Receiver — Appointed in writing not under seal — Conveyance by receiver — Whether conveyance effective — Vendor and purchaser summons — Effect of debenture deed — Declaration in favour of vendor
The subject property was once owned by Bentall Simplex Ltd, who granted a debenture to Barclays Bank plc in February 1983. The debenture contained a first fixed charge on the property. On September 5 1984 the bank appointed two persons as joint receivers and managers of the property of the company; that appointment was made in writing and not under seal. On January 30 1985 the company, acting by the receivers, executed a conveyance of the property to Surreygate Ltd, the plaintiff’s predecessor in title; on the same day the bank entered into a deed of release with Bentall Simplex Ltd releasing the company from the bank’s interests under the debenture. By two contracts of September 4 1989 the plaintiffs agreed to sell to the defendants respective parts of the property for £4.175m. Because of doubt about the plaintiff’s title, the contracts contained special condition “K” by which the plaintiff vendor agreed to procure a confirmatory conveyance of the property by Bentall Simplex Ltd. The plaintiff, having failed to comply with this condition, sought by way of a vendor and purchaser summons declarations that it had a good title to the property and that the legal title was vested in their predecessor by the conveyance of January 30 1985. The defendant contended that it was a rule of common law that “an agent to deliver a deed must be an agent appointed under seal” and the receivers had not been; they also contended that section 1(1)(c) of the Law of Property (Miscellaneous Provisions) Act 1989 will not apply to deeds delivered before that section is in force.
Held It is necessary to consider not only the manner of the appointment of the receivers but also the powers conferred on them by the debenture deed. By that deed, once a receiver was appointed, the provisions of the deed conferred a power of attorney on the receiver. It was not necessary for the purposes of that appointment for the person appointed as receiver to be named in the deed. The power of attorney was validity conferred on the office of receiver. It followed that Bentall Simplex Ltd, acting by the receivers only and duly appointed as attorneys by the terms of the debenture deed, made a good legal title to the property by the conveyance of January 30 1985.
A sale by a receiver on behalf of the mortgagor is not made under a variation or extension of the statutory powers in sections 101 and 109 of the Law of Property Act 1925; it is simply the exercise of a new and different power conferred by the debenture deed. The deed of release entered into by the bank on January 30 1985 was made subsequent to the conveyance and enabled the conveyance to take effect free from any incumbrance in the charge in the debenture.
Michael Driscoll (instructed by Graham Consitt & Co, of Ipswich) appeared for the plaintiff; and David Iwi (instructed by Saunders Bearman Anselm) appeared for the defendant.
