Important decision on fixtures–Claim by subpurchaser of Hinton House to pictures and other objects–Pictures fixed in recesses of panelling–Test as to whether objects are fixtures–Degree and purpose of annexation–Is the purpose better enjoyment of object itself?–Objects not fixtures in opinion of majority–Goff LJ’s dissenting views–Remedies available to a subpurchaser–Subpurchaser’s appeal dismissed
This was an
appeal by Rowland John Berkley, the subpurchaser of Hinton House, part of Earl
Poulett’s estate at Hinton St George, Somerset, from the decision of Sir
Anthony Plowman, then Vice-Chancellor, dismissing his claim for the delivery up
of pictures and other objects, which he alleged to be fixtures passing to him
on the sale of the house, and for compensation for loss and damage, and other
relief. The respondents were the 8th Earl Poulett (and after his death his
personal representatives), Sothebys and T R G Lawrence & Son, Crewkerne,
Somerset.
P J Millett QC
and B Marder (instructed by Ward Bowie, agents for Clarke, Willmott &
Clarke, of Yeovil) appeared for the appellant, and N C H Browne-Wilkinson QC
and L A Tucker (instructed by Eland, Hore, Patersons) represented the respondents.
Giving the
first judgment, SCARMAN LJ said: In opening the appeal for the plaintiff Mr
Millett QC said that the basic issue in the case was whether some pictures,
some prints, a statue and a sundial were fixtures or chattels. If fixtures,
they passed, he submitted, to the subpurchaser when Hinton House was sold: if
chattels, he conceded they did not. The case has many complexities, which
counsel have done their distinguished best to unravel, but ultimately we have
to return to the issue identified by Mr Millett in the first few words of an
address which, though it took five and a half days, lasted not a moment too
long.
On November 11
1971 Mr Berkley (the plaintiff and appellant) issued a writ naming Earl
Poulett, Sothebys, and a firm of surveyors, T R G Lawrence & Son, who
practise in Crewkerne, Somerset, as defendants. Put briefly, the claim was for
delivery up of certain fixtures which it was claimed passed with Hinton House
when Lord Poulett sold the house, compensation for the loss of, or damage to,
the fixtures, together with appropriate consequential relief. The claim was,
and remains, strongly contested by all the defendants. Lord Poulett died in
1972, since when his personal representatives have carried on as defendants in
his place. The plaintiff was a subpurchaser of Hinton House. He bought from
Lord Poulett’s purchaser. The history of the sale was as follows. Lord Poulett,
the 8th Earl, decided to put up for sale by public auction his ancestral estate
at Hinton St George in Somerset. Hinton House, with its gardens and grounds
comprising some 23 acres, was part of the estate and included
wing, said to have been designed by Inigo Jones, was built for the reception of
a queen who never arrived–Queen Anne. The wing includes two rooms which feature
in the case, the Queen’s Dining Room and the Queen’s Ante-Room. The Queen’s
Dining Room is described in the auction particulars as follows: ‘The Queen’s
Dining Room, facing south and measuring about 39 ft 3 in by 29 ft, with oak
panelling around picture recesses; open stone fireplace; magnificent moulded
and decorated ceiling with egg and dart cornice and large casement windows
overlooking the sunken garden.’ The
Queen’s Ante-Room is described in the same particulars as follows: ‘The Queen’s
Ante-Room, facing south and measuring about 28 ft 9 in by 27 ft 6 in, with oak
panelling around picture recesses; large open stone fireplace; three-quarter
glazed doors to sunken garden: doors to staircase hall and two communicating
doors.’
In the Queen’s
Dining Room there were six pictures, which the plaintiff claims passed with the
house on its sale to him. These pictures were firmly fixed into the recesses in
the panelling of the room. They were: a framed oil painting of Marquis of
Hamilton, attributed to Mytens; a framed oil painting of Elizabeth, Countess of
Essex, attributed to Mytens; a framed oil painting, said (but not believed) to
be of James II, attributed to Kneller; a framed oil painting of the 1st Duke of
Leeds, attributed to Gibson; a framed oil painting of Montague, Lord
Willoughby, attributed to Old Stone; a framed oil painting of ‘The return of
the Poulett family from the war,’ artist unknown.
In the Queen’s
Ante-Room, there were a number of pictures, only two of which were affixed to a
wall, namely two portraits by Wood, of the 7th Earl and his countess
respectively, each in coronation robes. The plaintiff claims them because, like
the pictures in the Queen’s Dining Room, they were fixed into the recesses of a
panelled wall. On the first floor of the house there is a suite of rooms known
as the Chinese Suite. These rooms contained a number of Chinese prints done on
rice paper and stuck to the wall. It is conceded that these were fixtures and
passed with the house. Finally there were in the grounds two objects which the
plaintiff claims: a white marble statue of a Greek athlete, weighing
approximately half a ton and standing on a plinth which was (and remains) fixed
into position on the West Lawn; and a sundial which rested on a stone baluster
(or pedestal) outside the South Wing. Neither the statue nor the sundial nor
any of the eight pictures came to the plaintiff. He did get the Chinese prints
all tattered and torn–severely damaged by someone who had tried unsuccessfully
to remove them intact from the wallpaper to which they were stuck. The
plaintiff’s case is that all these items were fixtures; that they passed to
him, the purchaser, by subpurchase of the house, garden and grounds; that he is
entitled to their delivery up in good condition, damages for their detention,
and compensation for their loss or damage.
The Hinton St
George Estate was put up for sale by auction on August 2 1968. The auctioneers
were Knight Frank & Rutley, who prepared the particulars of sale. There
were 24 lots. Hinton House with its gardens, grounds and entrance lodge was lot
1, approximately 23 acres. The plaintiff was interested in lot 1 and also lot 4
(the park, 40 acres). A company, Effold Ltd, was prepared to bid for the whole
estate, but was particularly interested in the forestry. A tenant farmer was
interested in buying his farm. Such was the coincidence of their interests
that, not surprisingly, a syndicate was formed. Mr Simon Lawrence was instructed
to bid on their behalf. Mr Lawrence is a partner in the third defendants but at
the auction sale on August 2 was acting for the syndicate which included the
plaintiff and Effold. On the morning of the sale (which itself took place in
the afternoon) the plaintiff contracted with Effold to buy lots 1 and 4 from
them if their bid for the whole estate was successful. Later, by mutual
agreement, he withdrew from the purchase of lot 4. Effold’s bid for the estate
was successful at a figure of £225,000 whereupon the plaintiff’s contract to
buy the house and grounds (lot 1) from Effold became unconditional. Effold were
due to complete on September 30, but completion was delayed until November 4.
Meanwhile
there occurred other events of some importance. On August 5 the plaintiff,
having told Lord Poulett that he was the purchaser of the house, paid a visit
to the house. The plaintiff’s reason for buying the house and grounds was that
he hoped to be able to develop Hinton as a tourist attraction; Longleat was in
his mind’s eye. Naturally he wanted to secure as many of its historic ornaments
as he could. On his visit he sought to discuss with Lord Poulett the
possibility of buying the contents of the house, or some of them. But the Earl
would not be drawn.
The Earl had
in mind not only an auction of the contents but also the sale by private treaty
or otherwise of such of the treasures as he might be advised to sell
separately, that is to say, otherwise than at a contents auction. He arranged
for an auction on October 23, with
October 22 as the viewing date. The plaintiff did not visit the house between
August 5 and October 22–almost certainly because Lord Poulett did not wish him
to do so. On August 14 upon the Earl’s instructions, five of the six paintings
were taken from the Queen’s Dining Room, namely: ‘Lord Willoughby’ removed by
Rogers instructed by Sothebys (subsequently, that is to say on February 19
1969, sold by Sothebys at auction for £100); ‘Duke of Leeds’ removed by Rogers
instructed by Sothebys (who subsequently, on June 11 1969, sold it at auction
for £180); the alleged ‘King James II’ removed by Rogers instructed by Sothebys
(who subsequently, on June 11 1969, sold it by auction for £250); ‘Elizabeth
Countess of Essex’ removed by Rogers instructed by Sothebys (not sold);
‘Marquis of Hamilton’ removed by Rogers instructed by Sothebys, who sold it by
auction on March 5 1969 for £550. ‘The Return’ was left in position.
