Appeal from judge’s decision on vendor and purchaser summons–Whether good title to business premises shown by vendors–References in various deeds to old contract for the sale of the property–Contract never completed and no trace of it or any note of it discovered–Whether this constituted a defect of title or whether abandonment of contract could be presumed–Held that there was sufficient evidence to justify presumption of abandonment–Judge’s decision that a good title had not been shown reversed
This was an
appeal from a decision of Goulding J on a vendor and purchaser summons in which
he held that the vendors had not shown a good title. The property in question
was 8 Storey’s Gate, Westminster, London SW1. The vendors were Thomas Guy Christian-Edwards,
Jessie Marie Wyles and Margaret Hornby, trustees of the will of William Paul
Metchim, and the purchasers were MEPC Ltd, of Brook House, 113 Park Lane,
London W1.
George Dillon
QC and Eric Christie (instructed by Monro, Pennefather & Co) appeared on
behalf of the appellants; Richard Scott QC and Jonathan Parker (instructed by
Simmons & Simmons) represented the respondents.
Giving the
judgment of the court at the invitation of Stephenson LJ, GOFF LJ said that the
appellants were the vendors, who were the defendants to the summons. The
property consisted of business premises at 8 Storey’s Gate, Westminster,
formerly Abbey Buildings, 8 Princes Street. It had been sold by auction on
April 10 1973 at the price of £710,000 to the respondents, plaintiffs before
Goulding J, who were a property company.
The difficulty
which gave rise to the present case came to light on the examination of title.
The vendors sold as trustees of the will of a testator, William Paul Metchim,
who died on September 14 1911 and whose will was proved on February 2 1912. The
trouble was that it appeared that the then trustees of the will had at some
time between the death of the testator and July 1 1912 entered into a contract
to sell the property to a son of the testator, one Percy Bridgman Metchim. No
copy of that contract or note of it survived, but it was mentioned in recitals
in a deed of family arrangement dated July 1 1912 and a deed of covenant dated
February 11 1930. In the latter deed it was recited that the purchase had not
yet been completed and that by the consent of all parties the performance
thereof had been suspended. There was also an appointment of new trustees in
1936 in which there was no mention of the 1912 contract of sale, but there was
a recital of a lease to Percy Metchim dated January 1933. Percy died on
November 6 1942.
Goulding J had
decided that a good title had not been shown by the vendors and from that
decision they appealed.
Although the
purchasers were entitled to a good marketable title, the authorities showed
that in a proper case the court could presume the facts on which the title
depended and the question was whether in the present case the court should
presume that the 1912 contract had been abandoned. There were old authorities
which indicated that such a course could be taken where the position was such
that, under the practice of the former Court of Chancery, it could be likened
to a case where a judge in a common law court would direct a jury to presume
the fact and not merely leave it to them to decide as they thought fit. This
test could not now be applied as formulated in the old cases, but by analogy
the court ought to hold the title good if on the facts before him the judge
could see plainly that specific performance of the contract would not be
granted in any reasonably conceivable circumstances. The old authorities were Emery
v Grocock (1821) 6 Madd 54, Hillary v Waller (1806) 12 Ves
239 and Games v Bonnor (1884) 54 LJ Ch 517.
Weighing all
the factors there was ample, and indeed overwhelming, evidence in this case to
support the presumption of abandonment of the 1912 contract and the court had
no doubt that they ought to presume such abandonment. Further, even if, which
the court did not believe, the 1912 contract was still subsisting, the court
could not see how specific performance could be a possible remedy.
Finally, the
court, having decided that the vendors had shown a good marketable title, did
not think that the Registrar, acting under section 13(c) of the Land
Registration Act 1925, could qualify it. Reliance had been placed by way of
analogy on Re Stone and Saville’s Contract [1963] 1 WLR 163, but the
circumstances there were different, as there was an actual entry on the
register.
For these
reasons the appeal must be allowed and a declaration made that a good title had
been shown according to the contract.
It was ordered
that the costs be paid by the appellants up to October 16 1976, when a good
title was shown by them, and that the costs thereafter be paid by the
respondents. Leave was given to appeal to the House of Lords.
