Title purportedly conveyed by trustees — Title held by different trustees — Whether beneficiaries received proceeds of sale — Whether remaining trustee obliged to convey — Approbation and reprobation — Purchasers entitled to judgment
In 1983 a Mr Frederick Marris, who was the tenant of Church View Farm, Spridlington, Lincolnshire, agreed, with other members of his family, to purchase the freehold reversion for £115,000. The purported vendors were the trustees of the will of WW Butt, deceased, and on January 21 1984 they entered into a contract for the grant of a 125-year lease of the farm to the purchasers for £110,000. On January 24 1984 a contract for sale was entered into by the trustees, as vendors, for the conveyance of the freehold for £5,000 to a company controlled by the purchasers’ solicitors; on the same date the company contracted to convey the freehold to the purchasers. On January 31 1984 there was a tripartite conveyance by which the purchasers paid the company and the company paid the trustees the sum of £5,000 for the freehold. On February 1 1984 the purchasers executed a document declaring that the lease had not been executed but that all legal and equitable interests had merged with the freehold.
Unknown to the parties at the time, the freehold to the farm was not vested with the trustees; accordingly, the purchasers never obtained the freehold. The farm had been purchased in 1958 by WW Butt, his wife and her sister, who have all since died; the freehold was with the trusteeship of the 1958 conveyance and this was held by a Mrs Luttenberger as personal representative of the last surviving trustee of the 1958 conveyance.
Held The purchasers were entitled to summary judgment and specific performance of the conveyance of the title.
The interest of the trust of the will of WW Butt in the proceeds of sale in the farm had been satisfied. Both the late Mrs Butt and her sister received sums out of the proceeds of the sale of the farm and Mrs Luttenberger must have thought that the two ladies had beneficial interests in the proceeds of sale. She was their agent and since July 1983 had acted for them under a general power of attorney. The two ladies and their successors in title cannot approbate and reprobate; they cannot take a share in the proceeds of sale and refuse to give the title to the purchasers. The purchasers were entitled to a conveyance of the legal estate.
Christopher Wilson-Smith QC and Olav Ernstzen (instructed by Prince & Co, of Malton) appeared for the appellant, Mrs Luttenberger; Hedley Marten (instructed by Epton & Co) appeared for Mr Popoff and Mr Fawcett, the first and second respondents; Michael Mark (instructed by Willey Hargrave) appeared for the third respondent, Mr Jebb; Michael Briggs (instructed by Mills & Reeve, of Norwich) appeared for the fourth to ninth respondents, the Marris family and Property Transfer (Lincoln) Ltd.
