Lloyds Bank Ltd v Jones
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE JENKINS,LORD JUSTICE MORRIS |
| Judgment Date | 02 May 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0502-1 |
| Court | Court of Appeal |
| Date | 02 May 1955 |
[1955] EWCA Civ J0502-1
Lord Justice Singleton,
Lord Justice Jenkins and
Lord Justice Morris.
In The Supreme Court of Judicature
Court of Appeal
Counsel for the Appellants: MR K. instructed by Messrs Templin Joseph & Flux, Agents for Messrs Sprott, Stokes a Purnbull, shrowsbury.
Council for the Respondent: MR H ALBERY, Q.C. and MR. D. DRAYCOTT instructed by Messrs Kenneth Brown, Baker, Baker, Agents for Messrs C. H. Morgen & Sons, Ludlow, Shropshire.
This is an appeal from a of his Honour Judge Rowe Harding given at the Ludlow County Court on the 17th March,1953.
The case before him arose out of an arbitration under the Agricultural Holdings Act,1948. At the request of the parties to the Arbitrationt the Arbitration stated a case for the opinion of the County Court Judge. The case is in somewhat unusal from in that no facts are found. The Arbitrator set out the submissions made on behalf of each part, which embraced a number of points of law. He added: "I have been requested by the parties concerned to submit a case to this Honourable Court for its decision on the preliminary points raised."
In paragraph 5 he said: "I am desirous of stating for the opinion of the Court the following question:-Whether a person who as Trustee under a willbecomes as such entitled to the interest under the Tenancy Agreement of the former Tenant of Holdings is bound by the Clauses in the Agreement relating to that Holding and in particular is bound by Clause 15 of the agreement reffered to above, namely personally to inhabit the farmhouse on the farm on the ground that such trustee is the 'Tenant' within the needing of the Tenancy Agreement and the said Act."
At one stage of the argument Mr Albrey, on behalf of the tenant, argued that Paragraph 5 was the only question submitted to the Judge, and that the other questions he dealt with were not before him, except by argument, and that consequently the Judge in answering them was noting as an Arbitrator, and that there could be no appeal upon those questions. It appears to me to be clear that the Arbitrator agreed to state for the opinion of the Court the questions raised by both parties, and that he added one of his own on which he desired guidance. He ought to look upon them all in the same way.
There is this further difficulty. It appears that, in the absence of any statement of facts in the case, the partion agreed certain facts. There is no document in which the agreement as to the facts is contained, though there are references in the judgment to the facts agreed.
The tenancy agreement was made on "the 13th day of October 1893 between H. J. Alleroft of stokesay Court… (who and whose and Assigns are hereaf ter referred to as 'the landlord') of the one part and Edward Bach and Francd's Bach of Oribury in the same County "Jointly and severally either and both of whom (who and whose Executors, Administrators and Assigns, are hereinafter referred to as 'the tenant') of the other part." The wording of that part which I have read is not very happy. The agreement provides:" The Landlord agrees to lot and the Tenant agrees to take All that Dwelling House, with the builidings Cottages and lands and all appurtenance a thereto called Lower Ondbury situate in the Parish of onibury in the County of Salop containing 345 or there abouts…."
By usage 6 the letting is from the 25th March, 1893, for one year, and afterwards form year to year until the Tenancy shall be determined by either party giving to the other six calendar months previous notice in writing to determine the same at the end of the first year or any subsequent year.
Cl ause 15 of the agreement reads: "The Tenant Will not during this Tenancy assign, let, or part with the Possesession of the yarm or any part thereof, but will at all times during his tenancy personally inhabit the farm house on the Farm and Cottages with his Family and servants, and will give written notice to the Landlord of any stook agisted or taken on took previous to the same being placed upon the Farm."
It is upon this clause that the dispute arises. There is Correspondence going back for some years, and the dispute arises upon the efficency or otherwise of a notice which is said to have been given under Section 24, subsection (2) (4), of the Agricultural Holdings Act, 1948.
The Landlord's case before the Aibitrator, having set out the relevant portions of the agreement, continues in Paragraph 4. "In the events which have happened the said Lloyds Bank Limited and Arthur Alleroft are the rotate owners in fee simple of the said Farm, and as such, the Landlords of the premises."
