Partitions Act 1881 (SA)

ANNO QUADRAGESIMO QUARTO ET QUADRAGESIMO QUIN'I'O.

A.D. 1881.

No. 203.

An Act to amend the Law relating to Partition.

'I HEREAS i t is expedient to amend the. law relating to I ' r ~ 1 1 h l ~

Province of South Australia, with the advice and consent of tlre	\ J partition-Be it therefore Gnacted by the Governor of the
J,egislative Council and House of Assembly, in this present Parlia-
men t asse nibled, as follows:

1, This Act may be cited as "The Partition Act, 1881." Short title.

sequential directions.

2. In this Act the term " the Court," means the Supreme Court AS to tko tern a the

of South Australia. court.-

3, In an action for partition, where, if this Act had not been power of court to

passed, a deerec for partition might haw been made, then if it $ f f ~ ~ " s t m h f

appears to the Court that, by reason of the nature of the propertv

to which the action relates, or of the numbcr of the parties interested

or presumptively interefited 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 n division of the property

between or among them, the Court may, if it thinks fit, on the

request of any of the parties interested, and notwithstanding the

dissent or disability of my othcrs of thcm, direct n sale of thc

property acco~dingly, nnd may give all necessary or proper con-

No.

* ~ l e o n ~ p p + ~ o f 4.

certain proportion of In an action for partition, where, if this Act had not been

p a r t i ~ i n t e ~ t d. pamed, a decree for partition might have been made, tlwn if the

party ox pasties interested, individudly or collcctivcly, to the extent of one moiety or upwards in the property to which the action relates, request the Court to direct R 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 rill necessary or proper consequential directions.

AS to purehase of 6. In nn action for partition, where, if this Act had not been passed,

of party a decree far partition might have been made, then, if any party in-

&airing d e.

terested in the property to which the action relates requests the Court to direct a sale of the property ancl a distribution of the proceeds iustead of a division of the property between or among the parties intcrested, the Court may, if it thinks fit, unless the other parties intercsted in the property, or. Fome of them, undertake to purchase the share of the party requesting a. sale, direct a sale of the pro- perty, and give all ncccssary or proper conscqucntial directions, and in case of such undertaking being given the Court may orcler a valuation of the share of the party requesting a sale in such manner as the Court thinks fit, and may give all necessary or proper con- sequential directions.

Authority for +es 6, On any sale under this Act the Court may, if i t thinks fit,

intemsted to bid. allow any of the parties intcwstcd in the property to bid at the sale, on such terms as to non-payment 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 other matters as to the Court seem reasonable.

C Q U ~ to deelam whnt

parties ate trustem of 7. I n any action for partition where an order shall he made by

lands comprised in the Supreme Court for the sale iustead of' the partition of the lands,

a n ~ s u i t ~ a n d a s tothe it shall be lawful for the said C'ourt to declare that any of the

iuteresta of persona

unborn.	parties to the .said suit wherein silch decree is made are trustees of
such lands or any part tl-~ercof' within the meaning of this Act, or to
declare concerning the interests of unborn persons who might claim under any party to the said suit, or under the will or voluntary settlement of any person deceascd who was during his lifetime a party to the contract or transaction concerning wlii cl1 such decree is made, that such intercst~ of unboru pcrsons are thc interests of persons who, upon cbrning into existence, wc;ulcl be trustocs within the meaning of this Act, and thercupon it shall loc lanful for the said Court to makc such order o r orders as to thc cstatcs, rights, and interests of such persons, born or unborn, as thc &cl Court might, under the provisions of this Act, mskc concerning the estates, rights, and interests of trustees born or unborn.
l'ayment and ap1)lir-a-

tion of moneys ati~ing 8. All morwyg to bc rcccivcd on any salc cffectotl under the

fro,,., Ralf.s, or eet api& authority of this Act, when thc proprrty sold is a scttlcd c:stiitc, may, if

oat of rent, kr.? re-	the Court shall think fit, be paid to any trustees of whom it shall
served on mining

lase~. approve,

44' & 4sG VICTOKIW, No. 203.

approve, or otlierwise the same shall be paid into Court ex parte the applicant in thc matter of this Act, and such money shall be applied as t h ~ Court dmll from time to time direct to some one or more of the following purposes, mamt4y-The clischarge or redemption of any incnmbrance nffecting the hercditaments in respect of which such money was paid, or affecting any other hereditaments, subject to tllc same uses as trusts, or the purchase of other hereditaments to be settled in the same manner as the hereditaments itr respect of which the money was paid; or the payment to any person becoming absolutely entitled.

