PRECEDENT ON A SALE IN 1. Parties. 2. Recital of will of E. F. prior to Wills Act, devising real estate to trustee for sale. XIII. CONVEYANCE of FREEHOLDS sold under a DECREE of THIS INDENTURE, made &c., BETWEEN A. B., of all other his freehold and devised all and every the freehold part and parts of his estate called Park, in the county of - and estate and hereditaments (if any) unto and to the use of G. H., I. K., and the said A. B., their heirs and assigns, upon trust to sell the same, either together or in parcels [Trust for Sale and Power to give Receipts for Purchase-money (c)]; and (a) See the notes to Precedent XII. (b) The recital of the will in the text, though made before 1837, is not prefaced by a recital of the seisin of the testator, see Vol. i. p. 160, Form xix., because the will was republished by a codicil made subsequently to the passing of the present Wills Act; but see supra, p. 246, n. (c). (c) It will be observed, that the power to give receipts for the purchase-money is recited, and that the trusts of the proceeds of a sale are not referred to in the text. The reason for framing the recital thus is, that the Chancery Procedure Act (15 & 16 Vict. c. 86), authorises (supra, p. 244, n. (u)) a decree for sale to be made in an administration suit on the application of any person interested in the proceeds of the estate without bringing before the court any of the other interested parties, where the whole of such real estate is by the will vested in a trustee for sale with power to give receipts; and consequently, although it is essential, in order to show the validity of the decree, that the trustee's power to give receipts should be recited, it is unnecessary to make more than a general statement, as is done in a subsequent recital, that one of the said testator thereby appointed the said G. H., I. K., said I. K. died on the of day of day of AND WHEREAS the PRECEDENT XIII. ON A SALE IN A SUIT. 3. Republi- 4. Death of two of the three trustees. -, 1844; and the tator. 6. Decree in Chancery directing a sale. WHEREAS the said E. F., being then seised in fee simple death of tesin possession of the parcel of land in the said county hereinafter expressed to be hereby granted, died on the day of —, 1855, without having altered his said will, except by his said codicil, and without having revoked or altered his said codicil, and the same will and codicil were proved in the Prerogative Court of Canterbury on the day of , 1855, by the said A. B.; AND WHEREAS, by a decree of the High Court of Chancery, made on the day of 1856, by his Honour the Master of the Rolls, in a cause wherein J. F. and L. F. his wife and other persons interested in the proceeds of the real estates of the said testator E. F. directed by his said will to be sold were plaintiffs, and the said A. B. was defendant, it was ordered among other things that the trusts of the hereinbefore recited will and codicil should be carried into execution, and that the real estate of the said E. F. devised by his said will should be sold with the approbation of the judge to whose Court the said cause. was attached, and that the purchase-money to arise from such sale should be paid into the Bank, with the privity of the Accountant-General of the said Court, to the credit the plaintiffs in the suit was a person interested in the proceeds of the sale. (d) The death of I. K. was proved in the proceedings in Chancery, but the proof and the recital appear to have been unnecessary, since it would seem that the codicil was a revocation, not only of his trusteeship, but also of the devise to him. PRECEDENT ON A SALE IN A SUIT. 7. Sale by auction under the decree. 8. Payment of a deposit by purchaser to auctioneer. 9. Payment of deposit into Court by auctioneer. 10. Timber to be taken at a valuation. 11. Balance of purchase-money, and interest in default of punc- of the said cause, to an account to be intituled "The proceeds of the testator's real estate devised by his will;" AND WHEREAS the real estate of the said E. F., by the hereinbefore recited decree directed to be sold as aforesaid, was, in pursuance of the said decree, put up for sale by auction on the day of, 1856, in several lots, the hereditaments hereinafter expressed to be hereby granted forming Lot 12; and at the said sale the said C. D. was the highest bidder for the said Lot 12 at the price of £550, and paid the sum of £55 as a deposit and in part payment of the said purchase-money to M. N., the person appointed by the Master of the Rolls to receive the same; AND WHEREAS the said M. N., on the day of, paid the said sum of £55, together with the deposits received by him on the sale of the other lots comprised in the said sale, into the Bank of England, with the privity of the said Accountant-General, to the credit of the said cause, to the account aforesaid; AND WHEREAS it was a condition of the said sale that every purchaser should, in addition to the amount of his bidding at the sale, pay the value of all timber, timber-like trees, tellers, and