'^WWDKVSOl^^ VAi(l.V\iHflH\V ■njjuiviiaiiiiv.^ '^OvkHVHaiH>^^ -I -< ^^•UBRARYGc. 5 1 1/-^ ^ Jw^ %HnY3J0'> >&Aavaan#' § 1 li— ' ^ ^0FCAIIF0% ^MEUNIVER5/A o <^3HVS0\^ %a3AINfl]WV mmi^s//. <^DNVS01=^ o C3 in ,5,WEUNIVraS/A a: ^t-UBRARY''^iHVij|fllV^V^^ y^iHwugnivN > ^. ^tUBRARYiJJc. 5^UBRARYCc^ aWEUNIVERS'//) ^lOSANCElfj-^ O ^illVDJO'^ '^&Aavaaiii^ ^TiuoNvsoi^ < m ^ 1 ir^ ^ ^lOSANCElG^ 5 1 &Aiiva8n# ^5J(\EI]NIVER% OQ ^lOSANCEl^ ^^UQNVSOl'^ %lGAlNft•ay^^ ^OFCAllFOi?^ % i 'Or G i vvlOSANCElfx> CO .5MEUNIVERS/A ^fiOJllVDJO^ '^^OJIlVJJO't^ %130KVS01=^ S ^ /■W*^ ^VOSANCElfT* aOFCAUF0% .<,OFCAl(FO% "^/iaaAiNHii^^^ ^^Aavaaiv^^J^ *^^ ^\MEUNIVERy/^ ^lOSANCEia. lanii'^ ^J0^ "^/JUDHVSOV^ ^UTlNJ THE PAETITION ACTS, 1868 & 1876. M°i^\/I3 THE PARTITION ACTS, 1868 & 1876; A Mamtal of the Law of Partition and of Sale in lieu of Partition: WITH THE DECIDED CASES, AND ANAPPENDIX CONTAINING DECEEES AND OKDERS. BY W. aREGORY WALKER, OF Lincoln's inn, esq., barrister- at-law ; b.a., and late SCHOLAR OP EXETER COLLEGE, OXFORD. LONDON: STEVENS & HAYNES, BELL YAED, TEMPLE BAR. 1876. LONDON : PBINTED BY WILLIAM CLOWES AND SONS, STAMFORD STREET AND CHAUING CROSS. T PREFACE. The great popularity of the Partition Act, 1868, and the recent publication of the Partition Act, 187(3, materially amending the earlier Act, suggested an edition of these Statutes which should treat them more comprehensively than is possible in any book dealing with the entire practice of the Chancery Division. I have brought together (I believe) all the reported cases which have been decided under the Act of 1868. In nearly all of these cases a sale was asked for; but, although (having regard to the provisions of that Act) the Coui't does not often now decree partition, yet in proper cases it may and will do so. For this reason, and also because the practice under the Acts is made de- pendent in some important respects upon the old law, it seemed necessary to prefix so much of the latter as may be of present practical value. In giving the efiect of the cases, I have not confined 7^ Il4l VI PREFACE. myself to the lieadiiotes given in the Reports, but have endeavoured to extract for myself from the judgments delivered the real pith of the decisions. The copies of decrees and orders given in the Appendix may, I trust, be relied on for accuracy. I have myself taken them from the Registrars' books kept in the Report Office. W. Gregory Walker. 22, Old Buildings, Lincoln's Inn. November, 1876. INDEX TO CASES CITED. A. PAGE Agar «. Fairfax 8, 10, 37 Aliens. Allen .. •• 15,31,65 Allen V. Lewis 27 Ames V Comyns 2 Arnold V. Dixon . . . • • • • • ^3 Aston V. Meredith . . • ■ • • 14^. 24 B. Bailey v. Hobson 33 Baker f. Wait 40,41 Baring v. Nash 2, 4, 8 Basnett v. Moson 21, 69 Birks u Silverwood 42 Bloomar, lie 2^ Bolton V. Bolton 35 Bowra v. Wright 22 Brook V. Hertford 5 Brown 1). Eye 41 Buckingham v. Sellick 25 Bull v. Bull •■ •• 31 Burt V. Hellyar 36 Burton v. Jcux ^ C. Cannon v. Johnson 38 Cartwright v. Pettus 13 Cart Wright t' Pulteney •• •• 8 Cass V. Wood "^^ Cattley V. Arnold 3 Chubb V. Pcttiphcr • - - • 24, 60 Clarendon, Earl of, v. Hornby • • 3 Cornish V. G est ' D. Davey v. Wietlisbach ■ • • • 14, 36 Dicks i;. Batten .. ■• •■ 31,63 Dodds V. Gronow 27 Domville t'. Berrington .. .. 20 Drinkwater v. Eatclifte 14, 15, 10, 19 E. Evans t). Bagshaw 5,6 F. Fallr. Elkins ^ Fleming v. Xrmstrong . . . • 9, 15 Foster v. Foster 34 Fowler v. Scott 33 France r. France 14 G. Gaskell v. Gaskell 5 Giflard v. Williams 36 Gilbert t'. Smith 26 Graham v. Cole 33, 38 Grandin v. Haines 41 Griffies r. G riffles ..' 10 Grove i'. Comyn 14,31 Groves v. Carbert 32 H. Halfhide v. Eobinson Hametheson r. Tounstall .. •• 12 Harper V. Bird 31, ,32 Hayward r. Smith 24 Heaton v. Deardeu 4 Higgs V. Dorkis 14, 24 Hill V. Fulbrook 38 Hobson V. Sherwood . . . . 3, 5 Holland v. Holland 14 I Hughes V. D'Arcy 33 Hurry v. Hurry 27, 36 VIll INDEX TO CASES CITED. PAGE J. Jackson v. Lomas 27 Jope I). Morshead 1, 5 L. Landell v. Baker 37 Langdale's Estate, In re .. .. 17 Lawe V. Storey 32 Leach v. Westall 38 Lees V. Coulton . . . . 22, 26, 58 Leigh V. Edwards 15 Lester v. Alexander 31 Linford v. Gudgeon 44 Lorimer v. Lorimer 7 Lys V. Lys 11, 16 M. McGregor, Ex parle 20 Mildmay v. Quicke . . 26, 32, 54 Miller i;. Harriot .. ••. •• •• 37 Miller v. Warmiugton 6, 9 Mole V. Mansfield 3 Molyneux, i?e 22 N. North V. Guinan 2 O. Orger V. Sjiarke 9 Osborn v. Osborn 37 P. Parker v. Gerard 8 Parker v. Trigg 7, 17 Peers i;. Needham - .. 3 Pembcrton v. Barnes .. 15, 16, 17, 31 Pennington ?). Dalbiac .. 20,31,55 Peters v. Bacon 27 Picard v. Hine 45 Potter V. Waller 34 Powell V. Powell . . . . 25, 26, 30 Price V. Lloyd 13 Pryor V. Pryor 11,14 R. Rawliiison v. Miller . . 26, 27, 30 PAGE Rickards v. Rickards 9 Roebuck -y. Chadebet .. .. 31,67 Rose V. Rose 5 S. Scott V. Fawcett 8 Scotto V. Heritage 41 Shepherd ^). Churchill 22 Sherard, J?e 22 Sherrat v. Sherrat 15 Sidny v. Ranger 20 Silver «;. Udall 25 Simons t;. Mc Adam 41 Simpson v. Ritchie 38 Singleton v. Hopkins 9 Slade V. Barlow 35 Smiths. Birch 9 Steed V. Preece 33 Story V. Johnson 7 Swan V. Swan 6 T. Teall ?\ Watts .. ..14,25,27,28 Teasdale v. Sanderson . . . . 7, 8 Thomas i'. Gyles 5 Thompson ?j. Richardson .. .. 16 Thomson v. Flinn 42 Tuckfield v. Buller 4 Turner v. Morgan 8 U. Underwood v. Stewardson . . . . 31 W. Ward r. Ward 36 Warner v. Baynes 8 Whaley v. Dawson 9 Wilkinson t\ Castle 38 Wilkinson v. Jobems . . 16, 17, 20, 38 Williams r. Games 15, 18 Wills r. Slade 5 Winn V. Hughes 13 Y. Yates, /;i re 13 Younjr v. Yonng 14 INTRODUCTION. Partition can in proper cases be effected (1) by deed ; (2) through the Inclosure Commissioners ; (3) by judicial process, perfected by mutual conveyances. The last method forms alone the subject-matter of this Manual. Judicial partition was formerly effected by the common law writ of partition, but this was abolished by the stat. 3 & 4 Will. 4, c. 27, s. 36, and equity, which had long had a concurrent, was left with exclusive, jurisdiction. Freeholds have always been partitionable by the Court ; What can be 1 J • 1 J ii , A o r- -tr- c^f nr- partitioned. but previously to the stat. 4 & 5 Vict. c. 35, s. 85, Freeholds, the Court had no jurisdiction to direct the partition of copyholds nor of customary freeholds (Jope v. Morsheacl, Coi^yhoids. 6 Beav. 213, and cases there referred to). By the statute, however, it was enacted that from and after the passing thereof it should be lawful for any Court of Equity, in any suit to be thereafter instituted therein for the par- tition of lands of copyhold or customary tenure, to make a like decree for ascertaining the rights of the respective parties to the suit in such lands, and for the issue of a commission for the partition of the same lands, and the B Z PARTITION. allotment in severalty of the respective shares therein, as according to the practice of such Court might then be made with respect to lands of freehold tenure. Leaseholds. A partition of a house, held under a lease for the unexpired residue of a term of years, subject to a rent and covenants, was refused, the nature of the property and the interest of the parties not warranting a partition : for, if it were decreed, the landlord might immediately apply for an injunction to restrain the parties from executing it by any act amounting to waste ; and the Court could not protect one of the tenants in common from a breach of covenant which might be committed by the other [North v. Guiiian, Beatty, 342). In that case Sir A. Hart (Lord Chancellor of ^reland) remarked upon Baring v. Nash (cited i^ost, p. 4) : " The Court there decided that under the stat, 32 Henry 8, the termor of an undivided share might have the partition, though it would only bind during the term ; but in that case it is to be collected from the duration of the term and other circumstances that the Court considered the re- version as merely nominal. If the lessor in that case had reserved to himself intermediate (? immediate) powers against his lessee, such as entry, to work minerals, cut timber, &c., I do not apprehend the Court would have thought the case within the statute, so as to decree partition to the termor in his absence." But in Ames v. Comyns (16 W. K. 74), leaseholds — though it does not appear of what nature they were — w^ere partitioned and the rent apportioned. And it is to be observed that the . PARTITION. 3 reasons assigned by Sir A. Hart against a partition of .leaseholds do not seem to apply to their sale under the Act of 1868. Manors may of course be tlie subject of partition, being Manors. mentioned as partitionable in tlie stat. 31 Hen. 8, c. 1 ; and see Cattley v. Arnold (4 K. & J. 595), and cases there referred to. It seems that if coparceners of a manor make partition, every one shall have a several manor and court baron (16 Viner's Abridg. 224, 2nd Ed.). Where the defendants are desirous that there shall Partition con- fined to aliquot be no partition of their several shares, the partition may share. ^ be confined to the aliquot share of the plaintiff (Hoh son v. '''''}!^ ^^^^ * ^ ' Sherwood, 4 Beav. 184). And in any case, every part Need not be of ' ' " ■ ,..,,.. . . „ every part of of the estate need not be divided ; it is sufficient if each estate. tenant in common, &c., have an equal share of the whole {Earl of Clarendon v. Sornhy, 1 P. Wms. 446 ; Peers v. Needham, 19 Beav. 316). And the Court may award sums Sums for . . /-uTi HIT /» 7 7 equality. to be paid for equality of partition {Mole v. Mansfield, 15 Sim. 41 ; see Appendix C). Coparceners had a common law right of partition, but Who may have partition. originally tenants in common and joint tenants could not Co-parceners, have compelled the others to come to a partition. This was remedied by the stat. 31 Hen. 8, c. 1, which enacted that all joint tenants and tenants in common in Joint tenants and tenants in their own right or in right of their wives should be common. compelled to make partition in like manner and form as coparceners by the common laws of the realm had been and were compellable to do. And a tenant in common or joint tenant may himself commence an action for the B 2 •X life years 4 PARTITION. purpose, notwithstanding infancy {Tuckjield v. Buller, Amb. 197). Tenants for The benefit of the last-mentioned statute was extended in the following year by the stat. 32 Hen. 8, c. 32, which enacted that all joint tenants and tenants in common, which should hold jointly or in common for life or years, or joint tenants or tenants in common where one or some of them should have estates for life or years with the other that should have estates of in- heritance or freehold, should be compellable from thence- forth to make partition (but it was provided that partition to be made under the Act should not be prejudicial to any persons, their heirs or successors, other than such as should be parties thereto, their executors or assigns). Accordingly a bill for partition by a termor for five hundred years in one-tenth of a house against the owners of the other nine-tenths was held to be maintainable, though the reversioner of the one-tenth was not present. From the time of the Act (it was said), whatever was the inconvenience of these partial partitions, the law had been established that a tenant for years, though he had only that limited interest, might compel partition by writ; and, if that were clear, a Court of Equity could not upon the inconvenience of a temporary partition permit a demurrer to a bill by a plaintiff having a quantity of interest that would entitle him to a writ {Baring v. Nash, 1 Ves. & B. 551 ; Heaton v. Dearden, 16 Beav. 147. See Baring v. Nash remarked upon in North v. Ouinan, cited ante, p. 2). A tenant for life of an undivided share of an PARTITION. estate, with remainders to his unborn sons in tail, may commence an action for partition; and the decree will be binding on the sons when in esse {Gashell v. Gashell, 6 Sim. 643; Wills v. Blade, 6 Ves. 498). So, too, a tenant for life, whose interest is determinable upon marriage (Hohson v. Sherwood, 4 Beav. 184). Partition may also be had by a tenant in tail (BrooJc v. Tenants in tail. Hertford, 2 P. Wms. 518), and, though only by parol, it shall bind the issue {Burton v. Jeux and Rose v. Rose, cited in Thomas v. Gyles, 2 Vern. 232). It may also be Tenants' by the curtesy. had by a tenant by the curtesy, upon the stat. 32 Hen. 8, c. 32, cited ante, p. 4 (Coke upon Littleton, 175 h). But no one can successfully institute an action for par- Reversioners. tition whose estate is not an estate in possession. A reversioner cannot maintain such a suit : " this rule is not merely technical, but is founded on good sense in not allowing the reversioner to disturb the existing state of things .... at all events the rule is unquestionably /J ^: .J7 ^ • ^ />i Sound mind not Iriend, on beliali ot a person oi unsound mmd not so found so found. tj PARTITION. by inquisition, for dealing with his real estate (Halfliide V. Bohinson, L. E. 9 Ch. App. 374) : but is not this de- cision in effect overruled, or at least modified, so far as regards partition, by the 6th section of the Partition Act, 1876 {jpost, p. 49), which empowers persons under dis- ability to request a sale by the persons authorized to act for them ? The exact wording of the section should be remarked. Subsequent It was held in Evans v. Bagsliaiv (uhi siqjra) that, if title. a plaintiff had no title to maintain his suit at the time when the bill was filed, he could not carry on the suit by subsequently acquiring a title and amending the bill accordingly ; but, having regard to the obvious intention of the Supreme Court of Judicature Acts, 1873 and 1875, and the ample powers of amendment which the Court possesses under the Eules of Court, Order xxvii., r. 1, it may be doubted whether an action would now be defeated by such a technicality. Legal title It is esscntial to partition to have the legal title before the Court. the Court ; it would be a decisive answer that your title is only equitable, for then liow could the conveyances be made, if any should be necessary? (per Sir Thomas Plumer, M.R., Miller v. War7mnffton, Jac. & W. 493). But this reason does not apply to a mortgagee of the entirety : the Court cannot make him agree to a par- tition, because he is entitled to the whole. Therefore it Lessee for a i^ uot ncccssary to make such a person a party to the suit uncUvide'd ° {Swau v. Stvun, 8 Price, 518). And where one of the beYpartT. defendants had made a lease of his undivided share for PARTITION. 7 ninety-nine years, and the lessee was made a party defendant, it was said per Curiam, " The lessee has a very material interest, which must be affected by this decree ; indeed it is fully equivalent to a freehold, though in form it is a chattel lease. He therefore was a necessary party " {Cornish v. Gest, 2 Cox, 27). Since the Act of 1868, it is of course not necessary that any particular person should be named as a party to the action in the iirst instance : it will be sufficient to bind him by service of notice of the decree under sect. 9. The Court, in decreeing a partition, does not act Court win . . .,•■ 1 - ^ ^• ^ n/»i • adjust all mmisterially and in obedience to the call oi those parties equities. who have a right to the partition, but founds itself upon its general equitable jurisdiction. It will, therefore, in an action for partition, adjust the equitable rights of all the parties interested in the estate (per Lord Abinger, L.C.B., Story v. Johnson, 2 Y. & C. Ex. 586). So, where a bill was filed for partition and for an account of rents and profits received by the defendant, the Vice- Chancellor held that, if on such a bill the defendant appears to have received more than his share of the rents and profits of the estate, the Court will direct an account, and will not, in analogy to proceedings at law, confine its relief merely to a partition (Lorimer v. Larimer, 5 Madd. 363). And, on the other hand, a tenant in common, &c., will be allowed an account for substantial repairs and lasting improvements made by him on the property (Teasdale v. Sanderson, S3 Beav. 534; Parker v. Trigg, W. N. 1874, 27) ; but, if he has been in personal occupa- 8 PARTITION. tion, he will at the same time be charged with an occu- pation rent, the accounts being reciprocal {Teasdale v. Sanderson, ubi supra). Partition A bill for partition, it has been said, is a matter of matter of ii- • i» t • • ^ right, subject right, and there is no instance of not succeeding m it but to provisions , . (> i> • -i • i ^ • • nn of Act of 1868. where there is not prooi oi title in the plamtiii ; and the strongest arguments of inconvenience or difficulty did not formerly prevail (Parker v. Gerard, Amb. 236 ; Warner V. Baijnes, Amb. 589 ; Turner v. Morgan, 8 Yes. 143. But see Cartwright v. Pidteney, 2 Atk. 380; Scott v. Fawcett, 1 Dick. 299 ; Baring v. Nash, 1 V. & B. 556). [Such an absurdity as that shewn in Turner v. Morgan could hardly now occur ; the Court, under the Act of 1868, either may or must direct a sale under such cir- cumstances, the Act having been passed for the express purpose of meeting cases where partition is difficult or inconvenient.] And there is no objection from a cove- nant not to inclose without general consent, rights of common, and the inequality and uncertainty of the shares in proportion to other estates {Agar v. Fairfax, 17 Ves. 633). statement of The Plaintiff must state upon the record his own title *'^^* with precision, but the titles of defendants may be alleged generally [Cartwright v. Ftdteney and Baring v. Nash, uhi supra). Partition vests A partition at law operated by the judgment of a Court equitable right. . . . of Law, and delivering up possession m pursuance oi it; which concluded all the parties to it. Partition in equity proceeds upon conveyances to be executed by the parties PARTITION. 