Re Draper’s Conveyance [1967]
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Re Draper’s Conveyance [1967] 3 All ER 853 is an English land law case concerning co-ownership of land and severance of joint tenancy.
A husband and wife were joint tenants of a property. Following their divorce, the wife sought a summons under Section 17 of the Married Women's Property Act 1882. In her affidavit, she expressed her desire for the proceeds from the sale of the house to be distributed equally or, alternatively, for the husband to pay her half the value. The court issued an order for long-term possession and sale, allowing the husband to remain in possession until his death. The husband passed away before the divorce proceedings concluded. The children of the husband sought severance of the joint tenancy to claim their father's share, preventing their stepmother from being entitled to the entire property.
Plowman J, in delivering the judgment, held that there was a severance in equity as of February 11, 1966, the date of the affidavit supporting the summons. The judge addressed the argument that the court had no power under the Married Women’s Property Act 1882 to sever the beneficial joint tenancy. Plowman J deemed this argument irrelevant, emphasising that the affidavit, not the court, effectuated the severance. This interpretation, according to the judge, aligned with the true construction of Section 36 of the Law of Property Act 1925.
The key point in this case is that the severance occurred through the act of the parties (in this instance, the wife's affidavit), and it was effective in equity. Plowman J clarified that the court's power or lack thereof under the Married Women’s Property Act 1882 was not the determining factor, as the severance was achieved by the parties' actions.
This case highlights the importance of recognising that a joint tenancy can be severed by the actions or expressions of the co-owners, and it need not be solely dependent on the court's authority.
A husband and wife were joint tenants of a property. Following their divorce, the wife sought a summons under Section 17 of the Married Women's Property Act 1882. In her affidavit, she expressed her desire for the proceeds from the sale of the house to be distributed equally or, alternatively, for the husband to pay her half the value. The court issued an order for long-term possession and sale, allowing the husband to remain in possession until his death. The husband passed away before the divorce proceedings concluded. The children of the husband sought severance of the joint tenancy to claim their father's share, preventing their stepmother from being entitled to the entire property.
Plowman J, in delivering the judgment, held that there was a severance in equity as of February 11, 1966, the date of the affidavit supporting the summons. The judge addressed the argument that the court had no power under the Married Women’s Property Act 1882 to sever the beneficial joint tenancy. Plowman J deemed this argument irrelevant, emphasising that the affidavit, not the court, effectuated the severance. This interpretation, according to the judge, aligned with the true construction of Section 36 of the Law of Property Act 1925.
The key point in this case is that the severance occurred through the act of the parties (in this instance, the wife's affidavit), and it was effective in equity. Plowman J clarified that the court's power or lack thereof under the Married Women’s Property Act 1882 was not the determining factor, as the severance was achieved by the parties' actions.
This case highlights the importance of recognising that a joint tenancy can be severed by the actions or expressions of the co-owners, and it need not be solely dependent on the court's authority.
