Committee to 1. The Committee of his estate shall petition for author apply for leave to mortgage, lease or sell so much of the real estate as may necessary for the payment of such debts; to mortgage or sell, &c. What the Pe tain. 2. Such petition shall set forth the particulars and amo ition is to con- of the estate real and personal of the Lunatic, the applicati made of any personal estate, and an account of the debts a demands against the estate; "The truth of, 3. The Court shall, by one of the Masters or otherwi To be inquired, inquire into the truth of the representations made in the petiti and hear all parties interested in the real estate ; into. If personal estate insuffi cient, real 4. If it appears to the Court that the personal estate is sufficient for the payment of debts, and that the same has be estate may be applied to that purpose as far as the circumstances of the ca disposed of. render proper, the Court may order the real estate or a suffici portion of it to be mortgaged, leased or sold either by t Committee or otherwise; Debts to be paid out of the pro ceeds. Rateably and without preference. If effects not --sufficient to maintain the Lunatic, his 5. The Court shall direct the Committee to discharge su debts, out of the money so raised, and the Court may order t Committee to execute conveyances of the estate, and to gi security for the due application of the money, and to do su other acts as may be necessary in such manner as the Co may direct; and 6. In the application of any moneys so raised, the debts sh be paid in equal proportion without giving any preference those which are secured by sealed instruments. 39. When the personal estate, and the rents, profits a income of the real estate of the Lunatic, are insufficient for maintenance or that of his family, or for the education of real estate may children, an application may be made by the Committee, the applied. by any member of the family of the lunatic, that the Committ be authorized or directed to mortgage or sell the whole or p of the real estate, as may be necessary; upon which the li reference and proceedings shall be had, and a like order mad as for the payment of debts. 9 V. c. 10, s. 8. Surplus sums how to be applied or disposed of. When a Luna 40. In case of any mortgage, lease or sale being mad the lunatic and his heirs, next of kin, devisees, legate executors, administrators and assigns, shall have the li interest in the surplus which remains of the money raised he or they would have in the estate, if no mortgage, lease sale had been made; and such money shall be of the san nature and character as the estate mortgaged, leased or sol and the Court may make such orders, as are necessary for t due application of the surplus. 9 V. c. 10, s. 9. 41. When a Lunatic is seized or possessed of real esta ric is a Trustee by way of mortgage, or as a Trustee for others in any mann t his Committee may act, and the Committee may apply to the Court for authority to convey or Mortgagee such real estate to the person entitled thereto, in such manner as the Court may direct; and thereupon the like proceedings how far. shall be had as in the case of an application to sell the real estate; and the Court upon hearing all the parties interested may order a conveyance to be made; and on the application, by bill or petition, of any person entitled to a conveyance, the Committee may be compelled by the Court, after hearing all parties interested, to execute the conveyance. 9 V. c. 10, s. 10. Committee to 42. Every conveyance, mortgage, lease and assurance made Instruments by the Committee under direction of the Court, pursuant to executed by the any of the provisions of this Act, shall be as valid as if executed be valid. by the Lunatic when of sound mind. 9 V. c. 10, s. 11. 43. The Court may compel the specific performance of any Specific percontract made by a Lunatic while capable of contracting, and formance how compelled in may direct the Committee to execute all necessary conveyances such cases. for the purpose; and the purchase money, or so much thereof as remains unpaid, shall be paid to the Committee or otherwise as the Court directs. 9 V. c. 10, s. 12. penses how to 44. The Court may order any expenses and costs of and Costs and exrelating to the said petitions, orders, directions and conveyances be defrayed. to be paid and raised from the lands, rents or personal estate of the Lunatic, in respect of which the same were respectively made, in such manner as the Court thinks proper. 9 V. c. 10, 8. 13. PARTITION. estates. 