Mortgage-Sale at auction-No conveyance-Purchaser not taking possession­Mortgagor's Claim to possession against outsider in possession.

The owner mortgaged his property to one S; both mortgagor and mortgagee died later. One of the executors of the mortgagee's estate took possession of the property and claimed title to it; and after his death the mortgagor's children sued the executors of his estate. The facts were as follows;-

The mortgagee's executors, purporting to act under the power of sale, put the property up to auction and sold it to a bank for £750 but executed no conveyance to the bank. One of those executors, namely P. H. Williams, was a director of the bank; he allowed £100 to be paid and kept the balance of £650 on deposit with the bank. The bank did not take possession.

Later the bank went into liquidation, and the liquidators sued the executors of the mortgagee's estate claiming specific performance of the contract of the sale of the property to the bank or repayment of the purchase price. The action was settled by the executors paying the liquidators £400.

Later still a beneficiary under the mortgagee's will sued P. H. Williams for breach of trust in allowing the £650 to remain on deposit with the bank and obtained judgment. Thereupon P. H. Williams taking advantage of his position as an executor of the mortgagee's estate and of the situation created by the beneficiary's action against him, took possession of the property and claimed title to it. After his death the children of the mortgagor sued the executors of his estate claiming (i) a declaration of title to the property, and (ii) recovery of possession. They failed and appealed.

In the appeal it was argued for the executors of P. H. Williams that the mortgagor's children were estopped from denying the sale to the bank, of which they must have known, and that they had lost any interest they might have had when the property was sold to the bank.

Held: (1) The bank did not take possession after the sale, nor was the property conveyed to the bank; and the sale was called off at the settlement of the suit brought by the liquidators of the bank against the mortgagee's executors; so the legal estate remained in the mortgagee's estate. The executors of the mortgagee's estate not being a party in this dispute, the mortgagor's children could not have a declaration of title to the property.

(2) The mortgagor's equity of redemption was not extinguished by any valid and effectual sale of the property; it was not a purchaser at the sale but P. H. Williams who was in possession, and as against him and his executors the appellants as children of the mortgagor had a better right to possession.

Appeal by plaintiffs: No. 3580.

F. R. A. Williams, with him Fani Kayode, for Appellants.

J. I. C. Taylor for Respondents.

The following judgment was delivered:

Foster-Sutton, P. The appellants are the children of Thomas Folaranmi Williams, deceased, and sued the respondents, executors of Phillip Henryson [ pg129 ]

a payment down of £1UO to be made anu tHe UcU.J.llce \)1 i,U,JU LV 'u w receipt with the bank.

It was not suggested that the bank ever entered into possession of 57 Broad Street, and it was admitted before us that no conveyance of the property was ever executed in its favour.

The bank went into liquidation and in the year 1933 the liquidators of the bank sued the executors of the estate of Shanu claiming specific performance of the contract of sale or alternatively repayment of the purchase price. That action was settled by the executors of Shanu's estate paying the liquidators of the bank £400 and costs.

In the year 1938 one of the beneficiaries under the will of Shanu sued P. H.

Williams alleging that he had committed a breach of trust in allowing the sum of £650, balance of purchase money on the sale of 57 Broad Street, to remain on deposit with the Commercial and Industrial Bank. In that case judgment was given against P. H. Williams, and Graham Pa,?l, J., in delivering judgment said, •. The fact that the defendant as a director of the Industrial and Commercial Bank had a personal interest in this investment hostile to his fiduciary ;nterest as a trustee simply aggravates the seriousness and culpability of his breach of trust. "

In June and July, 1939 P. H. Williams purported to execute on his own behalf two mortgages, Exhibits •. H1 " and •. J ", of the property 57 Broad Street. Exhibit" H1 " contains the following recital: .. Whereas under and by divers acts in law and events which have happened the Borrower is seised in fee simple in possession free from incumbrances of the freehold hereditaments here­inafter described and expressed to be hereby conveyed ", and the instrument goes, on to convey the premises 57 Broad Street.

There is no evidence of any conveyance of the property in question to P. H.

Williams and it would appear that he took advantage of his position as an executor of the estate of Shanu and of the situation created by the-action brought against him by the beneficiary of Shanu's estate for a breach of trust, to take possession of 'the property and claim title to it.

On behalf of the respondents Mr. Taylor argued, inter alia, that Shanu's estate are now estopped from denying the sale of 57 Broad Street, and that the appellants lost any interest they might have had when the property was sold to the Industrial anc! Commercial Bank.

The question \\'e have to determine on this appeal is whether the appellant~' equity of rec!emption was extinguished by a valid anc! effectual exercise of the power of sale contained in the mortgage T. F. Williams to J. R. Shanu.

In my opinion that question must be answered in the negative. The property was never com'eyed to the bank nor c!id they ever enter into possession of it, and the contract of sale was called off when the action brought by the liquidators was settled in 1933. The legal estate remained in Shanu's estate and is still there. So far from there being" a sale to a purchaser who paid his money and entered into