As to purchase of share of party desiring a share. The Partition Act, 1868, s. 5. Authority for parties interested to bid. The Partition Act, 1868, 8. 6. Application of Trustee Act. "such request or undertaking on the part of an infant unless "it appear that the sale or purchase will be for his benefit."39 & 40 Vict. c. 17, s. 6. Where, in pursuance of the statutory powers above noticed, a sale is directed, the following provisions of "The Partition Act, 1868," apply :— 66 66 "In a suit for partition, where, if this Act had not been passed, a decree for partition might have been made, then if any party interested in the property to which the suit relates "request the Court to direct a sale of the property and a distri"bution of the proceeds instead of a division of the property "between or among the parties interested, the Court may, if it "thinks fit, unless the other parties interested in the property, "or some of them, undertake to purchase the share of the party requesting a sale, direct a sale of the property, and give "all necessary or proper consequential directions, and in case of "such undertaking being given the Court may order a valua "tion of the share of the party requesting a sale in such manner as the Court thinks fit, and may give all necessary or proper consequential directions."-31 & 32 Vict. c. 40, s. 5. "On any sale under this Act the Court may, if it thinks fit, "allow any of the parties interested in the property to bid at "the sale, on such terms as to nonpayment of deposit, or as to setting off or accounting for the purchase-money or any part thereof instead of paying the same, or as to any matters, as to the Court seem reasonable."-31 & 32 Vict. c. 40, s. 6. 66 66 66 66 other "Section thirty of The Trustee Act, 1850,' shall extend "and apply to cases where, in suits for partition, the Court The Partition" directs a sale instead of a division of the property."—31 & Act, 1868, 32 Vict. c. 40, s. 7. 8. 7. As regards the application of the proceeds of the sale “The Partition Act, 1868," provides as follows: "Sections twenty-three to twenty-five (both inclusive) of the "Act of the Session of the nineteenth and twentieth years of "Her Majesty's reign (chapter one hundred and twenty), "to facilitate leases and sales of settled estates,' shall extend "and apply to money to be received on any sale effected under "the authority of this Act."-31 & 32 Vict. c. 40, s. 8. On the same subject, "The Partition Act, 1876," provides as follows in cases where there have been successive sales in the same action : "Where in an action for partition two or more sales are "made, if any person who has by virtue of this Act been "excluded from participation in the proceeds of any of those "sales establishes his claim to participate in the proceeds of a subsequent sale, the shares of the other persons interested "in the proceeds of the subsequent sale shall abate to the "extent (if any) to which they were increased by the non 66 participation of the excluded person in the proceeds of the The Partition “previous sale, and shall to that extent be applied in or Act, 1868, "towards payment to that person of the share to which he s. 5. "would have been entitled in the proceeds of the previous sale 66 if his claim thereto had been established in due time." 39 & 40 Vict. c. 17, s. 5. An absolute discretion as to costs in partition actions is Costs. vested in the Court by the following section of "The Partition Act, 1868:" 66 In a suit for partition the Court may make such order as The Partition "it thinks just respecting costs up to the time of the hearing." Act, 1868, -31 & 32 Vict. c. 40, s. 10. s. 10. BOOK V.-DIVISION IV. PROCEEDINGS UNDER STATUTES CONFERRING AN A married woman may now convey CHAPTER III. PROCEEDINGS TO TAKE THE ACKNOWLEDGMENTS OF THE "Act for the Abolition of Fines and Recoveries" enables (a) a married woman to convey by deed any real property (b) belonging to her, and a later enactment enables her perty and her similarly to convey her reversionary interest in personal property (of which she was previously unable to dispose). her real pro reversionary personal property by deed. Such deed must be acknowledged. The Act for the Abolition of Fines and Recoveries, 8. 79. But any deed executed by a married woman must be "acknowledged" by her in accordance with a section in the following terms contained in "The Act for the Abolition of Fines and Recoveries" 66 66 66 Every deed to be executed by a married woman for any of "the purposes of this Act, except such as may be executed by "her in the character of protector for the sole purpose of giving her consent to the disposition of a tenant in tail, shall, upon her executing the same, or afterwards, be produced and acknowledged by her as her act and deed before a Judge of one of the superior Courts at Westminster, or a master in Chancery (c), or before two of the perpetual commissioners, "or two special commissioners, to be respectively appointed as hereinafter provided" (d).—3 & 4 Will. IV. c. 74, s. 79. 66 66 66 66 (a) See sect. 77 of the Act. Leaseholds are personal property, and therefore, unless the estate is reversionary, deeds disposing of them do not require acknowledgment. It is also to be noted that "The Vendor and Purchasers Act, 1874" (37 & 38 Vict. c. 78), provides (sect. 6), that where any hereditament is vested in a married woman as a Bare Trustee, she may convey the same as if she were a feme sole. 20 & 21 Vict. c. 57 (commonly called "Malins' Act.") (d) Sects. 