Bull v Bull

LANDLORD AND TENANT; Tenancies

COURT OF APPEAL

DENNING, HODSON AND PARKER LJJ

25, 26 NOVEMBER, 20 DECEMBER 1954

Tenancy in Common – Arising by way of resulting trust on purchase of freehold house – Beneficial
interests in proceeds of sale – Occupation of portions of house by beneficiaries – Action for
possession by one beneficiary against the other.

In 1949 the plaintiff and his mother, the defendant, together purchased a freehold house, the
plaintiff contributing a larger part of the purchase price than the defendant and the conveyance
being taken in his name. The money contributed by the defendant was not intended to be a gift
from her to the plaintiff, and the defendant accordingly became entitled to an equitable interest
proportionate to her contribution. The parties lived together in the house until April, 1953, when
the plaintiff married and it was arranged that the defendant should occupy two rooms and that the
plaintiff and his wife should occupy the rest of the house. Subsequently differences arose between
the parties and the plaintiff brought an action for possession of the rooms occupied by the
defendant.

Held – As the effect of the purchase of the house in 1949 was that the plaintiff and the defendant
became beneficial tenants in common of the proceeds of sale of the property which was subjected
to the statutory trust for sale, the defendant had a right to participate in the enjoyment of the
property until it was sold, and the plaintiff’s action for possession failed.

Per Curiam: the answer to the question what is to happen if, in such circumstances as those of the
present case, the two equitable tenants in common disagree is that the property may be sold in
exercise of the statutory trusts for sale, for which purpose there must be two trustees for sale to
enable a good receipt to be given for the price; if the trustees wish to sell with vacant possession
and the assent of one tenant in common is withheld the only course open is to apply to the court
under s 30 of the Law of Property Act, 1925 (see p 256, letter d, post).

Appeal dismissed.

Notes

The decision in this case is of particular interest not only because of the passages in the judgment of
Denning LJ, with whom the other members of the court agreed, which indicate what the appropriate
course of action in other cases may be, with which Hodson LJ and, it seems, Parker LJ, agree, but also
because of the view expressed by Denning LJ that the 253 statutory trusts for sale under s 35 of the
Law of Property Act, 1925, would arise in circumstances such as those of the present case. Section
34 of that Act, except for sub-s (1), does not apply where land is conveyed for a legal estate after
1925 to one person and there is no express creation of undivided shares. Sub-section (1) of that
section does not expressly create statutory trusts in such circumstances but forbids the arising of a
tenancy in common of a legal estate, and s 36(4) of the Settled Land Act, 1925, is similarly expressed.
Neither states positively that a trust for sale shall be created. The decision in the present case seems
to have been reached on the basis that the legislation in fact creates a statutory trust for sale in the
circumstances, and thus ensures that the legal position accords with the general scheme of the real
property legislation of 1925. Harman J came to a similar conclusion in the case of partnership
property in Re Rayleigh Weir Stadium ([1954] 2 All ER 283).

In applying the views expressed by the court regarding the appropriate remedy if there is
disagreement between beneficiaries, their observations are not, it is thought, intended to
comprehend all courses, but to relate to difficulties such as were presented by the particular
circumstances of the present case; the court was not, for example, here considering the possibilities
of partition under s 28(3) of the Law of Property Act, 1925.

For the Law of Property Act, 1925, s 14, s 35, see 20 Halsbury’s Statutes (2nd Edn) 457, 491.

Cases referred to in judgments

Jacobs v Seward (1872), LR 5 HL 464, 41 LJCP 221, 27 LT 185, 36 JP 771, 43 Digest 391, 146.

Cowper v Cowper (Earl), (1734), 2 P Wms 720 (24 ER 930), on appeal (1736), 2 PWms 755 n (24 ER
942), 43 Digest 626, 661.

Re Warren [1932] 1 Ch 42, 101 LJCh 85, 146 LT 224, Digest Supp.

Re Buchanan-Wollaston’s Conveyance [1939] 2 All ER 302, [1939] Ch 738, 108 LJCh 281, 160 LT 399,
Digest Supp.

Re Hyde’s Conveyance (1 February 1952), Unreported, 102 LJo 58.

Appeal

The plaintiff appealed against an order of His Honour Judge Reginald Clark QC at Ilford County Court,
dated 28 July 1954, whereby he dismissed the plaintiff’s claim to evict the defendant from the
premises known as 101, Rishden Gardens, Ilford.

The facts appear in the judgment of Denning LJ

F Burrows for the plaintiff.

L B Schapiro for the defendant.Cur adv vult.

20 December 1954. The following judgments were delivered.

DENNING LJ read the following judgment. This is a most unfortunate dispute

between mother and son. The son is now about thirty years of age and he has always lived with his
mother. They have lived in several different houses, and, since 1949, the house has been 101,
Rishden Gardens, Ilford. This house was bought partly with her money and partly with his, but the
son seems to have provided the greater part and the conveyance was taken in his name. In April,
1953, the son married and it was arranged that his mother should have two rooms in the house and
that he and his wife would have the rest. Soon afterwards, however, differences arose between the
mother and her daughter-in-law with the result that the son told his mother to leave the house. She
has not, she says, been able to find other accommodation suitable to her needs and so she has not
left. She is still there. The son has, therefore, brought these proceedings to evict her. In answer to
the claim the mother says that, although the house stands in her son’s name, she herself contributed
quite a lot of money towards it, and that in these circumstances he cannot evict her or, at any rate,
cannot evict her without paying her the amount which she put into it.

