Hussey v Palmer

JurisdictionEngland & Wales
Judgment Date22 June 1972
Judgment citation (vLex)[1972] EWCA Civ J0622-2
CourtCourt of Appeal (Civil Division)
Date22 June 1972
Ms. Emily Hussey
Plaintiff Appellant
P. Palmer (male)
Defendant Respondent

[1972] EWCA Civ J0622-2


The Master of the Rolls (Lord Denning)

Lord Justice Phillimore and

Lord Justice Cairns

In The Supreme Court of Judicature

Court of Appeal

Appeal by plaintiff from judgment of His Honour Judge Duveen on 4th August, 1971, at Reading County Court.

Mr. ROBERT OWEN (instructed by Messrs. Field Fisher & Co., agents for Messrs. Brain and Brain of Reading) appeared on behalf of the Appellant Plaintiff.

Mr. A. ALLMAN (instructed by Messrs. Blandy and Blandy of Reading) appeared on behalf of the Respondent Defendant.


This case is of very considerable interest. Mrs. Emily Hussey is getting on in years. She is well over 70 and an old age penioner. In 1967 she had a little house which was in a very dilapidated condition. It was condemned. She sold it for the sum of £1,100. She had a daughter who was married to a Mr. Palmer. Mr. and Mrs. Palmer had two children, and lived at No. 9 Stanley Road, Wokingham. It belonged to Mr. Palmer. When the mother sold her little house, the young couple invited her to go and live with them. That often happens. But there was not much room for them all. So they built on a bedroom as an extension for the old laoy. She paid for it. She paid £607 for it in June and September, 1967. She paid it direct to the builder, Mr. May. Nobody said anything about repayment. No doubt they all thought that the old lady would go and live there, using the bedroom, for the rest of her days. For a few months all went well. The old lady used to make payments to the daughter if she was short of money. But then differences arose. I am afraid that mothers and daughters do not always get on when they are living in the same house. After about fifteen months they could not live in harmony any more in the house. So in March 1968, Mrs. Hussey went and lived elsewhere, leaving the Palmers there in their house. After a year or so, Mrs. Hussey wrote to her son-in-law and svid she was very hard up. She asked if he could manage £ 1 or 30/- a week to help her out. He did not do it. He did not even reply. So she asked for the money back, the £607 which she had paid for the extension. They did not pay. She got legal aid.


In April 1970, she took out a default summons in the County Court against Mr. Palmer. She claimed £607 for money lent. Mr. Palmer wrote a Defence in his own hand. He said: "The payments, made to a builder, were not a loan, but were paid by the plaintiff for her own benefit and at the time the question of repayment was not raised. I assumed that the payments were in effect a gift".


Later on, Mr. Palmer got legal aid too, and, with the help of legal advisers, he put in an amended defence in which he denied liability. He said that "the moneys were only to be repaid in the event of the defendants' house, 9 Stanley Road, Wokingham, being sold within a short period of building works having been completed by the said Mr. May. The said building works were mainly in respect of an extension to the said house, which extension was for occupation by the plaintiff". He also said that "the said agreement was merely a family arrangement and was not intended to have legal consequences".


On 10th February 1971, the case came before the County Court. The Judge was fully occupied with another case. So it went before the Registrar by consent. The Registrar heard the evidence of Mrs. Hussey, and also Mr. Palmer. He intimated a strong view that this was not a loan at all: but that it was a family arrangement. Mrs. Hussey's advisers were so impressed that they submitted to a non-suit, and started a fresh action. This time they issued a plaint claming £607 on a resulting trust. They said that, as she had contributed this £607 towards the extension of the building, at all events Mr. Palmer held the house on trust to repay it at some time or other to her: and that she would have an interest in the house to that extent in proportion to the amount she had contributed.


In July 1971, the fresh action came on for hearing before the County Court Judge himself. Mrs. Hussey went into the witness box and gave her story again. She said of Mr. Pal men "He said he would build a bedroom for me. He asked me if I would lend him the money, I agreed to lend it to him". In -examination she said: "They would give me a home for life, if I wanted it".


The defendant, Mr. Palmer, elected to call no evidence. The Judge felt that, on Mrs. Hussey's own evidence, there was a loan, and not a resulting trust. After some discussion, Mrs. Hussey's counsel soughtleave to amend the claim by adding an alternative claim for money lent. The defendant opposed the amendment. So the Judge did not grant it. He made a note, sayings "The plaintiff's advisers decided to drop the claim for loan before the Registrar and have in this action elected not to claim on a loan". So the claim remained on a resulting trust only.


On 4th April 1971, the Judge decided in favour of the defendant. He said in his note for this Court: "I thought that the plaintiff was an honest witness, and at the end of her evidence I was satisfied that I ought to find that the money had been lent by the plaintiff and that there was no case for a resulting trust I reserved judgment to see if I could find for the plaintiff on the case pleaded. I could not".


So Mrs. Hussey went away a second time taking nothing. Now she appeals to this Court.


Mr. Owen, on her behalf, rests her case on a resulting trust. He says that, despite Mrs. Hussey's own evidence, there was no loan. I agree that Mrs. Hussey did not lend the £607 to Mr. Palmer. Test it this way: Suppose that, a week or two later, Mrs. Hussey had demanded from Mr. Palmer repayment of the £607, and he had refused, Could she recover it as money lent and have the house sold up to regain it? Clearly not. The Courts would undoubtedly have said - as the Registrar said here - that it was a family arrangement. There was no intention that it should be repaid on demand. Again, if she had stayed on in the house, making use of the bedroom, could she have sued Mr. Palmer for money lent? Clearly not. There was no intention that it should be repaid whilst she had the benefit of the bedroom Suppose that she had stayed there until she died, could her executors have sued Mr. Palmer for money lent? Clearly not. There was no intention that it should be repaid after her death.


If there was no loan, was there a resulting trust? and, if so, what were the terms of the trust?


Although the plaintiff alleged that there was resulting trust,I should have thought that the trust in this case, if there was one, was more in the nature of a constructive trusts but this is more a matter of words than anything else. The two run together. By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded upon large principles of equity, to be applied in oases where the defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or a share in it. The trust may arise at the outset when the property is acquired, or later on, as the circumstances may require. It is an equitable remedy by which the Court can enable an aggrieved party to obtain restitution. It is comparable to the legal remedy of money had and received which, as Lord Mansfield said, is very beneficial and, therefore, much encouraged. Thus we have repeatedly held that, when...

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