Hyde v Pearce
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE TEMPLEMAN,LORD JUSTICE ACKNER |
| Judgment Date | 18 November 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J1118-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 81/0529 |
| Date | 18 November 1981 |
[1981] EWCA Civ J1118-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
Royal Courts of Justice
Lord Justice Cumming-Bruce
Lord Justice Templeman
Lord Justice Ackner
81/0529
MR. D. H. FLETCHER (instructed by Messrs. Rooks Rider & Company, London Agents for Messrs. Bobberts, Harvey & Grove, Bristol) appeared on behalf of the Appellant.
MR. C. J. BONNEY (instructed by Messrs. M. H. Greet & Company, Clifton, Bristol) appeared on behalf of the Respondent.
Lord Justice Templeman will deliver the first judgment in this matter.
This is an appeal against a judgment of His Honour Judge Fallon, Q.C., sitting as a judge of the High Court at Bristol on 15th February 1980. It is an odd little case which has been well argued on both sides and is not directly covered by authority.
The plaintiff, Mr. Hyde, claims that he acquired title to 138 Clouds Hill Road, St. George, Bristol by adverse possession under the Limitation Act 1939.
Section 4 (3) provides;
"No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person".
It is submitted on his behalf that the right of action accrued in the circumstances I shall shortly narrate as early as 1958. But the Act does not end there. Section 10 provides:
"No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as 'adverse possession')".
It is one of the issues in this case whether or not in the events which happened the possession by Mr. Hyde of the disputed property was adverse possession. He was undoubtedly in occupation of the property for up to 14 years but it is in dispute as to whether he was in adverse possession.
The difficulty begins with contracts dated 12th March 1958, following a successful bid by Mr. Hyde at auction, and he thereby agreed to purchase 138 Clouds Hill Road and a little piece of adjoining land for prices in the aggregate £255. By the contracts completion was to take place, ironically as it turned out, on 14th April 1958, and Mr. Hyde paid the usual deposit. The sale was expressed to be subject to the Law Society's Conditions of Sale 1953 and Condition 6 makes provision for what is to happen if, as happens sometimes and usually fatally, the purchaser is allowed into possession pending completion. Condition 6 provides:
"6 (1) Where the purchaser is authorised…to take physical possession of the property before the actual completion of the purchase, then (save as otherwise agreed) the following provisions shall apply:—
(a) (i) The purchaser shall occupy the property as a licensee of the vendor and not as a tenant."
Then there are various other provisions about outgoings and income and so on and there is a provision at (1) (c):
"The purchaser shall, from the date of taking possession…and until the time of actual completion, or until the vendor resumes possession by reason of the rescission of the contract—
(i) keep the property in as good a state of repair and condition as it was in at the time of taking possession".
Then, and most materially, subclause (d) provides:
"If the contract is rescinded or becomes void the purchaser shall—
(i) forthwith deliver up possession of the property to the vendor in as good a state of repair and condition as aforesaid".
In my judgment, the effect of that condition—which, I should add, has been amended and altered materially by subsequent editions—in the 1953 Law Society's Conditions of Sale seem to me to be that the vendor was not bound to let a purchaser into possession but, if he let him in without more ado, then the purchaser was entitled to stay there on the terms set out in that condition until the contract was rescinded or became void. Then the purchaser would be under a duty to deliver up possession of the property to the vendor; but it was not within the power of the vendor arbitrarily, having let the purchaser in under that condition, to say, "Out you go; I have changed my mind and you must go although the contract still subsists". But that condition itself provides that it is "save as otherwise agreed" and the vendor, not being under any obligation to let a purchaser into possession, can, of course, bargain and say, "I will only let you into possession if we vary the terms of condition 6" and he can say that expressly or by implication.
In the present case it appears from the evidence that Mr. Hyde took the law into his own hands and went into occupation of the property without letting the vendor know. So, on 14th March 1958, the auctioneers, who had concluded the sale, Victor Osmond & Co., wrote a letter to Mr. Hyde:
"re: 138 Clouds Hill Road, St. George .
