Mitchell-Davy (Cecillia) v Riley Adolphus Davy
| Jurisdiction | Jamaica |
| Judge | HARRISON, P. , COOKE, J.A. , HARRIS, J.A : , HARRISON, P |
| Judgment Date | 30 March 2007 |
| Neutral Citation | JM 2007 CA 9 |
| Judgment citation (vLex) | [2007] 3 JJC 3002 |
| Date | 30 March 2007 |
| Court | Court of Appeal (Jamaica) |
REAL PROPERTY - Beneficial interest
This is an appeal from the decision of Sinclair-Haynes, J., on 9 th February 2004 made under section 16 of the Married Women's Property Act that the respondent is the sole legal and beneficial owner of property at 70 Catherine Close, Queen Hill in the parish of St. Andrew.
I have read the judgments of Cooke and Harris, JJA., and I agree with their reasoning and conclusions. However, these are my comments.
The material facts are that the said property was solely owned by the respondent since 1984, by way of purchase. He subsequently met the appellant, with whom he lived from about 1987. They were married in 1991. The appellant attended the College of Arts, Science and Technology (now University of Technology) from 1987 and graduated in 1990; the expenses of such tuition was borne by the respondent. On 26 th January 1995 the respondent transferred the said property into their joint names as tenants in common. They separated in 2002. The respondent claimed that he was solely entitled to the beneficial interest in the property and sought such declaration and an order that the appellant transfer the legal interest to him. The learned trial judge found in favour of the respondent. This appeal resulted.
Where land is transferred into the names of husband and wife jointly, prima facie they are jointly entitled. However, such entitlement is not determinate of the beneficial ownership of each. If each contributes to its acquisition, the legal estate is in both jointly and the equitable interest is held by them in the proportion in which each contributed. See, for example, Cobb v Cobb [1955] 2 All ER 696.
Where a husband transfers property into his wife's name or the wife's name and his, he is presumed to intend to make a gift of such property to her, in the absence of a contrary intention. This is known as the presumption of advancement. It is based on the concept of a man's obligation to support his wife. It applies also to his obligation to support his children or anyone in loco parentis to him. In the case of the wife however, because of the shift in social and economic patterns and customs of women in general, and wives in particular, that presumption has lost a great deal of its earlier force and efficacy.
However, being a presumption, it may be rebutted by the actual intention of the parties. With reference to the presumption of advancement, Lord Hodson, in Pettitt v Pettitt [1970] AC 777, at page 811, said:
"Reference has been made to the 'presumption of advancement' in favour of a wife in receipt of a benefit from her husband. In old days when a wife's right to property was limited, the presumption, no doubt, had great importance and to-day, when there are no living witnesses to a transaction and inferences have to be drawn, there may be no other guide to a decision as to property rights than by resort to the presumption of advancement. I do not think it would often happen that when evidence had been given, the presumption would today have any decisive effect."
Lord Upjohn referred to the evidence which could give rise to the presumption, or otherwise. He said, at page 813:
The property may be conveyed into the name of one or other or into the names of both spouses jointly in which case parol evidence is admissible as to the beneficial ownership that was intended by them at the time of acquisition and if, as very frequently happens as between husband and wife, such evidence is not forthcoming, the court may be able to draw an inference as to their intentions from their conduct. If there is no such available evidence then what are called the presumptions come into play. They have been criticised as being out of touch with the realities of today but when properly understood and properly applied to the circumstances of today I remain of opinion that they remain as useful as ever in solving questions of title."
and at page 814 he said:
"These presumptions or circumstances of evidence are readily rebutted by comparatively slight evidence; let me give one or two examples.
In In re Gooch (1890) 62 L.T. 384 a father purchased in his son's name stock in a certain company more than sufficient to qualify the son to be a director of the company, but the father kept the relative certificates in an envelope on which he had written 'belonging to me'; legal presumption of gift rebutted."
