Thomas v Fryer
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE MEGAW |
| Judgment Date | 25 February 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0225-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 February 1970 |
[1970] EWCA Civ J0225-3
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: His Honour Judge Moylan-Edmonton County Court)
Lord Donovan
Lord Justice Russell and
Lord Justice Megaw
Mr. PETER OLIVER, Q.C. and Mr. NEIL BUTTERPIELD (instructed by Messrs. Stafford Clark & Co.) appeared on behalf of the Appellant (Defendant).
Mr. EDWIN PRINCE (instructed by Messrs. Lawrence Graham & Co.) appeared on behalf of the Respondent (Plaintiff).
JUDGMENT LORD DONOVAN: This appeal arises out of a contest for the possession of a dwelling-house. The house is No. 47 Queens Road, London, N.11. Mrs. Alice Fryer, a widow aged 60 or 61, has lived in this house with members of her family for over 30 years. She has a controlled tenancy.
Possession of the house is now sought by Miss Thomas. She does so pursuant to Case 8 of Schedule 3 of the Rent Act, 1968, which, read with section 10 of the same Act, allows a court to make a possession order if the landlord ( inter alia) reasonably requires the dwelling-house for occupation as a residence for himself, and did not become a landlord by purchasing the dwelling-house or any interest therein after one of two specified dates. In this case the specified date which is applicable is the 7th November, 1956.
Miss Thomas became the landlord of this house in the following circumstances. It was owned by her mother, who died on the 26th June, 1961. In her will she disposed of the house by a residuary gift in these words: "The residue of my estate I give and bequeath in equal shares unto my four children Barbara, Owen, Geoffrey and Mildred if living at my death". Mildred is the Miss Thomas to whom I have already referred.
All four children survived their mother. All four were named as executors. The eldest child alone, however - that is, Owen Thomas - proved the will, and did so on the 5th October, 1961. Besides the house 47 Queens Road the testatrix left some 4, 500 in stocks and shares. After making specific bequests of certain chattels, and leaving some pecuniary legacies to others, she disposed of the residue in the terms I have already quoted. The residuary gift therefore comprised the house and such of the investments as were not required to meet the legacies.
Miss Thomas is a teacher by profession. She is now some 51 or 52 years of age. She has spent a large part of her life travelling. Before her mother died, she, Miss Thomas, had told her she would like to have the house. After the mother'sfuneral the question as to what should be done with it arose, and there was a discussion among the four children.
In the normal way I should simply summarise the evidence relating to it: but the words themselves, as noted by the County Court judge from whose order this appeal is brought, reveal the atmosphere in which the relevant transaction was A conceived and concluded, and I therefore quote them.
Miss Thomas said this: "Owen asked us what should be done about this house - asked others if they wanted it - they said No. He asked me; I said Yes. Certain amount of effort to persuade me not to have it. But I wanted my own home in this country. Owen was strongest in trying to persuade me not to have it: he said it would be better for me to have securities. Eventually all agreed that house should be mine. Nothing said about money on this occasion.
"later Owen gave me deeds of house and said I had better C see about getting the house transferred. I cook deeds to a solicitor. Owen said I should probably have to pay some money to make an adjustment, because he wanted to give me securities as well as the house, and we did not know whether this would be more than my share of the estate. Eventually he told me to make D out a cheque for £500 to him - I assumed for him and other brother. On another occasion he told me to let my sister have £250, which in course of time I did.
"I had earlier been to an estate agent at Owen's request and asked him to value house. I obtained valuation - £900. After this Owen gave me the deeds. I took it to a solicitor, told him house was to belong to me and asked him to do the necessary work. Eventually I also received stocks and shares from mother's estate. Never entered my head that I was 'buying' the house from Owen or the family".
Under cross-examination, she said, among other things: "Later, Owen gave me deeds of house. I said'Can I get on with this?" I took deeds to a solicitor - husband of an old friend of mine - and told him house was to be mine. As far as Iremember no details of money had been mentioned at that stage. "Order of events: (1) Discussion after funeral. (2) I went to estate agent to get valuation - few days before 28th July 1961. (3) I told Owen what valuation was. (4) I told Owen I was going back to Africa. He gave me deeds. I went to solicitor and told him to send all documents to Owen. (5) I went to Africa middle November 1961. (6) After house was in my name I was asked to pay money.
