Pascoe v Turner

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE ORR,LORD JUSTICE CUMMING-BRUCE
Judgment Date01 Dec 1978
Judgment citation (vLex)[1978] EWCA Civ J1201-4
Docket NumberPlaint No. 7601259

[1978] EWCA Civ J1201-4

In The Supreme Court of Judicature

Court of Appeal

(Civil Division)

(On appeal from Mr. I.S. McKintosh sitting as a Deputy Circuit Judge at Camborne and Redruth County Court)

Before:

Lord Justice Orr

Lord Justice Lawton

and

Lord Justice Cumming-Bruce

Plaint No. 7601259
Samuel Oswald Pascoe
Plaintiff (Appellant)
and
Pearl Turner
Defendant (Respondent)

MR. HOWARD APLIN (instructed by Messrs, G.C Davies & Partners, Redruth: London Agents, Messrs, Gregory Rowoliffe & Co.) appeared on behalf of the Plaintiff (Appellant).

MR. M. E. BRABIN (instructed by Messrs. Trott & Battell, Camborne: London Agents, Messrs, Robbins, Olivey & Lake) appeared on behalf of the Defendant (Respondent),

LORD JUSTICE ORR
1

I will ask Lord Justice Cumming-Bruce to deliver the judgment of the Court.

LORD JUSTICE CUMMING-BRUCE
2

This is an appeal from the orders made on the 21st April 1978 "by Mr. McKintosh, sitting as a deputy circuit judge in the Camborne and Redruth County Court, whereby he dismissed the plaintiff's claim for possession of a house at 2 Tolgarrick Road, Tuckingmill, Camborne in Cornwall, and granted the defendant declarations upon her counterclaim that the plaintiff held the house on trust for the defendant her heirs and assigns absolutely and that the contents of the house belonged to her. The appellant asks for an order of possession, and that the counterclaim be dismissed.

3

The Issues:

4

The appeal raises three issues about the house:

5

(a)Did the defendant prove the trust found by the judge?

6

(b)Did she prove such facts as prevented the plaintiff by estoppel from asserting his legal title?

7

(c)If the answer to that question is yes, what is the equitable relief to which she is entitled?

8

In respect of the contents of the house, did the defendant prove that they were given to her by the plaintiff's voluntary gift?

9

The Facts:

10

The plaintiff was a business man in a relatively small way and at all material times was and had been building up some capital assets which he invested in purchases of private and commercial property. In 1961 or 1962 he met the defendant, a widow recovering from the distressing circumstances of her husband's death. She had invested about £4, 500 capital and had some income from this and from an invalidity pension. They made friends. She was happy to help him in small ways in business activities. The relationship deepened and she took the plaintiff's young son under her wing, and helped toguide him through his problems. In 1963 she moved into the plaintiff's home, at first as his housekeeper. In 1964 the boy went away to his own mother, and shortly afterwards the plaintiff and the defendant began to share a bedroom and live in every sense as man and wife. The plaintiff's business was expanding, and she worked in the business as well as doing the housekeeping. She did all that a wife would have done. He offered marriage, but she declined. In 1965 they moved. He took her to see 2 Tolgarrick Road, asked her if she liked it. He bought it. They moved in and continued living there as man and wife. He paid for the house and contents. He gave her £3 a week housekeeping. She used her own money to- buy her clothes. She only bought small things for the house. Then she begat to collect some rents for him and was allowed to keep part of them, bringing her housekeeping allowance up to £6 per week. He bought a place in Spain which they visited on holidays. At some stage there was some mention of the position with regard to the plaintiff's property, including the house, and the defendant. There was what the judge describes as a sort of will on which there was mention of the defendant having the house if anything happened to the plaintiff. In 1973 Cupid aimed his arrow. It struck the plaintiff, who began an affair with a Mrs. Pritchard. All unknowing, the defendant went for a few days with her daughter to Capri, in her absence the plaintiff moved in for two days to the house with Mrs. Pritchard, but they removed themselves before her return. Immediately the defendant got back, he visited her. There was a conflict of evidence on what was then said. His version was that all he told her was that he would never see her without a roof over her head. The account given by the defendant and the witnesses called on her behalf was that he declared to her and later to them that she had nothing to worry about as the house was hers and everything in it. The judge rejected the plaintiff's evidence and accepted the evidence of the defendant and herwitnesses. The plaintiff declared to the defendant not once but on a number of occasions after he had left her "The house is yours and everything in it". He told a Mrs. Smejhal and a Mrs. Green the same thing. To Mrs. Smejhal he said that he'd put it in a solicitor's hands. Mrs. Green asked him at the end of 1973 if he'd given the defendant the deeds, and he replied that he hadn't yet but was going to see to it. In fact he never did. There was no deed of conveyance, nothing in writing at all. The defendant stayed on in the house. She thought it was hers and everything in it. In reliance upon the plaintiff's declarations that he had given her the house and its contents she spent money and herself did work on redecoration, improvements and repairs. The judge found that the plaintiff as donor stood by knowingly while she improved the property thinking it was hers. In 1973 when he left and told her that the house was hers she had about £1, 000 of her own capital left. She spent some £230 on repairs and improvements and redecoration to the house, and also paid a man an unspecified sum in cash for working on the house. She "bought carpets for the lounge, stairs and hall and fitted carpets to the bedrooms. She bought curtains. Though the house was full of furniture; she got rid of a good deal and replaced it by purchases made out of savings. The work which she carried out in 1974 and 1975 was pleaded in a list given in further particulars of defence and counterclaim as follows:

