise but for the Act; and that, accordingly, if the company, before the expiration of the time limited, have acquired the right to use the land, they can make the railway under their Common Law powers, notwithstanding the expiration of the period limited.
Sales under the L. C. C. Act, 1845.
(h) S. 123.
(i) See Gray v. Liverpool and Bury R. Co., (1846) 9 Beav. 391; Cohen v. Wilkinson, (1849) 1 M. & G. 481; and see generally on the subject, Tiverton R. Co. v. Loosemore, (1884) 9 A. C. 480; 53 L. J. Ch. 812; and G. W. R. Co. v. Midland R. Co., 1908, 2 Ch. 455; ib. 644.
(k) See as to notice, Browne & Theobald on Rlys. 4th ed. 147 et seq.
(l) Brocklebank v. Whitehaven R. Co., (1847) 15 Si. 632; and see R. v. Birmingham R. Co., (1850) 15 Q. B. 647; 19 L. J. Q. B. 453.
(m) Doe v. N. S. R. Co., (1851) 16 Q. B. 526; 20 L. J. Q. B. 249; Doe v. Leeds R. Co., (1851) 16 Q. B. 796; 20 L. J. Q. B. 486; Inge v. B. W. & S. V. R. Co., (1853) 3 D. M. & G. 658.
(n) Sparrow v. O. W. & W. R. Co., (1852) 2 D. M. & G. 94; 21 L. J. Ch. 731.
(o) Lord Salisbury v. G. N. R. Co., (1852) 17 Q. B. 840; 21 L. J. Q. B. 185; Edinburgh R. Co. v. Leven, (1852) 1 Macq. 284.
A contract by an existing company in anticipation of the special Act, which subsequently confers the power of sale, is binding on the company (s); but a company cannot, after incorporation, ratify contracts purported to be made on its behalf previous to its incorporation (t), though it may enter into a, new contract in similar terms (w)
When a company can ratify contract-.
Greater latitude as to the time for selling has been allowed to executors selling under a power of 6ale implied from a charge of debts, than that allowed to ordinary trustees for sale. Thus, in Sabin v. Heape (x), though twenty-seven years had elapsed 6ince the testator's death, and nine years since the death of the executor, it was held that the executors of the original executor could make a good title under the implied power of sale; and further, that they were not bound to answer the inquiry of the purchaser, whether any debts . still existed which rendered a sale necessary. In Re Tanqueray-willaume and Landau (y), it was held that where twenty years have elapsed since the death of the testator, his debts may be presumed to have been paid or become statute barred; and that in such a case a purchaser should require evidence that debts of the testator remain unpaid. This twenty years rule does not apply to a sale of leaseholds (z).
Executors jelling under implied power of sale.
(p) Fotherby v. Metrop. R. Co., (1866) L. R. 2 C. P. 188; 36 L. J. C. P. 88.
(q) Replacing s. 68 of the C. L. Procedure Act, 1854. See Browne & Theobald on Rlys. 4th ed. p. 157.
(r) 1908,2 Ch. 455; ib. 644; 1909, A. C. 445.
(s) E.c. R. Co. v. Hawkes, (1855) 5 H. L. C. 331; 24 L. J. Ch. 601.
(t) Kelner v. Baxter, (1866) L. R. 2 C. P. 174; 36 L. J. C. P. 94; Re Empress Engineering Co., (1880) 16 Ch. D. 125; Re Northumberland Hotel Co., (1886) 33 Ch. D. 16; Re English and Colonial Produce Co., 1906, 2 Ch. 435. Cf. Companies Act, 1929, s. 331.
(u) As to the personal liability, of those who profess to contract for the company, see Kelner v. Baxter, slip:; Scott v. Lord Ebury, (1867) L. R. 2 C. P. 255; 36 L. J. C. P. 161; Re Empress Engineering Co., (1880) 16 Ch. D. 125; Re English and Colonial Produce Co., 1906, 2 Ch. p.' 440: "a solicitor must act on the instructions Of some client, and if the promoter instructs him he must pay," per Romer, L. J.
(x) (1859) 27 Beav. 553; 29 L. J. Ch. 79.
The law on the subject of the implied power of sale possessed by legal personal representatives in respect of real estate, became of less importance after the passing of the L. ,T. Act, 1897, and its importance has been still further reduced by the A. E. Act, 1925, under which a personal representative's power of 6ale is independent of the existence of debts. By s. 33, sub-s. (1), of that Act, on the death of a person intestate as to any real or personal estate, such estate is to be held by his representatives upon trust for sale and conversion for such a period as the personal representatives, without being liable to account, may think proper, and so that any reversionary interest be not sold until it falls into possession, unless the personal representatives see special reason for sale. Sub-s. (7) provides that where the deceased leaves a will, the section is to have effect subject to the provisions of the will; but whether the deceased leaves a will or not, the terms of sub-s. (1) appear to limit the effect of the section to such part or parts of the estate as the deceased has not by his will effectually disposed of.