Brown v Brown
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON |
| Judgment Date | 20 April 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0420-2 |
| Court | Court of Appeal |
| Date | 20 April 1959 |
[1959] EWCA Civ J0420-2
In The Supreme Court of Judicature
Court of Appeal
Divorce
Lord Justice Hodson
Lord Justice Sellers and
Lord Justice Willmer
MR G.D. PETHERICK (instructed by Messrs Corbin, Greener & Cook, agents for Messrs Jewill, Hill & Bennett, Penzance) appeared on behalf of the Appellant (Petitioning wife below)
There was no appearance by the Respondent husband.
The judgment I am about to read is the judgment of the Court.
This is an appeal from a decision dated 5th December, 1958, of His Honour Judge Sheppard who, upon a summons by the Appellant for variation of a settlement comprised in a conveyance dated the 20th October, 1952, between one Beatrice Greaves as vendor and the Respondent and Appellant as purchasers, made no order. The Appellant had appeared by counsel, but the Respondent has not appeared either by counsel or in person. The Appellant and Respondent, formerly husband and wife, were divorced by a Decree Absolute dated the 18th June, 1957.
By the conveyance the vendor in consideration of the sum of £975 conveyed to the purchasers in fee simple a parcel of land and a house thereon at 22, New Street, Penzance. By clause 2 of the conveyance the purchasers declared as follows:-"(a) 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 moneys applicable as capital and the net rents and profits thereof until sale upon trust for themselves as joint tenants, (b) Until the expiration of twenty one years from the death of the last survivor of the purchasers the trustee for the time being of this deed shall have power to mortgage charge lease or otherwise dispose of all or any part of the said property with all the powers in that behalf of an absolute owner".
The Appellant and Respondent were and are trustees of the property which is the subject-matter of the conveyance. By a mortgage of the same date expressed to be supplemental to the conveyance the purchasers obtained an advance of £540 upon a first mortgage to the Halifax Building Society. £235, part of the purchase price, was found by a loan at 4 per cent interest made by Mr Greaves the vendor's husband. The balance was found by the parties out of their own resources.
When the summons was issued the Building Society had been paid £214. 4s. Od. by way of capital repayments, mortgage interest and costs, and £149. 12s. Od. Had been paid to Mr Greaves in respect of the loan. The Appellant has contributed substantially towards these payments especially towards those made to the Building Society out of monies which she earned by taking in paying guests and lodgers. Since the issue of the summons some further payments have been made to the Building Society and to Mr Greaves.
The Appellant's object in these proceedings is to obtain exclusive possession of the property so that she can earn her living as heretofore by taking in guests and lodgers. The jurisdiction of the Court to vary settlements has recently been reviewed by the Court in Prescott v. Fellowes, 1958 Probate, page 260, where it was pointed out by Lord Justice Romer that it has long been established by decisions binding on this Court that a disposition of property may constitute a "settlement" for the purposes of section 25 of the Matrimonial Causes Act, 1950, not-withstanding that it would not be regarded as a settlement of property for any other purpose. Attention was drawn to Bosworthick v. Bosworthick, 1927 Probate, page 64, where a wife executed a bond which secured to her husband an annuity for his life. This Court held that the bond was a post nuptial settlement and the words of Mr Justice Romer, sitting...
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