Warner v Sampson
| Jurisdiction | England & Wales |
| Judge | LORD DENNING,LORD JUSTICE HODSON,LORD JUSTICE ORMEROD |
| Judgment Date | 18 December 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J1218-4 |
| Date | 18 December 1958 |
| Court | Court of Appeal |
[1958] EWCA Civ J1218-4
Lord Denning,
Lord Justice Hodson and
Lord Justice Ormerod.
In The Supreme Court of Judicature
Court of Appeal
MR J. HAMAWI HAMES (instructed by Messrs Wilders & Sorrell) appeared for the Appellant, Defendant below.
MR L.G. SCARMAN, Q.C. and MR C. GIBBONS (instructed by Messrs Murray, Hutchins & Co.) appeared for the Respondents, Plaintiffs below)
: The detailed facts of this case are all set out by Mr Justice Ashworth in his judgment. They are contained in the report in 1958, I Queen's Bench, page 404, and I need not repeat them now. Suffice for present purposes to say that the Statement of Claim recited the original lease, its covenants and the proviso for re-entry. It alleged a derivative title in the Plaintiff saying that the reversion was vested in her by "divers mesne assurances and acts in the law". Then a derivative title in the Defendants saying that the term became vested in Gertrude Annie Sampson, and that the Defendants were her legal personal representatives. It then alleged that the Defendants had committed breaches of covenant by non-payment of rent, failure to insure, to paint and repair. It alleged a notice to remedy breaches and a failure to remedy. It ended with a claim for possession and mesne profits.
The defence of the second Defendant admitted that she was executrix of the Will of Gertrude Annie Sampson, denied that she had committed the alleged or any breaches of covenant, and then concluded with this general denial, on which the whole case turns: "Save and except for the admission herein contained this Defendant denies each and every allegation in the Statement of Claim as if the same were specifically set out and traversed seriatim".
The Judge has held that by putting in that general denial the Defendant denied the Plaintiff's title, and that thereupon the Plaintiff was entitled to forfeit the lease. As soon as the Plaintiff elected to exercise her right, as she did in her Reply, the forfeiture was complete, and nothing that the Defendant could do to avoid that result would avail her anything. It was incurable by amendment. No relief could be given against it. It was final and irrevocable. So the Judge has decided. Yet the rent, we were told, has been paid or is ready to be paid. The repairs done, or almost done. All the breaches will be remedied. Everything made good save for this general denial which, if the Judge be right, cannot be cured by art or skill. Strike it out, amend it as it now has been, but still the effect remains. The rest of this term with 40 years still to run, valued at over £3,000, is forfeited to the landlord. How must the unfortunate counsel who drafted the Defence reproach himself for having brought this on his client; If he had not used the word "denies" but had said "does not admit", there would, it is agreed, have been no forfeiture. But this denial brings with it an inexorable fate from which, if this decision stands, there is no escape.
Since so much effect has been given to this general denial, I would say a word about it. It is used in nearly every Defence which goes out from the Temple. It comes at the end. The pleader has earlier gone through many of the allegations in the Statement of Claim and dealt with them. Some he has admitted. Others he has deniea. Whenever he knows there is a serious contest he takes the allegation separately and denies it specifically. But when he has no instructions on a particular allegation, he covers it by a general denial of this kind, so that he can, if need be, put the plaintiff to proof of it at the trial. At one time the use of this general denial was said to be embarrassing, see British & Colonial Law Association v. Foster (1888) 4 Times Law Reports, page 574; but since 1893 it has been recognised as convenient and permissible, see Adkins v. North Metro Tramway (1893) 10 Times Law Reports, page 173. Sometimes the pleader "denies", sometimes he "does not admit" each and every allegation, but whatever phrase is used it all comes back to the same thing. The allegation is to be regarded "as if it were specifically set out and traversed seriatim". In short, it is a traverse, no more and no less. Now the effect of a traverse has been known to generations of pleaders. It "casts upon the plaintiff the burden of proving the allegations denied", see Bullen & Leake, 3rd edition, page 436. So this general denial does no more than put the plaintiff to proof. Mr Scarman did suggest at one stage that it might indirectly involve a positive averment. For instance, if pleaded in a libel action, it would involve a denial that the words were false and hence it would carry the implication that they were true and would amount to a plea of justification. But he did not pursue this illustration and I think it clearly untenable. There are some denials which do involve an affirmative allegation, see MacLulich v. MacLulich. 1920 Probate, page 439, but not this general denial. It only puts the plaintiff to proof.
