¹ The presumption of advancement will almost certainly be rebutted (infra, p. 97). It is uncertain whether the beneficial interest will be joint or in common, but in Aveling v. Knipe (1815) 19 Ves. 441, Grant M.R. said that where payments were equal the interest would be joint. Such an interest is severable (Re Draper's Conveyance [1967]Google Scholar 3 All E.R. 853).

² Bull v. Bull [1955]Google Scholar 1 Q.B. 234.

³ If there is a sale a receipt must be signed by two trustees, Trustee Act 1925, s. 14 (2), and there must be consultation with the persons beneficially interested if practicable (L.P.A. 1925, s. 26 (3)). Completion of a sale that disregards these formalities may be restrained by injunction (Waller v. Waller [1967]Google Scholar 1 All E.R. 305).

⁴ [1965] P. 478; [1965] 3 All E.R. 363.

⁵ [1965] 1 W.L.R. 25; [1965] 1 All E.R. 44.

⁶ Pettit v. Pettit [1968]Google Scholar 1 W.L.R. 443; [1968] 1 All E.R. 1053. Button v. Button [1968]Google Scholar 1 W.L.R. 457; [1968] 1 All E.R. 1064.

⁷ [1965] 1 W.L.R. 25; [1965] 1 All E.R. 44.

⁸ S. 17 says: “In any question between husband and wife as to the title or possession of property, either party … may apply … in a summary way to any judge of the high court … or of the county court … and the judge may make such order with respect to the property in dispute … as he thinks fit …”

⁹ pp. 29F, 451.

¹⁰ pp. 29A, 46C.

¹¹ [1965] A.C. 1175, especially Lord Upjohn at p. 1235 ([1965] 2 All E.R. 472 at 487D). Compare the utterances of Upjohn, L.J. in Landsman v. Landsman, Bar Library 1961Google Scholar, No. 371.

¹² [1965] P. 478; [1965] 3 All E.R. 363.

¹³ At pp. 486D, 364H.

¹⁴ The husband also had a house which was let and yielded rent of £7 to £8 a week. This sum was used partly to pay for the materials.

¹⁵ The wife at one time altered her will in his favour to make him a bequest of £3,000. Whether this was instead of the sum to be realised by the sale of the ground floor flat is uncertain.

¹⁶ It is not at all clear whether in Jansen the breakdown of the marriage is a condition precedent to the husband's rights, as it certainly was in Appleton. The whole arrangement between the parties suggests that in Jansen the husband could have claimed something even if the marriage had not broken down, so that, for example, the Revenue could have claimed estate duty on his death. But see infra, p. 103, n. 96, conclusion 3.

¹⁷ A partnership was described by Sir John Romilly M.R. in Kay v. Johnstone (1856) 21 B. 536: “… the joint property shall be employed for some purpose which shall produce a return in the shape of profits or so as to add to its value.” This is clearly applicable to the plan in Jansen, but less clearly applicable to Appleton. There are substantial differences between co-ownership and partnership (Lindley on Partnership, p. 57 et seq.) notably that a partner has a lien on the property for all expenses properly incurred.

¹⁸ 489F, 366H.

¹⁹ 498G, 370G.

²⁰ [1968] 1 W.L.R. 443; [1968] 1 All E.R. 1053.

²¹ Supra, n. 11.

²² Infra, n. 84.

²³ In Jansen, Lord Denning had described the circumstances of Appleton as “special” (487G), see further infra, n. 80.

²⁴ 448H, 1057I. The argument is easily met by attention to the rule that the increase in value (like a contribution to the purchase price) must be substantial.

²⁵ 446H, 1056E. Willmer L.J. asserts that the court is dealing with title to the property in the matrimonial home, but the summons simply asserted a claim to the proceeds of sale.

²⁶ Was this the “real” amount by which the house had increased in value, or was it £1,000 less a sum for rent-free accommodation since separation?

²⁷ The case may well be an extension of Appleton in view of the work done. Supra, n. 23.

²⁸ [1968] 1 W.L.R. 457; [1968] 1 All E.R. 1064.

²⁹ At 460B, 1065I.

³⁰ 462D, 1067F.

³¹ Although some judges have assumed that the claim is for a beneficial interest in the house, supra, n. 25.

³² This has advantages, infra, n. 67.

³³ If the property is a joint venture, a good case can be made out for a 50:50 split, as the husband claimed in Jansen. This will, however, be subject to deductions for expenses and in Jansen the net sum may have been arrived at on this basis.

³⁴ 11 May 1967, unreported, Bar Library 1967, No. 140a.

³⁵ The husband had taken expert advice.

