OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM:
HUNTINGTON COUNTY COURT
FROM: HIS HONOUR JUDGE HALL
Strand London WC2 |
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B e f o r e :
and
LORD JUSTICE MILLETT
and
LORD JUSTICE THORPE
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BARCLAYS BANK Plc | ||
v | ||
ESTATES & COMMERCIAL LTD & anr |
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WC2
Telephone No: 071-404 7464
Fax No: 071 404 7443
Official Shorthand Writers to the Court)
MR G MITCHELL (instructed by Harris, Rosenblatt & Kramer DX 196 London) appeared on behalf of the plaintifs
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Crown Copyright ©
LORD JUSTICE MILLETT: This is an appeal by the second defendant, Mr Arthur Bensley, from an order of his Honour Judge V Hall, sitting in the Peterbourough County Court on 5th October 1994, when he made an order for possession of a bungalow and land at 18a Silver Lane, Needleworth, Cambridgshire (the property) in favour for the plaintiffs Barclays Bank (the bank). The first defendant Estates Commercial Limited is a company which is in liquidation; it has played no part in these proceedings. The bank has a first legal charge on the property. It seeks an order for possession. Mr Bensley is and has at all material times been in possession of the property. He claims an unpaid vendor's lien on the property ranking in priority to the bank's legal charge.
Three issues were argued before the judge at the trial: (1) is Mr Bensley entitled to an unpaid vendor's lien? (2) is he estopped from asserting such a lien? (3) is the lien void for want of registration under Section 4 (5) of the Land Charges Act 1972. The judge held that in all the circumstances Mr Bensley was not entitled to a lien so that the other questions did not arise, but he held that if Mr Bensley had been entitled to such a lien he would not have been estopped from asserting it, and that it would have constituted an overriding interest under Section 71(1)(g) of the Land Registration Act 1925. The judge also held that the lien would not have been avoided for want of registration under the Land Charges Act 1972 because the land had become registered land by the time of the hearing. Mr Bensley appeals on the first of the three issues that I have mentioned. The bank does not cross-appeal and has not served a respondent's notice and accordingly accepts the judge's findings on the second and third issues.
The facts are in relatively small compass. On 17th December 1985 Mr Bensley conveyed the property to his son, Noel Bensley, by way of sale, for the sum of £70,000. The conveyance contained a consideration and receipt clause but in fact only £19,000 was paid and the balance of the purchase money was left outstanding on completion. Mr Bensley and his wife remained in occupation of the property. At the trial Mr Bensley gave evidence of what happened. His evidence was unchallenged. I will read some passages from the judge's judgment. Mr Bensley told the judge:
"In 1985 I was in overdraft at the bank. After paying off the loan at the bank I was in credit. Before then I was doing the remainder and spent my money on the bungalow. . . In 1985 I was on friendly terms with my son. My wife was still alive then. . . I spoke to my son because the bank was pressing me for money. He said he could get it and I left it with him. He paid me £19,000. This was not all that it should have been. I did not receive any more money".
Having said that the balance of £51,000 was due, Mr Bensley continued:
"I had every faith that I would get the money from my son and I took the risk. I relied on him to honour the debt. If the property was developed I expected him to pay the money. It was not a precondition at all. There was every reason to think that the property was to be developed. . . I knew I was not going to get the £70,000 immediately. I didn't require it immediately".
Later he said:
"It was agreed between us in that in due course I would receive the balance of £51,000 and that if the land was developed we would share the profit. No definite time was fixed for repayment but I anticipated I would be paid on redevelopment and all the formalities were left by me to my son in whom I had trust".
And later still:
"When the property was redeveloped the £51,000 would come out first and then we would share the balance. If he could afford to pay it to me before development I would get it. If not then I would get it afterwards. . . I really thought my son would pay me before or on redevelopment".
It is clear from that evidence that the consideration for the sale was £70,000 together with a half-share in the profits on the redevelopment of the site, that the balance of £51,000 thousand was left outstanding on completion; and that this sum was payable whether or not redevelopment took place. Redevelopment was not a precondition of payment. No time was agreed for payment; accordingly, as a matter of law, the money was payable on demand. Both parties expected
that the property would be redeveloped and sold off in plots, and that this would provide the son with a means of payment, but it was also understood that if the son was able to pay the £51,000 sooner he would do so. It is also clear that Mr Bensley and his wife were to be permitted to remain in occupation of the property rent-free until possession was required for the purposes of the contemplated redevelopment.
