Turton v Turton
| Jurisdiction | England & Wales |
| Date | 1987 |
| Court | Court of Appeal (Civil Division) |
Trust for Sale - Family home - Valuation date for shares - House bought in joint names of unmarried couple - No financial contribution by woman - Express trust in conveyance - Parties entitled to one half share of sale proceeds - Parties ceasing to live together - Whether shares to be valued at date of separation or disposal of house
The defendant and the plaintiff, who had been living together as husband and wife for some time, bought a house in 1972. The conveyance contained an express trust to sell the house with provision for the proceeds of sale to be held in trust for them as joint tenants beneficially. The joint tenancy was later severed and they held the house as tenants in common. The defendant contributed £3000 of the purchase price of £8500. The rest was raised by a mortgage to a building society. Although the plaintiff contributed nothing it was accepted that the express declaration of trust in the conveyance defined her beneficial interest in the house at the date of its acquisition. The plaintiff left the house in August 1975. She brought an action in the county court in August 1983 seeking a declaration that the house was held on trust for sale for the parties as beneficial tenants in common in equal shares and for an order for sale. The judge made the declaration, ordered sale and further ordered that the plaintiff's half share was to be valued as at August 1975 when the parties separated.
On appeal by the plaintiff: —
Held, allowing the appeal, that where the parties' respective interests in the property could be defined at the date of its acquisition, whether by express declaration of trust in the conveyance or by virtue of their contributions, the interests acquired were absolute and indefeasible and could only be valued at the date of realisation; that the court had no discretion in the matter and the interests could not be determined, defeated or diminished, either automatically or by the exercise of some discretion, on the happening of some future event, such as the separation of an unmarried couple; and that, accordingly, the plaintiff was entitled to the value of her half share at the date of the sale of the house (post, pp. 629A–B, 630E–F, H–631A, G–H, 632B–C, 633B–D, G–634A).
Per Nourse L.J. It is undesirable that in a case of this kind an order of the court should be drawn up in such a way that it embodies the whole of the judgment (post, pp. 626H–627A).
The following cases are referred to in the judgments:
Bernard v. Josephs [
Burns v. Burns [
Gissing v. Gissing [
Goodman v. Gallant [
Gordon v. Douce [
Hall v. Hall (
Munday v. Robertson (unreported), 18 April 1973; Court of Appeal (Civil Division) Transcript No. 169 of 1973,
Walker v. Hall [
The following additional case was cited in argument:
Leake (formerly Bruzzi) v. Bruzzi [
APPEAL from Judge McKinney sitting at Southampton County Court.
The plaintiff, Carol Ann Turton, issued an originating application in the county court against the defendant, Edward Sydney Turton, seeking, inter alia, (1) a declaration that on its true construction the conveyance dated 20 January 1972 of the house known as 64, Ludlow Road, Itchen, Southampton, conveyed the house on trust for sale for the plaintiff and the defendant as beneficial tenants in common in equal shares and (2) an order for sale of the house and further ancillary relief. The house was bought by the parties in their joint names when they were living together but had not married. The plaintiff left the house in August 1975.
On 13 May 1986 Judge McKinney made the declaration sought and ordered the sale of the house. She further declared that the relevant date to value the plaintiff's one half share in the house and the net proceeds of sale thereof was August 1975, when the parties separated.
By a notice of appeal dated 5 June 1986 the plaintiff appealed on the grounds that (1) the proper date to value her one half share in the house and the net proceeds of sale thereof and the net rents and profits thereof until sale, to which she was entitled was the date of sale or, if earlier, the date of any purchase by the defendant of the plaintiff's share; (2) the judge was wrong in law in holding that the relevant date to value the plaintiff's share was, or ought to be, August 1975, when the parties separated; and (3) the judgment of the judge so far as it concerned the date on which the plaintiff's one half share in the house and in the net proceeds of sale thereof and the net rents and profits thereof until sale ought to be valued was wrong and ought to be set aside.
The facts are set out in the judgment of Nourse L.J.
Geoffrey Jaques for the plaintiff.
Keith Cutler for the defendant.
12 March. The following judgments were handed down.
NOURSE L.J. This is an appeal from a decision of Judge McKinney given on 13 May 1986 in the Southampton County Court in a dispute between an unmarried couple as to the beneficial ownership of a house in which they formerly lived together.