³⁶ Leigh v. Dickson (1884) 15 Q.B.D. 60. A contribution may be claimed if the expense is incurred in the discharge of an obligation falling on all the co-tenants (ibid.). The case proves Lindley L.J.'s point that “Tenancy in common is a tenure of an inconvenient nature and it is unfit for persons who cannot agree among themselves.”

³⁷ Seton, p. 1789; Pascoe v. Swan (1859) 27 B. 508; Re Jones [1893] 2 Ch. 461. This claim for expenses arises in joint tenancy on the death of the expending joint tenant, the claim being brought by the dead joint tenant's personal representatives. Lake v. Gibson (1729) 1 Eq.Cas.Abr. 290, pl. 3; 2 White and Tudor, p. 877, n. (a). Jekyll M.R. does not explain whether the claim is for expenditure alone or calculated on the basis laid down in Re Jones for partition.

³⁸ The law should encourage thrift! The risk that the claim might be extravagant seems slight since the sum is assessed by the court.

³⁹ Short might be like Jansen in this respect, supra, n. 16, but infra, n. 96.

⁴⁰ Although such accommodation after separation is relevant: infra, n. 84.

⁴¹ Swan v. Swan (1820) 8 Price 518.

⁴² This lien is for expenses and is not limited to any increase in value. By s. 28, L.P.A. 1925, trustees for sale have all the powers of the trustees and tenant for life under the S.L.A. 1925. Powers to improve property are given by ss. 83 to 89, S.L.A. 1925.

⁴³ Infra, p. 101, n. 88.

⁴⁴ There will be a trust for sale (n. 93) and a post nuptial settlement (n. 91) by virtue of the concurrent interests.

⁴⁵ In Jansen the husband continued works after the wife had left him.

^45a This limitation causes problems—what happens if the marriage breaks down but the parties are (temporarily) reconciled? Is the lien registrable, unregistrable and then registrable again? Infra, n. 93.

⁴⁶ Falcke v. Scottish Imperial Insurance Co. (1886) 34 Ch.D. 234.

⁴⁷ The following cases assert the general principle while usually fitting the facts into one of the exceptions: Neesom v. Clarkson (1845) 4 Hare 97; Hamer v. Tilsley (1859) John. 486; Wiles v. Cooper (1846) 9 Beav. 294; and Campion v. Cotton (1810) 17 Ves. 263.

⁴⁸ Supra, p. 82.

⁴⁹ Hamer v. Tilsley (1859) John. 486. The husband was tenant pur autre vie, with remainder to the wife; the tenancy pur autre vie expired after the husband had spent money on necessary repairs to the property and later still the husband divorced the wife on the ground of adultery. The husband was denied a charge on what was now the wife's property. This case is distinguishable from Appleton since at the time of the repairs the property belonged to the husband and not to the wife.

⁵⁰ The best known example is Dillwyn v. Llewellyn (1862) 4 De G.F. & J. 517. For discussion see Goff and Jones, The Law of Restitution, p. 98; Snell, pp. 625–634.

^50a An example is Hamer v. Tilsley (supra, n. 49). Others are Pilling v. Armitage (1805) 12 Ves. 79; Saunders v. Denman (1878) 7 Ch.D. 825; and Strutt v. Tippett (1889) 62 L.T. 475.

⁵¹ Shine v. Cough (1811) 1 Ball and B. 436. It follows that the owner must realise that the land is his (Armstrong v. Sheppard and Short Ltd. [1959]Google Scholar 2 Q.B. 384). In Neesom v. Clarkson a husband was allowed a charge over his wife's property in respect of works carried out at the husband's expense without any proof of the wife's knowledge of her rights. 4 Hare 97.

⁵² Robinson v. Ridley (1821) 6 Madd. 2; Att.-Gen. v. Baliol College (1847) 9 Mod. 407; Mulhallen v. Marum (1843) 3 Dr. & War. 317 at 337.

⁵³ (1886) 34 Ch.D. 234 at 249. There follows what may be taken as an example as opposed to a restriction of the principle—where the circumstances lead plainly to the conclusion that the owner of the saved property knew that the other was laying out his money in the expectation of being repaid.

⁵⁴ Re Leslie (1882) 23 Ch.D. 552 at 560; Gill v. Downing (1874) L.R. 17 Eq. 316 (mortgagees of policy paying premium allowed lien).

⁵⁵ (1857) 3 Jur.(N.S.) 1237.

⁵⁶ Arguendo in Re Willis [1902]Google Scholar 1 Ch. 15 at 17, and citing Chitty J. in Re de Teisser's S.E. [1893] 1 Ch. 153 at 161. The tenant for life has also been allowed a lien where he completed work begun by the settlor or where he discharged an obligation due from the settlor, Harris v. Poyner (1852) 1 Drew. 174; Caldecott v. Brown (1842) 2 Hare 144.

