Binions v Evans

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE MEGAW,LORD JUSTICE STEPHENSON
Judgment Date27 January 1972
Judgment citation (vLex)[1972] EWCA Civ J0127-2
Date27 January 1972

[1972] EWCA Civ J0127-2

In The Supreme Court of Judicature

Court of Appeal

Appeal by plaintiffs from judgment of His Honour Judge Bulger at Newport (Mon.) County Court on 30th June 1973

Before:

The Master of the Rolls (Lord Denning),

Lord Justice Megaw

Lord Justice Stephenson.

and
William Henry Binions
and
Iris Grace Binions (married woman)
and
Beatrice Mina Louisa Evans (widow)

Mr. VERNON PUGH (instructed by Messrs. Bower Cotton & Bower, agents for Messrs. Charley Bell & Crookes of Cardiff) appeared on behalf of the Appellant Plaintiffs.

Mr. DAVID WEBBER (instructed by Messrs. Riders & Co., agents for Mr. John W. Davies of Newport Mon,) appeared on behalf of the Respondent Defendant.

THE MASTER OF THE ROLLS
1

The Tredegar Estate owns many houses in Monmouth shire and South Wales. They have servants who have worked for them all their lives. One such was the late Mr. J. Evans. He was employed by the Trademark Estate as a chauffeur. His father and grandfather had worked for them before him. The family always had the same cottage. It was No. 3 Old Buildings, Cardiff Road, Newport. It had two rooms up and down. Mr. J. Evans married in 1922. He and his wife lived at the cottage. He paid no rent or rates. Mr. J. Evans died in 1965. His widow was then 73. She stayed on in the cottage, paying no rent or rates. On 15th March, 1968, the Trustees of the Trademark Estate made an agreement with her by which they allowed her to stay in the cottage for the rest of her life. She was then 76. The agreement was in a form in general use by the Tredegar Estate. It described the Trustees as "the Landlords" and the widow as "the tenant", and was in these terms

"1. The Landlords, in order to provide a temporary home for the Tenant (who is the widow of a former employee of the Estate of the Landlords) but not otherwise, hereby agree to permit the Tenant to reside in and occupy ALL THAT Cottage and Garden known as No. 3 The buildings, Cardiff Road, Newport, in the County of Monmouth as Tenant at will of them free of rent for the remainder of her life or until determined as hereinafter provided.

2. The tenancy hereby created may be determined at any time by the Tenant giving to the Landlords not less than four weeks previous notice in writing to that effect.

3. The Tenant shall:

(a) keep the interior of the said Cottage and the glass inthe windows and the fixtures and fittings and the painting papering and decoration thereof and the sanitory and water apparatus thereof in a clean and tidy state and condition;

(b) Cultivate keep and manage the said Garden and all fruit and ornamental trees shrubs and bushes in a proper manner and good order and condition;

(c) Personally occupy and live in the Property as a private residence only and not assign sub-let or part with the possession of the Cottage or any part thereof and not take in lodgers and upon ceasing personally to live there vacant possession shall forthwith be given to the landlords;

(d) Not leave any rubbish behind in the said Cottage or Garden at the end of the tenancy;

(e) On the determination of the tenancy deliver up the said property to the Landlords in a clean and proper state and condition;

4. The Landlords will pay all rates/taxes and outgoings payable in respect of the said property during the tenancy and will keep the premises and the water and sanitory appliances thereof in wood and tenantable repair and condition; b. It is hereby agreed that the tenancy hereby created shall unless previously determined forthwith determine on the death of the Tenant"

2

Such being the agreement, there is no doubt that the Tredegar Estate would never have turned out the widow as long as she lived. But two years later, on 5th May, 1970, the Tredegar Estate agreed to sell the cottage to Mr. and Mrs. Binions for£937 10s.0d. The Trustees gave to Mr. and Mrs. Binions a copy of the agreement with Mrs. Evan, and inserted in the agreement a special clause to protect Mrs. Evans in her occupation. It said this:

"The property is sold subject to the tenancy of No. 3 The Buildings in favour of Mrs. B.M.L. Evans under an agreement dated 15th May, 1968, but as to the remainder of the property with vacant possession on completion. The purchaser having been supplied with a copy of the said tenancy agreement dated 15th May 1968, he shall purchase with full knowledge thereof and shall not be entitled to raise any requisitions or objections in respect of any matters contained therein or arising thereafter".

