Re Evers' Trust
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD |
| Judgment Date | 23 May 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0523-2 |
| Docket Number | No. 9829 of 1979 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 1980 |
[1980] EWCA Civ J0523-2
Lord Justice Ormrod
Lord Justice Eveleigh
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Family Division
MR Q. EDWARDS, Q. C., and MISS J. RODGERS (instructed by Messrs Lamb Brooks & Bullock) appeared on behalf of the Appellant (Husband)
MR R. GRAY, Q. C., and MR D. BODEY (instructed by Messrs Snow & Bispham) appeared on behalf of the Respondent (Mother)
This is an appeal by Mr Papps, whom we will call the Father, from part of the judgment of His Hounour Judge Lipfriend, sitting as a High Court Judge in the Family Division, given on 10th December, 1979. The learned Judge had two in matters before him, an Originating Summons in Wardship proceedings by Mrs Evers, whom we will call the Mother, and an application by the Father under Section 30 of the Law of Property Act, 1925, for an order for sale of a cottage near Basingstoke. The learned Judge made an Order in the wardship proceedings giving care and control of the child in question to the mother, and in the Section 30 proceedings, directed that the property be sold, but that such sale be postponed until the child attained the age of sixteen years or until further order. The father originally appealed against both orders but at the outset, Mr Quentin Edwards Q. C., for the father, abandoned the appeal in relation to the wardship. The appeal in relation to the Section 30 application raises questions of general importance, because it appears to be the first time that this Court has had to consider the application of Section 30 in relation to a property purchased as a home and held in joint names, by two persons who are not married to one another. This is a situation which is occurring much more frequently now than in the past, and is a social development of considerable importance with which the courts are now likely to have to deal from time to time.
The form of the learned Judge's Order bears a close resemblance to, and was obviously derived from, Orders made by this Court under the: Matrimonial Causes Act, 1973, Section 24, in cases such as Mesher -v- Mesher 1973, Times, February 13th, Browne (formerly Pritchard) -v- Pritchard, 1975, 1 WLR319, and Martin -v- Martin, 1978, Family Division 12, and in fact, the Judge relied expressly on the latter two cases.
At the outset, it must be said that in this respect the learned Judge was in error. The powers of the Court under Section 30 of the Law of Property Act, 1925, are different from the powers which it has under Section 24 of the Matrimonial Causes Act 1973; the ambit of the discretion is, consequently, different. Under Section 24 the Court is empowered to make orders between former husbands and wives, "adjusting" their respective property rights; under Section 30 the Court is concerned with the effect to be given to existing property rights, a much more restricted function. Cases arising under Section 24, therefore, are not relevant to cases arising under Section 30, although some of the considerations to be taken into account are common to both classes.
Section 30 of the Law of Property Act, 1925 , is in these terms: "TL the trustees for sale refuse to sell or to exercise any of the powers conferred by either of the last two sections, or any requisite consent cannot be obtained, any person interested may apply to the court for a vesting or other order for giving effect to the proposed transaction or for an order directing the trustees for sale to give effect thereto, and the court may make such order as it thinks fit".
The Section gives the court a discretion to intervene to deal inter alia with the situation which arises when the trustees under a trust for sale are unable or unwilling to agree that the property should be sold. In such circumstances, the court can order a sale of the property, and if appropriate, impose terms,or it can decline to make an order, leaving the property unsold, unless and until the trustees reach agreement, or the court makes an order at some future date.
