Union Bank of Australia v Harrison, Jones and Devlin Ltd [1910] HCA 44

492 HIGH COURT ie

H.C. or A. the action up to verdict as were incurred by them by reason Rs that joinder, with mutual set off, and be restored as so varied, Baryzs &Co. The respondents Sharpe and the company must pay the

ee appellants one-half of their costs of the motion for judgment or Suarre. new trial and of this appeal.

Higgins J.

Order accordingly,

Solicitors, for appellants, Atthow & McGregor. Solicitors, for respondents, Thynne & Macartney,

a HVJ, yt {HIGH COURT OF AUSTRALIA.] UNION BANK OF AUSTRALIA - . APPELLANTS+ DEFENDANTS, AND HARRISON, JONES anp DEVLIN LTD. . ReEsponDeENTs. PLAINTIFFS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Probate Act 1890 (N.S.W.) (54 Vict. No. 25), secs. 15, 17, 19, 20—Judgment

1910. Creditors Remedies Act 1901 (No. 8), secs. 10, 12—Administration—Action —— against one of several executors—Sale by sheriff under fi. fa.—Lffect of bargain Sypwey, and sale by sheriff to pass equity of redemption in real and personal estate of Aug. 24, 25, testator — Power of one co-executor to dispose of real and personal estate of 265 Sept.8. testator. mice Under see, 15 of the Probate Act 1890 real estate vests in the executors 08 m5. joint tenants, in the same way as personal estate. Sec. 20 provides that an

executor shall have the same rights and be subject to the same duties, with respect to real estate of the testator, that executors theretofore had or were subject to with reference to personal assets.

U CLR] OF AUSTRALIA.

Held, that the intention of the Act was to place real and personal estate upon the same footing as regards actions for the recovery of debts due by the testator.

'The appellants, who were mortgagees in possession under mortgages of station property and stock, brought an action against one of the two executors of the mortgagor to recover the amount due under the mortgage, and obtained judgment for want of a plea, At the date when the action was brought, and up to the time when judgment was recovered, the other executor was out of the jurisdiction. A writ of jieri facias was taken out by the appel- Jants, and the sheriff, in execution of the writ, sold to the appellants the right, title and interest of the testator at the date of his death, and the right, title and interest of his executors in the real and personal property included in the mortgages. A deed of bargain and sale was subsequently executed by the sheriff in favour of the appellants, Prior to appellants going into posses- sion, the executor who was out of the jurisdiction mortgaged his beneficial interest in the station to the respondents, who brought a redemption suit against the appellants alleging that the deed of bargain and sale executed by the sheriff was inoperative and that the appellants were liable to account as mortgagees.