CT. OF APP.]

where executors have been held entitled to join in a partition of the leaseholds belonging to the estate. Since the Land Transfer Act 1897 the executors have the same powers with regard to real estate as they have with regard to leaseholds before that Act; and Mr. Farrer, in support of the vendor's contention in this case, relies upon the Land Transfer Act of 1897 sect. 2, sub-sects. 2 and 3, as conferring a power on the executors to join in a partition of real estate. Sect. 2, sub-sect. 2, of that Act enacts, amongst other things [His Lordship read the material part of that sub-section.] That really only throws you back on to the question: what were the powers of executors with regard to chattels real before the passing of the Act? I intend to decide this case on the footing of the law relating to chattels real before the passing of the Act of 1897, in other words, to test the question in this case by the question whether before that Act an executor had power to join in a deed of partition in respect of the undivided interest held by his testator. But Mr. Farrer relies also upon sub-sect. 3 of that section, and in sub-sect. 3 he contends you find a further power conferred upon the executors. [His Lordship having read sub-sect. 3 continued:] In my opinion, that subsection does not confer any additional rights upon executors to partition the leaseholds and a fortiori does not confer any such power as regards real estate. The liability for debts, costs and expenses is, of course, pure administration, as is the order in which the assets are to be distributed. The words "with the same incidents as if it were personal estate mean merely this, that the real estate during and after this Act is to be administered in the same manner as the personalty, with the exception of the incidents which are provided for in the proviso to that section. That sub-section, to my mind, does not confer any additional powers upon executors, either with regard to leaseholds or with regard to real estate. The next statute which Mr. Farrer relied upon is the Trustee Act of 1893, s. 21. [His Lordship read the material parts of that section]. Now, the first branch of that section to which I have referred deals with accepting a composition or security which may be either a real security or a personal security for a debt, or for any porperty, real or personal, claimed. I cannot accept the argument of Mr. Farrer that this deed of partition is any composition for any real property claimed, nor is it any security for any property which has been claimed. With regard to the second branch of this section to which I have referred, in the circumstances of this case it is clear that there was no compromise or settlement of a claim or thing relating to the testator's estate. I think that it is quite possible that a deed such as has been executed in the present case might under certain circumstances amount to a compromise or a settlement of something relating to the testator's estate. In the present case it appears that after an attempted sale of the property as a whole by all the owners, the parties voluntarily agreed to partition the estate between themselves. It might have very well

[CT. OF APP.

been, had an action been threatened by the other co-owners against the executors, and in order to avoid the expense of a partition action a compromise had been agreed upon, that such a compromise might have been upheld under the powers contained in sect. 21, but that is not what took place here. Here there was a voluntary agreement come to without, so far as one can tell, any threat of legal proceedings, nor does there appear to have been any compromise, or settlement of any question which had arisen between the parties, beyond the fact that they agreed to partition the estate among themselves. So much for the executor's duties and his statutory powers. It is further contended that the executor has an inherent power as owner of the estate to partition that estate with any co-owners; and I am referred to Lord Hatherley's decision in Earl Vane v. Rigden (L. Rep. 5 Ch. 663) in support of that proposition. It is important, before considering the effect of Lord Hatherley's words in his judgment,, to observe what that case was about. In that case the executrix had assigned all the bookdebts of her testator with the books of account to one of the creditors to secure the payment of a debt, and had given him a power of attorney to collect the debts in her name. There the Court of Appeal, reversing the judgment of Vice-Chancellor Malins, held that that assignment was valid. In that case no sort of question arose as to the power of an executor to deal with chattels real. There was in that case personal estate in the shape of book debts, and the question was whether the executrix, without any fraud or collusion with the creditor, had power to charge those book-debts in favour of the creditor for the purpose of securing the debt. I think the observations of Lord Hatherley were directed to the power of an executor to deal with the personal estate of the testator, and that Lord Hatherley was not considering any question of what an executor could do with regard to the chattels real, whether he could lease or partition or give future options for sale over chattels real of terms of years. Lord Hatherley says there : "As long ago as the case of Scott v. Tyler (2 Dick 712, 725) Lord Thurlow expressed his opinion clearly to be that the executor is at liberty either to sell or to pledge the assets of the testator. In fact he has complete and absolute control over the property and it is for the safety of mankind that it should be so; and nothing which he does can be disputed except on the ground of fraud or collusion between him and the creditor. That, like all other frauds, will vitiate any transaction whatever." I do not think for one moment that Lord Hatherley there was suggesting that an executor could join in the partition of the leaseholds of his testator. What he was dealing with was that the executor has complete and absolute control over property such as he was dealing with there, like property in the nature of personal chattels or choses in action. He was dealing there with a case of a mortgage of that class of personal property, and I think that the latter part of his judgment, which has also been relied upon, is clearly

