||All England Reporter
|| All ER (D) 170 (Jul)
|| EWCA Civ 974
||Court of Appeal, Civil Division
Sir Andrew Morritt V-C, Rix LJ and Sir Swinton Thomas
||John Randall QC and Catherine Rowlands (instructed by Dickinson Parker Hill) for the claimant.
||Mark Cunningham QC and Abid Mahmood (instructed by Michael Lee & Co) for the defendants.
||11 July 2002
Trust and trustee - Resulting trust - Transfer of property - First defendant transferring property to claimant without declaration of trust - Claimant seeking possession of property as sole registered proprietor - Judge finding no evidence of constructive or resulting trust - Judge finding first defendant unable to rebut presumption of advancement on grounds of illegality - Whether judge in error - Whether first defendant transferring only legal interest in property and retaining beneficial ownership.
Whilst the court would usually construe a transfer of property as constituting a disposal of the legal interest and, by implication, of the beneficial interest too, extrinsic evidence might be relied on to show that a conveyance in form absolute had been only for a limited purpose for which a transfer of the legal estate had been both sufficient and all that had been intended. It would be neither unusual nor of itself improper to transfer the legal estate in land to enable the transferee to raise money on its security. If that had been the true nature of the transaction then the equity of redemption in the property would be held on a resulting trust for the transferor.
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