Bull v Bull

This is a most unfortunate dispute between mother and son. The son is now about 30 years of age and he has always lived with his mother. They have lived in several different houses, but the latest house since 1949 has been 101, Rishden Gardens, Ilford. This house was bought partly with her money and partly with his, but the son seems to have provided the greater part and the conveyance was taken in his name. In April, 1953, the son married and it was arranged that his mother should have two rooms in the house and that he and his wife would have the rest. Soon afterwards, however,differences arose between the mother and hex daughter—in—law with the result that the son told his mother to leave the house. She has not, she says, been able to find other accommodation suitable to her needs and so she has not left. She is still there. The son has therefore brought these proceedings to turn her out. In answer to the claim the mother says that, although the house stands in her son' name, she herself contributed quite a lot of money towards it, and that in these circumstances he cannot turn her out like this or, at any rate, not without paying her the amount which she put into it.

The Judge has found that the mother did contribute a substantial amount towards the house and that she did not intend to make a gift of that money to her son. There was therefore no presumption of advancement but a resulting trust in her favour. Furthermore, the Judge finds that, when the house was bought, it was the intention of both mother and son that the house, although taken in the son' name, should be a home for them both. The Judge has held that in these circumstances the son cannot turn the mother out now as if she was a trespasser; and that his only remedy is by application to a court of equity. The son appeals to this Court.

Similar circumstances must often arise in families, but strangely enough there is no authority on the point. The son is, of course, the legal owner of the house; but the mother and son are, I think, equitable tenants in common. Each is entitled in equity to an undivided share in the house, the share of each being in proportion to his or her respective contribution. The rights of equitable tenants in common as between themselves have never, so far as I know, been defined; but there is plenty of authority about the rights of legal owners in common. Bach of them is entitled to the possession of the land and to the use and enjoyment of it in a proper manner. Neither can turn out the other; but if one of them should take more than his proper share the injured party can bring an action for an account. If one of them should go so far as to oust the other he is guiltyof a trespass: see Jacobs v. Seward,. Law Reports, 5 House of Lords, page 464. Such being the rights of legal tenants in common, I think that the rights of equitable owners in common are the same, save only for such differences as are necessarily consequent on the interest being equitable and not legal. It is well known that equity follows the law; and it does so in these cases about tenants in common as in others.

In support of this view I would refer to the words used by Sir Joseph Jekyll, Master of the Rolls, over 200 years ago in Cowper v. Cowper (1734) 2 Peere Williams, at page 753: "The law is clear; and courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would result". I realise that since 1925 there has been no such thing as a legal tenancy in common: see section 1(6) of the Law of Property Act, 1925....