Burgess v Rawnsley
| Jurisdiction | England & Wales |
| Date | 1975 |
| Year | 1975 |
| Court | Court of Appeal (Civil Division) |
Joint Interest - Severance - Joint tenancy - House bought in joint names - Trust for parties as joint tenants - Failure of purposes of settlement - Oral agreement for sale of half share subsequently revoked - Whether severance -
H, a widower, and the defendant, a widow, met and became friendly. H was the tenant of a house in which he lived in the downstairs flat, the upstairs flat being vacant. In 1967 H and the defendant bought the house in their joint names “as joint tenants,” each providing half of the purchase price of £850. H bought the house as a matrimonial home in contemplation of marriage to the defendant. The defendant was minded to live in the upstairs flat and said that H had never mentioned marriage to her. They did not marry and the defendant did not move into the house. There was evidence, accepted by the county court judge, of an oral agreement between H and the defendant in 1968 whereby she agreed to sell her share in the house to him for £750 but that she subsequently refused to sell. H died in 1971 leaving the plaintiff, his daughter, as his administratrix.
The plaintiff claimed that there was a resulting trust or, alternatively, that the joint tenancy had been severed in equity. The defendant claimed that the house was hers by survivorship. Judge Granville-Smith declared that the house was held by the defendant on trust for the plaintiff and herself in equal shares.
On the defendant's appeal: —
Held, dismissing the appeal, (1) that (per Browne L.J and Sir John Pennycuick) since H alone had entered into the conveyance in contemplation of marriage, and he had not communicated that purpose to the defendant, there was no common purpose which had failed so as to give rise to a resulting trust (post, pp. 107F–H, 110E–F).
Per Lord Denning M.R. Where the parties contemplate different objects which both fail, the position is the same as where their common object fails and there is a resulting trust according to their respective contributions (post, p. 103G).
(2) That the beneficial joint tenancy of H and the defendant been severed by the defendant's oral agreement to sell her share to H for £750 even though that agreement was not specifically enforceable (post, pp. 106B, 109F, 111C–D).
Per curiam. The policy of the law, particularly having regard to section 36 (2) of the Law of Property Act 1925 is to facilitate severance at the instance of either party but a declaration by one party uncommunicated to the other cannot operate as a severance (post, pp. 104D–E, 110A, 113A–B).
The following cases are referred to in the judgments:
Ames' Settlement, In re, Dinwiddy v. Ames [
Draper's Conveyance, In re [
Essery v. Cowlard (
Hawkesley v. May [
Jackson v. Jackson (
Nielson-Jones v. Fedden [
Partriche v. Powlet (
Robinson v. Preston (
Ulrich v. Ulrich and Felton [
Wilks, In re, Child v. Bulmer [
Williams v. Hensman (
Wilson v. Bell (
The following additional cases were cited in argument:
Frewen v. Relfe (
Gissing v. Gissing [
Gould v. Kemp (
Johns' Assignment Trusts, In re [
Leake (formerly Bruzzi) v. Bruzzi [
Palmer v. Rich [
Perkins v. Baynton (
Wilson v. Wilson [
APPEAL from Judge Granville-Smith sitting at Edmonton County Court.
By particulars of claim of May 17, 1972, the plaintiff, Ruth Priscilla Rose Burgess, administratrix of Albert Hector Honick, deceased, claimed that by a conveyance of January 23, 1967, no. 36 Queen's Road, Waltham Cross, Hertfordshire, was conveyed into the names of the deceased and the defendant, Sophie Rawnsley, widow, to hold the house upon trust for sale with power to postpone sale and to hold the proceeds of sale and the rents and profits until sale “upon trust for themselves as joint tenants”; that the defendant held the property upon a resulting trust for the plaintiff absolutely or alternatively for the plaintiff and herself as tenants in common in shares proportionate to the respective contributions of the deceased and the defendant to the purchase price of the house, or, alternatively, that the beneficial joint tenancy of the deceased and the defendant had been severed in equity and the defendant held the property upon trust for the plaintiff and herself as tenants in common in equal shares or in such other shares as the court should determine; and claimed appropriate declarations accordingly. By her defence the defendant denied that the plaintiff was entitled to any relief and counterclaimed for a declaration that the house was held by the defendant in fee simple absolute free from any trust in favour of the plaintiff.
On May 15 Judge Granville-Smith made a declaration that the house was held by the defendant on trust for the plaintiff and herself in equal shares and dismissed the counterclaim.
The defendant appealed on the grounds that the judge misdirected himself and erred in law (1) in that he held that the house was conveyed into the joint names in the contemplation by the deceased that it was to become a matrimonial home; (2) if and in so far as he held that the conveyance into joint names was a conveyance made in contemplation of marriage; (3) in that he failed to give any or any proper weight to an express trust declared in the conveyance of January 23, 1967, whereby it was declared that the deceased and the defendant should hold the house upon trust to sell the same and to hold the net proceeds of sale and other money applicable as capital upon trust for themselves as joint tenants: (4) in holding that the dictum of Lord Denning M.R. in Ulrich v. Ulrich and Felton [
The facts are stated in the judgments.
Benjamin Levy for the defendant.
John Mummery for the plaintiff.
LORD DENNING M.R. In 1966 there was a scripture rally in Trafalgar Square. A widower, Mr. Honick, went to it. He was about 63. A widow, Mrs. Rawnsley, the defendant, also went. She was about 60. He went up to her and introduced himself. He was not much to look at. “He looked like a tramp,” she said. “He had been picking up fag-ends.” They got on well enough, however, to exchange addresses. His was 36 Queen's Road, Waltham Cross, Hertfordshire. Hers was 74 Downton Avenue, Streatham Hill, London, S.W.2. Next day he went to her house with a gift for her. It was a rose wrapped in a newspaper. Afterwards their friendship grew apace. She was sorry for him, she said. She smartened him up with better clothes. She had him to meals. She went to his house: he went to hers. They wrote to one another in terms of endearment. We were not shown the letters, but counsel described them as love letters.
A few months later Mr. Honick had the opportunity of buying the house where he lived at 36 Queen's Road, Waltham Cross. He had been the tenant of it for some years, but his wife had died and his married daughter had left; so that he was alone there. He talked it over with Mrs. Rawnsley. He told her that the owner was willing to sell the house to him for £800. Mrs. Rawnsley said she would go half shares: she would have the upper flat and he the lower flat.
On December 2, 1966, a contract was signed by which the owner agreed to sell the house to Mr. Honick. It must be noticed that it was to Mr. Honick alone. The price was £850: Mrs. Rawnsley paid the deposit. A little later Mr. Honick went to his solicitor and instructed him to have the property conveyed into the joint names of himself and Mrs. Rawnsley. The reason for the joint names was, as the judge found, because Mr. Honick
“firmly believed that he was going to marry [Mrs. Rawnsley] and that would be the matrimonial home …. I have no doubt whatever [said the judge] that that was his reason for purchasing the house in joint names.”
But although he was minded to marry Mrs. Rawnsley, it is clear that she was not minded to marry him. She said, and the judge accepted her evidence, that he had never mentioned marriage to her and that she never contemplated marriage. She was minded to join in the purchase and pay half so as to have a place of her own, namely, the upstairs flat, whilst he occupied the lower flat.
On January 23, 1967, the conveyance was executed. It was made to both Mr. Honick and...
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