Mills v Allen
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BIRKETT,LORD JUSTICE ROMER |
| Judgment Date | 18 June 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0618-3 |
| Court | Court of Appeal |
| Date | 18 June 1953 |
[1953] EWCA Civ J0618-3
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
Lord Justice Birkett and
Lord Justice Romer
Mr HUMPHREY TILLING (instructed by Messrs. Gregory Rowcliffe & Co., Agents for Messrs. Peter Bray & Harris, Redruth) appeared on behalf of the Appellant, Defendant.
Mr G.D. PETHERICK (instructed by Messrs. Walters & Barbary, Cambourne) appeared on behalf of the Respondent, Plaintiff.
This appeal has given rise to considerable argument upon certain points of great difficulty, and, I think, importance, though in the event, the matter can in my judgment be determined, and should be determined, upon a relatively simple point. First, however, let me state the relevant facts. The action is one for possession brought by Mrs Mills, the landlord, against some seven persons who were and, I take it, are in occupation of the premises known as 33 Centenary Street, Cambourne. At the trial the substantial defence was to the effect that the first of the Defendants, Miss Bessie Jane Allen, was entitled to be regarded as the statutory tenant of those premises by virtue of the provisions of section 12(1)(g) of the Act of 1920, as amended. The County Court Judge decided in favour of the Plaintiff, and made an Order for possession. Although the notice of appeal appears to have been served on behalf of all the Defendants, it has been, agreed before us, (and we have proceeded accordingly), that the First Defendant only, Miss Allen, is the Appellant, that she alone of the seven Defendants claims any right to remain on the premises, her claim being based, as I have already mentioned, on the effect of section 12(1) (g) of the 1920 Act.
In order to see how that state of affairs came to be, the recital of dates is as follows:- in the month of September, 1922, these premises were let upon a contractual tenancy to the Appellants, that is Miss Allen's, aunt, a Mrs Andrews, at a rent of £1. 6s.8d. per month; and thenceforward Mrs Andrews, together with a number of her relatives, including Miss Allen, have occupied the house.
In May of 1935 the then landlord, the predecessor in title of the Plaintiff, gave notice to quit to Mrs Allen.That notice duly expired and was effective to determine the contractual tenancy in June of the same year, 1935,
The next step — and it is the first of the matters which has given rise to great difficulty and not a little obscurity — was that the then owner, one William Vivian, made an application to the Justices of the Petty Sessional Division of East Penwith for the issue of a warrant for possession under the term of section 1 of the Small Tenements Recovery Act 1838. To the form of the Order which was made, according to the notes with which we have been supplied, I shall presently have to return. Suffice it to state that the Justices appear to have made an Order in exercise or purported exercise of their power under the section I have mentioned, of which the intended effect appears to have been that possession was to be given within twenty-one days, subject to the provision that as long as Mrs. Andrews paid regularly the monthly rent of £1. 6s, 3d., together with a further sum of 14s.4d. on account of arrears, the warrant should not be executed; and it was, subject to those directions, to remain in force for three months or for such further period as the Court should from time to time direct. Those last few words, as will later appear are a reflection of the terms of section 4(4) of the Rent Act of 1923. That Order was made on the 16th July, 1935.
The provisions for payment of rent and arrears do not appear to have been closely adhered to, and although we have not got a note of any further Order extending the period of three months mentioned in the first Order, on the 31st January, 1939, Mr. William Vivian applied again to the Petty Sessional Court of East Penwith for enforcement of the Order for possession made on the 16th July, 1935. On that occasion it appears that the Order was "suspended", (whatever may be the precise effect of that direction)for a further period of three months upon the same conditions as those which I have already stated in reference to the first Order — at least, so it has been assumed.
From that time onwards, however, the performance of Mrs. Andrews in paying her rent and arrears was much improved, so that in April, 1939, "the landlord himself communicated with the Court and invited the Court to make a further suspension. The note of what was then done on the 25th April, 1939, is this, that the operation of the Order was suspended sine die.
I assume again that the intention was that for an indefinite period the execution of the warrant was to be suspended, provided that Mrs. Andrews punctually paid her rent and regular installments of the arrears.
In 1943 the present Plaintiff acquired the property from William Vivian. Finally, on the 5th October, 1952, Mrs. Andrews died intestate, and no grant of administration of her estate has been made.
