School Sites Act 1841 — Whether site reverted to adjoining land of grantor at date of grant — Whether proceeds of sale held in trust for grantor’s successor
By a
conveyance dated April 18 1848 and made pursuant to the School Sites Act 1841,
Elizabeth Foley and Richard Onslow conveyed a parcel of land to the vicar and
church wardens of Newent Parish to be held by the grantees on trust for the
purposes of the Act. The premises were
used as a school until its closure in July 1984. In September 1987 the plaintiff trustees, the
successors in title to the original grantees, sold the premises for
£60,100. The defendant claimed that by
virtue of section 2 of the 1841 Act and section 1 of the Reverter of Sites Act
1987 the proceeds of sale was hers. The
premises should have reverted to her because: (1) they were freestanding and
not part of any manor or state; (2) even if they were part of such manor,
section 2 should be construed to give effect to reverter; or (3) section 2
should be so construed having regard to the 1987 Act.
defendant. As a matter of impression
section 2 of the 1841 Act requires a school site to revert and be rejoined to
the grantor’s neighbouring land. There
was insufficient evidence to show that on April 18 1848 the premises were
anything other than freestanding. It is
not right that section 1(2) of the 1987 Act alters the provisions of reverter
in section 2 of the 1841 Act so that a site which reverts pursuant to the
proviso to the section always reverts to the grantor of his successors in title
irrespective of whether the site formed part of a manor or other lands. Section 1(2) merely transfers the rights of
reverter from the site to the proceeds of sale.
The following
cases are referred to in this report.
Cawston’s
Conveyance, Re [1940] Ch 27
Dennis v Malcolm [1934] Ch 244
This was an
application by the plaintiffs, Rev Canon Iain William Marchant, Fred Harry
Passant and Elaine Joy Frampton, by an originating summons to determine
questions arising out of the School Sites Act 1841 and the Reverter of Sites
Act 1987 in relation to a claim by the defendant, Susan Margaret Onslow.
Nigel Gerald
(instructed by Treasures & Rivers Wyatt, of Gloucester) appeared for the
plaintiffs; Timothy Jennings (instructed by Stoneham Langton & Passmore, of
Croydon) represented the defendant.
Giving
judgment, MR DAVID NEUBERGER QC said: This case raises a point of some
difficulty as to the proper construction and effect of the School Sites Act
1841 (‘the 1841 Act’).
On April 18
1848, Elizabeth Foley and Richard Onslow conveyed to the vicar and church
wardens of the Parish of Newent a ‘close piece or parcel of arable land or
garden ground containing by admeasurement 1 rood and 7 perches (being the same
more or less)
pursuant to the 1841 Act. The land
thereby conveyed (‘the premises’) was to be held by the grantees ‘for the
purposes of the [1841] Act and upon trust to permit the said premises and all
buildings thereon affected to be . . . used as and for a school . . . And for
the residence of the Schoolmaster and Schoolmistress of the said School and for
no other purpose . . .’. The premises
devolved from the original grantees presumably through various subsequent
owners to the plaintiffs. The premises
were continuously used as a school until the end of July 1984, when the school
was closed down, the council having built a new school nearby.
On September 3
1987, the plaintiffs sold the premises for conversion to residential use for
£60,100. That sum has been deposited in
an interest-bearing account in a bank, and I am informed that the sum in that
account is now in the region of £80,000.
The issue between the parties is whether this money is, by virtue of the
provisions of section 2 of the 1841 Act (‘section 2’) and section 1 of the
Reverter of Sites Act 1987 (‘the 1987 Act’), the property of the defendant. The issue arises in this way.
Section 2
provides:
Any person,
being seised in fee simple, fee tail, or for life, of and in any manor or lands
of freehold, copyhold, or customary tenure, and having the beneficial interest
therein, . . . may grant, convey, or enfranchise by way of gift, sale, or
exchange, in fee simple or for a term of years, any quantity not exceeding one
acre of such land, as a site for a school for the education of poor persons, or
for the residence of the schoolmaster or schoolmistress, or otherwise for the
purposes of the education of such poor persons in religious and useful
knowledge; provided that no such grant made by any person seised only for life
of and in any such manor or lands shall be valid, unless the person next
entitled to the same in remainder, in fee simple or fee tail, (if legally
competent) shall be a party to and join in such grant: Provided also, that
where any portion of waste or commonable land shall be gratuitously conveyed by
any lord or lady of a manor for any such purposes as aforesaid, the rights and
interests of all persons in the said land shall be barred and divested by such
conveyance; Provided also, that upon the said land so granted as aforesaid, or
any part thereof, ceasing to be used for the purposes in this Act mentioned,
the same shall thereupon immediately revert to and become a portion of the said
estate held in fee simple or otherwise, or of any manor, or land as aforesaid,
as fully to all intents and purposes as if this Act had not been passed, anything
hereincontained to the contrary notwithstanding.