CT. OF APP.]

referable to the fact which he was dealing with in that case. There, on p. 669, when dealing with the case of Russell v. Plaice (18 Beav. 21) he says this: "The Master of the Rolls held, as it seems to me, quite correctly that in the eye of this court, as well as in the eye of a court of law, the executor is the absolute owner of the property; he does not stand in the position of a delegatus and nothing can intercept that ownership, except fraud or collusion as between him and the parties with whom he deals." Now, it is quite obvious there that Lord Hatherley in approving of that statement of the Master of the Rolls in Russell v. Plaice (ubi sup.) was not for one moment intending to extend the powers of executors beyond those which were well known. What he was there approving of was the statement that an executor has in law the absolute property in the personal estate, and he can confer a good title in that property to the persons dealing with him for value bona fide. He does not mean to say that the ownership is so complete that an executor could probably throw away the property or make a gift of it to charity. It would be absurd to expend the doctrine to that extent. So, also, he did not intend to say that an executor might lease at will property which consisted of terms of years. All the powers that an executor has are, as I have stated before, referable to his duty to realise sufficient of the estate to clear it from debts and other charges and to make it a trust estate. The partitioning of property seems to me to fall into quite another category. It is, when looked at strictly, merely an acquisition of an additional right in a smaller part of the property in which the testator had an undivided interest, and it is not necessarily an acquisition intended for the more ready realisation of the estate of the testator. In the present case the facts are to the contrary. The executors had combined with the other co-owners to try and realise and had failed, and then, upon failing to realise the property, as a whole and even that part which was partitioned to the testator, they purported to acquire the fee in the entirety of a portion of that property, obviously not with a view to selling it, but with the intention of holding it for a time more favourable, until possibly it could be realised or dealt with in another way. In my view, as the law stands at present, they had no power to do that, and therefore the title which has been taken by the purchaser in the present case from one of the co-owners of the testator is not a title which the court can compel that purchaser to take. He desires now to be rid of his contract. And therefore, as I have already said, I regret that I have to decide that he is empowered to get rid of that contract, but I am bound to do so and to declare that no good title has been shown to the property.

Dame Kemnal, the vendor, appealed.

Owen Thompson, K.C. and F. E. Farrer for the appellant.-The vendor has shown a good title which was accepted by her and other purchasers since 1914 when the executors of W. G.

[CT. OF APP.

Fenn entered into the deed of partition in question. The testator W. G. Fenn was entitled as of right to a partition of the property held in common notwithstanding the abolition of the writ of partition :