During the whole period of her occupation, from 1922 until 1952, the Appellant, Miss Allen, was residing with her aunt, and it is conceded by Mr. Petherick that the Judge was entitled to find and correctly held that if all other points were decided in Miss Allen's favour, she ought to be treated as a member of Mrs. Andrews' family within section 12(1)(g) of the Act of 1920; but, in order that she may, by fulfilling that condition, be entitled now to remain in occupation by virtue of the Rent Acts she must show that when her aunt, Mrs. Andrews, died, she was either a contractual or a statutory tenant of 33 Centenary Street, Cambourne.
I have already intimated sufficiently what the real point was which presented itself to the County Court Judge, namely, whether the making of the Order in 1935 by the Magistrates, the operation of which was subsequently first until April, 1939, and then sine die, was such as to putan end altogether to the statutory tenancy which Mrs. Andrews formerly enjoyed, and thereby to prevent the operation in the Appellant's favour of the definition section 12(1)(g).
Upon that issue the learned County Court Judge concluded as follows; "Following the reasoning of the Court of Appeal in American Economic Laundry Ltd. v. Little, 1950 A.E.R. 1186, I find that the Plaintiff, the landlord, is entitled to an order for possession. For the purpose of this decision I am assuming that the Defendant is a member of the tenants family within the meaning of section 12(1) (g) of the 1920 Act as amended by section 13 of the 1933 Act and section 1 of the 1935 Act. The fact that the warrants cannot be enforced does not in my opinion effect the right of the landlord, I respectfully agree with Lord Justice Somervell when at page 1188 of the above report he says: — "a tenant in that position, with an absolute order made against him notwithstanding that it may be suspended, is not a tenant within the meaning of section 12(1) (g) of the Act of 1920. That, I think, is in accordance with a common sense application of the section. It would be an illogical result if that section gave protection to a widow which the Court had expressly taken away from the husband whose tenancy she takes on, that tenancy having been brought to a suspended end by the order for possession'".
Then, after referring to another case, the learned Judge continues: "In view of my opinion that the Order was a final Order, and not a conditional one, it is unnecessary for me to consider what would be the position if the Order had been conditional".
Now, before I refer further to the case of American Economic Laundry Ltd, v. Little, it may be convenient to deal with certain other points which have arisen and which have themselves caused no. little difficulty.
The terms of section 1 of the Small Tenements Recovery Actof 1838 so far as relevant are as follows: "and upon proof of service of the notice" — that is the notice by the landlord for the determination of the tenancy — "and of the neglect or refusal of the tenant or occupier, as the case may be, it shall be lawful for the Justices acting for the district, division or place within which the said premises or any part thereof shall be situate, in Petty Sessions assembled, or any two of them, to issue a warrant under their hands and seals to the constables and peace officers of the district, division or place within which the said premises or any part thereof shall be situate, commanding them, within a period to be therein named, not less than twenty one or more than thirty clear days from the date of such warrant, to enter (by force if needful) into the premises, and give possession of the same to such landlord or agent" I should have stated that there is no question but that these premises are within the scope of the 1838 Act.
From the part of the section which. I have read it is plain that the jurisdiction, and the only jurisdiction conferred upon the Justices by the Act of 1838 is to issue a warrant for possession. It is therefore one difficulty in the way of the Plaintiff landlord in this case that, according to the notes of what took place in the Petty Sessional Court of East Penwith, there is no express reference to the issue of a warrant at all. In the rather longer note which was before the County Court Judge, which the clerk certified, the Court appears on the 16th July, 1935, to have made an Order for possession, and then the note continued: "The warrant to be suspended", upon the terms I have already mentioned, but to remain in force for three months, etc. In the rather shorter certificate which is dated the 13th June of this year, and with which we have been supplied, the note is: "Order made forpossession within twenty-one days, not to be executed so long as Respondent pays £2 a month on account of current rent...
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Payne v Cooper
...I think I should mention are both cases in which I myself took part, and from which citations have been made. The first was the case of Mills v. Allen reported In 1953 volume 2 Queen's Bench Division at page 341. That was a case very special in its own facts. Orders had been made not under ......
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Sherrin v Brand
...any right under the statute or otherwise of the tenant to remain in occupation. 21 In the later case of ( Mills v. Allen 1953 volume 2 Queen's Bench Division, page 341) a similar question had arisen where the order had been in a form corresponding to the order in this case. In the event it ......
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Haymills Houses Ltd v Blake
...does not apply to an absolute order for possession. 28 I pass to the second observation, which is one of my own in a later case of Mills v. Allen and Others (1953 2 All England Law Reports, page 534), a case of great complexity in which the main question involved was the validity of a certa......