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only resorted to in the last instance. Under sec. 5 of the Judicature Act, 1894, 57 & 58 Vict. c. 16, the power to make rules conferred by the Judicature Acts, 1873 to 1891, includes power to make rules with respect to the matters contained in the Partition Acts, 1868 and 1876. No such rules have at present been made; and it is apprehended that nothing short of legislation can modify express statutory provisions.

Request for Sale.-By sec. 6 of the Partition Act, 1876, a request for sale may be made or an undertaking to purchase may be 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 authorised by order in lunacy), or other person. authorised to act on behalf of the person under disability; but the Court is not bound to comply with any such request or undertaking on the part of an infant, unless it appear that the sale or purchase I will be for his benefit.

In Wallace v. Greenwood, 1882, 16 Ch. D. 362, Jessel, M.R., said that the request on behalf of a married woman should be made by a person specially authorised to act on her behalf in the action. In Grange v. White, 1882, 18 Ch. D. 612, Hall, V.-C., required that there should be a request signed by her, authorising and requesting her solicitor to ask for a sale.

"Of course, the provisions of this section only apply to cases where the married woman's share is neither her separate property not affected by the Married Women's Property Act, 1882, 45 & 46 Vict. c. 75, in either of which cases she can deal with it as a feme sole" (Dart's Vendors and Purchasers, p. 1146).

The request on behalf of an infant may be made by his next friend or guardian ad litem (Remington v. Hartley, 1880, 14 Ch. D. 630). Persons of unsound mind may sue by their next friends (Porter v. Porter, 1887, 37 Ch. D. 420; and see Watt v. Leach, 1878, 26 W. R. 475). Under the Lunacy Act, 1890, 53 & 54 Vict. c. 5, s. 120, the Judge in Lunacy may authorise and direct the committee of the estate to make partition of any property belonging to a lunatic or in which he is interested, and to give or receive any money for equality of partition.

As to the effect of a sale effected upon request under this section with regard to a conversion of the sale proceeds, see Wallace v. Greenwood, 1882, 16 Ch. D. 362, and other cases cited, supra, p. 373.

Partition may be Ordered.-The effect of the Partition Act, 1868, has been largely to diminish the number of cases in which partition has been ordered, the remedy by sale having been found to be generally the more convenient one to the parties. But, in a proper case, a judgment for partition will still be made; and that even though the Master has found by his certificate that a sale will be more beneficial (Allen v. Allen, 1873, 21 W. R. 842). And an order may be made for partition of part of the estate and sale of the rest (Roebuck v. Chadebert, 1869, L. R. 8 Eq. 127; Pennington v. Dalbiac, 1870, 18 W. R. 684). It was decided long before the Act that partition might be confined to the aliquot share of one of the parties, if the others did not desire that their shares should be partitioned (Hobson v. Sherwood, 1841, 4 Beav. 184; 49 E. R. 309; 55 R. R. 40).

Where a partition is ordered, it may be carried out either by commission or by a reference to chambers. A commission of partition, however, if not obsolete, is now of extreme rarity. For the practice, see Daniell's Ch. Pr., 6th ed., pp. 1336-1344.

Sale out of Court.-In all cases where (inter alia) a sale or partition is ordered, the Court has power, with a view to saving expense and delay, and for other good reason, to authorise the same to be carried out altogether out of Court, any moneys produced thereby being paid into Court or to the trustees, or otherwise dealt with as the judge in chambers may order. But such proceedings out of Court are not to be sanctioned, unless the judge is satisfied by evidence that all persons interested in the estate to be sold or partitioned are before the Court, or are bound by the order for sale or partition; and every order authorising such proceedings out of Court is to be prefaced by a declaration that the judge is so satisfied, and a statement of the evidence upon which such declaration is made (R. S. C., 1883, Order 51, r. 1A).