On October 22
the plaintiff, armed with a sale catalogue, the contents of which had disturbed
him, came to view. He found the two Poulett coronation portraits in place in
the Queen’s Ante-Room but the five pictures gone from the Queen’s Dining Room:
only ‘The Return’ was in its place. The statue was on its plinth on the West
Lawn, but the sundial had been removed from its baluster. In the Chinese Suite
he noticed that several prints were missing. The catalogue upset him because it
listed for sale ‘The Return,’ the two coronation portraits, the statue, the
sundial, and a chandelier (about which there is no longer any dispute). He made
complaint and sought advice the upshot of which was that Mr Simon Lawrence, now
acting for Lord Poulett as auctioneer of the contents, withdrew from the sale
the two coronation portraits and the plinth but not the statue which stood on
it. The sundial and the statue were sold at the auction on October 23. So also
was ‘The Return’; its frame was also sold on the same day to the same
purchaser, but privately. A few days later the plaintiff went again to Hinton
House only to find that all he claimed had gone save the Chinese prints, and
these he found in bad shape. He refused to complete his subpurchase on the day
agreed for completion, that is to say October 31. We now know that ‘The Return’
and its frame were removed on October 24 by a local builder, Mr Ash, after
being sold (total price £700) by Mr Simon Lawrence on the 23rd; that the
coronation portraits were also removed by him on Mr Lawrence’s instructions;
that the statue was sold for £225 at the auction and removed shortly thereafter
by the purchasers; and that the sundial was sold at the auction for £40 and
taken away by the buyer.
Despite the
plaintiff’s claims, of which Lord Poulett and Effold had notice before their
completion, Effold completed their purchase of the whole estate without
reservations or
house and grounds on February 19 following. Thus all the objects (other than
the Chinese prints) which the plaintiff claims as his property were removed on
Lord Poulett’s instructions after sale and before completion by Effold. The
conveyances which followed were silent as to the matters in dispute.
I have recited
enough of the history to show that, if the pictures, statue or sundial, or any
of them, be fixtures, very difficult questions arise as to the entitlement of
the plaintiff to sue the head vendor, Lord Poulett. But if none of them was a
fixture, the plaintiff is non-suited at the outset, save for his claim in
respect of the Chinese prints, which are admitted to have been fixtures and did
come into his possession. The first question, therefore, is whether the objects
(other than the Chinese prints) were fixtures. On this preliminary, but
fundamental, issue I confess that my mind has wavered. But at the end of the
day, after listening to prolonged and painstaking argument upon the facts and
reflecting upon counsel’s submissions in the course of the tranquillity
obtained by reserving judgment, I find myself in agreement with the Vice-Chancellor.
None of the objects (other than the Chinese prints) was, in my judgment, a
fixture. I shall now endeavour to explain how I have reached this conclusion.
Lord Poulett sold as an absolute owner. He was in a position to decide what he
would offer for sale and what he would exclude from his offer. One turns
therefore first to the contract of sale for the terms of his bargain. They are
to be found in the following documents: a memorandum of agreement signed by the
purchasers, Effold Ltd, and dated August 2 1968; printed stipulations which
were bound up with the auctioneers’ particulars of sale; some printed special
conditions of sale; and the National Conditions of Sale (17th ed) with one or
two express modifications. Effolds bought the whole estate (lots 1 to 24). Lot
1 was the house, garden and grounds. The particulars of sale contained a
description of the lot, but, as is usual, the particulars were not incorporated
into the contract. The printed stipulations, which were of contractual force,
included the following clause:
Fixtures and
fittings. Fixtures and fittings usually denominated tenant’s fixtures and
fittings belonging to the vendor shall be taken by the purchaser, according to
an inventory to be prepared by the auctioneers and paid for at a valuation to
be made in the usual way and the decision of the valuer or umpire as to what
are tenant’s fixtures and fittings shall be conclusive in the event of any
dispute. Certain items are however specifically excluded from the Sale–see
Special Conditions of Sale No 14.
I need not
read the rest of the stipulation. Special condition no 11 reserved to the
vendor the right to sell by auction at Hinton House ‘household goods, effects,
chattels or . . . other possessions of the vendor’ prior to completion. Special
condition no 14 specifically excluded certain items from the sale–two sets of
tapestries, two statues, some ornamental stonework, some bookcases and the
cornice cupboards and curtain rails of the Grand Saloon. None of the items in
dispute was specifically excluded under this condition. The contract was
therefore for the sale of the realty–Hinton House, garden and grounds: certain
specifically mentioned fixtures were excluded, but an inventory was to be
prepared of ‘tenant’s fixtures,’ which were to be taken by the purchaser and
paid for at a valuation. No inventory has in fact ever been taken and, though
the point is mentioned in the respondents’ notice, no submissions based on this
provision have, as I understand the litigation, been advanced to this court by
either side. In my judgment, since the contract was silent as to the items in
dispute, it is necessary to determine whether under the general law they are to
be considered as fixtures, which pass with the realty, or as chattels, in which
event they remain the property of the vendor.
As so often,
the difficulty is not the formulation but the application of the law. I think
there is now no need to enter into research into the case law prior to Leigh
v Taylor [1902] AC 157. The answer today to the question whether objects
which were originally chattels have become fixtures, that is to say part of the
freehold, depends upon the application of two tests: (1) the method and degree
of annexation; (2) the object and purpose of the annexation. The early law attached
great importance to the first test. It proved harsh and unjust both to limited
owners who had affixed valuable chattels of their own to settled land and to
tenants for years. The second test was evolved to take care primarily of the
limited owner, for example a tenant for life. In Leigh v Taylor
the House of Lords invoked it to protect the interest of the tenant for life
who had affixed large and valuable tapestries to the walls of the house for the
purpose of adornment and enjoyment of them as tapestries. As I read that
decision, it was held that she had not made them fixtures. ‘They remained
chattels from first to last,’ said Lord Lindley at p 164 of the report. In the
law of landlord and tenant the law’s protection went further: even if the
chattel affixed by the tenant must be held to have become a fixture, that is to
say part of the realty, a rule was evolved that it was to be treated as the
property of the tenant and could be removed by him if it fell into a class
recognised by law as ‘tenant’s fixtures,’ that is to say if it be a trade,
agricultural, or an ornamental fixture. We are not concerned, on the view I
take of the case, with ‘tenant’s fixtures.’
The governing relationship with which this case is concerned is that of
a beneficial owner of the legal estate selling the freehold to a purchaser.
Such a seller can sell as much or as little of his property as he chooses. Lord
Poulett excluded certain named objects from the sale, but the contract was
silent as to the objects claimed by the plaintiff. I think it was conceded by
the defendants–certainly I so read the contract of sale–that, if the pictures,
statue, and sundial were fixtures at the time of the contract, they were
included in it as part of the freehold (subject of course to a valuation if
they should prove to be tenant’s fixtures). The preliminary, and basic,
question is therefore whether these objects were at that time fixtures.
Since Leigh
v Taylor the question is really one of fact. The two tests were
explained in that case by the Lord Chancellor (see the report at pp 158 and
159), who commented that not the law but our mode of life has changed over the
years; that what has changed is ‘the degree in which certain things have seemed
susceptible of being put up as mere ornaments whereas at our earlier period the
mere construction rendered it impossible sometimes to sever the thing which was
put up from the realty.’ In other words,
a degree of annexation which in earlier times the law would have treated as
conclusive may now prove nothing. If the purpose of the annexation be for the
better enjoyment of the object itself, it may remain a chattel, notwithstanding
a high degree of physical annexation. Clearly, however, it remains significant
to discover the extent of physical disturbance of the building or the land
involved in the removal of the object. If an object cannot be removed without
serious damage to, or destruction of, some part of the realty, the case for its
having become a fixture is a strong one. The relationship of the two tests to
each other requires consideration. If there is no physical annexation there is
no fixture. Quicquid plantatur solo solo cedit. Nevertheless an object,
resting on the ground by its own weight alone, can be a fixture, if it be so
heavy that there is no need to tie it into a foundation, and if it were put in
place to improve the realty. Prima facie, however, an object resting on
the ground by its own weight alone is not a fixture: see Megarry and Wade,
p 716. Conversely, an object affixed to realty but capable of being removed
without much difficulty may yet be a fixture, if, for example, the purpose of
its affixing
[1908] 1 Ch 615 at p 619). And in the famous instance of Lord Chesterfield’s
Settled Estates [1911] 1 Ch 237 Grinling Gibbons carvings, which had been
affixed to a suite of rooms 200 years earlier, were held to be fixtures. Today
so great are the technical skills of affixing and removing objects to land or
buildings that the second test is more likely than the first to be decisive.
