Rodnall Ltd v Ludbrook
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE DENNING,LORD JUSTICE MORRIS |
| Judgment Date | 16 June 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0616-1 |
| Court | Court of Appeal |
| Date | 16 June 1954 |
[1954] EWCA Civ J0616-1
In the Supreme Court of Judicature,
Court of Appeal.
Lord Justice Singleton,
Lord Justice Denning, and
Lord Justice Morris.
Counsel for the Appellants: MR J. WIDGERY and MR J. COPE, instructed by Messrs S. A. Bailey & Co.
Counsel for the Respondent Waterworth: MR K.B. BAGNALL. instructed by Mr. R. C. Hines.
Counsel for the Respondent Ludbrook: MR A. MILDEN, instructed by Messrs Cliftons.
We heard these two appeals together, as we were assured by Counsel that the decision in one would cover the other. We have had an interesting argument, and I should like to say that each Member of the Court is indebted to Counsel for the assistance which has been given in the course of the argument, and especially to Mr Widgery, who appears for the Appellants, and who only received his Brief last night. He cannot have had a very comfortable evening, for he must have spent much time on research in a branch of the law which is not often met these days.
I propose to deal with the first case alone, the appeal of Morelle, Ltd., against Mrs. Waterworth.
The Particulars of Claim are dated the 13th February, 1954. Paragraph 1 states : "The Plaintiff" that is the Plaintiff Company — "is and was at all material times owner of the premises known as 18 Rodney Road S.E.17 and is lot to the present statutory tenant at a weekly rental of 37/5 or £97.5.8d. per annum inclusive. 2. The Plaintiffs claim that it was an express term of the tenancy that the Defendant would not sublet or part with the premises in any way. 3. The Plaintiff's case is that the Defendant did on or about March 1952 sublet a part of the said premises. 4. The Plaintiffs contend that the Defendant has committed a breach of covenant of the tenancy and is not entitled to the protection of the Acts." Then it is stated that notice to quit was duly served, and the Plaintiffs claim possession and costs.
Mrs Waterworth, the Defendant, must have heard of a body of lawyers who frequently render great public service, and she took advice from those who attend from time to time at Cambridge House. It may be that someone whom she consulted recognized the name of the Company; I do not know; but there was put before her, and shesigned, a form of request for Further and Better Particulars of the Claim. That form asked for details of the title of the Plaintiff Company, and in the next paragraph this question was asked: "Has the Plaintiff Company a license in Mortmain to hold No. 18 Rodney Road. If so the date of the license and particulars of that license." I need not read further.
The Plaintiff Company was, in fact, a company registered in Eire. That is want we are told. It was not registered under the Companies Acts in this country, nor had it a place of business in this country, nor had it a licence of any kind material to this case.
The Reply to the request for Further and Better Particulars contains these two paragraphs: "re: 18 Rodney Road. 1. The Plaintiff Company acquired the property by way of Assignment from John Henry Taylor dated the 29th November 1950. Inspection of the deeds can be arranged at this office on short appointment. 2. No, a licence in mortmain is not necessary in the case of land held under a short lease - see Truro Corporation v. Rowe (1902) 2 KB 709, quoted with approval in the 1949 Edition of Halsbury Vol. 5 page 936. See also Tudor on Charities (5th Edition) page 415. A lease is not an assurance in mortmain unless it is for so long a term as to amount to a permanent grant under color of lease."
It is upon the second paragraph of the Further Particulars that this appeal has been fought.
The case was heard before His Honor Judge Clothier, who, on the 8th April of this year, gave judgment in favor of the Defendant.
The question arises under Section 1 of the Mortmain and Charitable Uses Act, 1888, which was an Act to consolidate and amend the law relating to mortmainand to the disposition of land for charitable uses.
Section 1, sub-section (l), of the Act provides: "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 statute for 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."
Section 2 of the Act provided: "It shall be lawful for Her Majesty the Queen, if and when and in such form as she thinks fit, to grant to any person or corporation a licence to assure in mortmain land in perpetuity or otherwise, and to grant to any corporation a licence to acquire land in mortmain and to hold the land in perpetuity or otherwise." I draw attention to the words "in perpetuity or otherwise".
The Answer which was raised by and on behalf of Mrs Watchword was that the Plaintiff Company, not having a license in mortmain to acquire and hold the said property, had forfeited the same by virtue of the provisions of Section 1 of the Mortmain and Charitable Uses Act, 1888.
The case put forward on behalf of the Plaintiff Company was that the assurance or assignment of the reversion of the lease to them did not fall within Section 1 of the Act of 1888 by reason of the fact that the Company only acquired the residue of a lease, which lease, indeed, it was claimed was not covered by Section 1 of the Act. We were told by Mr Widgery that the person from whom the Company acquired the residue of the term had a 99-year lease, and that there were about 19 years of that leaseto run a t the time of the assignment of the residua of the term to his clients.
Section 10 of the Act of 1888 is the definition section: "(i) 'Assurance' includes a gift, conveyance, appointment, lease, transfer, settlement, mortgage, charge, incumbrance, devise, boquest, and every other assurance by deed, will, or other instrument; and 'assure' and assuror' have meanings corresponding with assurance."
And (iii): " 'Land' includes tenements and hereditaments corporeal and incorporeal of whatsoever tenure, and any estate and interest in land."
The concluding words "and any estate and intersest in land" were struck out by & section 3 of the Act of 1891. The alteration made by the statute law Revision Act 1908, is not material.
Mr. Widgery, on behalf of the Appellant Plaintiffs, submitted that the transfer or assignment to his clients of the residue of the lease was not an assurance for the benefit of a corporation in mortmain. He submitted that no question of mortmain arose unless the lease was a long lease, and he claimed in aid the note in Tudor on Charities under Section 1 of the 1888 Act — and I am reading from the Fifth Edition at page 415 — "It has been hold that a lease for a long term as 100 years or 200 years, is within the Mortmain Statutes, but not a lease of 20, 40, or even 99 years." Then there is a reference to the Abbot ofBoxley's case and to the case of Truro Corporation v. Rowe, which is reported in 1901 2 King's Bench Division at page 875. The note continues; "It was considered, however, in Vigors v. Dean, etc., of St. Paul's (1849), 18 L.J. Q.B. 97, that the Statutes of Mortmain only forbade a corporation to hold that which was in itself perpetual; and if this be so, the grant of a lease cannot be mortmain unless it is for a term which may be considered to be equivalent to an absolute alienation."
It appears to me that that note does not pay sufficient attention to the words of the section itself the note continues: "A grant of a rent-charge to an abbot and his successors for eighty years was held to be a mortmain", and there is another reference to the Abbot of Baxley's case.
It was pointed out to us that in Volume 8 of Halsbury's Laws of England the note under "Mortmain" at page 83 is not in agreement with that which is seated in Tudor on Charities. This is the note: " 'Assurance', for this purpose, includes a gift, conveyance, appointment, lease, transfer, settlement, mortgage, charge, incumbrance, devise, bequest, and every other assurance by deed, will, codicil, or other instrument … Formerly it was held that leases for long terms, as 100 or 200 years, were alienations in Mortmain, but not leases for 20, 40, or even 99 years … In Vipers v. St. Paul's (Dean, etc.) it was considered that the mortmain restrictions were aimed only at preventing corporations holding that which was perpetual. These authorities, however, were all earlier than the Mortmain and Charitable Uses Act, 1888. In Trure Corporation v. Rowe the point that 'assurance' includes 'lease' was not brought before the notice of the Court, and it was there held that the Statutes of Mortmainhad nothing to do with short leases, a decision which, though applicable to the old...
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