This section is from the book "A Treatise On The Law Of Vendor And Purchaser Of Real Estate And Chattels Real", by T. Cyprian Williams. Also available from Amazon: A treatise on the law of vendor and purchaser of real estate and chattels real.
Where the title to any land sold depends on an order for sale made by the Court (m), the principal points, on which the purchaser's advisers must satisfy themselves, are these: first, that the whole legal estate in the land has been conveyed to the person asserting title under the order, or will be conveyed to the purchaser, either by the assurance of all persons interested therein or by vesting order; secondly, that the order for sale was duly made and properly carried out, or if not, that the defect is one which may be disregarded in reliance on sect. 70 of the Conveyancing Act of 1881 (n); and thirdly, that all persons interested in the property sold for any equitable estate or interest were or are either parties to or otherwise bound by the proceedings in which the order for sale was made; or if not, that all estates or interests of all persons not so bound have been or will be expressly assured to the person asserting title under the order or to the purchaser. The jurisdiction of the High Court of Justice to order a sale of land (o) is either derived from the general equitable or the statutory jurisdiction of the Court of Chancery transferred by the Judicature Acts to the High Court of Justice and for the most part exercisable in the Chancery Division (p), or else has been expressly conferred on the High Court since the Judicature Acts, so that such orders have been made in the past either by the Court of Chancery or by the High Court acting as a Court of Equity. When such an order is made, it binds the equitable interests in the land sold of all persons, who are either parties to or bound by the proceedings in which the order is made (q). There is therefore no need, when land is sold in pursuance of such an order, for any such persons to join in the conveyance to the purchaser; and where there are no other equitable interests existing in the property sold, all that is necessary is that the legal estate should be duly conveyed to him (r). But an order for the sale of any land does not affect either the legal or the equitable interests therein of any persons who are neither parties to nor bound by the proceedings in which the order was made; so that if any such interests should be outstanding, a good title is not made (s). As a rule, a purchaser of land under an order for sale made by the Court is entitled to require that the legal estate shall be duly conveyed to him (t): though the Court of Chancery, in the old days before power had been given by statute to dispose of estates vested in infants as trustees (u), would oblige a purchaser under a decree for sale of lands vested at law in an infant to accept the equitable title conferred by the order only, as the purchaser had notice from the record of the infancy, and therefore of the impossibility of conveyance before the infant attained full age (x). The occasion for this exception was removed by statutes of Will. IV. (y); and by the Trustee Acts, 1850 and 1852 (z), now replaced by the Trustee Act, 1893 (a), power was given to the Court, where a complete assurance of the whole legal estate in any lands sold under its order could not be obtained by reason of the disability of some person interested therein or for other causes, of effecting the conveyance of the legal estate by an order vesting the same in the purchaser. Since this jurisdiction was conferred, it has been the regular practice to resort thereto (b); and where lands have been sold under an order of the Court and any legal estate or interest therein cannot be well assured by the person entitled thereto, whether by reason of his disability or of the same having been limited to some unborn or unascertained person or persons, the purchaser's title will not be complete unless an order vesting the same in him has been duly obtained (c). As regards the assurance to the purchaser of lands sold under an order of the Court of the equitable estate therein, we have seen (d) that the order for sale binds the equitable interests of all persons who are parties to or otherwise bound by the proceedings in which the order was made, and there is no need for any other assurance of such interests to be made. So that where any equitable estate has been limited to any unborn or unascertained person, there is no occasion to obtain an order expressly vesting the same in the purchaser; the order for sale is sufficient for this purpose. But in order to bind the equitable interests of persons intended to be bound by the proceedings, it was formerly necessary that the order for sale should be duly made, that is, made on a right exercise of some jurisdiction in that behalf (e) vested in the Court; and if this were not the case, the Court would not oblige the purchaser, if he took the objection, to accept the title, and if he did accept the title, it appears that he would not have been protected by the order (f). And the same result would follow, if the sale were not properly carried out according to the order, although the order itself were valid (g). Other irregularities in the proceedings, in which the order for sale was made, would not, as a rule, affect a purchaser under the order (h). But, as the order did not affect the interests, whether legal or equitable, of any persons who were neither parties to nor otherwise bound by the proceedings, it was always necessary for the purchaser to see that all persons interested in the property sold were so bound, or else that he would obtain an express conveyance from them of their respective interests (i) . By the Conveyancing Act of 1881 (k) an order of the Court under any statutory or other jurisdiction shall not as against a purchaser be invalidated on the ground of want of jurisdiction, or want of any concurrence, consent, notice, or service, whether the purchaser has notice of any such want or not. The dicta, if not the decisions, upon the construction of this enactment have been somewhat conflicting (l); and it is not easy to state its precise effect. But it is to be observed that it purports to cure one defect of title only, the invalidity of an order of the Court, whether for sale or otherwise; and that it does not appear to extend the effect of a valid order so as to bind any persons whose interests would not otherwise have been affected thereby (m). The enactment appears to protect purchasers from disturbance by persons who might otherwise have ejected them or recovered against them on the ground that an order of the Court forming part of their title was invalid for want of jurisdiction or for any other cause therein mentioned. And it has been held that purchasers of land under an order for sale made by the Court are no longer at liberty to object to the title on the ground that the order is invalid for any of such causes (n). But the enactment does not protect a purchaser from disturbance by persons whose rights or interests were never intended to be affected by the order; it has not the effect of conferring on a purchaser under an order for sale a good title as against all the world (o). And where the order, being valid, is not properly carried out, the enactment does not appear to have any application. The duties of the conveyancer advising a purchaser of land, to which the title depends upon an order for sale made by the Court, remain, therefore, as above stated (p).
 
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