Perhaps the enduring significance of the first test is a reminder that there
must be some degree of physical annexation before a chattel can be treated as
part of the realty.
When one seeks
to apply the law to the facts of this case, it is necessary to discriminate
between what is relevant but not decisive and what is decisive. Investigatory
expertise of a high order has been devoted by both sides to discovering how the
pictures were affixed to the panelling and the wall in the two rooms.
Fascinating though the investigation was, its conclusion (whether it be, as Mr
Millett contended, that the pictures were really put up as an integral part,
with the panelling, of the wall-covering, or, as Mr Browne-Wilkinson contended,
were put into recesses left for them) is not, in my judgment, decisive. It is
enough to say that the pictures were firmly fixed and that their removal needed
skill and experience if it were to be done without damage to the wall and
panelling. Certainly they were firmly enough fixed to become fixtures if that
was the object and purpose of their affixing. But, if ordinary skill was used,
as it was, in their removal, they could be taken down, and in the event were taken
down, without much trouble and without damage to the structure of the rooms.
The decisive question is therefore as to the object and purpose of their
affixing. Pictures had hung in the two rooms for centuries. ‘The Return’ had
been in the anteroom for a very long time–perhaps ever since it was painted.
The 7th Earl decided in the early part of the 20th century to install in the
two rooms the panelling and so designed it that there were recesses for
pictures. It is this feature which lends plausibility to the suggestion that
the pictures, fitted into the recesses left for them, were not to be enjoyed as
objects in themselves but as part of the grand architectural design of the two
rooms. The Vice-Chancellor rejected this view. So do I. When the panelling was
installed in the two rooms the design was either panelled walls with recesses
for pictures to be enjoyed as pictures, or rooms having walls which were a
composite of panelling and pictures: in other words, the pictures were to be
part of a composite mural. I think the former was the truth. The panelling was
Victorian, the pictures a heterogeneous collection. According to Sothebys’
expert they were of different dates in the 17th and 18th centuries, of
different styles, by different hands, the sort of set anyone could put together
at any time–very different, I would comment, from that unity of design, the
‘Elizabethan Room’ in the case of In re Whaley. There was a particular
Poulett family interest in ‘The Return’ and in the two coronation portraits,
but this interest focused attention not on the design of the room but on the
pictures themselves. Notwithstanding the painstaking and attractive arguments
of Mr Millett for the plaintiff, I find, applying the second test, that the
pictures were not fixtures. They were put in place on the wall to be enjoyed as
pictures. The panelling presented a technical problem in putting them up. The
way the carpenter, or whoever it was, solved the problem is not decisive in
determining their legal character. But the purpose in putting them there is.
The statue and
the sundial give rise in my judgment to no difficulty. Neither was at the time
of the sale physically attached to the realty. The sundial was a small object
and, once the Earl had detached it (as he did many years earlier) from its
pedestal, it ceased to be part of the realty. The statute was heavy. It weighed
10 cwt and stood 5 ft 7 in high on its plinth. There is an issue as to whether
it was cemented into the plinth or rested on its own weight. The question is
not decisive, for, even if it was attached by a cement bond, it was (as events
proved) easily removable. However, upon the balance of probability, I agree
with the Vice-Chancellor in thinking it was not attached. The best argument for
the statue being a fixture was its careful siting in the West Lawn so as to
form an integral part of the architectural design of the west elevation of the
house. The design point is a good one so far as it goes: it explains the siting
of the plinth, which undoubtedly was a fixture. But what was put upon the
plinth was very much a matter for the taste of the occupier of the house for
the time being. We know that at one time the object on the plinth had been a
sundial. At the time of the sale it was this statue of a Greek athlete. The
plinth’s position was architecturally important: it ensured that whatever stood
on it would be correctly positioned. But the object it carried could be
whatever appealed to the occupier for the time being. Sundial or statue–it did
not matter to the design, so long as it was in the right place–a result ensured
by the plinth which was firmly fixed into the ground. Being, as I think,
unattached, the statue was, prima facie, not a fixture, but, even if it
were attached, the application of the second test would lead to the same
conclusion.
As for the
Chinese prints, I agree with the Vice-Chancellor. Even if the plaintiff could
prove a title to sue in conversion, detinue or trespass, there is no evidence
that it was by the hand or upon the instructions of Lord Poulett that the
prints were damaged. And, if the plaintiff’s case is put in equity as a breach
of trust by a vendor when he was constructive trustee for the purchaser, the
plaintiff (always assuming he can prove his entitlement to sue the head vendor,
a question upon which I express no opinion) has failed to prove any act or
omission by the defendant which could amount to a breach of trust.
Accordingly, I
agree with the Vice-Chancellor. The action fails in limine. The
plaintiff cannot show either that the pictures, statue and sundial were
fixtures or that Lord Poulett, his executors, or anyone acting on their behalf
were guilty of any acts or omissions in respect of the Chinese prints which,
assuming the plaintiff could make title, could amount either to trespass,
conversion or detinue or to breach of trust. Accordingly, I would dismiss the
appeal.
After I had
prepared this judgment, I had the advantage of reading the judgment about to be
delivered by Goff LJ. I would make two comments. First, without in any way
disagreeing with the possibility, in logic, of drawing the distinction I
understand my brother to be making between chattels and removable fixtures, I
think it would be illogical to overlook the possibility that an object fixed to
realty may yet remain a chattel. In my judgment, the pictures, statue and
sundial did so remain. Secondly, upon my understanding of the way the case has
been fought, Mr Millett for the plaintiff submitted that these objects were
fixtures and part of the realty, while the defendants submitted that they were
chattels. Having declared myself in favour of the defendants on this issue, I
have not thought it necessary to consider the possibility of the objects being
fixtures but not part of the realty, that is to say removable fixtures.
Dissenting,
GOFF LJ said: In this case I have had the advantage of seeing the judgment
already delivered by Scarman LJ and that about to be delivered by Stamp LJ, and
I regret to say, as I do with due respect and diffidence, that I find myself in
a large measure in disagreement with them. I need not restate the facts, as
they are very fully recited in those judgments, and I will proceed to my view
of the law and the effect of those facts. I must, however, observe that as
pleaded the case against the first defendant was based upon his duty as a
vendor to preserve the trust property (see para 7 (7) B and para 18 (1) of the
statement of claim) and detinue, trespass and conversion (para 18 (2)). There
was no claim for specific performance of the contract for the sale to Effold,
to which I will refer as the head contract, or of the subsale by Effold to the
plaintiff, to which I will refer as the sub-
his right to specific performance of the head contract and that was fully
argued before us. This is a question of law; all the relevant facts were
pleaded and in my view we must consider and decide upon that claim. I can
dispose of the Chinese prints at the outset, as the evidence wholly failed to
establish the case pleaded, and we ruled on that during the hearing. I turn
therefore to the other disputed items, and in using that expression in this
judgment I must, of course, be understood as excluding the Chinese prints.
In my judgment
anything which is attached to the land by physical connection, or in some cases
by simply resting on its own weight, is a fixture, although it may be such that
a tenant for years or other limited owner is entitled to remove it. Until
severed it is not a chattel; see per Rigby LJ in De Falbe [1901] 1 Ch
523 at p 530, where he described such things as ‘removable fixed things’ and
again at p 531, where he said: ‘In all such cases the object (whatever it may
be) which is affixed for the purpose of ornamentation is affixed to the
freehold, but the exception allows it to be removed.’ It seems to me that all the items in dispute
except the sundial, as to which special considerations apply, must be fixtures,
and the question is not, I think, with respect, whether they are fixtures or
chattels, but whether they were removable after conclusion of the head
contract, which unless therein otherwise provided would preclude the first
defendant, albeit an absolute owner, from removing anything not within a
recognised exception to the rule quicquid plantatur solo solo cedit,
which exceptions include trade fixtures and ornamental objects; see per Lord
Justice Vaughan Williams in the same case at p 535: ‘It will not be denied, and
indeed it has not been denied in argument, that among the exceptions to the
rigid rule, quicquid plantatur solo solo cedit, there are these two–one
in respect of trade fixtures, the other in respect of ornamental objects, which
have been annexed in some way to a freehold.’