Q, ' b e application of the money in manner aforesaid may, if Tm%=rq~@ money* ~ r r cmhn

the Court shall so direct, be made by the trustees (if any) without nwa *thoutapplia- any application to the Court, or otherwise upon an order of the t i ~ b C u u ~ - ~ Court, upon the petition of' the person who would be entitled to the

possession or the receipt of the rents and profits of the land if the

money had been invested in the purchase of land.

10. Until the money shall be directed by the Court to be a p 2;',":,"b:~2~

plied as aforesaid, the same shall be invested as the Court shall direct and diPidende to be

*

in some or one of the investments in which cash under the control titlect.	paid to pnrtim en-
of the Court is for the time being authorised to be invested, and the interest and ldividerids of such investmects shall be paid to the person who would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land.

11, Where any purchase-money paid into Court under the Court may d i m ap- plication of monov in

provisions of this Act shall have been paid in respect of any lease rwpmt of

;,.,re-

or any estate in lands less than the whole fee-simple thereof, or oi per~hm- m y

appear

any reversion dependent on any such lease or estate, the Court may, lust.

on the petition of any party interested in such money, order that

thc same shall ba laid out, invested, accunlulated, and uaid in such

manner as the said CO& may cksider will give to' the parties

int~rested in such money the same benefit themfrom as they might

l w f d l y havr had from the lcasc, cstate, or rt.vcrsion in respect of	which such money shall llave hcen paid, or as near thereto as may
be.

12. Thv term settled estates," as mecl in this Act, shall signify Interpretation

all hcreditaments of ally tunlurr, and all estates or interests in any " 6ett~"

such hcreditamcnts, which arc or shdl be the snbjcct of n settlement;

a ~ d for the purpose of this Act 1% tenant-in-tail after possibility of

issue cxtinct shall be dccmtd to be a tenant for life.

A11 estntcs or interests in remidndw or reversion not disposed of by the scttlcmcnt, or reverting to B settlor, or descending to the heirs, executors, or xdiuinistrators of n testator, shall be deemed to bc estntcs cornin6 to such srttlor or heirs, executors, and adininistrators

utlder or by vlrtue of t t i t k settlement.

111 deteru~ining wlmt are settled csb~tes within the meaning of

t h s Act, the Court shall be governed by the stntc of fnota, and by

the

44" & 45' VICTORIA, No. 203.

the trusts or limitations of the settlement rtt the time of the said

settlement taking eff eat,

I%rtie~	to piition	13. Any person who, if this Act I~nd	not bccn passed, might have
suits.

maintained m action for partition, may maintain such action against any one or more of the pactics interested, without serving the other or others (if any) of those parties; and it shall not bc competent to any defendant in the action to object for want of parties; and at the hearing of the cause the Court may direct such inquiries as to the nature of the property, and the persons interested therein, and other matters, as it thinks necessary or proper, with a view to an order for partition or sale being made on further consideration; but all persons who, if this Act had not been passed, would have been necessary parties to the action, shall be served with notice of the decree or order on the hearing, and after such notice shall be bound by the proceedings as if they had been originally parties to the action, ancl shall be dwmed parties to the action; and all such persons may have liberty to attend the proceedings; and any such person may, within a time limited by general orders, apply to the Court to add to the decree or order.

casts in partition

octioms. 14, In an action for partition, the Court may make such orcler

as it th'mks just respecting costs. m

@nmledm

WdmtbirAct. 16. Section 29 of the Supreme Court Act 1878," relative to

the making of general orders, shall have effect as if it were repeated &this &t, and in tcr& made applicable to the purposes hereof.

In the name and on behdf of Her Majesty, I hereby assent to

this Bill.

WM. F. DRUMMOND JERVOIS, Governor.

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W

Adebida : By authority, E. SP~L~EB, Government Printer, North-terrace.