Case: Attorney-General of Ontario v Mercer (1883) 8 App Cas 767
Outcome: discussed
foundation of land tenure in Australian law was identified by Brennan J (with whom Mason CJ and McHugh J expressly agreed) in Mabo v Queensland [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 47-48 as being derived from the grant of tenure of some kind by the Crown; see too at 81 per Deane and Gaudron JJ. Brennan J said that one incident of such tenure was the Crown's right to escheat: Mabo 175 CLR at 48; see too at 80 per Deane and Gaudron JJ. And in Wik Peoples v Queensland (1996) 187 CLR 1 at 90-91 Brennan CJ explained that the doctrines of tenure, of which escheat is an incident, and of estate, ensure that no land in which the Crown has granted an interest is ever without a legal owner. Escheat was abolished in England by s 45(1)(d) of Administration of Estates Act 1925 (Imp). What escheat involves at common law was elegantly explained by the Earl of Selborne LC giving the opinion of the Judicial Committee in Attorney-General of Ontario v Mercer (1883) (8 App Cas 767) at 772. First, the Lord Chancellor quoted the following from Coke on Littleton 13a: " 'Escheat' is a word of art, and signifieth properly when by accident the lands fall to the lord of whom they are holden, in which case we say the fee is escheated." His Lordship then continued: "The writ of escheat, when the tenant died without heirs, was in this form:- 'The King to the Sheriff, &amp;c. Command A., &amp;c., that he render to B. ten acres of land, with the appurtenances, in N., which C. held of him, and which ought to revert to him, the said B., as his escheat, for that the said C. died without heirs' (F. N. B., 144 F.). If there was a mesne lord, the escheat was to him; if not, to the King. From the use of the word 'revert', in the writ of escheat, is manifestly derived the language of some authorities which speak of escheat as a species of 'reversion'. There cannot, in the usual and proper sense of the term, be a reversion expectant upon an estate in fee simple. What is meant is that, when there is no longer any tenant, the land returns, by reason of tenure, to the lord by whom, or by whose predecessors in title, the tenure was created. Other writers speak of the lord as taking it by way of succession or inheritance, as if from the tenant, which is certainly not accurate. The tenant's estate (subject to any charges upon it which he may have created) has come to an end, and the lord is in by his own right." In addition, given that now such disclaimers and vesting orders occur under laws of the Commonwealth, the question may arise as to whether any escheat or remaining interest in the property after a disclaimer should be treated as falling into the Crown in right of the Commonwealth rather than the State: cf Attorney-General of Ontario 8 App Cas 767. And, in The King v Attorney-General of British Columbia [1924] AC 213 at 218-219 esp at 219 Lord Sumner observed that the principles upon which escheat and bona vacantia fall to the Crown are that where there is no private person entitled, the Crown takes: see too Land Law (5 th ed) where at pp 76-77 Professor Butt suggests that the only remnants in Australia of the doctrine of escheat are in the case of disclaimers by trustees in bankruptcy or liquidators. Because s 133(9) of the Bankruptcy Act preserves the possibility that the Court may vest disclaimed property in a person these doctrines may not operate in an unqualified way in the current legislative scheme. Once again, this is not the occasion to decide these questions, but they will require attention at some time. The title to the bankrupt's former land