Mary Elizabeth Errington (Widow) v Mary Dougan Errington (Married Woman) and Edith Annie Wood (Spinster)

JurisdictionEngland & Wales
JudgeLORD JUSTICE SOMERVELL,LORD JUSTICE HODSON
Judgment Date19 December 1951
Judgment citation (vLex)[1951] EWCA Civ J1219-5
CourtCourt of Appeal
Date19 December 1951
Mary Elizabeth Errington (Widow)
and
Mary Dougan Errington (Married Woman) and Edith Annie Wood (Spinster).

[1951] EWCA Civ J1219-5

Before:

Lord Justice Somervell,

Lord Justice Dening, and

Lord Justice Hodson.

In The Supreme Court of Judicature

Court of Appeal

MR J.A.T. HANLON and MR J.D.B. RICHARDSON (instructed by Messrs Rentleys Stocks & Lowless, Agents for Messrs Griddle Ord & Muckle, Newcastle-upon-Tyna) appeared on behalf of the Appellant (Plaintiff).

MR JOHN MARNAN (instructed by Messrs Frank J. Lanbert & Co., Gateshead) appeared on behalf of the Respondent (Defendant).

LORD JUSTICE SOMERVELL
1

In 1936 the Plaintiff's husband, who was the father-in-law of tea Defendant, bought a house 27, Hilvain Avenue. The purchase was financed through a building society part of the purchase price being paid down and the rest left on mortgage repayable with interest by instalments over period. The details were not before us but the instalments are still running.

2

The son had recently married and the father bought the house as a home for the son and his wife, The total purchase price was £750. The father paid £250, and the couple went into the house and paid the instalments. The question is what was the agreement between the father and the son and his wife?

3

In 1945 the Plaintiff's husband lied leaving allhis property by will to the Plaintiff. Up till almost that time the Defendant and her husband had lived in the house. Differences then arose between husband and wife. The husband wanted hie wife to case and live with hie mother. She did not east to do so. Since about that time he has lived with his mother and the Defendant at 27 Milvein Avenue. The second Defendant is the wife's sister who has lived with her since the husband left.

4

In these proceedings the Plaintiff claims possession. The defenses were (1) that the Plaintiff's claim is barred by the Limitation Act, 1939; this is on the basis that the Defendant and her husband were tenant o at will: (2) aternatively they were paying a rant and are protected by the Rent Acts.

5

The learned County Court Judge decided that the first defence succeeded. He decided that they were tenants at will end that on this basis the claim was barred by the Limitation Act, 1939. He went on to say that if the instalments were regarded as rent the claim for pea suasion also failed under the Rent Acts.

6

There is no written agreement or record of what happened between the Plaintiff's husband and his son and daughter-in-law in 1936. At the trial the son gave evidence for the Plaintiff and the Defendant gave evidence in support of her case. I will road the leaned Judge's findings as to the facts.

7

The marriage took place in 1932 and in 1936 the husband of the Plaintiff bought 27, Milvain Avenue with a building society mortgage of £500.

8

The defendant and her husband were on good terms until after the death of his father and the Defendant was on very affection to terms with her father-in-law.

9

He wanted thorn to have a house a of their own and said he would foot the bill for 27, Milvain Avenue for her and her husband to occupy.

10

"He would put down £250, as a present for Stan and I, but the house would go into his name." He left her with 15a. 0d. a week to pay to the Building Society.

11

The Defendant inter went to see him about the rates which were 10s. Od. a week and me told her first of all teat he would give her 10a. 0d. to pay all rates and later said he would pay than himself.

12

He handed the Building Society book to her and told her not to part with this and that the property would be hers and her husband's when the mortgage was paid.

13

She made the payments to the Building Society from that date out of the housekeeping monies paid to her by her husband.

14

Her father-in-law died in July 1945, and by his Will left the house with all his other property to his wife, who after hie death was living at Woolsington Gardens alone.

15

After her father-in-law's a death the Defendant went away for a short holiday; She was exhausted with lookingafter him in his last illness.