45. In regard to the partition and sale of estates of joint Partition and tenants, tenants in common and coparceners, the Court shall sale of joint possess the same jurisdiction as by the laws of England on the tenth of August, one thousand eight hundred and fifty, was possessed by the Court of Chancery in England, and also as by the laws of Upper Canada is possessed by the Courts of Queen's Bench and Common Pleas or by the County Courts. 13, 14 V. c. 50, s. 4. 46. In such cases, any Decree, Order or Report by which Effect of De a partition or sale is declared or effected, or any Deed executed cree for. by the Master of the Court, to give effect to such partition or sale, shall have the same effect at law and in equity as the Record of a Return in the Court of Queen's Bench or Common Pleas or in the County Court has in matters of partition, or as Sheriff's Deeds now have in other cases. 13, 14 V. c. 50, s. 4. 47. Any partition or sale made by the Court shall be as effectual for the apportioning or conveying away of the estate or interest of any married woman, infant or lunatic, party to the proceedings by which the sale or partition is made or declared, as of any person competent to act for himself. 13, 14 V. c. 50, s. 6. 48. Estates of mar e, to be ried women, &c., bound. Office copy of Decree, &c., to be evidence, 48. An office copy of the Decree, Order or Report declari a partition, shall be sufficient evidence in all Courts of 1 partition declared thereby, and of the several holdings by parties of the shares thereby allotted to them. 13, 14 V. c. s. 4. The custody of infants. A sale of the estates of authorized. INFANTS. 49. The Court shall also have jurisdiction respecting t custody of infants in the cases and subject to the provisio mentioned in the Statute relating to the custody of infants. V. c. 126. 50. When an infant is seized or possessed of or entitled minors may be any real estate in fee, or for a term of years, or otherwise ho soever, in Upper Canada, and the Court is of opinion that sale, lease or other disposition of the same or of any part there is necessary or proper for the maintenance or educati of the infant, or that, by reason of any part of the property bei exposed to waste and dilapidation, or to depreciation from a other cause, his interest requires or will be substantially p moted by such disposition, the Court may order the sale, or t letting for a term of years, or other disposition of such re estate or any part thereof, to be made under the direction the Court or one of its officers, or by the Guardian of the infar or by any person appointed by the Court for the purpose, such manner and with such restrictions as to the Court ma seem expedient, and may order the infant to convey the esta as the Court thinks proper. 12 V. c. 72, ss. 1,2,---13, 14 V. c. 5 s. 8. No sale convise. The application to be by next friend or guardian. When a substi fant may be appointed. 51. But no sale, lease or other disposition shall be ma against the provisions of any will or conveyance by whic the estate has been devised or granted to the infant or for h use. 12 V. c. 72, s. 2. 52. The application shall be in the name of the infant by h next friend, or by his guardian; but shall not be made witho the consent of the infant if he is of the age of seven years upwards. 12 V. c. 72, s. 1. 53. Where the Court deems it convenient that a conveyanc person in the place of the infan other person in the place of th 12 V. c. 72, s. 3. tute for an in- should be executed by some the Court may direct some infant, to convey the estate. Deeds executed in behalf of, to be valid. 54. Every such conveyance whether executed by the infan or some person appointed to execute the same in his place shall be as effectual as if the infant had executed the same and had been of the age of twenty-one years at the time. 12 V c. 72, s. 3. 55. The moneys arising from any such sale, lease or other The Court to disposition, shall be laid out, applied and disposed of in such direct the ap manner as the Court directs. 12 V. c. 72, s. 4. plication of the proceeds. upon sale of 56. On any sale or other disposition so made, the money The quality of surplus moneys raised, or the surplus thereof, shall be of the same nature and character as the estate sold or disposed of; and the real estate. heirs, next of kin, or other representatives of the infant, shall have the like interest in any surplus which may remain of the money at the decease of the infant, as they would have had in the estate sold or disposed of if no sale or other disposition had been made thereof. 12 V. c. 72, s. 5. dower a com 57. If any real estate of an infant is subject to dower, and In cases of the person entitled to dower consents in writing to accept in position may be lieu of dower any gross sum which the Court thinks reasonable, made. or the permanent investment of a reasonable sum in such manner that the interest thereof be made payable to the person entitled to dower during her life, the Court may direct the payment of such sum in gross or the investment of such other sum, out of the proceeds of the sale of the Real Estate of the Infant. 