254

The judge has found that the mother did contribute a substantial amount towards the house and
that she did not intend to make a gift of that money to her son. There was, therefore, no
presumption of advancement but a resulting trust in her favour. Furtherore, the judge has found
that, when the house was bought, it was the intention of both mother and son that the house,
although taken in the son’s name, should be a home for them both. The judge has held that in these
circumstances the son cannot turn the mother out now as if she were a trespasser; and that his only
remedy is by application to a court of equity. The son appeals to this court.

Similar circumstances must often arise in families, but strangely enough there is no authority on the
point. The son is, of course, the legal owner of the house; but the mother and son are, I think,
equitable tenants in common. Each is entitled in equity to an undivided share in the house, the
share of each being in proportion to his or her contribution. The rights of equitable tenants in
common as between themselves have never, so far as I know, been defined; but there is plenty of
authority about the rights of legal owners in common. Each of them is entitled to the possession of
the land and to the use and enjoyment of it in a proper manner. Neither can turn out the other; but
if one of them should take more than his proper share the injured party can bring an action for an
account. If one of them should go so far as to oust the other he is guilty of a trespass (see Jacobs v
Seward). Such being the rights of legal tenants in common, I think that the rights of equitable
owners in common are the same, save only for such differences as are necessarily consequent on
the interest being equitable and not legal. It is well known that equity follows the law; and it does so
in these cases about tenants in common as in others.

In support of this view I would refer to the words used by Sir Joseph Jekyll MR over two hundred
years ago in Cowper v Earl Cowper (2 P Wms at p 753):

“The law is clear, and courts of equity ought to follow it in their judgments concerning titles to
equitable estates; otherwise great uncertainty and confusion would ensue; … ”

I realise that since 1925 there has been no such thing as a legal tenancy in common (see s 1(6) of the
Law of Property Act, 1925). All tenancies in common now are equitable only and take effect behind
a trust for sale (see s 36(4) of the Settled Land Act, 1925). Nevertheless until a sale takes place these
equitable tenants in common have the same right to enjoy the land as legal tenants used to have.
Their position was well stated by Maugham J in Re Warren ([1932] 1 Ch at p 47):

“There is no doubt that, since the coming into force of the Law of Property Act, 1925, the position of
undivided owners is different from what it was before. that Act, for the purpose of simplifying the
law, has introduced provisions for undivided shares, and has made partition actions unnecessary and
obsolete. But in substance the beneficial interests of the undivided owners in regard to enjoyment
so long as the land remains unsold have not been altered, and it is true to say that the ordinary
layman possessed of an undivided share in land would be quite unaware of any alteration in his
rights as the result of the Act.”

My conclusion, therefore, is that, when there are two equitable tenants in common, then, until the
property is sold, each of them is entitled concurrently with the other to the possession of the land
and to the use and enjoyment of it in a proper manner; and that neither of them is entitled to evict
the other.

The question may be asked: what is to happen when the two disagree, as they have done here? The
answer is that the house must then be sold and the proceeds divided between mother and son in
the proper proportions. The son is the legal owner and he holds it on the statutory trusts for sale.
He cannot 255 at the present moment sell the house because he cannot give a valid receipt for the
proceeds. It needs two trustees to give a receipt (see s 14 of the Trustee Act, 1925). The son could
get over this difficulty by appointing another trustee (under s 36(6) of the Trustee Act, 1925) who
would agree with him to sell the house. The two trustees would, no doubt, have to consider the
mother’s wishes, but as the son appears to have made the greater contribution he could in theory
override her wishes about a sale: see s 26(3) of the Law of Property Act, 1925. The difficulty of the
two trustees would be a practical difficulty because, so long as the mother is there, they could not
sell with vacant possession. The mother is entitled to rely on her equitable interest as tenant in
common which is preserved by two sections of the Law of Property Act, 1925. The first is s 14 which
says that the Act

“… shall not prejudicially affect the interest of any person in possession or in actual occupation of
land to which he may be entitled in right of such possession or occupation.”

The second is s 35 which says that the trust for sale is

“… subject to such … provisions, as may be requisite for giving effect to the rights of the persons …
interested in the land … ”
In this case the mother is in possession and in actual occupation as equitable co-owner and by virtue
of that interest cannot be evicted by the trustees except with her consent. If the trustees wished in
these circumstances to sell with vacant possession the only thing they could do would be to apply to
the court under s 30 of the Law of Property Act, 1925, on the ground that the mother’s consent
could not be obtained. The court could then make such order as it thought fit and this would
include, I think, an order to turn the mother out if it was right and proper for such an order to be
made (compare Re Buchanan-Wollaston’s Conveyance, and Re Hyde’s Conveyance a).

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a Referred to (1952) 102 L Jo 58

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My conclusion is, therefore, that the son, although he is the legal owner of the house, has no right to
turn his mother out. She has an equitable interest which entitles her to remain in the house as
tenant in common with him until the house is sold. If they disagree the house should be sold and
the proceeds divided between them in the proper proportions; but he cannot at his will turn her out
into the street. The house cannot be sold with vacant possession unless she consents. If she
unreasonably refuses her consent, the son, by taking proper steps, can obtain an order for sale from
the court and in aid of it the court can order the mother to go; but the court would only make such
an order if it was satisfied that it was right and proper to do so and on such terms as to alternative
accommodation as it thought right to impose. I find myself, therefore, in agreement with the
learned judge and I would dismiss this appeal.

Hodson LJ. I agree.

PARKER LJ. I also agree and have nothing to add.

Appeal dismissed.

Solicitors: Canter, Hellyar & Co (for the plaintiff); Daybell, Court-Cooper & Co Ilford (for the
defendant).

Philippa Price Barrister.

256

[1955] 1 All ER 257