Ivin v Blake (Property: Beneficial Interest)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE HIRST |
| Judgment Date | 25 May 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0525-4 |
| Docket Number | 1992/1170/E |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 1993 |
[1993] EWCA Civ J0525-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM: MAYOR's & CITY OF LONDON COUNTY COURT
(His Honour Judge J. Blackett-Ord)
Before: Lord Justice Glidewell and Lord Justice Hirst
1992/1170/E
MR. G.R. ARGLES (instructed by Messrs. Birrell Turner & Co. 303 Muswell Hill Broadway, Muswell Hill, London N10) appeared on behalf of the Appellant.
MR. M. LIVING (instructed by Wallace Bogan & Co., 238 Commercial Road, London E1) appeared on behalf of the Respondent.
This appeal arises out of an unhappy dispute between brother and sister abut the ownership of a house in which their mother lived until her death The Appellant, the Plaintiff in the action, Mrs. Ivin (Dorothy), is the eldest of the three children of
Mr. Thomas and Mrs. Annie Blake. The Respondent, the Defendant in this action, is also named Thomas (Tom). He was the only son of his parents. There is another sister, Mrs. Courtney (Elsie).
Mr. and Mrs. Blake senior ran a series of public houses in north and east London during the Second World War, and afterwards. They were tenants of Watneys Brewery, and clearly well-respected. They were bombed out of the 'Builders Arms' near Kings Cross in 1944 and moved to the 'Dublin Castle' in Camden Town. Elsie was married in 1947 whilst they were there. They then moved again to the 'Gloucester Arms' which, as the judge said:
"…is where the story really begins."
Tom was in the Army during the Second World War. He was taken prisoner at Arnhem. On his return to England in the early summer of 1945, and his demobilisation, he went to live with his parents at the 'Gloucester Arms' where Dorothy also lived. Both of them had full-time jobs, Dorothy as a book-keeper and typist, Tom as a sales manager for a tool company. However, both also worked in the public house at evenings and weekends. Dorothy worked behind the bar and kept, or helped, with the accounts. Tom also sometimes worked behind the bar and helped his father in the cellar. They both paid #3 each per week for their keep.
Quoting from the judge's judgment:
"That was the situation in March 1953 when
Mr. Blake senior died suddenly. He had not been well for a little time, but his death was unexpected and he left his affairs in some disorder. He had two bank accounts; a deposit account with nothing in it, and a current account overdrawn #1,000. He had deposited #1,000 with Watneys, but some #600 of that had gone to meet liabilities, so only #400 was left. He also had other debts, including—according to Dorothy—#300 to his book-maker, which I think was not paid, but perhaps gives an indication of where some of the other money may have gone."
The judge found:
"Mrs. Blake senior, in 1953, was only in her early fifties and fully active and fully experienced as the landlady of a public house."
She, Dorothy and Tom, agreed that for the time being she should continue to carry on the public house business, and try to restore its fortunes. However, it was not possible for her to do this on her own. Dorothy disliked working in the public house, and she tried to persuade her brother Tom to give up his job and, in effect, step into his father's shoes. He refused to do so. Accordingly, no doubt reluctantly, Dorothy gave up her job and worked full-time in the public house with her mother.
There was an issue before the judge as to the respective roles of Mrs. Annie Blake and her daughter, Dorothy, in the running of the 'Gloucester Arms' while they remained there. I will return to this later. Tom continued in his full-time job and also continued to do some part-time work in the public house. It was his evidence that he continued to do all the work in the cellar, though it seems that he probably helped behind the bar less than he had previously done because by this time he was courting a young lady, Muriel, whom he subsequently married. For this reason he was away from the 'Gloucester Arms' during part of most weekends. He continued to pay a weekly sum to his mother for his keep. Dorothy ceased to do so, and drew #2 a week as pocket-money out of the takings of the public house. This was her sole payment for the next 12 months or so. Other friends and relations of Mrs. Annie Blake joined in the effort to improve the takings of the 'Gloucester Arms', and the joint enterprise was so successful that after about a year the debts had been paid off and there were sufficient funds in Mrs. Blake's bank account (which was also, as I understand it, the business account) to enable her to contemplate buying a house. Apart from the public house business Mrs. Blake's only assets were #500 worth of shares in Butlins, and a small holiday cottage, which was described during the hearing as a shack.
