Sen v Headley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE |
| Judgment Date | 28 February 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0228-12 |
| Docket Number | 91/0233 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 February 1991 |
[1991] EWCA Civ J0228-12
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr. Justice Mummery)
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Nourse
and
Lord Justice Leggatt
91/0233
MR. DAVID HODGE (instructed by Messrs Bernard Oberman & Co.) appeared on behalf of the Appellant (Plaintiff).
MR. IAN LEEMING Q.C. and MR. NIGEL THOMAS (instructed by Messrs Edwin Code) appeared on behalf of the Respondent (Defendant).
Donationes mortis causa may be said to have been an anomaly in our law, both for their immunity to the Statute of Frauds 1677 and the Wills Act 1837 and as exceptions to the rule that there is no equity to perfect an imperfect gift. But both Lord Hardwicke and Lord Eldon, while making to regret the doctrine, established extensions of it beyond a simple gift of a chattel by its delivery; the former to a gift of money secured by a bond, by delivery of the bond; the latter to a gift of money secured by a mortgage of land, by delivery of the mortgage deed. Later decisions have included gifts of other choses in action by delivery of the essential indicia of title. What has never before been directly decided in England is whether the doctrine applies to a gift of land by delivery of the title deeds. Lord Eldon undoubtedly thought that it did not, a view which has generally been assumed to be correct. Now Mr. Justice Mummery has given a decision in line with that assumption and we have to say whether we agree with him or not.
The facts of the case are set out in the judgment of the learned judge [1990] Ch. 728 and need not be repeated at length. Their essentials, which can be stated mainly in the judge's own words, are these. At his death aged 80 on 7th December 1986 the late Mr. Vivian "Bob" Hewett was the owner of an unregistered freehold house, 56 Gordon Road, Ealing, London W5, a substantial, detached, suburban property in a dilapidated condition. He had bought the house in 1936 for £1,100. Before the judge it was estimated to be worth several hundred thousand pounds, being the principal asset of an estate which was sworn for probate purposes at just under £315,000. Mr.Hewett had been married, but had had no children. After many years of separation, he and his wife were divorced in 1977. For over 30 years Mr. Hewett had enjoyed a close friendship with the plaintiff, Mrs. Margaret Sen. For about 10 years from the end of 1954 they lived together as man and wife. Although from about 1964 onwards Mrs. Sen saw less of Mr. Hewett, the judge accepted her evidence that their relationship continued to be a close one and that it could not have been closer if they had actually been husband and wife.
Early in November 1986 Mr. Hewett was admitted to the Hammersmith Hospital suffering from an inoperable cancer of the pancreas. He was informed that his condition would inexorably deteriorate. While he was there Mrs. Sen visited him every day. She also looked after his house, to which she had always had her own set of keys. Amongst the things which he asked her to bring to the hospital was a bunch of keys kept in a drawer of the sideboard. Mr. Hewett wanted to go home to die and on 26th November he left the Hammersmith Hospital. On 2nd December he collapsed on the floor of his bedroom and was admitted to the Ealing Hospital, where Mrs. Sen continued to visit him every day in a room of his own. Mr. Hewett knew that he did not have long to live.
On 4th December, three days before his death and when they were alone together, Mrs. Sen asked Mr. Hewett what she should do about the house if anything should happen to him. Mr. Hewett replied: "The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box". When she asked about the contents of the house, he said: "Do what you like. It's all yours." Nothing more was said between them about the subject of the house or its contents.
After Mr. Hewett's death Mrs. Sen found in her handbag the bunch of keys which she had brought to the Hammersmith Hospital at his request. She. did not know how they came to be there, but believed that Mr. Hewett must have slipped them into the handbag, without her noticing, on one of her many visits to the hospital. In any event, the judge, who accepted Mrs. Sen's evidence throughout, found that Mr. Hewett had delivered the bunch of keys to Mrs. Sen, being the keys referred to by him on 4th December. One of them was what appears to have been the only key to the locked steel box in which the title deeds to the house were kept. Another was the key to a cupboard in the house in which Mrs. Sen found the box a day or two after Mr. Hewett's death. She was not sure whether the cupboard was locked or unlocked. But when she unlocked the box the deeds were inside.
