Bedson v Bedson

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date22 July 1965
Judgment citation (vLex)[1965] EWCA Civ J0722-1
Date22 July 1965

[1965] EWCA Civ J0722-1

In The Supreme Court of Judicature

Court of Appeal

From his Honour Judge Carey-Evans

Great Yarmouth County Court.


The Master of the Rolls

(Lord Denning)

Lord Justice Dayles and

Lord Justice Russell

Dorothy Antoinette Bsdson
Applicant Appellant
Clifford William Bsdson
Respondent Respondent

MB P. OTTON (instructed "by Messrs Norton Rose Botterell & Roche, Agents for Messrs Chamherlin Talbot & Bracey, Great Yarmouth) appeared as Counsel for the Appellant.

THE RESPONDENT appeared in person.


THE MASTER OF THE ROOLS Mr and Mrs Bedson were married in 1949. He was a regular soldier serving in the Life Guards on a 22-year engagement. They lived in married quarters and have three children aged 13, 11 and 9He attained the distinguished and responsible rank of Corporal of Horse. In 1960 he retired. He was awarded a grant of £2, 000 and he had in addition savings of about £3, 000. He had been able to save this amount by extra work done by him in designing badges and heraldry. On his retirement he wished to set up in business, and after looking round be decided to buy a draper's business at 62/63 Cliff Hill, Gorleston, Great Yarmouth. The property was freehold, with a shop on the ground floor and a flat above. He paid £2, 750 for the freehold, £250 for the fixtures and fittings, £250 for the goodwill and £1, 089. 12s.4d. for the stock. Total £4, 339. 12s.4d. all paid out of his own money, leaving him very little left. The contract was in his own name alone, but when it came to drawing up the conveyance for the freehold, the solicitor's assistant suggested to the husband that it should be taken in the joint names of himself and his wife so as to avoid death duties if anything happened to the husband. The conveyance was dated 14th October, 1960, and said that in "consideration of £2, 750 now paid by the purchasers to the vendor, the vendor as beneficial owner hereby conveys unto the purchasers all those freehold shops and premises Nos.62 and 63 Cliff Hill, Gorleston, to hold the same unto the purchasers in fee simple as joint tenants". And by Clause 2 the purchasers declared that "the purchasers shall hold the said property upon trust to sell the same with power to postpone the sale thereof and shall hold the net proceeds of sale and other money applicable as capital and the net rents and profits thereof until sale upon trust for themselves as joint tenants".


It should be noticed that this document was in the regular form for conveyances to two persons as joint tenants: and that it contained nothing as to the shares of husband andwife. It did not say that the proceeds of any sale were to be divided equally, or two-thirds to one-third, or anything of that kind. It was therefore not a tenancy in common, but a simple joint tenancy, both owning the whole property jointly, and not a separate share each. It was quite a suitable arrangement for husband and wife who looked forward to the whole future of their lives jointly together. No severance was contemplated at all. Indeed the express purpose was that, on the death of one, the survivor should have a right to the whole.


The document was sent by the solicitor to the husband and wife to sign. It was not explained to them. The choice of language, said the Judge, can have meant very little to husband or wife.


On 14th October, 1960, husband, wife and children went in. The husband used up his remaining capital in buying stock for the business. They carried on the business together, the wife helping in the shop, and the husband doing all the management. They employed an accountant each year to get out the accounts. At first the accounts were made up as if they were partners in the business, but later on that view of their relationship was recognised by both to be erroneous. The accounts were afterwards drawn up on the basis that the business belonged to the husband; and that the wife was employed at a salary of £3 a week: and that the property itself belonged to husband and wife in equal shares. This was better for tax purposes and was more in accord with the true position. It is now acknowledged that the business itself, that is, the goodwill, stock-in -trade, fixtures and fittings belong to the husband. But the query arises as to the freehold which was in joint names: and shown in the accounts as belonging to each in equal shares.


In 1963 the wife's mother inflicted herself on them. She was a disturbing influence. The wife gave up helping in -the shop. On 9th September, 1963, the wife deserted the husband, taking the three children with her. She went to livein a house in the neighbourhood and herself went out to work at a factory earning £9 a week. On 18th November, 1963, she complained to the magistrates that the husband had deserted her and had wilfully neglected to provifie her with reasonable maintenance. On 14th January, 1964, the magistrates dismissed both her complaints. They awarded the wife no maintenance but they ordered the husband to pay £2. 10s.0d. a week for each child, making £7. 10s.0d. a week in all. He has regularly paid this sum, though it has been a great strain on his resources. He has lived himself most frugally in order to make both ends meet. The £7. 10s.0d. was so difficult that the magistrates reduced it to £6 a week; and this he has just managed to afford.