9 ( Wialey v. Daivson, 2 Sch. & Lef. 372 ; and see Miller V. Warmington, 1 Jac. & W. 493) ; iu short, it vests the equitable right only. A decree for partition should Mutual conveyances. therefore contain directions for the execution of mutual conveyances of the parts allotted. It was said by Wood, V.C., that after decree everybody was an actor — every- body had a right to have the decree executed; each party had a right to call on everybody else to execute it : there was no such danger as had been suggested in any one parting with his property before he had got a convey- ance from the others, because all were under the order of the Court. Consequently, where on a partition between A., B., and C, A. refused to execute a conveyance to B., unless both B. and C. executed a conveyance to him, it was held that he was only entitled to require a convey- ance from B. to himself as the condition of his executing a conveyance to B. {Orger v. Sparhe, 9 W. R. 180). Before the Partition Act, 1868, the Court was some- Practicability - , . j^ , . . . of a sale before times enabled, by consent, to enect a sale m a partition the Act of suit in which an infant was interested by directing that the infant's costs should be a charge upon his share, and that they should be raised by a sale. The other persons interested concurring, a sale of the entire property could thus be made (see Smith v. Birch, 18 L. T. (N.S.) 174, and the cases there cited ; Bickards v. Bickards, 15 W. R. 380). ISo, too, in the case of a married woman, even though her share was limited to her separate use without power of anticipation {Fleming v. Armstrong, 34 Beav. 109), and in the case of a lunatic (Singleton v. Hopkins, 4 W. K. 107). 10 PARTITION. But, where one tenant in common refused to consent to a sale, he could insist on there being a partition (Griffies v. Griffies, 11 W. E. 943). It was to facilitate sales of property, in which there was a joint ownership, that the Partition Act, 1868, was passed. See generally, on the older law of partition, Viner's Abridgment, tit. "Partition"; Smith's Compendium of Peal and Personal Property, pp. 706-711; A^ar v. Fairfax, with the notes, 2 Lead. Cas. Eq. 447. l^ryirvp^ a^^€4ykt^ /-^^/-^/^i// ^^^ ( II ) THE PARTITION ACT, 1868. (31 & 32 Vict. cap. 40.) An Act to amend the Law relating to Partitioyi. \2i)th June, 1868.] I. This Act may be cited as the Partition Act, 1868. Short title. It was decided tliat this Act had a retrospective operation on Retrospective suits commenced before it passed (Lys v. Lys, L. E. 7 Eq. 126) ; 0P*^^''^"«°- but that, though retrosjiective, it did not enable the Court to direct a sale under a decree for partition made before the Act, but not carried into operation at the time of passing the Act. The usual decree was made for partition in 1864, with liberty for any of the parties, before the commission should be issued, " to carry in proposals for a sale or for a partition before the judge in chambers " : Held, that, although a commission had never been issued, the Court had no jurisdiction, without the consent of all parties interested, now to direct a sale instead of a partition {Prijor v. Pryor, L. E. 19 Eq. 595 ; L. E. 10 Ch. App. 469). The Partition Act of 1876 (printed in full at p. 46, post), Act of 1876. is (by sect. 1) to be read as one with the Partition Act, 1868, and (by sect. 2) is to apply to actions pending at the time of the passing thereof (27th June, 1876), as well as to actions commenced afterwards, and the term " action " includes a suit, " Action.'' and the term "judgment " includes decree or order. " Judgment." II. Ill this Act the term " the Court " means the Court As to the term . . " the Court." of Chancery m England, the Court of Chancery in Ireland, 12 THE PARTITION ACT, 1868. tlie Landed Estates Court in Ireland, and the Court of Chancery of the County Palatine of Lancaster, within their respective jurisdictions. High Court By the Supreme Court of Judicature Act, 1873, s. 16, there was trausf erred to and vested in, the High Court of Justice by that Act established (subject to sects. 17 and 18), the jurisdiction which at the commencement of the Act was vested in, or capable of being exercised by (amongst other Courts) the High Court of Chancery, including the jurisdiction of the Master of the Kolls as a Judge or Master of the Court of Chancery. By sect. 17 it was provided that there should not be transferred to the High Court of Justice {inter alia) any appellant jurisdiction of the Court of Appeal in Chancery, or any jurisdiction of the Court of Apj)eal in Chancery of the County Palatine of Lancaster. By sect. 18 there was transferred to and vested in the Court of Appeal by the Act established [inter alia) all jurisdiction and powers of the Lord Chancellor and of the Court of Appeal in Chancery, in the exercise of his and its appellate jurisdiction, and all juris- diction and powers of the Court of Ajjpeal in Chancery of the County Palatine of Lancaster, and all jurisdiction and powers of the Chancellor of the Duchy and County Palatine of Lan- caster, when sitting alone or aj)art from the Lords Justices of Appeal in Chancery, as a judge of re-hearing or appeal from decrees or orders of the Court of Chancery of the County Pala- tine of Lancaster. Palatine Court. The Palatine Court is now, therefore, a Court of first instance only. As such, " its ordinary jurisdiction over persons and proj)erty, where either is within the county, is precisely similar to that of the High Coiirt of Justice over persons and property in other parts of England. The High Court in some cases exer- cises a concurrent jurisdiction ; but where both the subject of the suit and the residence of the parties litigant is within the County Palatine, the jurisdiction of the local court is exclusive, and a demurrer or plea to a bill in any other Court of Equity will lie" (Winstanley on the Chancery of the Couuty Palatine of Lancaster, p. 12, citing Hametheson v. Tounslall, Cury, 80; THE PARTITION ACT, 1868. 13 Price V. Lloyd, lb. 139). See Winn v. Hughes, 26 Beav. 377, on appeal, 28 L. J. (Ch.) 485 ; In re Yates, 3 D. J. & S. 402. Subject to rules of Court, all causes and matters wliicli may be commenced in the High Court of Justice for tbe partition or sale of real estates, stall be assigned to the Chancery Division of the said Court (Supreme Court of Judicature Act, 1873, sect. 34). It was long ago decided that a partition of lands in Ireland would not be decreed in England (Cartwright v. Pettus, 2 Ch. Ca. 214 ; see same case, nom. Cartivright v. Petty, 2 Sw. 323, n.). So far as relates to actions for partition, or for sale in lieu of h-ish Courts. partition, the jurisdictions of the Irish Court of Chancery and of the Landed Estates Court appear to be co-ordinate and co- extensive. III. In a suit for partition, where, if this Act had not Power to Court to order sale been passed, a decree for partition might have been made, instead of . 1 /-N 11 PI division. then II it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or dis- ability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper con- sequential directions. The words " a suit for partition, where, if this Act had not *« a suit for been passed, a decree for partition might have been made," partition, &c. mean only any partition suit. " The expression might have 14 THE PARTITION ACT, 18G8. Partition need not be claimed. " Beneficial." Persons under disability may " request " a sale, but Court need not comply in case of infant. Separate ex- amination, of married women. been more concise, but I think that is tlie meaning of it beyond all question" (per Bacon, V.C., Prijor v. Fryor, L. E. 19 Eq. 598). Tbe wording of this section, wliich enables a sale to be made in a -suit for partition, gave rise to some decisions that, even wliere a sale only was wanted, a partition must nevertheless be prayed for {TeaJl v. Watts, L. E. 11 Eq. 213 ; Holland v. Hol- land, L. E. 13 Eq. 406 ; contra Aston v, Meredith, L. E. 11 Eq. 601) ; but now, for the purposes of the Partition Acts, an action for partition shall include an action for sale and distribution of the proceeds, and 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 (Partition Act, 1876, stct. 7, post, p. 50). " Beneficial " means beneficial in a pecuniary sense. The Court cannot go into questions of sentiment, but must look merely to the monetary results {Drinhicater v. BatcUffe, L. E. 20 Eq. 533). An infant plaintiff may " request " a sale (France v. France, L. E. 13 Eq. 173, on the authority of Young v. Young, there cited ; Davey v. Wietlishach, L. E. 15 Eq. 269 ; Grove v. Comyn, L. E. 18 Eq. 387). So may a feme coverte plaintiff (Higgs v. Dorlcis, L. E. 13 Eq. 280). These decisions as to the power of persons under disability to request a sale have now been confirmed and extended by the legislature, for by sect. 6 of the Partition Act, 1876 (jjost, p. 49), it is enacted that a request for sale may be made on the part of a married woman, infant, person of unsound mind, or person under any other disability, by the next friend, giiardian, committee in lunacy (if so authorized by order in lunacy), or other person authorized to act on behalf of the person under such disability, but the Court shall not be bound to comply with any such request on the part of an infant, unless it appear that the sale will be for his benefit. < Where two of the plaintiffs were married women and re- quested a sale, Lord Sclborne (sitting for the Master of the Eolls) thought that their consent to the sale ought to be taken THE PARTITION ACT, 1868. 15 on their separate examination, and ordered the cause to stand over for that purpose (Leigh v. Edwards, 21 W. R. 835) ; but the section last cited from the Partition Act, 1876, seems to dispense with the necessity for this. A decree for sale having been made in a partition suit, in Misdescription which one of the plaintiffs, a married woman, had been errone- ° ^^^^^"^ ously described as single, leave was given to amend by adding a next friend as plaintiff, and making the husband a defendant, he consenting to be bound by all the proceedings (SJierratt V. Sherrait, 21 W. R. 572). A sale has been directed of a freehold estate in which a Restraint on married woman was interested for her separate use without ^"^ '^^P^ ^°°" power of anticipation (Fleming v. Armstrong, 34 Beav. 109). A request for sale does not, it seems, necessarily and conclu- Request may 1 .sively bind the person making it. A plaintiff (who in the Court ^'^ withdrawn. below had requested a sale) was allowed, under the circumstances, to withdraw his request in the Court of Appeal, and a partition decree was made ( Williams v. Games, L. E. 10 Ch. App. 204 ; and see Drinlcioater v. Badcliffe, L. E. 20 Eq. 531). The Court is at liberty, at the request of a person holding Effect of the one-tenth, and against the wish of the persons holding the other section. nine-tenths, to order a sale, if, from the nature of the property or from the number of the persons interested, the Court thinks it right and reasonable so to do (Pemberton v. Barnes, L. E. 6 Ch. App. 685). The Court is not bound to order a sale against the wish of the owners of the larger share ; but the onus lies upon the owners of the smaller share who desire a sale of shewing that it is, under the circumstances, the most beneficial course for all parties (Allen v. Allen, 21 W. E., 842). The power of sale conferred by this section is an absolute power of sale on the request of anybody, provided that the Court is satisfied that it would be more beneficial for the parties in- terested than a division (Drinhvater v. Bateliffe, L. E. 20 Eq. 529), and the section is not controlled in its operation by the 5th section (Ibid.). Where a will, under which infant owners claimed, directed Where instru- 16 THE PARTITION ACT, 1868. inent forbids a tliat no sale shouM take place until the youngest attained twenty-one, but a sale was requested by tbe remaining owners and not opposed by tbe guardian ad litem of tbe infants, one of whom had come of age before the hearing, and also desired a sale, a sale was ordered by the Court in Ireland (^Thompson v. Richardson, 6 Ir. Eq. 596). Sale on appii- IV. Ill a suit for partition, wliere, if this Act had not certain been passGcl, a decree for partition might have been made, parties """ " then if the party or parties interested, individually or lu eies, e . collectivelj, to the extent of one moiety or upwards in the property to which tHe suit relates, request the Court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the Court shally unless it sees good reason to the contrar^direct a sale of the property accordingly, and give all necessary or proper consequential directions. Effect of The 4th section makes it imperative on the Court, in a certain section. state of circumstances, to order a sale, unless it sees good reason to the contrary (Pemherton v. Barnes, L. E. 6 Ch. App. 685). Where the owners of a moiety ask a sale, the onus lies on the parties opposing (Lys v. Lys, L. E. 7 Eq. 126 ; Wilkinson v. Joherns, L. E. 16 Eq. 14). If the parties interested to the extent of a moiety or upwards request a sale, the Court shall sell, unless it sees good reason to the contrary — that is, irrespective of the nature of the projierty, irrespective of the number of persons, irrespective of absence or disability, irrespective of any special circumstances which make the Court think it beneficial. The parties interested to the extent of one moiety are entitled to a sale as of right, unless there is some good reason to the contrary shewn ; they have not to shew any reason for the sale, but a reason to the contrary • must be shewn (Drinhcater v. Ratcliffe, L. E. 20 Eq. 528). THE PARTITION ACT, 1868. 17 Real estate stood limited as to one moiety to the separate use " Moiety." of Mrs. P. for life, then (in the events which had happened) as she should, notwithstanding coverture, by will appoint, and in default to Mrs. T. -.—Held, that Mrs. P., although, if she did not apjjoint by will, her share would go over, was the owner to the extent of one moiety of the estate within the meaning of this section (ParJcer v. Trigg, W. N. 1874, 27). The fact that the owners of a moiety desire that there should " Good reason be no sale is not " good reason to the contrary." To say so ^°.r^YY"°^' would be to strike the 4th section out of the Act (Pemherton v. Barnes, L. R. 6 Ch. App. 694). Nor is the fact that the owner of one moiety of an estate is yearly tenant of the whole property and occupies it for commercial purposes, and also resides thereon, a sufficient reason why a sale of the property should not be decreed under this section [Wilhinson v. Joherns, L. R. 16 Eq. 14), It was said in Ireland that the only good reason to the contrary is to shew affirmatively that there is no difficulty in making a partition (In re Langdale's estate, 5 Ir. Eq. 572) ; but this seems opposed to the English decisions. V. la a suit for partition, where, if this Act had not As to purchase - of share of been passed, a decree for partition might have been made, party desiring then, if any party intei'ested in the property to which the suit relates requests the Court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or amongjthe parties interested/the Court may, if it thinks fi t^nles s the other parties iriterested in the property, or some of them, under- take to purchase the share of the party requesting a sal e,^ direct a sale of the property, and give all necessary or proper consequential directions^and in case of sucli undertaking being given the Court may order a valua- tion of the share of the party requesting a sale in such /T i^rc;,^ f^. «//^«_ A^^t^^^^ f^y-^ ^— ^. 