Appellant’s grandfather conveying land to appellant and respondent — Ambiguity over terms of conveyance — Appellant and respondent litigating against appellant’s grandfather — Litigation settled by Tomlin order — Appellant and respondent disputing ownership of land — Whether land passing to appellant under conveyance — Whether land passing to appellant under Tomlin order — Appeal dismissed
In 1953, the appellant’s grandfather purchased a plot of land upon which he built a house. In 1962, he gave a parcel of the land to his son, the respondent, and, in 1976, he gave another parcel of land to his grandson, the appellant. For identification purposes in the proceedings the various parcels of land were identified alphabetically so that the respondent was said to own plots C, E and F, the appellant owned plot B, and the appellant’s grandfather owned plots A, D, G and H.
The conveyances and accompanying plans that conveyed these parcels were ambiguous so that it was not clear exactly what land or property had passed. In 1983, a dispute broke out between the parties as to the ownership of the land, in particular parcels A and H, and the appellant’s grandfather brought proceedings against the appellant and the respondent. In that matter, the appellant and respondent acted jointly in instructing solicitors and the matter was settled, in 1991, by a Tomlin order that provided that the appellant’s grandfather was to transfer all his assets to the respondent.
A further dispute arose between the appellant and the respondent concerning the ownership of plot A. The appellant maintained that: (i) plot A passed to him by way of the conveyance in 1976; or (ii) if it did not, he became entitled to plot A by way of the Tomlin order in 1991; or (iii) by virtue of estoppel by reprepresentation. At first instance, the judge found against the appellant, and the appellant appealed.
Held: The appeal was dismissed.
1. At first instance, the judge had correctly found that the verbal description in the conveyance was not clear, and that, taken in conjunction with the plans attached to the earlier conveyances of the land in 1953 and 1962, it gave rise to ambiguity. The court therefore considered the extrinsic evidence. This included: the position of fencing and hedging erected to comply with planning permission; correspondence between the parties; and distinctive outlines on the plans that echoed distinctive topographical features. Taking all the evidence into account and considering the conveyance as a whole, the only land conveyed to the appellant was plot B.
2. The appellant and the respondent were making common cause against the appellant’s grandfather in the 1982 proceedings and the Tomlin order was designed to settle those proceedings. The purpose of the Tomlin order was not to settle any dispute between the appellant and the respondent. The order granted no right to the appellant that he did not already have. Any rights over the land could have passed only under the 1976 conveyance and the Tomlin order did not affect that position.
3. The judge found, as a matter of fact, that the joint instruction to solicitors regarding the issues covered by the Tomlin order was not any form of representation on the respondent’s part, and that, in any event, the appellant had not relied upon it nor had it acted to his detriment. He found, on the evidence, that the appellant did not believe he had a claim to plot A and, accordingly, the court would not set aside that finding of fact.
Judith Jackson QC (instructed by Lawrence Hamblin, of Henley-on-Thames) appeared for the appellant; Christopher Nugee QC and Thomas Seymour (instructed by Lennon & Co, of Chesham) appeared for the respondent.
Vivienne Lane, barrister
