Grant v Edwards and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,THE VICE-CHANCELLOR,LORD JUSTICE MUSTILL |
| Judgment Date | 24 March 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0324-2 |
| Docket Number | 86/0279 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 March 1986 |
and
[1986] EWCA Civ J0324-2
The Vice-Chancellor
(Sir Nicolas Browne-Wilkinson)
Lord Justice Mustill
Lord Justice Nourse
86/0279
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
MR L. A. I. ST. VILLE, instructed by Messrs Livingstone Solomon, appeared for the Appellant (Plaintiff).
MR D. R. SCHMITZ, instructed by Messrs Singh Karrah & Co. (Middlesex), appeared for the Respondent (First Defendant).
This is an appeal from a decision of His Honour Judge Paul Baker Q.C. sitting as a Judge of the Chancery Division given on 22nd February 1985 in a dispute between an unmarried couple as to the beneficial ownership of a house in which they formerly lived together. The Judge decided that the woman had no interest in the property and she has appealed to this court.
The woman, the plaintiff in the action, is Mrs Linda Grant. The defendants are two brothers, George and Arthur Edwards, but the former has taken no significant part in the proceedings. Like the Judge, I will refer to Mr George Edwards as the defendant. I should add that he is now an undischarged bankrupt, but his trustee in bankruptcy, the Official Receiver, told the Judge that he did not wish to be Joined as a party and the action has proceeded without him.
Both the plaintiff and the defendant are of Jamaican origin and have lived in London for many years. When they first met in 1967 each was married to another. The plaintiff lived in Lewisham and had two young sons, whose approximate ages were then 4 and 2 years. In about 1967 the plaintiff's husband left her. The defendant was then living in the basement at 82 Woodstock Road, Finsbury Park, London, N4, but in the same year his wife left him, taking their children and all or much of the furniture with her. That property was Jointly owned by the defendant and another brother of his, not Arthur, but the two of them were not getting on well together at that time. And so the defendant left that property and moved into the house of yet another brother nearby.
In April 1967 the plaintiff, having been recently abandoned by her husband, moved from Lewisham to an address in Dalston, E8. She lived there with her two boys for two years. During this period she formed a close relationship with the defendant and conceived a child by him in September or October 1968. Later, conditions in Dalston either got very overcrowded, or the plaintiff fell out with the owners of that house, or both. In any event, in about May 1969 when she was 7 or 8 months pregnant, she moved to 82 Woodstock Road, where the defendant had previously lived, and was accommodated there with her two children. On the face of it, that might appear to have been an event of some significance. On 2nd July 1969 she gave birth to a son who was named Sean. The judge found that although the previous relationship between the plaintiff and the defendant had been a casual one, with Sean's birth it changed; and that from that point onwards they came to the conclusion that they would live together on a more permanent arrangement. He also took into account evidence by the defendant to the effect that he was at that time thinking of buying a house to settle down in and have a family, and he found that it was the plaintiff whom the defendant had in mind.
It is against that background that the purchase of the property with which this action is concerned must be viewed. That property is 96 Hewitt Road, Hornsey, N8. The judge described it as a very modest house. Its purchase was completed on 5th or 11th December 1969. It was purchased in the name of the defendant and his brother Arthur, who became the joint registered proprietors and legal owners of it. The judge found that the defendant told the plaintiff that her name was not going onto the title because it would cause some prejudice in the matrimonial proceedings between the plaintiff and her husband which were then pending or expected. The judge also found that the defendant never had any real intention of replacing his brother with the plaintiff when those proceedings were at an end. Those two findings have assumed a greater importance in this court than they did below, and I will return to them in due course. That then was the reason for not putting the plaintiff's name on the title. It appears likely that the reason for making Mr Arthur Edwards a joint registered proprietor was that his earnings and his personal covenant would assist in obtaining a mortgage. The judge was satisfied, for the purposes of this case, that Mr Arthur Edwards was a purely nominal party with no beneficial interest of his own in the property. He also found that the plaintiff and the defendant from the outset settled down in the property as a home where they were going to live as husband and wife with their family, although it seems clear that, ultimately at any rate, she did not intend to marry him. Their second son, Junior, was born on 13th July 1971. Also living with them there were the two sons of the plaintiff's marriage.