Mr. Hewett died intestate. His next of kin are a sister who lives in South Africa, a nephew who lives in Vancouver and a niece who lives in Brighton. The writ was issued on 13th October 1987. Letters of administration to the estate have since been freshly granted to the nephew, who is now the defendant in the action. Mrs. Sen claims that Mr. Hewett made her a donatio mortis causa of the house by constructive delivery of the title deeds, the only key of the steel box in which they were kept having been delivered to her before Mr. Hewett uttered the words of gift on 4th December. Mr. Hewett having at all times retained his own set of keys to the house, no claim has been made in respect of the contents. For reasons which will appear incidentally in due course, it could not have been argued that there was any delivery of the contents.
There have been several judicial statements of what, in general terms, is necessary to constitute a donatio mortis causa: Cain v. Moon (1896), 2 QB 283, 285 (Lord Russell of Killowen C.J.); re Craven's Estate (1937) Ch. 423, 426 (Farwell J.); and Delgoffe v. Fader (1939) Ch. 922, 927 (Luxmoore L.J.). Regard must also be had to what was said by this court in Birch v. Treasury Solicitor (1951) Ch. 298, the most authoritative of the modern decisions. If the question whether the subject matter is capable of passing by way of donatio mortis causa is put on one side, the three general requirements for such a gift may be stated very much as they are stated in Snell's Equity, 29th ed., 380–383. First, the gift must be made in contemplation, although not necessarily in expectation, of impending death. Secondly, the gift must be made upon the condition that it is to be absolute and perfected only on the donor's death, being revocable until that event occurs and ineffective if it does not. Thirdly, there must be a delivery of the subject matter of the gift, or the essential indicia of title thereto, which amounts to a parting with dominion and not mere physical possession over the subject matter of the gift.
The trial extended over three days in November 1989, with judgment being reserved. Mr. Justice Mummery gave a very careful judgment. He found no difficulty in holding that the first and second requirements were satisfied on the evidence and that part of his decision has not been questioned. At page 736 B-C he said:
"The real difficulty in this case is caused by the third requirement which raises acutely the question whether it can ever be complied with in the case of real property when all that has occurred is an informal delivery of title deeds, or the means of access to the title deeds, accompanied by oral words of gift."
It was largely because the judge, after a conscientious review of English and Commonwealth authorities and texts, was of the opinion that that difficulty had not been overcome that he dismissed the action. He also regarded it as an area where judicial caution and certainty of precedent were appropriate and as one where the policy of the law in regard to the formalities for the creation and transmission of interests in land should be upheld. Against the judge's decision Mrs. Sen has now appealed to this court.
Although donationes mortis causa were taken from the Roman law, it is only the first two requirements which now bear evidence of that ancestry. They are embodied in the definition given in the Institutes, Book II, Title VII, sc: "Mortis causa donatio est, quae propter mortis fit suspicionem etc….", which was adopted by Lord Loughborough L.C. in Tate v. Hilbert (1793) 2 Ves. 111, 119. With regard to the third requirement, the judgment of Lord Hardwicke L.C. in the leading case of Ward v. Turner (1752) 2 Ves Sen. 431 shows that the necessity for a delivery in every case and the acts sufficient for that purpose are developments of English law. Moreover, while Roman law allowed every form of property which could be bequeathed by will as a legacy to be the subject of a donatio mortis causa, including, it would seem, land whether free from mortgage or not (see the argument of Mr. Longley in Duffield v. Elwes (1827), 1 Bli. (N.S.) 497, 514), Mr. Hodge, in his excellent argument on behalf of Mrs. Sen, correctly as we think, has not suggested that that is a reliable guide to the species of property which are capable of passing by way of such a gift in English law. We can therefore turn away from the Roman law and give our whole attention to the English authorities.
In Snellgrove v. Baily (1744) 3 Atk. 213 a bond for £100 was given by one Spackman to Sarah Baily, who delivered it to the defendant, saying: "In case I die, it is yours, and then you have something." Sarah Baily having died, the administrator of her estate sued...
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