MUMMERY L.J.: This is the judgment of the court.
Introduction
- This is an appeal from the decision of Mr Peter Leaver QC, sitting as a deputy High Court judge in the Chancery Division, following the trial of four preliminary issues. The issues arise on the construction of the School Sites Acts 1841-1844 (the 1841 Act), the Education Act 1870 (the 1870 Act), the Education Act 1973 (the 1973 Act) and the Reverter of Sites Act 1987 (the 1987 Act) and their application to agreed facts concerning entitlement to the proceeds of sale of land and buildings formerly occupied by the village school in Chartham, Kent. The issues are of general application to sites of schools conveyed under the authority of the 1841 Act. This is, we are told, only the second case on the 1841 Act to reach this court.
- In his judgment delivered on 20 December 1999 the deputy judge decided all four issues in favour of the defendant, the Canterbury Diocesan Board of Finance (the Board), for whom Mr Vivian Chapman appears. Mr Simon Fraser and Mr Nathan Fraser, who practise as a firm of genealogists, (the Claimants), for whom Mr Charles Turnbull appears, appeal on all issues. We are indebted to both counsel for their extensive researches and their careful arguments.
Background to the Legislation
- Although there was still distrust of the idea of a secular system of State controlled education, the early decades of the 19th century witnessed the recognition by a growing number of people of the need to provide free education for those who could not afford to pay for it. Many of the better off were willing to subscribe considerable sums to voluntary charitable organisations established to build and maintain local schools.
- Religious influences were strong. 1808 saw the foundation of a nonconformist body, the British and Foreign Schools Society, as it was later called. In 1811 the National Society for Promoting the Education of the Poor in the Principles of the Established Church throughout England and Wales (the National Society) was formed. It was incorporated by charter in 1817. It played a major part in pioneering the provision of elementary education throughout England and Wales. Many village schools were established with the assistance of the National Society, supported by Boards of Education of the Church of England and by the endowments of local benefactors interested in education. The involvement of the State increased in the 1830's in the form of periodic parliamentary grants to educational charities and by the encouragement of local initiatives for the provision of new schools, especially after the establishment of the Education Committee of the Privy Council in 1839.
The Statutory Framework
The 1841 Act
- Reform of the law of real property also played its part in enabling and encouraging more landowners to make sites available for new schools. The 1841 Act was passed to facilitate and encourage grants of land for specified educational purposes by empowering owners of land (including limited owners) to grant small areas of land to be used as a site for a school, with an automatic reverter of the land to the grantor or his successors in title on the cesser of use for those purposes. The legislation, which was contained in a series of Acts passed from 1836 onwards, attempted to remove legal difficulties in the way of such grants caused by the law of mortmain, by restrictions inherent in the alienability of legal freehold estates in land by limited owners, by the uncertain legal status of unincorporated grantees of land and by the rule against perpetuities.
Omitting immaterial parts section 2 provided that-
" Any person , being seised in fee simple, fee tail, or for life, of and in any manor or lands of freehold, copyhold, or customary tenure, and having the beneficial interest therein......may grant, convey, or enfranchise by way of gift, sale, or exchange, in fee simple or for a term of years, any quantity not exceeding one acre of such land, as a site for a school for the education of poor persons, or for the residence of the schoolmaster or schoolmistress, or otherwise for the purposes of the education of such poor persons in religious and useful knowledge...........Provided ....that upon the said land so granted as aforesaid, or any part thereof , ceasing to be used for the purposes in this Act mentioned, the same shall thereupon immediately revert to and become a portion of the said estate held in fee simple or otherwise, or of any manor or land as aforesaid, as fully to all intents and purposes as if this Act had not been passed, any thing herein contained to the contrary notwithstanding."
- The Board contend that the effect of the proviso to section 2 in this case was to bring about a reverter of the site of Chartham village school in 1874, when it was transferred to a school board under the authority of the 1870 Act and lost its essential Church of England character. It is common ground that, if the reverter occurred in 1874, the claim to it is statute barred.
- The Claimants contend that the reverter did not occur until the village school was actually closed down on 10 April 1992.