The usual order under the above rule is that the reserved biddings and auctioneer's remuneration be fixed by the Court, and the purchasemoney paid directly into Court (Pitt v. White, 1887, 57 L. T. 650; In re Stedman, Combe v. Vincent, 1888, 58 L. T. 709; Willis v. Willis, 1889, 38 W. R. 7; Wood v. Gregory, 1889, 43 Ch. D. 82). In an earlier case, before the rule, it was said that there was no jurisdiction to direct a sale out of Court where there were infants interested, and the trustees had no power of sale (Strugnell v. Strugnell, 1884, 27 Ch. D. 258).

Account of Rents, etc.-Where one of several tenants in common has been in possession, and has received more than his share of rents and profits, an account may be directed against him (Lorimer v. Lorimer, 1820, 5 Madd. 363; 56 E. R. 934); and he may be charged with an occupation rent (Turner v. Morgan, 1803, 8 Ves. p. 145; 32 E. R. 306); or a receiver may be appointed (Porter v. Lopes, 1877, 7 Ch. D. 358).

The amount of the occupation rent may be set off against the share of the co-owner, but not against the mortgagee of a share (Hill v. Hickin, [1897] 2 Ch. 579).

Where the owner of one moiety, who was also tenant for life of the entirety, borrowed money, which was spent in permanent improvements to the property, it was held that the present value of the improvements, not exceeding the sum originally borrowed, must be borne rateably by the owners of both moieties (In re Jones, Farrington v. Forrester, [1893] 2 Ch. 461; and see In re Cooke's Mortgage, Lawledge v. Tyndall, [1896] 1 Ch. 923; Teasdale v. Sanderson, 1864, 33 Beav. 534; 55 E. R. 476). For form of judgment directing an account and inquiry as to expenditure in permanent improvements, see Williams v. Williams, 1899, 68 L. J. Ch. 528, approved Kenrick v. Mountsteven, 1899, 48 W. R. 141; Seton, p. 1860.

Costs. According to the old rule of the Court of Chancery, no costs were given prior to the commission (Agar v. Fairfax, 1810, 17 Ves. 533; 34 E. R. 206); the costs of issuing, executing, and confirming the commission being borne by the parties in proportion to the value of their respective interest. After the passing of the Partition Act, 1868, it was held that it had not altered the practice in that respect (Landell v. Baker, 1868, L. R. 6 Eq. 268). But by sec. 10 full discretion was given to the Court as to costs up to the hearing, and it is no longer bound by the old rule (Simpson v. Ritchie, 1873, L. R. 16 Eq. 103). Under special circumstances, however, the old rule may still be followed (Richardson v. Feary, 1888, 39 Ch. D. 45). Where a partition is asked for, and no advantage is taken of the Partition Act by asking for a sale, and partition only is ordered, then (except perhaps in cases where all parties

desire partition) the old practice will prevail, and no costs up to the hearing will be allowed (Hills v. Archer, 1904, 91 L. T. 166).

In the absence of special circumstances, the full costs of a partition action will now be ordered in the case of a sale to be paid out of the proceeds, and in case of a partition to be borne by the parties in proportion to their respective shares (Cannon v. Johnson, 1870, L. R. 11 Eq. 90; Ball v. Kemp-Welch, 1880, 14 Ch. D. 512; see also Wilkinson v. Joberns, 1873, L. R. 16 Eq. 14; Porter v. Lopes, 1877, 7 Ch. D. 358; Richardson v. Feary, 1888, 39 Ch. D. 45).

In Belchier v. Williams, 1890, 45 Ch. D. 510, North, J., held that the rule which exists in administration actions that, as regards an incumbered share, only one set of costs can be allowed, to be shared between the mortgagor and mortgagee, does not apply to a partition action, and that in such an action both mortgagor and mortgagee will, as a rule, have their costs out of the estate (see also Graham v. Clinton, 1900, 81 L. T. 717). But in Catton v. Banks, [1893] 2 Ch. 221, Kekewich, J., refused to follow that decision, holding that only one set of costs should be allowed out of the proceeds of sale in respect of each share, and that case has been followed in Ancell v. Rolfe, 1896, W. N. 9; In re Vase, Langrish v. Vase, 1901, 84 L. T. 761.

