Contract Law - Errington v Errington and Woods [1952] 1 KB 290, [1952] 1 All ER 149, CA
A father, wishing to provide a home for his son, who had recently married, purchased a dwelling-house through a building society, paying a lump sum and leaving the balance on mortgage to be paid by weekly instalments.
He retained the conveyance in his own name and paid the rates, but promised that if the son and daughter-in-law continued in occupation and duly paid the instalments until the last one was paid, he would then transfer the property to them.
He was on affectionate terms with the daughter-in-law and handed her the building society's book, directing her not to part with it. When the father died he, by his will, left all his property, including the house in question, to his widow.
Up to that time the son and the son's wife had together occupied the dwelling-house and paid the instalments, but the son then left his wife and went to live with his widowed mother.
The wife continued to occupy the dwelling-house and to pay the instalments. [1952] 1 K.B. 290
The mother brought an action for possession against the daughter-in-law, which was dismissed by the county court judge on the ground that the son and daughter-in-law were tenants at will and the claim was barred by the Limitation Act, 1939.
On appeal:-
Held, that the daughter-in-law and her husband were licensees, with no power to assign or sublet, but entitled under a personal contract to occupy the house for so long as they paid the instalments to the building society, and the appeal failed. Quoere: Whether the defendant and her husband would be entitled to a conveyance of the property when the instalments had been fully paid.
Per Somervell L.J.: The right to a conveyance of the property if and when the instalments had been paid might raise a question under sections 53 and 55 of the Law of Property Act, 1925, since the contract was oral. The issue wasn't directly before the court, but it would seem to him that the doctrine of part performance would clearly apply. Per Denning L.J.: The couple were licensees having a permissive occupation short of a tenancy, but with a contractual right, or at any rate an equitable right, to remain so long as they paid the instalments, which would grow into a good equitable title to the house itself as soon as the mortgage was paid. Lynes v. Snaith [1899] 1 Q.B. 486, and Thompson v. Earthy [1951] 2 K.B. 596, questioned.
Per Hodson L.J.: If and when the instalments were fully paid the question would arise whether the mother was bound to convey the property to her son and daughter-in-law.
APPEAL from Judge Richardson, sitting at Newcastle-upon-Tyne county court.
In 1936 the husband of Mrs. Mary Elizabeth Errington, the plaintiff, purchased a dwelling-house, No. 27 Milvain Avenue, Newcastle, as a home for his son, who had recently married the first defendant, Mrs. Mary Duncan Errington. The purchase was financed through a building society, the father paying a lump sum of £250, leaving the balance of £500 on mortgage. The father, who was on terms of affection with his daughter-in-law, handed her the building society's book, told her not to part with it, and promised that the property would be hers and her husband's when they had paid the last instalment on the mortgage. He had, however, retained the conveyance in his own name and paid the rates. The father died in July, 1945, and by his will left all his property, including the house in question, to his widow. Up to that time the first defendant and her husband had occupied 27 Milvain Avenue and had duly, in accordance with the arrangement [1952] 1 K.B. 290 Page 292 with the father, paid the instalments on the mortgage. After the death of his father the son left his wife and went to live with his mother, who now claimed possession of the house from her daughter-in-law, who had remained in the house with her sister, the second defendant, and continued to pay the instalments. The county court judge dismissed the action. He held that the first defendant and her husband were tenants at will an therefore the claim was barred by the Limitation Act, 1939. The plaintiff appealed.
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