- Section 2 is also relevant to the Board's contention that the Claimants are not in any event entitled to the reverter, because the reverter is to the owner or owners for the time being of the grantor's neighbouring land out of which the school site was carved and conveyed. The Claimants do not advance their case in that capacity. They claim as successors in title of the original grantor, tracing through beneficiaries named in the grantor's will, and not through those to whom neighbouring land held by the grantor at the date of the grant was later transferred.
- Section 14 empowered the trustees of any land or building given or acquired under the provisions of the Act or "held in trust for the purposes aforesaid" to sell the same, if "it shall be deemed advisable to sell", and to apply the proceeds "in the purchase of another site, or in the improvement of other premises used or to be used for the purposes of such trust.." The section authorised an exchange of land or buildings in similar terms.
- The Board contend that the section 14 power was exercised, so as permanently to bar the claim of anyone entitled to the right of reverter, on the sale of the site of the school on 9 April 1992.
The 1870 Act
- This legislation made provision for the establishment of public elementary schools for children resident in a district. Such schools were non-denominational (see section 14 (2)) and were to be conducted in accordance with regulations in section 7 which provided that it should not be required that any child attend any religious observance or instruction in the school or elsewhere and that any parent could withdraw a child from religious observance or instruction at the school. Under section 23 the managers of an elementary school had power to transfer the school to a school board and to make an arrangement for the absolute conveyance or for a lease of the school to the school board.
- These provisions are relied on by the Board in support of the contention that the reverter occurred when the village school was leased to the school board in 1874 and ceased to be a Church of England School.
The 1973 Act
- Section 2 contains special powers for certain trusts for religious education. These powers are relied on by the Board. Where the premises of a voluntary school have ceased, before or after the coming into force of that section, or if the Secretary of State is of the opinion that it is likely that they will cease so to be used,then, subject to (amongst others) subsection (3), he may by order make "new provision as to the use of any endowment" shown to his satisfaction to be or have been held wholly or partly for or in connection with the provision at the school of religious education in accordance with the tenets of a particular religious denomination. An Order affecting Chartham school (and other schools in Kent) was in fact made in 1975.
- Under subsection (3) the order may require or authorise the sale of property forming part of the endowment, including the premises of the school, and exclude the operation of the proviso to section 2 of the 1841 Act, if the Secretary of State is satisfied that the person to whom the land would revert cannot be found or, if that person can be found, he has consented to relinquish his rights in relation to the land under the proviso.
- These provisions and the terms of the 1975 Order are relevant to the Board's submission that the reverter, if not statute barred, was extinguished by the sale of the school on 9 April 1992.
The 1987 Act
- This Act was passed following the identification by a Working Party of the Law Commission (Law Com.No. 111) of a number of unresolved issues arising under the reverter provisions of the 1841 Act and under similar provisions in the Literary and Scientific Institutions Act 1854 and the Places of Worship Act 1873. In order to deal with the problem of making a good title to a purchaser after the occurrence of an event giving rise to a reverter, section 1 replaced the right of reverter by a trust for sale. The trustees hold the net proceeds of sale upon trust for the persons who, but for the 1987 Act, would from time to time be entitled to the ownership of the land by virtue of its reverter. The section has retrospective effect so that, where the reverter occurred before the Act came into force, the legal estate is deemed to have been held on a trust for sale since the reverter took place.
The section does not, however, confer any right on any person as a beneficiary in relation to property in respect of which that person's claim was statute barred before the commencement of that Act.
Section 6 (2) confirmed that a sale in exercise of the power conferred by section 14 of the 1841 Act destroyed any right of reverter. It was declared that the power conferred by section 14 is exercisable at any time in relation to land to which (but for the exercise of the power) a trust might subsequently arise under section 1 of the 1987 Act.
- The provisions of the 1987 Act are relevant to the dispute about the route through which the Claimants derive their title to sue and to the Board's contention that any reverter to the grantor would have vested in his personal representatives and not in the beneficiaries under his will, through whom the Claimants derive their interest in the reverter.
Factual Background.
- (1) In 1871 the National Society made a grant of £35 towards a school at Chartham.
(2) On 9 March 1872 Mr Evan Lake, a local solicitor and landowner, conveyed, under the authority of the 1841 Act, to " the Minister and Churchwardens of the Parish of Chartham and their successors", in consideration of the sum of £35, a piece of land in the village to hold for the purposes of the 1841 Act upon trust
".... to permit the said premises and all buildings thereon erected or to be erected to be for ever after appropriated and used as and for a School for the Education of Children and Adults or Children only of the labouring manufacturing and other poorer classes in the Parish of Chartham aforesaid and for no other purpose."
