Power to order sale under Partition Act, 1868.

(2) The number of the parties interested or presumptively interested therein; or

or

(3) The absence or disability of some of the parties interested;

(4) Of any other circumstance.

Sect. 4 of the same Act provides that in a suit (now action) for partition where, if the Act had not been passed, a decree for partition might have been made, then, if the party or parties interested individually or collectively 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 shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and give all necessary or proper consequential directions.

The principle on which the Courts proceed in dealing with this section, said Lord Hatherley in a well-known case, is that if the votes are equally divided, one half of the persons interested in the property desiring a sale, and the other half a partition, then the half requiring the sale shall have the preponderating voice, and the Court shall be bound to give them a sale wholly irrespective of the 3rd section. But still there is a certain discretion left to the Court.

Sect. 5 confers upon the Court a discretionary power to order a sale at the request of any party, however small his interest may be, unless the parties who oppose the sale are willing to take his share at a valuation.

Under this section the House of Lords in a leading case ordered a sale at the request of persons who were entitled to three-sixteenths of the property, although the owners of the remaining thirteen-sixteenths objected to the sale, and offered to buy the three-sixteenths at a valuation (1).

It will thus be seen that the three sections 3, 4 and 5 of the Partition Act, 1868, deal with three perfectly different sets of circumstances.

In cases under sect. 3 the Court has got a discretionary power, owing to the peculiar circumstances of the case before it.

Under sect. 4, the question is as to the wish of the parties interested in the property, and if those interested to an extent of a moiety or upwards ask for a sale, a Court shall direct a sale, that is, it is imperative upon the Court to order it unless it sees some good reason to the contrary.

(1) Pitt v. Jones, 5 App. Cas. 659.

Sect. 5 confers upon the Court a discretionary power to order a sale at the request of any party, unless the opposing parties will agree to take his share at a valuation, in which case the party requesting the sale may either accept that valuation or not. If he does not choose to accept that valuation, he cannot be forced to do so; but will then have his common law right to a partition. In a case decided in 1888 it was laid down that the burden of proof is on the applicant to shew some good reason for ordering a sale (1).

Sect. 6 of the Partition Act, 1876, provides that a request for Partition sale may be made on an undertaking to purchase given on the Act, 1876. part of a married woman, infant, or person under disability (2).

It frequently happens that a very large number of persons are interested in the property which is made the subject of a partition action.

Several difficulties which had arisen in the working of the Partition Act of 1868 were remedied by the provisions of the Act of 1876. Sect. 7 provides that for the purposes of the Partition Act, 1868, and of that Act, an action for partition shall include an action for sale and distribution of the proceeds, and that 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. Another section gives the Court a discretionary power to dispense with service of notice of the judgment on the hearing of an action for partition, when it appears to the Court either that notice cannot be served on all the persons required by the Partition Act of 1868, or when they cannot be served without expense disproportionate to the value of the property (3).

(Richardson v. Feary, 39 Ch. D. 45, where the authorities are reviewed.

(2) The request for sale by a married woman ought to be made by counsel instructed by a solicitor, formally authorized (Grange v. White, 18 Ch. D. 612).

The request for sale by an infant may be made by his next friend or guardian ad litem, but will not be granted unless it is for his benefit (Rimington v. Hartley, 14 Ch. D. 630).

(3) The Court may now direct advertisements to be published at such times and in auch manner as it shall think fit; and the Act provides that after the expiration of the time

VOL. II.

so limited, all persons who shall not
have so come in and established
some claim, 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 dis-
pensing with service, they had been
served with notice of the judgment,
service whereof is dispensed with:
see further as to partition, Brett's
Leading Cases in Equity, notes to
Pemberton v. Barnes, p. 45, et seq.

The general rule as to costs in
partition actions is that they are to
be borne by the parties proportion-
ately to their interests in the pro-
perty. Here, however, the Court has

2 P

A person who is entitled in remainder or reversion cannot commence an action for partition (1).

CHAPTER V.

MORTGAGES-CHARGES-LIENS.

