NOTES OF CASES
| Published date | 01 July 1971 |
| DOI | http://doi.org/10.1111/j.1468-2230.1971.tb02341.x |
| Date | 01 July 1971 |
NOTES
OF
CASES
u
A TECHNICAL
AND
TRICKY
MATTER
”
THE
short point in
lrani Pinance Ltd.
v.
Sin&
was whether legal
and beneficial joint tenants
of
land have any
‘‘
land
or
interest
in
land
y7
over which
a
charging order can be made. The Court
of
Appeal’s negative answer
is
open
to
three
major criticisms. First,
it
removes an effective method of enforcing judgment debts against
land
if
it happens to be
in
joint ownership3 Secondly, the
ratio
of
the case
(i.e.
that the Administration of Justice Act
1965
did
not
use sufficiently clear language
to
show that
a
major change
in
the
law
was
envisaged) demonstrates the inadequacy of the courts’
techniques
of
statutory interpretati~n.~ Thirdly, the decision
increases the already considerable confusion as to the nature
of
concurrent owners’ interests. This note is concerned solely with
this third criticism. way in which
land may be jointly owned is through the medium
of
the trust for
sale
:
until sale, the beneficiaries clearly have an interest in the fund,
but is
it
in
the land itself,
or
only in the proceeds of sale?
It
is not
surprising that the courts should have given different answers to this
questioq6 since
u
interest
”
is an inherently imprecise term. Thus,
1
Per
Danckwerts
L.J.
in
Barclavs
Bank
Ltd.
v.
Moore
[1967]
3
W.L.R.
1201,
124%; [1967] 3
All
E.R.
34, 37,
referring
to
the
process
of
debt enforcement.
2
[1971]
Ch,
59
(Buckley J., and C.A.), noted
(1970)
34
COnV.(N.8.)
49.
a
The appropriate procedure would seem to be to apply for the appointment
of
a
receiver by way
of
equitable execution
:
see
Halsbur
’8
Laws
of
England
(3rd
ed.),
Vol.
16,
pp.
104
et seq.
This remedy has teen little used: an
average
of
one application per anuurn
mas
made in the ten years
b
July
31,
1966:
see
Report of the Committee on the Enforcement
of
Judgment Debts.
Cmnd.
39W
C1969), Table
13,
cf.
the comparatively extensive use made of
charging orders,
ibid.,
paras.
855
et seq.
and Table
12.
Although such an
appointment prevents the fund being paid
to
the
beneficiary
(Ideal Bedding
Co.
Ltd.
v.
Hollayl
[1907]
2
Ch.
157)
it does
not
make thc receiver
a
“pcrson interested within the meaning
of
8.
30
of
the
Law
of
Property
Act
1925
so
nB
to have
locus
stand;
to
apply for
a
sale:
Stevens
v.
Hutclrinson
[1953]
Ch.
299.
A receiver appointed ,by
a
judgment creditor
has
purely
personal rights; contrast
the
beneficiary’s trustee in bankruptcy
:
Re
Solomon
[1967]
Ch.
573.
Farrand.(1960).
104
S.J.
875
and Palley
(1969) 20
N.I.L.Q.
132, 134
do not draw this distinction.
4
See
(1069) 119
New
L.J.
1156, 1157
(Cretney).
6
Save in
a
few cases where the Settled Land Act
1925
applies:
see
Megarry and
Wade, 3rd ed., p.
435
et seq.
For valuable enalyseg
of
the problems
see:
(1954)
32
Can.Bar Rev.
520
(Latham);
[I9551
C.L.J.
155; (1956)
20
Conv.(N.s.)
10
(Kimlfy).
0
Soc
e.g.,
Edwards
V.
Hall
[1949]
1
All
E.R.
352
(sale by tenants in common
of
agricultural land
to
one
of
their number
who
thus becnme absolutely
entitled) held:
B
sale
of
personalty anqanot an agricultural’ holding, but note
per
Lord Goddard C.J. at
p.
353D: There
was
nothing
to
prevent their
selling their intereat in land-which is different from selling
the
land
.
.
.”;
ef.
Parker
v.
Rosenberg
“4.171
1
K.B.
371.
In
Re Fuller’s Contract
[1933]
Ch.