3

There is no doubt that, by reason of that provision, Mr. and Mrs. Binions paid a reduced price for the cottage. The Judge so found. The conveyance was completed in June 1970.

4

Six months later Mr. and Mrs. Binions sought to turn Mrs. Evans out. She was then 79. Nevertheless, on 11th February 1971, they gave her notice to quit on 17th March 1971. They then issued a plaint in the County Court claiming possession on the ground that Mrs. Evans was a tenant at will, and, that having been determined, she was a trespasser. The plaintiffs did not give evidence. The widow did. The Judge refused to order her out. He said: "In my opinion the plaintiffs hold No. 3 Old Buildings on trust to permit the defendant to reside there during her life or as long as she desires". The plaintiffs appeal to this Court.

5

Those simple facts raise an interesting point of law. What was the nature of the widow's interest in the cottage? Was it such as to avail her against purchasers who took with full notice of it? Did the purchasers take the house on trust to permit her to stay there?

6

1. TENANCY AT WILL

7

Mr. Pugh stressed the words "as tenant at will". Those words, he said, were used as a term of art. They have for centuries had a well-understood meaning in our law. It means determinable at the will of either party. Littleton says (Section 69):

"Although upon its creation it is expressed to be at the will of the landlord only or at the will of the tenant only, yet the law implies that it shall be at the will of the other party also; for every lease at wi.i.1 must in law be at the will of both parties".

8

Although the words "tenant at will" are used in the agreement, the rest of it contains terms which are quite inconsistent with a tenancy at will as known to the law. Thus, the widow is to be permitted to stay "for the remainder of her life". So the Tredegar Estate cannot turn her out at their will. Again, the widow cannot herself determine the agreement except on four weeks notice. That shows "that she cannot determine it at will. These express terms prevail over the words "tenancy at will". It is a well-known maxim the "modus et conventio vincunt legem" which, when interpreted, means that the manner and agreement of the parties overrides the strict letter of the law.

9

In my opinion, therefore, this was not a tenancy at will.

10

2 TENANCY FOR LIFE

11

At the other extreme, it was suggested that the agreement created a tenancy for life in the widow. At common law a tenancy for life was an estate of freehold. It could only be created by deed and not by parol - see Doe dem Earner v. Browne (1807) 8 East. 165. But I need not pause upon this: because there can no longer be a tenancy for life at law see Section 1 of theLaw of Property Act, 1925. Nowadays, if a lease is granted to a lessee for life, at a rent, it takes effect as a lease for 99 years, determinable, after the death of the lessee, by one month's notice, see Section 149(6) of the Law of Property Act, 1925. But, as-this agreement was not at a rent, that Section does not apply.

12

But it was suggested here that the widow was a tenant for life under the Settled Land Act, 1925, with some support from Bannister. v. Bannister (1948) 2 AER 137. I cannot think this can be right. A tenant for life under that Act has power to sell the property, and to lease it (and to treat himself or herself as the owner of it), see Sections 38 and 72 of the Settled Land Act, 1925. No one would expect the widow here to be able to sell the property or to lease it. It would be so entirely contrary to true intent of the parties that it cannot be right.

13

There is, I think, a short answer to this suggestion. The agreement of 15th March 1968, was not a settlement within Section 1(1) of the Settled Land Act, 1925. In order to be a settlement, the land would have, by this agreement, to be "limited" in trust for any persons by way of succession". This land may be held on trust (that I will deal with hereafter): but it is not 'Limited" in trust (which I take to be expressly limited); nor is it limited by way of succession (because there is no trace of a succession of one beneficiary after another). It would be, I think, quite out of place to call this agreement a "settlement" of any kind.

14

In my opinion, therefore, the widow was not a tenant for life.

15

ANY OTHER TENANCY

16

Mr. Webber suggested that, although the widow might not have a tenancy for life, she might have a leasehold interest. He said it might be a "hybrid" tenancy of some kind. I am afraid this will not do. In order to create a leasehold interest, it must be for a definite term of years. It must be expressed with certainty and specifically, or be capable of being ascertained with certainty at the time when the lease takes effect. That was settled by the decision of this Court in Lace v. Chantler (1944) K.B. 368, where a lease "for the duration of the War" was held to be no lease. So also in ( Buck v. Howarth 1947, 1 AER 344), where a man, for no consideration, gave another permission to stay in a cottage until he died, it was held to be no lease but only a tenancy at will. Today it would be considered a bare licence, with no contractual right at all to stay there.

