Diwell v Farnes
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON |
| Judgment Date | 27 April 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0427-2 |
| Date | 27 April 1959 |
| Court | Court of Appeal |
[1959] EWCA Civ J0427-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson
Lord Justice Ormerod and
Lord Justice Millmer
Mr. R. W. GOFF. C. and Mr. HORATIO VESTER (instructed by Messrs. Ernest Long & Co.) appeared on behalf of the Appellant (Plaintiff).
Mr. JOHN ARNOLD, .C. and Mr. ANDREW EDWARDS (instructed by Messrs. C.W. Smith &. Co., Romford,. Essex) appeared on behalf of the Respondent (Defendant).
This is an appeal from a Judgment of deputy County Court Judge Coming by given on the 27th February, 1958, which he held that a house, 15 havering Road, Romford, is held by the Plaintiff as administratrix of the estate of her husband, A.E Diwell deceased, on trust for sale and is to be held as to a half share of the proceeds of such sale for the Defendant.
The house stood In the sole name of the deceased, and the plaintiff says that it forms part of his estate and that the Defendant was no more than a licensee of her late husband, such license having been determined either by her husband's death or notice subsequently given.
The Judge having held that the Plaintiff and Defendant are equally entitled, the Plaintiff contends that even if she cannot maintain that the Defendant has no interest in the house her interest is limited to the extent of a charge on the house equivalent to the amount advanced by her for its purchase, or, if she is entitled to an equitable interest in the proceeds, such interest is fractional and must be calculated by reference to the proportion which her contribution bears to the whole purchase.
The Plaintiff complains that the learned Judge wrongly applied the equitable maxim "Equity delighted in equality" on the analogy of those cases decided between husband and wife often under section 17 of the Married Women's Property Act, 1882, although he had correctly directed himself that the husband and wife cases were not a authorities directly in point.
The facts are these. In 1940 the Defendant was employed at the Rex Cinema, Romford, where she met the deceased, he then being the manager of the cinema. In about 1941 they decided to live together, and a child, Christine, was born to the Defendant in June, 1942, as a result of their so living. In May, 1945, they went to live at 13 Havering Road, the house next door to the one in question. The deceased was the tenant and obtained, either as a gift or loan, the sum of £100, which was required as "Key money". This money was obtained from the defendant's mother, a Mrs. Bevis, but was paid to the deceased, who became the tenant of the house.
The deceased and the Defendant were both working and saving and shared the expenses of the house. The former earned about£10 a week and the latter £6 a week, rising later to £7 and later still to £7.1 0 B. 0d. a week. The deceased only contributed about £2. 10s.0d. or a little more per week towards the expenses of the establishment, never averaging more than £3, a week.
In 1946 the Defendant learned for the first time that the deceased was a married man, but she continued to live with him until 1948, when he obtained work in Birmingham, where he set up a similar establishment with another woman while leading the Defendant to believe he was living with his mother. Then forward he visited the Defendant every two or three weeks and at holiday time.
In 1954 the deceased obtained the opportunity of buying 13 Havering Road, and as sitting tenant was able to purchase the property for the low price of £900, all of which was obtained by him on a building society mortgage. The mortgage provided for monthly installment repayments of £5. 1s. 3d. Sixteen of these repayments were made, all of them by the Defendant.
In June, 1956, the neighboring house, 15 Havering Road, which is the property now in dispute, was bought by the deceased for £1,250. No. 13 was sold for £2,300 and the mortgage was discharged out of the proceeds of sole, leaving after payment of legal expenses little if any balance when Ho. 15 had been paid for. The deceased raised a mortgage of £600 on the security of this house from the Guardian Building Society for the purpose of improving the property, but spent only £200 of this on this object and appears to have retained the balance. In December, 1956, the deceased took out a policy of life insurance with the Sun Life Assurance Society to ensure that on his death the mortgage would be discharged out of the sum assured. This was done on the death of the deceased, as appears from a receipt dated 12th June, 1957.
