25 & 26 Vict. c. 108, s. 1. Powers of sale, &c. not to be invalid on the express mention of exception or reservation of minerals, &c. CONFIRMATION OF SALES. 25 & 26 VICTORIA, c. 108. An Act to confirm certain Sales, Exchanges, Partitions, and [7th August, 1862.] WHEREAS trustees and others, in the intended exercise of trusts or powers authorizing them to dispose of land by sale, exchange, partition, or enfranchisement, have disposed of land subject to such trusts or powers, with an exception or reservation of minerals, and either with or without rights and powers for or incidental to the working, getting, and carrying away of such minerals, or otherwise relating thereto, or have so disposed of minerals with or without such rights and powers separately from the residue of the land, such mode of disposition not being expressly authorized nor forbidden by the instrument creating the trust or power: and whereas it is expedient to confirm such dispositions as aforesaid: be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same as follows: 1. No sale, exchange, partition, or enfranchisement at any time heretofore of land by any trustee or other person, expressed ground of want of or intended to be made in exercise of any trust or power autho rizing the sale, exchange, partition, or enfranchisement of land, and not forbidding the reservation of minerals, and which sale, exchange, partition, or enfranchisement shall have been made with an exception or reservation of minerals, and with or with out rights or powers for or incidental to the working, getting, and carrying away of such minerals, or otherwise relating thereto, shall be invalid on the ground only that the trust of power did not expressly authorize such exception or reservation, but such sale, exchange, partition, or enfranchisement shall be deemed to have taken effect in the same manner as if the excep tion or reservation had been authorized by the trust or power; and no sale, exchange, or partition heretofore made as aforesaid of any minerals separately from the residue of the land subject to the trust or power intended to have been exercised, and either with or without such rights or powers as aforesaid, shall be invalid on the ground only that the trust or power did not expressly authorize such sale, exchange, or partition, but such sale, exchange, or partition shall be deemed to have taken effect in the same manner as if such minerals, rights, and powers (if 25 & 26 Vict. any) had been expressly authorized to be so dealt with sepa- c. 108, s. 1. rately from the residue of such land; but this enactment shall Not to confirm not be deemed to confirm any sale, exchange, partition, or en- sales, &c. defranchisement already declared by a court of competent juris- pending. diction to be invalid, nor to confirm or affect any sale, exchange, partition, or enfranchisement as to the validity of which any suit or other proceeding is now pending (a). (a) Where a testator devised lands to trustees for a term, and subject thereto to his son for life with remainders in strict settlement; and gave the trustees power to demise all or any part of the lands, and all or any of the mines then opened or thereafter to be opened, and to sell all or any part of the lands, the Master of the Rolls, on the authority of Cholmeley v. Paxton (3 Bing. 207, ante, p. 716), held, that under the power the trustees could not sell the lands with a reservation of the minerals. (Buckley v. Howell, 29 Beav. 516.) In consequence of this decision this act was passed. clared invalid or 2. And whereas it is expedient that trusts and powers to Trustees may disdispose of land by way of sale, exchange, partition, or enfran-e land or chisement should be extended in the manner hereinafter appearing: minerals separately, without teldue, &c. Every trustee and other person now or hereafter to become authorized to dispose of land by way of sale, exchange, partition, or enfranchisement may, unless forbidden by the instrument creating the trust or power, so dispose of such land with an exception or reservation of any minerals, and with or without rights and powers of or incidental to the working, getting, or carrying away of such minerals, or may (unless forbidden as aforesaid) dispose of by way of sale, exchange, or partition the minerals with or without such rights or powers separately from the residue of the land, and in either case without prejudice to any future exercise of the authority with respect to the excepted minerals, or (as the case may be) the undisposed-of land; but Sanction of Court this enactment shall not enable any such disposition as aforesaid without the previous sanction of the Court of Chancery, to be obtained on petition in a summary way of the trustee or other person authorized as aforesaid, which sanction once obtained shall extend to the enabling from time to time of any disposition within this enactment of any part or parts of the land comprised in the order to be made on such petition, without the necessity of any further or other application to the court (b). of Chancery requisite. (b) Mortgagees are within this act, and may obtain the sanction of the Mortgagees are court, authorizing them to sell under their power of sale with a reservation within the act. of the mines and minerals. (Re Beaumont, L. R., 12 Eq. 86; Re Wilkin son, L. R., 13 Eq. 634.) The court will sanction a sale of land reserving the minerals, or of the minerals apart from the land without reference to any particular sale. (Re Willway, 32 L. J., Ch. 226; Re Wynn, 28 L. T., N. S. 615; S. C. 21 W. R. 695.) Where a petition is presented for the sanction of the court to a sale of Service. the land apart from the minerals, it seems that the beneficiaries should be served or be made parties to the application. (Re Brown, 11 W. R. 19; Re Palmer, L. R., 13 Eq. 408.) But where trustees, with a power of sale 25 & 26 Vict. c. 108, s. 2. Extent of act. exerciseable with the consent of the tenant for life, presented a petition for leave to sell the land and minerals separately, Malins, V.