Costs can be taxed as between solicitor and client only by consent (Ball v. Kemp- Welch, 1880, 14 Ch. D. 512).

It may be mentioned, before finally parting with the subject of partition by the Court, that the provisions of the Settled Land Acts, which enable the trustees of the settlement for the purposes of the Acts, or persons appointed by the Court, to exercise the power of the Acts on behalf of infants, have done much to diminish the number of actions brought under the Partition Acts.

C. PARTITION UNDER THE INCLOSURE ACTS.

The Inclosure Acts, 1845-1876, contain various provisions with regard to the partition of lands, as well those subject to be inclosed under the Acts, as those not subject to be so inclosed or subject to be inclosed, as to which no application for inclosure is pending.

By the Board of Agriculture Act, 1889, 52 & 53 Vict. c. 30, the powers and duties of the Land Commissioners for England (the style given to the Inclosure Commissioners for England and Wales by sec. 48 of the Settled Land Act, 1882) were transferred to the Board of Agriculture established by that Act.

The following appear to be the effect of the principal provisions of the Acts on the subject of partition:

Inclosure Act, 1845.-By the Inclosure Act, 1845, 8 & 9 Vict. c. 118, it is in effect provided that partition may be made by the valuer appointed under the Act, upon the request in writing of any persons interested in land to be inclosed in undivided shares, or as joint-tenants, coparceners, or tenants in common of the lands or allotments coming to such persons; and the lands may be allotted to them in severalty, and will thereafter be holden and engaged by them in severalty, subject to the same uses as such undivided share would have been subject to in case such partition had not been made (s. 90).

All costs and expenses attending any partition under the Act are to be borne by the persons interested, in such manner and proportion as the valuer shall order (s. 91).

Inclosure Act, 1848.-By the Inclosure Act, 1848, 11 & 12 Vict. c. 99, the provisions of the prior Acts with regard to exchange of lands not subject to be inclosed (8 & 9 Vict. c. 118, ss. 147, 148; 9 & 10 Vict. c. 70, s. 9; 10 & 11 Vict. c. 111, ss. 4, 6) are extended to partition. Accordingly, upon the application in writing of the persons interested who desire a partition, the Board may direct inquiries whether such partition would be beneficial to the owners of the undivided shares; and in case the Board shall be of such opinion, and that the terms of partition are just and reasonable, and if no notice of dissent be given, an order of partition may be framed and confirmed. In such order the land allotted in severalty to each person is to be specified, and is to be and enure to the same uses, trusts, intents, and purposes, and to be subject to the same conditions, charges, and incumbrances as the undivided share in respect of which it is allotted would have been subject to if the order had not been made (s. 13).

The provisions of the earlier Acts as to notice, dissent, confirmation, and expenses, etc., with respect to an exchange, are to extend to a partition (s. 14).

As to the effect of an award of partition under these Acts upon the title of the allottee, see Jacomb v. Turner, [1892] 1 Q. B. 47.

Inclosure Act, 1849.-By the Inclosure Act, 1849, 12 & 13 Vict. c. 83, the powers of partition under the Inclosure Acts are to extend and be applicable to all incorporeal rights, easements, and other hereditaments. The application of two-thirds in value of the persons interested jointly, severally, as a class, or in common, is to be deemed to be the application of all persons interested (s. 7).

Inclosure Act, 1852.-By the Inclosure Act, 1852, 15 & 16 Vict. c. 79, land held under separate titles by the same person may be partitioned (s. 31).

Partitions and exchanges may also be effected at one and the same time (s. 32).

Inclosure Act, 1854.-By the Inclosure Act, 1854, 17 & 18 Vict. c. 97, an order of partition may be made upon the application of parties in possession under an agreement for partition (s. 5).

