In Mascall v Mascall ((1984) 50 P & CR 119, CA (Eng)) a father agreed to give his son a house. He refused to accept payment for it. About five years later, the son wanted to regularize the situation and he persuaded his father to transfer title to the house to him. The father handed over an executed transfer and the Land Certificate. The son then sent the document to the Inland Revenue for payment of the Stamp Duty. A delay occurred and this prevented completion of the registration of the son as proprietor. During that period, the father changed his mind and sought a declaration was void. This failed. The English Court of Appeal relied on Re Rose. The father had followed the appropriate procedure and had done all that he lay within his power to transfer title to his son.
Lawton LJ said:
[I]in the course of Re Rose, Rose v. Inland Revenue Commissioners, Jenkins L.J. pointed out that the statement that a failed transfer cannot be construed in any circumstances as a trust was a statement which was much too wide. He qualified the proposition by saying that, if the effect in law is that the donor holds the legal interest for the benefit of the donee, in those circumstances there is a trust to which the court will give effect.
In my judgment, that is the situation here. The plaintiff had done everything in his power to transfer the house to the defendant. He had intended to do it. He had handed over the land certificate. He had executed the transfer and all that remained was for the defendant, in the ordinary way of conveyancing, to submit the transfer for stamping and then to ask the Land Registry to register his title … He had done everything in his power in the ordinary way of the transfer of registered property and, in the ordinary way, it was for the defendant to get the Land Registry to register him as the proprietor of the property.’ (at 125 – 6).
Browne-Wilkinson L.J. explained the rationale behind this approach:
‘The basic principle underlying all the cases is that equity will not come to the aid of a volunteer. Therefore, if a donee needs to get an order from a court of equity in order to complete his title, he will not get it. If, on the other hand, the donee has under his control everything necessary to constitute his title completely without any further assistance from the donor, the donee needs no assistance from equity and the gift is complete. It is on that principle, which is laid down in Re Rose, that in equity it is held that a gift is complete as soon as the settlor or donor has done everything that the donor has to do, that is to say, as soon as the donee has within his control all those things necessary to enable him, the donee, to complete his title.’ (at 126)
Michael Lower