The presumption of advancement, therefore, arises by implication of law, where there is no direct evidence of the specific intention of the parties. That presumption is rebutted by even slight evidence of contribution by the spouse who claims that the presumption arises. Where therefore there is evidence of a common intention, the presumption cannot arise.
In Lynch v Lynch (1991) 28 JLR 8, Carey, J.A., contrasted the presumption with the evidence of the parties intention. At page 11, he said:
"It seems to me absolutely plain that the doctrine of the presumption of advancement operates only where there is no evidence of intention, and one has to be imputed."
He relied on the advice of the Privy Council in Neo Tai Kim v. Foo Stie Wah (M.W.) (unreported) Privy Council Appeal No. 30/82 dated 4 th March 1985, and said on page 11:
"Thus the true nature of the presumption was explained by their Lordships in these words:
'In the opinion of their Lordships the presumption of advancement is not an immutable rule to be applied blindly where there is no direct evidence as to the common intention of the spouses. It is rather a guideline to be followed by the court in an appropriate case when it searches for the intention which ought, in the absence of evidence, to be imputed to the parties. It is proper for the trial judge to review the background of the case and to decide in appropriate circumstances that the guideline is not one which can sensibly be followed in the case before him'."
In circumstances therefore where a person's name, including that of a wife, is added to the title of a registered owner with the intention that it is meant to facilitate the obtaining of a mortgage or other similar reason, such clear evidence displaces any notion of the presumption arising. This practice arises frequently in current times in financing of mortgages, where the resources of one party may be insufficient to secure the requisite financing. Lord Diplock, in Pettitt v Pettitt (supra) recognized this practice. He said at page 824:
"The old presumptions of advancement and resulting trust are inappropriate to these kinds of transactions, and the fact that the legal estate is conveyed to the wife or to the husband or to both jointly though it may be significant in indicating their actual common intention is not necessarily decisive since it is often influenced by the requirements of the building society which provides the mortgage."
In the instant case, the appellant bases her entitlement to an interest on two limbs, namely, her contribution to the construction of the house on the property and the presumption of advancement that exists in her favour. This stance creates an inherent conflict in the appellant's case.
The learned trial judge found that the appellant did not contribute to the construction of the house on the property and, that the construction was commenced by the respondent prior to the marriage of the parties. She concluded that if her finding was that the appellant contributed to the construction, even after marriage, that would be ample evidence of the intention of the parties.
The appellant had stated, in paragraph 9 of her affidavit dated 7 th August, 2003:
"it was agreed between us that the claimant would pay off all of his arrears which he owed to the NHT and expedite the transfer of my name on the Duplicate Certificate of Title for the abovementioned property, so that, we both could access the loan."
The learned trial judge quite rightly found, from that statement of the appellant, at page 22 of the record:
"Such a statement unequivocally asserts that the placing of her name on the title and the paying off of his arrears were pre-requisites to the acquisition of the loan."
On the evidence before her, the learned trial judge found that the appellant had agreed to give him her benefit under the National Housing Trust in order that he might obtain a higher mortgage. The respondent had placed her name on the title for that reason. The learned trial judge found however that:
"... she reneged and refused to sign the NHT documents."
There was ample evidence before the learned trial judge from which she could make the findings that she did. She saw and heard the witnesses. In those circumstances, this Court may not disturb such findings.
On the evidence, it could be readily inferred that the intention of the parties was that the appellant's name was included on the registered title of the respondent for the purpose of facilitating the receipt of a higher sum of money as a mortgage. That intention is manifest on the evidence of each party.
This finding of the learned trial judge of the intention was an irresistible one and clearly rebutted any presumption of advancement that could arise in favour of the appellant.
Carey, J.A., in Lynch v Lynch (supra) adverted to the practice of the placing of another name on the title for the purpose of mortgage financing. He said at page 13:
"The fact that a wife agrees to be a party to a...
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