Duke (13 Eq. 280) (married women); Grove v. Comyn (18 Eq. 387) (infants); Halfhide v. Robinson (9 Ch. 373) (persons of unsound mind).

31 & 32 Vict.

c. 40, s. 3.

portion of

4. In a suit for partition, where, if this act had not been Sale on applipassed, a decree for partition might have been made, then if the cation of party or parties interested, individually or collectively, to the certain proextent of one moiety or upwards in the property to which the parties suit relates, request the court to direct a sale of the property interested. and a distribution of the proceeds, instead of a division of the property between or among the parties interested, the court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and give all necessary or proper consequential directions.

This section is an imperative enactment to the effect that, if parties Effect of this interested to the extent of one moiety or upwards request a sale, the court section. shall order a sale, unless it sees good reason to the contrary (Pitt v. Jones, 5 App. 661; Drinkwater v. Ratcliffe, 20 Eq. 530). A mortgagee is a party interested, and must be reckoned in the proportion of interests under this section (Davenport v. King, 49 L. T. 92); so is a tenant for life with an absolute power of appointment subject to a contingent life interest (Parker v. Trigg, 1874, W. N. 27). An order was made when the plaintiff's were the owners of one moiety and the sole defendant a lessee for seven years of the other moiety (Mason v. Keays, 78 L. T. 33).

The onus is thrown on the person who says that the court ought not to Good reason order a sale to show some good reason why it should not do so: otherwise to the conthe court is bound to order it (Pemberton v. Barnes, 6 Ch. 693; Fleming v. trary. Crouch, 1884, W. N. 111). The fact that the owner of one moiety of an estate is yearly tenant of the whole property, and occupies it for the purposes of his business, and also resides thereon, is no "good reason why a sale should not be ordered (Wilkinson v. Joberns, 16 Eq. 14; Roughton v. Gibson, 36 L. T. 93; 46 L. J. Ch. 366); nor is the fact that a sale will reduce the income of an infant (Rowe v. Gray, 5 Ch. D. 263); nor the fact that the land has fallen in value, and the proceeds will only produce an income equal to half the rent (Re Whitwell, 19 L. R. Ir. 45). See as to what will not be "good reason in the case of a mansion-house and estate (Pemberton v. Barnes, 6 Ch. 685; Porter v. Lopes, 7 Ch. D. 358; Lys v. Lys, 7 Eq. 126). But where partition was as easy as sale, and would cause no loss to the plaintiff, while a sale would cause great loss to the defendant, and the action was vindictive, there was held to be "good reason" (Saxton v. Bartley, 48 L. J. Ch. 519; 1879, W. N. 94; see Re Langdale, I. R. 5 Eq. 572).

5. In a suit for partition, where, if this act had not been passed, a decree for partition might have been made, then if any party interested 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 among the parties interested, the court may, if it thinks fit, unless the other parties interested in the property, or some of them, undertake to purchase the share of the party requesting a sale, direct a sale of the property, and give all necessary or proper consequential directions, and in case of such undertaking being given, the court may order a valuation of the share of the party requesting a sale in such manner as the court thinks fit, and may give all necessary or proper consequential directions.

As to purchase of share of party desiring sale.

31 & 32 Vict. c. 40, s. 5.

Authority for parties interested to

bid.

Application

of Trustee Act.

13 & 14 Vict. c. 60.

Application of proceeds of sale.

19 & 20 Vict. c. 120.

Conversion.

This section is an independent enactment, not to be construed merely as a proviso on sect. 3 (Pitt v. Jones, 5 App. Cas. 659); under it the court has a discretion to refuse a sale requested by any party, even should no other party interested undertake to buy him out (Richardson v. Feary, 39 Ch. D. 45). If such an undertaking be offered, the court cannot under this section order a sale (Pitt v. Jones, 5 App. Cas. 659); but a party requesting a sale cannot be compelled to sell his interest at a valuation (Ib.; Williams v. Games, 10 Ch. 204); and may still press for a sale under sect. 3 (Pitt v. Jones, 5 App. Cas. 659; Drinkwater v. Ratcliffe, 20 Eq. 531). Undertakings to purchase may be given by persons under disability (Partition Act, 1876, s. 6, post, p. 740).

6. On any sale under this act the court may, if it thinks fit, allow any of the parties interested in the property to bid at the sale, on such terms as to non-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 party having the conduct of the sale will not as a rule be allowed to bid. In one special case he was allowed (Pennington v. Dalbiac, 18 W. R. 684); but this was not followed in a similar case (Verrall v. Cathcart, 27 W. R. 645; 1879, W. N. 100; see Wilkinson v. Joberns, 16 Eq. 14; Gilbert v. Smith, 11 Ch. Div. 82). Parties who bought under a liberty to bid, and had been allowed to set off part of the purchase-money against their shares, were charged interest at 3 p.c. on the amounts set off (Re Dracup, Field v. Dracup, 1894, 1 Ch. 59).

