Union Bank of Australia v Harrison, Jones & Devlin Ltd

The case of Union Bank of Australia v Harrison, Jones & Devlin Ltd involved an appeal from the Supreme Court of New South Wales concerning the effect of a sheriff's sale of a testator's real and personal estate. The Union Bank, as mortgagees, had obtained a judgment against one of the two executors of the mortgagor and subsequently purchased the testator's equity of redemption in the mortgaged property at a sheriff's sale. The respondents, who held a subsequent mortgage over one executor's beneficial interest, argued that the sheriff's deed was inoperative and that the bank should account as mortgagees.

The central legal issues before the court were whether the sheriff's sale and subsequent deed of bargain and sale effectively transferred the equity of redemption in both the real and personal property of the testator to the Union Bank, and whether one of two co-executors could, through a sheriff's sale following a judgment against them, dispose of the testator's real estate. This required the court to interpret the provisions of the Probate Act 1890 (N.S.W.), particularly sections 15, 17, 19, and 20, which dealt with the vesting and administration of a testator's real estate.

The court reasoned that under the Probate Act 1890, real estate vested in executors in the same manner as personal estate, and executors were to have the same rights and duties concerning real estate as they previously had concerning personal assets. This meant that a judgment against one executor could bind the testator's personal assets, and the sheriff's sale of these assets was valid. However, regarding real estate, while the Act intended to place it on a similar footing for debt recovery, the court found that the sheriff's conveyance could not be considered more effective than a conveyance by the executor himself. The court concluded that, despite the broad language of the Act, a single executor could not, by virtue of a judgment against them, convey the testator's real estate without the concurrence of the other executor, and therefore the sheriff's sale was ineffectual to pass the equity of redemption in the real estate.

The Full High Court reversed in part the decision of the Chief Judge in Equity. It held that the sheriff's sale and deed of bargain and sale were effective to pass the equity of redemption in the personal property of the testator to the Union Bank. However, it affirmed the decision that the conveyance was inoperative to pass the equity of redemption in the real estate, meaning the bank had not acquired a good title to the land.