est, difficulty, inconvenience, or rinnate t tion to the exercise of the unstim 1513. 1 Ves. & Bea, 551:35 E. 11-1 18. 237; 22 E. R. 925; Prv. Here 1575; though there was a ration # 13 title (Baring v. Nash). The rari : even absurd inconvenience. Ta ted, a decree was granted for partitan : erersons. The commissioners altelt e thimneys, all the fireplaces the otir o In-mences in the yard. The Lori Chamela wen by the defendant, said that de dig fter partition for the parties. He la T mas auctance, but was bound by authors auce the Court to interfere, is the ans mer v. Morgan, 1803, 8 Ves. 14. 13. R. 9; see also Warner v. Bras. Ma Le ommon-law right to a nurtition t hnstone, [1894] 1 Ch. 708 3 I the Partition Act, 1568, 31 x 12 T omedy the abuses which existed er n the Court power to orier i sale in len I the case demands it. et of the Act, and the evils at whet dvere better stated than in the moment Barnes, 1871, L. R. Ch. 98. erought.-It will be necessary to sess Sinst the Act, and of the amending taste Viet. c. 17. Before doing so. verer, H tion under them must de rote **n Act, 1868, s. 2), and see see the ure Act, 1873, under which lauses r r sale of real estates are issimed to hat 1 28སྒྱུ* ག n Ireland, the Landed Estates at 1 hancery of the County Palatine Lupeaster irisdictions, are comprised in the term le • Act, and by the Palatine Court of an al *7. s. 10, it is extended to the Court LanceFT Pie of Durham. 80 conferred on County Courts in Euzind vrare vich the action relates does not exceed Act. The main provisions of the Aut. mailing te sale in lieu of partition, are contained nees ~rtiy, the effect of those sections is as follows r partition, where before the Act 1 teemme een made, the Court, on the request fares DDRESSGA ase in the following cases: cre, by reason of the nature of the proper smterested, or of the absence or sa any other circumstance, a sale of the of the proceeds would be more interested than a division of the property between them; and that notwithstanding dissent or disability of some of the parties (s. 3). (b) Where the parties interested to the extent of one moiety or upwards request a sale (s. 4). (c) Where a party interested requests a sale, the Court may direct it, unless the other parties, or some of them, undertake to purchase the share of the requesting party, and in case of such undertaking a value of the share may be ordered (s. 5). It will be seen that the foundation of the jurisdiction conferred on the Court is the right to partition. Two main things are essential1. The action must be one in which partition can be ordered. 2. There must be a request by some party or parties interested that the Court will direct a sale. Partition need not be Prayed.-Under the words, "in a suit for partition," which preface each of the three sections, it was formerly held that, even where the sole object of the suit was a sale, a partition must nevertheless have been prayed (Teall v. Watts, 1871, L. R. 11 Eq. 213; Holland v. Holland, 1872, L. R. 13 Eq. 406); but this is no longer necessary, for by sec. 7 of the Partition Act, 1876, it is provided that an action for partition shall include an action for sale and the 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. Who may Sue.-The parties entitled to bring an action under the Act are, by the express terms of it, such as under the previous practice would have been entitled to a decree for partition. No new power, therefore, is conferred on the Court to entertain an action in cases where before the Act no such power existed. It follows from the authorities that the plaintiff must be a co-owner having an interest in possession, as, e.g. a tenant in tail (Brook v. Hertford, 1728, 2 P. Wms. 518; 24 E. R. 843); or for life (Gaskell v. Gaskell, 1836, 6 Sim. 643; 58 E. R. 735); or for an interest determinable on marriage (Hobson v. Sherwood, 1841, 4 Beav. 184; 49 E. R. 309; 55 R. R. 40); but a remainderman or reversioner cannot successfully maintain an action (Evans v. Bagshaw, 1870, L. R. 5 Ch. 340). An order for sale in lieu of partition can be made where the plaintiffs are the owners of one undivided moiety of the premises, and the sole defendant is the lessee of the other undivided. moiety under a lease granted by the owner of that moiety (Mason v. Keays, 1898, 78 L. T. 33). A tenant in common who has mortgaged his share to another tenant in common cannot bring an action to enforce partition of the entirety against his mortgagee, except upon the terms of paying off the mortgage (Gibbs v. Haydon, 1882, 30 W. R. 726; Sinclair v. James, [1894] 3 Ch. 554); but a tenant in common of an equity of redemption can sue (Waite v. Bingley, 1882, 21 Ch. D. 674). Where there are overriding trusts (Taylor v. Grange, 1880, 15 Ch. D. 165), or an existing trust for sale (Biggs v. Peacock, 1882, 22 Ch. D. 284), an order will be refused; nor is there jurisdiction to anticipate the period fixed by a testator for distribution (Swaine v. Denby, 1880, 14 Ch. D. 326). But a mere discretionary power to sell is no bar to the exercise of the jurisdiction (Boyd v. Allen, 1883, 24 Ch. D. 622). A person of unsound mind not so found can bring an action for partition by his next friend (Watt v. Leach, 1878, 26 W. R. 475; Porter v. Porter, 1887, 37 Ch. D. 420). Section 3.