The usual practice in these cases has been to order a sale and a division of the proceeds of sale, thus giving effect to the express purpose of the trust. But the trust for sale has become a very convenient and much used conveyancing technique. Combined with the statutory power in the trustees to postpone the sale, it can be used to meet a variety of situations, in some of which an actual sale is far from the intentions of the parties at the time when the trust for sale comes into existence. So, when asked to exercise its discretionary powers under Section 30 to execute the trust, the court must have regard to its underlying purpose. (In re Buchanan-Wollaston's Conveyance, 1939, Chancery 202, and in this Court at page 738). In that case four adjoining landowners purchased a plot of land to prevent it being built on and held it on trust for sale. They also covenanted with one another that the land would not be dealt with except with the unanimous agreement of the trustees. Subsequently one of them wished to sell, but some of the other trustees objected so the plaintiff applied to the court under Section 30 for an Order for Sale. At first instance, Mr Justice Farwell refused the Order, saying (at page 223): "The question is this: Will the court assist the plaintiff to do an act which would be directly contrary to his contract with the other parties, since it was plainly the intention of the parties to the contract that the land should not be sold save with the consent of them all". His decision was upheld in this court,but on a broader basis. Sir Wilfred Greene, Master of the Rolls, said (at page 747): "….it seems to me that the court of equity, when asked to enforce the trust for sale, whether one created by a settlement or a will or one created by the statute, must look into all the circumstances of the case and consider whether or not, at the particular moment and in the particular circumstance when the application is made to it, it is right and proper that such an order shall be made. In considering a question of that kind, in circumstances such as these, the Court is bound to look at the contract into which the parties have entered and to ask itself the question whether or not the person applying for execution of the trust for sale is a person whose voice should be allowed to prevail".
Some twenty years later, in Jones -v- Challenger (1961) 1 Queen's Bench 176, Lord Justice Devlin reviewed the authorities and affirmed this principle. At page 181 he said, "But this simple principle (i. e. there in a trust for sale there is a duty to sell) cannot prevail where the trust itself or the circumstances in which it was made show that there was a secondary or collateral object besides that of sale. Mr Justice Simond: in his Judgment in In re Mayo said that if there were mala fides, the position would be different. If it be not mala fides, it is at any rate wrong and inequitable for one of the parties to the trust to invoke the letter of the trust in order to defeat one of its purposes, whether that purpose be written or unwritten, and the court will not permit it".
In that case a house had been purchased by a husband and wife jointly as a home. Subsequently,...
To continue reading
Request your trial
-
Bernard v Josephs
...in the circumstances". 32 The same approach should be adopted to cases where a man and woman are living together but not married, see Re Evers' Trust (1980) 1 Weekly Law Reports 1327. Also when, as here, there are no children. The court can refuse to order a sale at the instance of the outg......
-
Dennis v McDonald
... ... trustees for each other in the circumstances of this case, to a beneficiary (for they are both beneficiaries) for an exclusive enjoyment of the trust property attributable to such an action, namely, that of ouster, on the part of the paying party as is inconsistent with the discharge in due order ... ...
- Wight v Commissioners of Inland Revenue
-
Re A; A v A
...Ltd[2002] 1 FCR 289, [2001] QB 967, [2001] 2 All ER 289, [2001] 2 WLR 992, [2001] 1 FLR 982, CA. Evers’s Trust, Re, Papps v Evers [1980] 3 All ER 399, [1980] 1 WLR 1327, F v F (divorce: insolvency) [1994] 2 FCR 689, [1994] 1 FLR 359. First National Securities Ltd v Hegerty Ltd [1985] QB 850......
-
The Changing Face of Trusts: The Trusts of Land and Appointment of Trustees Act 1996
...Court of Appeal was prepared to postpone sale of the former27 See TLATA 15(1) and n 23 above.28 cf under LPA s 30, Re Evers Trust [1980] 1 WLR 1327 and Dennis vMcDonald [1982] 2 WLR 275.29 Re Evers Trust [1980] 1 WLR 1327.30 [1943] Ch 302.31 [1989] Ch 350.32 On the issue of the rights of cr......
-
The Meaning of Home: A Chimerical Concept or a Legal Challenge?
...trust for sale.10 See, further, below.11 See, for example, the decisions in Williams v. Williams [1976] Ch 278 at 285; ReEvers Trust [1980]1 W.L.R. 1327; and Abbey National v. Moss [1994]1 F.L.R. 307;on the ‘collateral purpose doctrine’ in the context of applications for the sale of co-owne......