The effect of this general denial, in an action to recover land, is therefore the same as the classic plea: "The defendant is in possession". This plea of possession was good against everyone except against a plaintiff who could show a better title. It put the plaintiff to proof of his title as much as if the defendant had expressly denied, or had expressly stated that he did not admit, the whole and everyone of the allegations contained in the plaintiff's pleading, see Danford v. McAnulty (1683) 8 Appeal Cases, page 456. In my junior days I often put in this plea of "possession", and I should have been shocked to find that I had thereby involved my client in a forfeiture. Yet that was the result of such a plea if a decision of Mr Justice Farwell in 1935 was right. He held in Kisch v. Hawes, 1935 Chancery, page 102, that a plea of "possession" was a cause of forfeiture on the ground that it amounted to a denial of theplaintiff's title, and that a denial of the plaintiff's title was a ground upon which a lessor was entitled to forfeit the lease: and that, as soon as the plaintiff delivered a Reply claiming the right to re-enter on that ground, there was a forfeiture, irrevocable and incurable by amendment, and enforceable in those very proceedings, although the cause of forfeiture only arose after the date of the Writ.
In the present case the Judge has followed Kisch v. Hawes as no doubt he felt he ought to do; but we have been invited to overrule it, and for this purpose we have been taken back to the old books on forfeiture by matter of record.
The history starts in feudal times. When a Lord allotted a feud or fee to a tenant there was a condition annexed to it that the tenant should do service faithfully to him by whom the lands were given: for which purpose the tenant took an oath of fealty; and in case of breach of this condition and oath the lands reverted to the Lord who granted them. If the tenant did anything tending to impair the title of his Lord to the lands, it was a breach of his oath of fealty and gave rise to a forfeiture. This is well seen by a reference to Glanville, who was Chief Justice in the reign of Henry II. In his treatise composed about 1181 A.D. he says (Book IX, chapter 1) that "no one can by law, consistently with the Faith implied in Homage, do anything which tends to deprive his Lord of his Inheritance or to affix a personal stain upon him… if a tenant should do anything to the disinherison of his Lord, and should be convicted of it, he and his heirs shall for ever lose the fee held of such Lord".
Amongst the acts which tended to the disinherison of the Lord, the most important for present purposes was a disclaimer by the tenant by matter of record. This was a denial by the tenant in a Court of Record of his Lord's title. It commonly arose in this way. If a tenant failed to perform the services due to his Lord, the Lord used to take action to recover them. The usual thing he did was to take the tenant's cattle by way of distress so as to compel the tenant to perform the services. In order to regain the cattle the tenant would bring replevin in the Court of Common Pleas (a Court of Record) and, when the Lord avowed for services in arrear, the tenant would enter a disclaimer in these words: "He doth not hold of the said Lord the land aforesaid but the same to hold of the said Lord altogether disavows and disclaims". This disclaimer was a very powerful weapon in the hands of the tenant, for by it the Lord was barred of all possessory remedies for the services. The result was that, although the distress and avowry of the Lord were lawful, yet the tenant would regain and retain bis cattle and recover damages from the Lord. It tended, therefore, greatly to the prejudice of the Lord. But the Lord could have his revenge, provided always that he could prove his title. By bringing a writ of right on the disclaimer he could forfeit the tenant's interest altogether. This is all explained by Finch in his Treatise on the Common Laws, pages 268-9. He says that "The Lord shall have a writ of right upon this disclaimer, and if he can prove that the land is holden of him, he shall recover the land itself for ever, because the disclaimer is of record".
I have dealt thus much on disclaimer because it is the only instance I have found in the old law in which a denial on the record of the landlord's title by itself gave rise to a forfeiture. But the reasons for it are, as Blackstone says, "most apparently feudal", see 2 Blackstone Commentaries, page 275, and when the feudal tenures died out, the law on the subject died too. Never since feudal times has a denial of title by itself given rise to a forfeiture until the case of Kisch v. Hawes in 1935.
There are many other instances in the old books of acts which tend to the disinherison of the Lord,...
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