7. Sect. 30 of the Trustee Act, 1850, shall extend and apply to cases where, in suits for partition, the court directs a sale instead of a division of the property.

This section was repealed by the Trustee Act, 1893, and replaced by a provision in sect. 31 of that Act (post, p. 776). Where an order for sale was made contingent on the answers to certain inquiries, the court, by the same order, declared that on such a sale infant parties would be trustees, and appointed their next friend to convey their shares (Davis v. Ingram, 1897, 1 Ch. 477).

8. Sects. 23 to 25 (both inclusive) of the act of the session of the 19th and 20th years of her Majesty's reign (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.

Sections 34 to 36 of the S. E. Act, 1877 (which correspond to sections 23 to 25 of the S. E. Act, 1856), are given at length ante, pp. 638 et seq. This section applies to all sales under this act, whether of settled estates or otherwise (Re Barker, 17 Ch. Div. 244). Money has been paid out to trustees appointed for the purposes of the S. L. Acts (Pyne v. Phillips, 1895, W. Ñ. 8).

An order for sale properly made in an administration action effects conversion as from its date and before sale (Hyett v. Mekin, 25 Ch. D. 735). In the case of sales under this act there is a similar conversion as regards the share of a person sui juris (Arnold v. Dixon, 19 Eq. 113; 23 W. R. 314; Re Pickard, Turner v. Nicholson, 53 L. T. 293; see Re Morgan, Smith v. May, 1900, 2 Ch. 478). As regards, however, the shares of persons under disability and who have not properly requested or consented to a sale, there is (in the case of sales under this act) an equity for reconversion in the sections of 19 & 20 Vict. c. 120 (see now

S. E. Act, 1877, ss. 34, 35, and 36, ante, pp. 638 et seq.), which are imported into the Partition Act, 1868. So held in the case of a married woman (Mildmay v. Quicke, 6 Ch. D. 553; see Re Lloyd, 9 P. D. 65); a lunatic (Re Barker, 17 Ch. Div. 241; Grimwood v. Bartels, 25 W. R. 843); an infant (Foster v. Foster, 1 Ch. D. 588; compare the similar case under sect. 69 of the Lands Clauses Act, 1845, Kelland v. Fulford, 6 Ch. D. 491). Under sect. 6 of the Partition Act, 1876 (post, p. 740), a request for sale may be made on the part of an infant or married woman by the next friend or guardian. Where in an action in which an infant suing by his next friend was plaintiff, other parties entitled to one moiety requested a sale, and a sale was ordered on that footing, there was an equity for reconversion of the infant's share even though according to the form of the judgment he had also requested a sale (Re Norton, N. v. N., 1900, 1 Ch. 101). Similarly where the sale was ordered upon the request of several plaintiffs, one of whom was an infant (Howard v. Jalland, 1891, W. N. 210; see Re Norton, sup.). There is, however, no such equity for reconversion where a married woman has properly requested a sale under sect. 6 of the Partition Act, 1876 (Wallace v. Greenwood, 16 Ch. D. 362; see as to an infant, Ib.; Re Norton, N. v. N., 1900, 1 Ch. 101). Where there is an equity for reconversion in the case of a married woman, she can signify her election to take the fund as personal estate by a separate examination (Standering v. Hall, 11 Ch. D. 652). And where the fund was under 2007. her separate examination has been dispensed with, payment out to her being made on affidavit of no settlement (Wallace v. Greenwood, 16 Ch. D. 362; but see Topham v. Burgoyne, 41 L. T. 670). The committee of a lunatic will only be authorized to request a sale upon the terms that the proceeds shall be subject to the same uses as the land (Re Pares, Lillingston v. Pares, 12 Ch. Div. 333; see Lunacy Act, 1890, s. 123).

It seems that proceeds of land sold under this act, which is in court, and belongs to a person sui juris, who is absolutely entitled thereto and does not deal with it, is personal estate, and in the event of his death is payable to his personal representatives. So held in the case of a person sui juris who had become entitled as heir-at-law to an infant's share of such proceeds (Mordaunt v. Benwell, 19 Ch. D. 302); and in the case of a person who had become of unsound mind after the date of an order for payment out to her (Re Pickard, Turner v. Nicholson, 53 L. T. 293). Where at the time of an order for sale under this act an undivided share of the land was vested in the trustees of the will of a former owner of such share (which will contained no power to invest in real estate), and a share of the proceeds was subsequently ordered to be paid to such trustees as persons absolutely entitled," such share devolved among the beneficiaries named in the will as personal estate (Re Morgan, Smith v. May, 1900, 2 Ch. 474). But it was said that if the fund had remained in court, it would have devolved as real estate (Ib. 478).

