Rye v Rye
| Jurisdiction | UK Non-devolved |
| Judge | Viscount Simonds,Lord MacDermott,Lord Reid,Lord Radcliffe,Lord Denning |
| Judgment Date | 19 December 1961 |
| Judgment citation (vLex) | [1961] UKHL J1219-2 |
| Date | 19 December 1961 |
| Court | House of Lords |
[1961] UKHL J1219-2
Viscount Simonds
Lord MacDermott
Lord Reid
Lord Radcliffe
Lord Denning
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Rye against Rye, that the Committee had heard Counsel, as well on Wednesday the 15th, as on Thursday the 16th. days of November last, upon the Petition and Appeal of Arthur Lockyer Rye, of 11 Golden Square, London. W.1 (Solicitor), praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 4th of November 1960, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Ralph Walter Rye, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 4th day of November 1960, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This appeal is brought in an action commenced by the Appellant against his nephew, the Respondent, claiming a declaration that the latter is not entitled to use or occupy any part of the premises, No. 11, Golden Square, in the County of London, and ancillary relief. He was successful in his action before Mr. Justice Buckley, who made the declaration that he claimed, but the Court of Appeal took a different view and discharged the order of the learned Judge. Hence this appeal.
Two questions appear to arise. The first is whether it is competent for two persons orally to grant to themselves an annual tenancy of premises of which they are the owners. The second is whether, if so, an annual tenancy of the premises in question was in fact orally granted by the Appellant and his brother. Frank Rye, in the year of 1942. Upon the first question both the learned Judge and the Court of Appeal, founding upon certain provisions of the Law of Property Act, 1925, to which I shall refer, held that such a tenancy might lawfully be so created: upon the second question the learned Judge held that in fact such a tenancy had been created, but the Court of Appeal held that it had not.
My Lords, already for a hundred years the firm of Eyre and Rye had carried on the business of solicitors in the County of London when on the 28th June, 1916, a deed of partnership was executed between William Henry Eyre, Frank Gibbs Rye (the father of the Respondent), the Appellant and Thomas Henry Jessup. This provided for a renewal of the partnership for a term of years and for the division of the profits of the business in unequal shares. It also provided (a matter not wholly irrelevant to these proceedings) that the business of the firm should be carried on at No. 13, Golden Square, described as the property of William Henry Eyre, Frank Gibbs Rye and Arthur Lockyer Rye, and that the firm should be considered yearly tenants of the basement, ground and first floors of the premises upon the terms therein mentioned. Other usual provisions which I need not mention were also contained in the deed. They included a provision giving a surviving partner the right in certain circumstances to purchase a deceased partner's share. It seems that a dispute has arisen in regard to the exercise of this right and therefore, as it is not strictly germane to the matters now in dispute, though it may account for the attitude adopted by one at least of the parties, I will say no more about it.
It is unnecessary to say anything about the course of the partnership until 1942. By that time the only partners were Frank Rye and the Appellant, and in that year they moved the business from No. 13, Golden Square, to No. 11, which they had then acquired in equal shares. Thus it was necessary to make some arrangement which would reconcile their inequality as partners with their equal ownership of the premises on which the business was carried on. The question is what that arrangement was, but before I discuss it there are some other facts to be mentioned.
Frank Rye and the Appellant were duly registered as proprietors of the premises in H.M. Land Registry. Frank Rye died in 1948. His executors were his widow, Ellen Nora Deda Rye, Anthony Francis Rye and the Respondent, and on the 17th February, 1958, a change in the Register was made, the Appellant and the three executors being registered as proprietors. It is not clear why the change was not made at an earlier date. Shortly before his death Frank Rye had commenced proceedings for the dissolution of the partnership, and it is common ground that the partnership was thereby dissolved. Upon his death the action was continued against his executors, but the usual accounts and enquiries have not been proceeded with. Much trouble would have been avoided if they had.
In 1950, the Appellant took the Respondent, who had been an employee of the firm, into partnership as a salaried partner. This is not the least strange episode in the case: for, though the Appellant asserted and asserts (though he appears reluctant to bring matters to the test) that he has effectively given notice to purchase his deceased partner's share in the business, that position is by no means accepted by the Respondent, who claims that the Appellant carried on the business only for the purpose of realising its assets and winding it up. However, he did enter into a partnership arrangement which continued until the end of 1957 and was then determined. It appears that from the time of his father's death the Respondent, first as an employee and then as a salaried partner, occupied a room on the first floor which his father had previously occupied. And there he remains. His right, if any, to do so is now based on the fact that he is one of the registered proprietors: but he relies on the defence that he is in possession and puts the Appellant to the proof that he has a better title.
