Burke v Dawes [1938] HCA 6

REPORTS OF CASES

DETERMINED IN THE

HIGH COURT OF AUSTRALIA ~

(HIGH COURT OF AUSTRALIA.)

BURKE AND ANOTHER . 2 3 . APPELLANTS ; PLAINTIFFS,

AND

DAWES AND ANOTHER . ff ' : . RespoNDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

- | Torrens 'System—Executor—Morlgage—Long interval between death of testator and H.C. ov A. 'morlgage—Tenant in possession—Assumption that executor was acting in course 1937-1938. of executorial duties—No knowledge by mortgagee that he was not so acting— a ca Rights of mortgagee prevailing over rights of tenant in possession—Administration MELBOURNE, and Probate Act 1928 (Vict.) (No. 3632), secs. 8, 9, 36 (5), (10)—Transfer of _ 19375 Land Act 1928 (Vict.) (No. 3791), secs. 72, 179, 232. Nov, 10.

| Executor—Functions—Administration of estate. 1938,

'A devised certain land of which he was the registered proprietor under the 7@_ 2°

Transfer of Land Acts (Vict.) to B, who was living thereon before A's death and, with the consent of A's executor, remained in possession continuously thereafter. Seventeen years after the death of A his executor mortgaged the Jand. The mortgage interest having fallen into arrear, the mortgagee claimed possession of the land under the mortgage.

Held, by Starke, Dixon and McTiernan JJ. (Latham C.J. and Evatt J. dis- senting), that the fact that B was a tenant in possession within the exception contained in sec. 72 of the Transfer of Land Act 1928 (Viet.) gave her no greater protection than she would have had if the land were under the general

MeTiernan JJ.

HIGH COURT [1937-1938.

law, and that, as the mortgagee had neither express nor constructive notice that the executor in giving the mortgage was not acting bona fide in discharge of his executorial functions, the mortgage prevailed over B's interest under the will.

The nature and extent of the functions of an executor considered.