M.E.P.C. Ltd v Christian-Edwards
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GOFF,LORD JUSTICE STEPHENSON |
| Judgment Date | 09 May 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0509-2 |
| Date | 09 May 1978 |
| Court | Court of Appeal (Civil Division) |
In The Matter of a Contract dated 20th April, 1973, and made between Thomas Guy Christian-Edwards and Others of the one part and MEPC Limited of the other part for the sale of the Freehold Property known as 8, Storey's Gate, London S.W.1.
[1978] EWCA Civ J0509-2
Lord Justice Stephenson
Lord Justice Orr
Lord Justice Goff
In The Supreme Court of Judicature
Court of Appeal
On Appeal from a Decision of Mr. Justice Goulding
MR. GEORGE DILLON, Q.C. and MR. ERIC CHRISTIE (instructed by Messrs. Monro, Pennefather & Co.) appeared on behalf of the Appellants.
MR. RICHARD SCOTT. Q.C. and MR. JONATHAN PARKER (instructed by Messrs. Simmons & Simmons) appeared on behalf of the Respondents.
The Judgment of the Court will be delivered by Lord Justice Goff.
This is an appeal from a judgment of Mr. Justice Goulding given on the 17th May, 1977 on a vendor and purchaser summons. The Appellants were the vendors and were defendants to the summons. The property was some business premises known as 8, Storey's Gate, Westminster, formerly Abbey Buildings, 8, Princes Street. It was sold by auction on 10th April, 1973 at the price of £710,000 to the Respondents, who are a property company. The vendors sold as trustees for sale under the will of William Paul Metchim, who died on the 14th September, 1911, probate being dated 2nd February, 1912.
Apart from one difficulty which gives rise to this case the title is a straightforward one, consisting really simply of the probate, an appointment of new trustees and some leases. The trouble is that it came to light on examination of title that the then trustees had at some time between the death of the testator on 14th December, 1911 and 1st July, 1912, entered into a contract to sell the property to a son of the testator, one Percy Bridgman Metchim, since deceased, at the price of £23,750. Many of the trust papers were lost by enemy action during the war, when the offices of the solicitors and of the managing agents for the trustees suffered war damage, and neither that contract (which we will call the 1912 contract), nor any copy or note of it is known to survive. But the fact that it was made appears from recitals in a deed of Family Arrangement dated 1st July, 1912, and a deed of covenant dated 11th February, 1930.
By the will the son Percy was given an option to purchase, which he did not exercise, and in that event the will directedthat he should be granted a lease, which was done. That lease, of which also no copy survives, though that is not, we think, of much significance, was for a term of twenty-one years and eleven days from 14 December, 1911.
Then in 1912 there was the deed of Family Arrangement which we have mentioned, which was made for the purpose of dealing with a number of matters which had arisen in the administration of the estate. That has no direct bearing on the question at issue, but it contains these important recitals:
"And whereas the said Percy Bridgman Matchim has not exercised the option to purchase Abbey Buildings given to him by the said will AMD whereas the Trustees of the said Will have granted a lease for a term of twenty-one years at the yearly rental fixed by a properly qualified Valuer of £950 of the business premises known as Abbey Buildings aforesaid to the said Percy Bridgman Metchim …
"AND whereas the Trustees of the said Will have agreed with the said Percy Bridgman Metchim for the sale to him at the sum of £23,750 of the said Abbey Buildings for all the interest therein of the said Testator and subject to and with the benefit of the said Lease."
Under the will three of the testator's daughters were entitled to a one-quarter share of income of the residuary estate with limitations over in favour of the survivors, the whole capital finally going to the ultimate survivor. One of the three having died the other two wished to make some provision for their neice, the daughter of the deceased sister, and so they entered into a deed of covenant dated 11th February, 1930 to provide her with a share of the income of the propertypending sale and thereafter an annuity. Again the terms of that deed are not in themselves material, but it contains the following recital:
"And whereas the said Percy Bridgman Metchim did not exercise the option to purchase the said premises Abbey Buildings given him by the said Will but the Trustees of the said Will granted to the said Percy Bridgman Metchim a Lease of the said premises for a term of twenty-one years and eleven days from the said 14th December, 1911 at the yearly rental fixed by a properly qualified Valuer of £950 AND whereas since the grant of such Lease the Trustees agreed with the said Percy Bridgman Metchim for the sale to him of the said premises at the price of £23,750 subject to the said Lease but such, purchase has not yet been completed and by consent of all parties interested the performance thereof has been suspended."