⁵⁷ Supra, n. 36.

⁵⁸ Supra, n. 17, note also Divinity v. Dixon (1925)Google Scholar 241 P. 905, partner bought land with partnership funds for self with consent of other partner; held—no resulting trust for partnership because a resulting trust arises if at all at the moment at which the conveyance is made and this was excluded by consent.

⁵⁹ Lord Denning cites the cases to emphasise the substantial nature of the contribution.

⁶⁰ A contribution, to raise the presumption of a resulting trust, may be direct or indirect but must be shown to be a contribution to the purchase price of the house. Thus in Tulley v. Tulley (1965) 109Google Scholar S.J. 956; Bar Library, No. 266, a wife failed to establish a claim to the home because the evidence showed only that “she bought extras that the housekeeping did not run to.” She alleged that every Friday evening she and her husband had put all they earned into a savings box and that the monthly building society payments were met out of that sum. If she had been able to prove this, she would “undoubtedly have had a good case. She would be entitled to a share in the house which might well amount to a half share … and would be a post-nuptial settlement.” In Wood v. Wood, 26 Oct., 1967Google Scholar, Bar Library, No. 281, a wife's claim failed where she had contributed to the success of her husband's business. The court declined to extend cases in which there has been an actual contribution—to a sort of notional contribution which it has been argued should be taken as a sort of equivalent. The case gave the Court of Appeal full scope for display of judicial humour. Willmer L.J. said that he could see no distinction between, answering a phone and preparing the husband's dinner. Davies L.J. said that the wife might, on the same argument as was presented in the case, have an interest in a suit of clothes which the husband bought out of his bank account. “One has heard of the wife wearing the trousers, but which part of the suit she would be entitled to I do not know.”

⁶¹ If the house is in joint names, the method of distribution, in the absence of precise contributions, seems to be equality as a general guide (Rimmer v. Rimmer [1953] 1Google Scholar Q.B. 63). If, however, a wife has made a substantial capital contribution, that is repaid to her and equality applied to the residue—at least where the husband's payments for the rest of the cost have been to a building society. Hine v. Hine [1962] 1Google Scholar W.L.R. 1122; [1962] 3 All E.R. 345; Wilson v. Wilson [1963] 1Google Scholar W.L.R. 601; [1963] 2 All E.R. 447.

If the wife makes a less substantial contribution the proceeds may be divided according to the proportion of her contribution (Re Rogers Question [1948] 1Google Scholar All E.R. 238); but the court is now more likely to divide the proceeds equally if the husband pays the balance by mortgage, Ulrich v. Ulrich and Fenton [1968] 1Google Scholar All E.R. 67 at 70E.

⁶² It is difficult to find English authority for this specific consequence of the general principle. See, however, Grant M.R. in Aveling v. Knipe (1815) 19 Ves. 441 at 445–446. American authority is clear—the subsequent improver acquires a lien and no rights under a resulting trust, Scott on Trusts, § 454,7.

⁶³ Grant M.R. in Aveling v. Knipe (Supra) at 446; Romer L.J. in Cobb v. Cobb [1955] 1Google Scholar W.L.R. 731 at 736–737. This is of importance in view of the dicta of the Court of Appeal in Bedson v. Bedson [1965] 2Google Scholar Q.B. 666 that the declaration of trusts in a conveyance defines the rights of the parties. Such words cannot exclude later variation, or the rights of account appropriate to partition or sale of property held in co-ownership. Such declarations of trust are only apt to be found in cases of express co-ownership. Quaere whether the variation falls within s. 53 (1) (b) or (c) of the L.P.A. 1925, or takes effect as a constructive trust; it cannot take effect as a resulting trust.

⁶⁴ As in Bannister v. Bannister [1948] 2Google Scholar All E.R. 133. On the difference between a resulting trust and a constructive trust, see Scott on Trusts, § 404.2.

⁶⁵ This is much less clearly stated in the American authorities but it is still ascertainable. The point is the intention of the parties at the time of the conveyance with regard to the land conveyed.

⁶⁶ If the basis of the trust is the joint venture then the resulting trust analogy may hold; it is, however, possible to plan a venture after the purchase.

⁶⁷ Supra, n. 63.

⁶⁸ e.g., Cheshire and Fifoot, Law of Contract, 6th ed., p. 95.

⁶⁹ Tuck (1943) 21 Can. Bar Rev. 123.

