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Transfer of Choses in Possession between Members of a Common Household
Published online by Cambridge University Press: 16 January 2009
Extract
The case of Hislop v. Hislop is a reminder of the special difficulties that may beset a person who attempts to transfer some chose in possession to another person resident in the same household. These difficulties occur where the chattel or collection of chattels in question, which due to size or quantity are not readily susceptible of actual manual delivery, have been used and enjoyed by both grantor and grantee together before the transfer of title and will continue so to be used thereafter. To a bystander the chattels appear to remain in the same situation after as before the transaction, yet ownership or possession or both may have passed with important consequences.
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- Copyright © Cambridge Law Journal and Contributors 1953
References
1 [1950] W.N. 124; not reported elsewhere.
2 e.g., the rather similar s. 10 of the Married Women's Property Act, 1882—see French v. Gething [1922]Google Scholar 1 K.B. 236; or the “reputed ownership” clause in s. 38 (c) of the Bankruptcy Act, 1914; or s. 172 of the Law of Property Act, 1925, re settlements in fraud of creditors.
3 Sale of Goods Act, 1893, ss. 17, 18.
4 Cochrane v. Moore (1890) 25 Q.B.D. 57.
5 See the remarks of Sellers J. on this point in Du Jardin v. Beadman Bros., Ltd. [1952]Google Scholar 2 All E.R. 160, at p. 163, adopting the views of Turner, J. W. C. in Russell on Crime, 10th ed., Vol. 2, at pp. 1087, 1089, 1102Google Scholar.
6 The Tubantia [1924] P. 78Google Scholar.
7 Holmes, The Common Law, Lect. VI; Pollock and Wright, Possession in the Common Law, Pt. I; Paton, Jurisprudence, 2nd ed., Chap. 22. This view seems preferable to the test of improbability of interference which appears to be over-emphasised in Salmond, Jurisprudence, 10th ed., 294–5, and in Keeton, Elementary Principles of Jurisprudence, 2nd ed., 182, 184.
8 Pollock and Wright, 24.
9 Littleton, Tenures, s. 701; per Maule J. in Jones v. Chapman (1847) 2 Ex. at 821, approved in Lows v. Telford (1876) 1 App.Cas. at 426.
10 Smith v. Smith (1733) 2 Str. 955; Gough v. Everard (1863) 2 H. & C. 1, per Martin B., at p. 9; Ramsay v. Margrett [1894] 2 Q.B. 18; French v. Gething [1922]Google Scholar 1 K.B. 236.
11 See definition of delivery in s. 62, Sale of Goods Act, 1893.
12 (1883) 31 W.R. 578.
13 At p. 580, col. 2.
14 (1890) 25 Q.B.D. 57.
15 (1892) 8 T.L.R. 295 (oral gift of furniture listed in inventory annexed to a deed poll, which was ready prepared but only executed later the same day, declaring that the gift had been made. One chair delivered in name of the whole at time of oral gift. Held to be valid gift; a mere inventory was not a bill of sale requiring registration). In sales a delivery of part may constitute delivery of the whole if so intended: per Lord Blackburn in Kemp v. Falck (1882) 7 App.Cas. 573, at p. 586.
16 Alderson v. Peel (1891) 7 T.L.R. 418; Re Stoneham [1919] 1 Ch. 149.
17 Winter v. Winter (1861) 4 L.T. 639.
18 Elmore v. Stone (1809) 1 Taunt. 458; Bartram v. Payne (1827) 3 C. & P. 175; Marvin v. Wallis (1856) 6 El. & Bl. 726; Castle v. Sworder (1861) 6 H. & N. 828. The section replaces s. 17 of the Statute of Frauds, 1677.
19 Sale of Goods Act, 1893, s. 39 (1) (a).
20 Or under the almost identical wording of s. 8, Factors Act, 1889. The cases are: Staffs. Motor Guarantee, Ltd. v. British Wagon Co., Ltd. [1934]Google Scholar 2 K.B. 305; Ahrens, Ltd. v. George Cohen, Sons & Co., Ltd. (1934)Google Scholar 50 T.L.R. 411; Union Transport Finance, Ltd. v. Ballardie [1937]Google Scholar 1 K.B. 510; Old's Discount Co. v. Krett & Krett [1940]Google Scholar 2 K.B. 117.