In the operative part of the deed, "The Donors do hereby covenant that the Donee shall as from the 23rd August, 1929 be entitled so long as she is living and the sale of the said premises shall be incomplete to receive and be paid out of the share of the rents of Abbey Buildings to which they became absolutely entitled on the death of the said Beatrice Louise Metchim the yearly sum of £80 to commence as from the 23rd day of August last and be paid to her by quarterly payments And further that if and whenever during the lifetime of the Donee the sale of the said premises shall be duly completed an Annuity of the same amount of £80 for the life of the Donee shall be purchased for and in the name of the Donee out of the proceeds of sale."
The only parties to that deed were the two surviving daughtersand the neice.
It will be seen that the recital is somewhat bald in that it does not state at what date performance of the contract was suspended and whether it was indefinitely or on some and if so what conditions.
The lease to Percy having expired at Christmas, 1932 the trustees granted and Percy accepted a new lease dated 19th January, 1933 for a further twenty-one years from Christmas, 1932.
Down to the end of 1933 Percy and his brother Ralph were in occupation of the premises and carrying on business there in partnership as printers and stationers, but of course, under the two successive leases, Percy was never in possession or occupation as purchaser under the 1912 contract. In December, 1933 a company was formed to take over the business, which it did. Percy and Ralph were the subscribers to the memorandum and articles of association and were named by the articles as the first directors. Percy died on the 6th November, 1942 and Ralph on the 26th December,1947.
The second lease having expired at Christmas, 1933 the trustees granted to the company and the company accepted a new lease dated 25th March, 1954 for twenty-one years from 25th December, 1953 at a rental of £3,000 per annum. That lease is still subsisting and the present sale was expressly made subject thereto. It is also very important to mention that there was an appointment of new trustees dated 18th March, 1936, to which we must later more specifically refer.
The learned Judge held that the title could not be forced upon the Respondents and declared that a good title had notbeen shown. He dismissed a counterclaim by the Appellants, but that necessarily followed as it merely set up the converse of the Plaintiff's case by saying that a good title had been shown.
The Defendants appeal to this Court.
As appears from the counterclaim the Appellants present their case in two alternative ways. First they ask for "a declaration that the Defendants have shown a good title to the above-mentioned property in accordance with the above-mentioned contract of sale", and secondly, "A declaration that the property held in accordance with the said title is fit to be registered with Title Absolute and unconditionally".
Before analysing the evidence and what conclusions should be drawn from it we think it important to consider by what principles we should be guided. First, whilst it is clear that a vendor may be able to force a purchaser to accept a title different from that which he contracted to give (see In re Atkinson and Horsell's Contract, 1912 2 Chancery, 1) yet apart from any case in which the conditions of the contract may otherwise require, and the present is not such a case, the purchaser is entitled to require not merely a good holding title but a good marketable one, and as Mr. Justice Luxmoore said in Spollon and Long's Contract, 1936 Chancery, 713, at 718, "The purchaser having bought on an open contract, was entitled to have a good marketable title, which, as I understand it, is a title which will enable him to sell the property without the necessity of making special conditions of sale restrictive of the purchaser's rights".
This, however, does not mean that the Court will not in a proper case presume the facts on which the title depends, and,of course, the first submission for the Appellants is that we should presume that the 1912 contract was abandoned. It is established by ancient authority that such a coarse should be taken only where the position is such that under the position which obtained in the days of the old Court of Chancery if the question were referred to a common law court the Judge would direct the Jury to make the presumption and not merely leave it to them to decide as they might think fit. This, in our judgment, is correctly stated in Fry on Specific Performance, sixth edition, page 417, paragraph 890 (v), which reads as follows, "Where the title rests on a presumption of fact of such...
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