⁷⁰ If X's property is mortgaged to Y and Z pays off Y's mortgage Z acquires a lien over X's property for the sums spent: Chetwynd v. Allen [1899] 1 Ch. 353. The same rule applies where Z is X's husband: Outram v. Hyde (1876) 24 W.R. 268; Pitt v. Pitt (1823) Turn. & Russ. 180; and Gooch v. Gooch (1851) 15 Jur. 1166 (where an argument based on the presumption of advancement was very summarily dismissed). Today such payment might be construed as a contribution to the purchase price and so give rise to a trust (Supra, n. 63).

⁷¹ e.g., Jansen v. Jansen, Supra, n. 19, and Short, v. Short, Supra, n. 34.

⁷² Willmer, L.J. in Pettit v. PettitGoogle Scholar, 448D, 1057F, and Russell L.J. at 454H, 1062C.

⁷³ Thus if the quid pro quo were out of all proportion to the benefit of rent-free accommodation would there be a claim? It seems preferable to treat the matter as one simply of account.

⁷⁴ Russell, L.J. in Pettit v. PettitGoogle Scholar, 454G, 1062C, and Danckwerts L.J., ibid. p. 1063G.

⁷⁵ Supra, n. 70.

⁷⁶ [1948] 2 All E.R. 486.

⁷⁷ Silver v. Silver [1958] 1Google Scholar W.L.R. 259 at 263. The learned Master of the Rolls went on to apply the presumption in the case before him.

⁷⁸ 110 S.J. 51, Bar Library, No. 4.

⁷⁹ 110 S.J. 707, Bar Library, No. 202A. Thus in the three recent cases—Fish (1965 No. 257), Fennell and Loades-Carter—the house was in the name of the wife but the husband was held entitled to a share in the proceeds of sale. Quaere what would happen if the husband paid all the money.

⁸⁰ 448E.

⁸¹ Supra, n. 56.

⁸² 461E, 1067A. The test is not easy to reconcile with that adopted in Pettit v. Pettit, see 31 M.L.R. 562.

⁸³ 448D.

⁸⁴ Where a lien arises through mistake, the rents received by the person under the mistake are brought into the final account (Neesom v. Clarkson (1845) 4 Hare 97). In Silver v. Silver [1958] 1 W.L.R. 259 the presumption of advancement was applied so that the house was held to belong to the wife alone; however, the payments made by the husband after the marriage had broken down were conceded to be charged upon her interest. If a house is owned jointly, it has been held that the mortgage burden becomes joint on the breakdown of marriage whatever may have been the arrangement previously. Hence in Gifford v. Parkinson (1968) 112Google Scholar S.J. 133 Lord Denning M.R. said that after separation the mortgage burden became joint but that the party remaining in possession should account for that benefit. To the same effect Pampoulides v. Pampoulides (1962) 106Google Scholar S.J. 855.

⁸⁵ Jansen v. Jansen [1965] P. 478.Google Scholar

⁸⁶ Jansen v. Jansen, ubi supra.

⁸⁷ Button v. Button [1968] 1Google Scholar W.L.R. 457.

⁸⁸ [1965] P. 498A; [1965] 3 All E.R. 370C.

⁸⁹ In Appleton the husband paid off a debt on his car with money representing part of the proceeds of sale, and made no claim in respect of the improvements to the first house.

⁹⁰ Equitable liens may be lost in many ways—e.g., by taking security, Halsbury, Liens, pp. 171–173.

^90a If there is a trust for sale, the beneficiary's interest is in the proceeds of sale not the property itself, but meanwhile the court will protect possession. See Lawton and Bissett-Johnson (1968) 118 N.L.J. 220 and 244 and Bull v. Bull [1955] 1Google Scholar Q.B. 234.

⁹¹ Matrimonial Causes Act 1965, s. 17.

⁹² Cook v. Cook [1962] P. 235Google Scholar at 241.

⁹³ Bull v. Bull [1955] 1Google Scholar Q.B. 234, accepted by Lord Evershed M.R. in Allen v. Allen, Bar Library 1962Google Scholar, No. 52.

⁹⁴ Rawlings v. Rowlings [1964] P. 398.Google Scholar Although it is often said that this case is authority for the wide proposition in the text, it is worth nothing that in no reported case has a husband succeeded in getting an order for sale against his wife. This is of importance since it is usually much easier for a husband to get a mortgage for a new house or to buy out his co-tenant than it is for a wife.

⁹⁵ Darke v. Williamson (1858) 25 B. 622—trustees of nonconformist chapel acquired lien over chapel in respect of money spent on the chapel—application to sell chapel refused!

⁹⁶ See n. 16, Supra., but see n. 45a.

⁹⁷ See n. 79, Supra.