17

The widow has not a tenancy at will, nor a tenancy for life. She has not a tenancy for years, nor a periodic tenancy. She has, therefore, no tenancy known to the law.

18

AN...

To continue reading

Request your trial
65 cases
  • Inter-Continental Mining Company Sdn Bhd v Societe Des Etains De Bayas Tudjuh
    • Malaysia
    • Federal Court (Malaysia)
    • Invalid date
  • Ivory v Palmer
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 6 March 1975
    ...contract. See Coombe v. Coombe, 1951 2 King's Bench, 215, at 219; Errington v. Errington, 1952 1 King's Bench, 290, at page 298; and Binions v. Evans, 1972 Chancery 359, at page 367. Mr Godfrey contends that a dictum of Lord Upjohn in National Provincial Bank v. Ainsworth, 1965 Appeal Ca......
  • D.H.N. Food Distributors Ltd v Tower Hamlets London Borough Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 4 March 1976
    ...an irrevocable licence to D.H.N, to carry on their business on the premises. In this situation Mr Dobry cited to us this morning Binions v. Evans, 1972 Chancery, 359, to which I would addBannister v. Bannister, 1948 2 A.E.R. 133, and Siew Soon v. Yong Tong, 1975 A.C, 836. Those cases show t......
  • Ho Kon Kim v Lim Gek Kim Betsy and Others and Another Appeal
    • Singapore
    • Court of Three Judges (Singapore)
    • 26 September 2001
    ...second respondents became subject to a constructive trust in favour of the appellants: Lyus v Prowsa Developments Ltd; Binions v Evans [1972] Ch 359 at 368. If it be the position that the appellants` interest under cl 6 fell short of an equitable estate, they nonetheless had a personal equi......
  • Request a trial to view additional results
7 books & journal articles
  • Equity, Trust and Restitution
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2001, December 2001
    • 1 December 2001
    ...also justify a personal equity or a claim in personam against the registered proprietor (Frazer v Walker[1967] 1 AC 569, Binions v Evans[1972] Ch 359, Lyus v Prowsa Developments[1982] 1 WLR 1044; Bahr v Nicolay (No 2)(1988) 164 CLR 604; United Overseas Finance Ltd v Victor Sakayamary[1997] ......
  • Beyond the Torrens mirror: a framework of the in personam exception to indefeasibility.
    • Australia
    • Melbourne University Law Review Vol. 32 Nbr. 2, August 2008
    • 1 August 2008
    ...Company, above n 89, ch 22. (102) See, eg, Bahr (1988) 164 CLR 604; Lyus v Prowsa Developments Ltd [1982] 2 All ER 953; Binions v Evans [1972] Ch 359; Ho Kon Kim v Lim Gek Kim Betsy [2001 ] 4 SLR (103) (1988) 164 CLR 604, 638 8 (Wilson and Toohey JJ), 654-6 (Brennan J). (104) See, eg, Susan......
  • OF PROHIBITIONS ON ASSIGNMENTS, RESTRICTIVE COVENANTS AND NEGATIVE PLEDGES IN COMMERCIAL LAW: CLOGS ON COMMERCE
    • Singapore
    • Singapore Academy of Law Journal Nbr. 1994, December 1994
    • 1 December 1994
    ...Ltd [1916] 2 AC 54. 24 Clore v Theatrical Properties Ltd [1936] 3 All ER 483. 25 Enington v Errington [1952] 1 All ER 149, Binions v Evans[1972] Ch 359, DHN Food Distributors Ltd v London Borough of Tower Hamlets[1976] 3 All ER 462, Re Sharpe (a bankrupt)[1980] 1 All ER 198. 26 (1987) 284 E......
  • Land Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2007, December 2007
    • 1 December 2007
    ...Honour distinguished on the facts the cases of Hardwick v Johnson[1978] 2 All ER 935; Tanner v Tanner[1975] 3 All ER 776; Binions v Evans[1972] Ch 359 and Tan Hin Leong v Lee Teck Im[2000] 3 SLR 85 (HC), [2001] 2 SLR 27 (CA). As her Honour explained (at [64]): In the present case, the Prope......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT