Holder v Holder

JurisdictionEngland & Wales
Judgment Date08 December 1967
Judgment citation (vLex)[1967] EWCA Civ J1208-4
Date08 December 1967
CourtCourt of Appeal (Civil Division)
Frank William Holder
Emily Louise Holder (Widow)
Barbara Mary Campbell (Married Woman) and Victor James Holder (by Original Action)
And Between:
Victor James Holder
Frank William Holder
(By Counterclaim) Defendant

[1967] EWCA Civ J1208-4


Lord Justice Harman

Lord Justice Danckwerts and

Lord Justice Sachs

In The Supreme Court of Judicature

The Court of Appeal

(Civil Division)

(From: Mr. Justice (Cross))

Mr. H.E. Francis, Q.C. and Mr. Paul Baker (instructed by Messrs. Nutt & Oliver, Agents for Messrs. Rowberry, Morris & Co., Gloucester) appeared on behalf of the Appellant Frank William Holder (Respondent to cross-appeal).

Mr. J. Maurice Price (instructed by Messrs. Field, Roscoe & Co., Agents for Messrs. Griffiths & Lewis, Cheltenham) appeared on behalf of the Respondents Emily Louise Holder and Barbara Mary Campbell.

Mr. S.W. Templeman, Q.C. and Mr. Martin Nourse (instructed by Messrs. Balderston Warren & Co., Agents for Messrs. T. Weldon Thompson & Co., Tewkesbury) appeared on "behalf of the Respondent Victor James Holder (Appellant on cross-appeal).


The plaintiff in the action out of which this appeal arises is the elder son and a beneficiary under the will of the testator Frank Holder. He brought this action against the first two defendants, his mother and sister, the proving executors of the testator's will and also beneficially interested under it, and against the third defendant the testator's younger son, a beneficiary under the will and named as executor, but who has not proved. The plaintiff's claim was to set aside the sale to the third defendant of two farms the property of the testator, first upon the footing that the auction particulars had wrongly stated that these farms were subject to tenancies in favour of the third defendant and another, whereas they should have been sold with vacant possession. By way of alternative the plaintiff sought to set aside the sales upon the ground that the third defendant was an executor of the will and as such disentitled to purchase at the auction. There were also claims against the proving executors for an account on the footing of willful default but that was abandoned at the Bar and I need say no more about it. The learned judge rejected the plaintiff's main claim, holding that the conditions of sale were correct and that the tenancies alleged did exist, but he acceded to the plaintiff's alternative claim and made a very complicated order conditionally setting aside the sale, the condition being that if the reserve price on the resale to be calculated as a result of enquiries embodied in the order exceeded the former price, the sales should be set aside and otherwise they should stand. This is no doubt the right form of order where a resale is ordered, because the purchaser is disqualified as being a trustee. He is held to his bargain if the new reserve price be not reached, but loses it if it be exceeded. The learned judge also held that the third defendant was not entitled to bid at the new auction.


The facts are fully stated in the judgment of the learned judge below and I need not repeat them except in outline. Thetestator owned two farms in Gloucester, one called Lower Farm, where he lived with his wife and daughter, the first and second defendants, and his younger son the third defendant, and the other known as Glebe Farm, where the plaintiff has lived since 1952 rent-free as licensee of the farmhouse thereon; he has been ordered by the judge to give up possession to the third defendant on that footing.


In 1952, as was admitted at the Bar though denied in the pleadings, an oral agricultural tenancy was created by the testator in favour of the third defendant and one Henley, who had married one of his eight sisters, at a rent of £250 a year, of a part of Lower Farm extending to 153 acres out of 259. There was no written document connected with the transaction. This left the testator farming the remaining 106 acres of Lower Farm and the 157 acres comprising Glebe Farm. In this he was helped by the third defendant, who lived with his parents both before and after his marriage in 1953 at Lower Farm. The third defendant also began about the same time to deal in stock on his own account and he kept them with his father's consent on one or other of the farms. By 1955 he owned half the stock on the farms, and by 1957, when he bought 200 ewes of the testator, the whole of it. By this time the testator was ill and minded to give up farming and he had a conversation with his son in which he said he could let the farms at £2 an acre. The third defendant expressed his willingness to take them over at that rent and to this proposal the testator assented and thenceforth the third defendant was in control of both farms, so far as not let to him and Henley, at a rent of £504 per annum. It appears that in April, 1957, the third defendant felt that he owed something to the testator for the keep of his stock and he paid him £250 but disclaimed any idea that this was intended to create a tenancy. In October, 1958, the third defendant paid the testator a cheque for £700, of which, according to the testator's statement to his widow, Mrs. Holder, £500 represented rent from Michaelmas, 1957.