-C., held that service on the beneficiaries entitled in remainder was unnecessary. (P Pryse, L. R., 10 Eq. 531; see Re Wynn, sup.) A petition by mortgages under the act need not be served on subsequent incumbrancers. (Re Beanmont, L. R., 12 Eq. 86.) For form of petition under this section, see Dan. Ch. Forms, 2190. 3. This act shall not extend to Ireland or Scotland. SALES OF REVERSIONS. 31 VICTORIA, c. 4. An Act to amend the Law relating to Sales of Reversions. [7th December, 1867.] WHEREAS it is expedient to amend the law, as administered in 31 Vict. c. 4, Courts of Equity, with respect to sales of reversions: Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this present parliament assembled, and by the authority of the same as follows: 1. No purchase, made bonâ fide and without fraud or unfair dealing, of any reversionary interest in real or personal estate shall hereafter be opened or set aside merely on the ground of undervalue (a). (a) Before this act, even in the absence of fraud, mere inadequacy of price was sufficient to rescind contracts or dealings with reversioners for their reversionary interests. (See notes to Chesterfield v. Janssen, 1 White & Tudor, L. C., Eq. 593 et seq.) As to what were reversionary interests within this rule, see id. 597 et seq. Where A. was entitled to the income of property, subject to the payment of a life annuity, Lord Chelmsford held, that A.'s interest was not a reversionary interest within the rule (Webster v. Cook, L. R., 2 Ch. 542); but this has been disapproved by Stuart, V.-C. (Tyler v. Yates, L. R., 11 Eq. 276.) The jurisdiction of the Court of Chancery over unconscionable bargains is not affected by this act; the exception in the act as to unfairness leaves the settled law as to such cases untouched. (Miller v. Cook, L. R., 10 Eq. 641; Tyler v. Yates, L. R., 6 Ch. 665.) The words of this section leave undervalue still a material element in cases in which it is not the sole equitable ground for relief. (Per Lord Selborne, Earl of Aylesford v. Morris, L. R., 8 Ch. 490.) s. 1. No purchase, reversionary in aside merely on the ground of undervalue. 2. The word "purchase" in this act shall include every Interpretation of kind of contract, conveyance, or assignment under or by "purchase." which any beneficial interest in any kind of property may be acquired. of act. 3. This act shall come into operation on the first day of Commencement January, one thousand eight hundred and sixty-eight, and shall not apply to any purchase concerning which any suit shall be then depending. 31 & 32 Vict. c. 40, 8, 1. Short title. As to the term "the court." Power to court to order sale instead of division. Bill should pray for partition as well as sale. Sale decreed on request of married woman or infant. PARTITION. 31 & 32 VICTORIA, C. 40. An Act to amend the Law relating to Partition. BE it enacted as follows: [25th June, 1868.] 1. This act may be cited as "The Partition Act, 1868." 2. In this act the term "the court" means the Court of Chancery in England, the Court of Chancery in Ireland, the Landed Estates Court in Ireland, and the Court of Chancery of the County Palatine of Lancaster, with their respective jurisdictions. 3. In a suit for partition, where, if this act had not been passed, a decree for partition might have been made (a), then if it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the. absence or disability of some of those 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 or among them (b), the court may, if it thinks fit, on the request of any of the parties interested (c), and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions (d). (a) This and the two following sections only enable the court to decree & sale in a suit for partition, where if this act had not been passed, a decree for partition might have been made. Therefore, a bill for a sale of property under the act ought to pray for partition as well as sale. (Teall v. Watts, L. R., 11 Eq. 213; Holland v. Holland, L. R., 13 Eq. 406; contra, Aston v. Meredith, L. R., 11 Eq. 601.) As to the cases where, before the act, a decree for partition would have been made, see the notes to Agar v. Fairfax, 2 L. C., Eq. 447, 4th ed.; and as to the practice in partition suits, see 1 Dan. Ch. Pr. 1019 et seq., 5th ed. (b) The power given to the court by this section is a discretionary one, (see the remarks of Lord Hatherley, Pemberton v. Barnes, L. R., 6 Ch. 693); and a sale has been refused where the court considered that the proper order was for a partition. (Dicks v. Batten, W. N. 1870, p. 173; Allen v. Allen, 55 Law Times, W. N. 220.) (c) A sale instead of a partition will be decreed under this act on the request of a plaintiff who is a married woman (Higgs v. Dorkis, L. R., 13 Eq. 280) or an infant. (Young v. Young, id. 175, n.; France v. France, id. 173; Davey v. Wietlisbach, L. R., 15 Eq. 269.) (d) Under this act the court may decree partition of part of an estate and sale of the rest (Roebuck v. Chadebet, L. R., 8 Eq. 127); and may order trustees to sell an estate and divide the purchase-money between the parties entitled, without requiring the sale to take place in chambers |