Re Venn and Furze's Contract
| Jurisdiction | England & Wales |
| Date | 1894 |
| Year | 1894 |
| Court | Chancery Division |
Vendor and Purchaser - Title - Sale of Leaseholds by Executor - Lapse of Twenty Years since Death of Testator - Executor's Power to Sell.
In re WhistlerF1 must be treated as an express decision that the twenty years' rule laid down in In re Tanqueray-Willaume and LandauF2 does not apply to the case of an executor selling leaseholds of his testator.
A contract for sale of renwable leaseholds provided that the title should commence with a lease to T., dated in 1852, for the unexpired residue of the term thereby granted, and that the purchasers should not require an abstract of an earlier title, nor make any objection or requisition in connection therewith. The abstract disclosed that the lease was granted, in consideration (inter alia) of a surrendered term, to T., as executor of P., as to the date of whose death nothing was shewn. The next abstracted deed was an indenture, dated in 1878, whereby T. assigned the lease to the vendor, and entered into the usual covenants for title of a beneficial owner, no mention being made of his being an executor.
The purchaser required evidence that the sale by T. in 1878 was valid:—
Held, that, in the absence of anything to shew the contrary, T. must be presumed to have acted in the discharge of his duties as executor; and that neither the circumstance that the deed of 1878 did not purport to be executed by him as executor, nor the lapse of time, were sufficient to raise the presumption that he was acting otherwise:
Held, therefore, that the abstract shewed a good title, and that the purchasers could not insist upon their requisition.
ADJOURNED SUMMONS.
This was a summons under the Vendor and Purchaser Act, 1874, taken out by the purchasers under a contract dated the 6th of April, 1893, for the sale of certain leasehold property known as the Devon Arms, Park Lane, Torquay.
It was provided by the contract (clause 1) that the vendor should sell, and the purchasers should purchase, the property in question, held by lease dated the 29th of September, 1852, made between Sir L. Palk of the one part, and R. H. Taylor of the other part, for the unexpired residue of a term of years thereby granted, at the price of £2000, £200, part thereof, to be paid by way of deposit.
Clause 3 provided that the title should commence with the said lease. Clause 5 provided as follows: “The aforesaid indenture of lease was granted in consideration (inter alia) of a surrendered term. The purchasers shall assume that all necessary parties concurred in surrendering the previous term to the ground landlord, and shall not require an abstract or production of such surrender, nor evidence thereof, nor of any earlier title to the said indenture of lease, nor make any objection or requisition in connection therewith.”
From the abstract of title delivered by the vendor, it appeared that Taylor was described in the lease of the 29th of September, 1852, as executor of the last will of William Peeke, deceased; and that by the lease it was witnessed that “in consideration of the surrender of the term and interest of the said lessee as such executor in the hereditaments hereinafter described and of the sum of £60 to the said lessor now paid by the said lessee,” the lessor demised the property for the term of ninety-nine years determinable upon lives, and with the covenant for perpetual renewal therein contained.
The next deed abstracted was an indenture dated the 7th of May, 1878, and expressed to be made between R. H. Taylor of the one part, and George Venn of the other part, being an assignment of the said hereditaments to the said George Venn in consideration of £900. It did not appear upon the face of this deed that R. H. Taylor was an executor, and the covenants entered into by him were the usual covenants of a beneficial owner upon a sale.
George Venn died in 1891, having by his will given all his property to his wife (the vendor), and appointed her his executrix.
The purchaser made the following requisition (inter alia) upon the title:—
“The abstracted lease was granted to Richard Henry Taylor as executor of the will of William Peeke. Such will should be abstracted, and it should be shewn that the said Richard Henry Taylor had power to sell and convey the property to George Venn.”
To this the vendor replied, “See clause 5 of contract.” A correspondence then ensued between the respective solicitors of the vendor and purchasers, the purchasers' solicitor stating that they did not insist upon any further abstract, provided that the vendor could shew in any way that Taylor had power to sell in 1878. The vendor declined to produce any evidence on the point, or to furnish any further abstract.