81, 82, 83. It is amended by the Judicature Act Rules (Ord. LIV. r. 2), that acknowledgments of married women may not be taken by Masters of the Queen's Bench, Common Pleas, or Exchequer Divisions of the High Court, nor by Registrars of the Probate, Divorce, and Admiralty Divisions. "The County Court Act, 1856," provides as follows:Any acknowledgment to be made by any married woman "of any deed under the Act of the third and fourth years of "the reign of His late Majesty King William the Fourth, chapter seventy-four, may be received by a Judge of a County Court in the same manner as such acknowledgment "may be received by a Judge of a superior Court."-19 & 20 Vict. c. 108, s. 73. 66 66 The acknowledgment of a deed is not impeachable by reason only of the Judge or other party before whom the same was taken being interested (e). Such acknow ledgment may now be taken by a County Court Judge. 19 & 20 Vict. c. 108, s. 73. Interest in the Judge does not knowledg Before the acknowledgment is taken, the fee, which is now £1, must be impressed upon the certificate (ƒ). The supplemental Rules of Hilary Term, 1834, moreover ments. provide as follows:— "And it is further ordered, That where more than one "married woman shall at the same time acknowledge the same "deed, respecting the same property, the fees directed by the "said rules to be taken, shall be taken for the first acknow"ledgment only. "And the fees to be taken for the other acknowledgment or " acknowledgments, how many soever the same may be, shall "be one-half of the original fees, and so also, where the same "married woman shall at the same time acknowledge more "than one deed respecting the same property. "And where, in either of the above cases, there shall be "more than one acknowledgment, all such acknowledgments may be included in one certificate and affidavit. 66 "In every case the acknowledgment of a lease and re-lease "shall be considered and paid for as one acknowledgment "only." The practice upon taking an acknowledgment of a deed by a Practice. married woman is as follows: tion of the deed to be acknowledged. (1.) The first thing to be done, where a married woman (1.) Producdesires to make an acknowledgment of a deed, is for her, upon her executing the same, or afterwards, to produce the deed to the County Court Judge for the purpose of making the acknowledgment (g). (2.) The second step to be taken, is the separate examination (2.) Separate of the married woman by the County Court Judge. On this examination subject "The Act for the Abolition of Fines and Recoveries" of a married provides as follows: : "Such Judge, master in chancery, or commissioners afore"said, before he or they shall receive the acknowledgment by "any married woman of any deed by which any disposition, (e) 17 & 18 Vict. c. 75. s. 1. (f) As to the certificate, see post, p. 1081 et seq. woman. Judge, &c., before receiving acknow ledgment must examine the married woman apart from her husband. The Act for the Abolition of Fines and Recoveries, 8. 80. Decisions as to the conduct of the separate examination. (3.) The taking of the acknowledgment. (4.) The 66 "release, surrender, or extinguishment shall be made by her "under this Act, shall examine her, apart from her husband, touching her knowledge of such deed, and shall ascertain "whether she freely and voluntarily consent to such deed, and, "unless she freely and voluntarily consent to such deed, shall "not permit her to acknowledge the same; and in such case "such deed shall, so far as relates to the execution thereof by "such married woman, be void."-3 & 4 Will. IV. c. 74, s. 80. The separate examination of a married woman under this section ought to take place, not only in the absence of the husband, whose presence is expressly forbidden by this section, but also in the absence of any one connected with the husband (h). The acknowledgment of a married woman who is deaf and dumb may be taken, provided she is previously examined and made aware of the nature of the transaction by signs, and she signifies her assent in like manner (i). (3.) In the third place, we come to the acknowledgment itself. This is simply a verbal admission or statement made by the married woman, in the presence of the County Court Judge, after such enquiries as he may be pleased to make on the subject, that the deed produced by her is her act and deed (k). (4.) The fourth step in the proceedings is of a two-fold chamemorandum racter. It consists in the Judge's signing and giving a certificate of acknowledgment. and certificate of acknowment. Judge must sign a memorandum on the deed. The Act for the Abolition of Fines and Recoveries, 8. 84. The memorandum is indorsed on the deed itself, or written at the foot of it, and is to the effect that the deed was produced and acknowledged by the married woman after her separate examination; and with regard to the certificate, it is a separate document, written on parchment, and states officially what has been done, and certifies as to the age and capacity of the married woman. On this subject "The Act for the Abolition of Fines and Recoveries," provides as follows: 66 66 "When a married woman shall acknowledge any such deed as aforesaid, the Judge, master in chancery, or commis"sioners taking such acknowledgment, shall sign a memorandum, to be indorsed on or written at the foot or in the "margin of such deed, which memorandum, subject to any "alteration which may from time to time be directed by the "Court of Common Pleas, shall be to the following effect; videlicet, 66 This deed marked [here add some letter or other mark for the purpose (h) Re Bendyshe, 3 Jur. N. S. 727; 26 L. J. Ch. 814. |