652
(not cited in the present
case)
the argument that
a
partner
(whose
“he problem arises because, since
1925,
the only
441
442
THE MODERN LAW REVIEW
VOL.
34
in the present case, the courts conceded that
('
in a non-technical use
of language
"
the joint owner
could accurately be said
to
have an
''
interest in land." Similmr
problems arise in describing the rights of a beneficiary under a
dis-
cretionary trust:
"
in
a
certain sense
"
he may be said
to
have
an
"
interest
"
in the fund, which
is
thus more than a mere
spe:;,
even although
it
lacks the necessary quality of dehable extent
to
bring it within (the meaning of an
"
interest
"
as used in a taxi~ig
statute." Again, a beneficiary
of
an estate in course of adminivtra-
tion may be said
''
in
a general or popular sense
"
lo
to
have
:in
interest
in
the
assets,
suficient to enable him in some circumstanccs
to
make
a
specific bequest thereof,'l yet in another sense he has
no
"
interest
"
in any particular asset.12
In
truth,
"
the wide spea-
trum
that
[the word inkrest] covers makes
it
all 'the more nee:;-
sary,
if
precise conclusions are
to
be founded
on
its use,
to
place
it
in
a
setting."
l3
A beneficiary under
a
trust
for
sale of land can be said to have
an interest in the land itself
at
least in the following ways.
(I)
He
may, with the concurrence
of
lthe other beneficiaries, compel the
transfer of the land to him~e1f.l~
(2)
If
the
trust is imposed by
law,
he has
a
right
to
be consulted by the trustees as
to
the exercise of
their powers over the land; they are obliged to give effect to the
beneficiaries' wishe~.'~
(3)
Even
if
some of the trustees wish
'to
execute the trust (rather than
use
their power to postpone sale) the
court may refuse to permit this (contrary to the general principle
that even
a
minority may compel the execution of an imperative
obligation
16)
if
some particular purpose for which the land
was
acquired still subsists,
or
it
would be idequitable
to
do
SO."
(4)
F~T
purposes of construction, although
a
devise of
''
all my freehoIld
or
"
in an appropriate context
"
interest in the partnership property
?as
thus held under
a
trust for
sale)
could not say
he
had "an interest in any specific land was expreesly
rejected.
7
Per
Buckle
J.
[1971]
Ch.
69.
8
Per
Cross
2.J.
[1971]
Ch.
79
9
Gartside
v.
I.R.C.
[1968]
A.C.
553,
per
Lord Wilberforce at p. 618.
10
Comr.
of
Stamp
Duties
(Queenslattd)
v.
Livingston
[1965]
A.C.
G94,
716.
11
Re Leigh's
Will
Trusts
[1970]
Ch.
277; Bee (1970) 86
L.Q.R.
20
(P.V.B.).
12
Comr.
of
Stamp Duties CQueensland)
v.
Livingston
(SU~TQ);
Sudeley
v.
Att.-
Gen.
[1897]
A.C.
ll;
cf. Baker
v.
.4rcher-SRee
[1927]
A.C.
844.
13
Cartside
v.
I.R.C.
(Supra), per
Lor& Wilberforce at p. 617.
14
Saunders
v.
Vuutier
(1841)
4
Beav. 115;
cf.
the trustees'
power
to partition
land held on trust
for
tenants in common:
s.
28 (3) of the Law
of
Property
Act 1925.
1s
Law
of
Property Act 1925,
8.
26
(3), which applies only
to
trusts imposed by
statute:
Law
of
Property Amendment Aot 1926, Sched. It could be argued
that this
shows
legislative recognition
of
the need
to
distinguish between
cases where the trust for sale should be regarded
as
machinery,
on
the
oine
hand. and those where it
has
been expressly chosen, when its logical conee-
--
quences may be implemented.
Ch.
261.
16
Re
Mayo
[1943]
Ch.
302;
cf.
Re
90
Thornhill Rd.,
Tolworth
Surrey
[19701
11
Re
-Buekanan-Wollaston's Conveyance
[l939]
Ch.
738;
Re
Hyde's
Conveyance
(1952) noted
in
102
L.J.
587;
Bedson
v.
Bedson
[1965]
2
Q.U.
666;
Rutolings
v.
Rawlings
[1964]
P.
398.
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