Hardwick v Johnson
| Jurisdiction | England & Wales |
| Judgment Date | 06 December 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J1206-3 |
| Docket Number | Plaint No. 75/00890 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 December 1977 |
[1977] EWCA Civ J1206-3
In The Supreme Court of Judicature
Court of Appeal
On Appeal from Trowbridge County Court
(Deputy Circiut Judge Massey
The Master of the Rolls
Lord Justice Roskill and
Lord Justice Brown
MR. C. GOSLAND (instructed by Messrs. Mann, Rodway & Green, Solicitors. Trowbridge) appeared on behalf of the Plaintiff (Appellant).
MR. N. INGLIS-JONES (instructed by Messrs. Middleton & Upsall, Solicitors, Trowbridge) appeared on behalf of the first Defendant (Respondent).
MR. J. WIGMORE (instructed by Messrs. Sylvester & Mackett, Solicitors, Trowbridge) appeared on behalf of the Second Defendant (Respondent).
THE MASTER Of THS ROLLS: This is another case of a "family arrangement" which gives rise to special problems. Mrs. Hardwick is the mother of Robert. Johnson. He has been twice married. On each occasion his mother has helped him and his wife to get a house. On the first marriage, the house was put in the joint names of the couple. That marriage broke up and there was a divorce. It gave rise to problems about the house which were later resolved. On the second marriage the mother determined to keep the house in her own name. That marriage has now broken up. And problems have now arisen about this second house. The story is this:-
In 1972 the son, Robert Johnson, became engaged to Janet. The mother promised to buy them a house to live in when they got married. They found a house at Trowbridge in Wiltshire - 222 Frome Road, Trowbridge. It was a good and suitable house. The price was £12,000. Janet, the fiancee, paid a reservation fee of £100 to get it reserved for them. The mother went to see it and told the young couple: "I'll buy the house and you can pay me rent". The mother went to her solicitor and told him she would buy the house for the young couple for £12,000. The solicitor suggested that it should be put into the joint names of the young couple, but the mother insisted that the house should be conveyed into her own name. The mother repaid Janet the £100 reservation fee and paid £12,000 for the house. It was conveyed to the mother on 30th March, 1973. The son and his fiancee married four days later, on 4th April, 1973, and they occupied the house thereafter. It was arranged that the young couple were to pay the mother £7 a week from 1st April, 1973, and this was supposed to pay off the purchase price of the house. It appears that the young couple made a few payments. They made them through a joint account. They were made on 19th April, 1973,£28: 12th November, 1973, £20: 7th February, 1974, £20: and 23th May, 1974, £20. But that was all. She mother did not insist on any more payments. She knew the young couple had not got much money to live on. (It appears that the son had to make payments in respect of the child of his first marriage). The second marriage with Janet lasted about a year, but then they began to drift apart. The wife became pregnant. The son started to have an affair with another woman On 8th January, 1975, the mother, through her solicitors, wrote to the young wife at the house, saying that she wanted possession:
"We are instructed that our client purchased the property upon the understanding that a rent of £7 a week would be paid by your husband, but we understand that only about two months' rent was in fact ever paid. Whilst our client was prepared to allow this state of affairs to continue in order to provide a home during the early years of your marriage, we understand that unfortunately matrimonial differences have now arisen, and that divorce proceedings are being contemplated. In the circumstances, as you are aware, our client wishes to'place the property on the market for sale."
So the mother wanted the wife to go out and the property to be sold. In March 1975 the son left the house. In June 1975 the mother took proceedings for possession of the house in the County Court. The little grandson was born just about that time. The wife and baby have been staying in the house. The mother made both her son and daughter-in-law defendants.
The Judge heard much evidence as to the arrangements about the house, but it was all very vague and uncertain. He said:-"There is no doubt it was very much a family arrangement, and I do not suppose that all the implications of the arrangement were very fully discussed between the parties". The Judge acceptedthe daughter-in-law's evidence completely. He preferred it to all the others. She said in evidence:". I did not really A know where we stood except that she waa buying the House for Robert and I. Mrs. Hardwick did not want to take payment for the first few months to help us get on our feet". Later on she said: ". Think Mrs. Hardwick always envisaged that house would become ours by inheritance, nothing ever was said about when you've finished buying I will convey. Previously she had agreed to loan us the money. That is why I paid the £100 reservation. Think (we) agreed. just before marriage that we would pay £7 a week. I don't know what it was for really. Subject was always dropped like a hot potato. 'Rent' and 'Purchase Price' never really regarded as separate matters. Never anything crystal clear about this arrangement so that I could turn round and say we are rentlng it or buying it". That extract shows just how vague everything was. No doubt if the marriage had turned out successfully, the couple would have gone on living in the house, the mother would not have insisted on receiving £7 a week, and on her death they would have inherited the house. But the marriage did not turn out successfully. It has broken down. A situation has arisen which they did not envisage. The son has left the house, leaving the daughter-in-law and the child there.
So we have to consider once more the law about family arrangements. In the well-known case of Balfour v. Balfour (1919) 2 King's Bench 591, Lord Justice Atkin said that family arrangemerits made between husband and wife "axe not contracts because the parties did not intend that they should be attended by legal consequences". Similarly, family arrangements between parent and child are often not contracts which bind them, see Jones v. Padevatton (1969) 1 Weekly Law Reports 328. Nevertheless these family arrangements do have legal consequences: and, time andtime again, the Courts are called upon to determine what is the true legal relationship resulting from them. This is especially the case where one of the family occupies a house or uses furniture which is afterwards claimed by another member of the family: or when one pays money to another and afterwards says it was a loan and the other says it was a gift: and so forth. In most of these cases the question cannot be solved by looking to the intention of the parties: because the situation which arises is one which they never envisaged; and for which they made no provision. So many things are undecided, undiscussed, and unprovided for that the task of the Courts is to fill in the blanks. The Court has to look at all the circumstances and spell out the legal relationship. The Court will pronounce in favour of a tenancy or a licence, a loan or a gift, or a trust according to which of these legal relationships is most fitting in the situation which has arisen: and will find the terms of that relationship according to what reason and justice require. In the words of Lord Diplock in Pettit v. Pettit (1970) Appeal Cases at page 825: "The court imputes to the parties a common intention which in fact they never formed and it does so by forming its own opinion as to what would have been the common intention of reasonable men as to the effect" of the unforeseen event if it had been present to their minds.
The present case is a good illustration of the process at work. The correspondence and the pleadings show that the parties canvassed all sorts of legal relationships. One of them was that there was a loan by the mother to the couple of £12,000 which was repayable by instalments of £28 a month. Another suggestion was that there was a tenancy at £7 a week. Another suggestion was that there might be an implied or constructive trust for the young couple. Yet another suggestion was thatthere was a personal licence to this young couple to occupy the house.
Of all these suggestions, I think the most fitting is a personal licence. The occupation of the house was clearly personal to this young couple. It was a personal privilege creating a licence such as we have often had: see the case of Errington v. Eirrington and Woods (1952) 1 King's Bench 290. I do not think it could properly he called a contractual licence because it is difficult to say that this family arrangement was a contract. Balfour v. Balfour (1919) 2 King's Bench 391 is authority for saying there was no contract. I should have thought it was more in the nature of an equitable licence of which the court has to spell out the terms.
That is what the judge did here. He held that there was a licence, and he spelt out the terms in these words: "… The first and second Defendants were married on 4th April, 1973, and they occupied the property thereafter. I find as a fact that they agreed to...
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