Hodgson v Marks
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE CAIRNS |
| Judgment Date | 12 March 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0312-3 |
| Docket Number | 1965. H. NO. 3965 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 1971 |
[1971] EWCA Civ J0312-3
In The Supreme Court of Judicature
Court of Appeal
On Appeal from an Order of Mr Justice Ungoed-Thomas.
Lord Justice Russell
Lord Justice Buckley and
Lord Justice Cairns
MR N. FRANCIS, Q. C. and MR G. GODFREY (instructed by Messrs Edward Moeran & Partners) appeared on behalf of the Appellant (Plaintiff).
MR MERVYN DAVIES, Q. C., and MR PATRICK SINCLAIR (instructed by Messrs Delton & Co.) appeared on behalf of the Respondent (First Defendant).
MR NATHANIEL MICKLEM (instructed by Messrs Curwen, Carter & Evans) appeared on behalf of the Respondents (Second Defendants).
( )
The facts in this case are fully deployed in the Judgment of the learned judge (reported in 1970 3 Weekly Law Reports at page 956) and, accordingly, I do not propose to restate them save to the extent necessary to explain my conclusions.
The judge found, on the evidence, that despite the reference to love and affection as consideration in the transfer of her house to Evans, the Plaintiff did not intend to make any gift to him, and that it was well understood, and indeed orally arranged "between them, that the beneficial ownership was to remain in the Plaintiff. This finding of fact was not challenged.
At the outset, to get the point out of the way, let me say that such a finding disposes of any question of undue influence: any such case assumes a transfer of the beneficial interest, but in circumstances which entitle the transferor to recall it.
The points that arise for consideration in the appeal and on the Respondents' notices are the following: some were not, or not adequately, ventilated before the Judge, but, having regard to the fact that they were points of law which (if sound) could not have been answered by any further evidence, we thought it right to allow them to be taken.
(1) Was the Plaintiff a person in actual occupation of the house for the purpose of section 70(1)(g) of the Land Registration Act, 1925?
(2) If yes - does section 53 of the Law of Property Act, 1925, prevent her from asserting her beneficial interest as an overriding interest?
Hereunder it was argued for her:
(a) that for Marks (though ignorant when he bought from Evans of the Plaintiff's rights) to plead the statutewould be contrary to the general principle that the statute should not be used as an instrument of fraud;
(b) alternatively, that the transaction involved nothing more than a transfer of the legal estate to Evans and the fact that the beneficial interest never left the Plaintiff and simply remained where it had previously been was not within the language of any paragraph of sub-section (1) of section 53, but was rather a constructive trust within sub-section (2).
(c) Alternatively, that if there was an attempt to create an express oral trust which failed for lack of writing there was, in the light of the accepted evidence that a gift to Evans was not intended, a resulting trust for the Plaintiff which was excepted from section 53 by virtue of sub-section (2) hereof.
(3) Was the Plaintiff estopped from asserting against Marks and the building society that she had a beneficial interest in the property? Or, as it was also put, had her conduct been such as to require the Court to postpone her interest to the interests of the Defendants?
I turn first to the question whether at the relevant time the Plaintiff was in "actual occupation" of the house. For years it had been her property and her home. Mr Evans was taken in by her as a lodger. I now quote from the findings of the learned Judge: "So I will now come to the facts which bear on whether Mrs Hodgson was, independently of the context of section 70(1) (g) of the Land Registration Act, 1925, in actual occupation in this case. Before Mrs Hodgson's transfer of the house to Mr Evans and its registration in his name, it is undisputed and indisputable that Mrs Hodgson was in actual occupation of it.After the registration, she continued to live there to all appearances and as a physical fact in exactly the same way as before; and so did Mr Evans. They lived and ate and slept in the house exactly as before. The financial arrangements of payment by Mr Evans to Mrs Hodgson for board and lodging and by Mrs Hodgson to Mr Evans for investment for her and for the payment of bills continued unchanged. Mrs Hodgson continued too as the rateable occupier. There was no change in the physical appearance of occupation nor was there any other change at all except that Mrs Hodgson transfered the house to Mr Evans upon oral trust for herself and that Mr Evans was registered as proprietor. Except that Mr Evans held the legal estate on trust for Mrs Hodgson, the transfer and registration made no difference as between Mrs Hodgson and Mr Evans. She was absolutely beneficially entitled and could at any time call for a transfer of the legal estate and then be registered as proprietor. Mr Evans as bare trustee of the legal estate for Mrs Hodgson was not entitled to occupy the house, but she as absolute beneficial owner was so entitled. After, as before Mr Evans' registration, Mr Evans' presence in the house was exclusively as lodger and Mrs Hodgson's presence was in virtue of being absolute owner, legally and beneficially before the registration, and beneficially afterwards. She could terminate Mr Evans' presence in the house after the registration just as she could before. As between Mrs Hodgson and Mr Evans, her occupation and her dominion over the house was the same after the registration as before.
"So at all material times, Mrs Hodgson was in fact in physical occupation of the premises and, more, had the right to occupy them. It seems to me that in general (if this matter canbe considered at all independently of context) such physical occupation, even apart from such right to occupy, would constitute what would he meant by actual occupation generally". With those findings I entirely agree.
But the learned Judge then proceeded to attach a different and special meaning to the words "in actual occupation" in section 70(1)(g). He took as a starting point to justify departure from the ordinary meaning of the words first the fact that every person in actual occupation could not include the vendor himself; but that only puts a gloss on the words "every person" and, indeed, assumes the ordinary meaning of "actual occupation": moreover, it is not in the context a special construction of "every person" to exclude the vendor who ex hypothesi has transferred his rights to the purchaser. Secondly, the Judge relied upon the correct conclusion that "the land" included part of the land: I cannot myself see that this can properly be used as a justification for departure from the ordinary meaning of the words "in actual occupation". Having by this means freed himself from the fetters of the golden rule, he then, after considering the circumstances in which in the case of unregistered land a purchaser would be fixed with constructive notice of the rights of persons in occupation of the land sold, concluded that "actual" should be construed in the sense of "actual and apparent". I do not myself see that this adds to or detracts from the words in the section....
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