The land conveyed was part of a larger parcel of land owned by Mr Evan Lake.
It was declared in the conveyance that the school should always be in union with and conducted
"... according to the principles and in furtherance of the ends and designs of the National Society for Promoting the Education of the Poor in the Principles of the Established Church throughout England and Wales.... ."
The Conveyance also stipulated that the Principal Officiating Minister for the time being of the parish should have the superintendence of the religious and moral welfare of the scholars attending the school; that he might use or direct the premises to be used for the purposes of a Sunday School under his executive control and management; that no person should be appointed to be the Master or Mistress of the School who should not be a member of the Church of England; and that disputes between the Minister or curate and the Committee of Management respecting the prayers to be used in school or the religious education of the scholars or the dismissal of any teacher on account of his defective or unsound instruction of children in religion should be referred to the Bishop of the Diocese.
(3) On 8 August 1872 a declaration was signed on behalf of the Canterbury Diocesan Education Society, in union with the National Society, concerning religious instruction and worship in accordance with the Church of England at the National School at Chartham .
(4) On 21 October 1872 the School, described as Chartham Church of England Mixed School, was opened.
(5) On 8 July 1874 the School was transferred to the School Board under a Memorandum of Arrangement made under section 23 of the 1870 Act. The School became a "provided school", having previously been a "voluntary school." A lease of the premises for 21 years from 1 August 1874 was granted by the Managers of Chartham National School to the School Board "for the purposes only of the Elementary Education Act 1870."
(6) On 6 October 1881, by a Memorandum of Arrangement under section 23, the original lease was surrendered and a further lease of the premises was granted by the Managers of the School to the Chartham School Board for the same purposes for a term of 31 years from that date.
(7) In 1903 the School expanded onto adjoining land acquired for that purpose by the Kent County Council.
(8) In 1920 the School expanded onto land owned by the Kent County Council. After 1925 the School was known as Chartham Council School. After the 1944 Education Act it was known as Chartham County Primary School.
(9) On 26 August 1975 the Diocese of Canterbury (Educational Endowments) Order (1975 No 1428) (the 1975 Order) was made pursuant to section 2 of the 1973 Act. It came into operation on 27 August 1975. It was recited that Chartham Old Church of England School, as one of the many Foundations listed in the schedules to the Order, had been used wholly or partly in connexion with the provision of religious education in accordance with the tenets of the Church of England and was a voluntary school the premises of which had ceased to be used for or, in the opinion of the Secretary of State for Education, was likely to cease to be used . The Diocesan Board was appointed trustee of the Foundations, including the School. The land belonging to or held in trust for the Foundations was vested in the Board, which was authorised to sell it and, until sale, to let and otherwise manage it according to the general law applicable to the management of property held on trust for charitable purposes. Article 5 of the Order authorised the Board to sell the school, subject to approval of the sale price by the Charity Commissioners, and to apply the proceeds for specified objects not limited to the provision of a school in the parish of Chartham.
(10) On 5 June 1976 the Board leased the original site to the Kent County Council .
(11) In 1991 the Board advertised under the 1987 Act its intention to apply for an order under section 2 of the 1973 Act extinguishing the rights of any beneficiary under a trust for sale arising under section 1 of the 1987 Act in favour of the estate of Mr Evan Lake. In fact no application was made under section 2 and the Board decided to sell the school in such manner that, if there were an extant reverter, it would be defeated by section 14 of the 1841 Act.
(12) Mr Evan Lake had died in Gravesend on 26 December 1917. Probate was taken out by Mr Frank Spain and Mr Frederick Boorman on 12 March 1918. By his will he bequeathed his residuary estate in equal shares absolutely to Mrs Kitty Lake, his daughter-in-law, and to his grandson, Mr Gordon Lake, after a prior life interest for Mrs Kitty Lake. She died on 2 October 1954 and left her residuary estate to her stepson, Mr Gordon Lake, absolutely. On 2 September 1991 notice of a claim was given to the Board by Mr Gordon Lake.
