Re Draper's Conveyance

Re Draper’s Conveyance
Re Draper’s Conveyance
Court	High Court, Chancery Division
Full case name	In re Draper's Conveyance Nihan v Porter and Another;
Decided	18 October 1967
Citations	[1969] 1 Ch 486; [1968] 2 WLR 166; [1967] 3 All ER 853
Case history
Prior action	none
Subsequent action	none
Court membership
Judge sitting	Plowman J
Case opinions
	Held: there was severance in equity with the affidavit supporting the summons
Keywords
	co-ownership: joint tenancy: severance; matrimonial law; sworn affidavit for half interest; untimely death

Re Draper’s Conveyance [1967] is an English land law case, concerning co-ownership of land.

Facts

A husband and wife, joint tenants, divorced and she issued a summons under the Married Women's Property Act 1882, section 17 for the house to be sold and proceeds split between them. She swore an affidavit saying she wanted proceeds to be ‘distributed equally; alternatively, that [the husband] pay me one half the value ...’. The court issued between the parties an order for long-term possession and sale was such that the husband could stay in possession until his death. He died before divorce proceedings were finished. The children of the husband wanted there to be severance so they could claim the father’s share, and not have their stepmother entitled to the whole. The question was whether a severance of the joint tenancy was effective.

Judgment

Plowman J held there was severance in equity with the affidavit supporting the summons on 11 February 1966. He noted counsel’s argument that the court has no power under the Married Woman’s Property Act 1882 to sever the beneficial joint tenancy. That was irrelevant because the affidavit severed, not the court. That was the true construction of Law of Property Act 1925, section 36.

Distinguished in

Nielson-Jones v Fedden [1975] Ch 222, EWHC (tacitly)^[1]

Applied in

Quigley v Masterson [2011] EWHC 2529 (Ch)^[1]

References

^ ^a ^b "Index card in re Draper's Conveyance - ICLR".

[iclr-1] "Index card in re Draper's Conveyance - ICLR".

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