On 12th November 1987 the son conveyed the property to the company, the first defendant, for £150,000. This was done, apparently, without the knowledge or consent of Mr Bensley. There is no evidence that the £150,000 was actually paid. On 11th January 1988 the son contemplated mortgaging the property to a financial institution. He prevailed upon Mr and Mrs Bensley to sign a letter to the proposed lender. They signed it after having received advice from their solicitor, a Mr Few. The letter contained the following passages:
"We understand that you may be obtaining a first legal charge over the Property from the Company, which owns the freehold of the Property, and that in reliance on the information confirmations and agreements contained in this letter, you will not require the Company to arrange for us to vacate the Property, which we occupy, before taking such legal charge.
We have occupied the property since the bungalow was erected thereon in 1981, notwithstanding the fact that the Property was sold to our son. . . On 17th December 1985, and that he sold the Property to the Company on 12th November 1987.
Since 17th December 1985 we have occupied the Property as the guests of Mr Noel Bensley and subsequently, of the Company. Neither of us has paid any rent, licence fee or other moneys to Mr Noel Arthur Bensley or the Company in respect of our occupation. "
And:
"We confirm that neither of us have any tenancy nor any other legal or equitable interest in, or rights over, the Property or any part either by virtue of our occupation of the Property or otherwise.
We jointly and severally agree that, if either of us is or both of us are still in occupation of or if any furniture goods or chattels belonging to either or both us at the property, in the event of your serving notice on us are at the Property that bona fide demand has been under the legal charge referred to above, we shall fortwith vacate the Property and remove all such furniture and other goods and chattels".
The letter was counter signed by Mr Few who confirmed that he had advised Mr Bensley and his wife of the full meaning and implications of the letter and that they understood the same. The letter neglected to mention the fact that the son had not paid the full amount of the purchase money. The judge rightly took the letter as clear evidence that Mr Bensley had no idea that he might have an unpaid vendor's lien. When asked why he did not mention to Mr Few the fact that a large part of the purchase money remained outstanding, he said that he thought it was irrelevant. There can be no doubt that had the institution to which the letter was addressed taken a legal charge upon the property Mr and Mrs Bensley would have been estopped from asserting against the lender any unpaid vendor's lien or other equitable interest in the property. Had Mr Bensley mentioned to Mr Few the fact that he not been paid the full amount of the purchase money by his son and had Mr Few recognised that Mr Bensley in consequence retained an unpaid vendor's lien, he would no doubt have advised Mr Bensley that he could not sign this letter and assert the lien. But the transaction did not proceed. Instead it was decided to mortgage the property to the bank. Negotiations obtaining an advance from the bank began in May 1988. On 9th December 1988 the company granted the bank a first legal charge upon the property. The bank was never shown the letter of 11th January 1988.
By this time, Mr Bensley's wife had died Mr Bensley was still in occupation of the property. Astonishingly, the bank made no enquiry of Mr Bensley but proceeded to make the advance to the first defendant and take a first legal charge under the impression that the property was vacant. Apparently it was the policy of the bank not to make enquiries of person inactual occupation of land offered as security where the bank was only granting a bridging loan or other short-term finance with the intention that its advance should shortly be replaced by long term finance from another institution. I find that surprising. It means that the bank consciously took the risk that there might be someone in actual occupation with a legal or equitable interest in the property which would gain priority over the bank's security and any security to the institution which might make the long-term advance on the security of
the property, and which might be expected to make full enquiries before making its advance.
In February 1989 the company prepared an appraisal of its plans for the redevelopment of the property together with adjoining land and hawked it around lending institutions, but was unsuccessful in obtaining any finance for the proposals. Before us counsel for the bank has placed strong reliance on the documentation in question despite the fact that was not known to Mr Bensley. It came into existence, of course, after the date of the bank's legal charge, but it is evidence, if further evidence were needed, of the fact that from the very outset Mr Bensley and his son contemplated that the son would attempt to carry out the redevelopment of the property together with adjoining property, and that this might well involve granting mortgages to financial institutions and the sale of the property in lots to the ultimate purchasers.
On 22nd May 1989 the title to the property was registered, it now being situated in an area of compulsory registration. The first defendant was registered with title absolute; the bank was registered as owner of a registered charge.