Mayfair Property Company v. Johnston (70 L. T. Rep. 485; (1894) 1 Ch. 508). Trustees for sale it is true have no power to partition (Brassey v. Chalmers, 16 Beav. 223; on appeal, 4 De G. M. & G. 528), but executors are not in the same position. Williams on Executors, 11th edit., p. 693, contains the statement that it is a general rule of law and equity that an executor or administrator has an absolute power of disposal over the whole personal effects of his testator or intestate, and the powers of executors have always been given Where a wide interpretation by the courts. executors are joint tenants they may partition (inter se, see Wentworth on Executors, edit. published in 1763, at pp. 99, 100; and Ames v. Comyns, 17 L. T. Rep. 163; 16 W. R. 74). Lord Hatherley in Earl Vane v. Rigden (L. Rep. 5 Ch. 663, at p. 668) went so far as to say that an executor had complete control over the property of his testator and that it was for the safety of mankind that it should be so and that nothing that he did could be disputed except on the ground of fraud or collusion between him and the creditor, and James, L.J. concurred. [YOUNGER, L.J.-What was said in that case amounts to no more than that an executor is not a delegatus but a principal]. In Re Chaplin and Staffordshire Potteries Waterworks Company Limited's Contract (128 L. T. Rep. 186; (1922) 2 Ch. 824, at p. 838), which decided that executors had power to sell minerals separately from the surface, Scrutton, L.J. asked the question why should they not have such a power? And that question may well be asked here and answered in the same way that they have such a power; it is true there is no case in which they have been held to have power to partition but there is nothing to show on the other hand that they have not such a power. [Simpson v. Denny, 10 Ch. Div. 28, was also referred to.]

The

A. F. Topham, K.C. and Bradley Dyne for the respondent, the purchaser.-There is nothing to show that the executors of Fenn by joining in this deed of partition were thereby taking any step towards the realisation of the testator's property for payment of his debts and expenses. The onus of proof that this deed was entered into for some purpose of the administration of the testator's estate lies on the vendor. powers at common law of executors are for purposes of realisation only including sale, mortgage, and, in rare cases, leasing. The obiter dicta of Lord Hatherley in Earl Vane v. Rigden (ubi sup.), stating executors have absolute powers, must be limited obviously to the performance of their trust. Executors may be the proper persons to apply to the court for partition but trustees for sale are the right parties for this purpose (Stace v. Gaze, 38 L. T. Rep. 843; 8 Ch. Div. 451), though they have no

CT. OF APP.]

power to concur in partition. Though a power is analogous to a trust for sale, nevertheless it is not so extensive in some respects (see Re Verrelle's Contract, 87 L. T. Rep. 521; (1903) 1 Ch. 65). A power of sale is not well executed by partition (see M'Queen v. Farquhar, 1805, 11 Ves. 467; Brassey v. Chalmers, 16 Beav. 223). The burden lies on the vendor to show that joining in this deed of partition was for the benefit of the estate (see Keating v. Keating, 1835, Lloyd and Gould's Reports; Oceanic Steam Navigation Company v. Sutherberry, 43 L. T. Rep. 743; 16 Ch. Div. 236). The court will not enforce on a purchaser a title which depends on any proof of fact which is disputed (see Nottingham Patent Brick and Tile Company v. Butler, 54 L. T. Rep. 444; 16 Q. B. Div. 778). The following were also referred to :

Wentworth on Executors, p. 129;
Blackstone's Commentaries, vol. 2, pp. 510,
511;

Perkins' Profitable Book, sects. 486, 488;
Hill v.
Simpson, 7 Ves. 152;

McCleod v. Drummond, 14 Ves. 353; on
appeal, 17 Ves. 152;

Underhill on Trusts, p. 518.

Owen Thompson, K.C. in reply referred to Re Adams and the Kensington Vestry (51 L. T. Rep. 382; 27 Ch. Div. 394). Cur. adv. vult. March 5.-The following judgments were read :

pro

Lord STERNDALE, M.R.-This case ceeded before Lawrence, J., from whose decision the appeal is brought upon an agreed statement of facts, and I therefore refer to that statement without setting it out in my judgment. The question raised is one which may have been of great importance before the passing of the Law of Property Act, but is now probably of interest only to the parties to this appeal. It is whether executors have a right to concur in a partition of property which was held in common by their testator with other persons. It arises in this way. The vendor derives title through a Mr. Docking, who was entitled in fee simple together with other persons of the names of Fenn and Hooker to certain property as tenants in common. Fenn died and his executors and the other tenants in common attempted to sell the property, but failed to do so. The executors and the other tenants in common then agreed to a deed of partition by which the lands contracted by the vendor to be sold to the purchaser were allotted and conveyed in severalty to the vendor's predecessor in title. The purchaser now takes the objection that Fenn's executors had no power to agree to a partition, and therefore the vendor has not a good title. I agree with the learned judge that the objection is a mere technicality and an attempt to get out of a contract which the purchaser has made. It must be remembered that the question here is one of the powers of executors and not of trustees for sale. It is true that by the will the executors after the fulfilment of their duties as executors hold the

