First National Securities Ltd v Jones

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE GOFF,SIR DAVID CAIRNS
Judgment Date04 Nov 1977
Judgment citation (vLex)[1977] EWCA Civ J1104-1

[1977] EWCA Civ J1104-1

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the Stourbridge County Court

(HTS Honour Deputy Judge Mclennon)

Before:

Lord Justice Buckley

Lord Justice Goff

and

Sir David Cairns

Between:
First National Securities Limited
Plaintiffs
(Appellants)
and
Christopher Timothy Jones and Shirley Jokes (Married1 Woman)
Defendants
(Respondents)
and

MR. H. MARTEN (instructed by Messrs. Davis & Co., Solicitors, Harrow; appeared on behalf of the Plaintiffs (Appellants).

MR J RICARDO (instructed by Messrs. E.H. Grove & Co., Solicitors, Hales Owen) appeared on behalf of the Defendants (Respondents).

1

LORD JUSTICE BUCKLEY; This is an appeal from a decision of His Honour Deputy Judge McLennan, sitting at the Sturbridge County Court on 5th January 1977. The action relates to a loan alleged to have been made by the plaintiff company to the defendants and secured by a mortgage by the first defendant, who is the husband of the second defendant, of some land at Sturbridge, under which the plaintiffs claim that the sum of upwards of £5 000 is now owing. The action came before the registrar of the court, and was apparently dismissed upon the ground that the legal charge constituting the mortgage was not under seal. The plaintiff appealed from that decision to the judge; the matter came before Deputy Judge McLennan, and we have only an extremely exiguous note of the proceedings before him, which does not include any note of the reasons he gave for his decision, although it would seem from what we have been told by counsel that the learned judge did deliver a judgment. This is very unsatisfactory and is not a proper compliance with the practice, which requires that an appellant shall obtain either a copy of the learned judge's own note of the judgment or at any rate a copy of counsel's note of the judge's judgment, or a solicitor's note of the judge's judgment, agreed between the parties and submitted to the judge for his approval and included in the papers submitted to this court. That course unfortunately has not been adopted in the present case, as it should have been, and are have only had the advantage of having had read to us such notes as were taken by the solicitors who appeared in the County Court, and it seems that the learned deputy County Court judge dismissed the action open the same ground as that on which the registrar dismissed it, namely that the legal charge was not under seal, from which he concluded that the plaintiffs were unable to make out any right to relief.

2

The relief which was sought on the particulars of claim was, first possession of the mortgaged property, and secondly payment of all monies due under the mortgage. Even if the mort-gage was not duly executed as a deed, further questions would arise as to whether it could operate as an equitable mortgage, and in any event, even if the mortgage were wholly ineffective as a security, there would still be a right to the repayment of the loan, if indeed the loan was one which the plaintiffs made to the defendants.

3

But the defendants put in defenses. The defence of the first defendant was that the loan was never received by him; that it was sent in a way which he described as "quite unethically" by the plaintiffs to a solicitor not known to the first defendant and without his authority or approval; and he asserts in his defence that the money was misappropriated by the plaintiffs and the solicitor to whom it is said to have been paid, and there is an allegation in the defence that the second defendant's signature on the document was forged.

4

The second defendant put in a defence saying that she never received the monies alleged to have been advanced and that the forms were not explained to her; that she was not in a position to repay anything because she was not in employment and that the forms were incomplete when she put her signature to them. The "forms" there referred to may include perhaps the proposal form for the loan; one does not quite know what the documents are to which the lady is referring. But it would seem that apart from the formal affidavit evidence which has been put in by the plaintiffs, giving particulars of the state of the account, of the parties involved and so on, and exhibiting a copy of the legal charge, no evidence at all was adduced before the learned judge, for his note makes no reference to any oral evidence, andthere was no other affidavit evidence as fax as counsel has been able to inform us,' apart from the plaintiffs formal evidence that I have mentioned, which consists of one affidavit and two supplementary affidavits, the supplementary affidavits being concerned merely with bringing up to date the particulars of two state of the account So apart from the question of whether the legal charge was ever duly executed by the mortgagor-that is, the first defendant-no issue in the action seems to have been adjudicated upon at all.