(13) On 9 April 1992 the Board sold by private treaty (following a failure to sell at auction ) to Rosenorth Limited for £50,000 the land conveyed by the 1872 Conveyance. The contract was completed the same day. The approval of the Charity Commissioners of the proposed sale price had been given under Article 5 (1) of the 1975 Order on 19 February 1992. On 10 April 1992 the school use of the site ceased.
(14) On 18 May 1992 the Board's solicitors notified Mr Gordon Lake of the 1975 Order and the sale and contended that the rights of the revertee to the site had been barred.
(15) Mr Gordon Lake died on 16 April 1994. His sole executrix and beneficiary was Mrs Eileen Lucas. She was granted probate of his will on 6 March 1998.
The Proceedings
- On 8 April 1998 an Originating Summons was issued against the Board by Mrs Lucas, as sole executrix of Mr Gordon Lake, claiming a declaration that the Board held the proceeds of sale of the School and accrued interest on trust for Mr Gordon Lake. As explained below she later assigned her interest to the Claimants.
- On 16 December 1998 Deputy Master Burton ordered that four questions be tried as preliminary issues in the action. These have been re-phrased to take account of the assignment by Mrs Lucas to the Claimants and other factual corrections.
(1) Are the Claimants the successors in title to the original grantor?
The deputy judge answered "No."
(2) Does the Claimants' claim to be entitled to the reverter fail on the ground that they claim on the basis that Mr Gordon Lake was successor in title to the original grantor and not on the basis that Mr Gordon Lake was the owner of the land out of which the school site was carved?
The deputy judge answered "Yes."
This point arises from the decision of Mr David Neuberger QC, sitting as a deputy High Court judge, in Marchant v. Onslow [1995] Ch. 1 that the reverter is to neighbouring land of the grantor and not to him or his successors personally.
(3) Does the Claimants' claim fail on the ground that the 1874 Arrangement triggered the reverter, so that the claim to it is statute barred?
The deputy judge answered "Yes."
This point relates to the decision of Rimer J in Habermehl v. HM Attorney General [1996] ECGS 148.
(4) Does the Claimants' claim fail on the ground that the 1992 sale fell within section 14 of the 1841 Act by virtue of the 1975 Order?
The deputy judge answered "Yes."
- On 17 October 1999 Mrs Lucas assigned to the Claimants all her interest, as executrix and sole beneficiary under the will of Mr Gordon Lake, in the proceeds of sale of the School. The Originating Summons was amended to substitute them as claimants.
The Judgment
- The deputy judge ruled on the preliminary issues. He found that it was convenient to deal with the issues in a different order from that set out in the order of Deputy Master Burton. But, to avoid confusion, his reasons for the rulings are summarised below following the original order.
- The overall result was that the Originating Summons was dismissed with costs, as it was agreed by the parties that the following rulings were decisive of the litigation-
(1) The Claimants were not the successors in title to Mr Evan Lake (the "Personal Representative Issue").
The deputy judge explained that not all Mr Lake's real estate devolved ultimately to Mrs Lucas. There was no evidence of any assent or assignment by the personal representatives of Mr Evan Lake. No representation order had been made in the proceedings. The claim would normally be through the personal representatives of the revertee. It was necessary for the Claimants to establish a chain of representation from the original personal representatives. They were unable to do that. They claimed through beneficiaries. There were no special circumstances which would justify dispensing with the normal requirement that all relevant parties should be before the court.
(2) The claim to be entitled to the reverter failed on the ground that it was advanced on the basis that Mr Gordon Lake was the successor in title to Mr Evan Lake and not on the basis that Mr Gordon Lake was owner of the land out of which the site conveyed had been carved (the "Marchant v. Onslow Issue").
The deputy judge pointed out that it was plain that the site conveyed was part of a larger parcel owned by Mr Evan Lake. It was not a free-standing plot of land, such as was considered in Re Cawston's Conveyance [1940] Ch 27. On the authority of Marchant v. Onslow the reverter rejoined the landed estate of the grantor and did not devolve on his successors.
3 The claim failed on the ground that the 1874 Arrangement triggered the reverter, so that it was statute barred ( the "Limitation Issue").