The testator died on the 7th August, 1959, having by a willmade in 1950 appointed the defendants to be executors and creating a trust for sale with an equal division of the proceeds among his ten children. He was the owner besides The two farms of some £4,000 on deposit at the hank and some personal chattels. The widow instructed solicitors on behalf of the executors and the solicitors caused an executors' account to be opened on which during the period between October, 1959, and August, 1960, the third defendant joined in signing nine cheques in payment of the testator's debts. The third defendant also signed some documents sent him by an insurance company endorsing over policies on the house and farm machinery.


The plaintiff took legal advice in August, 1959, and preferred a number of claims of no substance against the executors, as for instance that he was a partner and that he had wages owing to him. The third defendant continued to live in the house at Lower Farm and carried on the two farms. As might have been expected, the members of the family could not agree on the disposal of the testator's farms, and there were various abortive meetings in 1960 in an attempt to arrive at a settlement. At one such meeting in April, 1960, when it became obvious that the third defendant desired to buy the farms and that the plaintiff objected, the third defendant was advised to seek separate advice and in August, 1960, he did instruct solicitors on his own behalf. They appear to have advised him at once that if he wished to buy the properties he must renounce the executorships and this he did by an instrument made in August, 1960, which recited that he had not intermeddled with the estate. A person in that position is not debarred from purchasing the trust property: see Clark v. Clark (9 Appeal Cases 733). In September, 1960, he offered £30,000 for the farms, but the family thought this not enough. Probate was granted to the first and second defendants in November, 1960, on the footing that the third defendant had renounced. Mrs. Holder then instructed the valuer, Mr. Hone, who had already valued for probate at her request, to revise his valuation with a view to fixing reserves for an auction of theproperties. The probate values, which of course relate to August, 1959, were agreed with the District Valuer at £14,000 for Lower Farm and £.8,000 for Glebe Farm. The reserves fixed for the purposes of the auction were £17,000 for Lower Farm and £14,000 for Glebe Farm. These reserves were fixed upon the footing that agricultural tenancies existed first in favour of the third defendant and his brother-in-law and secondly of the third defendant himself. He attempt had been made to raise the rents since the testator's death and they were admittedly too low, but any purchaser could increase them as from Michaelmas, 1962, and the reserves took that fact into account.


The auction was held in July, 1961, and was attended by all the members of the family in England and some outsiders. The plaintiff through his solicitor objected that the sale should be with vacant possession except for a tenancy in his favour of Glebe Farm house, but the executors' solicitor refused to accede to this. The plaintiff raised no further objection. The third defendant bid through his solicitor and purchased the properties at an aggregate price of £32,500. This, as the judge found, was a good price if the alleged agricultural tenancies did in fact exist, but considerably less than a full price if vacant possession could be given.


The judge held that the agricultural tenancies in question did exist and that the conditions of sale were rightly drawn, and it is against that decision that the plaintiff appeals.


This is an issue of fact. The learned judge decided it in favour of the third defendant on what he called the absence of evidence that there were no such tenancies. He said this: "What I have to consider is whether, in the absence of any positive evidence that they did not intend to create legal rights, there are any circumstances in the case which would, or might, prevent the law from drawing the inference that a legally binding relationship was created. After all, if one man allows another to occupy his land in return for an annual payment the inference, in the absence of evidence to the contrary, must be that he isgranting a tenancy or a contractual licence".


I pause to say that a contractual licence is enough having regard to the Agricultural Holdings Act to create an agricultural yearly tenancy.


I agree with the learned judge on his conclusion but I should...

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