Hayward v Chaloner
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DAVIES,LORD JUSTICE RUSSELL |
| Judgment Date | 22 June 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0622-1 |
| Date | 22 June 1967 |
| Court | Court of Appeal (Civil Division) |
[1967] EWCA Civ J0622-1
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From His Honour Judge Flint Mansfield County Court.
The Master of The Rolls
(Lord Denning)
Lord Justice Davies and
Lord Justice Russell
MR P. GARLAND and MR D. WOOD (instructed by Messrs Sharpe Pritchard Co., Agents for Messrs Perry, Parr & Ford, Nottingham) appeared as Counsel for the Appellant.
Mr I. McLAREN (instructed by Messrs Elliot Smith & Co., Mansfield) appeared as Counsel for the Respondents.
There is a dispute in the village of Bilsthorpe. It is over a little piece of land of less than a quarter of an acre. The documents of title show that it belongs to Mr and Mrs Hayward, who are of long-standing in the village. Mr Hayward is a tractor driver. They have a smallholding of seven acres called Redcote Farm. This little piece of land is next to their holding. It has belonged to their family, they say, for more than 25 years. They are staunch supporters of the church. Their case is that they allowed the Rector to have it for use as a garden, paying no rent. So long as it was used as a garden they did not mind. But now there is a change. The Rector claims that it belongs to him as Incumbent of the Parish. It is, he says, part of the glebe. It is next to Rectory cottages and has been used, he says, for years as part of the garden of the cottages. In the last few years the Rector has allowed Mr Rowlands to put his motor vehicles on it. Mr and Mrs Hayward say that Mr Rowlands disfigured it. He put up a Nissen hut on it. The Rector now proposes to sell the land to Mr Row-lands. Mr and Mrs Hayward have a strong objection to this. They have produced their deeds to the Rector and showed him their title. The Rector resists their claim. He says it is for the benefit of the church to sell the land to Mr Rowlands. The Rector offered to buy them cut. But Mr and Mrs Hayward were adamant. They were content, they say, to let the church have it so long as it was used as a garden, but not to sell it. They refused the Rector's offer and brought this action in the Courts to establish their title. At the hearing the Rector admitted that, on the deeds, the land belonged to Mr and Mrs Hayward. But he claimed a title by adverse possession for more than 12 years. The Judge decided against the Rector. He appeals to this Court.
THE FACTS
The history, as given in evidence, was as follows: In 1938 all the village of Bilsthorpe belonged to the Saville Estate except the Church, the Rectory and the glebe. The Rector thenwas the Rev. W. H. Hunt. The Saville Estate let to Mr Hunt this little piece of land for use as a garden. On the 5th August 1938 Mr Hunt died. Soon afterwards the Saville Estate sold their estate. The sale catalogue contained these particulars of Redcote Farm:
| Tenant Description Area |
| Miss G. Stocks Homestead and grass 6.761 acres |
| Rev. W. H. Hunt's Exors. Garden.237 acres |
| 6.998acres |
That entry indicates that Mr Hunt was the tenant in his personal capacity and not as incumbent.
The living was vacant from the 5th August, 1938, to the 6th May, 1939. When a new Rector, The Rev. M. E. McCormick, was inducted. He took over this little piece of land and paid rent for it. On the 1st June, 1939, he paid 10s. for the year ended the 14th May, 1940. On the 3rd May, 1940, he paid 10s. for the year ended the 14th May, 1941.
On the 10th January, 1941, the tenant, Miss G. Stocks, bought Redcote Farm from the purchasers of the Saville Estate. The conveyance included this little piece of land and said it was subject to the tenancy to Mr McCormick. The conveyance gave these particulars of it:
| Tenant Commencement and duration of tenancy Total annual rent |
| Rev. M. McCormick half-yearly 10s. |
That entry also indicates that Mr McCormick was tenant in his personal capacity and not as incumbent.
After Miss Stocks bought the land, Mr McCormick paid 10s. rent for the next two years, 1941 and 1942, but there is no indication that he paid any rent after that time. Mr McCormick left on the 25th March, 1946. Thereafter Rectors came and went but never paid any rent. Miss Stocks said that she never asked for rent as it was the church. In April 1955 she sold Redcote Farm to her niece, Mrs Hayward, and her husband, Mr Hayward. The conveyance included this little piece of land. Mr and Mrs Hayward did not ask the Rector for any rent for it. Mr Hayward said:
"I would not ask the church for 10s. a year. If the Rector had given me 10s. I should have put it in the offertory box".