The deputy judge held that the site ceased to be used in 1874 for the particular purpose devoted by Mr Evan Lake in the 1872 conveyance. The School changed in 1874 from being a "voluntary" denominational Church of England school maintained out of private funds to being a school "provided" and maintained by the school board under the 1870 Act. The approach laid down in the decisions in A-G v. Shadwell [1910]1 Ch 92 and Habermehl v. A-G (supra) was followed. The trustees' fee simple determined in 1874, the land reverted and the claim to the reverter became statute barred.
4 If there was no reverter in 1874, the claim failed on the ground that the 1992 sale fell within section 14 of the 1841 Act by virtue of the 1975 Order (the "Section 14 Issue").
- On the making of the 1975 Order the Board became trustee of the School and the fee simple vested in the Board. Articles 5(1) and (2) expressly widened the trust on which the land was held , so as to permit the proceeds to be used for the purchase of land elsewhere in the diocese, so long as a voluntary school is to be maintained on that land. The Board became entitled to sell the School, subject to the approval of the Charity Commissioners as to the sale price. That approval was obtained. The Board then sold under section 14 of the 1841 Act, so that the reverter interest, if any, of Mr Gordon Lake was extinguished.
The Issues
- For the reasons given below, we are satisfied that the deputy judge reached the right conclusion on the Limitation Issue. That renders the consideration of the other issues strictly unnecessary. However, we have been urged to deal with all the issues so as to provide assistance on the points raised; as we have heard full argument on the other issues, we will express our views on all of them.
- This judgment will deal with the issues in the same order as the deputy judge did.
A. The Limitation Issue
- The appeal on this issue is dismissed.
The reverter was triggered by the 1874 Arrangement. The land granted by Mr Evan Lake as a site for the school thereupon ceased to be used for the purposes mentioned in the 1841 Act. The relevant purposes mentioned in the 1841 Act are those to which the grantor expressly devoted the site in the 1872 conveyance. The school continued in the possession of the Board. No proceedings were taken to recover the site until over 120 years later on 8 April 1998. By then it was too late for those entitled to the reverter of the site, or its proceeds of sale, to bring an action.
- Mr Turnbull's principal argument is that there was no reverter in 1874 because the school did not cease to be used for "the education of poor persons". That is one of the purposes mentioned in section 2 of the 1841 Act. The deputy judge had taken the wrong approach by focusing on the purposes mentioned in the 1872 Conveyance: the proviso to section 2 refers to cessation of use "for the purposes in this Act mentioned."
- This argument is based on an incorrect construction of section 2. It is also contrary to principle and was rightly rejected by the deputy judge as inconsistent with authority.
- As already explained, the purpose of the 1841 Act was to reform certain aspects of the law of real property so as to facilitate and encourage grants of land as school sites. In order to come within the Act the grant has to be for one or more of the three purposes mentioned in section 2 i.e. for the education of poor persons, or for the residence of a schoolmaster or schoolmistress, or otherwise for the purposes of the education of such poor persons in religious and useful knowledge. But the Act does not expressly or impliedly require the grant either to be for all of those purposes or to be for purposes expressed in those very words. The grantor, like any other benefactor of charity, is allowed freedom of choice as to the precise object of his bounty, so long as his stated purpose is within the scope of one of more of the purposes mentioned in section 2.
- The purposes chosen by Mr Evan Lake were within the limits of the third purpose allowed by section 2. The purposes specified in the 1872 conveyance followed a model deed of the National Society, one of the principal pressure groups in the 1830's for the School Sites legislation. The correct approach is to ask whether the school ceased to be used for those purposes and, if so, when.
- In A-G v. Shadwell (supra) the deed of grant was similar to the 1872 conveyance. Warrington J summarised the provisions (at p.94) as intended to secure "the Church of England character of the school." He pointed out that the 1841 Act specified three purposes for which land may be granted and that "the grantor may select his own purpose from amongst those three" (p.98). He then said
" Can it be the true construction of the Act that though the land ceases to be used for the purposes expressed in the grant, yet, nevertheless, if it is used for one or more of the other purposes in the Act mentioned, the reverter will not take place? I think you must read "the purposes in this Act mentioned" as meaning such of those purposes as are applicable to the case in question, namely, the purposes to which the land was devoted by the grantor. Now to what purpose was the land devoted in the present case? There can, I think, be only one answer to that question - to the purpose of a day school for the education of the poor, to be conducted according to the principles and in furtherance of the ends of the National Society."
