The seller had owned two adjoing properties. He sold one off to the plaintiff, describing it in the conveyance as ‘all that dwellinghouse’. A cellar under the part sold off had access only from the retained property, but contained supports for the room above. The plainttiff sought an injunction to restrain the seller from using the cellar.
Held: The seller’s appeal failed. The term dwellinghouse was to be interpreted to include the cellar. There was no ambiguity in the description so as would allow the court to look to any surrounding circumstances to construe the deed. Had he intended to exclude the cellar, it would have been easy to do so. This was not an action for rectification.
References: [1973] 3 All ER 455
Judges: Russell LJ, Stamp LJ, James Lj
Jurisdiction: England and Wales
This case cites:
- Appeal from – Grigsby v Melville and Another ChD 1972 ([1972] 1 WLR 1355, [1973] 1 All ER 385)
A purchaser of a house above a cellar sought an injunction to support his assertion that a cellar which was served by an access only from the defendant seller’s retained property had been included in the conveyance of ‘all that dwellinghouse’ - Cited – Corbett v Hill 1870 ((1870) LR 9 Eq 671, (1870) 39 CJCh 547, (1870) 2 LT 263, (1870) 7 Digest (Repl) 267)
The court considered a conveyance on sale which created an underground flying freehold. Sir William James VC said that the owner of land owns ‘everything up to the sky’. . . - Cited – Smout v Farquharson CA 12-Dec-1972 (Unreported, 12 December 1972)
The court considered a case where there was difficulty in deriving the horizontal boundaries of a property. . . - Cited – Truckell v Stock CA 1957 ([1957] 1 All ER 74, [1957] 1 WLR 161)
The court considered the effect of a conveyance where an inspection of the ground revealed a mistake in the description of the land. . . - Cited – Laybourn v Gridley 1892 ([1892] 2 Ch 53, [1892] 61 LJCh 352, [1892] 7 Digest (Repl) 267)
Part of a room protruding into the property conveyed avbove ground level was included in the conveyance. . . - Cited – Mitchell v Mosley CA 1914 ([1914] 1 Ch 438, [1914] LJCh 438, [1914] 109 LT 648)
Where a plot of land sold has the boundaries identified, prima facie, the conveyance will also include all the land within and below the boundaries.
Lord Cozens-Hardy MR said: ‘In my opinion we should be going contrary to perfectly well . .
This case is cited by:
- Cited – Scarfe v Adams CA 1981 ([1981] 1 All ER 843)
Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . . - Cited – Woolls v Powling CA 9-Mar-1999 (Times 09-Mar-99, , [1999] EWCA Civ 751)
A plan attached to a conveyance for identification purposes only’ could still be used, when clear, to determine just where the boundary lay. If the transfer is clear, extrinsic evidence cannot be used to clarify the precise boundary.
The . .
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Last Update: 22 September 2020; Ref: scu.242460 br>