Mascall v Mascall

Equity will not assist a volunteer who still needs the donor’s help to complete a gift. A gift is complete when the donor has done everything necessary for the donor to do, leaving the donee in control of the remaining steps needed to perfect title. The principle applies to registered land. The donor need not personally apply for registration where the donee can submit the executed transfer and land certificate through the ordinary conveyancing process. Pending registration, the donor holds the legal title on trust for the donee.

The plaintiff executed a transfer of registered freehold property to his son, stated to be for £9,000, and handed over the land certificate. Before registration, the relationship deteriorated and the father sought declarations that the transfer was void and that he was not bound to transfer the property.

The deputy judge found an effective gift in equity, held that the father had done everything within his power, and held the legal title on trust pending registration. The appeal challenged that conclusion, relying on the stated consideration and on the proper application of the authorities concerning imperfect gifts. The central question was whether the donor had done everything required of him to complete the gift.

1. Disposition. The appeal was dismissed with costs. Lawton LJ gave the leading judgment. Browne-Wilkinson LJ agreed and added reasons, and Sir Denys Buckley agreed with both judgments.
2. Stated consideration. The stated consideration of £9,000 did not prevent the transaction being treated as a gift. Browne-Wilkinson LJ held that, since the transfer acknowledged receipt and the arrangement had been explained to the father on that basis, it was not open to him to rely on non-payment.
3. Equitable completion. The governing principle, applied from In Re Rose (1952) Ch 499, is that equity will not aid a volunteer who requires the court’s assistance to complete title. Conversely, the gift is complete once the donor has done everything necessary for the donor to do and the donee controls all remaining steps required to perfect title.
4. Relationship with Milroy v Lord. Milroy v Lord (1862) Vol. 4 of De Gex, Fisher & Jones Reports at page 264 was consistent with that principle. The earlier case concerned an unsuitable transfer instrument and a power of attorney which could not be used contrary to the settlor’s wishes. Its true meaning was that the settlor had to do everything necessary for the settlor to do, not every formality required to complete legal registration.
5. Application. The father had intended the transfer, executed it, and handed over the land certificate. Stamping and registration were, in the ordinary conveyancing process, matters for the son. The argument based on section 18 of the Land Registration Act 1925 failed: the father’s ability to apply for registration did not mean that he had another necessary act to perform. The legal title was therefore held on trust for the son pending registration, and the subsequent return of the documents by the Stamp Office did not alter the position.

1. Court of Appeal (Civil Division): [1984] EWCA Civ 10, 13 June 1984. Appeal dismissed with costs.
2. High Court, Chancery Division: On 11 March 1983, the deputy judge refused the declarations sought, found that there had been an effective gift in equity, and held that the father held the legal title on trust pending registration.