Unless the vendor by his contract reserves some special right, he is, as
I see it, in this respect in the same position vis-a-vis the purchaser
as is a tenant for life vis-a-vis the remainderman, and as Rigby LJ said
at p 531, substituting as I do the words ‘the disputed items’ for ‘these
tapestries’ and ‘the vendor’ for ‘the tenant for life’ the question in the
present case is reduced to this, whether the disputed items were so affixed as
to become part of the house, or so affixed as to continue removable at the will
and pleasure of the vendor who affixed them.
It follows in
my judgment that the disputed items except the sundial were either ‘so affixed
as to become part of the house,’ in which case they were included in the land
sold without addition to the price, or they were ‘fixtures and fittings usually
denominated tenants’ fixtures’ within the meaning of the provision in that
behalf in the general stipulations, so that the plaintiff became entitled to
them, but was bound to pay for them at a valuation. That provision is part of
the contract and cannot be ignored. In my view it postulates the hypothesis of
landlord and tenant. I agree that the proper test for determining whether
anything is a fixture passing with the inheritance or a removable fixed thing
is now well settled (see Leigh v Taylor) and the difficulty is
not what is the test but what conclusion one should reach when applying it to
the facts. The test is in two parts. It is partly the degree of physical
annexation, though that is generally a subordinate consideration, and more
important the ‘object and purpose of the annexation as it is to be inferred
from the circumstances of the case.’
This in my view appears very clearly from the judgments of both
Vaughan-Williams and Stirling LJJ in the De Falbe case, and as the
former pointed out at p 536 a fixture may be removable although its nature is
such that it has necessitated a large degree of physical annexation. That being
so, I would agree that the two pictures in the Queen’s Ante-Room were removable
fixtures. I would take the same view of those in the Queen’s Dining Room were
it not for the description in the particulars ‘with oak panelling around
picture recesses.’ It is conceded, and I
think rightly so, that in the face of that description the first defendant
cannot claim that the panelling was a movable fixture, and if so, then I do not
myself see how the pictures can be any different, as I think the panelling and
pictures were made one integral whole.
The statue of
the Greek athlete and the sundial were both placed at focal points in the
grounds and the inference is, I think, that they were not placed there for
their better enjoyment as chattels, but for the permanent enhancement of the
beauty of the grounds. Prima facie, therefore, I would regard these also
as not removable. It is uncertain whether the statue was cemented to the plinth
or whether it was merely cemented in part by way of a repair when it became
broken, but in my view it matters not, since having regard to the size and
situation of the statue, I would regard this as one of those cases where
resting upon its own bulk was a sufficient annexation, and so I adhere to my prima
facie view; see D’Eyncourt v Gregory (1866) LR 3 Eq 382 at p
396 where Lord Romilly MR said: ‘I think it does not depend on whether any
cement is used for fixing these articles, or whether they rest on their own
weight, but upon this–whether they are strictly and properly part of the
architectural design for the hall and staircase itself and put in there as
such, as distinguished from mere ornaments to be afterwards added’; and Bulkeley
v Lyne Stephens (1895) 11 TLR 564. I am of course not overlooking the
criticisms of D’Eyncourt v Gregory in De Falbe [1901] 1 Ch 523 at
pp 532 and 537, but those criticisms were as to the inference which Lord Romilly
drew from the facts, not the principle that a thing may be a fixture because it
is part of the architectural design. The sundial is more difficult because the
first defendant had unfastened the actual dial before the date of the head
contract. True this was not in order that it might be removed and cease to be
connected with its pedestal, but in order that it might be adjusted to take
account of summer time. Nevertheless, as it was in no way physically annexed to
the land and was not a heavy object resting on its own weight, I have finally
come to the conclusion that this was not a fixture at all, whether removable or
not, but a chattel, and in my judgment the plaintiff cannot on any showing have
any right in respect of this item. Apart from the sundial, therefore, and the
two portraits in the ante-room, I would have been for holding that all the
disputed items were irremovable fixtures. However, this is not a difference of
view on the law or in principle, but a matter of impression, and as both my brethren
think otherwise I am prepared to proceed on the basis that they were removable.
The consequence, however, in my judgment must be that the fixtures clause
applies and Effold, and through it the sub-purchaser, were entitled to all the
disputed items save the sundial but bound to pay for them upon a valuation.
Then I turn to
consider whether the plaintiff as sub-purchaser is entitled to relief against
the first defendant as head vendor. It is clear that after Effold paid the
contract price and took a conveyance without the disputed items, without
compensation, and without reserving any rights in respect thereof, it could
have no claim against the first defendant. It is said that the plaintiff is a
stranger to the head contract and so cannot in any event claim under it, and
even if he could have done so at one time he cannot now, as he cannot be in any
better position than the original purchaser, Effold. I think it is also
suggested that in any case he cannot now pursue any remedy against the first
defendant, since he has completed the sub-contract. I cannot accept these
arguments, and I regret to say that I find myself in disagreement with my
brother Stamp LJ as to the law on this question. I agree that the sub-contract
did not make the first defendant
view Effold became a trustee, in the sense that a vendor is a trustee, of the
benefit of the head contract, which entitled the plaintiff to specific
performance of the head contract subject to notice of the sub-contract having
been given to the first defendant, which it clearly was. In the present case he
had express notice of the sub-contract and of the plaintiff’s claim to the
disputed items. This being so, although the subsale was not an assignment of
the head contract, the plaintiff acquired an equitable interest in it, which
the first defendant was bound to recognise and protect, and he and Effold could
not, with notice of the plaintiff’s claim, agree to rescind the head contract and
make new terms, or vary the terms, to the prejudice of the plaintiff, leaving
him with no more than a remedy against his own vendor, Effold. In my judgment,
therefore, notwithstanding the first defendant and Effold purported to complete
the head contract, and Effold could not thereafter maintain any claim against
the first defendant, nevertheless, as they excluded part of the property agreed
to be sold, the plaintiff remained entitled to sue the first defendant for
specific performance in the form of an order for delivery up of the one picture
formerly in the Queen’s Dining Room which remains unsold (see Phillips v
Lamdin [1949] 2 KB 33 at p 41) and compensation for the rest of the
disputed items, except of course the sundial.
In my judgment
this is well supported by authority, which begins with the very ancient case of
Dyer v Pultenay (1740) Barn Ch 160 at p 169. With respect I
cannot limit that case, as I think Stamp LJ does, to a special case of getting
in an outstanding legal estate. A large part of the purchase money under the
head contract in that case had not been paid. What the sub-purchaser sought,
but could not get, was to stand in the purchaser’s shoes to compel the vendor
to perform not the original contract but his own contract, but it was made
quite clear that the sub-purchaser, had he been willing to complete the
original contract, could have had a specific performance of it. But if the
matter would remain doubtful on that authority it becomes clear in the later
case of Fenwick v Bulman (1869) LR 9 Eq 165. True, in that case
the vendors had sued not only their own purchaser but the sub-purchaser in an
action for specific performance, and this was held against them when they
resisted his suit, but the rights of the sub-purchaser were laid down in
perfectly general terms. Sir John Stuart VC said at p 168: ‘. . . can it be
successfully contended that the plaintiff is not entitled to a right arising
out of the original contract? I think
not, for if that contract be not performed, he can have no performance of his
contract with the original purchaser,’ and again: ‘However, if I entertained
any doubt in this case, it would be dispelled by the decision of Lord Hardwicke
in Dyer v Pultenay, in which the obvious equity of a subpurchaser
is clearly recognised.’ Next in my
respectful view, the speeches in the case of Shaw v Foster (1872)
LR 5 HL 321, to which Stamp LJ has drawn attention, support my view of the
legal position and not his. The decision itself is, of course, completely
distinguishable on the following grounds: (1) the transaction with the third
party was only an agreement to assign conditional on request which the House
thought had never been made, for good reason in that the property was leasehold
and the third party did not wish to be saddled with its burdens; (2) even if a
request had been made, no notice of that circumstance had been given to the
vendor, so that he had no notice of any absolute interest in the third party;
(3) the third party was impeding performance of the head contract by refusing
to advance the balance of the purchase money, yet requiring a conveyance to
himself (see pp 347/8); (4) the vendor performed the head contract according to
its terms. In the present case, however, there was an actual binding contract
of subsale which was an assignment in equity of the benefit of the head
contract, or at least gave the subpurchaser an equity in it, and the first
defendant was given express notice of the equity and that the plaintiff claimed
the disputed items. The first defendant did not perform the head contract, but
broke it by retaining the fixtures. The speeches, however, in my view clearly
recognised the right of a subpurchaser to sue the head vendor for specific
performance where proper notice of the subcontract has been given. Thus at p
333 Lord Chelmsford said:
According to
the well known rule in equity, when the contract of sale was signed by the
parties Sir William Foster became a trustee of the estate for Pooley, and
Pooley a trustee of the purchase-money for Sir William Foster; and it was
competent to Pooley to assign the benefit of his contract, or to charge his
equitable interest in the property in favour of another person, and upon notice
given to Sir William Foster of such assignment or charge, he would have been bound
to protect and give effect to it.
