Right of pre-emption in conveyance–Right normally assignable–Clause expressed to benefit ‘the purchaser or his personal representatives’ but no reference to successors in title–Whether successors excluded on the ground ‘expressio unius est exclusio alterius’–Held that right of pre-emption passed to successor in title
This was a
summons for a declaration in which the plaintiffs, Hugh Sampson and his wife,
Hilary Rosalind Sampson, sought to establish that a right of pre-emption in a
conveyance from them to Lady Ingram of part of Bruns Farm in Buckinghamshire
was not assignable and had accordingly not passed to the defendants, David
Thomas Cunningham Caldow and his wife, Marion Rose Caldow. The plaintiffs also
asked for consequential relief in the form of the vacation of entries in the
register of land charges.
P Talbot
(instructed by Lee, Bolton & Lee, agents for Horwood & James, of
Aylesbury) appeared for the plaintiffs, and A Taussig (instructed by Paisner
& Co) represented the defendants.
Giving
judgment, OLIVER J said: This is a case in which the plaintiffs seek against
the defendants a declaration that a right of pre-emption in a certain
conveyance to which I will refer in a moment is personal to the purchaser under
that conveyance, Lady Ingram, and her personal representatives and is incapable
of assignment, and for consequential relief
1925 in respect of that right of pre-emption. The right of pre-emption with
which we are concerned is contained in a conveyance dated May 30 1969, made
between the plaintiffs in the present proceedings of the one part (they were
the vendors) and Lady Ingram (who is therein defined as the purchaser) of the
other part. It was a conveyance under which the plaintiffs conveyed to Lady
Ingram a property then forming part of what was known as Bruns Farm in
Buckinghamshire in the parishes of Ashton, Clinton and Windover. It was a tract
of some 308 acres of land and it adjoined some land retained by the plaintiffs
on which was erected the farmhouse.
There was an
exception and reservation in the conveyance to which I had better refer
briefly. There was excepted and reserved to the vendors the free passage and
running of water and soil to and from the vendors’ adjoining property through
certain sewers and pipes to a particular septic tank, and the words to which
some importance has been attached are the following words: ‘with power for the
vendors and their successors in title owner or owners of such adjoining property
or any part of parts thereof to enter for the purpose of cleansing and renewing
the said pipes sewers drains’ and so on.
Clause 3 of
the conveyance is the one on which the present question arises. It is, so far
as material, in the following terms: ‘If at any time hereafter during the lives
of the vendors and the survivor of them and two years after the death of such
survivor the vendors or the survivor of them should desire to sell the property
edged blue on the plan annexed hereto,’ and that, I would mention, is the
property on which is situate the farmhouse to which I have referred, ‘the
purchaser or his personal representatives being the estate owner in fee simple
of the whole or some part of the land hereby conveyed shall have the option of
purchasing the same in the manner and upon the terms following.’ Then there is a provision for the vendors or
survivor of them to make an offer in writing to the purchaser to sell the
property and that offer was to be open for acceptance for one month from the
date of its receipt. The purchaser was given the right before the expiration of
the month to accept the offer and on that being done a contract would come into
being on the terms which were thereinafter contained. The vendors were not to
be at liberty to sell the property until the expiration of the month or the
offer having been unconditionally declined by the purchaser in writing, and if
the offer was so declined or determined by lapse of time they were free to sell
elsewhere on such terms as they thought fit. Then there were certain
administrative provisions which perhaps I ought to read. ‘An offer under this
clause should be sufficiently made if sent by registered post or recorded
delivery service addressed to the purchaser at his last known address. Time is
to be of the essence of the contract.’
There were provisions for fixing the price. There was to be an
arbitration in the event of disagreement, and a deposit of £3,000 was to be
paid to the vendors or the survivor of them upon the acceptance in writing of
the offer. Then there was a provision that ‘The vendors or the survivor of them
shall not be required to execute a conveyance in favour of any person other
than the person exercising the option, and the person exercising the option
shall not be entitled to make any inquiry or requisition or take any objection
to title of the vendors or the survivor of them save in respect of matters
arising after the date hereof.’
In fact the
land comprised in that conveyance, or at least the major part of it, came to be
vested in the defendants in the present summons, Mr and Mrs Caldow. That came
about in this way, that on October 16 1972 Lady Ingram sold to them the
property which she had purchased under the conveyance, and in the conveyance to
them she conveyed the property together with the benefit ‘so far as the vendor
can convey the same’ of the rights granted to the vendor by clause 3 of a
conveyance made the 13th day of May 1969 between the said Hugh Sampson and
Hilary Rosalind Sampson of the one part and the vendor of the other part. So
there was on the face of it an express assignment of the rights conferred upon
Lady Ingram by clause 3 of the conveyance. It should perhaps be mentioned that
the conveyance to Lady Ingram, although it in fact recites an agreement for the
purchase by Lady Ingram of the property, was in fact in pursuance of an
agreement between the plaintiffs and Lady Ingram’s son, Robin Ingram, and that
contract provided that the conveyance to the purchaser should contain a
covenant in the ipsissima verba of the covenant which in fact went in in
clause 3 of the conveyance which was in fact executed. That no doubt accounts
for the reference to the purchaser and ‘his’ personal representatives, although
in fact the ultimate purchaser was Lady Ingram. After the purchase by the
defendants of the property from Lady Ingram they sought to register the right
of pre-emption conferred by clause 3 under the Land Charges Act and in fact
they did so. There was a certain amount of correspondence between the solicitors
acting for them and the solicitors acting for the plaintiffs in which it became
evident that the plaintiffs were alleging that the right conferred by clause 3
of the conveyance was a right that was personal to Lady Ingram and her personal
representatives. It was asserted, therefore, that the defendants did not have
the right and did not have any title to register an estate contract against the
plaintiffs. Disagreement having arisen on that point these proceedings were
ultimately commenced.
