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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 credit