The general principle upon which the Courts proceed in General assisting the mortgagor to recover the mortgaged property, has principle been already pointed out in considering the subject of mort- which the gages in connection with the law of property (1).

upon

Courts

The Court looks at the substance of the transaction. The proceed. money not having been paid, the estate of the mortgagee is absolute in law, but the Court interferes and asks what is the real contract, and when the transaction is a mere security for money enforces the right of the mortgagor to get back his property on payment of the amount due with interest and costs.

This then being the general principle which justifies the interference of the Court in dealings between mortgagor and mortgagee, let us next consider by what principles it is guided in the particular forms of proceedings which are employed by the parties interested in mortgage transactions. These principles have been well stated by Mr. Coote as follows :

"The Court considers that the mortgagor, notwithstanding his breach of condition and the consequent forfeiture at law of his estate shall be relievable, on payment of principal, interest, and costs, and that the mortgagee in possession ought to be held accountable for the rents and profits. On the other hand, it is but just that the mortgagee should not be subject to a perpetual account, nor converted into a perpetual bailiff, but that, after a fair and reasonable time given to the mortgagor to discharge the debt, he should lose his equity, or, in other words, be foreclosed or precluded from his right of redemption. The mortgagor is accordingly assisted in recovering his property by judgment or order of redemption. The mortgagee is assisted in recovering his money by judgment or order of foreclosure" (2).

"What is the principle?" asked Sir George Jessel. "The

() Ante, p. 97, where the judgment in Tarn v. Turner, 39 Ch. D. 456, is quoted.

(2) Seton on Decrees, 4th ed. p. 1041; Coote on Mortgages.

Redemption and foreclosure.

Form of

principle in a Court of Equity has always been that, though a mortgage is in form an absolute conveyance where the condition is broken, in equity it is always security; and it must be remembered that the doctrine arose at the time when mortgages were made in the form of conditional conveyance, the condition being that if the money was not paid at the day, the estate should become the estate of the mortgagee. That was the contract between the parties. Yet Courts of Equity interfered with actual contract to this extent, by saying that there was a paramount intention that the estate should be security, and that the mortgage money should be debt, and they gave relief in the shape of redemption on that principle. Of course that would lead, and did lead, to this inconvenience that even where the mortgagor was not willing to redeem, the mortgagee could not sell or deal with the estate as his own, and to remedy that inconvenience the practice of bringing a foreclosure suit was adopted by which a mortgagee was entitled to call on the mortgagor to redeem within a certain time under penalty of losing the right of redemption" (1).

A great change has been recently introduced into the form of judgment. judgments in mortgage actions. This change is a logical consequence of the Judicature Act, which has "transferred the old jurisdiction of the Courts of Law and Equity to the new tribunal the High Court" (2).

Before the Judicature Act (3) the mortgagee had two rights against the mortgagor which were enforced in different tribunals. He had a personal remedy against the mortgagor on the covenant for payment, and this he enforced by an action in the Common Law Court. He was also entitled to a remedy against the property, and this he could enforce by a suit in equity for foreclosure. Now as both Courts are combined in the High Court, the mortgagee may combine both remedies, the claim on the covenant and the claim for foreclosure in one proceeding in one and the same Court. As illustrating how this practically works, we may direct the reader's attention to a recent case (1) in which the present form of the order of the Court was settled by the Court of Appeal as follows::

(1) Per Jessel, M.R., in Campbell v. Holyland, 7 Ch. D. 171.

(2) Salt v. Cooper, 16 Ch. D. 544,
549.

(3) Dymond v. Croft, 3 Ch. D. 512;
Farrer v. Lacy, Hartland & Co., 31
Ch. D. 42, 49; Bissett v. Jones, 32
Ch. D. 637; Exchange and Hop Ware-

houses, Limited v. Association of Land Financiers, 34 Ch. D. 195; and see Brett's Leading Cases in Equity, pp. 160, 264, where the authorities on the subject are considered.

(*) Farrer v. Lacy, Hartland & Co., 31 Ch. D. 42, 51.