Where land in which persons under disability were interested was sold under this act, the court refused to order payment of the proceeds to trustees (Higgs v. Dorkis, 13 Eq. 280; see Aston v. Meredith, 13 Eq. 492; Re Morgan, Smith v. May, sup.).

31 & 32 Vict.

c. 40, s. 8.

suits.

9. Any person who, if this act had not been passed, might Parties to have maintained a suit for partition, may maintain such suit partition against any one or more of the parties interested, without 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 thinks necessary or proper with a view to an order for partition or sale being made on further consideration; but all persons who, if this

c. 40, s. 9.

31 & 32 Vict. act had not been passed, would have been necessary parties to the suit, shall be served with notice of the decree or order on the hearing, and after such notice shall be bound by the proceedings as if they had been originally parties to the suit, and shall be deemed parties to the suit, and all such persons may have liberty to attend the proceedings; and any such person may, within a time limited by general orders, apply to the court to add to the decree or order.

Parties.

Pleading.

Receiver.

Hearing.

Service.

Final order for sale.

As to who may maintain an action for partition, see ante, p. 731.

In actions under this act, trustees represent their beneficiaries (R. S. C. Ord. 16, r. 8; Simpson v. Denny, 10 Ch. D. 28; Goodrich v. Marsh, 1878, W. N. 186; see Stace v. Gage, 8 Ch. D. 451). An annuitant is not a necessary party (Poole v. Poole, 1885, W. N. 15). As to mortgagees, see cases quoted ante, p. 732. An order was made where the plaintiffs were the owners of one moiety and the sole defendant a lessee for seven years of the other moiety (Mason v. Keays, 78 L. T. 33).

In pleading it is sufficient if the statement of claim asks a sale and distribution of proceeds. It need not ask partition (39 & 40 Vict. c. 17, s. 7, post, p. 741). It should indicate under which section of this act the sale is claimed (Evans v. Evans, 48 L. T. 567; 52 L. J. Ch. 304); and if a sale is claimed under sect. 3, on the ground that it is more beneficial, this should be expressly pleaded (Ib.). Where the property had been misdescribed the pleading was amended, and a judgment was given referring to the order post-dated (Winkley v. Winkley, 44 L. T. 572). A claim to redeem a mortgage on the plaintiff's share cannot be added to the claim for partition or sale (Sinclair v. James, 1894, 3 Ch. 554).

Before the hearing, a receiver may in a proper case be appointed (Porter v. Lopes, 7 Ch. D. 358).

At the hearing, an immediate order for sale had been made on admission by the defendant of the title as set out in the statement of claim (Burnell v. Burnell, 11 Ch. D. 213); but where infants are interested the claim should be verified by affidavit (Willis v. Willis, 61 L. T. 610; see Crook v. Crook, 1890, W. N. 26). Where all persons interested, and who were in existence, were parties, and the title was proved by affidavit at the hearing, an immediate order for sale was made without preliminary inquiry (Lees v. Coulton, 20 Eq. 20). And often this is the shortest and least expensive course (Re Stedman, Coombe v. Vincent, 58 L. T. 709). But, semble, it can only be adopted where the property is small, and the title simple (Wood v. Gregory, 43 Ch. D. 82; Hawkins v. Herbert, 60 L. T. 142; 37 W. R. 300). The usual course is to direct inquiries, and an immediate order for sale may be made conditional on the result (Powell v. Powell, 10 Ch. 130); the words "further consideration" in this section not being used in their technical sense (Ib.; see Mildmay v. Quick, 20 Eq. 538). The form of order usually made when (under sect. 4) persons interested in a moiety or upwards request a sale is given in Seton, 6th ed. 1855. In Seton, 6th ed. 1853, is given a form for use where a sale is requested under sect. 3 (see Re Hardiman, Pragnell v. Batten, 16 Ch. D. 360; Waite v. Bingley, 21 Ch. D. 674; Sykes v. Schofield, 14 Ch. D. 629). Preliminary inquiries may be directed on admissions in the pleadings (R. S. C. Ord. 32, r. 6), without evidence (Gilbert v. Smith, 2 Ch. Div. 686). Where in such a case the defendants were infants, no affidavit was required, the court holding that the inquiries would be a sufficient protection to the infants (Ripley v. Sawyer, 31 Ch. D. 494); not following Senior v. Hereford (4 Ch. D. 494); see Fitzwalter v. Waterhouse (52 L. J. Ch. 83).

