In October, 1898, a contract was entered into on behalf of the present trustees of Hollis Hospital for the sale of certain freehold property belonging to the hospital.
The property contracted to be sold formed part of certain property which had been conveyed by H. to trustees upon trusts for the hospital by deeds of lease and release dated May 17 and 18, 1726. The release contained a proviso that if at any time thereafter the premises thereby conveyed or any part thereof, or the rents, issues, and profits of the same or of any part thereof, should be employed or converted to or for any other uses, intents, or purposes than those thereinbefore mentioned, then and from thenceforth all and every the premises thereinbefore conveyed should revert to the right heirs of H. party thereto.
The title had been accepted and the draft conveyance approved when a letter was received by the purchaser’s solicitors from A, one of the trustees of the hospital, intimating that as the heir-at-law of H he had not concurred in the sale, and calling their attention to the clause in the release under which if the sale was carried out the property would revert to him.
A summons was thereupon taken out by the purchaser for a declaration that a good title to the hereditaments contracted to be sold had not been made.
Held: that the condition was in terms and form a true common law condition, and was void as being obnoxious to the rule against perpetuities. The dictum of Jessel M.R. in In re Macleay, (1875) L. R. 20 Eq. 186, and of North J. in Dunn v. Flood, (1883) 25 Ch. D. 629, discussed and followed.
The remarks in Challis on the Law of Real Property, 2nd ed, upon the question whether the rule against perpetuities applies to common law conditions in defeasance of a freehold, discussed at length and dissented from.
Held: further, that in view of the notice received from A. claiming as heir-at-law of H, and who declined to be bound by the decision, the title was not one which could be forced upon an unwilling purchaser.
In re Thackwray and Young’s Contract, (1888) 40 Ch. D. 34, followed.
The practice of conveyancers of repute was strong evidence of real property law.
Byrne
[1899] 2 Ch 540, [1899] UKLawRpCh 108
CommonLii
England and Wales
Cited by:
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.
Land, Legal Professions
Leading Case
Updated: 02 November 2021; Ref: scu.236530