18 THE PARTITION ACT, 1868. manner as the Court thinks fit, and may give all necessary or proper consequential directions. Effect of Where one of the part owners asks for sale and others ask section. foj. partition, the Court has not, under this section, power to order that the part owner who asks for a sale shall sell to the others his share at a valuation ; and to order that a partition amongst the others shall then be made. Per James, L.J, : " It is clear that the Act was intended for the benefit of those part owners who want to have a sale, in which case the other parties interested who object to a sale may be compelled to buy the shares or have a sale. But there is nothing to compel a man to sell his share ; the whole section is for the benefit of those who want a sale" (Williams v. Games, L. K. 10 Ch. App. 204). The present Master of the Rolls thus explains this section : " The 5th section provides that, if any party interested in the property requests the Court to direct a sale of the property instead of a division, the Court may, if it thinks fit (this is discretionary), unless the other parties interested in the property undertake to purchase, give all necessary and proper directions for such sale. What does that mean ? Under the 4th, where the parties requesting a sale have got more than a moiety, you do not want that ; it consequently applies to the case of the owners of less than a moiety making the request. Now that case is provided for by the 3rd section in every possible case where the Court thinks a sale is proper and for the benefit of the parties interested. Therefore the 5th must apply to a case where the Court sees no reason for preferring a sale to a partition. That case is not provided for by the 3rd, nor is it provided for by the 4th section. Where the Court sees no reason at all, still any party interested may apply ; and then there is a limit imposed, and the limit is this, that the Coui-t shall not exercise the new power given by the 5th section, which depends entirely upon the caprice of the party asking, without any opinion of the Coui't being expressed, if other people will buy. That is a check upon the new power — not, as it has been supposed to be, a limitation of the 3rd and 4th sections — but it is a new power THE PARTITION ACT, 1868. 19 given to any party, wliether plaintiflf or defendant, to apply,// with or witliout any reason whatever, to the Court for a sale ;| and he is entitled to ask for it, unless somebody is going to]; buy ; and then Williams v. Games says that if he does ajiply for it, and somebody does offer to buy his share, he may withdraw his request. That is my view of the law ; and, considering that Williams v. Games is the last decision, I think I am entitled to express that view as one that ought to guide me in future, unless corrected, notwithstanding some observations of Lord Hatherley in the case of Pemherton v. Barnes (Jj. E, 6 Ch, App. 693), which seem to point to the conclusion that the 5th section was in the nature of a proviso to the following effect : ' Provided always, that no sale shall be directed under the 3rd or 4th sections of this Act if any other j)arty interested shall undertake to buy the share of the parties asking for sale.' That apj)ears to me contrary to the plain meaning of the words of the 5tli section " (Drinkwater v. Batcliffe, L. R. 20 Eq. 528). The undertaking to purchase is to be given at the hearing Undertakino-, (Ibid.). when given. A married woman, not separated by law, but sej)arated in fact from her husband, offered to give the undertaking, her husband not joining : — Held, that she could not give an under- taking at the hearing, and, therefore, was not within the 6th section (Ibid.). But now the undertaking can be given on the Persons under part of a married woman, infant, person of unsound mind, or disability can ,. .,. t , n • ^ T give the under- person under any other disability, by the next friend, guardian, taking, committee in lunacy (if so authorized hy order in lunacy), or other person authorized to act on behalf of the person under such disability ; but the Court shall not be bound to comply but Court need with any such undertaking on the part of an infant, unless it ^^^ ^^^.f'^J '° , , ,, 1 P 1 . , /. /T. . • case of infant. appear that the purchase will be for his benefit (Partition Act, 1876, sect. 6, post, p. 49). VI. On any sale under this Act the Court may, if it Authority for 1 ■ 1 1*1 • • 1-1 parties in- thmks tit, allow any of the parties interested m the terested to bid. property to bid at the sale, on such terms as to non- c 2 20 THE PARTITION ACT, 1868. payment of deposit, or as to setting off or accounting for the purchase-money or any part thereof instead of* paying the same, or as to any other matters, as to the Court seem reasonable. The rule is, that leave to bid will not be given to the party conducting the sale (Domville v. Berrington, 2 Y. & C. Ex. 723 ; Sidny v. Banger, 12 Sim. 118; Ex parte 3PGregor, 4 De G. & Sm. 603). But this rule may be departed from, if special circumstances be shewn. Where, in a suit under this Act, it was desirable that there should be as much competition as possible for the property, and it was provided by the minutes that all parties (including the plaintiffs) should be allowed to bid at the sale, Malins, V.C. (no objection being raised by any of the parties), without wishing to break in upon the general rule, thought this was a peculiar case, and made the order according to the minutes ; though, according to the report of the case, many of the defendants were under disability, and two were abroad and not served with notice of motion (sic) for the decree. (^Pennington v. Dalbiac, 18 W. E. 684). Where a defendant owned a moiety of the property, liberty was given to him to bid, and, in the event of his becoming purchaser, to pay into Court one moiety only of the purchase- money (Wilkinson v. Joherns, L. R. 16 Eq. 14). Application of VII. Section thirty of The Trustee Act, 1850, shall Trustee Act, - i i ^ , i • • /• 13 & 14 Vict, extend and apply to cases where, in suits tor partition, the Court directs a sale instead of a division of the property. ^"-^ This section is as follows : — 80. And be it enacted, that where any decree shall be made by any Courts of Equity [for the specific performance of a con- tract concerning any lands, or] f or the partition [or exchange] of any lands, or generally where any decr ee sh all be mad e for the conveyance or, assignment of any lands, either in cases c. 60. THE PARTITION ACT, 1868. 21 arising out of the doctrine of election or otherwise, it shall be lawful for the said Coui-t to declare that any of the. parties to .. the said suit wherein such decree is made are trustees of such lands or any part thereof, within the meaning of this Act, or to declare concerning the interests of unborn p erson s who mighty claim under any party to the said suit, or under the will or voluntary settlement of any person deceased who was during his lifetime a party to the contract or transactions concerning which such decree is made, that such interests of unborn persons are the interests of persons who, upon coming into adsteuce, would be trustees within the meaning of this Act, /and thereupon it shall be lawful for the Lord Chancellor, in- ' trusted as aforesaid (i.e., intrusted by virtue of the Queen's sign manual with the case of the persons and estates of hmatics)^ or the Court of Chancery, as the case may be, to make such order or orders as to the estates, rights, and interests of such persons, born or unborn, as the said Court or the said Lord Chancellor might, under the provisions of this Act, make concern- ing the estates, rights, and interests of trustees born or unborn. The object of the Legislature in passing this section was to Effect of transfer the legal estate (Basnett v. Moxon, L. E. 20 Eq. 182). section. Under a will an undivided share of real estate stood limited Application of in remainder, after certain life estates and estates tail, to the right ^^*^ ^^^' heirs of A. In a partition suit, to which A. was a party, a decree for sale was made : — Held, that the interests of the persons or person who on the death of A. would become the right heirs or right heir of A. were bound in equity by this decree : — Held, also, that such persons were " unborn " persons within the meaning of the Trustee Act, 1850, sect. 30 (Ibid.).* Where real estate was held by a complicated title under which the parties interested were very numerous, and unborn * Independently of sect. 30 of the Trustee Act, 1850, it is quite plain and settled by authority that whenever the Court lias jurisdiction to make a decree for sale, the decree for sale binds in equity the interests of all persons not in existence, and who' cannot be made parties to the suit, whether they are not in existence because they are not actually living (and, of course, cannot be made parties), or not in existence because it is uncertain who may become entitled, and that, even although it maybe certain that some living person may ultimately become entitled (Ibid.). 22 THE PARTITION ACT, 1868. Appointment of new trustee, and vesting order. General direc- tions to com- mittee of lunatic. Extension of powers of Court under the Trustee Act. issue might become entitled to legal estates, it was held, that a declaration might be made that the parties to the suit were, and that unborn issue upon coming into existence would be, trustees of their shares and interests within the meaning of the Trustee Act, 1850, sect. 30 (Lees v. Coulton, L. E. 20 Ec[. 20 ; and see Shepherd v. Churchill, 25 Beav. 21). The appointment of a new trustee and consequent vesting order ought to be the subject of a subsequent application, and ought not to be made by the decree {Lees v. Coulton, L. E. 20 Eq. 20). But in Shepherd v. Churchill (25 Beav. 21) such a declaration and appointment had been made by one and the same order. See Bowra v. Wright, 4 De G. & Sm. 265. Where in a suit for the partition of lands of which a lunatic was entitled to an undivided share a partition had been made, and the lunatic had been declared a trustee within the meaning of the Trustee Act, 1850, it was held, on a petition by the owner of the other undivided moiety, that the Court had juris- diction to carry out the petition [qu. partition) by a vesting order under the Trustee Act, 1850, notwithstanding the doubt attributed to their Lordships by the report of the case of Me Bloomar, 2 De G. & J. 188 (Be Mohjneux, 10 W. E. 512). A decree having been made for partition of lands, an undivided share in which was vested in a lunatic as tenant in tail, an order was made in lunacy and in Chancery directing the com- mittee to execute all necessary assurances for giving effect to the partition (Be Sherard, 1 D. J. & S. 421). Where, under the Partition Act, 1876, the Court shall dispense with service on any person of notice of the judgment made on the hearing, the powers of the Court shall, on the expiration of the time limited for the establishment of claims by persons who have not been served, and the non-establishment of such claims, extend to their interests in the property to which the action relates as if they had been parties to the action (sect. 3, post, p. 47). Application of jinjceeds of sale, 19 & 20 Vict. c. 120, VIII. Sects. 23 to 25 (both inclusive) of the Act of the session of the 19th and 20th years of Her Majesty's reign THE PARTITION ACT, 1868. 23 (c. 120), " To facilitate Leases and Sales of Settled Estates," shall extend and apply to money to be received on any sale effected under the authority of this Act. These sections are as follows : — 23. All money to be received on any sale effected under the authority of this Act [or to be set aside out of the rent or payments reserved on any lease of earth, coal, stone, or minerals as aforesaid] may, if the Court shall think fit, be paid to any trustees of whom it shall approve, or otherwise the same shall be paid into the Bank of England or Ireland, as the case may be, to the account of the (Paymaster) General of the Court of Chancery, ex parte the aj)plicant in the matter of this Act, and in either case such money shall be applied as the Coui't shall from time to time direct to some one or more of the following purposes, namely, The purchase or redemption of the land tax, or the discharge or redemption of any incumbrance affecting the heredita- ments in respect of which such money was paid, or affecting any other hereditaments subject to the same uses or trusts ; or The purchase of other hereditaments to be settled in the same manner as the hereditaments in respect of which the • money was paid ; or The payment to any person becoming absolutely entitled. 24. The application of the money in manner aforesaid may, if the Court shall so direct, be made by the trustees (if any) without application to the Court, or otherwise upon an order of the Court upon the petition of the person who would be entitled to the possession or the receipt of the rents and profits of the land if the money had been invested in the purchase of land, 25. Until the money can be applied as aforesaid, the same shall be from time to time invested in Exchequer Bills, or in Three per Centum Consolidated Bank Annuities, as the Court shall think fit ; and the interest and dividends of such Ex- chequer Bills or Bank Annuities shall be paid to the person 24 THE PARTITION ACT, 1868. Sale out of Court, and payment of purchase- money to trustees. Parties to partition suits. who would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land. The incorporated sections of the Settled Estates Act authorize a sale direct by the trustees, without the matter being worked out through the judge's chambers, and without bringing the purchase-money into Court (Hayward v. Smith, 20 L. T. 70). So, too, a sale out of Court was ordered in Chuhh v. Pettipher (W. N. 1872,' 110 ; Appendix E). But the Court refused to direct payment of the purchase-money to trustees, where the only persons interested were a married woman and an infant, and directed it to be paid into Court (Higgs v. DorJcis, L. E. 13 Eq. 280). On another occasion the Court refused to order payment out to trustees of purchase-money which had been paid in, where some of the persons interested were married women and resident in Australia (Asto7i v. Meredith, L. E. 13 Eq. 492). As to the effect of these incorporated sections on the question whether a decree for sale made in an action for partition works a conversion for all purposes, see post, p. 33. IX. Any person, who, if this Act had not been passed, might have maintained a suit for partition, may maintain such suit against any one or more of the parties interested, witliout serving the other or others (if any) of those parties ; and it shall not be competent to any defendant in the suit to object for want of parties ; and at the hearing of the cause the Court may direct such inquiries as to the nature of the property, and the persons interested therein, and other matters, as it tliinks necessary or proper with a view to an order for partition or sale being made on further consideration ; but all pei'sons, who, if tliis Act had not been passed, would have been necessary parties to the suit, shall be served with notice Q£_t he-.jdecree or order on the hearing, and after such notice shall be bound by the proceedings as if they liad been originally parties THE PARTITION ACT, 1868, 25 to tlie suit, and shall be de emed j)aj ;ties to the suitj and all such persons may have liberty to attend the proceed- ings; [and any person may, within a time limited by general orders, apply to the Court to add to the decree or order. See post, p. 40]. It is to be observed that this Act does not enable any person Who may to commence an action for sale who could not, before the pass- ™aiiitai° same. ing of the Act, have maintained a suit for partition. As to Necessary this, see ante, p. 3 : and, as to necessary parties, ante, p. 6. parties. The ninth section of the Partition Act, 1868, has called forth At what time a varying series of decisions as to the time at which, and the ^°/ "'^^ ^^ „ 'J o J what circum- circumstances under which, a sale would be directed. But the stances a sale , ^L • J. • 1 • will be ordered: cases appear to result m two mam rules, viz : — ^^^ ^^^^^ ^^ (1.) A sale will not be directed on the hearing unless all the cases, persons interested in the property are parties to the cause, and the title is then proved ; otherwise a sale will only be ordered on " further consideration." (2.) A sale will not be ordered at all, unless every person interested in the property is a party to the cause or has been served with notice of the decree made on the hearing, or may, under the circumstances of the case, be presumed to be dead. A sale will not be directed on the hearing unless all persons First rule of interested in the property are parties to the cause, and the title is then proved ; otherwise a sale will only be ordered on " further consideration." It has, indeed, been said that the Court had jurisdiction to direct an immediate sale in the absence of parties interested in the proi^erty, but shewn to be out of the jui-isdiction (Silver v. Udall, L. E. 9 Eq. 227 ; Teall v. Watts, L. Pi. 11 Eq. 213). But, on the other hand, it was decided that the Court would not make an order for sale until "further consideration," when the result of the inquiries is known {Buckingham v. Sellicl; 22 L. T. 370), the power of the Court to decree a sale depending upon the inquiries being exhausted (per Lord Cairns, L.C., Poi//WZ v. Poicell, L. E. 10 Ch. App. 130). The present practice has been laid down by the Master of the Bolls thus : — " If all the persons interested are 26 THE PARTITION ACT, 186$. Inquiries on summons or motion. " Further con- sideration." parties to the cause, a decree for sale can be made at the hearing ; but, if they are not all parties, then the 9th section applies, and a sale can only be ordered on ' further considera- tion.' It may be that these words are not used in their strict technical sense (see infra), but, before, a sale can be ordered, there must be further consideration of some sort or another, and the utmost that can be done in suoh a case is to give liberty to apply at chambers with reference to a sale in the event of its being certified that all parties interested have been either parties to the cause, or have been served with notice of the decree" {Mildmay v. Quiche, L. K. 20 Eq. 537). And the same judge had previously held that, all persons in existence who were interested in the estate being parties to a suit for partition, and the title being proved at the hearing, an immediate decree for sale might be made, without any preliminary inquiry (Lees V. Coulton, L. E. 20 Eq. 20). [Where a sale is made dependent on the result of inquiries directed by the decree, a sale made before a certificate in answer to the inquiries is irregular (Poioell V. Poicell, L. E. 10 Ch. App. 130 ; Bawlinson v. Miller, 1 Ch. D. 52).] The inquires may, under the new Eules of Court, xxxiii., (scheduled to the Supreme Court of Judicatui-e Act, 1875), be taken upon summons immediately after the issue of the writ, or by motion upon the admissions contained in a statement of defence, under Order xl., r. 11 (Gilbert v. Smith, W. N. 1876, 150). If the certificate in answer to the inquiries should shew that all persons interested are before the Court, or if the Court (under the Act of 1876, sect. 3, presently noticed), should dis- pense with service on absent parties, and a proper case for a sale be made, a sale can, of coiu-se, be obtained on the hearing, which will be equivalent to " further consideration." The words " on further consideration " are to be taken in a l)opular sense, as referring to any consideration the cause receives after the inquiries have been made (per Lord Cairns, L.C., in Powell V. Powell, L. E. 10 Ch. App. 130 ; and see Mildmay v. Quiclce, supra). So it was held that the reference to " further con- sideration " did not preclude the Court from directing a sale in ^^^/ /V^ c/2~c.