The judge found that there was no agreement "as such" between the plaintiff and the defendant to pool their resources. He said that the case stood or fell on whether the plaintiff was able to show that she had contributed to the purchase price or the mortgage payments.
The purchase price of 86 Hewitt Road was £5490. A deposit 6f £550 was paid on exchange of contracts. The balance required to complete, including costs, was £5026, of which £4065 was raised on a first mortgage in favour of the Guardian Building Society and £468 on a second mortgage in favour of Merton Abbey Finance Co. Ltd. ("Merton Abbey"). That left a further £493 to be found which, when added to the deposit of £550, meant that a total of £1043 was found in cash. (The judge's figure was £957, but I think that he left the £86 required for costs out of account.)
The plaintiff claimed that she contributed the sum of £290 towards the deposit, but the judge found that that claim was not proved. An attempt was made to persuade this court to interfere with that finding, but it is unnecessary for me to say more than that that is something which we cannot do. We must proceed on the footing that, as between the plaintiff and the defendant, the whole of the £1043 which was found in cash was provided by the defendant.
The defendant said in evidence that when they moved into the house the plaintiff paid him £6 per week as rent. The judge rejected the evidence that she was only a tenant of the defendant's, but made no finding as to whether she paid him £6 per week or not. It would appear therefore that there was an admission that the plaintiff paid the defendant £6 per week, at least for a time, and a finding that it was not paid as rent.
The plaintiff's other claim was that she agreed to contribute, and did contribute, towards the mortgage instalment payments. Her evidence was that she did not make any direct contribution towards the instalments payable under the first mortgage. On the other hand, she said that it was arranged between the defendant and herself that she was to be responsible for, and that she did in fact pay, all the instalments payable under the second mortgage. Those were monthly instalments, 60 in number, of £13.54 each. The first instalment was paid on 3rd February 1970 and the outstanding balance was paid off, ahead of time, on 16th October 1974. Although the judge accepted the possibility that the plaintiff did pay some of these instalments as part of the general expenses of the household, he found that they would not have been substantial enough to give the plaintiff a beneficial interest in the property. That finding has also been attacked in this court, and in this instance I must deal with the matter at greater length.
The judge quoted both the plaintiff's and the defendant's evidence on this point. The plaintiff said: "I was paying the second mortgage at £13 a month. I paid it to the post office and sent it to them in envelopes. I worked for that money…They" (the defendant and his brother) "did not pay these amounts. I paid those amounts. When I first bought the house, George said that I had to pay the small mortgage and he would pay the large one. I read the paper. George signed it. I don't remember the figure". The defendant said: "She paid me some money for the rent of the room. She had not made the mortgage payments herself. I have paid them to Merton Abbey. I used to sign my name. She didn't make payments to Merton Abbey and I took the book to the bank, put the book over the counter, and they used to stamp it—both of them—a book for each mortgage." The judge said that he was unable to find that the payments of £13 odd a month were made as the plaintiff suggested.
It is, I think, clear that the judge misunderstood the plaintiff's evidence about this. It seems probable that she said that she paid the instalments through, not to, the post office. Mr Schmitz, who appears for the defendant, told us that he has a note recording that the plaintiff said that she sometimes sent postal orders. It seems tolerably clear that what she meant was that she went to the post office every month, purchased a postal order, put it in an envelope together with the payment record card and posted it off to Merton Abbey, whose place of business was in Tooting, SW17. That method of payment was expressly contemplated by the notes on the back of the payment record card, and there were further instructions at the bottom of each page stating that Merton Abbey had no agents authorised to collect monies on its behalf and that all payments should be...
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