St. Marylebone Property Company Ltd v Fairweather
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0728-2 |
| Court | Court of Appeal |
| Date | 28 July 1961 |
[1961] EWCA Civ J0728-2
In The Supreme Court of Judicature
Court of Appeal
From His Honour Judge Mais St. Marylebone County Court
Lord Justice Holroyd Pearce
Lord Justice Willmer and
Lord Justice Pearson
Mr ANTHONY LINCOLN and Dr Mr PHILIP S. C. LEWIS (instructed by Messrs Hall, Brydon) appeared on behalf of the Appellants (Plaintiffs).
Mr J. H. LAWARUS, C., and Mr NATHANIEL MICKLEN (instructed by Messrs Withers, Nicholl, Manisty & Co.) appeared on behalf of the Respondent (Defendant).
LORD JUSTICE HOLROYD PEARCE The plaintiffs appeal from so much of the learned Judge's order as dismissed their claim against the defendant Fairweather for possession of three-quarters of a shed on the plaintiffs1 land, and made a declaration that the defendant Fairweather was entitled to occupy it. There were other issues in the case, some involving the second defendant, but this appeal does not raise these issues, and the second defendant is not concerned in it.
The relevant facts are these. Nos. 311 and 315 West End Lane, Hampstead, are adjoining houses with back gardens. They were originally held by one freeholder, who built a shed in the back gardens. Unfortunataly three-quarters of that shed was built on the garden of No. 315, and the remaining quarter (which contains the entrance to the shed)was built on the garden of No. 311. In 1894 the two properties were leased to separate losses for ninety-nine years.
The subsequent history of No. 311 was as follows In 1919 Millwood was a sub-lessee carrying on the business of an upholsterer. In 1920 he repaired, fitted up and used the shed whoso entrance was on his land. In 1929 he bought the head lease. He occupied the shed without interruption until 1951. It is conceded that that occupation was adverse to the occupiers of No. 315, and that it was sufficient to give him, as against them, what is called by the convenient, if misleading, name of a squatter's title. In 1951 Millwood sold the business and let the premises of No. 311 to Pliska under lease for a period of twenty-one years from the 29th September 1951. The Judge rightly decided that by virtue of section 62 of the Law of Property Act 1925 this lease included by implication the use of the shed which Millwood was enjoying at the time of the demise. In 1958 Millwood bought the freehold of No. 311. In 1959 the plaintiffs, as freeholders of No. 315, objected to the use of the shed by Pliska. Millwood, in order to avoid trouble, acknowledged to the plaintiffs that he had no claim or rights over the three-quarters of the shed built on the garden of No. 315. Millwood's losses, however, maintained his right to use the shed, and continued to do so. The plaintiffs then removed the tiles from the three-quarters of the shod on No. 315. This spirited demonstration, though relevant to the issues in the court below, has no relevance on this appeal save in so far as it is used as a foundation for an argument based on estoppel to the effect that the plaintiffs, on the faith of Millwood's disclaimer, altered their position for the worse. In 1960 the defendant flair weather bought the business from Pliska and took an assignment of his twenty-one years lease. He thus acquired a right to use the shed. He contends that he has such a right as against the Plaintiffas although they have recently become the freeholders In Possession of No. 315. The learned Judge accepted this contention
The plaintiffs' title to No. 315 arose as follows. In 1959 they bought the freehold subject to the ninety-nine year lease. a few months later the lease was surrendered to them. Thus the lease was merged in the freehold, and the plaintiffs became the owners of the foe simple In possession.
It is agreed that section 16 of the Statute of Limitation 1939 barred the former leaseholder of No. 315 from ejecting Kellwood or his successor. It is also agreed that the freeholders of No. 315 have not as such been affected by the statutory rights of Kellwood and his successors, and that at the end of the full term of the lease, namely, In 1993. the plaintiffs can eject the defendant.
It Is contendod, however by the defendant that a surrender of the lease cannot deprive him of his rights acquired during it, and that the plaintiffs have no right to eject him until the lease would have terminated by effluxion of time. the defendant's authority for this proposition is the case of ( Walter v. walden 1902 volume 2 King's Bench Division, page 304) decided in the Divisional Court
The learned Judge in the present case correctly concluded that ho was bound by the decision and reasoning of that case, and accordingly dismissed the plaintiffs' claim for possession. The plaintiffs here contend that Walter v. Yalden was wrongly decided.