At some stage during the year following the death of her husband, Mrs. Annie Blake, Dorothy and Tom decided that they would leave the 'Gloucester Arms' and that a house should be purchased for Mrs. Blake large enough for all three of them, at least initially, and also to enable Mrs. Blake to take in lodgers to provide her with an income. In order to do this it was necessary to obtain a loan on mortgage. Mrs. Blake herself was unable to obtain such a loan, partly because of her age and partly, no doubt, because she was going to have no assured source of income. For this reason all the three members of the family concerned in this transaction agreed that the house should be purchased in the name of Mr. Thomas Blake, and that he should be the mortgagor. Accordingly, the house—the subject of the dispute—2 Durham Road, East Finchley, London N2, was purchased in, or about, April, 1954, just over a year after the death of Mr. Blake senior. The legal title to the property was acquired by, and the mortgage effected by, Mr. Thomas Blake. The purchase price was #2,225, of which #1,600 was borrowed on mortgage from the Eastern Counties' Building Society. The original deposit on the purchase of the house, and the balance of the purchase price—a total of #625—plus the inevitable fees and expenses were paid ostensibly by Thomas, but in fact by means of cheques drawn on
Mrs. Annie Blake's bank account. Moreover, the instalments in repayment of the mortgage loan and of interest on that loan were paid by Banker's Order on
Mrs. Blake's bank account. After some years Mrs. Blake sold the Butlin shares and reduced the mortgage debt by #500, and a few years after that she made a further capital payment of #300 to reduce the mortgage debt. All the payments towards the repayment of the mortgage loan and of interest were made by Mrs. Annie Blake out of her bank account until the mortgage was eventually redeemed.
In August 1954 the family left the 'Gloucester Arms'. At that stage Mrs. Blake and her two children moved into 2 Durham Road and Mrs. Blake started to take in lodgers. Tom continued to pay #3 a week for his keep and as soon as she could, in the autumn of 1954, Dorothy again obtained a full-time job and also then paid her mother #3 a week. In June 1956 Tom married Muriel, left 2 Durham Road, and ceased to contribute. Dorothy continued to live with her mother. In 1960 she married Mr. Jack Ivin, who gave up his flat and moved into 2 Durham Road to live with his new wife there. They remained there until after the hearing of this action.
Mr. Thomas Blake's marriage broke up in about 1979, and he returned to live at 2 Durham Road with his mother, his sister and his brother-in-law. Unfortunately, by this time Mr. and Mrs. Ivin were not living in harmony with Mrs. Blake. Indeed, the relationship between them was clearly on occasions acrimonious.
Mrs. Annie Blake died in June 1985, leaving a Will in which Mr. Thomas Blake was appointed her executor. Shortly afterwards, he gave notice to quit to Mr. and Mrs. Ivin. They did not leave the house, and in due course Mrs. Ivin began this action by writ issued on 18th September 1986. By her amended Statement of Claim she alleged that the Defendant, Mr. Thomas Blake, held the property, 2 Durham Road, as a constructive trustee either:
"(a) as bare trustee for the Plaintiff, or
(b) as a trustee for sale to the intent that the net proceeds of sale and the net rents and profits until sale shall be held upon trust for the Plaintiff and the Defendant as executor of Mrs. Blake as tenants in common, or
(c) as a trustee for sale to the intent that the said proceeds of sale and the net rents and profits until sale shall be held upon trust for the Plaintiff, for the Defendant as the executor of Mrs. Blake and for the Defendant as a beneficial owner as tenants in common."
By his Defence, Mr. Thomas Blake denied that he held the property on trust, or that any other person held any beneficial interest in it. By his counterclaim he sought a declaration that:
"He is the sole legal and beneficial owner of the freehold property known as 2 Durham Road, London N2."
The action was transferred to the Mayor's and City of London Court. After a three day trial His Honour James Blackett-Ord, in a judgment given on 18th November 1991, found in favour of Mr. Thomas Blake, the Defendant, both on the Plaintiff's claim and on his counterclaim. He granted a declaration that Mr. Thomas Blake:
"is the sole legal and beneficial owner of the freehold property known as and situate at 2 Durham Road, London N2."
and ordered the Plaintiff and her husband, Mr. Ivin, to give up possession of the house within six months.
Mrs. Ivin now appeals against this judgment. She and Mr. Ivin have given up possession...
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