Morelle Ltd v Wakeling
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROMER,LORD JUSTICE DENNING,LORD JUSTICE JENKINS |
| Judgment Date | 03 March 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0303-2 |
| Date | 03 March 1955 |
| Court | Court of Appeal |
[1955] EWCA Civ J0303-2
The Master of the Rolls
(Sir Raymond Evershed)
Lord Justice Denning
Lord Justice Jenkins
Lord Justice Morris and
Lord Justice Romer
In The Supreme Court of Judicature
Court of Appeal
MR C. N. SHAWCROSS, Q.C. and MR J. P. WIDGERY (instructed by Messrs S. A. Bailey & Co.) appeared on behalf of the Appellants (Plaintiffs).
MR GERALD GARDINER, Q.C and MR G. JANNER (instructed by Messrs Barnett, Janner & Davis) appeared on behalf of the Respondents (Defendants).
THE ATTORNEY-GENERAL (Sir Reginald Manningham-Buller Q.C.) MR A. GEOFFREY CROSS, Q.C. and the Hon. DENYS BUCKLEY (instructed by the Treasury Solicitor) appeared on behalf of Her Majesty's Treasury.
The judgment I am about to read is the judgment of the Court.
The Plaintiff Company, the Appellant in this Court, is a Company incorporated in Dublin according to the laws of Eire, and it claims in the present proceedings to be the proprietor of a leasehold interest in premises in London known as 158 Coldharbour Lane, Brixton, or Lambeth. The action is one for alleged arrears of rent from tenants occupying a part of the premises. The defence raised in the action included a challenge to the Plaintiff Company's title to sue on the ground that since the Plaintiff Company is a foreign corporation having no business or address in England, and since it has neither availed itself of the provisions of section 408 of the Companies Act, 1948, nor has a licence in mortmain, so as to entitle it to hold land in this country, the interest which the Plaintiff Company claims to have in the premises in question had, prior to the initiation of the present proceedings, been forfeited to the Crown. The Defendant tenants rely particularly upon the decision of this Court in the earlier case in which the Plaintiff Company was involved, Morelle Ltd. v. Waterworth, reported in 1955, 1 Queen's Bench, page 1.
In the case just mentioned (which I will hereafter refer to as the "first Morelle case") two distinct points were raised. (1) Was the assurance to the Plaintiff Company of the unexpired residue of a term of years in house property in London an assurance of land in mortmain within the terms of section 1 of the Mortmain and Charitable Uses Act, 1888? (2) If so, was the term so assured automatically forfeited to the Crown by virtue of the same subsection? Both these questions were answered affirmatively by this Court. Both questions turned on the proper interpretation of the relevant terms of the Mortmain and Charitable Uses Acts, 1888 and 1891.
It is not in dispute that only distinction between the present case and the first Morelle case — though it may be a distinction of substance — is that, in the present case, the land in question (which, like that in the earlier case, is the subject of an unexpired residue of a term of years) is registeredland and that the name of the Plaintiff Company has been inserted on the Land Register in respect of that land as proprietor thereof with a possessory title. It has been accordingly contended, unsuccessfully in the County Court, on behalf of the Plaintiff Company that such registration has, in any event, given to the Plaintiff Company a good title to the land and, accordingly, to sue in this action, notwithstanding the effect of the Mortmain Acts, unless and until the Crown or some other person entitled to make application obtains rectification of the Register
It will be convenient to refer now to the relevant provisions of the Acts of 1888 and 1891.
Section 1(1) of the Act of 1888, which is in Part I of the Act entitled "Mortmain", reads: "Land shall not be assured to or for the benefit of, or acquired by or on behalf of, any corporation in mortmain, otherwise than under the authority of a licence from Her Majesty the Queen, or of a statute for the time being in force, and, if any land is so assured otherwise than as aforesaid the land shall be forfeited to Her Majesty from the date of the assurance, and Her Majesty may enter on and hold the land accordingly".
Subsection 2 of the section contains a number of provisos of which, having regard to the nature of the argument later discussed, paragraph (iv) is of some significance. That paragraph is: "If the right of entry under this Act is exercised by or on behalf of a mesne lord, the land shall be forfeited to that lord from the date of the assurance instead of to Her Majesty".
