Eves v Eves
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BROWNE |
| Judgment Date | 28 April 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0428-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 April 1975 |
[1975] EWCA Civ J0428-2
The Master Of The Rolls (Lord Denning)
Lord Justice Browne and
Mr. Justice Brightman.
In The Supreme Court of Judicature
Court of Appeal
Appeal by plaintiff from judgment of the Vice Chancellor on 10th April 1975.
Mr. VICTOR LEVENE AND Mr. PHILLIPS (instructed by Messrs. Hatten Asplin & Co. of Barking) appeared on behalf of the Appellant Plaintiff.
The Respondent, Mr. Eves, appeared in person.
I will call her Janet because she has had four surnames already. She was married for the first time at the age of 18; but that marriage only lasted about a year. Next at the age of 19 she met a man, Stuart Eves. He was a married man. They could not marry, so they started living together. She took his name and had two children by him. After 4½ years that relationship broke down. Now both have got divorces from their former spouses and have re-married. The question arises now as to the house where they lived.
when Janet started to live with Stuart Eves in April 1968, it was at his house at Romford. They intended to marry when they were free to do so. In the autumn of 1968 she became pregnant by him. A little later she went to his solicitor and changed her name by deed poll to "Janet Eves". They had their first child, a daughter, on 19th April 1969. They looked for a house in a different area. Both took part in the search. They found one at 39 Broad burst Avenue, Seven Kings, Romford. He told her that it was to be their house and a home for themselves and their children. He said that, as she was under 21, it could not be in joint names and had to be in his name alone: and that. But for her age, it would have been purchased in joint names. She accepted this explanation: but he admitted in the witness-box that it was simply an "excuse". He all along was determined that it was to be in his name alone. The conveyance was actually completed in August 1969, after she was 21. The price was £5600. He paid for it in part by the sale of his former house and in part by a mortgage for £3,200.
The house was very dirty and dilapidated. They went in and made their home there. She did a great deal of work to the house and garden. She did much more than many wives would do. Shestripped the wall paper in the hall. She painted woodwork in the lounge and kitchen. She painted the kitchen cabinets. She painted the brickwork in the front of the house. She broke up the concrete in the front garden. She carried the pieces to a skip. She, with him, demolished a shed and put up a new shed. She prepared the front garden for turfing. To add to it all, they had their second child, a girl, on 29th December 1970. She said "So far as I was concerned, we were husband and wife, and I did trust him. I never ever thought anything was going to happen while we were building the home up: as far as I knew we were going to stay there."
Some time later, in 1970 or 1971 their divorces came through and early in 1972 she suggested to him that they should yet married. She said he agreed but he did not do anything about it. Soon afterwards he changed his mind about it, because he met another woman called Gloria. He met her when he got a job as a mini-cab driver. In September 1972 he told Janet that he was going to marry Gloria. He told her he was going to sell the house. He actually put it in the hands of estate agents. Thereupon Janet went to solicitors and made an application to the County Court. She asked for a share in the house, and her solicitors put a caution on the register. Three weeks later Stuart Eves left the house. He went to live with Gloria married her.
On 19th January 1973 Janet got an order from the Magistrates giving her custody of the two children and ordering Stuart Eves to pay £3 a week maintenance for each. He did not keep up those payments. He went back to the house (where Janet was). He looked up two big rooms, leaving Janet and the children one bedroom and the kitchen and toilet. He took away the deep free as and the stair carpet. It was a poor return for all she had done.
On 13th May 1973 Janet's case came before the County Court. The Judge was sympathetic towards her claim; but, when the case washalf heard, the Registrar noticed that the equity in the house was valued at over £5,000. So it was outside the jurisdiction of the County Court. Janet would have agreed to it going on before the Judge. But Stuart Eves did not. So the case was hot heard in that Court. But outside after the hearing in the County Court Gloria made an upset. She raised her voice and said that Janet would not get a penny out of Stuart Eves. She threatened Janet with violence. Janet was very upset and afraid of what might happen if she stayed in the house. So she left and Stuart and Gloria moved in with an Alsatian dog.
Although the Magistrates ordered Stuart Eves to pay a week for each child, he has paid very little. He is very much in arrear. By the time the case came before the Judge in April 1974, he was (as far as I read it) about £500 or more in arrear. I expect it is more like £1,000 now.
The case came before the High Court in April 1974, before the Vice Chancellor. He accepted the evidence of Janet in preference to that of Stuart Eves, but held that she was not entitled to any share in the house. She appeals to this Court.
The problem in this case is a familiar one. It often happens that a man and woman set up house together and have children. They cannot marry because one or other or both are already married. But they intend to marry as soon as they are free to do so. She takes his name. They live as husband and wife. They are known to their neighbours as husband and wife. They get a house; but it is put in his name alone. Then, before they get married, the relationship breaks down. In strict law she has no claim on him whatever. She is not his wife. He is not bound to provide a roof over her head. He can turn her into the street. She is not entitled to any maintenance from him for herself. All she can dois to go to the Magistrates and ask for an affiliation order against his on the footing that she is a "single woman": and get an order for him to pay maintenance for the children. If he does not pay, she may have great difficulty in getting any money out of him, even for the children. Such is the strict law. And a few years ago even equity would not have helped her. But things have altered now. Equity is not past the age of child bearing. One of her latest progency is a constructive trust in a new model. Lord Diplockbrought it into the world and we have nourished it. In Gissing v. Gissing 1971 A.C. 886 at page 905 Lord Diplock said:
"A resulting, implied or constructive trust – and it is unnecessary for present purposes to distinguish between these three classes of trust – is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land."
We have followed this advice in several oases: notably in Binions v. Evans 1972 1 Ch. 359: Cooke v. Head 1972 1 W.L.R. 518; and Hussey v. Palmer 1972 1 W.L.R. 1287. I would specially mention Cooke v. Head 1972 1 W.L.R. 518; because there too a man and woman set up home without being married. In 1972 1 W.L.R. at page 520, I ventured to suggest that
-"whenever two parties by their joint efforts acquire property to be used for their joint benefit, the courts may impose or impute a constructive or resulting trust. The legal owner is bound to hold the property on trust for them both. This trust doesnot used any writing. It can be enforced by an order for sale, but in a proper case the sale can be postponed indefinitely. It applies to husband and wife, to engaged couples, and to man and mistress, and may be to other relationships too." This principle was considered by Mr. Justice Walton in the case of Richards v. Dove 1974 I All, E.R. 888. But that case turned on its own special circumstances and as not of any general application.
The principle does apply in the present case. Although Janet did not make any financial contribution, it seems to me that this property was acquired and maintained by both by their joint efforts with the intention that it should be used for their joint benefit until they were married and thereafter so long as the marriage continued. At any rate, Stuart Eves cannot be heard to say to the contrary. He told her that it was to be their home for them and their children. He gained her confidence by telling her that he intended to put it in their joint names (just as married couples often do) but that it was not possible until she was 21, the Judge described this as a "trick", and said that "it did not do him much credit as a man of honour. The man never intended to put it in joint names but always determined to have it in his own name. It seems to me that he should be judged by what he told her – by what he led her to believe – and not by his own intent which he kept to himself. Lord Diplock made this clear in Gissing v. Gissing 1971 A.C. at page 906 between B and D.
It seems to me that this conduct by Mr. Eves amounted to a recognition by him that, in all fairness, she was entitled to a share in the house, equivalent in some way to a declaration of trust; not for a particular share, but for such share as was fair in view of all she had done and was doing for him and the children and would thereafter do. By so...
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