The judge found that Mr Bensley was not entitled to any unpaid vendor's lien for two main reasons: First, because Mr Bensley, he found, was not looking to the property as security for the balance of the purchase money but to the proceeds of the intended redevelopment; secondly, because the letter which he wrote in 1988 was evidence of his intention that the property could be mortgaged free of any lien or charge in his own favour. Before us counsel for the bank has advanced a third ground. Relying upon the proposed scheme of development, he submits that the proposal that the property should be developed and sold in plots is inconsistent with the retention by Mr Bensley of an unpaid vendor's lien.
Before examining those arguments in more detail I should refer to the law, which is not, I think, in doubt. As soon as a binding contract for sale of land is entered into the vendor has a lien on the property for the purchase money and a right to remain in possession of the property until payment is made. The lien does not arise on completion but on exchange of contracts. It is discharged on completion to the extent that the purchase money is paid: Re Birmingham [1959] Ch. 923, cited with approval in London Cheshire Co. V Laplagrene Co. [1971] 1Ch. 499 p514 Even if the vendor executes an outright conveyance of the legal estate in favour of the purchaser and delivers the title deeds to him, he still retains an equitable lien on the property to secure the payment of any part of the purchase money which remains unpaid. The lien is not excluded by the fact that the conveyance contains an express receipt for the purchase money.
The lien arises by operation of law and independently of the agreement between the parties. It does not depend in any way upon the parties' subjective intention. It is excluded where its retention would be inconsistent with the provision of the contract for sale or with the true nature of the transaction as disclosed by the documents. It is also excluded where, on completion, the vendor receives all that he bargained for: Capital Finance Co Ltd v Stokes [1969] 1 Ch. 261 and Congresbury Motors Ltd Finance Co Ltd.[1971] Ch.81 in each of those cases the vendor took a legal charge to secure payment. The unpaid vendor's lien was held to be excluded notwithstanding that the charge later became void for want of registration. In Williams on Vendor and Purchaser 1936 edition, p 984, there is a passage which deals with the exclusion of the lien. It is as follows:
"The vendor may, however, waive or abandon his lien for the unpaid purchase-money, and his intention to do so may be either expressed or implied from the circumstances of the case".
After dealing with express waiver or abandonment the author continues:
"Where such waiver or abandonment is sought to be implied, the onus lies on those who deny the existence of the lien, which arises by the rule of equity in the absence of stipulation to the contrary; the question is one of the parties' intention, to be determined by the documents they have executed and the circumstances of the case; and the test is, whether they have in effect agreed that the vendor shall have some other security or mode of payment in substitution for his lien".
As the authorities demonstrate the test is an objective one. The question is: What intention is to be attributed to the parties from the transaction into which they have entered? In Snell's Equity 29th edition 1990, p 465, the author writes:
"Occasionally, however, the vendor will have no lien. If he receives all that he bargained for, e.g. If he sells the property in consideration of the purchaser giving him a promissory note or a bond to pay him an annuity, and the promissory note or bond is duly given, there will be no lien on the property sold, even though the note is not met at maturity or the annuity is not paid. Similarly, the lien is lost where the vendor takes a mortgage for the money, even if the mortgage later becomes void against successors in title for want of registration. Moreover, the nature of the contract may exclude the vendor's lien, as where the existence of a lien would prevent the purchaser from selling the property, or where the intention of the parties is that the purchaser shall resell or mortgage the property and pay off the vendor out of the proceeds;"
The authority for the last proposition is re Brentwood Brick and Coal Co. (1876) 4 Ch D 562. In my opinion that case does not support the proposition for which is cited, which is too widely stated and is inconsistent with the reasoning in Kettlewell v Watson (1884) 26 Ch D 501. In the leading authority of Winter v Lord Anson (1827) 3 Russ. 487 the Lord Chancellor, Lord Lyndhurst, reversing the Vice Chancellor, held that the taking of a bond for purchase money does not exclude the lien. He said:
"The question is, whether, under the circumstances of this transaction, the vendor retained a lien upon the premises sold to the vendee for that portion of the purchase-money which was secured by the bond. . . In general, where a bill, note, or bond is given for the whole or any part of the purchase-money, the vendor does not lose his lien for so much of the money as remains unpaid. The circumstance that in these cases the money is secured to be paid at a future day, does not affect the lien. . . .
That circumstance does not appear to me to afford such clear and convincing evidence of the intention of the vendor to rely, not upon the security of the estate, but solely upon the personal credit of the vendee, as would be necessary in order to get rid of the lien. It would not be inconsistent with an express pledge; and I do not perceive why it is at variance with the lien resulting from the rules of a court of equity".
