ON APPEAL FROM THE SUPREME COURT OF Torrens System-Executor-Mortgage-Long interval between death of testator and
mortgage-Tenant in possession-Assumption that executor was acting in course of executorial duties-No knowledge by mortgagee that he was not so acting- Rights of mortgagee prevailing over rights of tenant in possession-Administration and Probate Act 1928 (Vict.) (No. 3632), secs. 8, 9, 36 (5), (10)-Transfer - of Land Act 1928 (Vict.) (No. 3791), secs. 72, 179, 232. Executor-Functions--Administration of estate.
A devised certain land of which he was the registered proprietor under the Transfer of Land Acts (Vict.) to B, who was living thereon before A's death and, with the consent of A's executor, remained in possession continuously thereafter. Seventeen years after the death of A his executor mortgaged the land. The mortgage interest having fallen into arrear, the mortgagee claimed possession of the land under the mortgage.
Held, by Starke, Dixon and McTiernan JJ. (Latham C.J. and Evatt J. dis- senting), that the fact that B was a tenant in possession within the exception contained in sec. 72 of the Transfer of Land Act 1928 (Vict.) gave her no greater protection than she would have had if the land were under the general
law, and that, as the mortgagee had neither express nor constructive notice that the executor in giving the mortgage was not acting bona fide in discharge of his executorial functions, the mortgage prevailed over B's interest under
The nature and extent of the functions of an executor considered. Decision of the Supreme Court of Victoria (Gavan Duffy J.) reversed.
APPEAL from the Supreme Court of Victoria.
Thomas Waller died on 26th September 1918. At the time of his death he was registered as the proprietor under the Transfer of Land Acts (Vict.) of certain land upon which there was a house. By his will he devised this land as follows: "I give devise and bequeath unto Emily Cummins housekeeper to the said Thomas Waller the property situated corner of Boxhill Road and Waverley Road consisting of five acres of land house and all buildings thereon also all furniture and effects for her lifetime only." With the executor's consent Emily Cummins remained continuously in possession of the premises after the death of Thomas Waller. On 17th December 1918 probate of the will of Thomas Waller was granted to the respondent Edward John Dawes. Before the end of 1919 Dawes had discharged the debts, funeral and testamentary expenses of the testator and also the pecuniary legacies given by him. Early in 1929 part of the dwelling was accidentally destroyed by fire. After the fire Dawes and a man who boarded at his house restored and repaired the building. On 23rd May 1929 Dawes collected £450 from an insurance company under a fire policy covering the building. He paid this sum to the credit of a bank account which he opened in the name of the estate. During…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Burke v Dawes [1938] HCA 6
Case
[1938] HCA 6
Decision Date
CaseChat Overview and Summary
The case of Burke v Dawes concerned an appeal from the Supreme Court of Victoria to the High Court of Australia. The dispute involved competing claims to possession of land. The appellants, Burke and Burke, were registered mortgagees of the land, while the respondent, Emily Cummins, was a life tenant in possession under the will of the deceased registered proprietor, Thomas Waller. The mortgage was granted by Edward John Dawes, the executor of Waller's estate, seventeen years after Waller's death.
The central legal issues before the High Court were: firstly, whether Emily Cummins, as a tenant in possession, had a protected interest in the land under section 72 of the Transfer of Land Act 1928 (Vict.) that would prevail over the registered mortgage; and secondly, whether the executor, Dawes, had completed his executorial duties and assented to the devise to Cummins, thereby ceasing to have the power to mortgage the land.
A majority of the High Court (Starke, Dixon, and McTiernan JJ.) held that the mortgagees' claim prevailed. The Court reasoned that while section 72 of the Transfer of Land Act 1928 protects the interests of tenants in possession, Cummins' interest arose from her status as a beneficiary under the will, not a conventional tenancy, and was therefore subject to the executor's power to mortgage for the purposes of administration. Crucially, the mortgagees had no notice, actual or constructive, that the executor was not acting bona fide in the discharge of his executorial functions. The Court found that the executor had not completed his duties and had not formally assented to the devise in a manner that would divest him of his power to mortgage the land under the Transfer of Land Act.
Consequently, the High Court reversed the decision of the Supreme Court of Victoria. The appellants, as registered mortgagees, were declared entitled to possession of the land. Latham C.J. and Evatt J. dissented, finding that section 72 of the Transfer of Land Act 1928 did protect Cummins' interest as a tenant in possession, regardless of the executor's actions.