Midland Bank Trust Company Ltd v Green
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EVELEIGH |
| Judgment Date | 11 April 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0411-3 |
| Date | 11 April 1979 |
| Court | Court of Appeal (Civil Division) |
[1979] EWCA Civ J0411-3
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Chancery Division
(Mr. Justice Oliver)
The Master of the Rolls (Lord Denning)
Lord Justice Eveleigh and
Sir Stanley Rees
MR. J. HARMAN, Q.C. and MR. J. PARKER (instructed by Messrs. Sidney Torrance & Co., agents for Messrs. J. Levi & Co., Leeds) appeared on behalf of the Plaintiffs (Appellants).
MR. L. HOFFMAN, Q.C. and MR. G. LIGHTMAN (instructed by Messrs. Simmons & Simmons, agents for Messrs. Roythorne & Co.) appeared on behalf of the Defendants (Respondents).
The Greens are a Lincolnshire farming family. This story might be called the Green Saga. The father and mother were Walter and Evelyne Green. They had two sons, Geoffrey and Derek, and three daughters. The father Walter had the freehold of two farms. They were a few miles apart in the northern part of Lincolnshire called Lindsey. One of 700 acres called Thoresway, near Market Rasen, which he farmed himself with his younger son Derek. The other of 300 acres called Gravel Hill Farm which he let to his elder son Geoffrey as a tenant ever since he came of age.
When father Walter was about 62 years of age, he decided to retire. He let each son have a farm as his own. Geoffrey was aged about 28 and Derek a year or two younger. Both married with children. He sold the 700 acre farm to his younger son Derek at 75 an acre. That was will below the market price. But he did not treat Geoffrey, the elder son, so favourably. He only gave him an option to buy his farm, Gravel Hill Farm, the 300 acre farm. He gave him an option to buy it. It was to be at the same price as Derek's, 75 an acre, but it was only an option. The father did this so as to enable him to get out of death duties. The option was to be effective for ten years. Meanwhile the elder son Geoffrey was only to be a tenant of his farm.
The option was drawn up by the family solicitor, Mr. Stubbs, of Brigg, about seven miles away. Father and son went to see him at Brigg. The solicitor wrote it out. Father Walter signed it. It figures so largely in this case that I will set it out in full:
"To Geoffrey Green, Gravel Hill Farm
"IN CONSIDERATION of the sum of One pound paid byyou to me I hereby give you the option of purchasing the Gravel Hill Farm now in your occupation at the sum of 75 (Seventy five pounds) per acre. This option to remain effective for ten years.
"Dated this 24 March 1961. W.S. Green".
The option was signed over a sixpenny stamp and kept by Mr. Stubbs in his office at Brigg. Now Mr. Stubbs was a very careful and meticulous solicitor, but strangely enough he made a serious mistake. He ought to have registered the option as an estate contract under the Land Charges Act 1925. It was the simplest thing in the world to do. But he did not do it. Why he did not, no one knows. It is a mystery. Neither father Walter nor elder son Geoffrey knew of this mistake. They thought everything was in order: and continued for years to think so. The mistake was afterwards to cost everyone dear.
For six years the family lived happily as families do. The father Walter and mother Evelyne retired to the Old Rectory at Croxby near Caistor, three or four miles away. The sons and their wives went over at weekends to see them, taking the grandchildren with them. Geoffrey wanted to exercise the option. He and his wife Margaret often discussed it with his father and mother. But father said No. He wanted to keep Gravel Hill Farm as an agricultural investment so as to save death duties. Mother Evelyne was there at all these discussions and knew all about them. She knew that Geoffrey wanted to exercise the option.
Then something transpired which was to shake the family to its roots. Father Walter decided to deprive the elder sonGeoffrey of the option. He met a lawyer somewhere or other and told him of the option. We do not know who this lawyer was. But he seems to have suggested to the father a way of petting out of the option. This lawyer said to father Walter: "See if the option has been registered. If it has not been registered as a land charge, you can sell Gravel Hill Farm over the head of Geoffrey and get rid of the option". That unknown lawyer went further. He seems to have made inquiries at the Registry and found that the option was not registered. He told father Walter. Father Walter told his wife, mother Evelyne. They both told the younger son, Derek. Together the three of them hatched a plot. I call it a plot because it certainly was. It was that father Walter should sell Gravel Hill Farm to mother Evelyne for 500 and convey it to her. It was to be done quickly - without the elder son Geoffrey knowing anything about it. The conveyance was to take place before Geoffrey could exercise the option. Once the conveyance was executed, his option would be defeated.
