The Gazette 1958-61

and paid a deposit of £350. The contract incor– porated cl. 32 (i) fo) of the Law Society's Con– ditions of Sale which provided for a vendor re-selling after notice on the purchaser's default. On Apr. loth, 1953, the testatrix, replying to an inquiry from her solicitors made before the contract was signed, informed them by letter that she would like to leave the house to K. as well as the £10,000. On Apr. 17, 1953, the testatrix executed a second codicil which stated, " Whereas I have entered into a contract for the purchase of (the house), I hereby give the said property free of all duties to my daughter " K. On Apr. 21, 1953, which was before the date fixed for completion of the contract, the testatrix died. By s. 35 (i) of the Administration of Estates Act, 1925, where a person dies entitled to an interest in property charged with the payment of money, including a lien for unpaid purchase money, the charge would primarily be payable out of the interest charged, if the deceased had not by will or other document signified a contrary intention. Held : (i) K. took the dwelling-house subject to a charge for the unpaid balance of the purchase money, because the vendor's lien for unpaid purchase money arose at the moment when the contract was signed, (cl. 32 (i)-(3) of the conditions of sale not preventing the lien arising) and accordingly s. 35 of the Administration of Estates Act, 1925, applied, as a contrary intention excluding it was not signified either by the testatrix' letter or by her second codicil. (2) The solicitors' costs of completing the purchase must be borne by the testatrix' residuary estate, the solicitors not having at her death possession of any title deeds to the property and having no lien thereon. Per Upjohn J. : It is submitted by counsel for the specific devisee that, as the date of the death of the testatrix was before the date fixed for completion, the vendor had no lien on the estate for the balance of the unpaid purchase money. A vendor's lien he says only arises at the date fixed for completion. He submits that the executors, in paying the balance of the purchase money shortly after the date of the testatrix' death, were not discharging a charge in any way, but were performing a contract. Counsel for the residuary legatees submits that the vendor's charge for the purchase money arises the moment that the contract is signed. The remedies available to enforce that charge may vary according to the state of the transaction, i.e., until the date fixed for completion, the vendor cannot actively enforce his lien by action, but he has the right (subject always to the express terms of the contract) to remain in possession and to refuse to execute a

conveyance until the purchase money is paid. After the date fixed for completion he has a right to enforce the charge or lien by appropriate proceedings in these courts. Counsel submits the statement of Sir George Jessel, M.R., shows that throughout, from the moment the contract was executed, the vendor has a charge for his unpaid purchase money. I think that that argument is quite correct. At first sight it seemed to me that the testatrix had expressed or had signified a contrary intention, because it seemed illusory to make a codicil giving the property to her daughter if indeed all she was giving was the property subject to payment of the unpaid purchase price, especially as she considered apparently that the gift would be substantial, for she directed that it was to be free of all duties. Having heard full argument, however, I am unable to come to that conclusion. She gives the property which she has contracted to purchase. That is no doubt the property referred to in the contract she had just signed, but it says nothing, either expressly or by implication, as to the application of s. 35, and I see nothing which can exclude the operation of that section. The last matter is with regard to the solicitors' costs incurred in completing the purchase. The scale fee seems to have been some £56, added to which there are search fees and petty disbursements, and so on. The residuary legatees can only establish a case for throwing those costs on the property if they can show that those costs were in some way equitably charged on it. No doubt had the con– veyance been completed in the lifetime of the testa– trix, the solicitors would have received the deeds in the normal course and would have had an equit– able lien or those deeds for any costs remaining unpaid ; but what was the position at the relevant time, i.e., at the date of the testatrix' death? They were then doing work. No bill of costs had been rendered. Nothing at that time was due from the testatrix to her solicitors. Furthermore they could have no lien on anything for they had no deeds in their possession. It was somehow suggested they had some form of lien on the contract. I do not follow that. It was their duty to carry through the contract to completion. I cannot see that at the relevant date this inchoate claim to costs was charged on anything. Accordingly, those costs must be borne by residue.

Note. Section 35 Estates Act replaces

of the Administration of in England Locke King's

Acts of 1854, 1867 and 1877. (Re Birmingham Deed. Savage v. Stannard (1958) 2. All E.R. 397).