Administration of Estates Act (1833)-Execution against Real Property Ordinance, 1924, (Cap. 61)-Legal and equitable assets-Executors of a mortgagor of real property entitled to redeem.

The plaintiffs-appellants were the executors of one Joseph William ,Pratt. The deceased had mortgaged real property to the respondent. The principal money, interest, and expenses due were paid under the mortgage and the plaintiffs claimed a re-conveyance. It was held in the Supreme Court that section 3 of Cap. 61 did not give the executors any interest in the real estate of their testator and the claim was dismissed.

Held: (Reversing the decision of the Supreme Court) that section 3 of Cap. 61 added to the existing category of assets to be administered by the personal representative and made real estate •• legal assets"; and that the plaintiffs were entitled to a re-conveyance of the real property mortgaged.

Appeal allowed, and respondent ordered· to re-convey to appellants the property in dispute.

Cases cited :-Attorney. General versus Brunning (11 E.R. 242).

O. I. During for Appellants.

R. B. Marke for Respondent.

The following judgments were delivered :­WEBB, CHIEF JUSTICE, SIERRA LEONE.

This was an action brought by the executors of Joseph William Pratt against the respondent as mortgagee of Freehold lands mortgaged to him by the deceased.

The claim on the writ states (and it was admitted) that the principal money, interest and expenses due under the mortgage had been paid before action, and the plaintiffs claimed are-conveyance.

The ground upon which the claim has been resisted is that the executors of a mortgagor of freehold property are not entitled to redeem, and this argument found favour with the learned Judge in the Court below, who held that the effect of Sec. 3 of Cap. 61 of the laws of Sierra Leone was the same as that of Sec. 1 (1) of the Administration of Estates Act, 1833, and as that Act did not give executors any interest in the real estate of their testator neither did the Ordinance.

I find myself unable to agree with this view.

In my opinion the question has to be considered with reference to the law of Sierra Leone in 1906, when Cap. 61 came into force, as contrasted with the law of England in 1833, and of course, the wording of the relative sections of the Act and of the Ordinance must be compared.

         Before the passing of the Administration of Estates Act, 1833, freehold lands, broadly speaking, were not liable to the debts of their deceased owner, but passed, free from them, to his devisee, if he had made a will, or to his heir-at-Law, if he died intestate. Section 1 (1) of the Act is as follows :-" When any person shall die seised of or entitled to any estate or interest in lands, tenements, or hereditaments ... or other real estate ... which he shall not by his last will have charged with or devised subject to the payment of his debts, the same shall be assets to be administered/in courts of equity for the payment of the just debts of such persons ... and the heir or heirs-at-Iaw ... devisee or devisees of such debtor shall be liable to all the same suits in equity at the suit of any of the creditors of such debtor ... as the heirs, etc.; of any person who died seised of freehold estates were before the passing of this Act liable to in respect of such freehold estates at the suit of creditors by speciality in which the heirs were bound ... "

It will be noted that the section makes freehold lands •• assets to be administered in Courts of Equity" and that it specifically provides that the persons who are made liable to the claims of creditors are, not the personal representatives of the deceased, but the heir-at-Iaw or the devisee. And it is well established that the effect of this Act was to make freehold land equitable, and not legal assets; that is to say assets which a creditor could make available only by taking proceedings for administration in a Court of Equity. (See Halsbury, 1st Ed. XIV, 245 ; Williams Executors 11th Ed. II, 1290) .•• Legal assets," on the other hand are such property of the deceased as comes into the hands of the personal representative virtute officii, or, as it is put by Story (Eng. Ed.) 357, •• what he is entrusted with by law to dispose of in the course of administration"; and where a personal representative has •• legal assets " in his hands a creditor of the deceased can sue him at law.

By virtue of section 8 of the Supreme Court Ordinance, 1904, (corresponding to section 6 of the present Supreme Court Ordinance. No. 39/1932), the Administration of Estates Act, 1833, was in force in Sierra Leone, and one must assume that the legislature was aware of this when Cap. 61, .. An Ordinance subjecting Real Estate to the payment of Debts," was passed in 1906-0ne may therefore assume, further, that section 3 of Cap. 61 was intended to make some alteration or addition to the existing law. That section is as· follows :-When any person shall die seised of or entitled to any estate or interest in lands, tenements, hereditaments, or other real estate which he shall not by his last will have charged with, or devised subject to, or for the payment of, his debts, the same shall be assets to be administered for the payment of all just debts of such person."

Here. it will be observed, there is no mention of •• admini­stration in Courts of Equity" or .• by the Supreme Court in its equitable jurisdiction" and no particular specification of the person who is made liable to answer the claims of creditors, but real estate is simply declared to be " assets to be administered for the payment of all just debts." To my mind the natural meaning of these words is that these" new assets" (as I may call them) are to be regarded as something added to the existing category of assets, to be liable to the payment of debts in the same way and to the same extent, and to be administered by the same hand, that is, by the personal representative, executors or administrator, as the case may be. That is to say. in my view, section 3 of Cap. 61 makes real estate here " legal assets." And I think that this view is strengthened by the fact that as the law of Sierra Leone stood in 1906, and as it still is, the real estate of a deceased intestate vests in the "curator of Intestate Estates pending the appointment of an administrator, and does not descend to theheir-at-Iaw but is distributable as personalty (Cap. 104, sees. 11, 12, 13). Thus, if my view is correct, Cap. 61 had the effect of bringing the law in Sierra Leone as regards the real estate of a deceased testator into line with that regarding the real estate of a deceased intestate. In the case of A.G. v. Brunning (8 H.L.e. 243, 11 E.R. 242) Lord Cranworth said: "With all deference to the Court of Exchequer, I think that Court fell into an error in treating this money" (part of the purchase price of real estate sold by the testator in his lifetime) " as being equitable assets. It is a sum which the executor would take as executor, and which, therefore, would be legal assets in his hands. His right would not depend on anything contained in the will of Mr. Hope. Mr. Hope's administrator would have been entitled in case he had died intestate; and what an administrator is entitled to recover as administrator, virtute officii, can never be equitable assets." If then, real estate is made legal assets by section 3 of Cap. 61 the result follows that an unsatisfied creditor of the testator could sue the appellants at law, and they, if they had failed to get in this mortgaged property, could not plead a plene administravit, but would be held liable on an allegation of devastavit •. it is therefore clear, in my judgment, that they have the right to recover it.

For the above reasons I am of opinion that the decision of the Court below was wrong and should be reversed and that there should be judgment for the appellants ordering the respondent to re-convey the premises to the appellants at their expense, and to pay them their taxed costs of the proceedings here and in the Court below.

KINGDON, C.J., NIGERIA I concur.

PETRIDES, C.J., GOLD COAST I concur.

        The following Order was made :-

The appeal· is allowed and the judgment of the Court below, including the Order as to costs, is set aside and it is ordered that the Respondent do re-convey to the Appellants, at their expense, all that plot, piece or parcel of land situate lying and being in Charles Street, Freetown, in the Colony of Sierra Leone and numbered 23 for the purposes of rates and taxes and do pay to the Appellants their taxed costs of the proceedings in this Court and in the 'Court below