<^ Ct-e^ /■ ^^/^ y THE PARTITION ACT, 1868. 27 chambers, if the chief clerk certified that a sale was desirable, and liberty to ajjply was given accordingly (Allen v. Leiois, W. N. 1873, 218). A sale will not be ordered at all, x;uless every person in- Second rule of terested in the property is a party to the cause, or has been served with notice of the decree made on the hearing, or may, under the circumstances of the case, be presumed to be dead. The Court has refused to order a sale in the absence of a beneficiary who was out of the jurisdiction (though all parties present concurred in asking for a sale, and his share was only a ninth of a fifth), and said that he must be served (Hurry v. Hurry, L. E. 10 Eq. 346). So, too, the Court has refused to make an order for sale in the absence of a person interested, a married lady, whose share was vested in trustees (Dodds v. Gronow, 20 L. T. 104). And, where a decree for sale had been wrongly made in the absence of parties who were out of the jurisdiction, the Court refused to allow the decree to be acted on in their absence, but directed notice to be given to them of the decree by advertisement, with liberty to the plaintiffs to apply as to proceeding with the sale after the advertisements had appeared (Peters v. Bacon, L. K. 8 Eq. 125). And so, where a similar decree had been made, the Court said that the decree must be served on the absent party before the sale was proceeded with (Teall V. Watts, L. E. 11 Eq. 213). But where on the further consideration of a partition suit it appeared from the chief clerk's certificate that it was not known whether one of the parties, who, if living, would be entitled to one twenty-fom'th of the property, was alive or dead, but that he had not been heard of for fourteen years, and all the other persons interested appeared and asked for a sale, a sale was ordered accordingly (JacTcson v. Lomas, 23 W. E. 744). So, where a beneficiary has not been heard of for seventeen years, he was presumed to have died without issue, no one having claimed to be his child (Baivlhison v. Miller, 1 Ch. D. 52). In Peters v. Bacon (L. E. 8 Eq. 125) notice of the decree was Notice to ordered to be given to persons interested out of the jurisdiction persons out of by advertisement, and it was referred to chambers to settle the i^w^ given. ' 28 THE PARTITION ACT, 1868. advertisements, the papers in whicli they should appear, and the number of times they were to appear : but in Teall v. Watts (L. E. 11 Eq. 213) the sufficiency of service of a decree by advertising it in a newspaper was questioned. Qualification of The second of the two rules deduced above from the cases by the power decided on the Act of 1868 must receive an important qualifi- novv vested in cation from the 3rd section of the Act of 1876, which gives the dispensing ° Court powcr to dispense with service of notice of the judgment or A ^ with service of decree in special cases. The section is as follows : — Where in decree "in ^ ^^ action for partition it appears to the Court that notice of the special cases, judgment on the hearing of the cause cannot be served on all the persons on whom that notice is, by the Partition Act, 1868, re- quired to be served, or cannot be so served without expense dis- proportionate to the value of the property to which the action relates, the Court may, if it thinks fit, on the request of any of the parties interested in the property, and notwithstanding the dissent or disability of any of the others of them, by order dispense with that service on any person or class of persons specified in the order, and, instead thereof, may direct advertisements to be published at such times and in such manner as the Court shall think fit, calling upon all persons claiming to be interested in such property, who have not been so served, to come in and establish their respective claims in respect thereof before the judge in chambers, within a time to be thereby limited. After the expiration of the time so limited, all persons who shall not have so come in and established such claims, whether they are within or without the jurisdiction of the Court (including persons under any disability), shall be bound by the proceedings in the action as if on the day of the date of the order dispens- ing with service they had been served with notice of the judg- ment, service whereof is dispensed with ; and thereupon the powers of the Court under the Trustee Act, 1850, shall extend to their interests in the property to which the action relates, as if they had been parties to the action, and the Court may there- upon, if it shall think fit, direct a sale of the property, and give all necessary or proper consequential directions. Second rule as;' As modified, therefore, by the new Act, the second of the THE PARTITION ACT, 1868. 29 above stated rules will stand thus : — A sale will not be ordered it should now at all, unless (1) every person interested in the property is a party to the cause, or has been served with notice of the judgment on the hearing ; or (2) the Court dispenses with such service upon the absent person ; or (3) he may be presumed to be dead. Where an order is made under the Act of 1876, dispensing Proceedings - '- .,, . ^ .. 1 i? J where service with service of notice on any person or class oi persons, and j^ dispensed property is sold by order of the Court, the following provisions with. (sect. 4) shall have effect : — (1.) The proceeds of sale shall be paid into Court, to abide the further order of the Court. (2.) The Court shall by order fix a time at the expiration of which the proceeds will be distributed, and may from time to time by further order extend that time. (3.) The Court shall direct such notices to be given, by ad- vertisements or otherwise, as it thinks best adapted for notifying to any persons on whom service is dispensed with, who may not have previously come in and estab- lished their claims, the fact of the sale, the time of the intended distribution, and the time within which a claim to participate in the proceeds must be made. (4.) If at the expiration of the time so fixed or extended the interests of all the persons interested have been ascer- tained, the Court shall distribute the proceeds in ac- cordance with the right of those persons. (5.) If at the expiration of the time so fixed or extended the interests of all the persons interested have not been ascertained, and it appears to the Court that they cannot be ascertained without expense disproportionate to the value of the property or of the unascertained interests, the Court shall distribute the proceeds in such manner as appears to the Coirrt to be most in accordance with the rights of the persons whose claims to participate in the proceeds have been established, whether all those persons are or are not before the Court, and with such reservations (if any) as to the Court may seem fit in favour of any other persons (whether ascertained or not) who may appear from the 30 THE PARTITION ACT, 1868. Provision for case of suc- cessive sales in same action. Discharge of purchaser, where sale irregular. evidence before the Court to have any prima facie rights which ought to be so provided for, although such rights may not have been fully established, but to the exclusion of all other persons ; and thereupon all such other persons shall by virtue of this Act be excluded from participation in those proceeds on the distribution thereof, but, notwithstanding the distri- bution, any excluded person may recover from any participating person any portion received by him of the share of the excluded person. Where in an action for partition two or more sales are made, if any person who has by virtue of the Act of 1876 been excluded from participation in the proceeds of any of those sales establishes his claim to participate in the proceeds of a subsequent sale, the shares of the other persons interested in the proceeds of the subsequent sale shall abate to the extent (if any) to which they were increased by the non-participation of the excluded person in the proceeds of the previous sale, and shall to that extent be applied in or towards payment to that person of the share to which he would have been entitled in the proceeds of the previous sale, if his claim thereto had been established in due time (sect. 5). If these means should be insufficient fully to recoup the excluded person for the loss sustained by him in not establishing his claim in due time, he may apparently (under sect. 4, sub-sect. 5) take proceedings against the participating persons for the balance, "Where by a decree the sale was made dependent on the result of the inquiries, and a sale took place before the certificate was made, a purchaser was held entitled to be discharged (Potcell V. Poicell, L. E. 10 Ch. App. 130) ; but where all the parties in- terested were in fact before the Court at the hearing, and were willing to convey, and a good title could be made indepen- dently of the Partition Act, 1868, it was held that the purchaser was bound to accept such a title, and could not rely upon the technical informality of the decree {JRawlinson v. Miller, 1 Ch. D. 52). For form of order discharging a purchaser, see Powell V. Powell, L. K. 19 Eq. 425. THE PARTITION ACT, 1868. 31 The Court has power, since the passing of the Master in Chancery Abolition Act, to have a sale of real estate directed to be sold under the Court made by auction in chambers before the chief clerk, and, where all the parties interested are sui Juris and before the Court, they may, if they think it expedient, have a sale effected in this manner. Where, however, there are parties not before the Court or not sui juris, the duty is thrown upon the Court of determining what is the most beneficial mode of conducting the sale, and, the fact of the power having fallen into disuse tending to shew that its exercise was in general inexpedient, the Court directed a sale by an auctioneer (Pemherton v. Barnes, L. K. 13 Eq. 349). But the Court, instead of having the estate sold by auction, may confirm a conditional contract of sale previously entered into by the parties (Grove v. Comyn, L. E. 18 Eq. 387, where the minutes of decree are given in a note). For the form of a statement of claim asking the approval by the Court of such a contract, see Appendix A. The section speaks of " an order for partition or sale." It is clear, therefore, that this Act did not contemplate sales exclu- sively, and orders for partition have, in fact, been made under it, as in DicTcs v. Batten (W. N. 1870, 173). And the Act permits the Court to direct a partition in opposition to the chief clerk's certificate {Allen v. Allen, 21 W. R. 842). Or a decree may be made for a partition of part of an estate and sale of the rest (BoehucJc v. Chadehet, Jj. R. 8 Eq. 127 ; Pen- nington V. Dalbiac, 18 W. E. 684 ; Allen v. Allen, 21 W. E. 842). It used to be the practice to issue a commission for the purpose of effecting the partition ; but now the partition is made in chambers. But it may be made at the hearing in a proper case : see the first rule of the cases, a^ite, p. 25. The form of decree made on the hearing of suits for sale or partition has, as appears above,* been very unsettled ; but the decree in Mildmay v. Quiche (Appendix B), which is understood to Mode of sale. * In addition to the cases cited in the text, the following have been reported : Bull v. Bull, 18 L.T. 870 ; Lester v. Alexander, W. N. 1869, 75 ; Undericoocl v. Stewardson, 20 W. R. 668 ; Harper v. Bird, 23 W. K. 646. Conditional contract for sale. Partition under the Acts. Partition aiid sale. No commission issued. Form of decree. 32 THE PARTITION ACT, 1868. Sale subject to executory devise over. Minerals. Jurisdiction. have been settled by the Master of the Eolls, is now regarded in the Eegistrars' office as the typical form of decree in cases where the title has not yet been proved ; and, recently, Hall, V.C, has refused to follow the form of his own decree in Harper v. Bird, saying that the form of order in Mildmay v. Quiche was the one which was now acceiDted, and the one which he should adopt (Lawe V. Storey, W. N. 1876, 141). In the Appendix are several decrees and orders, which, it is thought, will be found to meet most of the requirements of actions for partition or sale. A sale has been directed of a freehold estate subject to an executory devise over. E. Carbert, by his will in 1846, gave to his wife Elizabeth all his estate and effects during her widowhood, and on her second marriage he willed and bequeathed his estate and effects to Sarah Ann Carbert his daughter, and all other children he might have by his wife, for them and their heirs for ever. In case that all his children should die without issue, he then willed and bequeathed the same as in his will mentioned. The testator died in 1847, leaving his wife and three children only surviving him, viz., Sarah Ann, who subsequently married one Groves, Esther, who subsequently married one Anderson, and the defendant Eliza Carbert. In 1872 a bill was filed by the two married daughters and their husbands against the other daughter, praying partition and sale of the freeholds. At the time of filing the bill Mrs. Groves had issue living, and since filing the bill Mrs. Anderson had issue born. It was submitted on behalf of the plaintiffs that the Court would, under sect. 3, decree a sale subject to the executory devise over in the event of all the daughters dying without issue ; and Malins, V.C. (the defendant not opposing), made the decree (^Groves v. Carbert, 29 L. T. 129). The Court has declined to order a sale, reserving the minerals (Lawe V. Storey, W. N. 1876, 141). A testator left by his will his real estate to his wife for life or until her second marriage; on her death or marriage the estate to be sold, and the proceeds to be divided amongst his three daughters. One daughter married, and her share was settled ; the other two daughters were of age, and filed a bill for THE PARTITION ACT, 1868. 