The long title
of the 1987 Act is ‘An Act to amend the law with respect to the Reverter of
Sites that have ceased to be used for particular purposes; and for connected
purposes’. Section 1 is headed ‘Right of
Reverter replaced by Trust for Sale’.
The provisions of subsections 1(1) and (2) thereof are as follows:
1.–(1) Where any relevant
enactment provides for land to revert to the ownership of any person at any
time, being a time when the land ceases . . . to be used for particular
purposes, that enactment shall have effect . . . as if it provided (instead of
for the reverter) for the land to be vested after that time, on the trust
arising under this section, in the persons in whom it was vested immediately
before that time.
(2) Subject to the following provisions of this
Act, the trust arising under this section in relation to any land is a trust to
sell the land and to stand possessed of the net proceeds of sale . . . upon
trust for the persons who but for this Act would from time to time be entitled
to the ownership of the land by virtue of its reverter.
The issue
between the parties may conveniently be taken from the originating summons as
being:
Whether upon
the true construction of section 2 and in the events which have happened, the
Plaintiffs hold the net proceeds of sale of the [premises] . . . on trust for
(a) the successors in title to the grantors of
the said conveyance [as the defendant contends] or
(b) the successors in title to the grantors’ land
of which the said site once formed part [as the plaintiff contends].
It is common
ground that if the answer to this question is in sense (a), then the moneys are
held on trust for the defendant, and it is right to record that evidence has
been put before the court which seems to show that the defendant is indeed the
successor in title of the grantors, Elizabeth Foley and Richard Onslow. On the other hand, if the answer is in sense
(b), then, pursuant to certain provisions of the 1987 Act to which I have not
referred, the plaintiffs, having comprehensively advertised for any claimants
to the proceeds of sale of the premises, and no one having come forward other
than the defendant, the plaintiffs are entitled to approach the charity
commissioners for the approval of a charitable scheme in relation to the moneys.
It is
contended on behalf of the defendant that the premises should revert to her
essentially on three different grounds.
The first is that, as a matter of fact, the premises were in 1848
freestanding and not part of any manor or estate or any other land. The second ground is that, even if the
premises were in 1848 part of any such manor, estate or other land, the proper
construction of section 2 none the less leads to the conclusion that the
premises should revert to the grantors’ successors in title. Third, it is said that, even if that result
does not accord with the construction of section 2 as originally enacted, the
effect of that section has been changed by the provisions of the 1987 Act.
I propose,
first, to set out the relevant facts relied on by the parties and the
inferences which I have been invited to draw from them. Then I propose to consider the proper
construction and effect of section 2. I
will then turn to the proper conclusion as to the effect of section 2 on the
facts as I find them. Finally, I will
turn to the effect of the 1987 Act.
In the
conveyance, the premises are described as being bounded in part by ‘a garden
belonging to the said Elizabeth Foley’.
The Newent Parish Tithe Map 1841 and surveyor’s report to the tithe commissioners
apparently show that Elizabeth Foley was in 1841 the largest owner in the
parish possessing at least 735 acres including three fairly large farms and
dozens of smaller holdings as well as a number of very small plots, as well as
a further 700 acres of woodlands described as ‘in hand’. In the parish records of 1848 she was
described as ‘the Lady of the Manor’.
Richard Onslow is shown in the 1841 records as owning 16 acres in the
parish. The tithe map has a plot
(numbered 1009), which seems to approximate to the premises, and is recorded as
containing 1 rood and 12 perches, and is also recorded as being in the
occupation of a Hannah Lewis and a Philip Owen.