Under this section notice of the decree must be served on all necessary parties who are not before the court at the hearing. Under sect. 3, however, of Partition Act, 1876 (post), such service may be dispensed with.

No final order for sale will be made unless all persons interested are parties (Dodd v. Gronow, 17 W. R. 511), or have been served with notice

c. 40, s. 9.

of the judgment (Peters v. Bacon, 8 Eq. 125; Peal v. Watts, 11 Eq. 213; 31 & 32 Vict. Hurry v. Hurry, 10 Eq. 346; see Silver v. Udall, 9 Eq. 227); or such service has been dispensed with under sect. 3 of the Partition Act, 1876, post, p. 738 (Re Hardiman, Pragnell v. Batten, 16 Ch. D. 360); or unless the absent parties can be presumed to be dead, as where they have not been heard of for a long time (Jackson v. Lomas, 23 W. R. 744; Rawlinson v. Miller, 1 Ch. D. 52). A sale before the certificate in answer to inquiries has been approved is invalid, and the purchaser is entitled to be discharged (Powell v. Powell, 10 Ch. 130; see Rawlinson v. Miller, 1 Ch. D. 54). Where the action has been begun in a district registry, the inquiries may be held there, but the application for a sale must be made in the High Court (Sykes v. Schofield, 14 Ch. D. 629).

court.

R. S. C. Ord. 51, r. la, provides that in all cases where a sale or par- Sale out of tition is ordered, the court or a judge shall, in addition to existing powers, have power for good reason to authorize the same to be carried out, either by laying proposals before the judge or by proceedings altogether out of court, the proceeds being dealt with as the judge may order; but no proceedings altogether out of court are to be authorized unless the judge is satisfied that all persons interested are before the court or are bound. As to when a sale is " altogether out of court," see Cumberland Banking Co. v. Maryport Co. (1892, 1 Ch. 92).

Under this rule an order for sale out of court may be made, even where an infant is interested (Willis v. Willis, 61 L. T. 610); or a person of unsound mind (Crook v. Crook, 1890, W. N. 26). Before the making of the rule this was otherwise (Strugnell v. Strugnell, 27 Ch. D. 258). A form of order for sale out of court is given in Seton, p. 1867, 6th ed.; and see Willis v. Willis, 61 L. T. 610. The reserve price and the auctioneer's remuneration should be fixed by the chief clerk, and the money should be paid into court (Pitt v. White, 57 L. T. 650; Willis v. Willis, sup.; Re Stedman, Coombe v. Vincent, 58 L. T. 709).

For effectuating a sale under this act, the estate tail of a lunatic may be Form of barred upon terms (Re Pares, Lillingston v. Pares, 12 Ch. Div. 333. The order. court declined to sanction a sale reserving minerals (Law v. Stoney, 1876, W. N. 141). Various forms of orders under the act are given in Seton, p. 1853 et seq., 6th ed. For form of order when infants are interested, see Davis v. Ingram (1897, 1 Ch. 477). For order where there have been permanent improvements, see Parker v. Trigg (1874, W. N. 27); Williams v. Williams (1899, W. N. 66), and cases there referred to; and where there are annuitants interested, see Poole v. Poole (1885, W. N. 15).

10. In a suit for partition the court may make such order Costs in paras it thinks just, respecting costs up to the time of the hearing.

The rule as to costs in a partition suit before this act was that no costs were given until the hearing; and that the costs of the partition should be borne by the parties in proportion to the value of their respective interests; without any costs of subsequent proceedings (Agar v. Fairfax, 17 Ves. 557; Richardson v. Feary, 39 Ch. D. 50).

In cases under this act the general rule is that the entire costs are borne by the estate, that is, by each share in proportion to its value, the shares being ascertained at the date of the chief clerk's certificate (Belcher v. Williams, 45 Ch. D. 510; see Cannon v. Johnson, 11 Eq. 90; Ball v. Kemp-Welch, 14 Ch. D. 512; Graham v. Clinton, 81 L. T. 717). Where partition only was asked for, this rule has been followed (Bowes v. Marquis of Bute, 27 W. R. 750); but under special circumstances the old rule may be adopted (Richardson v. Feary, 39 Ch. D. 50), or the court may exercise its discretion (Porter v. Lopes, 7 Ch. D. 367; Re Hawkesworth, 1 L. R. Ir. 179; Jennings v. Foster, 1884, W. N. 200; see Osborn v. Osborn, 6 Eq. 338; Miller v. Marriott, 7 Eq. 1; Leach v. Westall, 17 W. R. 313; Simpson v. Ritchie, 16 Eq. 103). As to costs of adverse litigation in respect of one share, see Jennings v. Foster (1884, W. N. 200); Mildmay v. Quicke

tition suits.