33 sale or j)artition, tlie widow consenting : — Held (by Jessel, M.R.), that the Court had no jurisdiction to order a sale under the Par- tition Act, 1868 ; a petition would have to be preferred under the Leases and Sales of Settled Estates Acts (Cass v. Wood, 30 L. T. 670). After a decree has been made in a partition suit, the Court Injunction has jurisdiction to restrain a defendant from destroying or ^ decree, wasting the property. But where, after a decree for sale in a partition suit, a defendant, who was in occupation of the property, but bound by no contract for tenancy, proposed to sell the hay and turnips from off the land, contrary to the custom of the country as between landlord and tenant : — Held, that this was not such a destruction of the property as the Court would restrain, and a motion for an injunction was refused {Bailey V. Hobson, L. E. 5 Ch. App. 180 ; see Hughes v. D'Arcy, 8 Ir. Eq. 71). B., a party to a suit for partition, consented to a decree for [Conversion sale, and then married. Subsequently the sale was made, and |"°der decree B. died intestate, leaving her husband, who took out letters of I administration to her, and her sisters co-heiresses-at-law : — Held, . that B. had elected to have the property converted, and that her; husband was entitled to her share of the proceeds as personal estate {Foider v. Scott, 19 W. R. 972). So, too, Graham v. Cole (L. J. Notes of Cases, 1873, 102). And where, in an administra- tion suit asking also for partition of real estate, the Court directed a sale, but, before it was effected, one of the j)arties interested in the real estate died : — Held, that the estate was sufficiently converted, and, the estate having been sold, the share of the deceased beneficiary passed to his legal personal representa- tive (Arnold v. Dixon, L. E. 19 Eq. 113). And see Steed v. Preece (L. E. 18 Eq. 192). But the Master of the Eolls has recently held that, where real estate, to a share of which infants were entitled, was sold under the decree in a partition suit, the proceeds of sale must be treated as realty by force of the in- corporated sections of the Leases and Sales of Settled Estates Act. " All that I decided in Steed v. Preece," said his lordship, " was tliat, if a conversion is rightfully made, whether by the 31 THE PARTITION ACT, 1868. Can the Court, in an action for partition, adjudicate iipon the legal title ? Court or a trustee, all the consequences of conversion must follow, if there be no equity in favour of the heir or any one else for re-conversion. In the present case I think there is such an equity in the provisions of sects. 23 to 25 inclusive of the Leases and Sales of Settled Estates Act, w^hich must be read as part of the Partition Act, 1868" (Foster v. Foster, 1 Ch. D. 588). The incorporated sections are set out ante, p. 23. It is clear that before the passing of Sir John Eolt's Act (25 & 26 Vict. c. 42) the Court would have had no jurisdic- tion to adjudicate upon the legal title in a suit for partition (Potter V. Waller, 2 De G. & Sm. 410). But does that Act give the Court a jurisdiction in this respect which it did not previously possess? The material parts of the Act are tho preamble and first section, which are as follows : " Whereas the High Court of Chancery has power in certain cases to refuse or postpone the application of remedies within its jurisdiction, until questions of law and fact on which the title to such remedies depends have been determined or ascertained in one of Her Majesty's Courts of Common Law : And whereas it is expedient that the said power should no longer exist, and that in all such cases every question of law and fact, cognisable in a Court of Common Law, arising in the said Court of Chancery, on which the right of any party to any equitable relief or remedy depends, and whether the title to such relief or remedy be or be not incident to or dependent upon a legal right, should be determined by or before the said Court itself : And whereas the procedure of the Court of Chancery of the County Palatine of Lancaster has been assimilated to the procedure of the said High Court in the matters aforesaid ; and it is expedient that the future procedure of the said Courts should also be alike : Be it enacted, &c., as follows : In all cases in which any relief or remedy within the jurisdiction of the said Courts of Chancery respectively is or shall be sought in any cause or matter instituted or pending in either of the said Courts, and whether the title to such relief or remedy be or be not incident to or dependent upon a legal right, every question of law or fact, cognisable in a Court of Common Law, on the determination of THE PARTITION ACT, 1868. 35 which the title to such relief or remedy depends, shall be determined by or before the same Court." The first reported case which we have on the bearing of this Act on a suit for partition is Bolton v. Bolton (reported under Slade V. Barlow, L. E. 7 Eq. 296). In Bolton v. Bolton the plaintiff claimed under colour of a will which the defendant, who was in possession, did not admit, and the question was decided independently of the Act. But Page Wood, L.J., said : " The question upon the statute 25 & 26 Vict. c. 42, is involved in some degree of difficulty ; but I shall say little upon it. Still we do not give it such full consideration as we should have done if our view as to the effect of the will had been different from what it is. . . , Now I am desirous of giving full effect to the provisions of the Act of Parliament to which I have referred, and of in'eventing matters from being litigated first before one tribunal and then before another ; and I should wish to give much more consideration to the present case if the plaintiff and the defendant were claiming under the same instruments, so that there was nothing to be decided between them but a question upon its construction. But here the defendant says to the plaintiff, ' You are claiming under colour of a will which I do not admit ; I am in possession, and I wish not to be ousted from a trial by jury.' " And Selwyn, L.J., observed, after referring to Potter v. Waller, " a serious question arises, whether that which has been the course of the Court has not been altered by the Act ;" but his lordship did not offer to answer the question, the Court deciding against the defendant on the assumption that the will under which he claimed had been duly executed (see S. C, 19 L. T. 298). Slade V. Barloio (uhi supra) presented the case put by the Lords Justices in Bolton v. Bolton, viz., a question of construc- tion. It was held, under the circumstances, that the Court had no jurisdiction to try the question, but the ground of the decision should be noted. James, V.C., said, " Seeing that the real object of the suit is to recover possession of land under a legal title, and that all the questions raised are legal questions, it certainly would be straining Sir John Eolt's Act very far to say that D 2 36 THE PARTITION ACT, 1868. tlaese questions can be determined by the Court of Chancery," and bis Honour directed the bill to be retained for a year, witb liberty to tbe Plaintiffs to bring sucb action as tbey might be advised. Ward V. Ward (18 W. E. 87) was the next case upon legal questions in partition suits, but it hardly seems to bear upon the precise point now under consideration. Then came Giffard v. Williams (L. E. 5 Ch. App. 546), where Lord Hatherley, L.C., said (overruling Stuart, V.C, L. E. 8 Eq. 494) that " it would not be proper for this Court, under colour of making a decree for partition, in fact to decide the legal title to land." It is to be observed that in this case (1) the defendants were in possession, (2) the plaintiffs and defendants claimed under different titles. In Hurry v. Rurrtj (L. E. 10 Eq. 346) the Court was called upon, as incidental to partition or sale, to construe legal devises, and the Court (James, V.C.) construed them. The same was the case in Burt v. Hellyar (L. E. 14 Eq. 160) ; no one objecting, the Court exercised jurisdiction, Wickens, V.C, saying, " I may observe that the question which I have decided is one of law, not of equity, and that, a partition suit being an exercise by the Court of administrative rather than con- tentious jurisdiction, it might not have been right that I should have dealt with it, if any one objected. But no one did object, in fact ; and I think that, under the circumstances, I do not go heyond tJie limits of my proper jurisdiction, and that I do what is best for the parties by now deciding the case. It will be proper, however, to preface the decree with a statement of the desire of all parties, other than the infant, that the question should be decided here and now." It will be observed that here the Court exercised the jurisdiction, notwithstanding that one of the parties was not sui juris. And in Davey v. Wietlisbach (L. E. 15 Eq. 269) the same judge made a declaration of the ( ? legal) rights of infants. Conclusion The conclusion to be drawn from the cases cited above from the cases, appears to be that the Court has jurisdiction, under Sir John Eolt's Act, to decide legal questions which may incidentally THE PARTITION ACT, 1868. 37 arise in actions for partition, where the parties claim under the same title, and the question between them is only one of construction ; but that, where the parties claim under different titles, or where the construction of legal questions is not merely incidental to partition or sale, but forms the real gist of the action, there the Court has no jui'isdictiou given it by the Act. It will be. observed that the jurisdiction is not permissive merely, but imi)erative. And now, by the Supreme Court of Judicature Act, 1873, sect, operation of 24, sub-sect. 7, the High Court of Justice and the Court of J^uUcatureAct, Appeal respectively, in the exercise of the jurisdiction vested in them by that Act in every cause or matter pending before them respectively, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to them shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim proj)erly brought forward by them re- spectively in such cause or matter ; so that, as far as possible, all matters so in controversy between the said parties re- spectively ]nay be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided. X. In a suit for partition the Court may make such Costs in parti- tion suits. order as it thinks just respecting costs up to the time of the hearing. Before the passing of this Act the general rule was that in suits for partition parties bore their own costs up to the hearing (see Agar v. Fairfax, 17 Ves. 533), and in Landell v. Baiter (L. E. 6 Eq. 268) it was held that the Act was not intended to alter the practice respecting costs. But this decision was plainly against the meaning of the Act, and has not been followed. In Osborn v. Oshorn (L. E. 6 Eq. 338), the costs of all parties (including infants) were declared a lien on the proceeds of sale, and this case was followed by Miller v. 38 THE PARTITION ACT, 1868. Marriott (L. E. 7 Eq. 1). The costs of all parties were paid oiit of the estate in Leach v. Westall (17 W. E. 313). It has also been, laid down that the entire costs of a partition suit should be borne by the parties in proj)ortion to their interests as declared by the decree, except where there are any special circumstances arising from the conduct of the parties which may lead the Court to apportion the costs otherwise [Cannon v. Johnson, L. E. 11 Eq. 90). In Simpson v. Bitchie (L. E. 16 Eq. 103) Lord Selborne (sitting for the Master of the EoUs) said : " Having regard to the 10th section of the Partition Act, 1868, it cannot be said that the Court is bound by the old rule as to the costs of partition suits. It is impossible to lay down a general rule on the subject ; and there may be cases in which the Court, in the exercise of its discretion, will follow the old practice." His lordshij) had himself a very short time before followed the old practice under the special circumstances of the case, and directed that there should be no costs up to and including the hearing (WilMnson v. Joherns, L. E. 16 Eq. 14). So a defendant, through whose conduct a suit was rendered ne- cessary, was ordered to pay his own costs (Graham v. Cole, L. J. Notes of Cases, 1873, 102). And where a defendant improperly disjiutes the plaintiff's title, he will be ordered to pay so much of the costs as are occasioned thereby (Hill v. Fulbrooh, Jac, 574, the decree being appended to the report of the case ; WilJcinson v. Castle, 16 W. E. 501). As to general XI. Sectlous nine, ten, and eleven of the Chancery orders under » i » oi-o this Act (21 & Amendment Act, 1858, relative to the making of general 22 Vict. c. 27). orders, shall have effect as if they were repeated in this Act, and in terms made applicable to the purposes thereof. The incorporated sections are as follows : — (9.) The Lord Chancellor of Ireland, with the advice and assistance of the Master of the Eolls and the Lord Justice of Appeal in Ireland, or either of them, may, and they are hereby THE PARTITION ACT, 1868. 39 required from time to time to make general rules and orders for carrying tlie purposes of this Act into effect as regards tlie Court of Chancery in Ireland, and for regulating the times and forms and mode of procedure, and generally the practice of the said Court in resjiect of the matters to which this Act relates, and for regulating the fees and allowances to all officers of the said Court and solicitors thereof in respect to such matters, and so far as may be found expedient for altering the course of proceedings hereinbefore prescribed in respect to the matters to which this Act relates, or any of them ; and such rules and orders may from time to time be rescinded or altered by the like authority, and all such rules and orders shall take effect as general orders of the said Court. (10.) . . . the Chan- cellor of the Duchy and County Palatine of Lancaster, with the advice and assistance of the Lord Justices of the Court of Appeal in the High Court of Chancery, or one of them, and of the "Vice-Chancellor of the Coiinty Palatine, may, and they are hereby required from time time to make such general rules and orders as may be necessary for assimilating the procedure and practice of the Palatine Court in respect of the matters afore- said to those of the High Court of Chancery, and for regulating the fees and allowances in respect thereof. (11.) The Lord Chancellor, with the advice and assistance of the Master of the Eolls, the Lords Justices of the Court of Appeal in Chancery, and the Vice-Chancellors, or any three of them, may, and they are hereby required, from time to time to make general rules and orders for carrying the purposes of this Act into effect, and for regulating the times and forms and mode of procedure, and generally the practice of the said Court, in respect of the matters to which this Act relates, and for regulating the fees and allowances to all officers of the said Court and solicitors thereof, in respect to such matters, and so far as may be found expedient for altering the course of proceeding hereinbefore prescribed in respect to the matters to which this Act relates, or any of them ; and such rules and orders may from time to time be rescinded or altered by the like authority, and all such rules and orders shall take effect as general orders of the said Court. 40 THE PARTITION ACT, 1868. Jurisdiction of County Courts in jjartition. 28 & 29 Vict. c. 99. In what County Court action should be instituted. No sucli general orders have been made. Tlie words, there- fore, in sect. 9 of the Partition Act, 1868, " any person may, within a time limited by general orders, apply to the Court to add to the decree or order," are denuded of all effect. XII. In England the county courts shall have and exercise the like power and authority as the Court of Chaucery in suits for partition (including the power and authority conferred by this Act) in any case where the property to which the suit relates does not exceed in value the sum of five hundred pounds, and the same shall be had and exercised in like manner and subject to the like provisions as the power and authority conferred by section one of " The County Courts Act, 1865." It is no where expressly stated in what County Court a plaintiff should institute an action for partition or sale. But the question aj)pears to be covered by" The County Courts Act, 1865," sect. 10, sub-sect. 6, which provides that " proceedings in any suit or other matter imder this Act, which are not otherwise provided for " — as is the case with the kind of actions now under consideration — " shall be taken or instituted in the County Court within the district of which the defendants, or any or either of them, shall reside or carry on business." (And see the County Courts Act, 1867, sect. 1.) But this rule is qualified by the remarks of James, V.C., in Baker v. Wait (L. E. 9 Eq. 103). In that case a plaint (the object of which was to charge the separate estate of a married woman, proceedings " not otherwise provided for ") had been filed in a County Court against five defendants, of whom one only, who was in the j)laintiflf's interest, had a residence in the County Court district, all the others being resident in other districts ; and James, V.C., said, " The meaning of the statutes is, that as far as possible a matter shall be disposed of within the juris- diction in which it bond fide arose. . . . The real point here is, THE PAKTITION ACT, 1868. 