On 17th September, 1964, the wife applied to the County Court under Section 17 of the Married Women's Property Act, 1882: and she asked for an order that the premises, together with the fixtures and fittings, car, stock and goodwill, be sold and the proceeds divided between the husband and wife in equal shares.


The County Court Judge rejected the wife's claim. He thought it was fair and just that the bulk of the beneficial interest should belong to the husband, but that the wife had for a short period given some material assistance in building up the business. He thought that £275 was a fair sum to allow her for this: and on the husband paying her that sum, he ordered the wife to execute all necessary documents vest the property in the husband.


The wife appeals to this Court. She asks for an order for sale of the house and business and that the proceeds be divided between them equally. She obtained legal aid to pursue her appeal, and counsel appeared for her. But the husband had no legal aid. He conducted his case in person. He bad had to shut up the shop for the day in order to come here. when we said we would reserve judgment, he asked that he might be excused from attending on the judgment, because it would meanshutting up his shop for the day and this he could not afford to do. I would like to say that he struck me as a sensible and responsible man whose efforts to keep his home and business together are worthy to be commended. He told us that he had managed to borrow from relatives the £275 which the County Court Judge awarded to the wife. But he could find no more. The wife's counsel suggested that it should be increased to £1, 000, but the husband said he could not possibly find it; and if it were ordered, there was no alternative but for the house and business to be sold.


The case raises an important point of law. The wife claims that the right of herself and her husband to the property were established once and for all by the terms of the conveyance of 14th October, 1960; and that the Court has no power to vary them in these proceedings. She says that she is entitled to insist on a sale of the property and that the proceeds be divided between them in equal shares.


We had some discussion as to the powers of the Court under Section 17 of the 1882 Act. I have myself in the past preferred to give it a liberal interpretation in keeping with the width of the words used by Parliament. But those who are wiser than I am have declared that it does not enable the Court to vary existing rights. We have always to go back to see what the rights of the parties actually are. I accept this, but I cannot help remarking that it is often impossible to find out what the rights of husband and wife really are as between themselves. When they acquired the property they contemplated life together and not separate, with any disputes to be solved by agreement between themselves, and not by recourse to the Courts. Their arrangements did not result in legal rights, see Balfour v. Balfour. 1919, 2 King's Bench, p. 571. In such a case, where the existing rights cannot be ascertained, the Court can only do what the statute says it should do, make such order "as it thinks fit". In the words of Lord Upjohn, "an equitableknife must be used to sever the Gordian knot", see National Provincial Bank v. Hastings Car Mart. 1965, 3 Weekly law Reports at p. 24.


The first task, therefore, is to find out the existing rights of the parties so far as possible. This I will proceed to do.


I The existing rights of the parties.


It is very common to find a dwelling house conveyed to husband and wife jointly with a declaration of trust for themselves on trust for sale with power to postpone the sale; and to hold the proceeds of sale — and the income pending sale -on trust for themselves as joint tenants The purpose is that it should be the matrimonial home for them and their family. The rights of the parties in such a case were considered in Smith v. Smith (1945) 61 Times law Reports, p. 331 and Brown v. Brown, 1959 Probate at p. 88. This is the position as I understand it:-


(1) The husband and wife hold a joint tenancy of the legal estate in the house. This cannot be severed. One of them cannot sell his share separately (as he used to be able to do) and thus convert it into a tenancy in common. If they sell the house, they must both join in the sale. If one dies, the survivor takes the legal estate, see Section 36(2) of the law of Property Act, 1925.


(2) The husband and wife are joint...

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34 cases
  • Goodman v Gallant
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 30 October 1985
    ...the plaintiff's present claim would ever have been put forward. However, not long after that decision there came before this court Bedson v. Bedson [1965] 3 AER 307. Since it is the sheet-anchor of the plaintiff's claim in the present case, it requires careful examination. Its facts were, s......
  • Jones (A. E.) v Jones (F. W.)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 28 October 1976, nevertheless the courts will not allow it to be used so as to defeat the purposes contemplated by the parties. That appears from Bedson v. Bedson (1965) 2 Queen's Bench 666. See what I said at page 679 and Lord Justice Russell at pages 697 and 698. No order for the sale of this proper......
  • Bernard v Josephs
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 30 March 1982
    ...In such a case it used to be thought that the shares would always be equal shares. That was the view of Lord Justice Russell in Bedson v. Bedson (1965) 2 Queen's Bench 666 at page 689, when he said: 14 "If there be two beneficial joint tenants, severance produces a beneficial tenancy i......
  • Pettitt v Pettitt
    • United Kingdom
    • House of Lords
    • 23 April 1969
    ...of Russell L.J. expressed (at pages 497 and 498) in his judgment in Jansen v. Jansen [1965] P. 478 and at page 691 in his judgment in Bedson v. Bedson [1965] 2 Q.B. 666. It further follows that I cannot with respect agree with the approach that led to the decision in Appleton v. Appleton ......
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