Again, at p
338 Lord Cairns said:
Under these
circumstances I apprehend there cannot be the slightest doubt of the relation
subsisting in the eye of a court of equity between the vendor and the
purchaser. The vendor was a trustee of the property for the purchaser; the
purchaser was the real beneficial owner in the eye of a court of equity of the
property subject only to this observation, that the vendor, whom I have called
the trustee, was not a mere dormant trustee, he was a trustee having a personal
and substantial interest in the property, a right to protect that interest, and
an active right to assert that interest if anything should be done in
derogation of it. The relation, therefore, of trustee and cestui que trust
subsisted, but subsisted subject to the paramount right of the vendor and
trustee to protect his own interest as vendor of the property.
My Lords, in
that state of things Mr Pooley, the purchaser, being the real and beneficial
owner, I apprehend that there cannot be any doubt of the rights of Mr Pooley
with regard to the property of which he had thus become the beneficial owner.
He had a right to devise it; he had a right to alienate it; he had a right to
charge it. There are various ways which might be suggested in which, for
valuable consideration, he might have created a charge more or less affecting
the property. I apprehend that he might have contracted, for valuable
consideration, with any person to whom he was indebted, that he (Pooley) would
complete the purchase, and that when the purchase was completed and the
property assigned to him, he would then make it over to the person to whom he
was thus indebted. That would have been one way of dealing with his interest.
Another way might have been this–he might have contracted with any person to
whom he was indebted that he would pay the purchase-money remaining unpaid, and
that then, the purchase-money being thus paid, and the time for the assignment
having arrived, he would authorise and require the vendor to assign, not to
him, Pooley, but to the person to whom he was indebted. A third and a simpler
way in which he might have effected his interest would have been to contract
with any one to whom he was indebted to assign to him the contract which he had
entered into in whole, making the person to whom he was indebted assignee of
the contract. Any one of those modes might, in my opinion, have been resorted
to; and the only qualifications to which all or any of them would have been
subject are these: first, that by none of these modes could anything have been
done by Mr Pooley derogating from, or impeding, or delaying the rights of the
vendor to require the fulfilment of his contract according to its terms; and,
secondly, whatever course was taken by Mr Pooley and any person with whom he
contracted to charge his interest, notice of the particulars of that charge,
and the mode and form of the charge, would be required to be given to the
vendor, in order that the vendor might shape his course according to the notice
he had thus received.
It is true
that the instant case is a subsale and thus different from the examples given
by Lord Cairns, but the authorities already cited show that the subpurchaser
has an equity, which is in my judgment equivalent to the position in those
examples.
Finally, there
is the case of Harmer v Armstrong [1934] Ch 65. There the
purchaser entered into the contract as a trustee, and then, claiming that he
had been acting on his own behalf, purported to agree with the vendor to
rescind the contract, and the beneficiaries successfully sued for specific
performance. There the purchaser offered, if he were held to be a
beneficiaries had an independent right which they could enforce against the
vendor. This case in my judgment is a complete answer to the proposition that
because the purchaser had lost its right to sue in respect of the disputed
items the subpurchaser’s right was also defeated. I agree that a subpurchaser
can only have a specific performance on the terms that he performs the
purchaser’s part of the head contract, so far as it remains to be performed.
Here, however, Effold paid the price, and so the only question in this respect
arises with regard to the inventory and valuation, and it is true that it never
offered to pay. In my judgment, however, that does not prevent him from
obtaining specific performance now on submitting to be charged with the value
of the disputed items. If the first defendant had required payment and the
plaintiff had refused, that no doubt would have prevented him obtaining
specific performance, at all events once the first defendant had accepted it as
a repudiation, but the first defendant refused to allow the plaintiff to have
the disputed items on any terms, nor did the first defendant himself take any
steps towards having the requisite valuation.
There remains
the question whether it makes any difference that the plaintiff was a
subpurchaser of part only of the property, and in Fenwick v Bulman
(1869) LR 9 Eq 165 at p 167 Sir John Stuart did suggest that this might be a
valid objection. It may well be where there are a lot of subpurchasers, as
where a large estate is sold off in lots, that the court will refuse relief by
way of specific performance to a subpurchaser, either because it will be found
that sufficient notice of the relevant subsale has not been given to the
vendor, or because the circumstances make the case one in which the equitable
remedy is unsuitable and the subpurchaser must be left to his remedy against
his own vendor: see Harmer v Armstrong [1934] Ch 65, particularly
at p 88 and pp 93 and 94. That case can be considered if and when it arises,
but for my part in a case such as we have here, where there are few
subpurchasers, the plaintiff has subpurchased a substantial part of the estate,
and clear express notice of the subcontract has been given to the vendors, I
cannot think that the fact that he has not purchased the whole of the estate
should be allowed to defeat his equity.
Where a
subpurchaser seeks to enforce this equity he should make the original purchaser
a defendant, or obtain leave from the court to sue in his name, and neither
course was pursued in this case; but instead, a few months after the conveyance
from Effold, the plaintiff took an assignment containing the following
provisions: recital (6):
Some of the
said fixtures have been removed from Hinton House aforesaid or as the case may
be the said grounds without the authority or consent of the Assignor or the
Assignee and some of the same have suffered damage and for the purpose of
better enabling the Assignee to take all such proceedings in respect of such
fixtures as aforesaid as he may be advised or desire to take the Assignor has
agreed with the Assignee in manner hereinafter appearing Now This Deed
Witnesseth that in consideration of the premises the Assignor as Beneficial
Owner hereby assigns unto the Assignee All That the benefit of the Agreement
and Conveyance hereinbefore first recited together with all the Estate and
interest of the Assignor in the fixtures which at any material time were
annexed to Hinton House aforesaid and the said grounds and all rights of action
choses in action and other rights benefits advantages or demands which the
Assignor has or may have in the same or with respect thereto or with respect to
any matter or thing pertaining thereto arising thereto or connected therewith
To Hold all the same unto the Assignee absolutely.
I am not sure
that that was the correct way to deal with the matter, but as I understood it
no objection was raised on the score of parties if as a matter of equity the
plaintiff could in any form enforce the head contract.
The plaintiff
is in my judgment, therefore, entitled to an order for delivery up of the unsold
portrait formerly in the Dining Room, and to an order for payment of the value
of the remaining disputed items, except the sundial, and as this is by way of
specific performance that value should in my judgment be ascertained on the
equitable principle as at the date of judgment, see Re Massingberd
(1890) 63 LT 296 (where the date taken was that of the commencement of the
proceedings) and Grant v Dawkins [1973] 1 WLR 1406 at p 1410
citing Wroth v Tyler [1973] 2 WLR 405. This, however, is subject
to the plaintiff submitting to be charged with the value as at the date fixed
for completion by the head contract. I would therefore allow the appeal so far
as concerns the first defendant; order delivery up of one picture and direct an
inquiry as to the value of the disputed items other than that picture and the
sundial at each of these dates and order that the plaintiff do recover from the
first defendant the excess, if any, of the present value over the completion
date value, and reserve the costs of the inquiry.
