CHAPTER 104. An Act respecting the Partition and sale of SHORT TITLE, s. 1. INTERPRETATION, s. 2. s. 34. PROCEEDINGS IN DEFAULT OF ANSWER, JURISDICTION OF HIGH COURT, s. 3. PETITIONERS TO PROVE TITLE, s. 35. REAL REPRESENTATIVE, s. 4. PARTITION COMPULSORY ON JOINT COURTS IN WHICH PROCEEDINGS MAY Removal of proceedings, s. 7. SONS UNHEARD OF FOR THREE INCUMBRANCERS, HOW MADE PARTIES, SERVICE OF PETITION: In cases of parties in Ontario, s. 22. In cases of parties unknown or without Ontario, ss. 23-27. ALLOWANCE OF PETITION, ss. 28-30. PLEADING TO PETITION, Ss. 31-32. TRIAL OF ISSUES, s. 33. HE ER MAJESTY, by and with the advice and consent of enacts as follows: 1. This Act may be cited as "The Partition Act." R. S. O. Short title. 1877, c. 101, s. 1. tation. 2. Where the following words occur in this Act they shall Interprebe construed in the manner hereinafter mentioned, unless a contrary intention appears 1. "Land" and "Lands" shall include lands, tenements, "Land." and hereditaments, and all estates and interests therein; 2. "Petitioner " or Plaintiff" shall include all parties "Petitioner." petitioning by virtue of this Act; and all parties, or those "Plaintiff." made parties to the proceedings under this Act (other than the plaintiffs or petitioners), shall be defendants. R. S. O. 1877, c. 101, s. 2. Jurisdiction 3. In regard to the partition and sale of estates of jointof High Court. tenants, tenants in common and coparceners, the High Court, in addition to the powers hereinafter conferred, shall possess the same jurisdiction as by the laws of England on the 10th of August, 1850, was possessed by the Court of Chancery in England, and also as by the laws in force in Ontario, was possessed by the Courts of Queen's Bench and Common Pleas. R. S. O. 1877, c. 40, s. 53. Judge of Sur rogate Court to be real re 4. The Judge of the Surrogate Court in every county shall be the real representative for all real property within the presentative county, in respect of or to which any person being seised of, or entitled to any estate in fee simple therein, dies intestate. and for all other purposes hereinafter mentioned. 1877, c. 101, s. 3. R. S. O. All parties 5. All joint tenants, tenants in common, and co-parceners, having inter- all dowresses, and parties entitled to dower, tenants by the est or lien may be compelled curtesy, mortgagees or other creditors having liens on, and all to make parti- parties whosoever interested in, to or out of, any lands in tion or sale. In what Court Ontario, may be compelled to make or suffer partition or sale of the said lands, or any part or parts thereof, as hereinafter mentioned and provided, and the partition may be had whether the estate is legal or equitable, or equitable only. R. S. O. 1877, c. 101, ss. 4, 7. 6. Where the lands are situate in two or more counties, the proceedings to proceedings shall be instituted in the High Court, and where be instituted. the lands are situate in one county only, the proceedings may be instituted in the County Court of the county, or in the High Court. R. S. O. 1877, c. 101, s. 5. Proceedings from County 7. The proceedings, upon petition, if commenced in a County removable Court, may at any time before judgment be removed into the Court to High High Court by certiorari, to be allowed by a Judge of the Court. Court, on security being given by the party applying for the Any parties petition for partition or sale. certiorari, for the costs of the proceedings on petition, to the satisfaction of the Judge; and upon any final judgment, decree or order, an appeal may be had by any of the parties interested, in the same manner, and with the same consequences, as in other cases of appeal from the decision of any Court rendering such judgment, decree or order. R. S. Ŏ. 1877, c. 101, s. 6. 8. Any party interested in any land in this Province, or the interested may duly authorized agent of such party, or the guardian (duly appointed by a Surrogate Court) of an infant entitled to the immediate possession of any estate therein, may file a petition in any of the Courts aforesaid, praying that partition of such lands may be made, or that the same may be sold under the directions of the Court wherein the proceedings are taken, or of a Judge thereof: provided that such sale be considered by the said Court or Judge more advantageous to the parties : interested but no proceedings shall be taken under this Act until one year next after the decease of the testator or party dying intestate, in whom the lands or estate in lands to be so partitioned or sold may be vested. R. S. O. 1877, c. 101, s. 8 9. All proceedings under this Act shall be entitled in the Entitling of Court in which the same are instituted, and shall be further proceedings. described as follows: "In the matter of partition between A. B. (naming the petitioner, or if more than one, naming all the petitioners in full), plaintiff (or plaintiffs), and C. D. (naming every then known party having any legal estate in the lands other than the petitioners) defendants." R. S. O. 1877, c. 101, s. 9. terest shall be all set forth What petition! 10. Every party having, at the time of filing the petition, Every person any interest as aforesaid, shall be made a party to the parti- having an intion proceedings; and the petition shall particularly describe made party. the lands sought to be partitioned or sold, and shall also set forth the interest of the petitioner or petitioners therein, and his, or their respective place or places of residence and occupation, and the estate, rights and titles of all parties. interested therein in anywise whatsoever, so far as the same are known to the party or parties petitioning as aforesaid; and in case one or more of such parties, or the share or extent of interest, or estate in the said lands of any party interested, is or are unknown to the petitioner or petitioners, he or they shall set forth the fact thereof in the petition. R. S. O. 1877, c. 101, s. 10. 11. (1) The truth of the petition, and matters contained To be verified" therein, shall be verified by the oath or affirmation of at least by oath. one petitioner, or his agent or guardian, as the case may be. The oath or affirmation may be taken before a Judge of any of the said Courts, a Commissioner for taking affidavits therein, or a Notary Public. R. S. O. 1877, c. 101, s. 11; 48 V. c. 16, s. 1. (2) If in such case there is more than one infant defendant, for whom service is to be made on the official guardian, one copy only need be so served. (3) From the time of such service the official guardian shall become and be the guardian ad litem of the infant unless and until the Court otherwise orders; and it shall be his duty forthwith to attend actively to the interests of the infant in the action, and for that purpose to communicate with all proper parties, including the father or guardian (if any) of the infant, and also the person with whom or under whose care the infant resides, in case such person is not the infant's father or guardian; and the guardian is to make such other inquiries and to take such other proceedings as the interests of the infant may require. 