We have received instructions to accept your offer of £5 for the contents of the above. If you will kindly let us have your cheque for this amount we can arrange to loan you the key on your undertaking to return sane any time before completion, upon demand."
Not content with that, they obtained from Mr. Hyde his signature to a document dated 17th March 1958, whereby he acknowledged receipt from the auctioneers of a bunch of keys relating to 138 Clouds Hill Road, St. George,
"which I undertake to return to you on demand".
For some obscure reason even that was not sufficient because, in a letter dated 19th March 1958 addressed by the auctioneers to a neighbour, a Mrs. Hall of 134 Clouds Hill Road, they said:
"re: 138 Clouds Hill Road.
"Will you kindly allow the bearer Mr. Hyde to borrow the key in your possession, and he will return the key to us within a few days."
Underneath that Mr. Hyde wrote:
"This I will do at your request".
The combination of those three letters, in my judgment, is that Condition 6 was varied, not struck out, so far as was necessary to introduce a term whereby Mr. Hyde's occupation was determinable on demand and that, unlike a vendor under Condition 6 in its unmodified form, these vendors could obtain possession on demand whether or not the contract was going to be completed and whether or not it was still subsisting.
Well, that set the stage for what appeared to be a rather small and not difficult conveyancing project, and the conveyancing machinery ground on in its inevitable way past the optimistic completion date 14th May 1958 and then, to the vendors' horror no doubt, on 19th May 1958 the vendors, who were the personal representatives of one Milsom deceased, found that they had fallen into a well recognised trap. They had inadvertently conveyed away to Mr. Flook a small piece of the land, only 60 square feet it is said, which they had later contracted to sell to Mr. Hyde and, of course, they could not do it. They had conveyed it away to Mr. Flook.
On making that discovery, they told Mr. Hyde's solicitors and they offered, on advice from the auctioneers, to abate the purchase price by £10 out of the £255, that being the value the auctioneers attached to the 60 square feet. Mr. Hyde, as he was entitled to do, said that was not enough and he asked for a larger abatement. There was a row between Mr. Flook and Mr. Hyde; Mr. Flook claiming the property and a shed which belonged to it and Mr. Hyde, on the strength of his contract plan, claimed that he was entitled to it and there were words between them. The vendors then made it clear that, in their view, this disputed piece of land belonged to Mr. Flook as a result of the conveyance and at the end of their letter on 19th May they said:
"In view of the situation concerning your first query, we herewith give you notice that we desire the keys of 138 Clouds Hill Road to be returned to us immediately. When Mr. Hyde received the keys, from our Agents, he signed an undertaking whereby he would return the keys if demanded."
So the vendors were exercising the rights which they had obtained for themselves when they gave him the key, namely, of turning Mr. Hyde out of possession or requiring him to deliver up possession, although the contract was still to march on.
Mr. Hyde's solicitors passed on his request for the key to him, and about the land and the abatement. The vendors' solicitors kept pressing Mr. Hyde's solicitors for the return of the keys and Mr. Hyde's solicitors kept pressing Mr. Hyde, but he took no notice as regards giving up possession and simply stayed on. By 2nd July 1958 Mr. Hyde's solicitors were exasperated with their own client over a matter which, so far as they were concerned, was a very small matter and so they wrote and said that, as he would not accept the reduction of £10 and had not returned the keys so that they could hand them over to the vendors' solicitors, they were not prepared to act for him any longer.
Thereupon, the vendors' solicitors had to take up the tale directly with Mr. Hyde and on 17th July 1958 they wrote directly to him, saying that they had been informed that his solicitors were no longer acting for him and that, if he had other solicitors, would he let them know, and they continued:
"In the middle of May you were instructed by your Solicitors to return the keys of 138 Clouds Hill Road and so far these instructions have not been obeyed. When you were first handed the keys by our agents, Messrs. Victor Osmond & Co., you signed an undertaking that you would return them on demand. In the...
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...itself through the instrumentality of the contract with the State. To protect itself against this, the State, could, like the vendor in Hyde v. Pearce [1982] 1 W.L.R. 560, have inserted a term in the contract that the appellant was to be the State's licensee until payment of the full purcha......
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