I now turn to
the case against the other defendants, and it is submitted that they are liable
at law in conversion or detinue, or alternatively in equity as constructive
trustees. In my judgment none of these claims can be supported. The claim at
law was based first upon the Effold conveyance, but like my brother Stamp LJ I
fail to see how that could possibly give the plaintiff any right to sue the
agents at law, or for that matter, as was at one time suggested in argument,
the first defendant himself, because the disputed items were severed before it
was executed. Alternatively, Mr Millett relied upon the case of Healey v
Healey [1915] 1 KB 938. That case, if rightly decided, was a special one
depending upon the right of a married woman to maintain an action against her
husband in respect of her separate estate, and the trustees so far as the right
to immediate possession was concerned were mere bare trustees. In my view it
has nothing to do with the present case, where the plaintiff’s only right to
possession was through an order for specific performance of a contract to which
he was not even a party. The case in equity ran thus: the first defendant was a
constructive trustee for the plaintiff, and therefore the agents in dealing
with the property on his instructions in derogation of the plaintiff’s rights
became liable to him as constructive trustees. I am not satisfied that the
premise is correct for the present purposes. The first defendant was no doubt a
constructive trustee for Effold under the head contract until the Effold
conveyance, but he did not hold the fixtures on a constructive trust for the
subpurchaser albeit the latter had an equity which he was entitled to protect
by an order for specific performance. Even, however, if the premise be right,
still in my judgment the conclusion does not follow. The first defendant and
Effold took it upon themselves to construe the head contract and to apply it to
the facts and decided that there was nothing in the plaintiff’s claim. They
acted upon that and the agents acted on their instructions. They were wrong and
therefore there was a breach of contract, but there was not, as I see it, any
allegation, let alone proof, of such dishonesty or want of probity as must be
shown to render the agents liable in accordance with the principles laid down
by Sachs and Edmund Davies LJJ in the Carl Zeiss case (Carl-Zeiss-Stiftung
v Herbert Smith & Co [1969] 2 Ch 276 at pp 299 and 301).
Agreeing with
Scarman LJ, STAMP LJ said: I agree that the items in dispute were not part and
parcel of Hinton House and that this action accordingly fails. But lest it be
thought that I had accepted the plaintiff’s submissions on the question whether
the plaintiff’s action is well founded in law and because this case has been so
fully argued on all points I will give a judgment of my own.
On August 2
1968 the Hinton St George Estate was put up for sale by auction by Lord
Poulett. The auction
House and its outbuildings, gardens and grounds. By agreement made at the
auction, Effold Properties Ltd in fact agreed with Lord Poulett to purchase the
whole estate–not in separate lots–for a sum of £225,000. I will call this contract
the ‘estate contract.’ On the same day
the plaintiff agreed to purchase and Effold agreed to sell the property
described as lot 1 and lot 4 in the particulars of sale for the sum of £28,928.
I will call this latter agreement ‘the subcontract.’ There were other subcontracts for the sale of
other lots to other subpurchasers. Between the date of the subcontract and the
date of completion of the sale of the estate, on October 31 1968, various items
of property which the plaintiff claims were attached to and had become part and
parcel of Hinton House and were accordingly comprised in both sales were
removed. If these items (which I will call collectively ‘the disputed items’)
were ever part and parcel of Hinton House, they had by October 31 1968 been severed
therefrom. On October 31 1968 the sale by Lord Poulett to Effold of the Hinton
St George Estate was, as I have indicated, completed and on that day the estate
was conveyed to Effold in consideration of the sum of £225,000 the receipt of
which was acknowledged. Effold was at the date of completion aware that the
disputed items had been removed from Hinton House. Effold nevertheless made and
makes no claim for compensation in respect of the disputed articles or in
respect of their removal. On February 5 1969 Effold and the plaintiff entered
into an agreement supplemental to the subcontract whereby lot 4 and a part of
lot 1 were excluded from the sale to the plaintiff and the purchase price was
reduced to £17,928. The sale by Effold to the plaintiff was completed on
February 19 1969, when Hinton House (less the part excluded by the agreement of
February 5 1969) was conveyed to the plaintiff. The plaintiff was then, and had
been prior to October 31 1960, aware of the removal of the disputed articles.
By a deed of assignment dated October 2 1969 and made between Effold of the one
part and the plaintiff of the other part, after reciting the contracts and
conveyances to which I have referred and reciting that at all times there were
annexed to Hinton House certain fixtures all of which the plaintiff claimed
ought to have passed under the recited transactions first to Effold and then to
the plaintiff, reciting that some of the fixtures had been removed from Hinton
House without the authority of Effold or the plaintiff and some of them had
suffered damage, and reciting that for the purpose of enabling the plaintiff to
take proceedings in respect of such fixtures Effold had agreed with the
plaintiff in manner thereinafter appearing, Effold as beneficial owner assigned
to the plaintiff the benefit of the estate contract and the conveyance of
October 31 1968 by Lord Poulett and all the estate and interest of Effold in
the fixtures which at any material time were annexed to Hinton House and all
rights of action and other rights, benefits, advantages or demands which Effold
had.
In this appeal
it was common ground that after the conveyance by Lord Poulett to Effold, which
had been accepted by Effold with knowledge of the relevant facts and without
any claim for compensation, Effold could make no claim against Lord Poulett
either at law or in equity in respect of the disputed items. At law, as I
understand it, the contractual rights of Effold to have a conveyance of the
property agreed to be sold merged in the conveyance; and it was conceded that
since Effold completed the contract knowing of the removal of the disputed
articles and thereafter made no claim against Lord Poulett in respect thereof,
it must be taken to have waived any right founded on the breach of the vendor’s
fiduciary duty to take reasonable care to preserve the property in a reasonable
state of preservation: see and compare Clarke v Ramuz [1891] 2 QB
456, where the purchaser was at the time of completion unaware that surface
soil had been removed after the date of the contract and where this court left
unresolved the question whether a right of action would have survived if the
purchaser had known of the removal when he completed the contract. Effold in
any event is not a party to this action and makes no claim to the disputed
items. Among the submissions made on behalf of the plaintiff is the submission
that pending completion of the estate contract it was the duty of Lord Poulett,
as trustee for Effold, to use reasonable care to preserve the property
agreed to be sold, including the disputed items, in a reasonable state of
preservation. The case was so pleaded. As I have indicated, Lord Poulett indeed
had a duty to Effold to use reasonable care to preserve the property agreed to
be sold in a reasonable state of preservation; but because of the edifice which
is sought to be built on the proposition that he had that duty ‘as trustee for
Effold’ I find it necessary to examine that proposition.
A vendor under
a contract for the sale of land is bound on completion to convey what he has
agreed to sell. And so (I take his duties from the statement in Fry on
Specific Performance 6th ed at p 638) he is bound on completion to show a
good title to the property contracted to be sold and is bound to take
reasonable care of the property and to pay the outgoings until the purchaser
takes, or ought to take, possession and is bound upon payment of the money
payable by the purchaser to execute and procure the execution by all other
necessary parties of a proper conveyance vesting the legal estate in the
purchaser and to put him in possession of the property agreed to be sold. The
purchaser has corresponding rights. These duties and rights arise from the
contract of sale and it is because of their existence that the vendor is said to
be a constructive trustee, or a trustee sub modo, of the estate for the
purchaser from the time when the contract is constituted. But to say that it is
the duty of the vendor as trustee for the purchaser to care for the
property is to put the cart before the horse and may lead you into error. He is
said to be a trustee because of the duties which he has, and the duties do not
arise because he is a trustee but because he has agreed to sell the land to the
purchaser and the purchaser on tendering the price is entitled to have the
contract specifically performed according to its terms. Nor does the
relationship in the meantime have all the incidents of the relationship of
trustee and cestui que trust. That this is so is sufficiently illustrated by
the fact that prima facie the vendor is until the date fixed for the
completion entitled to receive and retain the rents and profits and that as
from that date the purchaser is bound to pay interest. And you may search the
Trustee Act 1925 without obtaining much that is relevant to the relationship of
vendor and purchaser. Thus, although the vendor because of his duties to the
purchaser is called a trustee, it is wrong to argue that because he is so
called he has all the duties of or holds the land on a trust which has all the
incidents associated with the relationship of a trustee and his cestui que
trust. With these considerations in mind I pass on to consider the submission
which is foreshadowed in the statement of claim that because, as is the fact,
Lord Poulett had on August 2 notice of the subcontract he thereafter had a duty
as trustee for the plaintiff pending completion of the estate contract
to use reasonable care to preserve lot 1, including Hinton House and the
disputed items, in a reasonable state of preservation. In my judgment that
submission is not well founded. The plaintiff was not, and I emphasise this, an
assignee of Effold’s rights and interest under the estate contract and was no
party to that contract. Lord Poulett could not have required the plaintiff to
pay a single penny for Hinton House and could not in the events which happened
have compelled the plaintiff to accept a conveyance of Hinton House. It follows
in my judgment that as between Lord Poulett and the plaintiff there did not
come
land the existence of which enables one to describe the vendor as a
constructive trustee or a trustee sub modo for the purchaser. Putting it
more concisely, because there was not between Lord Poulett and the plaintiff
the relationship of vendor and purchaser the incidents of such a relationship
were absent. Lord Poulett did not hold Hinton House as a trustee for the
plaintiff and was under no fiduciary or contractual obligation to him to take
reasonable care of Hinton House. The plaintiff’s remedy in respect of any
failure by Lord Poulett in his duty to Effold was against Effold in respect of
the consequences of Effold’s failure to enforce that duty. I am fortified in my
conclusion by the speeches in the House of Lords in Shaw v Foster
(1872) LR 5 HL 321.