Inclosure Act, 1857.-By the Inclosure Act, 1857, 20 & 21 Vict. c. 31, on a partition, disproportion in value of allotments in severalty may be compensated by a perpetual rent-charge, to be charged on the land for the excess in value of which such rent-charge is an equivalent (s. 7); but the deficiency in value of any land must not exceed one-eighth part of the actual value thereof (s. 8).

Inclosure Act, 1859.-By the Inclosure Act, 1859, 22 & 23 Vict. c. 43, lessees need not join in an application for allotment (s. 10).

The provisions as to notice of dissent are not to apply to partitions in which the application is made by two-thirds in value of the persons interested (s. 11).

The net result of these provisions has been thus summed up by a writer on the subject:

"It will be seen, therefore, that the Board of Agriculture have a compulsory power of partition, against the wish of the majority of the joint-owners, in the case of lands to be inclosed. In these cases they can partition on the request of any person interested. In cases of lands not about to be inclosed, however, their powers extend only to making an inquiry whether the proposed partition would be beneficial to the joint-owners, and on that appearing, to make an order of partition,

provided that two-thirds in value of the joint-owners assent" (Foster, p. 166).

See JOINT-TENANCY; PARCENERS; TENANCY IN COMMON.

[Authorities.-Bacon's Abridgment of the Law, 7th ed., 1832, tit. “Coparceners Joint-Tenants, and Tenants in Common;" Carson's Real Property Statutes, 1902; Coke upon Littleton, 19th ed., 1832; Daniell's Chancery Practice, 7th ed., 1901, pp. 1101-1121; Dart on the Law of Vendors and Purchasers, 7th ed., 1905, pp. 1135-1156; Elton on Copyholds, 2nd ed., 1893, pp. 118-120; Foster on Joint-Ownership and Partition, 1878; Lawrence on Sale under the Partition Act, 1868; Morgan's Chancery Acts and Orders, 6th ed., 1885; Seton's Judgments and Orders, 6th ed., 1901, chap. xlvi.; Story's Equity Jurisprudence, 2nd English ed., 1892, chap. xxiv.; Walker on the Partition Acts, 2nd ed., 1882; White and Tudor's Equity Cases, 7th ed., 1897, vol. i. pp. 181-222.]

Parties.

Recitals:

PRECEDENTS.

I. DEED OF PARTITION of FREEHOLDS between Two Tenants

in Common.

day of

19 "

THIS INDENTURE,1 made the BETWEEN [A. B.], of, &c., of the first part; [C. D.], of, &c., of the second part; and [grantee to uses], of, &c., of the third part: WHEREAS under or by virtue of the will dated the 19 of [testator], late of

of title;

of

of agreement for

of agreement as to

deeds.

day of

day deceased, who died on the 19, the said [A. B.] and [C. D.] are now seised of, or entitled to the several messuages and hereditaments hereinafter described, in equal undivided moieties as tenants in common in fee simple in possession free from incumbrances; AND WHEREAS the said [A. B.] and [C. D.] have partition; agreed to effect a partition of the said messuages and hereditaments in manner hereinafter appearing; AND WHEREAS upon the custody of treaty for the said partition, it was agreed that the deeds and documents of title relating to the said premises hereinafter described should be retained by the said [A. B.], who should enter into such acknowledgment and undertaking with respect thereto as are hereinafter contained.2 NOW THIS INDENTURE WITNESSETH, Conveyance that in pursuance of the said agreement, and for the purpose in common. of effecting such partition, they, the said [A. B.] and [C. D.], according to their respective shares and interests respectively, hereby grant, and, as beneficial owners, convey unto the said Parcels by [grantee to uses] and his heirs, ALL THOSE several messuages, closes schedules. of land, and hereditaments situate at in the county

Testatum.

by tenants

reference to

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of
and particularly described in the First and Second
Schedules hereunder written ;3 TOGETHER with all ways and ease-
1 Stamp 10s.

2 For a form of recital adapted to different circumstances, see next Precedent.

3 This is the most usual and convenient mode of describing the parcels in a partition deed; it may also often be advisable to refer to a plan annexed to the deed, as in the next Precedent, post, pp. 382, 383.

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