Burgess v Rawnsley

How they met

In 1966 Mr. Honick, a widower of about 63, met Mrs. Rawnsley, a widow of about 60, at a scripture rally in Trafalgar Square. He introduced himself, and although she thought he “looked like a tramp,” they got on well enough to exchange addresses — his at 36 Queen’s Road, Waltham Cross, Hertfordshire; hers at 74 Downton Avenue, Streatham Hill. The next day he called on her with a rose wrapped in newspaper. Their friendship grew: she felt sorry for him, smartened him up with better clothes, had him to meals, and they visited each other’s homes and wrote to one another in terms of endearment, which counsel described as love letters.

The purchase

Mr. Honick had been the tenant of 36 Queen’s Road for some years; his wife had died and his married daughter had left, so he lived there alone. When the owner offered to sell, he discussed it with Mrs. Rawnsley, who said she would go half shares — she would have the upper flat and he the lower. On December 2, 1966, the contract of sale was signed, in Mr. Honick’s name alone, at a price of £850; Mrs. Rawnsley paid the deposit. Mr. Honick then instructed his solicitor to have the property conveyed into their joint names.

The conveyance was executed on January 23, 1967, to both of them as “the purchasers,” and contained an express declaration of trust to hold the property on trust for sale and to hold the net proceeds and rents and profits until sale upon trust for themselves as joint tenants. Both the legal estate and the beneficial interests were therefore held jointly. Mr. Honick paid the price by cheque on his own bank account, but the judge accepted Mrs. Rawnsley’s evidence that she reimbursed him £425 in four instalments for a half share.

The parties’ differing intentions

The county court judge found that Mr. Honick’s reason for taking the house in joint names was that he firmly believed he was going to marry Mrs. Rawnsley and that it would be the matrimonial home. The judge equally accepted her evidence that he had never mentioned marriage to her and that she never contemplated marriage; she joined in the purchase in order to have a place of her own, namely the upstairs flat, while he occupied the lower flat. Mr. Juniper, the solicitor who acted, did not recollect Mr. Honick saying anything to him about marriage until July 1968.

Both expectations were defeated. Mrs. Rawnsley would not marry him, and he would not let her have the upstairs flat: as she put it in evidence, “he was a man of his own laws. He made it clear that I wasn’t going into that house, and that possession was 9/10ths of the law.” He remained in the house alone and she in hers, but they continued to visit one another and stayed on friendly terms.

The £750 episode, July 1968

Disappointed in his hopes of marriage, Mr. Honick wanted to buy out Mrs. Rawnsley’s share and believed he had come to an agreement with her to do so for £750. He told his solicitor, “Mrs. Rawnsley is not going to marry me, but she has agreed to take £750 for her interest,” and handed over the conveyance so that the necessary document could be drawn up. Mr. Juniper wrote to Mrs. Rawnsley on July 1, 1968, at the Waltham Cross address, asking her to confirm that she was agreeable to convey her interest for £750. A second letter in substantially the same terms, dated July 2 and addressed to her Streatham Hill address, was prepared but marked “not sent,” because Mrs. Rawnsley called at the solicitor’s office in person and said she was not willing to sell. Mr. Juniper noted: “Mrs. Rawnsley says she is not willing to sell.”

According to the evidence, she was not satisfied with £750 and wanted £1,000; Mr. Honick told his daughter that Mrs. Rawnsley was going “to ask a thousand which he was not going to pay.” A few days later he told the solicitor to leave things as they were and asked for, and received, the conveyance back.

The evidence about any such agreement was described by Browne L.J. as “most unsatisfactory.” There was no evidence to support the judge’s statement that it was Mrs. Rawnsley who asked for £750; her own evidence was that Mr. Honick offered her £750 for the flat and that she had never agreed to sell. Mr. Juniper’s contemporaneous note was ambiguous, capable of meaning either that she had never agreed or that she had agreed and gone back on it. The Court of Appeal nevertheless declined to disturb the judge’s finding of fact that she had agreed and then resiled from the agreement.

Death and the dispute

Matters continued unchanged for three more years, Mr. Honick living in the house alone and paying all the rates and outgoings, until his death on October 26, 1971. His daughter, Mrs. Burgess, the plaintiff, took out letters of administration to his estate and claimed a half share in the house as administratrix. Mrs. Rawnsley claimed the whole beneficial interest for herself. The house had been sold for some £5,000, so a considerable sum was in dispute. Since 1925 a legal joint tenancy cannot be severed, so on Mr. Honick’s death the legal estate survived to Mrs. Rawnsley alone; the question was who was entitled to the beneficial interest.

Procedural history and outcome

The county court judge held that Mrs. Rawnsley held the legal estate on trust for herself and Mr. Honick’s estate in equal shares, on two grounds: first, that the conveyance was taken in joint names in contemplation by the deceased that the house would be the matrimonial home, giving rise to a resulting trust when that purpose failed; and secondly, that the joint tenancy had in any event been severed by the agreement that Mrs. Rawnsley would sell her share for £750.

The Court of Appeal (heard 10, 11, 14 and 15 April 1975) dismissed the appeal. Lord Denning M.R. upheld both grounds, holding that where each party had a different object and each object failed the position was the same as if a common object had failed, and that the agreement — or, failing that, the course of dealing — was sufficient to sever the beneficial joint tenancy. Browne L.J. and Sir John Pennycuick rejected the resulting trust ground, on the basis that this kind of resulting trust arises only where the parties share a common purpose which fails, and Mr. Honick had never communicated his purpose to Mrs. Rawnsley. Both upheld severance by mutual agreement under the second rule in Williams v. Hensman, holding that the agreement need not be specifically enforceable and that Mrs. Rawnsley’s subsequent repudiation made no difference.

Appeal dismissed with costs. Leave to appeal refused.