John Bullen and Andrew Richey, - Appellants; Thomas Turner A'Beckett, Theyre Weigall, Charles Malpas, Job Mills, and Thomas Mills, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 29 June 1863 |
| Date | 29 June 1863 |
| Court | Privy Council |
English Reports Citation: 15 E.R. 684
ON APPEAL FROM THE SUPREME COURT OF THE COLONY OF THE COLONY OF VICTORIA.
Mews' Dig. tit. Colony, II. Particular Colonies, 1. Australia, a. S.C. 9 Jur. (N.S.) 973; 9 L.T. 99; 11 W.R. 955.
[223] ON APPEAL FROM THE SUPREME COURT OF THE COLONY OF VICTORIA. JOHN BULLEN and ANDREW RICKEY,- Appellants; THOMAS TURNER A'BECKETT, THEYRE WEIGALL, CHARLES MIALPAS, JOB MILLS, and THOMAS MILLS,- Respondents * [June 29, 1863]. Statute, 54th Geo. III., c. 15, sec. 4, after enacting that lands, houses, and other-hereditaments and real estates in New South Wales, belonging to any person indebted, should be liable to and chargeable with all just debts, of what kind or nature soever, and should be assets for the satisfaction thereof, in like manner as real estates are by the law of England liable for bond or specialty debts, proceeds as follows: - " and shall be subject to the like remedies proceedings, and process, in any Court of Law or Equity in the said Colony of New South Wales, for seizing, extending, selling, or disposing of any such houses, lands, etc., towards the satisfaction of such debts, etc., and in like manner as personal estates in the said Colony are seized, extended sold or disposed of, for satisfaction of debts." Held, that the object of the Statute * Present : Lord KingsdownsrSddl^ 684 h ' bullen v. a'beckett [1863] i moore n.s., 2 2 was to render real estates in New South Wales liable for simple contract debts, as land is liable in England for Bond and specialty debts; but that a creditor is bound to proceed in respect of the real estate against the person in whom the property is vested [1 Moo. P.O. (N.S.) 241]. In an action against an Executor to recover a debt due from his Testator, 1he Plaintiff obtained judgment, and the Sheriff in execution of a fieri facias proceeded to a sale of the real estate of the Testator. Held, that under ihe Statute, 54th Geo. III., c. 15, sec. 4, the Sheriff could not sell and convey to a purchaser, land of the Testator, as the land did not by virtue of that section pass to the Executor so as to become legal assets in his hands. The Colonial registration Act, 5th Viet., No. 21, sec. 11, enacts, that all deeds, and other instruments affecting any lands or hereditaments in New South Wales, duly registered, shall have priority according to the date of registration in relation to the property. The surviving Executor under the Will executed for a nominal consideration a conveyance of the land in confirmation of 1 he previous execution sale made by the Sheriff, under a fieri facias. Such deed held in the circumstances not to be in the purview of that Act, a deed for valuable consideration, so as to give by registration priority over a previous purchaser, whose deed was not registered [1 Moo. P.C. (N.S.) 242]. This was an action of ejectment brought in the Supreme Court of Melbourne, by the Respondents, against John and Henry Ward Mathewson, and Joseph [224] Attridge, to recover possession of a piece of land in Melbourne. The Appellants, Bullen and Richey, were let in to defend for different portions of the premises, the former as landlord of the Mathewsons, and the latter as landlord of Attridge. The action was brought under the following circumstances: - John Mills, the Crown grantee of the premises, died on the 22nd of August, 1841, having nominated his wife Hannah, John Jones Peers, and William Witton, Executrix and Executors of his Will, and having also devised, inter alia, the premises sought to be recovered to Peers and Witton, in trust for his daughter Emma. The Will contained a power to appoint new Trustees (a). The Respondents, Job and Thomas Mills, were the residuary devisees under John Mills' Will. The Respondent, Charles Malpas, was appointed Receiver by the Supreme Court of the Colony, in a suit relating to the Will. No question arose in the present appeal as to the interest taken by the Respondents in the premises. In 1842, the Executrix, Hannah Mills, intermarried with Thomas G. W. J. Robinson. [225] By a deed, purporting to be executed on the 9th of December, 1842, the Trustees, Peers and Witton, appointed Robinson Trustee in their stead, and conveyed (inter alia) the premises to Robinson, upon the trusts of the Will. Peers died in August, 1850; and by another deed, dated the 26th of September, 1860, Robinson and Witton, under a decree of the Supreme Court of the Colony in its equitable jurisdiction, conveyed the premises comprised in the deed of the 9th of December, 1842, to the Respondents, A'Beckett and Weigall. The Respondents' claim was founded upon the Will and the two deeds above mentioned, so far as the subject-matter of this appeal was concerned. The Appellants derived their title in the following manner: -On the 30th of November, 1843, judgment by default was signed in an action upon a cosecant made by one Joseph Moore and the Testator, Mills, for the payment of 600. The action was brought by one Burn against the co-covenantor, Moore, and the Executrix and Executors of the Testator, Peers, Witton and Hannah Robinson, with whom her husband, Robinson, was joined as a Defendant. By section 4, of the Statute, 54th Geo. III. c. 15, entitled " An Act for the more easy recovery of debts in His Majesty's Colony of New South Wales," it is enacted- " That from and after the said 25th day of June 1814, the houses, lands, and other hereditaments and real estates, situate or being within the Colony of New South Wales, or its dependencies, belonging1 to any person indebted, shall be liable to and (a) This Will, with the subsequent instruments referred to, are set out in tbe previous case of Booth v. A'Beckett, ante, p. 202 [1 Moo. P.C. /N.P.^"1 685 I MOOEE N.S., 226 BULLEN V. A'BEOKETT [1863] chargeable with all just debts, duties, and demands of what nature or kind soever, owing by any such person to His Majesty or any of his subjects, and shall and may be assets, for the satisfaction thereof, in like manner as [226] real estates are by the law of England liable to the satisfaction of debts due by Bond or other specialty, and shall be subject to the like remedies, proceedings, and process, in any Court of Law or Equity in the said Colony of New South Wales or its dependencies, for seizing, extending, selling, or disposing of any such houses, lands, and other hereditaments, and real estates, towards the satisfaction of such debts, duties, and demands, and in like manner, as personal estates in the said Colony are seized, extended, sold, or disposed of, for the satisfaction of debts." Under a writ of execution of the judgment in the suit of "Burns v. Moore and others," the Sheriff, on the 27th of January, 1844, sold a portion of the land sought to be recovered in the action for ejectment, to Burns, and another portion to the Appellant, Richey. The Bill of sale by the Sheriff to Burns was dated the 25th of July, 1844 ; that to Richey, the 14th of March, 1846. Burns afterwards conveyed the land to one Vaughan, and Vaughan to the Appellant, Bullen. Upon those conveyances, however, nothing turned in the present case. By a deed dated the 26th of May, 1852, and expressed to be for the more effectually establishing and confirming the title of Bullen, under the above-mentioned sale and conveyance, Witton, as the surviving...
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...The following cases were referred to in the judgment: Turner v CoxENR 14 ER 111 Lyon V ColvilleENR 63 ER 494 Bullen v A'BeckettENR 15 ER 684 Re Lambe (Vol. 1, Page 142, Considered Judgments of Bermuda, unreported) Wigan v Jones (1830) 10 B&C 459, 109 ER 521 Skeeles v ShearlyENR (1837) 3 My ......