Paragraph 5 reads: "The said Edward Bach died many years age and the said Frank Dewes Bach died on the 2nd day of August having by his Will appointed his wife Minnie may Bach executors and trustees of his will, which was duly proved by them in the Ed Strict Registry. The said Minnie Bach survived the said Harry Bach and died on the 8th day of May 1950, the waid george Bernard Jones having been appointed a trustee of the will of F. D. Bach in 1934." Mr George Bernard Jones is one of the parties to the Arbitration and is the Respondent to this appeal.
Paragraph 6 of the landlord's case is in these terms: "In the events which have happened the said George bernard Jones is, and has been, the sole tenant of the said holding since the date of the death of the said Minnie May Bach, but the premises have been occupied during this period by the daughter and son-in-law of the late Minnie May Bach, namely a MI & Mrs Norworthy, neither of whom has experience of facing."
Then Paragraph 7: "It is admitted by the Tenant that he has not at any time during his tenancy personally inherbited the Farmhouse on the said form." I need not rend the next few paragraphs.
Paragraph 12 reads: "A notice dated the 16th dayof January 1954 requiring Mr Jones to reside on the farm was sent to him on that date."
"13. A Notice to Quit dated the 6th day of March 1954 and expiring on the 25th day of March 1955 was Served on the Tenant on the 19th day of March 1954."
"14. A Counter-notice dated the 30th day of March 1954 requiring the matter to be referred to arhitration was received by the Landlords on the 31st day of March 1954." Then the contentions arc cut out.
The tenant's case states: "1. The Tenant does not admit that he is required by Clause 15 of the said Agreement dated the 25th day of March, 1893, or at all to inhabit the farmhouse in person, and denies that he is in beach of the said clause as alleged or at all.
2. If, which is not admitted, the said clause does require the personal residence of the Tenant In the farm-house, the vied clause is not applicable to a person she holds the said tenancy In a representative capacity, namely as Trustee. The Tenant denies that he is in breach of the said clause by reason of the fact that the said farmhouse is occupied by Norothy Mery Norworthy the daughter and a under the will of Frank Dewes bach deceased of which said will thee tenant is Trustee.
4. The term of the Agreement requiring personal residence at the farmhouse has been waived by acceptance of Trustees as Tenants and by acceptance of rent.
5. That If the Tenant was still bound by the said term, which is not admitted, that the length of time givon in the notices to the Tenant was not reasonble.
6. That the tenant undertook the management of the said farm in 1927 previous to him being appointed a trustee in 1934. During his whole of this period the Tenant has lived and is now living at Merrivale, Brimfield. That the landlord and her in title were aware of thisfact and have acquiecced thereto.
"7. That If the Tenant is still bound lay the said term which is not admitted, the to merely technical and does not prejudice the landlord at all. If, however, the Tenants's right to object to tha Notice to quit is excluded, no compensation for disturbance will be recoverable although the said farm has been farmed by the Bach family for over three hundred years."
It is to be observed that the surviving Trustee, Mr Jones, is described throughut this does as the tenant. Indeed, be in the person in whom the rights of the tenant under the tenancy agreement are wasted; he pays the rent, and he is the person responsible for the performance of the covenants.
Mr Albery did not dispute that Mr Jones is the tenant, but he submitted that there should be read into clause 15 the words "provided that the tenant la legally entitled so to do", after the covenant that the tenant shall personally inhabit the formhouse. I cannot see that it is necessary to add such a term to the agreement; nor do I see that it would help. No do not know the facts under which, or the time at which, Mr and Mrs Norworthy went into occupation. They could only do so with the consent of the tenant, Mr Jones, and if he out it out of his power to Inhabit the farmhouse, can the tenant now he heard to say that he is unable to comply with the terms of the covenant? He could have arranged to live on the premises to protect the tenancy, or he could have approached the landlords to make some arrangement agreeable tothem. A short interval could not he regarded as a breach of the covenant. We do know from the letter of the 30th January, 1951, that it is abundantly clear that the landlords were unwilling to accept Mr and Mrs Norworthy as tenants of the farm.
The County Court Judge dealt with the facts sofar as they were agreed, and I take a passage from pages 33 and 34 of the file of documents before the Court. The Judge, denling with the facts, said: "Edward Bach prodeceased Bach at some unspecified date many years ago and Francis Bach died on the 2nd August 1923 having by his will appointed...
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