[CT. OF APP.

testator's residuary estate upon trust for sale and then the proceeds upon certain trusts. It has been clearly decided that trustees holding property upon a trust for sale and not for sale and exchange cannot partition because their powers are limited by the terms of the trust, and partition is not sale.

Here, however, it is admitted that the executors' duties as executors still remained unfulfilled at the time of the partition, and they were consequently acting as such. Now the executors' powers though in a sense derived from the will, for if there were no will there would be no executors, are not confined to powers given by the will as in the case of trustees under a trust for sale but arise virtute officii. When the question is asked, can an executor concur in a partition? I confess my inclination, in the absence of authority, to the contrary, is to ask, as Scrutton, L.J. did in Re Chaplin and Staffordshire Potteries Waterwork's Company Limited's Contract (128 L. T. Rep. 186; (1922) 2 Ch. 824), why should he not? His power and duty is primarily to realise the estate for the purpose of paying debts and it seems to me that any act of administration which tends to the easier and better realisation of the estate is prima facie within his powers, and that if it be said that it is an unusual method, such as that contemplated by Jessel, M.R., in Oceanic Steam Navigation Company v. Sutherberry (43 L. T. Rep. 743 ; 16 Ch. Div. 236), it lies upon the person objecting to the exercise of the power to show that it is not exerciseable. I do not think it can be said of itself to be such an unusual way of discharging an executor's duties as to put a purchaser on enquiry. An executor who finds that part of an estate which it is his duty to realise is held in common with others is put in a difficulty. To realise his undivided share is by no means easy to do, and to realise the whole requires the concurrence of the other tenants in common in the sale and in the price reserved, &c. To agree to a partition seems to me to be a natural and reasonable method by which an executor can put himself in a position to administer and realise his testator's estate.

This is especially so in a case like this where the land held in common is building land in different lots easily severable and intended to be disposed of in different lots. I do not say what might be the result if it were shown that the partition was for the purpose of a permanent holding of the land severed as part of the testator's estate and not merely a step in administration, but nothing of that kind is shown in this case, and I think it is for the purchaser to show it. I think, therefore, that the purchaser's objection cannot be sustained. I come to the conclusion with hesitation, as I am differing from the decision of P. O. Lawrence, J. on a difficult and technical subject with which I am not familiar, but I am glad to find that the other members of the court agree with me.

The result is that the appeal must be allowed and a declaration made that the vendor has

CT. OF APP.]

shown a good title. The purchaser must pay the costs here and below.

WARRINGTON, L.J.-The question in this case is whether the vendor has made a good title to certain plots of freehold building land comprised in a contract for sale.

These plots form part of a larger number to which three persons, including the predecessor in title of the vendor, were entitled in equal shares as tenants in common in fee simple. One of these persons, not the one through whom the vendor derives title, died in the year 1913, having made his will, whereby he appointed executors and devised to them all his real estates upon the usual trusts for sale. Under the Land Transfer Act 1897, and by virtue of their appointment the undivided share above mentioned became vested in the executors with the powers and duties in the statute mentioned, being in effect those of legal personal representatives in relation to chattels real.

Six months after the testator's death while their duties as executors still remained unfulfilled they concurred with the other two tenants in common in a partition of the plots of land and on such partition the plots comprised in the contract were allotted and conveyed in severalty to the vendor's predecessor in fee simple.

The purchaser objects that the executors had no power to effect a partition-the judge has upheld their objection and has declared that the vendor has failed to make a good title. The vendor appeals.

