1905.

ARTHUR RICKARD

such sum as shall bear to the whole purchase money the same proportion as the value of the lot or lots to which no sufficient. title can be shown bears to the value of the whole property hereby contracted to be sold the amount of such abatement in BANK AND the event of dispute to be settled by the usual mode of arbitraAGENCY CO., tion." Prior to the auction the purchaser's solicitor had called

& Co.,

LTD.

SYDNEY LAND

FINANCIAL

LTD.

and perused the Conditions of Sale, and with reference to Clause 5A had remarked "That is a very stringent condition." After the delivery of the abstract of title the purchaser's solicitor discovered that the property in Smith and Johnson street, Sydney, was not mentioned specifically in the will of the testatrix. The solicitors for the vendor, however, alleged that it passed by the general devise of her real estate. The purchaser's solicitor stated that his searches disclosed that the testatrix had no documentary title and asked for evidence of a good possessory title. In reply to this requisition the vendor's solicitor forwarded certain statutory declarations, and also relied upon the fact that the property was included in the affidavit made by the executor of the testatrix for the purpose of stamp duty. The purchaser's solicitor contended that the evidence adduced was insufficient. The vendor's solicitors thereupon relied upon Clause 5A of the Conditions of Sale, and refused to produce further evidence of the seisin of the testatrix.

This was a summons by the purchaser asking that it might be declared that the objections by the purchaser to the title had not been sufficiently answered, and that a sufficient title had not been shown, and for a declaration that the vendor was unable to show a sufficient title within the meaning of Clause 7 of the Conditions, and for costs.

At the hearing the vendor relied upon Clause 5A, and also insisted that, in fact, sufficient evidence of seisin had been adduced.

Sheppard, for the purchaser.

Condition 5A does not provide that the purchaser must assume that the testatrix was seised at the date of her will or death. The property being sold as "freehold" the purchaser is entitled to have an unencumbered fee simple title: Phillips v. Caldcleugh (L.R. 4 Q.B. 159). The will does not identify the land; it is alleged that this property was included in a mere general

devise of her real estate. The description in the Abstract does not enable a surveyor to identify the parcels as those mentioned in the contract. No sufficient evidence of seisin has been shown.

Langer Owen, for the vendor.

Condition 5A means that the purchaser must assume that the property in question passed under the will and that the testatrix was in fact seised thereof; a general devise is a sufficient root of title where the property in question has since the death of the testator been dealt with as forming part of the estate. The Condition means that the vendor is not bound to show any title in the testatrix, otherwise it is inoperative and valueless; the vendors have, however, shown that prior to and at her death the testatrix was in the enjoyment of the property. The purchaser is not entitled to require proof that the testatrix was not only de facto but also de jure owner of the property, that would be to require proof of title antecedent to her death. The Court will not approach the question as if the vendor were attempting to compel specific performance; the contract having been entered into without oppression or over-reaching the rights of the parties should be regulated by the contract: In re National Provincial Bank of England and Marsh ([1895] 1 Ch. 190). This was a speculative purchase from the liquidator of a Company at a low price, and the purchaser had full notice of this Condition. any case the purchaser has in fact shown sufficient evidence of title.

Sheppard was not heard in reply.

In

A. H. SIMPSON, C.J. in Eq. This is a vendor and purchaser summons on which the purchaser is asking for a declaration that his objections to the title have not been sufficiently answered and that the vendor is unable to show a sufficient title within the meaning of Clause 7 of the Conditions of Sale. The material clauses of the Conditions of Sale are numbered respectively 5A and 7. These Conditions are as follows:-(His Honour read those Conditions and proceeded :-) On principle a mere general devise of a testator does not show that the testator is in fact seised of any particular piece of property; and I think the authorities are to the same effect. In Farrer's Conditions

1905.

ARTHUR RICKARD & Co., LTD.

v.

SYDNEY LAND
BANK AND
FINANCIAL
AGENCY CO.,
LTD.

1905. ARTHUR

RICKARD

SYDNEY LAND

FINANCIAL

LTD.

An

of Sale of Real Estate the author states the law on this point at page 198 as follows "The following are not good roots. & Co., LTD. of title:-(a) A general devise, unless there is sufficient v. evidence of testator's seisin; subsequent recitals and longBANK AND continued possession will be sufficient evidence": for which AGENCY Co., proposition he cites Parr v. Lovegrove (4 Drew. 170). examination of that case bears out the learned editor's statement C.J. in Eq. of its effect, and the law is stated to the same effect and in somewhat similar terms in Dart's Vendors and Purchasers, 6th Ed. 337, and in Williams' Vendors and Purchasers, Vol. I. at page 87. So far then as the general rule is concerned I am of opinion that the purchaser is entitled to require evidence that the testatrix was in fact seised of this property at the date of her death. Then comes the next question whether in this case sufficient evidence has been shown of seisin in the testatrix at that time. That evidence is the following. (His Honour dealt with the evidence, and held the evidence adduced by the vendor prior to the hearing was not sufficient, and proceeded :-) I do not think that Condition 5A precludes the purchaser from disputing the title prior to the 12th April, 1880, the vendor having himself gone into evidence of title antecedent to that date. I, therefore, hold that the vendor has not shown a good title at present.