-"The 3rd section gives power to the Court to sell for VOL. X. 24 Smallness of interest, difficulty, inconvenience, or reluctance of other co-owners were no objection to the exercise of the jurisdiction by the Court (Baring v. Nash, 1813, 1 Ves. & Bea. 551; 35 E. R. 214; Manaton v. Squire, 1677, 2 Ch. Cas. 237; 22 E. R. 925; Parker v. Gerard, 1754, Amb. 236; 27 E. R. 157); though there was a discretion to refuse partition on a suspicious title (Baring v. Nash). The result was in many cases grave and even absurd inconvenience. Thus, in a case which has been often cited, a decree was granted for partition of a single house amongst three persons. The commissioners allotted to the plaintiff the whole stack of chimneys, all the fireplaces, the only staircase, and all the conveniences in the yard. The Lord Chancellor, in overruling an exception taken by the defendant, said that he did not know how to make a better partition for the parties. He had granted the commission with great reluctance, but was bound by authority, and it must be a strong case to induce the Court to interfere, as the parties ought to agree to sell (Turner v. Morgan, 1803, 8 Ves. 143; 11 Ves. 157n.; 32 E. R. 307, 1050; 14 R. R. 9; see also Warner v. Baynes, 1750, Amb. 589; 27 E. R. 384). Partition Act, 1868.-The common-law right to a partition still exists (Mayfair Property Co. v. Johnstone, [1894] 1 Ch. 508). But it is controlled by the provisions of the Partition Act, 1868, 31 & 32 Vict. c. 40, which has done much to remedy the abuses which existed under the old system by conferring on the Court power to order a sale in lieu of partition where the justice of the case demands it. The general object and effect of the Act, and the evils at which it was aimed, will be found nowhere better stated than in the judgment of Hatherley, L.C., in Pemberton v. Barnes, 1871, L. R. 6 Ch. 685. Action thereunder, where to be brought.-It will be necessary to discuss with some detail the provisions of the Act, and of the amending statute, the Partition Act, 1876, 39 & 40 Vict. c. 17. Before doing so, however, it may be stated that an action under them must be brought in the Chancery Division (Partition Act, 1868, s. 2), and see sec. 34 (3) of the Supreme Court of Judicature Act, 1873, under which all causes or matters for the partition or sale of real estates are assigned to that Division of the High Court. The Court of Chancery in Ireland, the Landed Estates Court in Ireland, and the Court of Chancery of the County Palatine of Lancaster, within their respective jurisdictions, are comprised in the term “The Court," as used in the Act, and by the Palatine Court of Durham Act, 1889, 52 & 53 Vict. c. 47, s. 10, it is extended to the Court of Chancery of the County Palatine of Durham. Jurisdiction is also conferred on County Courts in England, where the property to which the action relates does not exceed in value £500 (s. 12). General Effect of Act.-The main provisions of the Act, enabling the Court to order a sale in lieu of partition, are contained in secs. 3, 4, 5. Stated shortly, the effect of those sections is as follows: In a suit for partition, where before the Act a decree for partition might have been made, the Court, on the request of parties interested, may direct a sale in the following cases : (a) Where, by reason of the nature of the property, or of the number of persons interested, or of the absence or disability of some of the 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 them; and that notwithstanding dissent or disability of some of the parties (s. 3). (b) Where the parties interested to the extent of one moiety or upwards request a sale (s. 4). (c) Where a party interested requests a sale, the Court may direct it, unless the other parties, or some of them, undertake to purchase the share of the requesting party, and in case of such undertaking a value of the share may be ordered (s. 5). It will be seen that the foundation of the jurisdiction conferred on the Court is the right to partition. Two main things are essential1. The action must be one in which partition can be ordered. 2. There must be a request by some party or parties interested that the Court will direct a sale. Partition need not be Prayed.