16

When she case back her husband net her at the Central Station and told bar that they would both go to Woolsington Gardens. She said she would go home to 27, Milvain Avenue. He said he would see her to-narrow but he never case. She went and saw him and placed with his to return. He said his Mother was in need of his and had never been book for his wife since.

17

For a time he paid her £2, 10. 0d. per week which was subsequently reduced to £2, 0. 0d. and at periods went down to £1. 0. 0.

18

Since 1945 it was not disputed that the female Defendant had continued to pay the installments either out of the money provided by her husband or from other resources if any.

19

After the conclusion of the argument we came provisionally to the opinion that under the agreement the son and his wife were neither tenants at will nor tenants paying rent but that the Plaintiff was nevertheless not entitled to possession. We therefore had the case reargued and had the assistance of Counsel on both sides as to the terms of the agreement as they appeared to us to be on the findings of the learned Judge.

20

I will state what seem to me to be the intended terms of the agreement and then consider whether there are any legal obstacles to their enforcement.

21

The father are undertaking to convey the house to the son and his wife if and when they had paid all the installments. If and when they had done that they would of course have paid with interest two-thirds of the purchase price. The gift of the £250 was not a future gift in the sense that the father was undertaking to convey the house for two-thirds of the price which the vendor was charging.

22

The son and his wife were to occupy the house in consideration of their paying the installments to the Building Society. Two further questions remain to he considered which are connected, First, were they undertaking to pay the installments? If they failed would they have committed a breach of the agreement? I have hesitated about this. It would have been on the face of it advantageous for them so to undertake. They would be getting a house on ordinary building society tents for two-thirds of it a price.

23

I do not think that the transaction as found by the learned Judge Justifies finding that they had so undertaken. Further, if this had been the intention it is difficult to see why the father did not convey she house then and there. If the installments were not paid I think their rights were at an end. If this happened towards the end of the period the father or his successors in title would have a good bargain, but the parties were not considering future possibilities at eras length and the contemplation was that the son and his wife would complete the peasants.

24

Were their right a assignable? I think not. The father desired to benefit his son and daughter-in-law by making a present of the £250. He wanted to assist then to get a house to live in on advantageous terms. If they did not want it to live in then I think the proper inferencefrom the fact that be renamed the owner it that he intended it should some back into his control.

25

I find it impossible to regard them as tenants at the will. In Foster v. Robinson, 1951 1 K.B., at page 156, the Master of the Rolls considered the possibility of a tenancy at will with a promise that the tenancy should not be determined. Without deciding whether a tenancy could remain "at will" with such a promise annexed I find the conception a difficult one.

26

We were invited to find a tenancy, for the period of the installments, the latter though paid to a third party being rent as between the parties to the agreement. In the absence of any express agreement to that effect it seems to be impossible to treat as rent payments made to a third party which differed in kind from rant in that they were installments of the purchase price with interest paying able under a mortgage.

27

The position here was, as it seems to me, analogous that of a purchaser who is admitted into possession before completion. One can imagine on ordinary contract of sole in which the purchase price was payable by installments over a long period. If one also imagines a term that if installments were not paid the vendor would have a right to rescind but no other risks one gets near to the present position.

28

It might be suggested that the title of the son and wife so long as the installments were paid was the same as that of a purchaser who goes into possession before completion under an ordinary contract of purchase and sale. The transaction in the present case although it seems n not unnatural one, is as for as the researches of Counsel and ourselves have gone legally novel.

29

The equitable title under which a purchaser in possession before completion can rely is based, as I understand it, on the contract of sole under which he has undertaken to purchase and he is regarded in equity as owner subject to his fulfilling hie part of the bargain.

30

The contract here was different. I therefore think the son and his wife are licencses, and for the reasons elaborated by my brother Denning his his judgment which I have had the advantage of reading there is no legal obstacle to holding that as licencses possession cannot be claimed so long as the installments are paid.

31

The right to a conveyance if and when the installments are paid might raise a question under Sections 53 one 55 of the Law of Property Act as the contract was oral. The issue is not directly before us but it would seem to me that the doctrine of part performance would clearly apply.

32

Mr Marnan argued that if it was a license a there would be no relief if an installments was in anear for however short a time. Assuming this is so it would be explicable on the ground that the transaction is an unusual one...

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