41 that these defendants do not reside within the jurisdiction of this County Court. The object of the statute (of 1865) was to bring justice home to the door of every man — that is to say, to the doors of defendants. Here it is sworn that the substantial defendants live — two of them at B., one at P., and another in another County Court district in S. ; and the only defendant within the G. district is in the plaintiff's interest. If a plaintiff, having only, as he may be called, this ' pocket ' defendant of his own within this district, were to go on with a plaint filed in the County Court of the district in which none of the other defendants reside, I should not hesitate to say that all orders made in such a matter would be wholly void, and of no effect." But the jurisdiction given to County Courts in proceedings .Jurisdiction of where the subject-matter does not exceed in amount or value ^Qt^gxclusWe 500Z. is not exclusive ; it is merely concurrent with, and does not oust, that of the High Court of Justice, and, where pro- ceedings of that nature are carried on in the High Court, full costs will generally be allowed {Scotto v. Heritage, L. R. 3 Eq. 212; Grandin v. Raines, W. N. 1873, 12 ; Brown v. Bi/e, L. R. 17 Eq. 343). But, where plaintiff and defendant lived at the same place, though the jurisdiction of the High Court was upheld, only County Court costs were given (^Simojis v. 3I^A(lam, L. R. 6 Eq. 324). In Baker v. Wait, under the circumstances Transfer from mentioned above, and it being disputed whether or not the to^ffi^^ Court subject-matter of the action was within the County Court limit, James, V.C., said that it was not a case in which the Coimty Court jurisdiction ought to have been invoked, and ordered a transfer to the Court of Chancery. By the County Courts Act, 1865, sect. 3, any one of the Vice-Chancellors, on the application at chambers of any party to any suit or matter pending under that Act, shall have power, then and there, or, if he shall think fit, after hearing a summons served upon the other party or parties, to transfer the same to the Court of Chancery (now to the High Court of Justice), upon such terms, if any, as to security for costs or otherwise, as he may think fit. 42 THE PAETITION ACT, 1868. By the County Courts Act, 1865, sect. 9, it is enacted that if during the progress of any suit or matter it shall be made to appear to the Court that the subject-matter exceeds the limit in point of amount to which the jurisdiction of the County Courts is thereby limited, it shall not affect the validity of any order or decree already made, but it shall be the duty of the Court to direct the said suit or matter to be transferred to the Court of Chancery (now to the High Court of Justice), and thereupon the said suit or matter shall proceed in such one of the Vice- Chancellors' Courts as the Lord Chancellor may by general order direct ; and such Vice-Chancellor shall have j)Ower to regulate the whole of the procedure in the said suit or matter, when so transferred : Provided always, that it shall be lawful for any party to apply to such Vice-Chancellor at chambers for an order authorizing and directing the suit or matter to be carried on and prosecuted in the County Court, notwithstanding such excess in the amoimt of the limit to which jurisdiction in the matter is by the Act given to the County Courts ; and the Vice-Chancellor, if he shall deem it right to summon the other parties or any of them to appear before him for that purj)ose, after hearing such parties, or on default of the ajipearance of all or any of them, shall have full power to make such order. Where it was j)roved at the hearing that the estate the subject- matter of the suit exceeded 500L, and the judge accordingly ordered a transfer to the Court of Chancery, it was held on appeal (affirming the order) that the suit was " in progress " within the meaning of the 9 th section of the County Courts Act, 1865, and that the County Court judge was justified in making the order for transfer : but it was said that if, on the face of the proceedings, the value of the projierty had appeared to be in excess of the sum which gives the County Court jurisdiction, then the judge ought to have dismissed the i^laiut (BirJcs v. Silverwood, L. E. 14 Eq. 101). So in Thomson v, Flinn (L. R. 17 Eq. 415), a partition suit, it was held, on aj)peal from the County Court, that the 14th section of the County Courts Act, 1867, does not repeal the 9th section of the County Courts Act, 1865 ; that the two sections THE PARTITION ACT, 1868. 43 must be construed together, and that, where it appears from the plaint itself that the County Court has no jurisdiction, the suit ought to be dismissed under the 14th section of the Act of 1867 ; but that, where the want of jurisdiction appears only from evidence produced after the institution of the suit, the proper course is to order the proceedings to be transferred under the 9th section of the Act of 1865. By the County Court Rules, 1875, xx., r. 5, it is provided that if during the progress of any action upon any claim or title, or to obtain any relief, remedy, or redress which might respectively, be- fore November 1, 1875, have been the subject of a plaint or peti- tion in equity, it shall be made to appear that the subject-matter of the plaintiff's claim exceeds the amount to which the jurisdiction of the Court is limited, the judge, if requested, may forthwith make an order for the transfer of the action to the Chancery Division of the High Court of Justice, but, if not so requested, the'order shall not be made before fifteen days at least ; and the registrar yhall make and file a copy of such order, and shall transmit the order, by post or otherwise, to the proper officer of the Chancery Division of the High Court of Justice, and shall also send notice, by post or otherwise, of the fact to all parties and persons entitled to be served with a copy of the order. And by the next rule of the same order it is provided that if, during the progress of taking any accounts or making any inquiries in any action for any claim, right, redress, or remedy, which might before the commencement of the Supreme Court of Judicature Act, 1873, have been enforced in equity, it shall appear to the registrar that the subject matter of the action exceeds the amount to which the jurisdiction of the Court is limited, he may, if he thinks fit, proceed with and complete the particular account or inquiry, but he shall at the next sitting of the Court present a certificate of the state of the proceedings in the action, and if the judge shall be of opinion that such excess exists, he shall make an order of transfer as under the last preceding rule. And by the Supreme Court of Judicature Act, 1873, sect. 90, 44 THE PARTITION ACT, 1868. where in any proceeding before auy inferior Court any defence or counter-claim of the defendant involves matter beyond the jurisdiction of the Court, such defence or counter-claim shall not affect the competence or the duty of the Court to dis- pose of the whole matter in controversy so far as relates to the demand of the plaintiff and the defence thereto, but no relief exceeding that which the Court has jurisdiction to administer shall be given to the defendant upon any such counter-claim : Provided always, that in such case it shall be lawful for the High Court, or any division or judge thereof, if it shall be thought fit, on the ajiplication of any party to the proceeding, to order that the whole proceeding be transferred from such inferior Court to the High Court, or to any division thereof; and in such case the record in such proceeding shall be transmitted by the registrar, or other proper officer of the inferior Court to the said High Court ; and the same shall thenceforth be continued and j)rosecuted in the said High Court as if it had been originally commenced therein. Transfer from By the County Courts Act, 1867, sect. 8, where any suit or High Coiirt to proceeding shall be pending in the High Court of Chancery, which suit or proceeding might have been commenced in a County Court, it shall be lawful for any of the parties thereto to apply at chambers to the judge to whose Court the said suit or ])roceeding shall be attached to have the same transferred to the County Court, or one of the County Courts, in which the same might have been commenced, and such judge shall have power upon such ajjplication, or without such application, if he shall see fit, to make an order for such transfer, and thereupon such suit or proceeding shall be carried on in the County Court to which the same shall be ordered to be transferred, and the parties thereto shall have the same right of appeal that they would have had had the suit or proceeding been commenced in the County Court. As to the judge's discretion under this section, see Linford v. Gudgeon, L. If. 6 Ch. Ai)p. 359. But, although the subject-matter of a suit is within the jurisdiction of the County Court, the Court, in the absence of any special reason, will not order the suit to be transferred to the County Court. '' Every THE PARTITION ACT, 1868. 45 plaintiff," said Stuart, V.C., " has a right to select his own tribunal, and the plaintiff in this case, having chosen this Court, is at liberty to go on with his suit here if he prefers doing so. . . . Transfers of the sort now asked ought not to be made with- out some good and special reason " (Picard v. Hine, 18 L. T. 705). The last-mentioned section of the County Courts Act, 1867, is, by sect. 67 of the Supreme Court of Judicature Act, 1873, to apply to all actions commenced or pending in the High Court of Justice in which any relief is sought which can be given in a County Court. ( 46 ) Short title. Application of Act. Power to dispense with service of notice of decree or order in special cases. THE PARTITION ACT, 1876. (39 & 40 Vict. cap. 17.) An Act to amend the Partition Act, 1868. [21th June, 1876.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Partition Act, 1876, and shall be read as one with the Partition Act, 1868. 2. This Act shall apply to actions pending at the time of the passing of this Act as well as to actions commenced after the passing thereof, and the term " action " includes a suit, and the term "judgment" includes decree or order. 3. Where in an action for partition it appears to the Court that notice of the judgme nt on the hearing of the cause cannot be served on all the persons on whom that notice is by the Partition Act, 1868, required to be served, or cannot be so served without expense dispro- portionate to the value of the property to which the action relates, the Court may, if it thinks fit, on the request of any of the parties interested in the property, THE PARTITION ACT, 1876. 47 and notwitbstanding the dissent or disability of any others of them, by order dispense with that ser vice on any person or class of persons specified in the order, and, instead thereof, may direct adv ertisements to be pub- lished at such times and in such manner as the Court shall think fit, calling upon all persons claiming to be interested in such property who have not been so served to come in and establish their respective claims in respect thereof before the Judge in Chambers within a time to be thereby limited. After the expiratio n of the time so limited all persons who shall not have so come in and established such claims, whether they are within or without the jurisdiction of the Court (including persons under any disability), shall be bound by the proceedings in the action as if on the day of the date of the order dispensing with service they had been served with notice of the judgment, service whereof is dispensed with ; and thereupon the powers of the Court under the Trustee Act, 1850, shall extend to their interests in the property to which the action relates as if they had been parties to the action ; and the Court may th ereupo n, if it shall think fit, direct a sale of the property and give all necessary or proper consequential directions. 4. Where an order is made under this Act dispensing Proceedings . , . ~ ! ' where service wi th serv ice ot notice on any person or class of persons, is dispensed and property is s old b y order of the Court, the following provisions shall have effect : (1.) The proceeds of sale shall be paid into Court to abide the further order of the Court 48 THE TAETITION ACT, 1876. (2.) The Court shall, by order, fix a time, at the expiration of which the proceeds will be distri- buted, and may from time to time, by further order, extend that time : (3.) The Court shall direct such notices to be given by advertisements or otherwise as it thinks best adapted for notifying to any persons on whom service is dispensed with, who may not have previously come in and established their claims, the fact of the sale, the time of the intended distribution, and the time within which a claim to participate in the proceeds must be made : (4.) If at the expiration of the time so fixed or extended the interests of all the persons inter- ested have been ascertained, the Court shall distribute the proceeds in accordance with the rights of those persons : (5.) If at the expiration of the time so fixed or ex- tended the interests of all the persons interested have not been ascertained, and it appears to the Court that they cannot be ascertained, or cannot be ascertained without expense disj)ro- portionate to the value of the property or of the unascertained interests, the Court shall distribute the proceeds in such manner as appears to the Court to be most in accordance with the rights of the persons whose claims to participate in the proceeds have been established, whether all those persons are or are not before the Court, and with THE PARTITION ACT, 1876. 49 such reservation (if any) as to the Court may seem fit in favour of any other persons (whether ascer- tained or not) who may appear from the evidence before the Court to have any primd facie rights which ought to he so provided for, although such rights may not have been fully established, but to the exclusion of all other persons, and there- uj)ou all such other persons shall by virtue of this Act be excluded, from participation in those proceeds on the distribution thereof, but not- withstanding the distribution any excluded person may recover from any participating person any portion received by him of the share of the excluded person. 5. Where in an action for partition two or more sales Provision for case of suc- are made, if any person who has by virtue of this Act cessive sales in same action. been excluded from participation in the proceeds of any of tliose sales establishes his claim to participate in the proceeds of a subsequent sale, the shares of the other persons interested in the proceeds of the subsequent sale shall abate to the extent (if any) to which they were increased by the non-participation of the excluded person in the proceeds of the previous sale, and shall to that extent be applied in or towards payment to that person of the share to which he would have been entitled in the proceeds of the previous sale if his claim thereto had been established in due time. 6. In an action for partition a request for sale may be Request bv E 50 THE PARTITION ACT, 1876. married woman, infant, or person under dis- ability. Action for partition to include action for sale and distribution of the proceeds. made or an undertaking to purchase given on the part of a married woman, infant, person of unsound mind, or person under any other disability, by the next friend, guardian, committee in lunacy (if so authorized by order in lunacy), or other person autliorized to act on behalf of the person under such disability, but the Court shall not be bound to comply with any such request or undertaking on the part of an infant unless it appear that the sale or purchasewill be for his benefit. 7. For the purposes of the Partition Act, 1868, and of this Act, an action for partition shall include an action for sale and distribution of the proceeds, and 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. ( 51 ) APPENDIX. A. Statement of Claim, ashing a Sale and Approval of Con- ditional Contract already entered into. [1876. J. No. .] IN THE HIGH COUET OF JUSTICE. Chancery Division. [Name of Judge.] Writ issued [ ]. Between T. J., J.B., J. T. B. (an infant under the age of 21 years by the said J. E. his father and next friend). &c., &c Plaintiffs, and A. B., &c. ... Defendants. Statement of Claim. 1. S. P. of, &c., made his will dated, &c., and thereby gave devised and api)ointed all his messuages, lands, tenements, and hereditaments, &c., unto and to the use of B. P. (now deceased) and the defendant A. B., and their heirs during the life of the testator's wife 31. P. (now deceased), in trust to pay to or permit and suffer her to receive and take the rents and profits thereof for her life for her separate use, and from and after her decease gave, devised, and appointed, &c., unto and to the use of the said B. P. and the defendant A. B., their heirs E 2 52 APPENDIX. and assigns, upon certain trusts for the benefit of the testator's daughter M. J. (now deceased) during her life, and from and after the decease of the said M. J. in trust for all and every the child and children of the testator's said daughter, who being a son or sons should attain the age of twenty-one years, or being a daughter or daughters should attain that age or marry, if more than one in equal shares and proportions as tenants in common and not as joint tenants, and their respective heirs for ever. 2. The testator died on the of seised of the hereditaments in his said will particularly mentioned and de- scribed, and without having revoked or altered his said will, except by a codicil thereto not affecting the hereinbefore stated devise, and such will and codicil were duly proved, &c. 3-10. (State M. J.'s family, and the devolution of the equitable interests in the real estate devised by the will of S. P., shewing in whom the same ai'e now respectively vested). [11. A conditional contract was recently entered into for the sale of the entirety of the hereditaments and premises devised by the will of the testator S. P. upon trust for his said daughter M. J. for her life to one J. E. for the sum of £ . Such contract, however, cannot under the circumstances be completed or carried into effect without the assistance of this Honourable Court]. 