Section 10 contains certain definitions and it is to be observed that these definitions relate equally to Part I of the Act relating to mortmain and Part II relating to charitable uses. The material definitions are: "(i) 'Assurance' includes a gift, conveyance, appointment, lease, transfer, settlement, mortgage, charge, incumbrance, devise, bequest, and every other assurance by deed, will, or other instrument; and 'assure' and 'assuror' have meanings corresponding with assurance.(iii) 'Land' includestenements and hereditaments corporeal and incorporeal of whatsoever tenure, and any estate and interest in land". The last mentioned definition was replaced by section 3 of the Mortmain and Charitable Uses Act, 1891, which reads (as later amended by the Statute Law Revision Act, 1908): "Land in the Mortmain and Charitable Uses Act, 1888, and in this Act shall include tenements and hereditaments corporeal or incorporeal of any tenure but not money secured on land or other personal estate arising from or connected with land".
It will be observed that the effect of the amendment by the Act of 1891 has been to exclude from the definition of land, for the purposed of both Acts, the formula "any estate and interest in land".
When this appeal was first called on in December last before the Master of the Rolls, Lords Justices Birkett and Romer, it was suggested, having regard to the importance of the matters involved and since we were informed that a number of properties were similarly affected, that an opportunity should be given to the Attorney-General to attend the appeal and put forward such arguments as he thought fit as amicus curiae. The case was adjourned accordingly and the Attorney-General has availed himself of the opportunity which we gave. We are greatly indebted to the Attorney-General and to Mr. Cross for their very considerable assistance in a difficult matter. On the appeal again coming on before a full Court, the first point raised by the Attorney- General was that the Crown should be added as a party to the proceedings as being (within the terms of Order XVI rule 11) "a party who ought to have been joined, or whose presence before the Court might be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter". We decided to postpone our decision upon this application until we had heard the argument upon the whole case, and we shall deal hereafter with it. It may be stated, however, that though the apparent interest of the Crownwould be to support the Court of Appeal's conclusion in the first Morelle case, in reality this is found not to be so: for, if the leasehold terms in question have vested in the Crown, then the Crown would presumably be liable upon the covenants contained in the leases, including the covenants relating to repairs and delivery up. As we have stated, the alleged interests of the Plaintiff Company in the present case and in the first Morelle case are interests in the unexpired residues of terms of years. In the present case the term of years expires in 1964. It is plain that the Crown have not thought it right or in its proper interests to seek to support the decision in the first Morelle case and of the County Court Judge in the present appeal.
The next point accordingly taken by the Attorney-General was that the decision of this Court in the first Morelle case was erroneous and, having been arrived at per incuriam, was open now to review and ought not to be followed by this Court. Mr Shawcross, who appeared on behalf of the Plaintiff Company, felt a difficulty in himself arguing this point - assuming, since this is a County Court appeal, that it was sufficiently taken in the Court below. The main argument upon this question was accordingly presented to us by the Attorney-General and Mr. Cross as amici curiae.
At our invitation the Attorney-General and Mr. Cross put before us the general character of the argument upon which they would rely in support of their main contention, namely, that this Court, in the first Morelle case, had reached an erroneous conclusion upon one or both of the two questions then submitted to it and above formulated. In so putting this main contention the learned Counsel for the Crown informed us of the authorities upon which they relied, but they did not refer specifically to more than a few of them: nor did they fully elaborate their argument. But they then submitted their case for saying that this Court had decided the first Morelle case per incuriam: and we heard this part of the argument upon the basis of the correctness of theAttorney-General's main contention.
This main contention was to the following effect:
(1) The Mortmain and Charitable Uses Act, 1888, is by its own title an Act to consolidate and amend the law relating to mortmain. (2) This Act and the amending Act of 1891 should, therefore, according to well-established principle and authority (see, for example, Re Budgett, 1894, 2 Chancery, page 557, and Aristoc Ltd. v. Rysta, 1945 Appeal Cases 6 at page 93) be construed, so far as their terms fairly admit, in conformity with the law relating to mortmain as it previously stood - particularly as it stood according to the terms of the confirmation of Magna Carta, 9 Henry III, Chapter 36, and the Statute De Religiosis Viris, 7 Edward I. (3) The earlier law...
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