He summed up his decision by saying:
"As in this case, then, there was no agreement for the extinguishment of the lien, and as, in my judgment, there is nothing in the transaction itself, as evidenced by the instruments, leading to a clear and manifest inference that such was the intention of the parties, I think it should be declared, that the Plaintiffs have a lien upon the estate in question for the residue of the purchase-money".
That, in my opinion, is clear authority for the fact that the intention of the parties is to be objectively ascertained from the documents they have executed and that what is required to execute the lien is that there should be a clear and manifest inference that it was the parties' intention to exclude it. In Brentwood Brick and Coal Company (1876) 4 Ch D 562, the vendor executed a conveyance of land to a company in consideration of a sum of £6,000 in cash and £2,000 in fully paid out shares. The £6,000, however, was expressed to be:
"£6,000, to be paid to the appellant as thereinafter mentioned, that was to say, 50 per cent of all sum or sums of money received or to be received by the company on the sale of shares, and the like sum of 50 per cent. Upon all money by way of capital to be at any time borrowed by the company until the payments so to be made to the vendor should amount to the said purchase-money or sum of £6,000, "and the conveyance was then executed" in consideration of the said sum of £6,000 to be paid to him in manner thereinbefore stated".
The company went into liquidation having borrowed no money and issued no shares. The vendor claimed a lien. In the course of argument Lord Justice James asked "For what do you claim a lien? £6,000 to be paid in this way is a very different thing from
£6,000 to be paid down". In his judgment he said: "The vendor agreed to receive his purchase-money if and when capital should come in. He got for his property a charge upon and a right to the capital of the company to the extent of £6,000 when it came in. To my mind it is clear that he intended to rely on that fund for payment, and intended that the company should have the means of borrowing. This is quite inconsistent with a lien which would probably make the company unable to pledge their property".
Lord Justice Baggallay agreed, saying: "Here, I think, it is evident that the party selling did not intend to rely on the security of the estate but on the funds of the company". It is clear that the case would have gone the other way if the consideration had been £6,000 simpliciter, even though it was obvious to both parties that the company would have no means of paying the £6,000 unless it was able to borrow money or issue shares to that amount. The fact that the parties contemplated that the purchase price would be paid out of money raised by borrowing or issuing shares was neither here nor there. What was determinative was that the consideration expressed in the conveyance was not £6,000 simpliciter but £6,000 to be paid if and when the company borrowed or issued shares to that amount. In Parrott v Sweetland (1834) 3 MY.& K. 656, a case on which counsel for the appellant strongly relied, the question was whether the vendor retained an unpaid vendor's lien where he had agreed to sell the property in consideration for payment of an annuity of £100 a year. The Master of the Rolls expressed the question as being "whether the transaction between the vendor and vendee was a security for the price or a substitution for the price". He referred to the leading authority, Winter and Lord Anson, said:
"From that passage in his judgment, it is manifest that in Lord Lyndhurst's opinion, the proper way of dealing with questions of this kind is to look at the instruments executed by the parties at the time, and upon them to declare what the meaning of the parties must have been".
He ended his judgment by saying that:
"He was of opinion that it is clear, upon the face of the instruments themselves, that the lady has got everything which she had bargained for, that she was in effect paid by the receipt of the bond, and that the lien therefore does not exist".
All these cases show that the lien arrises by operation of law where its exclusion can be objectively inferred from the terms of the documents and the nature of the transaction.
I turn, finally, to the decision of the Court of Appeal in Kettlewell v Watson (1884) 26 Ch D 501 p 495. In that case the plaintiffs were trustees of a charity. They sold land to Richardson and Watson, who were estate agents, and who bought the land with the intention of selling it in lots for building purposes. The bulk of the purchase money remained unpaid and the plaintiffs retained the Deed of Conveyance in their possession. The estate agents sold the land, to sub-purchasers, who borrowed the purchase money by mortgaging their lots in lots. The plaintiffs then brought an action to enforce their lien for the unpaid purchase money against some of the sub-purchasers. Much of the case is concerned with questions of registration which do not concern us. The importance of the case is that Lord Justice Lindley, delivering the judgment of the court, held that there was an unpaid vendor's lien but that in the particular circumstances of the case, it must be taken to have been waived or abandoned as against sub-purchasers. He said at page 507:
"The prima facie right of an unpaid vendor of land to an equitable lien upon it for the amount of his unpaid purchase money is too well established to be disputed. The right arises whenever there is a valid contract of sale and the time for completing that contract has arrived and the purchase-money is not duly paid. There is no necessity for the vendor to stipulate for the lien; and although the lien arises from, and may in one sense be said to be created by, the contract of sale, still no contract to confer the lien is necessary, and in that sense the lien may be said to arise independently of contract".