The conveyance of the house made express provision for the proceeds of its sale to be held in trust for the parties as beneficial joint tenants. That tenancy was afterwards severed. The man contended that the woman's beneficial interest had been obtained by fraud, alternatively that there had been a total failure of consideration, but those contentions were rejected on the facts. The judge declared that the parties held the property on trust for themselves as tenants in common in equal shares. She also made an order for its sale. However, in seeming reliance on the decision of this court in Hall v. Hall (
The absence of any cross-appeal against the judge's findings enables the material facts to be stated with some brevity. The appellant, Carol Ann Turton (“the plaintiff”), and the defendant, Edward Sydney Turton, met in the late 1960's and a relationship developed between them. From about December 1969 or January 1970 until August 1975 they lived together as man and wife at various addresses in and around Southampton. The judge found that marriage between them was never contemplated. When they started to live together the plaintiff was aged about 28 and the defendant about 37. The plaintiff was then married to another. That marriage, of which there were no children, was dissolved in 1972 or 1973. At about the time of the divorce the plaintiff took the defendant's surname by deed poll. The defendant was a bachelor.
By a conveyance dated 20 January 1972 the property in dispute, No. 64, Ludlow Road, Itchen, Southampton, was conveyed to the plaintiff and the defendant for an estate in fee simple. So far as material, clause 2 of the conveyance was in the following terms:
“The purchasers hereby declare as follows: (a) the purchasers shall stand possessed of the premises hereby conveyed upon trust to sell the same … and shall stand possessed of the net proceeds of sale … and of the net rents and profits until sale … in trust for the purchasers as joint tenants beneficially.”
The property consisted of a shop with living accommodation above. The purchase included the goodwill of the business of a grocery and general stores which was then carried on from the shop, and also certain shop equipment, fixtures and fittings. The purchase price was £8500, apportioned as to £7500 to the property and £1000 to the goodwill and assets of the business. The defendant found £3000 (and, it is to be assumed, the additional amount required to discharge the expenses of the purchase) out of his own resources. The balance of £5500 was raised on a mortgage of the property with the Portsmouth Building Society which was executed by the plaintiff and the defendant on the same day. Although the plaintiff contributed nothing to the purchase, the defendant now accepts that the express declaration of trust contained in the conveyance conclusively defined the parties' respective beneficial interests in the property at the date of its acquisition. Any lingering doubts which there may have been on that score have finally been dispelled by the recent decision of this court in Goodman v. Gallant [
In or about August 1975 the plaintiff left the property and the parties ceased to live together. All the instalments payable under the mortgage, both before and after 1975, were paid by the defendant. The mortgage was redeemed on 30 December 1981. By a notice in writing dated 18 September 1982 and given by the plaintiff to the defendant pursuant to the proviso to section 36(2) of the
By her originating application issued in the county court on 15 August 1983 the plaintiff claimed the following relief: (1) a declaration that the...
To continue reading
Request your trial
-
Dean Hinds v Janet Wilmot
...it will be held that the property belongs to the parties beneficially in proportion to those contributions. See Nourse, L.J. in Turton v Turton (1987) 2 ALL ER 641 at p.684. III. In the absence of direct evidence of a common intention, any substantial contribution to the acquisition of the......
-
Oxley v Hiscock
...under that section is not available in the present case." Lord Justice Kerr agreed with both judgments. 28 Some four years later, in Turton v Turton [1988] Ch 542, this Court reaffirmed the principle that the beneficial interests had to be ascertained from consideration of the intentions o......
-
Grimm v Newman and Another
...WLR[1985] 1 WLR 58 Savill v Goodall FLR[1993] 1 FLR 755 Thomson (HMIT) v Moyse ELRTAX[1961] AC 967; (1960) 39 TC 291 Turton v Turton ELR[1988] Ch 542 This was a professional negligence claim against a chartered accountant and his then firm in which the claimant alleged that in breach of con......
-
Marlene Wright v Ann-Savoy Smith
...it will be held that the property belongs to the parties beneficially in proportion to those contributions. See Nourse, L.J. in Turton v Turton (1987) 2 ALL ER 641 at p. 684 . III. In the absence of direct evidence of a common intention, any substantial contribution to the acquisition of t......