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 part of the land comprised in the specified title). The coiurt had to identify what land was transferred.
Held: The court criticised the use by solicitors of small scale plans on conveyances and set out the principles for deciding what criteria were to be applied in incorporating plans into conveyances or transfers. Extrinsic evidence was admissible because the Ordnance Survey map used in the conveyance to identify the relevant property had been wholly inadequate due to its small scale. However, if the terms of the transfer clearly define the land, extrinsic evidence is not admissible to contradict the transfer.
Cumming-Bruce LJ said: ‘the question raised in these proceedings is only the proper construction to the Plaintiff’s Transfer Deed. And the starting point is that extrinsic evidence is not admissible as an aid to its construction unless the relevant provisions of the deed are uncertain, contradictory or ambiguous. Counsel for the Plaintiff submits that this deed is uncertain, contradictory and ambiguous. Counsel in the court below invited the judge to admit evidence as to facts and circumstances from which the common intention of the vendor and purchaser was to be collected in order to understand the true meaning of the deed which they made, and the true effect of the plan to which they referred as showing the land transferred. The judge admitted extrinsic evidence de bene esse but decided that there was no such uncertainty or ambiguity as to make it right to admit that evidence as an aid to construction. . . The learned deputy judge said that he had derived most assistance from the cases of Grigsby v Melville [1973] 3 All ER 455 and Neilson v Poole [1969] 20 P and CR 909. The judge was wrong in thinking that Grigsby was an action for rectification. The decision was founded on the determination that, as a matter of construction, the deed was clear, certain and unambiguous, so there was no room for extrinsic evidence about the inconvenient consequences. Neilsen v Poole was a case in which Megarry J as a matter of construction of the conveyance with plan attached, decided that it was uncertain and that therefore it was right to admit and consider extrinsic evidence. Having done so, Megarry J decided that the conveyance as a whole and the dividing line on the plan showed that the dividing line was along a line drawn on the plan, and the other conveyances supported the conclusion. I have difficulty in understanding how the decision of either case or the reasoning of Megarry J supported the deputy judge’s conclusion.
. . . ‘The facts of the present case are really very simple, but I hope that this judgment will be understood by every conveyancing solicitor in the land as giving them warning, loud and clear, that a conveyancing technique which may been effective in the old days to convey large property from one vendor to one purchaser will lead to nothing but trouble, disputes and expensive litigation if applied to the sale to separate purchasers of a single house and its curtilage divided into separate parts. For such purposes it is absolutely essential that each parcel conveyed shall be described in the conveyance or transfer deed with such particularity and precision that there is no room for doubt about the boundaries of each, and for such purposes if a plan is intended to control the description, an Ordnance map on a scale of 1:2500 is worse than useless. The plan or other drawing bound up with the deed must be on such a large scale that it clearly shown with precision where each boundary runs. In my view the parties to this appeal are the victims of sloppy conveyancing for which the professional advisers of vendor and purchasers appear to bear the responsibility. We are not concerned in this appeal with determining or apportioning that responsibility. This court has to try to reduce to order the confusion created by the conveyancers.’
Griffiths LJ said: ‘Although we have had the benefit of a fairly extensive citation of authority, I do not find it necessary to review these authorities, as I regard the legal principle to be applied in this appeal as well established and the cases cited as illustrations of the practical application of that principle. The principle may be stated thus: if the terms of the transfer clearly define the land or interest transferred extrinsic evidence is not admissible to contradict the transfer. In such a case, if the transfer does not truly express the bargain between vendor and purchaser, the only remedy is by way of rectification of the transfer. But, if the terms of the transfer do not clearly define the land or interests to transfer it, then extrinsic evidence is admissible so the court may (to use the words of Lord Parker in Eastwood v Ashton [l915] AC 900 at 913) ‘do the best it can to arrive at the true meaning of the parties upon a fair consideration of the language used.’
References: [1981] 1 All ER 843
Judges: Cumming-Bruce LJ, Griffith LJ
Jurisdiction: England and Wales
This case cites:
- Cited – Eastwood v Ashton HL 1915 ([1915] AC 900)
A contract described the property and referred to a plan attached. The conveyance used four indications: the farm sold was said to be called by a given name, to contain 84 acres odd ‘or thereabouts’, and to be in the occupation of two different . . - Cited – Neilson v Poole ChD 1969 ([1969] 20 P and CR 909)
The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . . - Cited – Grigsby v Melville CA 6-Jul-1973 ([1973] 3 All ER 455)
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 . . - Cited – Kingston v Phillips CA 1976 (Unreported, 1976 Transcript 279)
The court was asked to construe a parcels clause in a transfer: ‘It will be observed that the parcels as there set out are really almost devoid of any particularity; all that is said about the property conveyed is that it is part of the Chicklade . .