Attempts had been made by the executors in conjunction with the other two tenants in common to sell the plots as a whole but they had not been sold. As already stated the executors were not functi officio, and there is no evidence that in joining in the partition they had any other object than the convenient realisation of their testator's estate.

I think that the question is: May the concurrence of the executors in a deed of partition be regarded primâ facie as an act done in the proper performance of their duty as executors ?

Their duty includes that of the realisation of the estate for the purpose of paying debts, funeral and testamentary expenses and legacies, and it is well settled that no purchaser or mortgagee is liable to have his title called in question unless he has actual notice of the impropriety of the transaction. Does this principle apply to the present case? If it does the purchaser will obtain a good title for he has no notice of any improper conduct on the part of the executors other than the execution of the deed of partition.

An executor finding himself in possession, as part of the estate, of an undivided share of land is in a most difficult position. If he is called upon to realise he must either sell the undivided share a most unprofitable course to pursueor he must obtain the concurrence of his cotenants not only in a sale at a time which may be inconvenient to them, but on all the terms

[CT. OF APP.

of sale including, of course, the price, and in cases of sale by auction the reserve.

Of

By concurring in a partition he frees himself from these difficulties and puts himself in a position to realise to the best advantage and without delay in case, as often happens, a speedy realisation becomes necessary. course there may be cases in which the nature of the property is such that a partition cannot be conveniently effected, but the present is one to which it was particularly appropriate, the property held in common being a number of parcels of building land capable of being easily allotted in severalty among the co-tenants. I think in such a case the concurrence by the executors in a partition ought to be treated as a proper and ordinary step towards the profitable realisation of the testator's estate, so that those who claim under it obtain a good title unless they have notice of some impropriety in the transaction other than the fact of partition itself. I am quite aware that there is no authority directly supporting the view I have expressed but there is no authority to the contrary, and I think we are quite at liberty to uphold a transaction which is so obviously convenient and may often be necessary.

I wish to add a word of caution. It has long been recognised that a mere power of sale or trust for sale as distinguished from one for sale and exchange vested in trustees does not authorise a partition and I wish to throw no doubt on the correctness of this view, but this results from the construction of the instrument creating the trust or conferring the power, the court coming to the conclusion that in its true construction such a mode of dealing with the property is not mentioned. The case of an executor is different: he derives his powers from his appointment as executor and they are not limited in ordinary cases by the terms of the will.

On the whole I am of opinion that the order of P. O. Lawrence, J. should be discharged and a declaration made that a good title has been shown, and the purchaser should be ordered to pay the costs here and below.

YOUNGER, L.J.-The testator, William George Fenn, with the powers of whose executors we are concerned in this appeal, died on the 11th Nov. 1913, having by his will made in 1912 appointed his widow, his son, his daughter, and the Public Trustee to be his executors. He also appointed the same persons to be his trustees, and devised and bequeathed to them his real and personal estate not by his will otherwise specifically disposed of upon trust for sale with power to postpone. The will of the testator was duly proved by the executors on the 31st Jan. 1914.

It appears from the documents before us that the testator had on the 29th July 1907 joined with the other persons-Frederick Reynolds Docking and Walter Hooper by name-in the purchase for 8000l. of certain hereditaments and building land known as "Birdhurst," Croydon. The three were interested in the premises in

CT. OF APP.]

equal shares as tenants in common, and they had been engaged in the development and sale of the land as a building estate. It had been duly plotted; roads had been set out and made up, and certain of the plots had been sold and buildings erected upon them. But the greater part of the property remained on hand although it had from time to time been offered for sale by auction. The executors of the testator accordingly, on proving his will, had, amongst the testator's property vested in them as such, thus undivided interest in this partially disposed of building estate.

By virtue of sect. 2, sub-sect. 2, of the Land Transfer Act 1897, the executors were possessed of such powers over this property as they would have possessed when that Act passed, had the property been chattels real of their testator vested in them as his executors. As to the extent of these powers there is up to a point no dispute.

