Rye v Rye

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE DONOVAN
Judgment Date04 November 1960
Judgment citation (vLex)[1960] EWCA Civ J1104-1
Date04 November 1960
CourtCourt of Appeal

[1960] EWCA Civ J1104-1

In The Supreme Court of Judicature

Court of Appeal

Before

The Master of the Rolls

(Lord Evershed)

Lord Justice Harman and

Lord Justice Donovan

Arthur Lockyer Rye
Plaintiff
Respondent
and
Ralph Walter Rye
Defendant
Appellant

MR T. M. SHELFORD (instructed by Messrs Scott & Son) appeared on behalf of the appellant.

MR R. WALTON (instructed by Mr. A. L. Rye) appeared on behalf of the respondent.

THE MASTER OF THE ROLLS
1

: We need not trouble you. Mr. Shelford.

2

This is indeed an unusual and a distressing case since the parties are not only related, one being the uncle of the other, but also they are both members of the solicitors' profession and the plaintiff is carrying on the business of solicitors known as Rye & Eyre which has been in existence for more than a century. But it is not for us to lament these things but to try to arrive at a conclusion in the circumstances as they are presented. Mr. Justice Buckley came in the end to a conclusion in favour of the plaintiff and I say at once that I reach a conclusion different from his with diffidence and reluctance.

3

The basis of fact may be briefly stated thus. In or about the beginning of the year 1942 the plaintiff and his brother, the defendant's father who was then alive, between them acquired, with perhaps the aid of a third person who dropped out later, the freehold of premises No.11 Golden Square in London, So far as the two brothers were concerned, it seems clear enough that they paid an equal proportion for the subject matter of the purchase. They were at the time together partners with a Mr. Jessup in the business of Rye & Eyre. Unhappily not long before Mr. Frank Rye's death the relationship between the brothers deteriorated and a notice was given by Mr. Frank Rye determining the partnership. I understand that proceedings for winding up that partnership began somewhere about the year 1948 or 1949 and they still are in a stage of suspended existence. What is said by Mr. Arthur Rye in the present proceedings is, putting it in broad terms, that since he and Mr. Frank Rye had contributed equally to the purchase of the freehold but were not equal partners (Mr. Arthur Rye having the greater share), it was agreed between the two brothers that there should be a tenancy of these premises, the tenants being the two partner brothers and that a rent of £500 a year should be paid to them as freeholders. That would mean that out of the partnership takings in which, as I have said, the t.ro brothers were not squally interested, £500 a year should be paid to the two brothers and that sum should then be equally divided between them. Thus the difference in interest between the two brothers as regards the premises on the one hand and the partnership on the other would be reconciled.

4

After Mr. Frank Ryo's death his son, the defendant, was taken by Mr. Arthur Rye, his uncle, into partnership; but that also unhappily did not work out satisfactorily and that partnership in due course was dissolved. The present rather startling situation is this. 11 Golden Square is and has been since 1942 the offices of the firm Rye & Eyre now conducted, I think I am right in saying, by the plaintiff as sole partner - though there is evidence that he also for a time took a great nephew into partnership. After the determination of the partnership between the plaintiff and the defendant, the defendant remained occupying the room at 11 Golden Square which his father had occupied when his father lived and was a partner. We are told (and photographs are in existence though we have not seen them) that at the entrance to the premises there is a notice indicating to all who may be interested to know it that within the building you will find not only the business of Rye & Eyre but also the solicitor, Mr. Ralph Rye, carrying on individually his own solicitor's business on the same promises. It is obviously a startling state of affairs. It is not altogether surprising, particularly as relationship is bad between them, that the uncle now seeks to evict Mr. Ralph Ryo from the room at 11 Golden Square.

5

Ono other fact must be stated and it is this. The land in question is registered land. We have not seen any documents of title or any copies of entries on the register dating as far back as 1942 but at some date about the year 1958 there were entered on the register and there are now remaining entered on the register the names of the three executors (or more strictly, the executrix and her two co-executors of whom the defendant is one) of Mr. Frank Rye with Mr. Arthur Rye as together being the proprietors of 11 Golden Square, so in the matter of title those four persons are jointly the owners of 11 Golden Square. Mr. Ralph Rye being one of the owners now says: I am in possession; and he further says, and he is entitled to say in answer to the claim: If you are to evict mc you must prove a title superior to mine.

6

I now go back to the case which Mr. Arthur Rye has sought to establish. The relevant paragraph in his statement of claim is the first paragraph: 11 The plaintiff, who is a solicitor, practises from No, 11, Golden Square in the County of London, which premises ho holds from the freeholders there of, who are the plaintiff himself and the trustees of the will of Frank Gibbs Rye deceased (of which trustees the defendant is one) at a rent of £500 per annum exclusive". In answer to a request for particulars of the tenancy the plaintiff wrote in August of 1958 a letter giving particulars on which Mr. Walton has founded himself: "When the firm of Rye & Eyre moved into this building in January 1942 my brother and I mutually agreed that the firm of Rye & Eyre should pay £500 per annum exclusive as the rent of No, 11 Golden Square, but there was no definite time agreed. Nonetheless, the benefit of this tenancy was part of the goodwill in respect of which I agreed to purchase my brother's share in the goodwill, and it cannot be disputed". Nothing for present purposes turns on the last sentence.

7

The first thing of course that springs to the mind of anybody concerned with this case is its extreme artificiality; for here the landlords and the tenants, if they be tenants, are the same two persons. It is, therefore, a case in which the plaintiff must establish that the two owners of the promises did grant an oral tenancy to themselves as tenants. Before the passing of the 1925 Law of Property Act the proposition would have been met with insuperable difficulties. But the first point that fell to be decided was whether it is now competent for a man to grant to himself, effectively in law, a tenancy of his promises by parole, The definition section in the ...

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