Wright v Gibbons

Wright v Gibbons - [1949] HCA 3 - HCA 1949 case summary — Zoe

[16]

All the authorities concur in stating that alienation of his interest by a joint tenant to a stranger severs the joint tenancy so as to produce the result stated: see, for example, Lyttleton, Treatise of Tenures, (1841), ss. 292, 304; Williams on The Law of Real Property, 1st ed., pp. 132, 133, repeated in subsequent editions; Halsbury's Laws of England, 1st ed. (before the Law of Property Act 1925), vol. 24, p. 204. But in the present case two of the three joint tenants have attempted to alienate their interests to one another. The learned trial judge held that there was no true alienation, but that the cross-transfers left the two parties to that transaction just as they were. His Honour said: "It seems to me that such a transfer could operate nothing. Each party would be at once giving and receiving the same thing. It would be a futility." But this statement, with all respect to the learned judge, assumes rather than proves the proposition which is in question. If the transfer leaves A and B as they were, that is as joint tenants, with the same interests, then there is obviously no creation of a tenancy in common. But the question whether the transfer does so leave them, or whether it operates so as to make the joint tenants tenants in common is just the question to be decided. It is true that if one joint tenant A successfully transferred to another joint tenant B his interest as a joint tenant and B successfully transferred to A his interest as a joint tenant, the parties would be left just where they were, because the interest of each joint tenant is absolutely identical. But no transfer of an interest as a joint tenant so as to make the transferee a joint tenant with other joint tenants is possible when the transferee is a stranger to the joint tenancy. The transfer, if it could be effective, would destroy unity of time and unity of title so far as the interest of the transferee was concerned. Therefore he could not be a joint tenant with the other original joint tenants. No joint tenant can alienate to a stranger so as to make that person joint tenant with his co-tenants, but he can alienate so as to make that person a tenant in common with his co-tenants. In the present case the question is whether such an alienation to another joint tenant is possible.

[27]

The material facts may be briefly stated. At the relevant date - 6th December 1945 - the plaintiff Bessie Melba Gibbons, Olinda Gibbons and Ethel Rose Gibbons were registered under the Real Property Act as the proprietors of an estate in fee simple as joint tenants of the land the subject of this action. And on the date mentioned they executed a memorandum of transfer in the following terms: - "I, Ethel Rose Gibbons of Hobart in Tasmania spinster and I, Olinda Gibbons of Hobart in Tasmania spinster each being registered as the proprietor of an estate in fee simple in one third share as joint tenant with Bessie Melba Gibbons, subject, however, to such encumbrances, liens, and interests as are notified by memorandum underwritten or indorsed hereon, in all that piece of land situated in the City of Hobart containing eighteen perches and two tenths of a perch be the same a little more or less and being the land comprised and described in certificate of title volume 328 folio 93 subject to memorandum of mortgage No. 75757 to the Bank of Australasia to secure advances not exceeding two thousand three hundred pounds In consideration of the transfer to the other of us by the transferror of her one third share in the said joint tenancy I the said Ethel Rose Gibbons do hereby transfer to the said Olinda Gibbons all my one third share estate and interest in the said piece of land as tenant in common with the said Bessie Melba Gibbons and myself of land above described and I the said Olinda Gibbons for the consideration aforesaid do hereby transfer to the said Ethel Rose Gibbons all my one third share estate and interest in the said piece of land as tenant in common with the said Bessie Melba Gibbons and myself And it is hereby declared that the value of the interest of the said transferrors does not exceed the sum of three hundred and fifty pounds. In witness whereof we have hereunto subscribed our names this sixth day of December 1945." This transfer was only registered on 21st January 1946. The defendants contend that this document effected a severance of the joint tenancy.

[46]

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 [1] . 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.

[54]

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 [1] ). 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 a glance

Court

Decision date

Before

Source

Judgment (57 paragraphs)

Parties