-Under the words, "in a suit for partition," which preface each of the three sections, it was formerly held that, even where the sole object of the suit was a sale, a partition must nevertheless have been prayed (Teall v. Watts, 1871, L. R. 11 Eq. 213; Holland v. Holland, 1872, L. R. 13 Eq. 406); but this is no longer necessary, for by sec. 7 of the Partition Act, 1876, it is provided that an action for partition shall include an action for sale and the 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. Who may Sue. The parties entitled to bring an action under the Act are, by the express terms of it, such as under the previous practice would have been entitled to a decree for partition. No new power, therefore, is conferred on the Court to entertain an action in cases where before the Act no such power existed. It follows from the authorities that the plaintiff must be a co-owner having an interest in possession, as, e.g. a tenant in tail (Brook v. Hertford, 1728, 2 P. Wms. 518; 24 E. R. 843); or for life (Gaskell v. Gaskell, 1836, 6 Sim. 643; 58 E. R. 735); or for an interest determinable on marriage (Hobson v. Sherwood, 1841, 4 Beav. 184; 49 E. R. 309; 55 R. R. 40); but a remainderman or reversioner cannot successfully maintain an action (Evans v. Bagshaw, 1870, L. R. 5 Ch. 340). An order for sale in lieu of partition can be made where the plaintiffs are the owners of one undivided moiety of the premises, and the sole defendant is the lessee of the other undivided moiety under a lease granted by the owner of that moiety (Mason v. Keays, 1898, 78 L. T. 33). A tenant in common who has mortgaged his share to another tenant in common cannot bring an action to enforce partition of the entirety against his mortgagee, except upon the terms of paying off the mortgage (Gibbs v. Haydon, 1882, 30 W. R. 726; Sinclair v. James, [1894] 3 Ch. 554); but a tenant in common of an equity of redemption can sue (Waite v. Bingley, 1882, 21 Ch. D. 674). Where there are overriding trusts (Taylor v. Grange, 1880, 15 Ch. D. 165), or an existing trust for sale (Biggs v. Peacock, 1882, 22 Ch. D. 284), an order will be refused; nor is there jurisdiction to anticipate the period fixed by a testator for distribution (Swaine v. Denby, 1880, 14 Ch. D. 326). But a mere discretionary power to sell is no bar to the exercise of the jurisdiction (Boyd v. Allen, 1883, 24 Ch. D. 622). A person of unsound mind not so found can bring an action for partition by his next friend (Watt v. Leach, 1878, 26 W. R. 475; Porter v. Porter, 1887, 37 Ch. D. 420). Section 3.-"The 3rd section gives power to the Court to sell for VOL. X. 24 certain reasons. These reasons are specified in every case but one. The reasons specified are, the nature of the property, the number of the parties interested, the absence or disability of some of the parties. The reasons are unspecified only in one case, namely, where by reason 'of any other circumstance' a sale of the property and distribution of the proceeds would be more beneficial to the parties interested than a division of the property between or among them. Whenever that happens, and any party interested applies for a sale, the Court may direct a sale. It is an absolute power of sale, on the request of anybody, provided the Court is satisfied that it would be more beneficial for the parties interested than a division" (per Jessel, M.R., Drinkwater v. Ratcliffe, 1875, L. R. 20 Eq. 528). In that case a sale was directed on account of the nature of the property, the number of the parties interested, and because in the opinion of the Court a sale would be more beneficial to the parties interested than a division among them. The Court is at liberty, at the request of a party holding one-tenth, and against the wish of the persons holding the other 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 or reasonable so to do (Pemberton v. Barnes, 1871, L. R. 6 Ch. 685). In considering whether a sale is beneficial, the Court will have regard to the benefit of all the parties interested (Powell v. Powell, 1874, L. R. 10 Ch. 130). And the benefit must be a pecuniary, and not a merely sentimental one (Drinkwater v. Ratcliffe). There is full discretion in the Court under the section; the onus lies upon the owners of the smaller share desiring a sale to show that under all the circumstances a sale is the more beneficial course for all parties. Where it does not appear that a division cannot reasonably be made, a sale should not be directed, in the absence of other circumstances to give the jurisdiction (Allen v. Allen, 1885, 21 W. R. 842). And this discretion will not ordinarily be interfered with by the Court of Appeal (S. C.). See, too, In re Dyer, Dyer v. Painter, 1885, 33 W. R. 806; Gilbert v. Smith, 1879, 11 Ch. D. p. 81. Section 4.-"The 4th section provides that 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 property, 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 shown; they have not to show any reason for the sale, but a reason to the contrary must be shown" (per Jessel, M.R., Drinkwater v. Ratcliffe, 1875, L. R. 20 Eq. 528). "Whereas under the 3rd section a discretionary power was given to the Court to order a sale if it thought a sale more beneficial than a partition, the 4th section makes it imperative on the Court to order a sale unless it sees good reason to the contrary, that is to say, the onus is thrown on the person who says that the Court ought not to order a sale, to show some good reason why it should not do so, otherwise the Court is bound to order it. The scope of the enactment appears to me to be this: There being, as I have said, reasons which may induce some of the part-owners to wish for a partition, and others to wish for a sale and a division of the proceeds, the legislature says that, if the votes are equally divided, one-half of the persons interested in the property desiring a sale, |