12 V. c. 72, s. 6. SPECIAL PROVISION RESPECTING MORTGAGES. sions in cases of 4th March, 58. Whereas the law of England was at an early period in- Special provitroduced into Upper Canada, and continued to be the rule of mortgages fordecision in all matters of controversy relative to property and feited before the civil rights, while at the same time, from the want of an equit- 1837. able jurisdiction, until the fourth day of March, one thousand eight hundred and thirty-seven, it was not in the power of mortgagees to foreclose, and mortgagors out of possession were unable to avail themselves of their equity of redemption, and in consequence of the want of these remedies the rights of the respective parties, or of their heirs, executors, administrators or assigns, may be attended with peculiar equitable considerations, as well in regard to compensation for improvements, as in respect to the right to redeem, depending on the circumstances of each case, and a strict application of the rules established in England might be attended with injustice; the Court shall have authority in every case of mortgage, where, before the said fourth day of March, one thousand eight hundred and thirty-seven, the estate had become absolute in law, by failure in performing the condition, to make Fuch decree in respect to foreclosure or redemption, and with regard to compensation for improvements, and generally with respect to the rights and claims of the mortgagor and mortgagee, and their respective heirs, executors, administrators or assigns, as may appear to the Court just and reasonable under all the circumstances of the case, subject however to appeal by either party. 7 W. 4, c. 2, s. 11. DORMANT And in regard ble claims. DORMANT EQUITIES. 59. Whereas by the Act to establish the Court of Chance in Upper Canada, it was provided that the rules of decision the said Court should be the same as governed the Court Chancery in England; And whereas in regard to claims upo or interests in real estate arising before the said date, it is ju to restrict the future application of the said rules of decision cases of fraud, and in regard to other cases, it is expedient extend thereto in manner hereinafter provided, the authority given to the Court as aforesaid in case of mortgages: The fore, no title to or interest in real estate which is valid at la shall be disturbed or otherwise affected in Equity by reason any matter or upon any ground which arose before the Four day of March, A. D. one thousand eight hundred and thirt seven, or for the purpose of giving effect to any equitable clai interest or estate, which arose before the said date, unless the has been actual and positive fraud in the party whose title sought to be disturbed or affected. 18 V. c. 124, s. 1. 60. In regard to any other equitable claim or right which m 10 other equita- have arisen before said date, the Court shall have authori (subject to appeal) to make such Decree as may appe to the Court just and reasonable, under all the circumstanc of the particular case, provided that the suit be broug within twenty years from the time when the right or claim aros and no further time shall be allowed for bringing any such su notwithstanding any disability of the claimant or of any o through whom his right accrued. 18 V. c. 124, s. 2. APPEALS. 61. The Court shall have jurisdiction to entertain appea Appeal from Decree, &c., of by either party against any Order or Decree made by the Jud County Courts. of a County Court under the equitable jurisdiction there and the Court of Chancery shall make such Order thereup in respect to costs or otherwise, or for referring back the matt to the Judge before whom the same was first heard, as may just and proper. 16 V. c. 119, s. 18. Appeals from decisions of certain Com protection of 62. The Court shall also have jurisdiction on any appeal fro the judgment or decision of the Commissioners under the A missioners for for the protection of the lands of the Crown in Upper Canad Crown Lands. except as in the said Act is otherwise provided; and the Cou may alter, affirm or annul, the decision of the Commissioner or order further inquiry to be made, or direct an issue touchin the matter in dispute, to be tried at law or before the Cou or a Judge thereof with the assistance of a Jury, and may mal such orders and directions therein for payment of costs, ar other matters respecting the same, as to the Court see just; and the decree of the Court shall be conclusive on t party appealing, as well as on the Commissioners. 2 V. c. 1 s. 11. |