Bell v Scott [1922] HCA 13

Bell v Scott [1922] HCA 13

Even if the legal estate is outstanding in the executor, the vendor is entitled to a reasonable time to obtain it, as the executor is obligated to convey upon discharge of obligations. The purchaser was not entitled to rescind the contract prior to this, and the appeal should be dismissed.

Parties
Appellant: Lewis Bell; Respondent: Augustus Wright Scott
Jurisdiction
Australia
Judgment Date
04 May 1922
Procedural Posture
Appeal / High Court of Australia, Appeal From Supreme Court of New South Wales, Full Court
Outcome
appeal dismissed with costs
Legal Topics
Vendor and Purchaser, Requisitions on Title, Contract of Sale, Mortgage by Executor Before Probate, Rescission of Contract, Wills, Probate and Administration Act 1898 (n.s.w.), Sec. 44
Property Law Succession Law Vendor and Purchaser Requisitions on Title Contract of Sale Mortgage by Executor Before Probate Rescission of Contract Wills, Probate and Administration Act 1898 (n.s.w.), Sec. 44

Case Brief

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Parties

Lewis Bell

Appellant

Augustus Wright Scott

Respondent

Procedural Posture

Appeal / High Court of Australia, Appeal From Supreme Court of New South Wales, Full Court

Legal Issues

  1. 1 Whether the purchaser was entitled to rescind the contract for sale of land due to alleged defect in vendor's title arising from mortgage by executor before probate was granted
  2. 2 Whether the legal estate was outstanding in the executor and whether the vendor could compel a conveyance of the land by the executor

Ratio Decidendi

Even if the legal estate is outstanding in the executor, the vendor is entitled to a reasonable time to obtain it, as the executor is obligated to convey upon discharge of obligations. The purchaser was not entitled to rescind the contract prior to this, and the appeal should be dismissed.

Court Disposition

appeal dismissed with costs

Orders

  • Appeal dismissed with costs.