The point really
is a relatively short one of construction. The plaintiffs, through Mr Talbot,
accept that clause 3 of the conveyance created a contract the benefit of which
was vested in Lady Ingram and they accept, as indeed they have to in the light
of such cases as Re Button’s Lease [1964] Ch 263, that the right was prima
facie assignable. And they also accept, I think, that the burden of
demonstrating that the right is not assignable rests upon them, because the
benefit of a right of pre-emption such as this is always assignable unless
there is something in the context which indicates the contrary, something to
indicate that there is some restriction on assignability. The plaintiffs rely
for their construction of the conveyance upon a number of points. They point out
first of all that, in the conveyance itself, the plaintiffs on the one hand and
Lady Ingram on the other are referred to as ‘the vendors’ and ‘the purchaser’
respectively without any reference at all to successors in title. But Mr Talbot
accepts, as indeed he must, that the mere absence in the definition of a
reference to successors in title is not sufficient to displace the prima
facie rule, namely, that a right such as this is assignable. But here, he
says, it is quite evident, when you look at the conveyance itself, that the
draftsman had successors in title in mind at least in one part and that is the
reservation of the right of drainage, because he refers there explicitly to the
vendors and their successors in title. This is, says Mr Talbot, significant
when you come to clause 3 because you find the person there referred to as
having the benefit of the covenant is not ‘the purchaser or his personal
representatives or successors in title’ but simply ‘the purchaser or his
personal representatives.’ There is
nothing, he says, in this case to indicate that the omission there was
accidental, and he relies upon the maxim expressio unius est exclusio
alterius.
There is no
authority which expressly helps very much here. I have been referred by Mr
Talbot to a report of a case of Williams v Andrews [1972] Estates
Gazette Digest 158 where, in the case of a right of pre-emption in a lease the
purchaser (the original purchaser of the lease) was granted a right of
pre-emption, and the grant was a grant under which the purchaser covenanted
that if she or her personal representatives should desire to sell then the
appropriate
Ungoed-Thomas J found, as a matter of construction, that the only event giving
rise to the right of pre-emption there was an offer by or desire to sell by the
purchaser and her personal representatives. But, as Mr Taussig points out, not
very much can hinge upon that case, which was a case where what was sought to
be established was the passing of the burden of the covenant, whereas what we
are concerned with here is the question of the passing of the benefit. I do not
find that that case helps me very much as a matter of construction.
It seems to me
that really at the end of the day the indications in this conveyance that the
right was intended to be one that was purely personal to Lady Ingram are of a
fairly tenuous nature. Mr Talbot’s case, as it seems to me, relies really in
the ultimate analysis almost entirely upon the application of the maxim expressio
unius. Mr Taussig has referred me to two cases in which a caution was
expressed as regards that. In Colquhoun v Brooks (1887) 19 QBD
400 at 406 Wills J stated that the maxim was one the application of which had
to be watched rather carefully. ‘Perhaps,’ he said, ‘few so-called rules of
interpretation have been more frequently misapplied and stretched beyond their
due limits. Failure to make the expressio complete very often arises
from accident, very often from the fact that it never struck the draftsman that
the thing supposed to be excluded needed specific mention of any kind.’ In the very much later case of Lowe v Dorling
& Son [1906] 2 KB 722 the Court of Appeal approved this and Farwell LJ
in his judgment at p 785 said: ‘It is not enough that the express and the tacit
are merely incongruous; it must be clear that they cannot reasonably be
intended to co-exist.’ And he then
quoted the judgment of Wills J in Colquhoun v Brooks and approved
it.
Now Mr
Taussig, on behalf of the defendants, points out that really here one is
dealing with a position where, if nothing is said, if you have simply got a
right of pre-emption conferred upon Lady Ingram, that would prima facie
be an assignable right. If that stood alone, it might be argued that it was a
right which was confined to Lady Ingram personally. To obviate that difficulty
the draftsman put in the words ‘or his personal representatives’ in order to
make it perfectly clear that the right is not one which is simply existing for
the benefit of the lady herself. Mr Taussig points to some of the rather
curious results that might ensue if Mr Talbot’s construction is correct. I do
not think that these are really anything more than, in a sense, straws in the
wind, but it does, as it seems to me, become very difficult to construe this
conveyance as one conferring a purely personal right when one bears in mind,
first of all, section 78 of the Law of Property Act, under which the covenant
is, prima facie, with the purchaser and his successors in title and
assigns; secondly, that what is created is a prima facie assignable
right; thirdly, that it would have been extraordinarily easy for the draftsman,
if he wanted to make it a personal right, merely to say that in terms; and
fourthly, that the persons seeking now to say the right is restricted to one
that is personal to Lady Ingram are the grantors under the conveyance. I am
reminded by Mr Taussig of the maxim that the conveyance must be construed most
strongly against the grantor. In all the circumstances I cannot express myself
as being satisfied that Mr Talbot’s construction of this conveyance is correct,
and I must, I think, therefore dismiss this claim and, I think, dismiss it with
costs.
The
plaintiffs’ claim was dismissed with costs.
