Silver v Silver
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PARKER,LORD JUSTICE SELLERS |
| Judgment Date | 05 February 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J0205-5 |
| Court | Court of Appeal |
| Date | 05 February 1958 |
[1958] EWCA Civ J0205-5
The Master of the Rolls (Lord Evershed),
Lord Justice Parker and
Lord Justice Sellers.
In The Supreme Court of Judicature
Court of Appeal
Mr. MICHAEL KING (instructed by Messrs, Sharps Pritchard & Co., agents for Messrs. Andrews Wetherall McQueen & Co., Bournemouth) appeared on behalf of the Appellant husband.
Mr. T.R. CRAWFORD (instructed by Messrs. Peacock & Goddard, agents for Messrs. Trevanion Curtis & Walker, Bournemouth) appeared on behalf of the Respondent wife.
: This was an application made under section 17 of the Married Women's Property Act, 1882, by a husband seeking an Order to the effect that certain property in Bournemouth known as 11, St. Ledger's Road, was held by the Respondent, the wife, upon trust either for him, the husband, or for the two of them jointly. In this Court the husband has confined his claim to the latter alternative, and he has also In this Court said that if such an Order were made, he would regard himself as under a continuing obligation to discharge certain mortgage installments. The house in question, 11, St. Ledger's Road, Bournemouth, is in fact the fourth of what I might call a series of houses which constituted the matrimonial home over a long period of time of the husband and the wife and their children. It is indeed a peculiar tragedy of this case that husband and wife having been married in 1931 and having lived together more than a quarter of a century, their marriage cane to grief at the end of 1956, when the husband left the wife and the matrimonial home in St. Ledger's Road, Bournemouth.
The essential facts as regards the value, price and so forth of the four constituents of what I have called the series will be found in the answer of the wife to the husband's application in the County Court, and I can I think summaries the matter still further. The first of the premises bought was a house in North wembley, London, The sum required was £895, and of it £90 was paid in cash and the balance was the subject of a mortgage repayable in installments to the Burnley Building Society, who have remained mortgagees in these transaction through out. The house some 10 or 11 years later was sold at a substantially improved price, namely, £1,700; and then another house was bought at a price of £2,000. In that case £1,500 of the £2,000 was left on mortgage. That house, which was in Bournemouth, was so four years later at a very greatly enhanced figure, asely, £4,500; and, cutting the matter short, as I can, the two last items in the series, Brockenhurst Road, Bournemouth, and St, Ledger's Road, Bourt mouth, were again houses of increasing values according to the figures, bought as to part by using the proceeds of sale of what proceeded them, the remainder being left on mortgage. It is, however, to be noted that at in the one case of Richmond Wood Road, Bournemouth (the second house bought) where, as I have said a very greatly enhanced price was obtained on the sale, there was available after the purchase of the new house a sum of something in the neighborhood of a thousand pounds, which might be described, to use language which was used in Rimrner's case as a windfall. It was a substantial profit which had been made by good fortune in the purchase of these houses, though it must be emphasised that they were bought not for investment purposes but as the matrimonial home. I shall come back to show something more about that thousand pounds later. It remains only at this stage to say that in every case the houses were conveyed to the wife and into her name. She accordingly was the mortgagor, but the husband joined in the mortgage deed as a guarantor – a transaction which I imagine Is common enough. His obligations as guarantor, we were told - though there is very little evidence about it - were secured by the deposit of a policy of insurance on his life,. The mortgage installments have throughout, so far as the evidence goes, been paid directly or indirectly by the husband. I use that phrase, "directly or indirectly", for this reason: It seems that the husband throughout the time that husband and wife lived together, paid his wife a weekly sum out of which she paid, among other things, for household expenses, and so forth. She also provided out of It - either by handing the money back to him or otherwise - the mortgage Installments.
Those are the broad circumstances, and the question Is, now that unhappily the husband and wife are parted, in what shares ought this house to be treated as being held beneficially? Where you have a subject-matter such as the matrimonial home or what you might call part of the matrimonial joint stock furniture and so forth It is obviously tempting to say that equity delighteth In equality, and that you should treat the subject-matter as a joint Investment In the true sense, so as to allow each to Share equally in it. But, however tempting it is, I think that there are difficulties in the way of so broad and general a view. If Parliament had thought that that would be a fair solution in these cases, it could have so provided. There is a rule of equity which still subsists, even though in this day and age one may feel that the presumption is more easily capable of rebuttal - a rule that if a husband makes a payment for or puts property into the name of a wife, he intends to make an advancement to her. As was. said by Sir George some time ago, such a disposition by the husband, unless otherwise explained, will be treated in equity as intended to effect a gift.
In the case before us the question is, as I have said, one to be determined according to section 17 of the Act, the language of which, so far as relevant, is: "In any question between husband and wife as to the title to property, either party… may apply" to a Judge named, who "may make. such order with respect to the property in dispute as he shall think fit". In this case the learned Judge heard the husband and the wife. Upon one very important matter of fact he showed a clear preference for the wife's evidence; and having heard all the evidence, he came to the conclusion bearing in mind, as he was bound to do the existence of the equitable rule that there was here no reason established on the husband's application for saying that this property, vested as it is exclusively. in the name of the wife, belonged, wholly or in part to the husband. We are invited in this Court to take a different view, but I must say as once that, having given the case anxious consideration not the less anxious because, as has been pointed out, there is a certain air of unreality in these cases in trying to discern an intention in acts and circumstances which occurred when the present events were quite outside contemplation I have in the end concluded that we should not be Justified In disturbing the learned Judge's conclusion.
This, let me say, is not a case which is commonly met with today in which husband and wife are both wage-earners, where both may contribute, either equally or unequally, to some subject matter of acquisition. In the case of ( Rimmer v. Rimmer 1952, 2 All England Reports, page 863), which I have mentioned the husband and wife had both so contributed, though in unequal shares. The property was there vested in the husband - not the wife and the question was, in the circumstances how beneficially ought the property to belong? At first instance it had been thought proper to make the beneficial Interests proportionate to the figures of the total contributions; but we thought in this Court that that was too artificial a result and that in the circumstances the appropriate Order to make under the section and the one most in accordance with what...
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