It followed that there was no need to register a memorial of the lien because there it was not created by an instrument. He then held that, nevertheless:
"There are circumstances in this case before him which entitle the Appellants to succeed in their contest with the Plaintiffs. These circumstances we now proceed to state. The Plaintiffs were trustees for a charity, and Dibb was their law clerk and agent. They allowed £1500, part of the purchase-money, to remain unpaid. They, nevertheless, expressly sanctioned the registration of the conveyance from themselves to Richardson and Watson. The Plaintiffs left the further completion of the sale entirely to Dibb, and they even authorised him to receive the unpaid purchase-money. He retained the conveyance for them as a security for it, and Mr Denison, the acting trustee, knew this. Dibb is unfortunately dead. But, considering the Plaintiffs' answers to interrogatories, the proved existence of the sale plan early in 1873, the dates of many of the sub-sales, the descriptions of the parcels in them, Dibb's answers to letters written to him by solicitors acting for sub-purchasers and mortgagees, and the dates of these letters, we cannot avoid the conclusion that Dibb knew perfectly well that Richardson & Watson wanted their deed registered, not only to protect themselves, but in order that they might sell the property, and that they intended to sell it, and did sell it in lots, and that he knew that they were selling lot after lot to persons who made no inquiry for the registered deed which he held, and who bought upon the faith that Richardson & Watson were the owners of the property sold and able to sell free from any charge or lien. . . By retaining the deed as he did, Dibb could at any time have interfered and required the sub-purchasers to pay their money to him if he had thought it necessary or expedient to do so; and Mr Denison's evidence shews that Dibb relied on this power as a sufficient protection to the Plaintiffs, his clients. In our opinion the conduct of Dibb induced purchasers of the portions of the estate sold reasonably to believe that Richardson & Watson had power to deal with the estate as absolute owners free from the lien now insisted on; and as he so acted the Plaintiffs, who left everything to him, cannot, in our opinion, assert their lien. . . Even though such purchasers have an equitable title only. Lord Justice Fry appears to us to have attached too little weight to Dibb's knowledge and conduct, and differing from him on this point, we are of opinion that the Plaintiffs are not entitled to enforce their lien against the Appellants, or either of them, and that the action ought to be dismissed against them, with costs both here and below".
In my judgment that was not a case where the existence of the unpaid vendor's lien was excluded. It was a case in which the vendors' unpaid lien was postponed to the equitable interest of the sub-purchasers because such a postponement was necessary consequence of the way in which the vendors conducted themselves through their agent, Mr Dibb. The principle of law which fell to be applied was not dissimilar to that of the agent's ostensible authority although it was not, I think, exactly the same. It was rather concerned with the postponement of equitable charges. A party with an equitable charge can be taken to agree to the postponement of his property against any party who is allowed to his knowledge to purchase the land on the faith that it is unencumbered. Having allowed Dibb to deal with the land on the footing their purchasers were selling as absolute owners free from the lien now insisted on, the plaintiffs could not assert their lien against the sub-purchasers.
I have little doubt, however, that the plaintiffs could have asserted against their immediate purchasers so that, for example, had the purchasers become bankrupt their trustee in bankruptcy could not have sold the land to sub-purchasers and retained the proceeds of sale for the benefit of the unsecured creditors would have been bound to account for the proceeds of sale to the plaintiffs in satisfaction of the unpaid vendors lien. The lien would have been overreached so that it attached to the proceeds of sale rather than the land itself.
I return to the judges judgment in the present case. His findings of fact are to be found from page 36 of the judgment onwards. He began by asking himself the following question: "What was the intention of the parties at the time of the sale in 1985?" He answered that question by considering the subjective intentions of the parties. In my judgment he applied the wrong test. Mr Bensley, as a vendor, retained the lien by operation of law unless there was something in the transaction itself which would lead to the necessary inference that the parties must objectively be taken to have excluded the lien. Mr Bensley and his son, almost certainly had no idea that equity would hold Mr Bensley entitled to an unpaid vendor's lien. That, however, is irrelevant.
