Conveyance of land and buildings — Inclusion of forecourt — Sale of remainder of land owned by vendor — Intention to convey forecourt in second sale — Alleged mistake in first conveyance — County court finding mutual mistake — Order for rectification of register Whether vendor’s equity of rectification passed on second conveyance — Appeal dismissed
S had been the registered proprietor of land comprising a caravan park, house, concreted forecourt and roadway, which lay to the east of the house and west of the caravan park. On September 29 1988 S exchanged contracts to sell the caravan park to Mr Williamson and his wife (the first and second defendants). The contract stated that the property to be conveyed had a 120-ft frontage and a plan was annexed to the contract showing that measurement to be 120 ft.
However, the boundary had been agreed between the Williamsons and S excluding the concreted area and excluding them from it. A fence had been erected on the ground. The sale was completed by a transfer dated October 28 1988, which again incorporated a plan showing a measurement of 120 ft. The transfer took the form of a transfer of part of the land comprise in S’s registered title. On November 3 1988 S exchanged contracts to sell to Berkeley the remainder of the land comprised in his registered title. The sale was completed by transfer on November 24 1988. Berkeley argued that it had been the common intention of S and the Williamsons at all times up to and including exchange of contracts on September 29 1988 that the boundary of the caravan park should exclude the right of way and forecourt and that the Williamsons should have no rights thereon. It claimed that there had been a mutual mistake and that the contract should be rectified.
The county court granted the rectification sought. The Williamsons appealed. They argued, inter alia, that the court had no jurisdiction to grant rectification at all. S had been the third defendant in the original action, but took no part in the appeal.
Held The appeal was dismissed.
1. Under section 63 of the Law of Property Act 1925 every conveyance was effectual to pass all the estate, right, title, interest, claim and demand which the conveying parties respectively had in, to or on the property conveyed, or which they respectively had power to convey.
2. Section 63 applied in the absence of a contrary intention in the conveyance.
3. In the present case, in consequence of the sale and transfer to Berkeley of the remainder of the land comprised in S’s registered title, section 63 applied and operated to convey the equity of rectification to Berkeley, as purchaser. In light of the facts on the ground and the chronology, it was clear that their intention had been to exclude the disputed forecourt from the first conveyance.
4. The judge found as a fact that S and Berkeley both intended that the land purchased by Berkeley should include the forecourt. He stated that the erection of the fence was the clearest indication to that effect. Berkeley contracted to purchase all the remaining land comprised in the registered title after the transfer to the Williamsons. If the transfer was rectified to exclude the disputed area, it formed part of the land purchased by Berkeley.
5. Accordingly, the judge had jurisdiction to make an order for rectification.
Barry Payton (instructed by Drysdales & Janes, of Southend-on-Sea) appeared for the appellants, Mr and Mrs Williamson; David Halpern (instructed by Batt Saunders & Bennett, of Yeovil) appeared for the respondent; the third defendant to the original action did not appear and was not represented.