Immediately adjoining this site was another site, numbered 1008,
containing 9 perches, and described as a cottage in the occupation of John
Guest, and the other side of parcel 1008 was a further site of 15 perches,
described as 1007, a cottage in the occupation of Lydia Need. All three sites are recorded as owned by
Elizabeth Foley. In the conveyance of
April 18 1848, the land is described as ‘late in the several occupations of
John Child and James Child or their undertenants and now in the possession of
the . . . Vicar and Church Wardens of Newent’.
On the basis
of this evidence, it is suggested on behalf of the plaintiffs that it would be
right to conclude either that the premises formed part of the landholding or
estate of Elizabeth Foley, possibly in her capacity as lady of the manor, or
that it formed part of a landholding, being site 1009 of 1 rood and 12 perches,
or that it formed part of a landholding including site 1008 (and possibly 1007)
and that accordingly the reverter provisions of section 2 lead to the
conclusion that the reverter is not to the successor in title of the grantors, the
defendant, but to the person or persons to whom the remainder of the
landholding (be that all or some of the property owned by Elizabeth Foley in
Newent in 1848) has devolved. It is
suggested that the fact that Richard Onslow was a party to the conveyance of
April 18 1848 may well be explicable on the basis that the property held by
Elizabeth Foley was enjoyed by her as tenant for life, and that Richard Onslow
who, it is common ground, was her nephew, the remainderman, and that therefore
he had to join in the conveyance as required by section 2.
On behalf of
the defendant, it is submitted that the evidence relied on by the plaintiffs is
insufficient, and may well be inadmissible, in that, when considering whether
the premises were part of an estate manor or another piece of land one must
confine oneself to the four corners of the conveyance. Even if that is not right, it is said that
the
premises were not, as it were, freestanding in 1848. There is no explanation why Richard Onslow
was a party to the conveyance, and the plaintiffs’ explanation for this is said
to be conjecture. In addition, it is
pointed out that there is no acknowledgement by the grantors in the conveyance
of the grantees’ right to production and delivery of copies of documents
(although the conveyance does contain covenants for type and for further
assurances), which one would have expected if the premises were part of other
land.
Section 2 is
not a satisfactory piece of drafting, and its infelicity is particularly
apparent in the final proviso, with which I am principally concerned in this
case. The stipulation that on cesser of
school use the site shall ‘immediately revert to and become a portion of the
said estate held in fee simple or otherwise or of any manor or land as
aforesaid’ is particularly obscure, not least because despite the ‘said’ there
is no previous reference to an ‘estate’.
It seems to me that the strictures in the law commission report Property
Law Rights of Reverter (Law Commission’s Report No 111) are well
founded. At para 29, one finds the
following:
What
Parliament actually had in mind is a matter of pure speculation but the
phraseology . . . suggests that it was expected that sites provided under the
Act . . . would always constitute small parts of landowners’ existing estates;
and, moreover, that it was not anticipated that those estates would be broken
up. If those expectations had been
fulfilled it would be a matter of substantial indifference whether the site
reverted to the ownership of the grantor (or his successors) or was
rejoined to the grantor’s neighbouring land; and the fact that the Act .
. . expressed [itself] in the latter manner would not give rise to
problems. Unfortunately the conditions
necessary for avoiding problems have not been satisfied.
Considering
the matter free of authority, it seems to me that section 2 does indeed
envisage that the site to be provided would be a small part of a substantial
estate, and that if and when the site conveyed pursuant to the 1841 Act ceased
to be used for school purposes, the site should revert to being part of the
estate. In other words, subject to what
I have to say about the precise formulation, I would have thought that the site,
rather than reverting ‘to the ownership of the grantor (or his successors)’
would be ‘rejoined to the grantor’s neighbouring land’.
In the first
place, that is how section 2 strikes me as a matter of impression. With such an ill-drafted provision, one is a
little hesitant of entering into a more detailed analysis, but I find it
particularly difficult to give any meaning to the words ‘or of any manor or
land as aforesaid’ in the second proviso to section 2 unless the reverter
provisions have this meaning. Indeed, it
is hard to see what the point of the reference at the very beginning of the
section to ‘any manor or lands of freehold, copyhold, or customary tenure’ may
be, unless it is to emphasise that when the site reverts pursuant to the second
proviso, it reverts to being part of that manor or other lands.