44 V. c. 5, Rule 36, part. In case party interested be an infant. Guardians to enter into a bond with sureties. Guardians to represent infants. behalf of in fant. 12. In case any of the parties interested, other than a petitioner by guardian, is an infant, and the petition is not served on the official guardian under the preceding section, and in case it is proved to the satisfaction of the Court or a Judge that at least fourteen days' notice has been served on the infant, if resident in the Province of Ontario, or otherwise served as hereinafter provided, that proceedings will be taken under this Act for the partition or sale of the lands, and that the Court or Judge will be applied to, at the time and place specified in the notice, to appoint a guardian to represent the infant in the proceedings, the Court or Judge shall and may thereupon, whether the said infant resides within or without the Province, appoint a suitable and disinterested person to be a guardian for the infant for the special purpose of taking charge of the interests of the infant in the proceedings upon the petition. R. S. O. 1877, c. 101, s. 12. 13. Every guardian appointed under the preceding section. unless he is the official guardian, shall, before entering upon his duties, execute to the real representative of the county wherein the estate, or any part thereof, is situate, by his own name of office as Surrogate Judge and real representative for the county, and his successors in office, and according to the terms of the rule or order appointing the guardian, a bond in such penalty, and with such sureties as the Court in which the proceedings are to be taken, or a Judge thereof presiding in Chambers, directs, and to be allowed by an officer of the Court to be named in the order, upon proper proof of the sufficiency thereof, conditioned for the faithful discharge of the trust committed to the guardian, and to render a just and true account of his guardianship when required by the Court or a Judge thereof, and upon such further conditions as the Court or Judge may direct; and no proceedings shall be taken upon the petition until the bond has been filed in the office wherein the petition has been filed. R. S. O. 1877, c. 101, s. 13; 50 V. c. 8, Sched. 14. After the execution and filing of the bond, the guardian shall represent the infant in the proceedings upon the petition; and his acts in relation thereto shall be binding on the infant, and shall be as valid as if done by the infant after having arrived at full age. R. S. O. 1877, c. 101, s. 14. Proof against 15. It shall be necessary that everything be proved against and consent on the infant, and it shall not be competent for a guardian to give any consent on behalf of an infant, but the Court or Judge may, on behalf of an infant, where it is deemed advisable in the interest of the infant, consent to such proceeding. R. S. O. 1877, c. 101, s. 15. of guardian to Appointment 16. If any party interested in the estate respecting which estate of per proceedings are, or are proposed to be, taken under this Act, has son unheard of not been heard of for three years or upwards, and it is a matter for three years. of uncertainty whether such party is living or dead, it shall be competent for a Judge to appoint a suitable and disinterested person to be a guardian, for the special purpose of taking charge of the interest of the said party and of those who, in the event of his being dead, are entitled to his share or interest in the estate. R. S. O. 1877, c. 101, s. 16. 17. The application may be made by any one interested in Application to the said estate, and the Judge making the appointment may dian appoint guar give such directions as may be necessary for the execution of sufficient bonds which shall be entered into by the guardian so appointed, with sureties in the manner provided by section 13 of this Act. R. S. O. 1877, c. 101, s. 17. 18. After the execution and filing of the bond, the guar- Powers of dian shall, in the proceedings, represent the said party, and guardian. those who, should he be dead, are entitled to his share or interest in the estate, and whether they or any of them are infants or otherwise under disability; and his acts in relation to such share or interest shall be binding on such party, and all others claiming or entitled to claim under or through him, and shall be as valid as if done by him or them. R. S. O. 1877, c. 101, s. 18. with the 19. It shall be competent for the Court in which the pro- Power of the ceedings are taken, upon proof of such long continued absence Court to deal of the said party as affords reasonable ground for believing him estate. to be dead, upon the application of the guardian, or any one interested in the estate represented by the guardian, to deal with the estate or interest of such party, or the proceeds thereof, and order the payment of the proceeds, or the income or produce thereof, to the person who, in the event of the said party being regarded as dead, appears entitled to the same. R. S. O. 1877, c. 101, s. 19. Court for 20. Any guardian appointed under this Act shall be at Guardian may liberty to apply to the Court from time to time, for direction apply to the and guidance in the management of the estate, and for com- guidance. pensation for his services in connection therewith; and the Court, or Judge may make all such orders, and give such directions in reference thereto, as appear just. R. S. O. 1877, c. 101, s. 20. made parties menced. 21.—(1) It shall not be compulsory, in the first instance, to Incumbran make any person having a lien, on the estate, or any part thereof, cers may be by decree, mortgage or otherwise, a party to the proceedings, after proceedbut the petitioner may make such creditor a party, and, in ings comsuch case, the petition shall set forth the nature of the lien or incumbrance; and if the lien or incumbrance is on the undivided interest or estate of any of the parties to the petition, it shall be a lien only on the share of such party; and such share or estate, as the case may be, shall be first charged with its just proportion of the costs of the proceedings in partition in preference to any such lien. |