11

1. Partly replumbing house, providing hot water from immersion system to kitchen and installing new sink unit and other fitments. Installing gas into the kitchen.

12

2. Joining outside toilet to rear door of premises by block work covered way.

13

3. Installing gas conduits and installing a gas fire into the lounge.

14

4. Repairing and retiling the roof where necessary and repairing lead valleys.

15

5. Repairing and redecorating interior.

16

So she stayed on. He lived nearby and sometimes visited her. She continued to collect some rents for him. Then there was a quarrel. He decided to throw her out of the house if he could. On 9th April 1976 his solicitors wrote to her giving her two months notice "to determine her licence to occupy", and demanded possession on 10th June 1976. She refused to go.

17

On 25th August he filed his plaint in the county court, claiming possession and mesne profits at £10 per week from 10th June 1976 until possession. On 14th February 1977 she filed her defence and counterclaim. She pleaded his declarations that the house and contents were hers and that in reliance on his statements she carried out extensive works on the house with the plaintiff's full knowledge and encouragement. By her counterclaim she sought a declaration that the house and its contents were hers, and that the plaintiff held the realty on trust for her, her heirs and assigns. Alternatively she sought a declaration that the plaintiff had given her a licence to occupy the house for her "lifetime. She claimed that the plaintiff was estopped from denying the trust or the licence. By his reply and defence to counterclaim the plaintiff joined issue on the extent of the works alleged to have been done since 1973, denied that they had been done in reliance upon his promises, or that they were of sufficient substance to give rise to the estoppel alleged. The judge decided the issue of estoppel against him. It is implicit in his conclusion that he accepted the defendant's evidence about what was done to the house after 1973, and how the plaintiff knew all about it and advised and encouraged her.

18

The judge found that the plaintiff had made a gift to her of the contents of the house. I have no doubt that he was right about that. She was already in possession of them as a bailee when he declared the gift. Counsel for the appellant submitted that there was no gift because it was uncertain what he was giving her. He pointed to a safe and to the defendant'sevidence that she had sent round an orange bedroom suite to the plaintiff so that he should have a bed to sleep on. The answer is that he gave her everything in the house, but later, recognising his need, she gave back some bits and pieces to him. So much for the contents.

19

Her rights in the realty are not quite so simply disposed of because of section 53 and section 54 of the Law of Property Act 1925. There was nothing in writing. The judge considered the plaintiff's declarations, and decided that they were not enough to found an express trust. We agree. But he went on to hold that the beneficial interest in the house had passed under a constructive trust inferred from words and conduct of the parties. He relied on the passage in which, at page 185 of 27th Edition of Snell's Equity, the learned editors suggest a possible definition of a constructive trust. But there are difficulties in the way. The long and short of events in 1973 is that the plaintiff made an imperfect gift of the house. There is nothing in the facts from which an inference of a constructive trust can be drawn- If it had not been for section 53 of the Law of Property Act 1925 the gift of the house would have been a...

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1 books & journal articles
  • Cohabitants, Property and the Law: A Study of Injustice
    • United Kingdom
    • The Modern Law Review Nbr. 72-1, January 2009
    • 1 January 2009
    ...No 311(2 008 ) par a 1.15.7 Some claims may be made relying on the concept of proprietary estoppel as well: see eg Pas coe vTu r n e r [1979]2 All ER 945 CA. Applicationsmay also be made under the Children Act1989, Sch1,which permits the making of limited money and property orders for the b......

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