Koppel v Koppel
|England & Wales
|LORD JUSTICE HARMAN,LORD JUSTICE DIPLOCK,LORD JUSTICE WINN
|14 March 1966
|Judgment citation (vLex)
| EWCA Civ J0314-1
|14 March 1966
|Court of Appeal
 EWCA Civ J0314-1
In The Supreme Court of Judicature
Court of Appeal
From Mr Registrar Compton-Miller
Lord Justice Harman
Lord Justice Diplock and
Lord Justice Winn
MR MATHEW THORPE (instructed by Messrs Jay Benning & Co.) appeared as Counsel for the Appellant-Intervener/Claimant.
MR ANTHONY TIBBER (instructed by Messrs Rowley, Ashworth & Co.) appeared as Counsel for the Respondent-Wife.
In this case in March 1961 the husband started proceedings for a divorce against his wife on the ground of cruelty. She was then still living in the house. In June of that year things between them were very bad and there was one, or it may be two, young children whom the petitioner thought to be in need of someone to look after them. According to Mrs Wide, the intervener-claimant in the case, he telephoned to her in June of that year and asked her to come over to his house, 31 Broadfields, East Molesey, in order to look after the children. She agreed to do so and she did. There she stayed until about September looking after his children.
In September of that year the husband's mother, who is a German national living in Germany, came over to see her son; and at that point Airs Wide decided to go back to her own house. She had a flat of her own which was completely furnished and had a daughter of her own, not then living there but whom she was expecting to come back shortly. She in September went back to her flat in order to look after her belongings. The petitioner and his mother could not apparently find anybody to take her place and they urged her, by all the means in their power, to come back and look after the house and the children. Thereafter some telephoning went on and Mrs Wide agreed to come back. But she did not do so unconditionally. She made a bargain with him, which was that if she sold up so much of her own belongings as he could not accommodate in his house, he would make over the contents of his house, or such part as belonged to him, to her. Those were the terms on which she agreed to go back. She has been there ever since. There have been proceedings between the husband, the petitioner, and his wife, the respondent, as the result of which, after long delay, in April 1964 a divorce was pronounced in favour of the wife, Mrs Wide having been made intervener in the suit. That divorce has been made absolute and an order for maintenance was made in January 1965 with which the petitioner has not complied.
In September 1965 the respondent, the former wife, issued a writ of fieri facias for the sum of £114 arrears. The sheriff took what is called walking possession of the contents of the house: Mrs Wide came into the matter to make a claim, and the sheriff took out interpleader proceedings. It is the appeal from the Registrar on those interpleader proceedings with which this Court is concerned.
The matter came before Mr Registrar Compton-Miller. Before him primarily the question was whether a certain document which was signed by the husband was a genuine document made on the date it purports to bear or whether it had been manufactured for the purpose of defeating the wife's claim. That document is on printed writing paper headed "Ernest Koppel, 31 Broadfields, East Molesey", and in type you find the word "Agreement". It is in these terms: "This is to state that on this date, I transfer the entire contents of this house, 31, Broadfields, to Mrs Anne Vera Wide. This is to compensate her, as agreed, for giving up her own and daughter's home and for disposing of her furniture, her washing-machine, her refrigerator, her carpets and other household goods, in order to look after my children permanently. Ernest Franz Koppel".
The learned Registrar having seen hr Koppel and his mother (and I take it the wife also although she would not know anything about it) in the witness box, was impressed with the truth of their testimony and concluded that this document was not a sham and it did come into existence at the time and for the purpose which is indicated. Re then took the point which had not been taken earlier that it may be the document was a bill of sale and therefore was hit by the Bills of Sale Act, 1878. As to that the learned Registrar concluded (and I think quite rightly concluded) that this was a bill of sale. He further concluded that if that was the case, it was an end of the matter and the transaction was void and did not protect the goods against the execution creditor because they remained thegoods of the grantor of the bill. It is in that state of things that the case comes before us to-day.
In fact the point which the learned Registrar had reached was not the end of the case at all, and the real point, as I see it, is this. Admitting that this document is a bill of sale, does it pass the test nevertheless of Section 8 of the Act (which I will come to in a moment) because if the goods were not in the possession of the grantor of the bill at the time the claim was made, the Bills of Sale Act does not invalidate the transaction and they remain the goods of the grantee.
For that purpose one must look at the Bills of Sale Act 1878. It starts with a definition section, 4, under which the expression "bill of sale" is said to include "receipts for purchase moneys of goods, and other assurances of personal chattels…and also any agreement, whether intended or not to be followed by the execution of any other instrument, by which aright in equity to any personal chattels shall be conferred". I do not think it very much matters which of those particular words are the ones which eaten it in this case because I think they do catch it, for this reason. It has been held that a receipt does not come within the definition provided it is not a part of the transaction. If it is merely meant-to be evidence of the making of the agreement, then the fact that it is a receipt for the purchase of goods does not make it hit by the section. When you look at the words here (this being a written document, you can only go by what is written) I cannot but think that this document, made at the insistence of Mrs Wide herself who desired the protection of the document to ensure her future and that of her daughter, is an essential part of the transaction and is in fact what it purports to be - a transfer of the entire contents of the house. In this case it is a bill of sale and comes within the section.
The section in question is No. 8, which says: "Every bill of sale to which this Act applies shall be duly attestedand shall be registered under this Act", and so on. Then there is a good deal about the form in which it ought to be. Then after a very long and rather confusing paragraph it says that if you do not register it, the bill "shall be deemed fraudulent and void so far as regards the property in or right to the possession of any chattels comprised in such bill of sale which, at or after the time of filing the petition…, or of executing such process"— and here it is execution and not process – "are in the possession or apparent possession of the person making such bill of sale".
Now what is said here (and this is the crux of the case) is that this furniture, which is comprised in the bill of sale, remains in the possession or the apparent possession of the grantor, namely, Mr I will not say judicial manoeuvring, but judicial exegesis, and the first case one must mention is , , a very well known case, in which a wife, who had separate property, agreed to buy furniture belonging to her husband which was in the house where they lived together and she took a receipt. It was held first of all that the receipt did not form part of the transaction passing the property but the property had passed to her by the prior and independent bargain and consequently the receipt did not require registration. It was also held that the wife had a sufficient possession of the goods to take the case out of the Act. That is to say, that though he and she continued to live in the house and to enjoy as husband and wife the furniture there, that furniture after this transaction was neither in his possession, nor in his apparent possession, because as between husband and wife there is no saying nowadays, since the Married Women's Property Act, who is the owner of any furniture in the house, and the fact that it is in the matrimonial home and is being enjoyed by the husband and wife as such, is no evidence that itbelongs either to the husband or to the wife. So that you must look at the person to whom title to the property has gone. In that case it had gone to the wife and therefore it was in her possession and also in her apparent possession and the Bills of Sale Act did not nullify the transaction.
Lord Esher, after remarking that the case could not have arisen before the Married Women's Property Act, said this: "So in this case the money which the plaintiff had was her money, and the furniture was her husband's, and she had the right to buy with her money whatever she chose. When she bought these goods from her husband and paid him the price, they became her separate property. The goods were in the house in which the husband and the wife were living together, and in that state of things you could not say which of them had the actual possession of the goods. What is the rule of law as to possession in such a case? When the possession is doubtful it is attached by law to the titles Therefore, under such circumstances, the law considers the goods to be in the possession of the wife, who has the legal title to them".
Lord Justice Lopes agrees and for much the same reasons. He purports to follow an earlier case of ... That shows that where it is a case as between husband
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