12. It appears by the statements hereinbefore contained, and it is the fact, that the j)laintiffs [are in equity entitled amongst them to six equal eighth parts of the said hereditaments and premises so devised as aforesaid by the will of the testator. They] are entitled to have such hereditaments partitioned, and their respective shares thereof conveyed to them in severalty, but by reason of the nature of the property, the number of the parties interested therein, and other circumstances, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them. The plaintiffs request such sale and distribution accordingly. [13. The said contract which has been entered into for the sale of the said hereditaments to the said /. E. is a beneficial contract STATEMENT OF CLAIM. 53 for all parties interested in tlic premises. It would be greatly for their advantage that sucli contract should be completed, and it is expedient that the same should bo approved and adopted by this Honourable Court, and ordered to be carried into eifect.] The plaintiffs claini as follows : — 1. That it may be declared that a sale of the said heredita- ments, devised by the will of the testator S. P. upon trust for his daughter M. J. for her life, and a dis- tribution of the proceeds, will be more beneficial for the parties interested in the said hereditaments than a division of the property between or among them, and that a sale thereof under the direction of this honourable Coui't may be ordered accordingly. [2. That an inquiry may be directed whether it will be for the benefit of the several parties interested in the said hereditaments that the said contract for the sale thereof to the said J. E. should be carried into effect, and that, if such contract shall appear to be for their benefit, the same may be ordered to be completed and carried into effect.] 3. That it may be ascertained, under the direction of this Honourable Court, who are the parties entitled to or interested in the said hereditaments, and that their respective estates and interests therein may be^scer- tained and declared. 4. That all necessary and proper parties may be decreed to join in and execute a proper conveyance of the said hereditaments to the purchaser or purchasers thereof. 5. That the costs of this action may be provided for. 6. Such further or other relief as the nature of the case may require. Delivered the of by Messrs. A. and B., of &c., the solicitors for the plaintiffs. [For minutes of a decree approving of a conditional agree- ment entered into by the parties, see L. K. 18 Eq. 388.] 54 APPENDIX. B. MILDMAY V. QUICKE. (M. E.; lOtli July, 1876.) 1875— B— 1814. Inquiry — Sale, dependent on Besult of Inquiry — Sect. 4. Upon motion for a decree, &c., and upon reading, &c., and the plaintiff, who claims to be interested in a moiety and upwards of the freehold hereditaments and tithes in the bill mentioned, by his counsel requesting a sale thereof and a distribution of the proceeds instead of a division of the said hereditaments and tithes between or among the persons in- terested, His honour doth order that the following inquiry be made, namely. An inquiry who are the persons interested in the said freehold hereditaments and tithes, and for what estates and interests, and in what shares and proportions, and whether they are parties to this suit : And, if it shall be certified that all the parties interested in the said hereditaments and tithes are parties to this suit, and that the plaintiff is entitled to the extent of one moiety or upwards in the said hereditaments and tithes, and requests a sale thereof, It is ordered that the hereditaments and tithes be sold with the approbation of the judge. [Purchase-money to be paid into Court. — Adjourn further consideration. — Liberty to apply.] PENNINGTON V. DALBIAC. 55 c. PENNINGTON v. DALBIAC. (Malins, V.-C. ; 23rd April, 1870.) 1870— B— 1105. * Inquiries and Accounts — Sale of Parts, dependent on Mesidt of Inquiries — Liberty to hid — Special Inquiry as to Liability and Indemnity of Trustees — Partition, lohere no Sale — Allotting Sums for Equality of Partition. Upon motion for a decree this day made, &e., this Court doth ] order that the following inquiries be made and accounts taken : 1. An inquiry what property is vested in the trustees or trustee of the will and codicils of S. B., the testator in the bill named. 2. An inquiry who are the several persons respectively entitled to or interested in the property to which this suit relates, and for what respective estates or interests, and in what respective shares and proportions, and whether they are re- spectively parties to this suit. 3. An inquiry whether any and which of the shares and interests of such several persons respectively are comprised in any and what settlement or settlements, and whether any and which of such shares and interests are subject to any and what charge or charges, incumbrance or incunibrances. 4. An inquiry whether the entirety of the said property, or of any and what jjart thereof, is subject to any and what chai'ge or charges, incumbrance or incumbrances, and in whom the same are respectively vested. 5. An inquiry what are the priorities of the charges and incumbrances on the entirety of the said property, or of any part thereof, and the charges and incumbrances on any undivided shares or share of the said property, or any part thereof. 6. An account of what is due to such of the incumbrancers on ^^/ 56 APPENDIX. the entirety of the said property, or of any part thereof, if any, as shall consent to the sale hereinafter directed of any property subject to their incumbrances or incumbrance, charge or charges. 7. An account of what is due in respect of any' incumbrance or incumbrances, charge or charges on any undivided shares or sharejjf the said j)roi)erty:. 8. And if it shall appear that all persons interested in the said property, and who are necessary parties to this suit, are before the Court, then it is ordered that the whole or such portions or portion of which the sale shall be approved by the judge be sold, or offered for sale, at such times and in such manner as the judge in chambers shall approve. 9. And it is ordered that the property, or any portions or por- tion of the projperty of which' flie sale shall be approved by the judge, be sold, with the approbation of the judge, free from the charges and incumbrances on the entirety thereof, if any, of such of the incumbrancers as shall consent to the sale, and subject to the charges and incumbrances of such of them as shall not consent. And it is ordered that the plaintiffs and de- fendants be at liberty to bid at the sale. And it is ordered that the money to arise by such sale be applied, in the first instance, in payment of or security for what shall appear to be due to the incumbrancers, if any, on the entirety of the property sold, or on any undivided sha res or sha re there of, who shall consent to the sale, according to their respective priorities, and be in the meantime paid into the bank, with the privity of the Paymaster- General, to the credit of this cause, &c. 10. An inquiry whether the trustees of the will and codicils of the said S. B. are or may become subject to any, and, if any, what liability in respect of all or any and what parts of the said property, and whether any and what parts of the proceeds of the said sale ought to be set apart for their indemnity, or whether any and what other arrangement should be made in that behalf. And it is ordered that, if the said property or any part thereof shalLie sold as hereinbefore directed, the plaintiffs and h^ defendants are to bo at liberty to lay proposals before the PENNINGTON V. DALBIAC. 57 judge in chambers for a partition the reof, having regard to the rights of the said plaintiffs and defendants therein. And it is ordered that the plaintiffs and defendants are to be at liberty to lay proposals before the judge in chambers for allotting the said purchase-moneys, or the residue thereof, to any one or more of the persons interested in the property the subject of this suit, in entire or partial satisfaction of his, her, or their shares or share in such property, and for allotting or charging a sum in gross by way of equality of partition, where expedient. And it is ordered that the deeds and writings relating to the said property, or any part thereof in the custody or power of any of the parties, be upon oath brought before the judge as he shall direct. [Adjourn further consideration. — Liberty to apply.] 58 APPENDIX. D. LEES V. COULTON. LEES v. GLUTTON. (M. E. ; 17tb April, 1875.) 1875— B— 730. Title proved at Hearing — Sale — Liberty to apply to include other Parcels in Sale — Liberty to bid — Declaration tinder Trustee Act, 1850. The first-mentioned cause coming on tliis day to be debated and heard before the Eight Honourable the Master of the Eolls on the petition for rehearing on the preferred unto his Honour by the plaintiffs in that cause, in the presence of counsel for the plaintiffs and defendants in that cause, and upon motion for a decree in the second mentioned cause, and upon hearing counsel for the defendants in both causes, and upon reading, &c., his honour dotli order that the said decree be discharged ; And doth declare that, subject to the interests of the unborn issue of the children of J. L., the father, in the bill in these causes mentioned, the plaintiffs and defendants in these causes are entitled in manner mentioned in the said bill to the hereditaments therein mentioned. And the Court, being of opinion that, from the nature of the property and the number of persons interested therein, a sale of the said property and a dis- tribution of the proceeds will be more beneficial to the parties interested than a division of the property among them, and the plaintiffs and such of the defendants as are sui juris requesting a sale, doth order and decree that the several estates mentioned and described in Part III. of the bill in the first-mentioned cause," except such parts thereof as have been sold as in the said bill mentioned, but including, &c., . . . but subject, as regards the estates respectively affected thereby, to the several leases mentioned in paragraph of the said bill, &c., be sold, and any of the parties to the secondly-mentioned cause are to be at LEES V. COULTON, LEES V. CLUTTON. 59 liberty to apply to the judge at cliambers to include in the said sale any other parcels of lands, mines, or hereditaments, held under the same titles as any of the estates hereby directed to sold. And it is ordered that all parties to the secondly -men- tioned cause be at liberty to bid at the sale, except the parties to whom the conduct of the sale shall be given. And it is ordered that the money to arise by such sale be paid into Court to the credit of these causes. Lees v. Coidton, &c., to such account or separate accounts as the judge in chambers, having regard to the ownership of the several estates to be sold, shall direct. And his honour doth declare that the several parties to the secondly- mentioned cause are trustees within the meaning of the Trustee Act, 1850, of their respective shares and interests in the several estates hereby directed to be sold, and that the interests in such several estates of all unborn persons who might claim under the will of J. L., the father, in the said bill named, are the interests of persons who, upon coming into existence, will be trustees within the meaning of the said Acts. . . . [Adjourn further consideration. — Liberty to apply]. 60 APPENDIX. E. CHUBB V. PETTIPHEK. (Malins, V.-C. ; 25th June, 1870.) 1870— A-1778. Title proved at Hearing — Sale out of Court — Declaration under Trustee Act, 1850 — Costs of Trustees and others — Application of Purchase-moneys. Upon motion for a decree, .&c., and upon reading, &c., and this Court being of opinion that a sale of the hereditaments in the parish of D., devised by the will of the testator A. P., and distribution of the proceeds, will be more beneficial for the several persons now and who may hereafter become interested therein ' than a partition of the said hereditaments, and the plaintiffs and defendants, by their counsel, respectively requesting that such sale may be directed, this Court doth order and declare that the defendants J. W. T. L. and B. A. P. be at liberty to sell the messuage, farm, lands, and hereditaments in the parish of, &c., devised by, &c., in such lot or lots, manner and way, and subject to such particulars, conditions, and provisions, as they may think fit ; And this Court doth declare that upon such sale the plaintiffs and the defendant W. P. P., as one of the co-heirs of the testator, will be the trustees of their respective estates and interests in the said hereditaments hereinbefore directed to be sold for the purchaser or purchasers thereof within the meaning of the Trustee Act, 1850 ; And doth declare that the interest of the unborn children and issue of the plaintiff E. B. C. are the interests of persons who, on coming into existence, would be trustees within the meaning of the Trustee Act, 1850. And this Court doth, pursuant to the said Trustee Act, 1850, hereby aj^point the defendants J. W. T. L. and B A, P. to convey the said hereditaments for the CHUBB V. PETTIPHER. 61 estates therein of the plaintiff and of the defendant W. P. P. as such co-heirs as aforesaid, who are respectively out of the jurisdiction of this Court, and for all such estate and interest as any unborn children or issue of the plaintiff E. B. C. would, on coming into existence, be seised of or entitled to in the said hereditaments. And it is ordered that the defendants J. W. T. L. and B. A. P. do receive the purchase-moneys to arise from the sales of the said hereditaments, and execute the conveyances thereof accordingly. And this Court doth hereby appoint the defendant J. W. T. L. and the Eev. J. T. L. trustees of the plaintiff''s moiety of the moneys to be produced by the sale of the said hereditaments and of such residue as hereinafter mentioned of the fifth share of the defendant M. L. D. in the other moiety of such moneys. And it is ordered that th e costs of the p laintiffs and defendants of this cause, and any charges properly incurred by them preparatory thereto, and of the said J. W. T. L. and J. T. L. as such trustees of the plaintiff's moiety as aforesaid (including the costs of the said J. W. T. L. and J. T. L. in the sale hereby directed), be taxed by the taxing master as between solicitor and client. And it is ordered that the defendants J. W. T. L. and B. A. P. do retain their own costs when taxed, and pay to the plaintiffs and the remaining defendants their costs, when taxed, out of the purchase-moneys to be received by them as aforesaid. And it is ordered that the defendants J. W. T. L. and B. A. P. do pay one moiety of the net residue of the said purchase-moneys to the said J. W. T. L. and J. T. L. as such trustees as aforesaid, to be held by them upon trust to apply the same to some one or more of the purposes mentioned in the 23rd section of the Settled Estates Act, 1856, without any application to this Court, and in the meantime to invest the same in or upon any stocks, funds, or securities, in or upon which, pursuant to the General Orders of this Court, cash under the control of this Court may be invested. And it is ordered that the said trustees do pay the income of the said moiety, and of the investments thereof, to the plaintiff JEJ. B. C. during her life, and that, subject thereto, they do hold the same moiety, and the investments and income thereof, for the benefit 62 APPENDIX. of the other persons interested under the limitations in the said Testator's will contained of and concerning that moiety of the said hereditaments which by the said will was devised to the plaintiff E. B. C. for her life. [Directions as to the remaining moiety of the purchase-moneys. — Liberty to apply.] DICKS V. BATTEN. 63 F. DICKS V. BATTEN. (Stuart, V.-C. ; 28th June, 1870.) 