pollards (if any) on the lot purchased by him down to one shilling per stick inclusive, the amount thereof to be ascertained by a valuation to be made in manner by the said condition provided; And it was another condition of the said sale, that each purchaser should, under an order for that purpose to be obtained by him, or, in case of his neglect, by the vendor at the costs of the purchaser, at the chambers of the Master of the Rolls, pay the balance of his purchasemoney (after deducting the amount paid as a deposit) together with the amount of the valuation under the aforesaid condition (if any), into the Bank of England, with the privity of the said Accountant-General, to the credit of the said cause, to the account aforesaid, on or before the 10th day of November, 1856; And if the same should not be so paid (e), then the purchaser was to pay interest on (e) Where the purchase-money has been paid into court by the PRECEDENT ON A SALE IN A SUIT. 14. Valuation the balance of his purchase-money, including the amount day 15. Chief Clerk's certificate of result of sale approved by the Judge. 16. Order directing refer-. ence as to title. day of upon the application of the said A. B., an inquiry was directed to ascertain whether a good title could be made to the property comprised in the said Lot 12, and the 17. Certificate said Chief Clerk, on the day of as to title. said C. D. the sum of 18. Order confirming certificate and directing payment of purchase-money with interest. certified that a good title could be made and had been shown to the said property comprised in the said Lot 12; AND WHEREAS, by an order of the said Court made in the said cause on the day of it was ordered that the should, on or before the day of , pay £495, the balance of his purchase-money after deducting the said deposit of £55, and the sum of £25, the amount of the aforesaid valuation of timber, making together the sum of £520, together with interest at the rate of £5 per cent. per annum on the said sum of £520 from the 10th day of November, 1856, when the said purchase ought to have been completed, up to the day of payment of the said sum of £520 (the amount of such interest to be certified by the Chief Clerk) into the Bank, with the privity of the Accountant-General of the said Court, to the credit of the said cause, to the said account intituled "The proceeds of the testator's real estate devised by his will;" And thereupon it was ordered that all proper parties should join in and execute a proper conveyance time appointed, no notice will be taken of the condition relative to interest: see the recitals in Precedent XII. supra. PRECEDENT ON A SALE IN A SUIT. 19. Payment into Court of purchase-money and interest. 20. Judge's approval of the conveyance. and assurance of the said property to the said C. D., or as he should direct, such conveyance and assurance to be settled by the Judge to whose Court the said cause was attached, in case the parties differed about the same; AND WHEREAS, in accordance with the said decree and orders respectively, the said C. D., on the day of last, paid the said sum of £520, together with £15, being interest thereon at the rate aforesaid from the said 10th day of November up to the said day of (the amount thereof having been certified as directed. by the said order of the day of), and which said sums amounted together to £535, into the Bank, with the privity of the said Accountant-General, to the credit of the said cause, to the said account intituled "The proceeds of the testator's real estate devised by his will;" AND WHEREAS it appears by the certificate of the Chief Clerk of the Master of the Rolls, that these presents have been settled and approved of pursuant to the said last-mentioned 21. Witnesseth order (f): NOW THIS INDENTURE WITNES-consideration; SETH that in pursuance of the hereinbefore recited decree, and in consideration of the said sums of £55 and £535, amounting to £590 (g), so paid by the said C. D. as hereinbefore is mentioned, and of the premises, He the said A. B. doth hereby grant unto the said C. D., his heirs and assigns, ALL THAT parcel of land [parcels, supra, p. 219, general words, supra, p. 208]; To HAVE AND TO HOLD all the said premises, hereinbefore expressed to be hereby granted, UNTO the said C. D., his heirs and 22.-grant; -parcels. 23. Habendum to purchaser in fee. Court will fix a time and place for payment of purchase-money. (f) If after the conveyance has been approved by the judge the purchaser refuses to proceed, the vendor may engross the deed, and the court will on the vendor's application fix a time and place for payment of the purchase-money on delivery of the conveyance: Morley v. Clavering, 30 Beav. 108. (g) It may perhaps be doubted whether so much of the money paid into court as represented interest was really part of the consideration for the conveyance, but it would be imprudent to run any risk of incurring by its omission penalties under the Stamp Acts for not stating the true consideration on the face of the deed. |