21 Ramsay v. Margrett; see note 10, supra.
22 French v. Gething [1922]Google Scholar 1 K.B. 236.
23 Sir P. Pollock in 6 L.Q.R. 446, at p. 449, where his concern is mainly with rights against third parties.
24 Standing v. Bowring (1886) 31 Ch.D. 282, at p. 290.
25 Cochrane v. Moore (1890) 25 Q.B.D. 57.
26 6 L.Q.R. 446. Th e maxim that where possession is in doubt it follows title cannot help the donee, since in such a case title can only pass by a delivery of possession: Hislop v. Hislop [1950]Google Scholar W.N. 124.
27 I am indebted to Mr. T. C. Thomas for this point and for other helpful suggestions.
28 [1921] 2 K.B. 807. Rowlatt J., it is submitted rightly, considered such a delivery to be actual rather than constructive.
29 Hilton v. Tucker (1888) 39 Ch.D. 669, where the goods were locked up on a third party's premises.
30 [1950] W.N. 124.
31 [1892] 1 Q.B. 582.
32 At p. 586.
33 The county court judge held that the property had passed to P. by the deed and there was a valid gift by him to Mrs. B. with euch delivery and change of possession of the furniture as was reasonably practicable in the circumstances.
34 (1861) 4 L.T. 639.
35 (1891) 7 T.L.R. 418.
36 (1752) 2 Ves.Sen. 431, at p. 438.
37 [1940] 1 K.B. 760.
38 (1819) 2 B. & Ald. 551.
39 (1865) 18 C.B.(n.s.) 515. For a county court decision to the opposite effect in similar circumstances cf. Gollop v. Brown (1952)Google Scholar 102 L.J. 360.
40 See Jones v. Lock (1865) L.R. 1 Ch.App. 25, where words of gift accompanied by delivery of a cheque by a father to his nine months old son were held not to constitute a gift nor a valid declaration of trust.
41 Re Breton's Estate (1881) 17 Ch.D. 416, applying Milroy v. Lord (1862) 4 De G.F. & J. 274, and not following Grant v. Grant (1865) 34 L.J.Ch. 641.
42 (1894) 11 T.L.R. 152.
43 Halsbury, , Laws of England, 2nd ed., Vol. 16, p. 662Google Scholar, para. 1056, and especially note (h). For a case where the use made of the chattels was inconsistent with a transfer of ownership, see Valier v. Wright and Bull (1917)Google Scholar 33 T.L.R. 366 (after oral gift of car to his wife, husband continued to use it constantly in his business of giving driving lessons).
44 [1950] W.N. 124.
45 For a case where the court was prepared to find a constructive delivery in circumstances where a manual delivery was difficult or impossible, see Rawlinson v. Mort (1905)Google Scholar 21 T.L.R. 774 (church organ). See also the county court case of Gollop v. Brown (1952)Google Scholar 102 L.J. 360 (oral gift of piano by parent to child, publicly announced, followed by piano lessons; piano remained in parent's house for 20 years; held to be a constructive delivery).
45 Bills of Sale Act, 1878; Bills of Sale Act (1878) Amendment Act, 1882, as amended by Bills of Sale Acts, 1890 and 1891. On the subject generally, see Waldock, Law of Mortgages, 2nd ed., Chap. V.
47 Bills of Sale Act, 1878, s. 4. The definition of a bill of sale is too lengthy for quotation here. It is also adopted by s. 3 of the 1882 Act, but excluding bills “given otherwise than by way of security for the payment of money.” “Personal chattels” are also denned in s. 4.
48 s. 3.
49 s. 10 (1).
50 s. 8.
51 s. 11.
52 Defined, s. 4.
53 French v. Gething [1922] 1 K.B. 236.Google Scholar
54 Bills of Sale Act, 1882, ss. 8, 10.
55 Heseltine v. Simmons [1892] 2 Q.B. 547.
56 1882 Act, s. 4. Waldock, 105.
57 s. 5. Waldock, 107.
58 s. 12.
59 s. 9.
60 Newlove v. Shrewsbury (1888) 21 Q.B.D. 41, at pp. 44–5, approving Ex p. Parsons (1886) 16 Q.B.D. 532.
61 Cookson v. Swire (1884) 9 App.Cas. 653, per Lord Blackburn, at p. 664; Brantom v. Griffits (1877) 2 C.P.D. 212, per Cockburn C.J., at p. 214.
62 Manchester, Sheffield & Lines. Ry. v. North Central Wagon Co. (1888) 13 App.Cas. 554, per Lord Herschell L.C., at p. 560; Charlesworth v. Mills [1892] A.C. 231, per Lord Halsbury L.C., at p. 235; Waldock, 75–81.