The purchasers thereupon took out this summons, asking (1.) that it might be declared that they were not precluded by clause 5 of the contract, or otherwise, from making the above requisition; (2.) as an alternative, that it might be declared that a good title had not been shewn to the property in accordance with the contract of sale, or otherwise, and that the vendor might repay to the purchasers the deposit of £200 paid under the contract, with interest thereon at 4 per cent. from the date of payment, and the costs of or incidental to the investigation of the title.
E. P. Hewitt, for the purchasers:—
The purchasers are not precluded by the contract from making the requisition. They do not insist upon an earlier title being abstracted, but only that the vendor should shew in any way she can that the sale by Taylor was valid.
At present, a good title has not been shewn. The vendor contends that a good title is shewn, relying upon In re WhistlerF4. But the actual decision in that case did not affect the present question, because there the contract for sale was made within twenty years from the death. Moreover, the view expressed in the judgment that the twenty years' rule established by In re Tanqueray-Willaume and LandauF5 does not apply to a sale of leaseholds by an executor is open to question:Farwell on PowersF6; In re Ryan & CavanaghF7; and In re Molyneux & WhiteF8, which was not cited in In re Whistler The chief argument relied upon in In re Whistler was, that the twenty years' rule only applied to a sale of real estate under a charge of debts, whereas an executor might require to sell leaseholds for administration expenses incurred by him. But this argument is unsound, since where there is a charge of debts there is also usually a charge of funeral and testamentary expenses, and this was the case in In re Tanqueray-Willaume and LandauF9.
Assuming, however, the view expressed in In re WhistlerF10 to be good law, it does not apply to the present case. In this case the abstract shews that at least twenty-six years must have elapsed between the death and the sale of the lease. Moreover, the lease having been granted to the executor, and not to the testator, and the abstract not disclosing when the testator died, many more than twenty-six years may have elapsed between the death and the sale by the executor.
Again, in the conveyance by Taylor, there is no mention of his being an executor; but he assigns as if he were beneficial owner, and enters into full covenants for title.
In re Whistler is further distinguishable upon the ground that in that case the vendors' solicitors stated that a debt of the testator remained unpaid, whereas, in the present case, the statements of the vendor's solicitors in the correspondence are inconsistent with the view that the sale by Taylor was for the purpose of paying debts.
The vendor may possibly be able to shew that Taylor has power to sell as legatee, or as trustee. But if so, the abstract is incomplete, as the only title shewn in him by the abstract is that of executor, and as executor his power to sell had become exhausted.
T. H. Carson, for the vendor:—
The purchasers are precluded from making this requisition both by clause 5 of the contract and by sect. 3, sub-sect. 4, of the Conveyancing and Law of Property Act, 1881.
Where there is a sale by an executor, and the purchaser is made aware of the fact, it is to be presumed, unless the contrary is shewn, that the executor is selling as executor: Corser v. CartwrightF11. The onus is not upon the vendor to furnish the purchaser with evidence that the sale was valid, but upon the purchaser to shew that it was invalid. The lapse of time between the death of the testator and the sale by Taylor does not give rise to any presumption that Taylor had lost his right to deal with the personal estate so as to shift the burden of proof from the purchasers to the vendor. The case is exactly within the decision in In re WhistlerF12.
[STIRLING, J.:- If the Court had laid down any rule in that case, of course I should follow it; but it does not appear that the authorities were cited.]
Some of them were. It is an express decision that the rule in In re Tanqueray-Willaume and LandauF13 does not apply to a sale of leaseholds. As regards that rule, the way in which it is stated by Jessel, M.R., is to be observed. It is generally referred to as an absolute rule of thumb, but should not be so regarded. The rule actually laid down was not necessary for the decision of the case before the Court, and must...
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