Wright v. Gibbons

(1949) 78 CLR 313

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(Judgment by: Dixon J.)

Wright
v Gibbons

Court:

Judges: Latham C.J.
Rich

Dixon JJ

Hearing date: Hobart, 1948, November 8;
Judgment date: 22 February 1949

Melbourne

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Judgment by:
Dixon J.

DIXON J. These are two consolidated appeals from the same order. The order, which was made by Clark J., determined a point of law set down for hearing and disposal before the trial of the action. (at p328)

2. The plaintiff and two other ladies now deceased had been joint tenants of certain parcels of land in Hobart. The question for determination was, in effect, whether before their deaths the two deceased ladies had severed the joint tenancies in the several parcels of land so that the three became tenants in common and the plaintiff took nothing by survivorship. With respect to so much of the land as is under the general law Clark J. decided that the joint tenancy had been severed by certain dealings by way of mortgage, and from that decision the plaintiff does not appeal. (at p328)

3. But with respect to so much of the land as is under the Real Property Acts his Honour decided that there had been no severance and that the plaintiff was therefore entitled to take by survivorship what had been the undivided shares of the deceased ladies. From the part of the order embodying this decision appeals are brought, one by the executor of the two deceased and another by the Recorder of Titles, who is joined as a defendant. The attempt to sever the joint tenancy had been made by the execution by the two deceased joint tenants in their life time of a memorandum of transfer containing what were intended as cross-transfers of their undivided shares as joint tenants one to another as tenants in common (scilicet with the third joint tenant, the plaintiff, and with one another). The defendant, the Recorder of Titles, registered this memorandum of transfer. Part of the consequential relief claimed by the plaintiff is rectification of the register, presumably under s. 138 of the Real Property Act 1862, though no question as to the title to relief arises under the order now in question. The Recorder appeals from the order, so his counsel tells us, because it appears to him to make doubtful the practice of allowing joint tenants to transfer to themselves as tenants in common. The defendant executor, of course, appeals on the more obvious and tangible ground that the decision means the loss to the estates of his two testatrixes of their respective aliquot interests in the land. (at p328)

4. The memorandum of transfer is expressed in a manner which must be the result of some confusion. (at p328)

5. After pointing out how in stating the mutual considerations the denominations of the parties had been transposed and the apposition of the expression "as tenants in common" had been confused, Clark J. in the end accepted the view that the document should be interpreted as sufficiently expressing the intention claimed for it. At all events his Honour entertained no doubt that what the instrument meant to say was that each of the two ladies in consideration of the transfer to her of the undivided one-third share of the other transferred her own one-third share to that other and that they were to be tenants in common with the plaintiff. His Honour said that this was how the plaintiff's legal advisers had been content to read the document. In my opinion, notwithstanding the presence of some confusion in the use of language, that is plainly the meaning of the memorandum of transfer and it should be so interpreted. (at p329)

6. The case can, on this footing, be stated in an abstract way. A, B and C are joint tenants for an estate in fee simple in land under the Real Property Acts. By one instrument of transfer A purports to transfer to B his undivided interest in the land and B purports to transfer to A his undivided interest in the land to the intent that they shall all three be tenants in common in equal shares. Upon registration of the transfer is there a severance so that they become tenants in common in equal shares? Clark J. answered this question in the negative. The full force of his Honour's reasons for this conclusion can only be understood from a study of the judgment and the learning it contains. The foundation of the decision may, I believe, nevertheless be stated almost in a sentence. It is that in contemplation of law joint tenants are jointly seised for the whole estate they take in land and no one of them has a distinct or separate title, interest or possession. It follows that an attempt on the part of two of three joint tenants mutually to assure each to the other his or her undivided share in the hope that each of their two shares will be taken by a new title and so enure as a several undivided interest, must fail because it can accomplish nothing. An alienation by a joint tenant of an undivided interest to a stranger, upon this view, imparts a several interest because such a power is incident to joint tenancy; but that is very different from identifying the respective interests of joint tenants and transposing them. (at p329)

7. The principle thus employed is described by Blackstone, vol. 2, p. 182, as one "of a thorough and intimate union of interest and possession." (at p329)

8. "They (i.e. two joint tenants) have not, one of them a seisin of one-half or moiety, and the other of the other moiety; neither can one be exclusively seised of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety." (at p329)

9. A sentence in Bracton, taken to be sure from its context, has found its way through Coke into modern books as an expression of the conception: Et sic totum tenet et nihil tenet scilicet totum in communi (or conjunctim as Coke has it) et nihil separatim per se. Bracton, fo. 430, Woodbine's ed., vol. 4, p. 336; Co. Litt., 186a. Nihil tenet et totum tenet became in Littleton per my et per tout, "my," as it appears now to be agreed, being the mie still shown in some French dictionaries as a negative expletive particle, and not mi, "half" as Blackstone seems to have taught many generations of lawyers to believe. (See Serjeant Manning's notes to Daniel v. Camplin (1845) 7 Man & G 167, at p 173, note (c) (135 ER 73, at p 75, note (c)) and Murray v. Hall (1849) 7 CB 441, at p 455, note (a) (137 ER 175, at p 180, note (a)) : see further Radcliffe's Real Property Law, p. 33.) There it is said of joint tenants: -