"It was in my mind that I should have to make a money adjustment. I don't remember whether Owen mentioned this before I returned to Africa or wrote to me in Africa. I only concerned myself that I should not intentionally do down my brothers and sister. I don't remember seeing an account of distribution of mother's estate.
"I went to an estate agent who knew parents. I told him I was going to have the house from mother's estate and asked him to value it. I visited him again. He said value £900. I said 'Is that all?' He said'Well, it could be £1,000'. He then made out a document - which I presume was valuation. I didn't think of the £750 as three-quarters of value of house - I just paid what Owen said".
Owen Thomas in his evidence said this: "I remember a discussion - not sure if we were all present - after mother's death about fact that Plaintiff wanted house. The others agreed she could. Plaintiff has a way of trying to hurry people up. It took me some time to persuade other executors to stand down. Before I had done this Plaintiff asked if I would like her to get valuation of house for probate - because she was in the area. She went to estate agent who had collected mother's rents. Valuation was sent to me by the estate agent. Before I went on holiday in September I had put in application for probate. Estate Duty Office made a mistake in calculation of duty - I had to repeat application. I finally got probate 5th October 1961.
"At that point Plaintiff was going to Africa and wanted to hurry up transfer of house. She asked me if she could arrangefor a solicitor to get on with it. I agreed. I gave her the deeds. She went to the solicitor and arranged for me to call on him. I went to see Robbins, solicitor. I told him that all I required was a simple transfer of title - no question of investigation of title or other researches. He acted on my instructions having had no specific instructions from Plaintiff who had approached him on my behalf as executor. Solicitor suggested it would be wise to do a search. I agreed because I wanted to be sure Plaintiff wasn't taking over something I didn't know value of. Solicitor said appropriate form of transfer was an assent. I asked him to prepare this after searches. I told solicitor bill to be sent to me as executor.
"This was early November. He kept me hanging about for some time. Eventually he produced assent for me to sign. I signed it. I was careful to have it dated 1st November 1961, which made it 1st item of property in estate to be disposed of. Before mother died I had mother's estate arranged so it could be neatly divided into quarters. When Plaintiff said she wanted house, I felt this might be an unfair share of estate. At that time lot of talk about Labour Party nationalising rented property. This was why I talked to Plaintiff about it because whereas stock market was down and shares all likely to improve I felt house likely to go other way. This didn't affect Plaintiff's wish to have house.
"As I was anxious Plaintiff should have same chance to benefit from appreciation in share values as 3 other beneficiaries I persuaded her to accept one-quarter of those. This meant some adjustment had to be made. Plaintiff made a cash adjustment but more or less left it to me to decide what it should be. This must have been first discussed when I persuaded Plaintiff to accept one-quarter share of stocks. That was before she went to Africa. Idea was to clear whole thing up before she went to Africa. When Plaintiff agreed to take one-quarter of the shares I worked out what the cash adjustment should be - probably in same conversation. I thought it should be three-quarters of theapproximate value of the house or a bit more because houses are usually undervalued for probate. I told Plaintiff this but did not name any figure.
"Next that I knew was Plaintiff sent me a cheque for £500, to be divided between brother and me, and said she had made a private arrangement with sister re other £250. I thought this was a little too much, I was running a personal account with Plaintiff - paying occasional expenses for her. I credited this with the £25 excess and told her to adjust arrangement with sister by £12. 10s. 0d. I didn't look on this transaction as selling house to Plaintiff. If I had been selling to her I think I would have expected her to use her own solicitor. I would not have taken responsibility of giving him instructions".
Then in cross-examination: "At the time I did not have provisions of Rent Act in mind. The £500 from Plaintiff does not appear in the Estate account. A few shares were sold, some retained for grandchildren and beneficiaries and rest split into 4 and transferred. I have kept accounts on receipts and disbursements. I have not yet prepared final accounts".
That evidence was given on the 5th June, 1969.
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