I would add
this in relation to the proposition that a vendor of land who has notice of a
subsale becomes a trustee for the subpurchaser. The proposition, if it was a
correct statement of the law, would have to apply as well in favour of all the
subpurchasers as in favour of any of them. In the instant case the position is
simplified by the fact that it so happens that the several subcontracts of the
several lots were, as I understand it, entered into by reference not only to
the parcels described in the estate contract but on the terms and conditions
set out in the estate contract with a substitution only of a different price.
But suppose an agreement for sale of a large estate followed by division into
and subsale of say 100 parcels, the contract for sale of land containing
varying conditions, can it be the law that the original vendor, on learning
that fact, comes under a fiduciary duty to each of the 100 purchasers? I would require authority before I would so
hold. If such were the law I would ask the rhetorical question: does the
fiduciary duty to the subpurchasers continue after the head purchaser ought to
have taken possession but failed to do so, that is to say after a point of time
at which the head vendor ceases to owe the duty of care to the head
purchaser? Or suppose that immediately
prior to completion of the head contract the subcontract be rescinded, to whom
prior to such rescission was the duty owed?
I do not doubt that other difficult questions would arise; and the law
relating to the rights and obligations which arise as incident to a contract
for the sale of land is complicated enough without introducing into it the
conception that a vendor becomes a trustee for the subpurchasers of each part
of it.
It was
submitted, relying on the authority of the judgment of Lord Hardwicke in Dyer
v Pultenay (1740) Barn Ch 160 and Fenwick v Bulman (1869)
LR 9 Eq 165, that a subpurchaser willing to perform the head contract is
entitled as against the vendor to specific performance of that contract. And,
so the argument runs, the subpurchaser being entitled to specific performance
of the head contract is in the same position vis-a-vis the head vendor as is
the purchaser, and is as regards the land which he has agreed to purchase
entitled, pending completion of that contract, to the same rights as the
purchaser himself. This submission is not in my judgment well founded. A
purchaser of land is against the vendor entitled on completion to the execution
by all necessary parties of a conveyance vesting the legal estate in him. Thus
if there is an outstanding legal estate not vested in the vendor he is bound to
get it in. So as between purchaser and subpurchaser the subpurchaser is
entitled to require the purchaser, if he can, to get in the legal estate from
the head vendor. If the purchaser will not or cannot do so, Dyer v Pultenay
is authority for the proposition that the subpurchaser by joining his vendor
and the head vendor as defendants to an action brought for the purpose may,
standing in the shoes of his vendor, obtain an order for the conveyance of the
land. But the head vendor cannot be required by the purchaser to convey any
part of the land comprised in the head contract except upon performance by the
purchaser of all the terms of the head contract, and the subpurchaser standing
in the shoes of the purchaser can be in no better position. Thus the specific
performance which the subpurchaser obtains is specific performance of the head
contract and in my judgment, far from establishing the right of a subpurchaser
to specific performance of the subcontract against the head vendor, establishes
the absence of such a right. Nor is it because the head vendor is a trustee for
him that he can obtain the land which he has contracted to purchase but because
of his right to insist that his vendor gets in the legal estate and, if he will
not do so, to stand in his shoes to seek performance of the head contract. In
the instant case the plaintiff never offered to perform the estate contract.
Nor can I equate the right of the several purchasers to insist that their
vendor gets in the legal estate to the parcels which they have agreed to
purchase to that of beneficiaries under the head contract. As I see it, it was
in the instant case open to Effold consistently with its duty to the plaintiff
to agree with Lord Poulett, before the removal of the disputed items, that the estate
contract should be rescinded on the terms that Lord Poulett would sell Hinton
House to Effold at a new negotiated price, completion to take place on
completion of the subcontract. Provided Effold was in a position on completion
of the subcontract to convey or procure the conveyance to the plaintiff of what
he had purchased, Effold would have complied with the terms of the subcontract.
If it were not in a position to convey the disputed items to the plaintiff his
remedy in respect of such of them as had been severed from the freehold could
only be against Effold for damages or specific performance with compensation.
But the plaintiff was content to complete his contract without pursuing his
claim against his vendor.
I turn to
consider another aspect of the plaintiff’s case. In the amended statement of
claim it is alleged that the conveyance of October 31 operated to pass the
disputed articles to Effold and that the conveyance of February 19 operated to
pass them to the plaintiff. In view of the fact that the disputed articles had
been severed from Hinton House and removed prior to the execution of either of
the conveyances and what was expressed to be conveyed by each of those
conveyances was property of which the vendor was seized ‘for an estate in fee simple,’
that contention is in my judgment clearly wrong. The conveyances could not by
their terms convey a severed chattel.
Since in my
judgment Lord Poulett never became a trustee for the plaintiff, and since he
never entered into any contract with the plaintiff and did not assign the
disputed articles to the plaintiff, the claims of the plaintiff against Lord
Poulett, whether founded in breach of trust, conversion or detinue, must in my
judgment fail. And since the plaintiff has never acquired a right to possession
of the disputed articles the claims against Messrs Sotheby & Co and T R G
Lawrence & Son, each of whom is sued for conversion or detinue, must
likewise so fail.
If the views I
have expressed are well founded, that is the end of this appeal. But because a
great part of the argument in this court has been directed to the question
whether any, and if so which, of the disputed items had in law become part of
the freehold of Hinton House at the date of the estate contract, it is right
that I should also express my conclusions on this question. I deal first with
the disputed pictures. They are described very fully as well in the judgment of
Plowman VC as in that of Scarman LJ. So far as is relevant one may. I think,
summarise those descriptions in this way. They are pictures of a conventional
character such as may be found adorning the walls of the rooms in countless
great and medium-sized houses, town halls, museums and other public and private
halls throughout this country, and indeed throughout the civilised world. With
the exception of ‘The Return’ which depicted the Poulett family and which I
should perhaps
they were portraits of individuals. They were painted in oils on canvas mounted
on stretchers and framed in a conventional manner in heavy gilt frames. They
are large pictures, ‘The Return’ being larger than most family portraits. It
cannot be doubted that when first painted and framed each of them was a
chattel. Nor can it be doubted that when first set up on the wall which it
adorned, whether hanging from a picture rail or from hooks or nails or screws
set in the wall, or fastened by mirror plates such as you see in miniature in
the corridors of this building, each picture, like the vast majority of framed
pictures, remained a chattel and did not become part of Hinton House. Framed
pictures are hung on or fixed to the walls for their better enjoyment as
pictures, however much they may beautify the rooms in which they are found.