63 Per Fry L.J. in United Forty Pound Loan Club v. Bexton [1891] 1 Q.B. 28n.
64 North Central Wagon Co. v. M. S. & L. Ry. (1886) 35 Ch.D. 191.
65 Marsden v. Meadows (1881) 7 Q.B.D. 80, per Cotton L.J., at pp. 84–5; see also the oases cited in note 62, ante, and many other cases.
66 Bowen L.J. in North Central Wagon Co. v. M. S. & L. Ry. (1886) 35 Ch.D. 191, at p. 207.
67 Ramsay v. Margrett [1894] 2 Q.B. 18. As to receipts, see the comments of Bramwell L.J. in Marsden v. Meadows, supra, at p. 86, and of Bowen L.J. in N. C. Wagon Co. v. M. S. & L. Ry., supra, at pp. 212–3.
68 If the transaction were a voluntary one, whether fraudulent or not, it might be set aside under s. 42 of the Bankruptcy Act, 1914, in the event of the donor's bankruptcy, but not as against an execution creditor. See next note.
69 Within two years before the bankruptcy even if the grantor was solvent at the date of transfer; within ten years prior to the bankruptcy unless the grantee can prove that the property passed to him at the date of the grant and that the grantor could at that time have paid all his debts without resort to the property transferred.
70 Scrutton L.J. in French v. Gething [1922]Google Scholar 1 K.B. 236, at p. 245.
71 See the comments as to receipts referred to in note 67, ante.
72 [1950] W.N. 124; ante, p. 364.
73 Ramsay, v. Margrett, supra.
74 Where the possession is deemed to follow title but the goods remain in the common household they are not still in the “apparent possession” of the grantor: Antoniadi v. Smith [1901]Google Scholar 2 K.B. 589, at p. 594; Ramsay v. Margrett [1894] 2 Q.B. 18, at pp. 24, 28; French v. Gething [1922]Google Scholar 1 K.B. 236, at p. 246 (at p. 245 Scrutton L.J. was of opinion that if the goods are in the apparent possession of both parties then the Bills of Sale Acts are excluded). In Withers v. Berry (1895) 39 S.J. 559, Wright J. considered that if a seller intends possession to pass at time of sale, all talk of his apparent possession is irrelevant, since s. 3 caused the Act only to apply where the seller intends to retain possession whilst giving the buyer a power to seize.
75 B. S. A., 1878, s. 4; B. S. A., 1882, s. 3.
76 Re Rets, ex p. Clough [1904]Google Scholar 2 K.B. 769.
77 Re Magnus (1910)Google Scholar 80 L.J.K.B. 71, a case under the Bankruptcy Act, 1883.
78 French v. Gething; see note 10, ante. The same result is obtained where the deed is a release of the interest of one joint tenant of the chattels to another joint tenant residing with him: Withers v. Berry (1895) 39 S.J. 559.
79 Ex p. Hubbard (1886) 17 Q.B.D. 690, approving the decision of Cave, J. in Ex p. Close, 14 Q.B.D. 386, at p. 393.
80 Cf. note 74, ante.
81 [1950] W.N. 124.
82 Mews v. Mews (1852) 15 Beav. 529. Cf. s. 53 (1) (b) of the Law of Property Act, 1925, in regard to trusts of land.
83 See, generally, on the subject, Underhill, Law of Trusts, 10th ed., 421 et seq.
84 Ex p. Hubbard; see note 79, ante.
85 e.g., by the pledgor attorning bailee for the pledgee; per Wills J. in Meyerstein v. Barber (1866) L.R. 2 C.P. 38, at p. 52; Reeves v. Capper (1838) 5 Bing.N.C. 136.
86 Ex p. Parsons (1886) 16 Q.B.D. 532.
87 Newlove v. Shrewsbury (1888) 21 Q.B.D. 41.
88 Re Lavey (1918–9)Google Scholar 4 B. & C.R. 116; cf. Youngs v. Youngs [1940]Google Scholar 1 K.B. 760, and Ramsay v. Margrett [1894] 2 Q.B. 18.
89 e.g., Ramsay v. Margrett, French v. Gething, supra.
90 Antoniadi v. Smith [1901]Google Scholar 2 K.B. 589.
91 [1940] 1 K.B. 760, at p. 769.
92 The court expressly left this question open in that case.