"Each of them has a right shared with his co-tenants to the whole common property, but no individual right to any undivided share in it . . . for this reason, joint tenants should not be spoken of as holding undivided shares." (at p330)

10. Mr. Joshua Williams in his Lectures on the Seisin of the Freehold, (1878), p. 117, went as far as saying that joint tenants in fact were considered by the law as one person for most purposes. (at p330)

11. Logical as may seem the deduction that joint tenants have not interests which in contemplation of law are sufficiently distinct to assure mutually one to another, there are many considerations which show that, to say the least, the consequence cannot be called an unqualified truth. The fact is that the principle upon which the deduction is based must itself be very much qualified. It represents only one of two not altogether compatible aspects of joint tenancy, a form of ownership bearing many traces of the scholasticism of the times in which its principles were developed. "Albeit they are so seised" says Coke, (186a) ("scil. totum conjunctim, et nihil per se separatim") "yet to divers purposes each of them hath but a right to a moitie." For purposes of alienation each is conceived as entitled to dispose of an aliquot share. The alienation may be partial. One joint tenant for an estate in fee simple may grant a lease of his equal share and during the lease the jointure is suspended and there is a temporary severance and apparently it would not matter that the lease did not commence until after the death of the joint tenant granting it. A joint tenant may grant an estate for life in his share, though in that case it seems that it works a severance of the entire fee simple. If one joint tenant suffered a forfeiture it was not the whole estate but only his aliquot share that was forfeited. If one joint tenant proved to be an alien the Crown, on office found, took only his share. Execution on a judgment for debt against one joint tenant bound his aliquot share and continued to do so in the hands of the survivor if the execution debtor afterwards died. See Comyns, Digest, vol. 4, S.V. Estates, K.6 & 7.

Each joint tenant could declare uses and they could declare different uses of their respective shares: Sanders Uses, Ch. II., s. 7, p. 218 (1589) 2 Co Rep 58a (76 ER 549) . In two places Richard Preston summed up the result: "Joint tenants are said to be seised per my et per tout. They are in under the same feudal contract or investiture. Hence livery of seisin from one to another is not sufficient. For all purposes of alienation, each is seised of, and has a power of alienation over that share only which is his aliquot part": Essay on Abstracts of Title, (1824), vol. 2, p. 62. "The real distinction is, joint tenants have the whole for the purpose of tenure and survivorship, while, for the purpose of immediate alienation, each has only a particular part"; On Estates, 2nd ed. (1820), vol. 1, p. 136. An alienation by one joint tenant to a stranger might be made by the appropriate means of assurance and in respect of the aliquot share of the alienor the stranger would come in with the remaining co-tenant or co-tenants as a tenant in common. (at p331)

12. But with respect to the alienation of the share of a joint tenant to a companion, special rules applied. Because the alienee was regarded as already in by the infeudation creating the joint tenancy the proper means of assuring the share of the alienor to him was release. The release operated as a discharge of the benefit of the infeudation or feudal contract from one joint tenant to another: Watkins, Conveyancing, 9th ed. (1845), Coote's note, p. 167. "But though this release will, for all purposes of conveyance, pass the moiety of the releasing joint-tenant to his companion, yet the usual practice was to take a conveyance by lease and release" (ibid.). "The proper assurance between joint tenants is a release. One may release to all. Several may release to the others. One or more may release to some or one of the others: and if they convey by lease and release or by feoffment, such lease and release or feoffment will operate as a release; but then there must be a deed": Preston, Essay on Abstracts of Title, 2nd ed., (1824), vol. 2, p. 61. "If one of three or more joint tenants release to another of them, the share so released will be held in severalty; and as to the remaining shares the parties will continue joint tenants. The releasee is in by way of conveyance or title as an assignee and not under the original feudal contract": Preston (ibid.). (at p332)

13. Take then the present case. A, B and C are joint tenants. A might release or grant (and a grant would be given effect as a release) his aliquot share to B and B would take that share as tenant in common with C. B would retain his own original aliquot share as joint tenant with C. B's two aliquot shares would be distinguishable by their different incidents. A has become a stranger to the jointure. Surely B could by an appropriate assurance impart B's original aliquot share to A. If so he would come in as a tenant in common. He would then "be in by way of conveyance or title as an assignee." If the two assurances were made separately and in proper succession it would not matter how short a time elapsed between them. The result would be that A, B and C, having been joint tenants up to the execution of the first assurance, that is up to the release or its equivalent, would upon the execution of the second assurance become tenants in common in equal shares. What is an appropriate assurance for the second transfer or assignment (that of B's original share to A) has of course differed at different times, feoffment, lease and release and grant, but that is immaterial. (at p332)