1870— A— 1987. Declaration of Title and full Directions for Partition on further Consideration. This cause coming on, &c., Tliis Court doth declare that the plaintiff is absolutely entitled in fee simple to five undivided eighth parts of the hereditaments in the said decree dated, &c., mentioned, subject to two charges thereon for £ and £ respectively, making together £ , now vested in J. W., and that one other undivided eighth part, &c., &c., and that the remaining undivided eighth part of the said hereditaments is legally vested in the defendant J. B. in fee simple, as to one undivided fourth part thereof for his own benefit, as to one other undivided fourth part thereof for his own benefit, subject to a liability to account for the value thereof to the said H. B. B., and as to one other undivided fourth part thereof in trust for the said C. J. B., subject to the title by the curtesy of J. B., his father, and as to one other undivided fourth part thereof in trust for the said E. C. B. And this Court doth order that, having regard to the declaration hereinbefore contained, a par- tition be made of the said hereditaments b y the judge in chambers, and that the same be divided into ninety-six equal parts, and that sixty of such parts be allotted as the share of the plaintiff, subject to the said charges of £ and £ , and that twenty-two of such parts be allotted as the share of the defendant J. B., discharged from the said charges, but subject as to three of such parts to a liability for accounting for the value thereof, &c. And it is ordered that the plaintifi' and defendant and the said E. C. B., &c., do hold and enjoy their respective shares in severalty according to such allotments, but 64 APPENDIX. subject as aforesaid. And it is ordered that the plaintiff and defendant, &c., do execute all such conveyances as shall be necessary for effectually vesting the said shares in the parties aforesaid according to their respective interest therein, such conveyances to be settled by the judge. And it is ordered that the deeds and writings relating to the said hereditaments in the custody or power of any of the said parties be produced upon oath before the judge, as he shall direct. And it is ordered that such of the said deeds as relate to the premises that shall be allotted to any of the said parties other than the said C. J. B. be delivered over to them respectively, and such of the said deeds as relate as well to the premises that shall be allotted to any of the said parties as to the premises that shall be allotted to any others or other of them shall be delivered to the plaintiff upon oath, he submitting to produce the same on necessary occasions, and to enter into a covenant for that purpose (such covenant to be settled by the judge in case the parties differ), and to deliver attested copies thereof at the expense of any other or others of the said parties requiring the same, and such of the said deeds as relate exclusively to the premises that shall be allotted to the said infant C. J. B. be deposited with the Clerk of Kecord and Writs for safe custody on behalf of the said infant until further order. And any of the parties are to be at liberty to lay proposals for a partition before the judge in chambers. [Directions as to costs. — Liberty to apply.] ALLEN V. ALLEN. 65 G.- ALLEN V. ALLEN. (Malins, V.-C. ; 14th July, 1873.*) 1873— A— 2006. Sale of Part and Partition of Part, notwithstanding Chief Clerics Certificate. This cause coming on, &c., and upon reading, &c., this Court doth declare that the plaintiff and her incumbrancers, the defendant C. L. A. and her incumbrancers, H. C. and C. T., the trustees of the settlement dated, &c., made on the marriage, &c., ate entitled to the said freehold, copyhold, and leasehold estates particularised in the said schedule to the chief clerk's said certificate in equal sixth shares. And, this Court being of opinion that there is no necessity to sell the whole of such freehold, copyhold, and leasehold hereditaments and premises, and the plaintiff, by his counsel, requesting a sale of such portion as is set forth in the schedule hereto, this Court doth order that such portion of the said freehold, copyhold, and leasehold hereditaments as are set forth in the schedule hereto, and such other parts of the said hereditaments as shall appear imi:)racticable to be partitioned as hereinafter directed, be sold with the approbation of the judge, And that the money to arise from the said sale be paid into Court, &c. And it is ordered that, notwithstanding the finding in the said certificate that a sale of the hereditaments woidd be more beneficial for the parties interested therein than a division thereof between or among them, (having regard to the declaration hereinbefore contained) a partition be made by the judge in chambers, so far as may be practicable, of [such portion of] the said freehold, copyhold, and leasehold hereditaments described in the said * According to the Eegistrars' books, this decree was pronounced by Malins, V.-C, but the report of the case in 21 W. R., 842, attributes it to Wickens, V.-C, 66 APPENDIX. schedule to the chief clerk's said certificate as is not set forth in the schedule hereto, And that the same be divided into six equal parts, And that one sixth part thereof be allotted as the share of the plaintiff and her incumbrancers, and that one other sixth part thereof, &c, ; And it is ordered that the re- spective parties do hold and enjoy their respective shares in severalty according to such allotments, and execute mutual conveyances to each other according to their respective interests therein, such conveyances to be settled by the judge. . . . ROEBUCK V. CHADEBET. 67 H. EOEBUCK V. CHADEBET. (M. R.; nth June, 1869.) 1869— B— 1551. Title proved at Hearing — Sale of Part, Partition of Part — Declarations under Trustee Act, 1850. Upon motion for a decree, &c., and upon reading, &c., His Lordsliip doth declare that each of the plaintiffs, &c., the de- fendant E. C, &c., are entitled to one equal undivided sixth part or share of the coj)yhold hereditaments in the plaintiff's bill mentioned, &c. ; And the plaintiffs and the defendant E. G. respectively desiring, and by their respective counsel asking, that a partition should be made of such parts of the said here- ditaments as are comprised in the first schedule to the said affidavit of J. L. only, and that the hereditaments comprised in the second and third schedules to the last-mentioned affidavit, being the remaining parts of the said copyhold hereditaments, should be sold, and his Lordship being of opinion that a sale of the said hereditaments comprised in the said second and third schedules and a distribution of the proceeds will be more beneficial to the infant defendant than a partition of the said premises. Doth order that a p artition of the hereditaments com- prised in the said first schedu le be made b y the judge in chamberS;__^ncZ it is ordered that the same be divided into six equal parts, and that one of such parts be allotted as the share of the plaintiff M. E. M. B., and one other sixth part as the share, &c. And it is ordered that the plaintiffs and defendants do respectively hold and eujoy their said respective shares in severalty according to such allotments. And his Lordship doth declare that the infant defendant J. E. B. is a trustee of her one undivided sixth part or share of the said herditaments comprised in the said first schedule within the meaning of the P 2 68 APPENDIX. Trustee Act, 1850, And doth order that the said J. F. B., her father and guardian, be appointed to surrender and assure the same on her behalf. And it is ordered that the plaintiffs respectively, and defendant E, C, and the said J. jP. B. on behalf of the said infant defendant, do make and execute mutual surrenders and assurances to each other or as they shall respectively direct according to their respective interests therein, such surrenders and assurances to be settled by the judge. And it is ordered that the hereditaments comprised in the said second and third schedules be sold with the approbation of the judge. [Payment of purchase-money into Court.] And Ms LordsMjy doth declare that upon such payment being made the said infant defendant J. E. B. will be a trustee of her said one undivided sixth part or share of the said hereditaments comprised in the said second and third schedules within the meaning of the Trustee Act, 1850, And doth order that the said J. F. B. be appointed to surrender and assure the same on her behalf, and any of the parties are to be at liberty to apply in chambers for the costs of this suit out of the money to arise by such sale, and for the distribution thereof, and otherwise as there may be occasion. BASXETT r. MOXOX. 69 I. BASNETT V. MOXON. (xM. R. ; 31st May, 1875.) 1875— A— 1145. Adjourned Summons — Declaration under Trustee Act, 1850. The aiiplication of the plaintiff, and of the defendant J. W. B., which, upon hearing the solicitors, &c., was adjourned to be heard in Court, coming on this day to be heard accordingly in the presence of counsel for the same parties, and upon reading, &c.. His Honour doth declare that, as to the interests of the infant defendants A. H. 3L, &c., in the real estate of the said testator sold pursuant to the said decree, the said infant defendants A. H. 31., &c., are trustees within the meaning of the Trustee Act, 1850, and that the interest of any unborn sons and daughters and issue of the defendants J. W. B., &c., in the said real estate of the said testator are the interests of persons who, upon coming into existence, would be trustees within the meaning of the said Act, and that, as to such interest or interests in the said real estate as the right heirs of the plaintiff might claim as purchasers under the said will of the said testator, the same interest or interests is or are the interest or interests of a person or persons who, upon coming into existence, would be a trustee or trustees within the meaning of the said Act. And his Honour doth order that the defendant T. H. be appointed to execute the several conveyances, for the purpose of conveying the real estate sold under the decree dated &c., in this suit, to the several purchasers thereof or as they shall direct resj^ectively for all the said estate and interests of the said infant defendants A. H 31., &c., and for all such estate and interests as any such unborn sons, daughters, and issue of the defendants J. W. B., &c., and the right heirs of the plaintiff as such pui'chasers as aforesaid respectively would, on coming into existence, be seised or possessed of in such real estate, and that the defendant T. H. do execute such conveyances accordingly. And it is ordered that the costs of this application be costs in the cause. F 3 INDEX A. Accounts may be directed of rents and profits, repairs, and im- provements, 7 Action for partition or sale, wlio may maintain, 3, 6, 25 Anticipation, restraint on, no bar to a sale, 15 B. Bid, Parties interested may bave liberty to, 19 Person conducting tbe sale allowed to, bere, 20 c. Certificate, cbief clerk's, partition directed in opposition to, 31 And see Inquiries. Chancery Division, actions for partition or sale assigned to, 13 Conversion under decree for sale, 33 Conveyances, Partition perfected by mutual, 1, 9 Form of dii-ections for mutual. See Appendix. Coparceners, rigbt of, to partition or sale, 3, 25 Copyholds may be tbe subject of an action for partition or sale, 1 Costs Of actions for partition or sale, bow borne, 37 County Court, only given, wben, 41 Courts, County, Jurisdiction of, not exclusive, 41 In wbat, action sbould be instituted, 40 Transfer from Higb Court to, 44 Transfer from, to Higb Coiu-t, 41 Wbat, bave jurisdiction under tbe Partition Acts, 11, 40 INDEX. D. Decrees and Orders, forms of. »S'ee Appendix. And see Partition, Sale. Disability, Persons under, may request a sale, 6, 11 „ may give undertaking to purchase share, 19 And see Infant, Married Woman. E. Equities, Adjustment of, by the Court, 7 Bound by decree for sale, 21 G. General Orders, power of the Court to make, 38 Improvements, account may be directed of, 7 Infant, request or undertaking by. Court need not comply with. 14,19 And see Disability. In.junction after decree, 33 Inquiries, May be taken on summons or motion, when, 26 Order directing, foi*ms of, see Appendix. Sale made before certificate in answer to, irregular, 26 Interpretation of words and phrases : — " A suit for partition where," &c., 13 " Action," 46 " An order for partition or sale," 31 " Beneficial," 14 " Good reason to the contraiy," 17 " Judgment," 46 " Moiety," 17 " Request," 14 " The Court," 11, 40 Ireland, Jurisdiction of the Courts in, 11, 13 Partition of lands in. never decreed in England, 13 INDEX. 73 J. Joint Tenants, the riglit of, to partition or sale, 3, 25 Judgments. See Decrees, and Interpretation. Jurisdiction Of County Courts, 40 ,, not exclusive, 41 Of Court of Chancery in Ireland, 11, 13 ,, of Lancaster, 12, 40 Of High Court of Justice, 12 Of Lauded Estates Court in Ireland, 11, 13 Persons out of the, notice how given to, 27 To order sale, where none, 32 L. Lancaster, jurisdiction in the County Palatine of, 11, 12 Landed Estates Court, jurisdiction of the, 11, 13 Leaseholds may be the subject of an action for partition or sale, 2, 3 Lessee for a long term of an undivided share should be a party to the action, 7 See Tenant for years. Lunatic, directions given to committee of, for carrying out partition, 22 And see Disability. M. Manors may be the subject of an action for partition or sale, 3 Married Woman Erroneously described as single, 15 May give undertaking to purchase, 19 May request a sale, 14 Semble, without being separately examined, 15 Even where restrained from anticipation, 15 Minerals, the Court will not resei-ve, on a sale, 32 Mortgagee May maintain action for foreclosure and partition, 5 7 ^/y^ „ not for partition only, 5 ^ Of entirety need not be a party, 6 ^^ ^ uj Motion, when inquiries may be directed on, 26 7; i' ir^'^ 0, ^^ ^ Occupation, party in, may be charged with rent. S 74 INDEX. Onus pkobandi, 15, 16 Oedeks and Decrees, forms of, see Appendix. And see Partition, Sale. P. Parties to actions for partition or sale, 6, 7, 15, 24 Partition Confined to aliquot share of the plaintiff, 3 Decree for, should contain directions for mutual convey- ances, 9 „ forms of, see Appendix. „ injunction after, 33 „ vests equitable right only, 9 Directed in opposition to chief clerk's certificate, 31 Effected in chambers, 31 Equality of, the Court may award sums for, 3 Had formerly to be prayed, where sale only wanted, 14 Methods of, 1 Need not be of every part of the estate, 3 Of lands in Ireland never decreed in England, 13 Of pai-t, and sale of part, 31 Or sale, actions for, application of Trustee Act to, 20, and see Appendix. „ „ Settled Estates Act to, 23 „ Court adjusts all equities in, 7 „ costs in, 37 „ in High Court, to be assigned to the Chancery Division, 13 „ in what Courts to be commenced, 11, 40 parties to, 6, 7, 15, 24, 25 „ power of Court to adjudicate upon legal title in, 34 ; to order sale in, 13 „ statement of title in, 7 „ what may be the subject of, 1 „ who may maintain, 3 When a matter of right, 8 Writ of, abolished, 1 Proceeds of sale, distribution of, when all persons interested not ascertained, 29 Purchase Of share, undertaking as to, 17 „ „ may be given by persons under disability, 19 „ ., when given, 19 INDEX. 75 Purchase — continued. Money, application of, on sale by trustees, 23 „ payment of, into Court, 20, 23, 47 ,, ,, to trustees, 24 PuRCHASEK, discharge of, where sale iiTegular, 30 E. Rents and profits, account may be dii'ected of, 7 Repairs, account may be directed of, 7 Request for sale May be made V»y persons under disability, 14 May apparently be withdrawn, 15 Retrospective operation of the Partition Acts. 11 Reversioner cannot maintain action for partition or sale, 5 s. Sale, By trustees, 24 Conditional contract for, 31 Decree for, at what time and under what circumstances ordered, 25 . „ conversion under, 33 „ equities bound by, 21 Distribution of proceeds of, when all persons interested not ascertained, 29 How and when effected before the Partition Acts, 9 Imperative under 4th section of Partition Act, 1868 • 6 Minerals will not be reserved on a, 32 Mode of, 31 Notwithstanding the instrument forbids it, 15 Request for, may be made by persons under disability, 13 „ may apparently be withdrawn. 15 Subject to executory devise over, 32 When iiTegular, 26 And see Partition. Sales, provisions in case of successive, 30 Service of Notice of Decree, How given, 29 Interested persons bound by, 7, 24 May be dispensed with by the Court, 28, 46 When dispensed with, proceedings, 29, 47 Statement of claim, form of, 51 76 INDEX. Statutes : — - 31 Hen. 8, c. 1 . . 3 32 Hen. 8, c. 32 . . 4 3&4 Will. 4, c. 27..1 4&5 Vict. c. 35..1 13 & 14 Vict. c. 60.. 20, 28 19 & 20 Vict. c. 120.. 22, 33 21 & 22 Vict. c. 27.. 38 25 & 26 Vict. c. 42.. 34 28 & 29 Vict. c. 99..40, 41, 42 30 & 31 Vict. c. 142.. 40, 44 36 & 37 Vict. c. 66.. 6, 26, 37, 43, 45 Summons, inquiries may be directed on, 26 T. Tenants By the curtesy, right of, to partition or sale, 5, 25 For lifis, „ „ 3, 25 ^here their interest determinable on mari-iage, 5 For yeq,rs, right of, to partition or sale, 4, 25 In coTmpion, ,, ,, 3, 25 In tail' „ „ 5,25 Jointr'J' „ , „ 3,25 Title Acquired subsequently to commencement of action, 6 Costs occcasioned by defendant improperly disputing plain- tiff's, 38 Legal, can the Court adjudicate upon ? 34 should be before the Court, 6 Statement of, in actions for partition or sale, 7 Trustees, Power in Court to declare persons, 20, 22 Appointment of, 21 And see Purchase, Sale. V. Vesting orders, 22 w. 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