They argue that their right as freeholders to eject the defendant arose on the surrender of the lease, which thereby merged in their estate in fee simple. In the alternative they contend that Kill-wood's disclaimer of any right of ownership (albeit made after he had passed his rights to his tenant) was binding on the tenant as his privy, and having been acted on by the plaintiffs to their detriment created an estoppel which prevents the defendant from now assorting any right to the three-quarters of the shed on the plaintiffs' land. I cannot accept that alternative argument. Hillwood cannot by estoppel in a matter between him and the Plaintiffs divest the defendant (who was not a party to that matter) of proprietary vested rights granted by Hillwood. The main argument, however, has considerable force. The case has been ably and clearly argued before us on both sides.
Walter v. Yalden decided that where a trespasser on land left on lease has acquired a title under the Statuto of Limitation, and the lessee subsequently surrenders the lease to the lesser, the lessor entry, and the period of limitation does not begin to run, until the expiration of the tern for which the lease was granted.
The Divisional Court arrived at that conclusion on the following grounds. The lessees "against whom the porson in possession has acquired the right to possession of the property", said Lord Alverstone (Chief Justice) "could not by assignment or underloase deprive him of that right; and it seems to mo to follow not necessarily that the perdon who is in possession becomes liable on the covenants of the lease, or is to be treated as being in the position of the lessee, but that the surrender cannot operate so as to deprive him of the title he has got against the persons against whom he is entitled to claim possession1" -Otherwise, he points out, the lessee could defeat the operation of that possession in his own favour by some transaction to which the person who had been in possession for the statutory period was not a party. The learned Lord Chief Justice appears to have placed roliance on a passage in Darby & Bosanquot's Statutes of Limitation, citing an Irish case of ( Rankin v. mekurtry volume 24 Irish Law Reports, page 290) to the effect that the title gained under the statute by possession is commensurate with the interest which the rightful owners have lost, and must, therefore, have the same legal character.
Mr Justice Darling agreed. Mr Justice Channell, who considered the point difficult, said that the lessee could only give title to his lessor by a surrender to the same extent that ha could give it by assignment. "He has no power to effect by surrender anything that he could not do by assignment to a third Person.… ho could not have assigned a right of entry to anybody else, and no more could he assign it to his lessor".
The decision of the Court of Appeal in ( Tichborne v. Weir volume 67 Law Times Reports, page 375) was apparently not cited to the court. It is argued by the plaintiffs that had it been cited, the Divisional Court must have come to a different conclusion. In Tichborne v. Weir the tonant of a long lease from the plaintiff's predecessor borrowed on it under an equitable mortgage. The mortgagee entered into possession of the property and paid rent under the lease for many years. Thereby he obtained a statutory right under the Real Property Limitation Acts as against the tenant. He later assigned his estate and interest in the lease to the defendant. The plaintiff sought to enforce against the defendant the covenants contained in the lease. It was held that the right and title of the tenant under the lease was not transferred by the statutes, and that the defendant was not liable on the covenants. That case disposed of "the Parliamentary conveyance heresy" founded on earlier dicta. Lord Esher said at page 737: "All these reasons show that the effect of the statute is not that the right of one person is conveyed to another, but that the right is extinguished and destroyed". Lord Justice Bowen said at page 737!I think that the statute makes no transfer of any kind". He referred with approval to the statement in Dart's Vendors and Purchasers to the effect that; "If the statute operated as a sort of involuntary alienation of the estate of the rightful owner, the adverse possessor would take it subject to the subsisting charges .… but this is clearly not the operation of the statute". He also approved a statement in Hayes on Conveyancing: "We must not, however, confound the negative effect of the statute with the positive effect of a conveyance".
In ( Taylor v. Twinberrow 1930 volume 2 King's Bench Division, page 16} Walter v. Yalden was discussed and distinguished in the Divisional Court. The plaintiff's predecessor, being a yearly tenant of a cottage, allowed his brother-in-law to live in to rent free, and to acquire a title by adwrse possession. He then bought the freehold. His brother-in-law died, and when the plaintiff sought to...
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