Only one of the previous Rectors gave evidence. He was the Rev. Richard Phillips. He was inducted on the 6th May, 1952, and stayed till the 19th April, 1961. He knew Rectory cottages and said that the land behind the cottages was used by the occupants, including the land in dispute. He added that the land was sadly neglected when an old couple lived there. He never paid any rent for it. Mr and Mrs Hayward were prominent supporters of the church. He said that he would not expect them to ask him for the 10s. per annum rent.
After Mr Phillips left the living was vacant for a full year until the Rev. S. M. Challoner was inducted on the 15th April 1962. During that time sequestrators were appointed to receive the income of the living. The Diocesan Registrar gave evidence at the hearing. He did not say that any rent was received for this piece of land or paid for it.
A few years ago the cottages were let to Rowlands and his mother and father. The letting included the whole of the garden, including this little piece of land.
THE LAW
It appears, therefore, that many years ago the plaintiff predecessors let this piece of lend on a tenancy from year to year without a lease in writing: and that rent was last received in 1942. That is a long time ago. The plaintiffs and their predecessors have been out of possession for 25 years receiving no rent. But that does not of itself mean they are barred by the statute. Time does not count against them merely because they have been out of possession. There must be both absence of possession by the person who has the right, and also actual possession by another, adverse to the true owner, for a continuous period of twelve years, before the plaintiff is barred, see Smith v. Lloyd (1854) 9 Ex. at p. 572 (under the old statute) and Sections 4(3), 9(2), 10(1) and 10(2) of the Limitation Act 1939. Forinstance, if the tenant from year to year, Mr McCormick, had remained in actual possess on for twelve years from 1942 onwards, paying no rent, he would have acquired a squatter's title, see Moses v. Lovegrove, 1952, 2 Q. B., p. 531. But he did not remain in possession for twelve years. He was only there for four years. Then a gap of three months. His successor, Mr Pattison, was only there five years. Then a gap of several months. Next was Mr Phillips. He was only there nine years. There were gaps of weeks or months between each incumbent. There was a whole year between Mr Phillips and Mr Challoner. Mr Challoner has only been there five years. These gaps may make it difficult for Mr Challoner to claim a title by adverse possession. But before I come to these, it is necessary to consider the meaning of "adverse possession".
In order that the plaintiffs should be barred, the land must have been in adverse possession for twelve years. The statute says that land is in "adverse possession" when "the land is in the possession of some person in whose favour the period of limitation can run", see Section 10(1). In my opinion "possession" there means actual possession of the land itself by the person, or his servants or agents. If a man lets the land, he ceases to be in possession, and his tenant takes possession. In such case "possession" by the lessor means actual receipt by him of the rents payable out of the land, see Section 31(1) and (5) of the 1939 Act. If he does not receive the rents, he is not in possession. If there is a distinct and definite gap in the actual possession of the land, or in the receipt of the rent, then the land ceases to be in adverse possession: and time does not run against the true owner unless and until the land is again taken into adverse possession, see Section 10(2).
In the present case there is no evidence that any one of the Rectors of Bilsthorpe was in actual possession of this little piece of land. Not one of them said that he cultivated it himself or got his gardener to cultivate it for him: oremployed anyone to do it. Nor is there any evidence that any one of the Rectors of Bilsthorpe received any rent for this little piece of land. Not one of them said so. I should not have thought that any of the Rectors would have charged any rent for it. Paying no rent, they would be unlikely to charge any. At any rate, there is no evidence that any one of them let this little piece at a separate rent: or that the rent of the cottages was increased on account of it. All that Mr Phillips said was that the occupiers of the cottages used it as a garden and sadly neglected it. We do not know how long they occupied it. There may have been long gaps there too. In any case I do not think that this mere use by the cottagers was adverse possession by the Rector. If it was adverse possession by anyone, it was by the cottagers themselves. In any case acts of user are not enough to take the title out of the plaintiff unless they are "inconsistent with the enjoyment of the soil for the purpose for which he intended to use it", see Leigh v. Jack (1879) 5 Ex. Div. at p. 273 by Lord Justice Brett. The user of this little piece as a garden was not inconsistent with the owner's enjoyment. He was content to let it be so used; just as if he had permitted it to be used in this way under...
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