Druce v Druce

In construing a conveyance, the court reads the instrument as a whole. A plan attached for identification only normally cannot override an express measurement in the parcels clause. If the conveyance is ambiguous, extrinsic evidence may identify the land, but cannot contradict an express term. A Tomlin order settling claims against a third party does not, without clear language, determine unresolved ownership disputes between co-defendants. Estoppel by representation requires a representation, reliance and detriment. Joint conduct pursuing a common claim, or correspondence read in context, may not satisfy those requirements.

Alan Druce appealed from an order of the High Court, Chancery Division, dated 24 April 2002, which effectively determined a boundary dispute in favour of his father, Roger Druce.

The dispute concerned whether a 1976 conveyance gave Alan only plot B, with a frontage of about 90 feet, or plots A and B, with a frontage of about 189 feet. Alan alternatively relied on a 1991 Tomlin order settling proceedings brought by Edwin Druce and on estoppel by representation arising from joint conduct in earlier proceedings and correspondence in 1992. The appeal therefore concerned construction of the conveyance, the effect of the Tomlin order, and estoppel.

Arden LJ gave the judgment. Morland J and Thorpe LJ agreed.

1. Tomlin order. The order was intended to settle Edwin Druce’s claims against Alan and Roger. Alan and Roger were making common cause, and their claims between themselves were not released by the settlement. The transfer of Edwin’s assets to Roger did not acknowledge that Alan owned plot A or confer on him any right that he did not already possess under the 1976 conveyance. The withdrawal of the rectification claim had no separate dispositive effect. The parties’ tax objectives could not alter the express wording.
2. 1976 conveyance. Where a plan is attached for identification only, the verbal description normally prevails. Where land is described by reference to a plan, the plan may prevail, as illustrated by Eastwood v Ashton [1915] AC 900. Where both forms of wording appear, the effect depends on construction of the conveyance as a whole. The wording here made the plan non-controlling.
3. The conveyance became ambiguous when the earlier conveyance plans were considered. Extrinsic evidence was therefore admissible to identify the parcels, but it could not contradict the express 90-foot measurement or transform the plan into the controlling document. The fencing, the 1975 agreement, the non-scale nature of the plan and the surrounding physical evidence established that Alan received only the 90-foot plot. The distinctive boundary kink was peripheral and yielded to the clearer evidence.
4. Estoppel. The joint instructions in the earlier proceedings were not a representation that Alan owned plot A, and Alan did not rely on them to his detriment. The 1992 correspondence had to be read as part of a proposed transfer, not as confirmation of existing title. Alan had sufficient time to seek rectification before Edwin’s death, and the alleged lost opportunities were not attributable to reliance on Roger’s statement. The trial judge’s findings were not open to challenge. The appeal was dismissed.

1. Court of Appeal (Civil Division): On 11 February 2003, the court dismissed Alan Druce’s appeal. The judgment is reported under [2003] EWCA Civ 535.
2. High Court, Chancery Division: Mr Roger Englehart QC, sitting as a Deputy High Court Judge, made an order dated 24 April 2002 which effectively determined the boundary dispute in Roger Druce’s favour.