Woolls v Powling and others
Plaintiff conveying land to defendants – Narrow strip of land dividing parties’ properties – Plaintiff claiming boundary running along eastern side of disputed land – Defendants claiming boundary running along western side – Whether court entitled to look behind terms of conveyance at surrounding circumstances – Whether appropriate to grant rectification – Judge finding for defendants – Appeal allowed
By a conveyance dated 28 January 1972 (the conveyance) the plaintiff sold to the first two defendants land known as Lofthouse, Upper Bourne, Brimscombe, Gloucestershire, on the west side of which was a house separated from an orchard by an area of land and a stone wall. A disused footpath ran more or less south to north on the eastern side of the stone wall. A dispute arose concerning the boundary of the conveyed land. The plaintiff claimed that it was on the eastern side of the footpath and the defendants claimed it was on the western side, immediately to the east of the stone wall. In February 1994 the defendants registered their title at HM Land Registry on the basis that the disputed strip of land had been conveyed to them. In May 1995 the plaintiff commenced proceedings seeking a declaration on the boundary of the land conveyed, a further declaration concerning the a right of way, damages for trespass and an injunction to prevent further acts of trespass. The defendants denied trespass, and asserted in their defence and counterclaim that the conveyance transferred the disputed strip of land to them. Alternatively, they sought rectification of the conveyance to that end.
The recorder found that the parcels clause in the conveyance was expressed in general terms and that the conveyance plan was said to be “for the purposes of identification only”, and he held, following Willson v Greene [1971] 1 WLR 635, that he was accordingly entitled to look outside the wording of the conveyance in order to determine the true boundaries of the property conveyed. On that basis, he admitted extrinsic evidence and concluded that the boundary of the land conveyed was as asserted by the defendants and they were entitled to a declaration that they were the freehold owners of the disputed land. Under their counterclaim he awarded them £1,300 damages. The plaintiff appealed contending that the judge had misdirected himself in holding that he was entitled to look outside the wording of the conveyance and admit extrinsic evidence. It was contended, relying on Wigginton & Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1462, that, although the plan was said to be “for the purposes of identification purposes only”, that did not exclude it from being considered in order to identify the boundary, since it did not come into conflict with anything that was explicit in the description of the parcels. It was submitted that, accordingly, the judge should not have concluded that the conveyance and the plan were “unclear and imprecise”, and, therefore, he had not been entitled to admit extrinsic evidence.
Plaintiff conveying land to defendants – Narrow strip of land dividing parties’ properties – Plaintiff claiming boundary running along eastern side of disputed land – Defendants claiming boundary running along western side – Whether court entitled to look behind terms of conveyance at surrounding circumstances – Whether appropriate to grant rectification – Judge finding for defendants – Appeal allowed By a conveyance dated 28 January 1972 (the conveyance) the plaintiff sold to the first two defendants land known as Lofthouse, Upper Bourne, Brimscombe, Gloucestershire, on the west side of which was a house separated from an orchard by an area of land and a stone wall. A disused footpath ran more or less south to north on the eastern side of the stone wall. A dispute arose concerning the boundary of the conveyed land. The plaintiff claimed that it was on the eastern side of the footpath and the defendants claimed it was on the western side, immediately to the east of the stone wall. In February 1994 the defendants registered their title at HM Land Registry on the basis that the disputed strip of land had been conveyed to them. In May 1995 the plaintiff commenced proceedings seeking a declaration on the boundary of the land conveyed, a further declaration concerning the a right of way, damages for trespass and an injunction to prevent further acts of trespass. The defendants denied trespass, and asserted in their defence and counterclaim that the conveyance transferred the disputed strip of land to them. Alternatively, they sought rectification of the conveyance to that end.
The recorder found that the parcels clause in the conveyance was expressed in general terms and that the conveyance plan was said to be “for the purposes of identification only”, and he held, following Willson v Greene [1971] 1 WLR 635, that he was accordingly entitled to look outside the wording of the conveyance in order to determine the true boundaries of the property conveyed. On that basis, he admitted extrinsic evidence and concluded that the boundary of the land conveyed was as asserted by the defendants and they were entitled to a declaration that they were the freehold owners of the disputed land. Under their counterclaim he awarded them £1,300 damages. The plaintiff appealed contending that the judge had misdirected himself in holding that he was entitled to look outside the wording of the conveyance and admit extrinsic evidence. It was contended, relying on Wigginton & Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1462, that, although the plan was said to be “for the purposes of identification purposes only”, that did not exclude it from being considered in order to identify the boundary, since it did not come into conflict with anything that was explicit in the description of the parcels. It was submitted that, accordingly, the judge should not have concluded that the conveyance and the plan were “unclear and imprecise”, and, therefore, he had not been entitled to admit extrinsic evidence.
Held: The appeal was allowed.
1. Although the plan was possibly inaccurate in relation to part of the land, that did not detract from its clear indication that the defendant’s boundary ran along the eastern side of the footpath. Accordingly, it could be concluded that the conveyance made clear, by the description in the parcels clause and by the plan, that the defendants’ boundary ran immediately to the east of the disputed strip. In Willson v Greene (supra) the plan to the conveyance was said to be “for the purposes of identification only” because the boundary had been physically pegged out in a manner intended to supersede the plan, and, accordingly, it was to be distinguished. Therefore, the judge had not been entitled to admit extrinsic evidence: Wiggington and Scarfe v Adams [1981] 1 All ER 843 followed.
2. The defendants had not convincingly proved that they were entitled to an order rectifying the conveyance in the manner sought. Any rectification to the conveyance would not be confined to the parties’ contract, but would be binding on the land, which called for the most convinving proof.
Charles Goodall (instructed by Luttons Dunsford, of Gloucester) appeared for the plaintiff; John Virgo (instructed by Winterbothams, of Stroud) appeared for the defendants.
Thomas Elliott, barrister