What, then, is the basis of the Appellant's claim to eject him? It has throughout been that in 1942 an agreement was made between him and his brother Frank that the firm should be granted a yearly tenancy of the premises at the rent of £500 per annum to be provided out of the partnership assets, and that this tenancy has not been determined. This view of the facts was accepted by Mr. Justice Buckley, but rejected by the Court of Appeal. If the issue of the case turned on the correctness of one view or the other, I should be bound to say that I prefer that of Mr. Justice Buckley. For it appears to me that the Court of Appeal was misled upon at least one vital point of the evidence. Both the Master of the Rolls and Lord Justice Harman attached great importance to the fact that, as they thought, there seems (in the words of Lord Justice Harman) to have been no "beginning" agreed upon, "still less an end". But in your Lordships' House it was admitted that the so-called rent, of which the first payment was made on Lady Day, 1942, was calculated from an earlier day. Nor was it to be expected that an end should be agreed, for the alleged tenancy was an annual one, for the determination of which the law provides. I say no more about this aspect of the case except to point out that the extreme artificiality of an arrangement under which an alleged rent is paid but none of the incidents, statutory or at common law, of the relation of landlord and tenant, can possibly operate is a fitting prelude to an examination of the difficult question whether such a tenancy can be lawfully created.
It is common ground, my Lords, that before the Law of Property Act, 1925, came into force it could not. But the Appellant claims that the law has been altered by the combined effect of sections 72 and 205 of that Act. In the Courts below the meaning and effect of section 205(1)(ii) has been the main topic of discussion, and it appears to have been readily assumed that, if "conveyance" includes the oral grant (or agreement to make a grant) of an annual tenancy, then either subsection (3) or subsection (4) of section 72 validates the transaction. I do not differ from those of your Lordships who think that section 205(1)(ii) has not this effect, nor do I think that any assistance is given by section 52 or section 54. But I would briefly examine the position if the contrary view prevails and an oral grant of a tenancy is a "conveyance" within the meaning of the Act and "convey "has a corresponding meaning.
I turn then to section 72. Subsections (1) and (2) are in effect re-enactments of provisions of the Law of Property Amendment Act, 1859, and the Conveyancing Act, 1881, respectively. Subsection (3), which is a new enactment, provides that after the commencement of the Act a person may convey land to or vest land in himself. Subsection (4), which is also new, provides that two or more persons (whether or not trustees or personal representatives) may convey and shall be deemed always to have been capable of conveying any property vested in them to any one or more of themselves in like manner as they could have conveyed such property to a third party there is a proviso to this subsection which is immaterial to the present discussion. Let me take subsection (4) first. In this subsection...
To continue reading
Request your trial
- Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) (Acn 107 611 218)
- Chia Foon Tau and Another v Lim Pey Lin
-
Ingram and Another v Commissioners of Inland Revenue
...ELR[1954] AC 57 Ramsay (WT) Ltd v IR Commrs ELR[1982] AC 300 Regent Oil Co Ltd v JA Gregory (Hatch End) Ltd ELR[1966] Ch 402 Rye v Rye ELR[1962] AC 496 St Aubyn v A-G ELR[1952] AC 15 St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No. 2)WLR[1975] 1 WLR 468 Walsh v Lonsdale ELR......
-
Bermuda Fire & Marine Insurance Company Ltd ((in Liquidation)) v BF & M Ltd and Others 1995 Civil Jur. No. 7
...Cowan and Sons Ltd.UNK [1967] 3 All ER 187 Glegg v BromleyELR [1912] 3 KB 474 Lloyd's Bank Ltd. v MarcanWLR [1973] 1 WLR 339 Rye v RyeELR [1962] AC 496 Re EichholzELR [1959] 1 Ch 708 Re CrossleyUNK [1954] 3 All ER 296 Re GeneseELR (1886) 17 QBD 1 Conveyancing Act, s. 37 Rules of the Supreme......