It is, of course, agreed that the executors had the fullest power to sell and convey the testator's undivided interest in this building estate. No one, however, suggests that such a property is a readily saleable interest. Indeed, no substantially equivalent interest in this property less likely to command an adequate price can easily be named. The executors again might have joined with the other two co-owners in the sale at agreed prices of the property as a whole or in plots. But any possible agreement to any such sale might be reached not primarily by reference to the interests of the testator's estate but by reference to the interests or necessities of one or both of the other coowners. And here the executors' effective powers of sale ended. The one compromising, the other full of possible embarrassment. On the other hand the executors' two co-owners could have demanded a partition in proceedings to which the executors would have been the only necessary defendants as representing their testator's estate. And in such proceedings a partition exactly as in the event was here carried out could have been validly decreed and equally validly submitted to. Such was the position of the executors with reference to their property. The question which, on this appeal, we have to determine is whether their first act in relation to its realisation was within their powers. That act was to concur with Mr. Docking and Mr. Hooker in entering, on the 2nd May 1914, into the partition deed of that date. Is that deed effective to bind the estate of the testator and all persons interested in it, to the partition thereby made?

The fairness of the partition is not challenged. No objection to it is raised by any person interested in the testator's estate. The "Green land," which is the portion of the respondent's purchase affected by the deed, was not thereunder allotted to the executors. It was part of the land allotted to Mr. Docking which, from him, through sundry mesne purchasers and ultimately by an exchange, has devolved upon the appellant the vendor. This, with other land, the respondent has agreed to

[CT. OF APP.

purchase, and his objection to the vendor's title is that as the testator's executors were, as he contends, without power to bind their estate by the deed of partition which they executed, no title in severalty to the green land passed to Mr. Docking, and no such title has devolved upon the vendor. The learned judge, although with great reluctance-for the objection is, in his view, a pure technicality -has accepted the purchaser's contention, and has ruled that this objection to the title is well founded. Hence the appeal.

Now, as I read his judgment, the learned judge seems throughout to be directing his attention to the question when or how executors acquired any power to be effective parties to a deed of partition like the present. With the Master of the Rolls and Scrutton, L.J. in the passage already quoted from the Lord Justice's judgment in Re Chaplin and Staffordshire Potteries Waterworks Company's Contract (ubi sup.), I think the question here rather is : Why should not the executors have dealt with the land as they did? This deed of partition was not, in my judgment, as Mr. Topham so strongly insisted it was, a novel and unusual method of disposing of the testator's property. I have set forth the circumstances attending its execution for the purpose of enabling me now to emphasise what, as it seems to me, this deed really was. It was as I see it a convenient conversion of the testator's undivided third interest in this entire building estate into an interest in severalty in a third of the whole so as to make possible, first, the more beneficial, and, next, the uncontrolled realisation of the testator's interest in the property if and when the occasion for such realisation by the executors became urgent or expedient. The partition was a preliminary to realisation not a substitute for it. Why should not the executors have entered into it?

The powers of executors as such over the property of their testator vested in them have always been expressed generally in the widest possible terms.

If in their origin the purpose of these wide powers is correctly explained by Perkins in his Profitable Book, sects. 486 and 488, in the passage quoted to us by Mr. Farrer, viz., that "the soul of the testator shall not be in danger for the non-payment of his debts,” one need feel no surprise at the generality of the judicial language in which executors' powers are invariably described. The language used is indeed comprehensive. Lord Hatherley's statement of their position in Earl Vane v. Rigden (L. Rep. 5, Ch. 663, at p. 669) is merely an echo of similar expressions to be found in the Reports passim. It must be agreed that the powers of an executor over the property he takes from his testator, large as they are both at law and in equity, are taken, as Lord Eldon said in M'Leod v. Drummond (17 Ves. 152, 153), for the purpose of enabling him to fulfil his trust. But this is not to say that any powers incidental to the beneficial attainment of that purpose are denied him.