At the time of the purchase of No. 15 Havering Road and afterwards the deceased wrote to the Defendant letters in which he referred to the property and the sale of No. 15 Havering Road, using the words "our sale", "our expenses", and like expressions, allowing that he regarded the Defendant as interested in the house with him.
The deceased paid one of the installments of the mortgage on No. 13 Havering Road, otherwise the Defendant made all outgoings necessary, apart from mortgage installment a, either out of her own money or out of the contributions which the deceased was continuing to make after his departure to Birmingham. The Defendant herself bought a water heater for the house at a total price of £47. 19s. 3d., and has paid a deposit and various quarterly installments thereon.
The legal position between the Defendant and the deceased is that there was an enforceable legal liability upon the latter to contribute towards the keep of the child, but no contract or joint enterprise between them can be spelled out of their relationship man and mistress, and their financial arrangements cannot be looked at as if, while they were living together, their relationship was that of man and wife.
Husband and wife cases are in a class by themselves, for the reasons given by Lord Justice Atkins in ( Balfour v. Balfour 1919 2 King's Bench, at page 378) where he pointed out that the ordinary incidents of commerce have no application to the ordinary relations between husband and wife. The Courts have in the cases of disputes between husband and wife frequently found between it impracticable if not impossible to distinguish/the respective rights of the parties or assess the amount of their respective contributions to some piece of property which they have acquired and enjoyed together.
Such a case was ( Rimmer v. Rimmer 1953 1 Queen's Bench, page 63), in which the jurisdiction of the Courts was Invoiced under section 17 or the Married Women's Property Act, 1882, The Master of the Rolls read the relevant part of section 17, which is as follows: "In any question between husband and wife as to the title to or possession of property, either party may apply by summons or otherwise in a summary way to any judge of the High Court of Justice in England or in Ireland who may make such order with respect to the property in dispute, and as to the costs of and consequent upon the application as he thinks fit". He proceeded to take as his guide or test the observations of Lord Justice Bucknill in the unreported case of Newgrosh v. Newgrosh: "That" (meaning the citation from the statute) "gives the judge a wide power to do what he thinks under the circumstances is fair and just. I do not think it entitles him to make an order which is contrary to any well established principle of law but, subject to that, I should have thought that disputes between husband and wife as to who owns property which at one time, at any rate, they have been using in common are disputes which may very well be dealt with by the principle which has been described as 'Palm Tree Justice'. I understand that to be justice which makes orders which appear to be fair and just in the special circumstances of the case".
Applying that guide or test to the facts of the case the Court held that the husband and wife should share equally in the proceeds of sale of a property. The Master of the Rolls said at page 72, in the course of his Judgments "Where the Court is satisfied that both the parties have a beneficial interest, and a substantial beneficial interest, and where it is not possible or right to assume some more precise calculation of their shares, equality, I think, almost necessarily follows".
This is not, of course, to say that the maxim "Equity delights in equality" is to be used only in husband and wife cases The Master of the Rolls referred in this connection to In re ( Dickens 1935 Chancery, page 267), where, in the absence of materials for apportioning a sum of money between the owners of the copyright and the owners of the manuscript of a work of Charles Dickens, the Court apportioned that sum in equal shares.
It however remains true to say that the Court in husband and wife cases resorts the more readily to the equitable maxim because of the very nature of the relationship of spouses and the absence in most cases of any attempt by either of them to regulate their business relations, if any, with one another in any formal manner. This aspect of the case was explained by Lord Justice Romor in the following passage at page 75: "I think the judgment of the County Court Judge is open to criticism only in this, that he approached the problem before him in rather too strict a way, in that he applied legal principles which, although perfectly right and accurate in a dispute as between strangers, require modification as between a husband and wife when the subject of dispute is the ownership of what was the matrimonial home". At page 76 he said: "It seems to me that the only general principles which emerge from our decision are, first, that cases between husband and wife ought not to be governed by the same strict considerations, both at law and in equity, as...
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