- He held that the premises, which had ceased to be used for a weekday school and were only used as a Sunday School, had ceased to be used "for the purposes in the Act mentioned" and
"....reverted to the land of which they formed part."
- That approach was also followed by Rimer J in Habermehl v. A-G (supra). The provisions in an 1854 deed of grant of the site of a school in Kempston in Bedfordshire were very similar to those in the 1872 conveyance, though there is a point of difference in that the grant in that case was made before the 1870 Act. The day school conducted on the site permanently lost its distinctive denominational Church of England character when, following a Memorandum of Arrangement in 1876, under which the school was let to the newly formed School Board, it became a non-denominational school provided and maintained by the Board and conducted in accordance with the 1870 Act. That was a material change which meant that it was no longer used in fulfilment of the substantive purposes to which it had been devoted by its grantors. Rimer J held that the reverter occurred in 1876, that this was followed by adverse possession and that the claim to it became statute barred. That case was correctly decided and its reasoning is applicable to this case.
- The other cases cited on this issue-A-G v. Price [1912] 1 Ch 667( a cy-pres case) and National Society v. School Board of London (1874) LR 18 Eq 608-are not in point and do not assist.
B. The Section 14 Issue
- The deputy judge was wrong on this issue.
- The deputy judge accepted the submission of the Board that if, contrary to his conclusion, the claim to the reverter was not statute barred, it was extinguished by the sale of the school on 9 April 1992 and the combined impact of section 14 of the 1841 Act and the 1975 Order. The point turns on a short question of construction.
- As for section 14 of the 1841 Act, the sale by the Board in April 1992 was neither in fact made, nor could it in law have been made, under that section so as to extinguish the reverter. A sale of Chartham School could only be made under section 14 if it was intended to use the proceeds for the purposes for which the original site was held i.e. a school in the village of Chartham. The Board had no intention of using the proceeds of sale to purchase or improve other land used or to be used for a school in Chartham. The judge wrongly concluded that the 1975 Order widened the trusts on which the site was held, whereas it only widened the purposes for which the proceeds of sale could be applied.
- As for the 1975 Order, consent to the sale was in fact sought and given and the sale was in fact made under Article 5 (1). Although the 1975 Order permitted the use of the proceeds of sale in connection with other village schools in the diocese, it neither widened the purposes for which the site (as distinct from the proceeds of sale of the site) could be used nor empowered the Board to extinguish the reverter by sale. The barring of the reverter could only occur under section 2 of the 1973 Act, if those entitled could not be found after due enquiry or, if found, consented to relinquish rights in relation to the land under the proviso: see section 2 (3) (a) and (b). Neither provision was satisfied in this case.
C. The Marchant v. Onslow Issue
- The deputy judge was wrong on this issue.
- Under the proviso to section 2 of the 1841 Act it was stipulated that the land, on ceasing to be used for the purposes mentioned in the Act,
"...shall...revert to and become a portion of the said estate held in fee simple or otherwise, or of the manor or land aforesaid..."
- The expression " of the said estate held in fee simple or otherwise" is plainly intended to refer to the list at the beginning of the section of the different kinds of "estate" of which the grantor of the land might be "seised ," i.e. fee simple, fee tail, or for life. In that context the term "estate" is not used to refer to a specific physical area of land (as, for example, in "the Cadogan Estate"), but to a technically precise legal concept , namely the common law scheme for the temporal division of landholdings into interests of different duration (for life, in tail or in fee simple): as was said in Walsingham's Case (1573) 2 Plowd. 547 at 555-
" An estate in the land is a time in the land, or land for a time."
- Similarly the reference to the land reverting to and becoming a portion "of any manor or land as aforesaid" is plainly intended to refer to the list earlier in the section of the different ways in which the land might be held by the grantor, i.e. as lord of the manor (with appurtenant demesne land and manorial waste) or on freehold, copyhold, or customary tenure.
- This construction of the proviso is reinforced by the expression that the land reverts "as fully to all intents and purposes as if this Act had not been passed." The grant has not, in other words, changed the temporal extent of the estate of which the grantor was seised or the way in which the land was held by the grantor before he made the grant. The reverter is of that estate held on that tenure to the original grantor of the site and not to the land out of which the site granted was carved and conveyed.