We would much like to know the reason for this plot: but the court has been left completely in the dark. Father and mother are dead. Geoffrey is dead. Derek, the younger son, probably knows. But he did not give evidence. (His lawyers advised him that the reason was not relevant). At any rate Derek took the initiative in carrying out the plot. He telephoned his own separate solicitor, Mr. Harrod of Scalding. That was in Holland in the south of the county, 60 m-les away from Brigg. He did not telephone the family solicitor, Mr. Stubbs, at Brigg because Mr. Stubbs knew all about the option and would not of course allow any such plot to go through: so Derek the younger son got his own solicitorMr. Harrod to come over the 50 or 60 miles to his (Derek's) farm; and Derek got his father Walter to meet him there. Father Walter had never met Mr. Harrod (Derek's solicitor) before, but he there and then instructed Derek's solicitor. He told him to prepare a conveyance of Gravel Hill Farm from his (Walter's) name into his wife (Evelyne's) name for the sum of 500. That was a grotesquely small sum. It was worth 40,000 or 50,000. Father Walter gave authority to Mr. Harrod to collect the title deeds from the bank at Brigg so as to draw up the conveyance. He made it clear that it had to be done as quickly as possible. It had to be done before Geoffrey got to hear of it and before the option was registered.
That meeting at Derek's farm was on the 14th August, 1967. Mr. Harrod, Derek's solicitor, did as he was instructed. Never in the history of conveyancing has anything been done so rapidly. It was all done and completed in three days. A search was requested of the Registry. The reply was got by telephone that no option was registered. Mr. Harrod's partner, Mr. Jenkinson, went over from Spalding to Brigg (60 miles). He collected the title deed of Gravel Hill Farm from the bank at Brigg. He did not go back to his own office at Spalding to draw up the conveyance. He went to a friendly firm of solicitors at Brigg, borrowed the use of a secretary and office space and prepared the conveyance. He took it over from Brigg to Cleethorpes (about 15 miles) where father Walter was in a nursing home. There it was executed by father Walter and mother Evelyne. Father Walter transferred Gravel Hill Farm to his wife for 500. Mother Evelyne gave the solicitors a cheque (in their favour) for 500 drawn on her bank account - overdrawn - for the purpose. The solicitor,Mr. Jenkinson - by an error of judgment - certified that the value of the land did not exceed 5,500. Whereas it was worth at least 40,000: and was being transferred for 500. Dated the 17th August, 1967. All in three days.
The deed was done. This is how Walter himself described it in an affidavit made on the 24th June, 1970, after his wife's death;
"Neither the option nor any estate contract constituted by the option and the notice of intention to exercise it had been registered at the land charges registry, and the testatrix and I were advised by our solicitors that in these circumstances if I transferred the farm to a purchaser, the purchaser would take free of Geoffrey's rights thereunder. Thereupon in order to defeat Geoffrey's option over the farm, on August 17, 1967, I sold and conveyed the farm (subject to the tenancy) to the testatrix in consideration of the payment by her to me of 500".
As happens in families, one of them could not keep a secret. A rumour reached the elder son Geoffrey; "Father has sold your farm to Mother for 500". At once he went over to his father and said: "I want to exercise the option". Father said: "I am not going to discuss it with you". Geoffrey went off to his solicitors. Then those solicitors did what they ought to have done six years before. On the 5th September, 1967 they registered the option. But it was too late. Three weeks too late. The conveyance had been executed on the 17th August, 1967. It was, as the judge said, "a case of bolting the stable door after the horse had gone". On the 6th October, 1967 Geoffrey's solicitors gave notice of exercising the option. But was it any good then? Was it not also too late?
Six months later on the 28th March, 1968 the mother Evelyne died quite unexpectedly. She left her property to her husband Walter for life and afterwards for her five children equally. So if the conveyance of Gravel Hill Farm is valid, it goes to all five children.
Walter and Geoffrey both died in the next year or two. Walter died on the 8th February, 1972. Geoffrey died on the 11th May, 1973. His wife and children have remained on at Gravel Hill Farm, farming it and paying an agreed rent for it. If the conveyance to the mother was good - and free of the option - they will have to leave. The farm will have to be sold and the...
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