August 11.

As to whether I should declare that the vendor is unable to make a good title that must stand over for further argument. On August 11th.

Langer Owen, for the vendor, asked for an open reference to the Master as to whether the vendor was able to show a good title.

Sheppard, for the purchaser, contra.

His Honour said that under the circumstances of this case, and in view of the fact that the vendor had on the hearing of the summons insisted that he had in fact shown sufficient evidence of seisin at the date of the testatrix, he would not grant the reference asked.

Declarations made as asked, with costs.

Solicitors: H. S. Harden; Sly & Russell.

Re DAUNT; Ex parte MCINTYRE AND YATES.

1905.

Bankruptcy Act 1898 (Act No. 25 1898) ss. 6, 8; R. 100-Creditor's Petition- Sept. 20, 21, Presentation Verification-Practice.

A bankruptcy petition is not validly presented unless and until it has been filed together with a verifying affidavit. APPEAL FROM THE REGISTRAR.

A creditor's petition was lodged in the Bankruptcy Office on February 27th, but with no affidavit verifying the same; by some oversight the petition was filed on the same day it was lodged. The period of six months from the date of the act of bankruptcy alleged in the petition expired on March 1st, and it was not until March 13th and 14th that affidavits verifying the petition were sworn, and they were not filed until March 30th. The petition was served on the debtor on April 3rd, and objections were filed on April 6th.

Upon the petition coming on to be heard on April 7th, the Registrar refused to adjudicate upon it on the ground that the unverified petition was null and void, and that, consequently, there was no presentation of a petition within six months of the act of bankruptcy alleged; but he made no order as to costs. The petitioners appealed.

Gordon, K.C., and R. H. L. Innes, in support of the appeal. There is a distinction between the "presentation" and the "filing" of a petition; a creditor who presents a petition must verify it before it is filed, so that the Registrar may see that a prima facie case is made out before the petition is made public: Smith's Chancery Practice, 3rd Ed. p. 130; Smith v. Harwood (1 Sm. & Giff. 137); In re Sanders (1 Man. 382); Ex parte Lindsay (L.R. 19 Eq. 52). The affidavit of verification need not accompany the original petition: Re Ireland (18 N.S.W. L.R. (B. & P.) 33).

28.

Walker J.

1905.

Re

DAUNT;

Ex parte MCINTYRE AND

YATES.

[WALKER, J. The Registrar says that the practice has been to draw no distinction between "presentation" and "filing"; must not the maxim cursus curiæ lex curic apply ?]

No, the rights of creditors are fixed by the Act. A petition by a company must be verified by affidavit as a condition to its presentation, but there is no case suggesting that this is the practice in any other case: In re Cripps (5 Mor. 226).

The decision in In re Nicol (22 N.Z. L.R. 129) under the New Zealand Act (56 Vic. No. 24) is not in point, because in that Act the word "filing" is used where in our local Act the word "presentation" occurs.

The Registrar cannot introduce a practice not sanctioned by rules of Court; any difficulty could be readily met by prescribing in the rules that a petition, if not verified within a certain time of presentation, should lapse; but at present there is no such rule.

Perjury could not, prior to the creation of the statutory offence of "false swearing," be assigned on an affidavit filed eo instanti with a petition: Francome v. Francome (11 Jur. (N.S.) 138); so that the verifying affidavit was no prevention of the filing of a petition maliciously.

L. Owen contra.

An unverified petition cannot be received; in equity "preferring" a petition means presentation to and acceptance by the Court.

In re Cripps (supra) decided that a petition is not properly presented unless verified by affidavit; the old distinction between "filing" and "presenting " has long become obsolete.

The Bankruptcy Act and rules make no provision for dealing with a presented petition; by s. 144 no document has any validity until it is received, the Registrar's duty being to file all documents as soon as they are received by him.

Under the English rule 152 an affidavit must be filed with the petition (Robson's Law of Bankruptcy, 6th Ed. pp. 203, 204); In re Bennock (21 L.T. (N.S.) 625); the only difference between the English practice and our own is that in New South Wales a petition must be fully verified at the time of its presentation.