Tanner v Tanner
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BROWNE |
| Judgment Date | 30 April 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0430-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 1975 |
[1975] EWCA Civ J0430-2
In The Supreme Court of Judicature
Court of Appeal
Revised
Appeal by defendant from order of His Honour Judge Eric Stockdale on 19th June 1974 at Barnet County Court.
The Master of The Rolls (Lord Denning),
Lord Justice Browne and
Mr. Justice Brightman.
Mr. M. WILLIAMS (instructed by Messrs. Hyde Mahon and Pascall) appeared on behalf of the Appellant Defendant.
Mr. DENNIS LEVY (instructed by Messrs. W. R. Bennett Emmanuel) appeared on behalf of the Respondent Plaintiff.
In 1968 Mr. Eric Tanner was a milkman during the day, and a occupier at night. He made been married for many years. He had a daughter then aged 19 and a son aged 12. They lived together at 26 Achilles Road in West Hampstead. But, to use his own words, he got disgusted with his marriage and went out and had a good time. He went out with three women, he said, "simultaneously meaning separately but during the same weeks or months. One of these women was an attractive Irish girl, Miss Josephine MacDermott. She was a cook in a nursing home. She had a flat in 33 Steels Road, Hampstead, on the third floor. He visited her frequently. She became pregnant by him. She took his name and became known as Mrs. Tanner; but to avoid confusion, I will call her Miss Josephine Joan MacDermott. In November 1969 she gave birth to twin daughters. They decided it was best to get a house for her and the twin babies. They found one at 4 Theobalds Avenue, in North Finchley. He borrowed a sum on mortgage with a local authority. In applying for it, he filled in a form. He said that he was 45. His wife was 41. He had a son aged a daughter aged 20 and two twin daughters of 6 months. That was a very misleading application, because he was not getting it for his wife and his older children. He wanted it for Miss Mac Dermott (who was now Mrs. Tanner) and the twin babies. By means of that misrepresentation he got the house on mortgage. It was in his own name. Miss Mac Dermott and the baby twins moved in there. She brought a good deal of her furniture and spent £150 on furnishings for it. She moved into the ground floor. They let the first floor, she managed the lettings and collected the rent. Previously, whilst she was in her flat in Steels Road, Hampstead, he had paid her £5 a week maintenance for the two twins. But after she moved into Theobalds Row, he paid her nothing for them or for her. She got a supplementary allowance under social security from the local authority. She got an increased amountfrom them for rent: because she told them she was paying him £3 a week for rent.
Now all this time, unknown to her, Mr. Tanner was associating with another woman - a married one - Mrs. Metcalfe, who had a house in Willesden. Eventually Miss Mac Dermott got to know about it; and he did not visit her very often at Theobalds Avenue. By 1971 the time came when she was suggesting that the house should be sold. In one letter to him she said: "Its not fair on the twins; they deserve a much better deal from life than this. Its best you sell this house and let me and them have the cash to start a new life in some country." In another letter she said: "Sold furnished it should fetch around £6400 for it as things are at the moment. I don't know how much the mortgage people will west from you, then, take out of it any money you have spent on mortgaging it and on rates, electric etc. Then what's over I will have for the twins and for the loss of my Hampstead flat." He did not reply to those letters. But he talked to her and said he wanted her, to get out of the house. He offered her £4,000. Her evidence was: "He offered me £4000 for something else. I refused as the house was supposed to be ours until the children left school." His evidence was: "I offered £4000 to the defendant when I was still single in June 1973. I offered it for a bungalow in the country. But she said this was her house and she would not leave." So she stayed there.
By this time he had got a divorce from his first wife. He married Mrs. Metcalfe - the lady in Willesden - and moved into her house at Willesden. She too became pregnant. He found himself in financial difficulty. So much that he determined to get Miss Mac Dermott with the twins out of the house in Theobalds Avenue and to move in there himself, if he could. On 16th July 1973 his solicitor wrote to Miss Mac Dermott:
"We act for Mr. E. R. Tanner and we understand that you have, together with your two daughters, been occupying part of the above property which belongs to him for some time past under license. We sire instructed to inform you that Mr. Tanner revokes the license forthwith and to ask you please to let us know the date you will be vacating with your children. We are instructed further to toll you that as from the date you vacate our client will pay you the sum of £pound;6 per week for the keep of the two children Valerie and Gloria until they attain the age of 16 years. Mr. Tanner feels that he has been more than generous to you in the past and hopes that you will be able to vacate within the next three or four weeks."
She did not vacate, and he brought proceedings in the County Court to turn her out. She put in a cross claim saying she was entitled to a share in the house, and that she ought not to be turned out."
In the County Court Counsel for Miss MacDermott submitted that she was in the house under a licence which he was estopped from terminating: and that he could not transfer the house while the children were of school age. For this he relied on Combed v. Combe 1951 K. B. 215 at page 220. Alternatively Counsel submitted that a trust could be inferred whereby she obtained a beneficial interest in the property for herself and children. For this he relied on Gissing v. Gissing 1971 A. C. at page 905-6; and Cooke v. Head 1972 1 W. L. R. 518 at page 520.
The Judge rejected these contentions. He found that this man never intended to marry the lady: and made it clear to her that marriage was out of the question. She was quite aware of this. The Judge said that she made the move to Theobalds Road because she thought it best for herself and the twins, not on the basis of future security. The Judge found that she had no right to stay in the house. He said: "Had there been discussion about a homeuntil re-marriage, or money handed over, things might have been different. Although one's sympathies are with the defendant, it would be wrong to stretch the authorities improperly to find estoppel or trust Even though the defendant is the cause of the problems, he is not to be punished; he is entitled to ask the Court to protect his rights. Accordingly the plaintiff is entitled to an order for possession." He made an order for possession in six weeks and rejected the counterclaim.
The case is different from Cooke v. Head and a case we had earlier this week, Eves v. Eves. In those cases the man and his mistress obtained the house in contemplation of marriage. Here they did not. Nevertheless it seems to me plain on the evidence that the house was...
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