14. Suppose again that A, B and C being joint tenants for an estate in fee simple, A and B joined in an assurance, let us say a grant, of their two aliquot shares to X, as a grantee to uses, to the use of A and B and their respective heirs as tenants in common in equal shares. Would that not have operated to make them tenants in common not only between themselves but also with C? I have not seen a precedent for nor a reference to such an assurance, but I can see no objection to it, unless it be on the alleged ground that, for the purposes of the Statute of Uses, the feoffor, any more than the person seised, cannot be identical with the person entitled to the use. But that has never been the rule where the person entitled to the use takes a different estate or interest or under different limitations or in another right. (at p332)

15. While these two instances may show that, independently of the Torrens system, by the use of appropriate assurances, A and B could have severed the jointure between C and themselves as well as between one another, the objection still remains that they could not have done so by mutual releases one to another nor by mutual grants one at least of which must have operated, if at all, as a release. That objection is probably a good one. The strength of the objection will be seen by taking one of the two mutual attempts to transfer the interests. As a release the attempt by A to transfer his share to B cannot operate unless B continues in his position in the jointure. But as a grant it cannot operate unless B has already ceased to occupy his position in the jointure. For him to attempt to change it eo instanti with the operation of the grant or release by himself to A therefore would appear to be inconsistent with both alternatives. (at p333)

16. The foregoing shows that under the general law the question depended upon the conveyance or assurance used to effect the mutual transfers of the aliquot shares of the two joint tenants who desired to bring about a severance of the jointure with their companion as well as between themselves. This conclusion, to my mind, reduces the matter to a question of the operation of the Real Property Acts. It does so for two reasons. In the first place the conclusion must mean that not only for the purpose of alienations to strangers but also for the purpose of alienation of a share by one joint tenant to another, the aliquot share of each existed in contemplation of law as a distinct and ascertained proprietary interest. (at p333)

17. The second reason is that it shows that the obstacle to concurrent cross-transfers of interests was that, except by employing the Statute of Uses, no assurance existed capable of effecting the transfers simultaneously but only by successive steps. (at p333)

18. In approaching the Real Property Acts, it must be borne in mind that the interests of each joint tenant fell within the general statutory principle that all lands and all interests therein lie in grant. (at p333)

19. Section 39 of the Real Property Act 1862 provides that upon registration of an instrument the estate or interest specified in the instrument shall pass in the manner set forth and specified in the instrument. Section 42 says that when land is to be transferred (and that must mean an interest therein) the registered proprietor shall execute a memorandum of transfer in the prescribed form containing an accurate statement of the estate or interest intended to be transferred. Section 87 provides that two or more persons who may be registered as joint proprietors of an estate or interest in the land shall be deemed to be entitled to the same as joint tenants. These provisions result in each joint proprietor being entitled as a registered proprietor to transfer his interest by a memorandum of transfer presented for registration (see Tucker v. Coleman (1885) 4 NZLR 128 ). When this system for the conveyance of distinct legal proprietary interests is applied to the common-law conceptions of the interests of joint tenants it appears to me to follow that an exclusive method of assuring the aliquot share of a joint tenant is provided and that all the consequences ensue which at common law followed the transfer or legal assignment of such a share.

Moreover it supplies a method of assurance of general application, that is to say one that will be apt and effective to impart any transferable interest. It is of course subject to the law of capacity or law of persons. But if it is a legal interest, as opposed to equitable, in property and is alienable the system enables the transfer thereof to be made. It is of course true that this train of reasoning still falls short by one step of establishing that the transfer by one joint tenant of his interest may be made to his companion and e converso of the companion's share to him. But in my opinion the considerations that have preceded the discussion of the Real Property Acts are enough to make good that step. For those considerations appear to show first that there is no incapacity in one of three joint tenants to take as a tenant in common a transfer of a companion's share; secondly that the companion's share is in contemplation of law a distinct and ascertained proprietary interest; thirdly that by a means of conveyancing that is superseded the result might have been brought about. (at p334)

20. The consequence is that if A, B and C are joint tenants, in my opinion cross-transfers may be made at the same time of the respective aliquot interests of A and B to one another and the result is to produce a tenancy in common among A, B and C. (at p334)

21. It follows that I think that the appeal should be allowed. So much of the order of 23rd January 1948 should be discharged as relates to the land comprised in Certificate of Title Registered Volume 328 Folio 93 and in lieu thereof it should be ordered and declared that the joint tenancy subsisting among Olinda Gibbons, Ethel Rose Gibbons and the plaintiff was severed by reason of the making and registration of a memorandum of transfer dated 6th December 1945 registered No. 109689. The appellant Wright as executor of the wills of the above-named deceased should receive his costs of the appeal. The costs of the determination of the points of law are reserved by the order and no doubt they will be dealt with in the Supreme Court when the action is disposed of. (at p334)

22. I have considered the question whether the Recorder of Titles should receive his costs of the appeal and not without hesitation I have come to the conclusion that he should do so. The conclusion is based on the grounds in combination: (1) that he was a party to the proceeding; the prima-facie consequence of the order was to affect him and the register under his keeping and subject to leave he had a right of appeal; and (2) that he is a public officer whose judgment on what is and what is not important to his administration should not be put aside without good reason. (at p335)