Pictures, like other furnishings and chattels in private houses, must almost
invariably serve two purposes: to be enjoyed as pictures in the only way in
which a picture can be enjoyed in a private house, that is to say by being
fixed to or hung on a wall, and to embellish and beautify great rooms which
without decorations would by most people be regarded as uninhabitable. Nor
does, nor could, counsel on behalf of the plaintiff submit otherwise. What is
said is that when the rooms in which the disputed pictures were at the date of
the estate contract were panelled prior to the 1914-18 war, the pictures ceased
to be chattels and became part and parcel of the freehold of Hinton House. In
view of the Vice-Chancellor’s finding this submission is not in my judgment
well founded. The submission is, as I understand it, based on two propositions.
As part of that submission, it is said first that when the walls were panelled
the pictures were fixed in such a way that they could not be readily removed
and second that they were so fixed as part of a plan under which they were to
become a part of the walls of the room and not for their better enjoyment as
pictures. The second part of the submission must I think be dependent upon the
first: because if the pictures had been screwed by mirror plates to the face of
the panelling or hung over the panelling, the submission that they thereupon
became part of the structure of the house would have been no more maintainable
than if the walls had never been panelled. Framed oil paintings in my judgment
are, and remain, chattels whether they be hung upon, or over, or screwed by
mirror plates to, the panelling of a room, or hung from, over, or screwed by
mirror plates to, the walls of an unpanelled room. Had the frames of the pictures
been removed so that the panelling itself formed the frames to which the
pictures were attached I would find the submissions on behalf of the plaintiff
less difficult to accept; and had this been so it would no doubt have been
necessary to consider whether pictures and panelling, forming as it were a
single piece, had or had not become part of the freehold prior to the date of
the estate contract. In this connection I would observe in parenthesis that the
terms of the contract can throw no light on the question what was then part and
parcel of Hinton House. And because the pictures remained in their frames I do
not find it necessary to express a view whether, as Plowman VC thought to be
the case, the panelling itself remained a chattel available to be removed and
replaced elsewhere. The submissions on behalf of the plaintiff must I think
rest on the fact that the pictures were not hung or fixed over the panelling
but at the relevant time were found set in recesses in the panelling in such a
manner that their removal was very difficult and so that the panelling appeared
to frame the pictures and their frames, except of course that the embellishment
of the frames of the pictures protruded over the edges of the panelling. The
rooms were conveniently, and I think accurately, described in the auction
particulars as ‘with oak panelling around picture frames.’ It is clear that however the pictures were
kept in place the panelling was constructed so as to fit round them. A great
deal of evidence was given in the court below and I think most of it must have
been read to this court during the course of a long hearing, as to how the
pictures were or could have been affixed. The judge described much of the
evidence as pure speculation, as indeed it was. The Vice-Chancellor in
resolving this part of the case said this:
One firm fact
is that the pictures had mirror plates attached to the back of their frames,
the number and position of those plates depending on the size of the picture.
There are then three theories as to how these mirror plates were attached to
the walls. One is that pictures and panelling were assembled on the floor, the
mirror plates being screwed first to the back of the picture frames and then to
the back of the panelling, the pictures and panelling together then being
affixed to studs in the lath-and-plaster walls. A second is that the pictures,
with their mirror plates already affixed to the frames, were screwed to the
walls and the panelling erected around them. The third is that the mirror plates
on the frames were secured to the front of the panelling. I reject the third
theory, principally for the reason that, except in a single instance, no screw
holes were to be found in front of the panelling, but as between the first two,
there is little to choose and the evidence is inconclusive.
If a finding
were essential to the determination of this case. I should conclude that on the
balance of probability the second theory is the correct one.
The result,
however, whichever theory may be right, was that the pictures, when hung, hung
in recesses in the panelling, made to fit the pictures, and in one of the cases
the lath and plaster had been slightly cut away to accommodate the stretchers
of the picture frames.
Clearly one end
of each mirror plate must have been screwed to the back of the picture which it
served before the picture found itself with its back to the wall; and having
given the evidence the best consideration I can I am quite unable to conclude
that the Vice-Chancellor erred when he found that on the balance of probability
the other end of the mirror plate was affixed by screws in the wall. Had the
other end been screwed to the back of the panelling the removal of the pictures
could not as I see it have been accomplished in the way it was but would have
required the removal of the panelling, which was not done, so as to get at the
heads of the screws, or a degree of force which I would have thought would have
broken up the picture frames.
The
Vice-Chancellor, however, found the following facts regarding the removal:
Although the
precise method of affixation of the pictures is obscure, the evidence about
their removal is less so. Mr Browning, of the firm of Rogers, who removed the
pictures which Sothebys were taking, said that he and his men (of whom there
were about half a dozen) got them down in, he supposed, half to three-quarters
of an hour–a time substantially confirmed by Lady Poulett–using only a 10- or
12-in screwdriver and pincers, except in the case of one screw the head of
which had to be sawn off. He denied that it was necessary to use force, and was
obviously aggrieved by the suggestion that a skilled picture-remover with a
very high class firm like Rogers would contemplate such a thing.
Mr Ash who,
with two men, removed ‘The Return’ and the portraits of the 7th Earl and his
wife, said that it took them between two and three hours to get ‘The Return’
down because it was hard to find out how it was fixed. This is understandable
because the panelling was over the screws; eventually he found that it was
fixed by mirror plates to the wall, not to the panelling. The other two
pictures, he thought, took about three-quarters of an hour each to remove and
resulted in some minor damage. Lady Poulett, who watched those two pictures
being removed said that they came down very easily and took about 15 minutes
each. I prefer her evidence about this to that of Mr Ash.
How Mr Browning
and Mr Ash got at the screws in the wall to unscrew them must remain something
of a mystery. The evidence was, I must assume, inconsistent with the simple
explanation that the heads of the latter screws were sufficiently small to
enable the eyes of the mirror plates to be hooked over them after they had been
screwed in. The heads of the screws which were handed up to the Bench were
larger than the eyes of the plates.
Accepting, as
I do, the Vice-Chancellor’s finding that the pictures were not fixed to the
panelling but to the wall and fixed indeed in a conventional way, I find it
impossible to conclude that on the setting up of the panelling around them they
lost their character as chattels and became part of Hinton House. They were
still enjoyed as theretofore as pictures albeit in a different setting and
removed with little more difficulty than any large framed portrait fastened to
a wall by mirror plates. As the Vice-Chancellor indicated towards the
conclusion of his judgment, just as the pictures had previously been displayed
elsewhere so they could be taken down with no damage to the painting and no
more than minor damage to the frames and displayed elsewhere again. And, as he
indicated with great force, a chattel cannot become part of the freehold
because it is displayed to the best advantage. I agree with the Vice-Chancellor
that this latter consideration is not to be forgotten in relation to the statue
of the Greek athlete. That statue was no doubt sited at a key point in the most
advantageous position in the grounds; and just as a picture is placed in a room
not merely for the purpose of its enjoyment as a picture but also to embellish
and beautify the room in which it is placed and may be positioned for that
purpose, so no doubt was the Greek athlete statue sited. This particular statue
if fixed at all to the plinth on which it stood was removed with minimal damage
and in my judgment it did not lose its character as a chattel to be enjoyed as
such by reason of being so fixed. Similar considerations in my judgment apply
to the sundial, which was removed and was removed without any damage at all. I
entirely agree with what Scarman LJ has said regarding the Chinese prints.
I wish to make
it absolutely clear that at no stage of the litigation did either party claim
relief on the basis of the stipulation in the head contract that ‘fixtures and
fittings usually denominated tenant’s fixtures or fittings should be taken by
the purchaser . . . at a valuation.’
Neither party at any relevant time has asked for an inventory or
valuation. Almost all the disputed items were sold at an aggregate price
exceeding £1,950 and for all I know the plaintiff would not have been willing
to produce that not inconsiderable addition to his purchase price of £17,928.
And for all I know Lord Poulett would have been willing, had he been asked to
do so, to accept the view that the disputed items fell within the terms of the
stipulation and so relieved himself of the trouble and expense of removing them
and putting them up for sale and paying the auctioneer’s commission.
I would also
emphasise that although for the purpose of determining whether Lord Poulett had
a duty to the plaintiff in relation to the disputed items to take reasonable
care of them, I have had to consider whether the plaintiff had a right to some
form of specific performance, this is
not an action for specific performance, but, as against Lord Poulett, for
breach of fiduciary duty or detinue, trespass or conversion.
I would
dismiss the appeal.
The appeal
was dismissed with costs.
