Jones (A. E.) v Jones (F. W.)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE ROSKILL,LORD JUSTICE LAWTON
Judgment Date28 Oct 1976
Judgment citation (vLex)[1976] EWCA Civ J1028-2
Docket NumberPlaint No. 75 00906

[1976] EWCA Civ J1028-2

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the Lowestoft County Court

(His Honour Deputy Judge Sebag-Montefiore

Before:

The Master of the Rolls

(Lord Denning)

Lord Justice Roskill and

Lord Justice Lawton

Plaint No. 75 00906
Alice Eva Jones
(Plaintiff Respondent)
and
Frederick william jones
Defendant (Appellant)

MR. J.H.G. SUHNUCKS (instructed by Messrs. Lucas & Wyllys, Solicitors, Lowestoft) appeared on behalf of the Plaintiff (Respondent).

MR. J.G. ROSS MARTYN (instructed by Messrs. Mears, Hobbs & Durrant", Solicitors, Lowestoft) appeared on behalf of the Defendant (Appellant).

1

REVISED JUDGMENT

2

THE MASTER OF TEE ROLLS: Old Mr. Jones was a scrap merchant who carried on business at Kingston upon Thames. He had two sons with him as partners in the business. He did reasonably well. Like other such merchants, he conducted all his dealings in pound notes; and his accounts did not reflect the true state of the business. He owned three or four houses in Kingston. He lived in one himself: and each of his two sons lived in one of the houses too. His first wife died: and he married his second wife, Alice, on the 10th April, 1964. He made a will on the 25th October, 1964 soon after marrying her. By this will he gave his new wife his share in the partnership business. He gave his son George the house in which he George was living: and his son Frederick the house in which he Frederick was living. He then gave the remainder of his property whatsoever and whensoever to his new wife Alice. So he made fair provision for his new wife and for his sons.

3

In 1967 or thereabouts there was a compulsory purchase order. The local authority took over his properties. The scrap business was given up. Old Mr. Jones then went up to Blundeston in Suffolk. He bought a house there called St. Albans where he lived with his new wife. He was then concerned about his son Frederick who had been left behind at Kingston. He wanted Frederick with his wife and children to come up to Blundeston. He found a house at Blundeston called "Philmona" which was suitable for them. Frederick and his wife went up to see it. They liked it very much. So the father bought it for £4,000. And Frederick gave up a job which he had in Kingston; and he went with his wife to live in "Philmona" in Blundeston. Frederick made two payments of £500 each to his father, making £1,000 in all towards the cast of "Philmona", but the house was taken in the father's name and remained in his name. The eon believed that the father had given it tohim, And the judge accepted his evidence about it. The judge said: "But there is a ring of truth about the account of the transactions he had with his father, His father did intend a gift of 'Philmona' to him, lock, stock and barrel". The son said that he gave his father the first £500. The learned judge said: "His father did not resist the payment of £500 to him. When (Frederick) said 'What about the money for the property', his father replied 'It's your place', the father also said 'this is because I owe you a lot. Then the son paid the father the second £500: and the father then said of the house, "As far as I am concerned, it's yours".

4

When Frederick or his wife from time to time asked about the property the father said; "I don't know what you are worrying about. Alice knows". The son had always trusted his father and never asked for a receipt.

5

There were two other witnesses who supported the view that the father had said to the son that it was to be the son's house.

6

At all events, on those assurances the son and his wife and family went into the house. They did not pay any rent to the father, but the father said that they must pay the rates, and they did so.

7

Things went on in that way from 1968 until February 1972 when old Mr. Jones died. Thereupon the stepmother, the new Mrs. Jones, claimed that this house "Philmona" was hers. She took out letters of administration with the will annexed and by an assent dated the 18th August, 1972 got the house "Philmona" vested in her. She had also the house "St. Albans" in which she had lived with old Mr. Jones whilst he was alive. And, I believe, other property also, when she had got "Philmona" vested in her name, she said that the son Frederick ought to pay her rent, when he did not pay any rent to her she gave him notice to quit and took proceedings for possessionin the County Court.

8

After hearing the evidence, the County Court Judge found that £1,000 had been given by the son to the father when the house was acquired. As the house cost £4,000 altogether, the learned judge thought that the son in effect contributed £1,000 towards the £4,000. On that account, so far as any equitable interest in the property was concerned, he held that it was to be one-quarter for the son and three-quarters for the father. The learned judge made a declaration accordingly, but he also went on to say that he' was not going to order the son out of possession. He said: "I am not disposed to make an order for possession, because it would be inequitable to do so. I find that the Plaintiff - that is the stepmother - "has a three-quarter share in the value of 'Philmona' and the Defendant" -that is, Frederick - "has a quarter share". He added this: "The proper arrangement would be for the Defendant" - that is, Frederick - to pay some rent". That was the end of the first action which was in 1973. The order was that the stepmother was not entitled to possession, and the Judge declared that she had a 75% equity in the property and Frederick had a 25% interest.

9

After that decision, the stepmother brought another action. In this action she wanted some payment in the nature of rent, which had never been fixed. She said that a fair and reasonable rent for the whole house would be £10 a week, and she wanted three-quarters of it which would be £7.50 a week. She wanted that to be paid, and if it was not paid, she asked that the house should be sold.

10

The judge on this second hearing came to the conclusion that he was bound by the previous case to the three-quarters one-quarter division. He decided that the only thing he could do was to ask the rent officer to fix a fair rent and to orderthe son to pay a rent of 75 per cent of that fair rent and to pay the arrears right back to the time of the assent on the 18th August, 1972. If Frederick did not pay those amounts, then the house was to be sold and Frederick was to vacate.

11

Now there is an appeal to us. It does raise some interesting points. First of all, whatever doubts one might have about the first decision of the judge - whether it was really right to hold that the stepmother had a three-quarter or any beneficial interest, nevertheless we ought not to disturb the decision by the judge at the first hearing. It was not...

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