Section 2 may
well not have envisaged the possibility of a grantor conveying what I have
called a free-standing site pursuant to the provisions of that Act. In those circumstances, still considering the
matter free of authority, it seems to me that one would have to conclude that
Parliament must have intended that the effect of the second proviso to the
section was not that the site would simply fail to revert but that, there being
no other land which it could, as it were, rejoin, it should revert to the
original grantor or his successors in title.
Indeed, I consider that one can read the second proviso to section 2 as
having that express effect if one construes the reference therein to ‘the said
estate’ rather loosely as meaning the estate of the grantor. It does not appear to me, however, that such
a result in relation to the reverter of the free-standing site vitiates the
conclusion I have reached in relation to a site which is part of other land at
the date of grant.
However, I
think that it is also necessary to consider in what circumstances a site would
be treated for the purposes of section 2 as part of ‘any manor or lands of
freehold, copyhold, or customary tenure’.
In this connection, the mere fact that the grantor of the site happens
to own other land in the vicinity, or even other land which adjoins the site
does not appear to me to be in any way conclusive that the site, was, on the
date of its conveyance pursuant to section 2, part of other land. Equally, the fact that the grantor has no
other land which actually adjoins the site would not be conclusive that the
site was not part of other land. In each
case, it would be a question of fact as to whether or not the site was part of
other land. I am conscious that in
describing the site as being ‘part of other land’ I am departing from the
express language of section 2 itself, but it seems to me to be a permissible
way of describing in vernacular terms the sort of concept which the section has
in mind particularly where it refers to a ‘quantity . . . of such land’. An obvious case where the site would be
treated as part of other land might be where the site was included in a large
self-contained parcel of agricultural land in one ownership, farmed as a single
farm by the owner. If, subsequent to
granting such a site, the owner sold to a third party, and the site then ceased
to be used as a school, it would seem at least sensible that it should revert to
the third party as to the original grantor.
On the other hand, where a site is one of two houses in their own
grounds with a common boundary it would not, in the absence of other evidence,
be right to describe it as a ‘quantity . . . of such land’ on the basis of
‘such land’ being the two houses in their grounds.
It is
suggested that one of the problems with such a construction of section 2 is
that, in the event of the estate of which the unit formed part being sold off
in lots, one would arrive at the site being owned beneficially by a large number
of people in very small shares. While it
would be wrong to reject such an argument wholly, I think that there are two
answers to it. The first is that
contained in the paragraph which I have cited from the law commission report,
namely that it was not a situation envisaged in 1841. The second is that, if the sort of practical
approach I have suggested is applied in full, such a problem will not occur
very frequently. If 1 acre of a 200-acre
estate were the subject of a grant under section 2, and thereafter the estate
owner conveyed, say, three 5-acre plots for the purpose of building and selling
off a number of houses, it seems to me that, if the site were to revert, a
practical application of section 2 would result in the site reverting in full to
the owner of the balance of the 184 acres on the basis that these are in
reality the lands that the estate referred to in the proviso.
It is
suggested that the decision and reasoning of the Court of Appeal in Re
Cawston’s Conveyance [1940] Ch 27 is inconsistent with the conclusion that
I have reached. I do not accept
that. First, it was a case clearly
concerned solely with what I have called a ‘self standing’ site: there was no
question of the site being part of any manor or other lands at the date of grant. The only question, therefore, arising in
relation to section 2 was that to which I have already referred, namely whether
in those circumstances the reverter provisions contained in the second proviso
to section 2 applied at all.
Accordingly, any observations in the judgment of Sir Wilfred Greene MR
(with whom the other members of the Court of Appeal agreed) on the instant
point are strictly obiter.
Second, I have come to the conclusion that, in any event, this is not a
case where there is anything said, even obiter, in the Court of Appeal
which is inconsistent with the conclusion which I reach in the absence of
authority. It is true that there are one
or two sentences in the judgment of the Master of the Rolls which, if taken on
their own, might be said to indicate a view different from that which I have
reached, but, when one reads his judgment as a whole, I find nothing in it
which calls into question my conclusion.
In particular, I consider that the last paragraph beginning on p38 is,
if anything, supportive of my conclusion.
Further, as is pointed out in para 34 of the law commission’s report,
Clauson LJ, who was party to the decision in Cawston, made observations
when sitting at first instance in Dennis v Malcolm [1934] Ch 244
at p251, which seem to indicate that, at any rate when he was hearing that
case, he took the same view of the effect of the reverter provisions in section
2 as I do.