In my view, therefore, the fact that the vendor expects the purchaser to sell the property in lots free from encumbrance is not enough to exclude the lien, though it may postpone it to the interests of the sub-purchasers by causing it to attach to the proceeds of sale of the land rather than the land itself.
The judge then turned to consider the circumstances in which the property was sold by Mr Bensley to his son against part-payment of the purchase price. He said that Mr Bensley knew that he would receive something from his son but not precisely how much. That is accurate but so far as it goes, but the judge recognised that there was a minimum sum of £51,000 which was due in any event. He continued:
"That sale was against the background of a proposal to develop the land on which the property was situated and other land contiguous to it. I find as a fact that it was that development that Mr Bensley was looking to for the balance of his purchase price. He would receive the first £51,000 and the balance of the development profits would have been split equally between the second Defendant and his son".
If the judge was intending to find that the purchase money was to be paid out of the proceeds of the redevelopment and not otherwise, in circumstances which would then be not dissimilar to those which arose in Brentwood Brick and Coal Company case, he was, in my judgment wrong. Such a finding would not be open to a judge in the light of the evidence that the redevelopment of the property was not a precondition of the sons' liability to pay balance of the £51,000 and that was to be paid in any event. The parties, in all probability, required that it be paid out of the proceeds of the sale. I doubt very much that the judge was intending, in fact to find that the proceeds of the redevelopment were to be the sole source of the payment. Secondly the judge said:
"I find as a fact that at no time was the second Defendant specifically looking to the property as security for the payment of the balance of his purchase price. He was prepared to trust his son do to the decent thing by him".
That is plainly a finding of Mr Bensley's subjective intention, as such, and was not a relevant finding. The question the judge had to consider was the competence. Since the unpaid vendor's lien arose by operation, the question was whether there was anything in the transaction or the documents which were executed to give effect and which would lead to the necessary inference that the parties must be taken to have excluded the existence of an unpaid vendor's lien. The judge also relied upon the letter written by Mr Bensley in 1988 and said:
"I find that letter simply records no more than the factual situation as Mr Bensley and his late wife then believed it to be and that is the question of unpaid vendor's lien and matters of that nature were not then in the mind of Mr Bensley and that certainly nothing was mentioned to Mr Few about it".
That is plainly right but not relevant. I then turn to the question of whether there is anything in the present case which would lead to the irresistible inference that Mr Bensley and his son must be taken to have excluded the unpaid vendor's lien. In my judgment there is nothing. Mr Bensley plainly did not receive the whole of the purchase money on completion, nor did he receive all that he bargained for. He received £19,000 out of a minimum of £70,000 and received no other security or means of payment whatever. All that can be relied upon now is the fact that Mr Bensley and his son both contemplated that the land would be developed, if possible, and sold in lots, and that, if so, then Mr Bensley could expect to receive the balance of the purchase money and whatever profit was available out of the proceeds of the redevelopment.
To my mind it follows that Mr Bensley must be taken to be expected to be called upon to subordinate his unpaid vendor's lien to any mortgage which was needed for the redevelopment of the property, but that his consent would be required for such subordination when the time came and would not exclude the existence of the lien in the meantime. I also have little doubt that if the son or his company developed the land and sold the land off in plots and Mr Bensley stood by him and allowed him to do so, rather as the trustees of the charity in that case, that Mr Bensley would not be able to assert his lien as against the sub-purchasers, but as the Lord Chancellor put it in Winter v Lord Anson, speaking of the transaction in that case,
"it would not be inconsistent with an express pledge; and I do not perceive why it is at variance with the lien resulting from the rules of a court of equity."
In the present case it seem to me which the transaction that was contemplated by Mr Bensley and his son 1985 was not at all inconsistent with Mr Bensley having taken an express charge to secure payment of the balance of the purchase money and accordingly it cannot be said to be inconsistent with the intention of the unpaid vendor's lien. I would allow the appeal and substitute the Order of Possession with a declaration that Mr Bensley has an unpaid vendor's lien on the property to the extent to be able to secure the payment £51,000 and that the bank is entitled to possession only upon payment of an unsecured sum.
LORD JUSTICE WAITE: I agree for the reasons stated by my Lord.
LORD JUSTICE THORPE: I also agree.
LORD JUSTICE WAITE: The appeal will be allowed with costs both here and below.