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Report No. 86

III. Sale

Power of sale in English law.- There still remained another difficulty, even in Chancery. Though the Court of Chancery assumed jurisdiction to decree partition, the Court had no discretion to refuse partition or to order sale in lieu thereof.1 This position produced numerous inconveniences and absurdities. Before the Partition Act of 1868, the Court had no power at common law to direct a sale in lieu of partition, even in case where.partition in specie was highly inconvenient and largely affected the value of the property. Statutes2-3 were, therefore, passed in 1868 and 1876 to give jurisdiction to the Court to order, in certain cases, sale of the property and distribution of the proceeds in lieu of partition.

A classic example of the inconvenience experienced at common law is provided by the case of Turner v. Morgan, (1803) 8 Ves 143 (11) Ves 157. A decree had been passed for the partition of a house among three persons. The Commissioner allotted to the plaintiff the entire stock of chimneys, all the fire places, the only staircase in the house and all the conveniences in the yard. On appeal, Lord Eldon, the Lord Chancellor, in overruling the Objection, said that "he did not know how to make a better partition for the parties; that he granted the commission with great reluctance; but was bound by authority; and it must be a strong case to induce the Court to interpose; as the parties ought to agree to buy and sell".

Effect of Partition Act, 1868.- It was in 18684 that the Court was empowered to decree a sale instead of partition. Such an order might be highly desirable where, for example, the cost of partition proceedings would exceed the value of the property,5 or where a single house had to be partitioned into thirds, and the owner of two-thirds was given all the chimneys and fireplaces and the only stairs;6 but if there were three houses, each share would have consisted of one house, and not a third of each house.7

Power to direct sale.- The Act of 1868 provided for sale at the discretion of the Court, and also for mandatory sale if a moiety of the co-owners requested for sale. By an amendment made in 1876, it was provided that an action for partition was to include action for sale and distribution of proceeds.

Present law.- The Partition Acts have now been repealed.8 Instead, subject to certain qualifications, a power is given to the trustees for sale (in whom the legal estate is vested) to effect a partition with the consent of the beneficiaries, and convey the land to them.9 If the trustees or any of the beneficiaries refuse to agree to a partition, any person interested10 may apply to the court, which may make such order as it thinks fit11-such as, an order for sale.

1. Halsbury's, 3rd Edn., Vol. 32, p. 35, paras. 541, 542.

2. The Partition Act, 1868 (31 & 32 Vict., C. 40) (Appendix 1).

3. The Partition Act, 1876 (39 & 40 Vict., C. 17) (Appendix 2).

4. Partition Act, 1868 amended by the Partition Act, 1879. See Pemberton v. Barnes, (1871) 6 Ch App 685; Powell v. Powell, (1874) 10 Ch App 130; Drinkwater v. Radcliffe, 1875 LR 20 Eq 528.

5. See Griffies v. Griffies, (1863) 11 WR 943.

6. See Turner v. Morgan, (1803) 8 Ves 143 (11) Ves 157 n.

7. Earl of Clarendon v. Hamby, (1718) 1 P Wms 446.

8. L.P. (Am.) A., 1924, sections 10, 12(3), 10th Sched.; L.P.A., 1925, 7th Sched.

9. L.P.A., 1925, section 28(3).

10. For the meaning of "persons interested", see Stevens v. Hutchinson, 1953 Ch 299.

11. L.P.A., 1925, section 30.

The Partition Act, 1893 Back

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