- In Marchant v. Onslow (supra) it was held that in the proviso to section 2 "estate" referred to the physical extent of the grantor's land, rather than to his temporal and tenurial interest in it. The reverter of the land was to being part of other land in the larger estate from which it had been carved and it "would be rejoined to the grantor's neighbouring land" (p.7B-C). That decision was reached by Mr David Neuberger QC, then sitting as a deputy High Court judge, as a matter of impression, as a matter of analysis of what he regarded as an "ill drafted provision" (section 2) and as not inconsistent with (and even supported by) authority in the form of the decision of this court in Re Cawston's Conveyance (supra).
- In our judgment, Marchant v. Onslow was wrongly decided. There is no authority requiring that construction, although there are passages in some of the judgments on section 2 which use the term "estate" in the sense of "land" or "landed estate": see, for example, Dennis v. Malcolm [1934] Ch 244 at p.249; Re Cawston's Conveyance (supra) at pp.37, 38 and A-G v. Shadwell (supra) at pp. 97, 99, as quoted above.
- No doubt section 2 of the 1841 Act could have been drafted more simply and more clearly, but it does make good sense once the purpose and the context of the 1841 Act are fully appreciated. As already explained, the purpose of the Act was to facilitate and encourage grants of school sites by removing legal obstacles present in the then unreformed law of real property. The context of section 2 involves a consideration of the complex (and now increasingly unfamiliar) state of real property law at the time of the 1841 Act. The English law of real property had yet to be restructured by the legislation of the late 19th century and by the major overhaul in 1925. In 1841 life interests and entailed interests were still freehold legal estates in land, giving rise to the problem of grants of land by limited owners. In that setting the reference to "estate" in its temporal significance makes both linguistic and practical sense.
- It is in fact more difficult to make practical sense of the meaning placed on "estate" in Marchant v. Onslow. Why should the purchaser of neighbouring land, from which the grantor severed the site, benefit from the grantor's bounty? Was it really intended that the reverter might, over a century later, be fragmented and divisible amongst owners of different parcels of neighbouring land acquired from the original grantor? And in what manner discernible from the 1841 Act should it be so divided ?
D. The Personal Representative Issue
- The deputy judge was wrong on this issue.
- If, contrary to the conclusion on the Limitation Issue, the proceeds of sale of the school are held by the Board upon trust, that trust is declared by section 1(1) of the 1987 Act to be for
"...the persons who but for this Act would from time to time be entitled to ownership of the land by virtue of its reverter."
- The deputy judge accepted the Board's contention that, if, contrary to his conclusion, the reverter was to Mr Evan Lake or those claiming under him, the Claimants have no title to sue for the proceeds of sale and are the wrong claimants: they do not derive title from the personal representatives of Mr Evan Lake and they are not "the persons who would but for the [1987] Act..... be entitled to the ownership of the land by virtue of its reverter." The Claimants purported to acquire rights from a person (Mrs Eileen Lucas), who was not the personal representative of Mr Evan Lake. Mrs Lucas was the sole executrix of a person (Mr Gordon Lake), who was a beneficiary under Mr Lake's will. The Claimants are not entitled to recover assets of the estate of Mr Evan Lake.
- This point also turns on a short point of statutory construction. Who are the persons who, within the meaning of section 1 of the 1987 Act, would, but for the 1987 Act, be entitled to the ownership of the land by virtue of its reverter?
- The critical point is that section 1 creates a bare statutory trust of the proceeds of sale of the land. This is not a case of an estate of a deceased person (Mr Evan Lake) still in the course of administration by his personal representatives. The personal representatives of Mr Evan Lake would, if there was a reverter of the land, hold the proceeds of sale of the land on that bare trust for the Claimants, who would be the persons absolutely and beneficially entitled to the proceeds. In those circumstances they are properly to be regarded as persons entitled to the ownership of the proceeds and as able to give a valid receipt for them.
Conclusion
- The overall result is that, although we differ from the deputy judge on three of the four preliminary issues and his order should be varied to reflect that, the failure of the appeal on the Limitation Issue means that the proceedings against the Board are statute barred and stand dismissed.
Order: Appeal dismissed. The order should reflect the fact that on the three issues other than the limitation issue, we disagreed with the Deputy Judge. The successful respondents should have half the costs of the appeal.
(Order does not form part of approved judgment.)