This case is cited by:
- Cited – Partridge and others v Lawrence and others CA 8-Jul-2003 (, [2003] EWCA Civ 1121, [2004] 1 P and CR 176)
The appellants challenged a finding as to the width of a right of way over their land as exercised by the respondents.
Held: The appeal was allowed in part. Peter Gibson LJ said: ‘The claimants now have the security that this court is . . - Cited – Adam v Shrewsbury, Shrewsbury CA 28-Jul-2005 (, [2005] EWCA Civ 1006)
The neighbour parties disputed the existence of a right of way over one plot. . . - Cited – Clarke and Clarke v O’Keefe and O’Keefe CA 21-Oct-1997 (, [1997] EWCA Civ 2539, (1997) 80 PandCR 126)
The plaintiff had bought from the vendor a piece of land, bordering a field retained by him. The conveyance plan showed a vegetation boundary with a dotted line, but its precise position on the ground was unclear to them both. Accordingly, they went . . - Cited – Joyce v Rigolli CA 2-Feb-2004 (, [2004] EWCA Civ 79)
An agreement to resolve a boundary dispute does not need to comply with formalities of the Act.
Sir Martin Nourse said: ‘The agreement between the parties served merely to demarcate the boundary between their respective properties. It had not . . - Cited – Hillman and Hillman v Rogers and Rogers CA 19-Dec-1997 (, [1997] EWCA Civ 3069)
The parties disputed rights of way. The court considered the use of extrinsic evidence to construe the conveyance at issue. Robert Walker LJ: ‘It is to my mind clearly a case in which the court needs all the help it can get, and is entitled to make . . - Cited – Hillman and Hillman v Rogers and Rogers CA 30-Apr-1998 (Gazette 07-May-98, , [1998] EWCA Civ 746)
A court order can properly be recalled to correct an error before it had been perfected. This appeal was rejected also as attempt to re-litigate the interpretation of a section in the appeal judgement. . . - Cited – Kenneth Albert Clarke; Marie Elizabeth Clarke v Victor L Oates and Maliga Deri Oates CA 1-Jul-1998 (, [1998] EWCA Civ 1121)
Boundary Dispute . . - Cited – Kenneth Albert Clarke; Marie Elizabeth Clarke v Victor L Oates and Maliga Deri Oates CA 10-Jun-1999 (, [1999] EWCA Civ 1552)
Boundary dispute . . - Cited – Druce v Druce CA 11-Feb-2003 (, [2003] EWCA Civ 535)
The parties disputed the extent of land conveyed. The conveyance described the plan as for identification purposes only but the decsription went on to say that it was ‘more particularly delineated on’.
Held: In the circumstances the plan would . . - Cited – Gillon v Baxter and Another CA 10-Oct-2003 (, [2003] EWCA Civ 1591)
Boundary dispute . . - Cited – Horn and Another v Phillips and Another CA 18-Dec-2003 ([2003] EWCA Civ 1877, )
In a boundary dispute, extrinsic evidence was not admissible to contradict, in this, case the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance. . . - 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 . . - Cited – Mulvaney v Jackson, Gough, Holmes and Holmes CA 24-Jul-2002 (Times 27-Aug-02, , Gazette 03-Oct-02, [2002] EWCA Civ 1078, [2003] P and CR 16, [2002] 44 EG 175, [2003] 4 All ER 83, [2003] 1 WLR 360)
Several cottages and adjacent open land had been in common ownership. The cottages were sold off individually with rights of way over the plot, but the land had been used as garden by the cottagers. The land owner removed a flower bed.
Held: . . - Cited – Pennock and Another v Hodgson CA 27-Jul-2010 (, [2010] EWCA Civ 873)
In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . . - Cited – Dixon and Another v Hodgson and Others CA 20-Dec-2011 (, [2011] EWCA Civ 1612)
The parties were in a boundary dispute. The court warned of the danger of deciding where a boundary is by simply relying on the physical appearance of the ground features to the neglect or exclusion of the title documents. The Recorder had found . .
These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.182549