Having reached
my conclusion as to the proper construction and effect of the second proviso to
section 2, I turn to apply them to the facts of this case. There has been some argument about whether
the onus of proof is on the defendant to establish that the premises were
free-standing or whether it is on the plaintiffs to establish that
it was part of some other lands. I am
not at all sure that this is a case which should be decided on the basis of the
onus of proof, but, if it is, it seems to me that the defendant is entitled to
say that there is nothing in the conveyance which indicates that the premises
were part of other lands owned by the grantors, and that that is enough to
shift the onus of proof, if it was initially on the defendant, to the
plaintiffs.
Whatever the
right analysis, I have reached the conclusion that, even bearing in mind the
various indications on which the plaintiffs rely, there is insufficient
evidence to satisfy me that the premises were, as at April 18 1848, anything
other than freestanding. On the basis of
my construction of the effect of the proviso to section 2, it is not sufficient
that the grantor owned other land in the parish, and even owned land which
adjoined the site which is conveyed. The
force of the plaintiffs’ argument on the point is further weakened when one
bears in mind that there were two grantors, and there is no evidence of any
land in the parish being owned by both of them.
Of course, it is quite possible that the premises, and some or all of
the other land in the parish recorded as being owned by Elizabeth Foley, were
held by her as tenant for life with Richard Onslow as remainderman. However, while that is one possible
explanation, it is purely a matter of speculation. The fact, if it is one, that Elizabeth Foley
was lady of the manor does not appear to be of great significance: there is no
evidence either way as to whether the premises were part of the manor.
The fact that
site 1009 is shown in the 1841 records as being somewhat bigger than it is
recorded as being in the conveyance may be significant, but as counsel for the
plaintiffs said, tithe records are not always particularly accurate, and I note
that in the conveyance the area is described as being ‘the same more or less’.
The fact that
the conveyance contains no covenant for production is a mild factor supporting
the defendant’s contention that the land was freestanding; it may well be that
the grantors took the view that, as the conveyance was a voluntary and
charitable one, and they did not wish to have to produce their documents of
title, they were not prepared to give such a covenant. That, too, is a matter of speculation.
Accordingly,
there being nothing in the conveyance to show that the land was part of other
lands or of a manor as contemplated by section 2, and there being insufficient
evidence in the circumstances relied on by the plaintiffs to satisfy me that
the premises were part of other lands or of the manor, I find in favour of the
defendant and answer the question raised in the originating summons in sense
(a).
I ought to
refer briefly to the argument raised on behalf of the defendant to the effect
that the provisions of the 1987 Act, and in particular the closing words of
section 1(2) thereof, altered the effect of section 2 so that a site which
reverts pursuant to the proviso to that section always reverts to the grantor
or his successors in title irrespective of whether the site formed part of a
manor or of other lands. It is suggested
that, in this connection, the provisions of section 1(2) of the 1987 Act are
ambiguous, and it is therefore open to me to have regard to what was said by
the Lord Chancellor, Lord Hailsham of St Marylebone, in the House of Lords when
the 1987 Act was a Bill before Parliament.
I reject that
argument. First, I cannot see how
section 1, in particular the closing words of subsection (2) thereof, of the
1987 Act can be said to be ambiguous. It
seems to me clear that all that it is purporting to do is to transfer the
rights of reverter from the site to the proceeds of sale of the site. It virtually states in terms that it is not
intending to alter the identity of the person to whom the site reverts, because
it refers to the trust created by the 1987 Act as being ‘for the persons who but
for this Act would from time to time be entitled to the ownership of the
land by virtue of its reverter’ (emphasis supplied). It seems to me that those words refer one
straight back to the 1841 Act. If
confirmation of this view were needed, I think that it is to be found in the
long title of the 1987 Act and indeed the title of section 1 thereof. Second, I do not think that what was said by
the Lord Chancellor when introducing the Bill is anything like clear enough to
assist the defendant’s argument on this point, even were I satisfied that there
was some sort of ambiguity in section 1 of the 1987 Act which entitled me to
look at what the Lord Chancellor had to say.
In these
circumstances, I answer the first question in the originating summons in sense
(a). The second question, which seeks a
declaration that, if the answer to the first question is indeed in sense (a),
whether the moneys are held on trust for the defendant, I answer in the
affirmative.