5

We heard argument about whether or not the legal charge can be said to have been duly executed. The position with regard to that is that the mortgage is a printed form of mortgage, the plaintiffs being a bank which carries on the business of making advances to borrowers and this is the standard form which they employ in connection with transactions of that kind. It is described as a "Legal Charge" in heavy gothic type at the beginning of the document; the name of the parties are given, the mortgagor being Christopher Timothy Jones, and the customers - that is to say the persons to whom the advance was to be made - being described as Christopher Timothy Jones and Shirley Jones, It identifies the property to be charged and it refers to a pre- existing first mortgage. The operative part of the document starts with the accustomed words "NOW THIS DEED WITNESSETH". At the end of the document there are the words "IN WITNESS whereof the Mortgagor has hereunto set his hand and seal the day and year first before written" and then beneath that there is a circle printed on the document containing the letters "L.S.M, signifying "Locus Sigils", and against that there is the ordinary place for the attesting witness to sign, which has the legend "SIGNED SEALED AND DELIVERED by the above-named Mortgagor in the presence of" and then there is a space for the signature and address ofthe witness. Across the circle containing the letters "L.S." there is the signature of the first defendant; beneath that signature, partially over the circle, there is a signature which at any rate purports to he the signature of the second defendant, hut it seems to me that she was not a necessary party to the document at all, because although the advance was being made to her and to her husband, the mortgage was a mortgage created by the husband alone,.

6

We have been referred to certain authorities on the subject of what constitutes good execution of a deed, the earliest of which is the case of In re Sandi lands, decided in the year 1871 and reported in 6 Common Pleas Gases, page 411, This case related to the acknowledgement by certain married ladies in Australia of a deed as their act and deed, A special commission. had been issued for taking acknowledgement of the deed at Melbourne by the ladies in question; the deed was sent out to them; it had no physical seal upon it, but there were pieces of green ribbon attached to the places where the seals should have been. The attestation was in the usual form, "signed, sealed and delivered by" and the signatures were duly attested. There was p. certificate of two commissioners, stating that the ladies in question appeared personally before them and produced the deed before them, acknowledging the same to be their respective acts and deeds. No physical seal was ever put upon the documents; there were merely these pieces of green ribbon or tape. In those circumstances the Court of Common Pleas held that the deed had been sufficiently executed.

7

Chief Justice Bovril, on page 413 said that ho thought there was prima facie evidence that the deed was sealed at the time of its execution and acknowledgement by the parties. I quote now from his judgment "To constitute a sealing, neither wax, norwafer, nor & piece of paper, nor even an Impression, is necessary. Here is something attached to this deed which may have been intended for a seal, but which from its nature is incapable of retaining an impression. Coupled with the attestation and certificate, I think we are Justified in granting the application that the deed and other documents may be received and filed by the proper officer, pursuant to the statute",.

8

Mr. Justice Files said that the sealing of a deed need not be by means of a seal; it may be done with the end of a ruler or anything else. Nor is it necessary that wax should be used. He goes on to say: "The attestation clause says that the deed was signed, sealed, and delivered by the several parties; and the certificate of the two special commissioners says that the deed was produced before them, and that the married women 'acknowledged the same to be their respective acts and deeds'", and he thought that there was prima facie evidence that the deed was sealed.

9

Mr. Justice Montague Smith concurred on the ground that the attestation is prima facie evidence that the deed was sealed, and that there was no evidence to the contrary. So that authority appears to establish that for due execution of a deed it is not necessary to have any physical seal, nor even any impression on the paper, as long as the evidence establishes that the document has been delivered by the relevant party as his act and deed; and in the view of Mr. Justice Montague Smith at any rate, the attestation of the execution of the deed as being signed, sealed...

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17 cases
  • Overseas Union Bank Ltd v Lea Tool and Others
    • Singapore
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    • 4 February 1998
    ...delivered`, the defendant manifested an intention to sign it as a deed. Counsel relies on the case of First National Securities v Jones [1978] Ch 109, in which their lordships in English Court of Appeal reviewed cases relating to the effect of failure to use a seal on documents sought to be......
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    ...seal on the document, counsel for the appellant, nevertheless relied on the following dicta of Goff L.J in the case of First National Securities Ltd. v Jones and another [1978] 2 All ER 221 at pg. 228 to support the second proposition. Here is what Goff L.J. said: "In my judgment, in ......
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    ...31 July 1990, although seals often continue to be used in practice in order to dignify documents of transfer." 119 In First National Securities v Jones [1978] Ch 109, the Court of Appeal famously held that a printed or written circle, particularly if with the letters "LS" wit......
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    ...an impression is necessary”). Even a pre-printed circle with the letters “L.S.” printed inside (for locus sigilli) would do: First National Securities Ltd v Jones [1978] Ch 61 That the key question was intention, rather than form, was emphasised by Danckwerts J in Stromdale & Ball Ltd ......
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