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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> National Provincial Bank v Ainsworth [1965] UKHL 1 (13 May 1965) URL: http://www.bailii.org/uk/cases/UKHL/1965/1.html Cite as: [1965] 2 All ER 472, [1965] UKHL 1, [1965] 3 WLR 1, [1965] AC 1175 |
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Die Jovis, 13° Maii 1965
Upon Report from the Appellate
Committee, to whom
was referred the Cause National Provincial Bank
Limited
against Ainsworth (A.P.), that the Committee had
heard
Counsel, as well on Wednesday the 10th, Thursday the
11th,
Monday the 15th, Tuesday the 16th, Wednesday
the 17th, Thursday
the 18th, Monday the 22nd, Tuesday
the 23d, Wednesday the 24th and
Thursday the 25th,
days of February last, as on Monday the 2nd,
day of
March last, upon the Petition and Appeal of
National
Provincial Bank Limited, of 15 Bishopsgate,
London,
E.C.2, praying, That the matter of the Order set forth
in
the Schedule thereto, namely, an Order of Her
Majesty's Court of
Appeal of the 26th of June 1964, so
far as therein stated to be
appealed against, might be
reviewed before Her Majesty the Queen,
in Her Court
of Parliament, and that the said Order, so far as
afore-
said, might be reversed, varied or altered, and that
the
Petitioners might have the relief prayed for in the Appeal
or
such other relief in the premises as to Her Majesty
the Queen, in
Her Court of Parliament, might seem
meet; as also upon the Case of
Marjorie Patty Ainsworth,
lodged in answer to the said Appeal; and
due con-
sideration had this day of what was offered on
either
side in this Cause:
It is Ordered and Adjudged,
by the Lords Spiritual
and Temporal in the Court of Parliament
of Her Majesty
the Queen assembled, That the said Order of
Her
Majesty's Court of Appeal, of the 26th day of June 1964,
in
part complained of in the said Appeal, be, and the
same is hereby,
Reversed, except so far as regards the
words, " And it
is Ordered that the said Order dated
8th October 1963 be affirmed
", and also except so far
as regards the words, " and
(2) on the common fund
basis the costs to which the said Legal Aid
and Advice
Acts apply incurred on behalf of the Defendant
Marjorie
Patty Ainsworth ": And it is further Ordered,
That the
Judgment of the Honourable Mr. Justice Cross of
the
27th day of March 1963, thereby Discharged, so far as
it
directed that the Defendant Marjorie Patty Ainsworth
should on or
before 27th June 1963 deliver to the
Plaintiffs possession of the
property hereinafter men-
tioned, be, and the same is hereby.
Restored:
And it is further Ordered, That
the Cause be, and
the same is hereby, remitted back to the
Chancery
Division of the High Court of Justice with a Direction
to
make an Order for possession by the Plaintiffs within
28 days of
the premises at 124 Milward Road, Hastings,
and to do therein as
shall be just and consistent with
this Judgment:
And it is also further Ordered,
That the Costs incurred
by the Respondent in respect of the
said Appeal to
this House be taxed in accordance with the
provisions
of the Third Schedule to the Legal Aid and Advice
Act
1949, as amended by the Legal Aid Act 1960.
HOUSE OF LORDS
NATIONAL PROVINCIAL BANK LIMITED
v.
AINSWORTH
(A.P.)
Lord Hodson
Lord
Cohen
Lord Guest
Lord Upjohn
Lord Wilberforce
Lord Hodson
MY LORDS,
This is an
appeal from an order of the Court of Appeal reversing by a
majority
a decision of Cross, J., dated 27th March. 1963, by which he
ordered
the Respondent to give possession of a dwellinghouse 124,
Milward
Road, Hastings, where the Respondent lives, upon the
application of the
Appellant, the National Provincial Bank Ltd.,
who claim to be entitled as
mortgagee to an order for possession.
The
Respondent is a married woman who was deserted by her husband
on
the 17th August, 1957, since when she has continued to make her
home
at the house with her children. On the 25th May, 1956, the
husband was
registered as the proprietor of the freehold property
at 124, Milward Road.
On the
15th March, 1961, the Respondent was granted a decree of
judicial
separation and on the 2nd May, 1961, an order for alimony
was made in
favour of the Respondent and there was also made an
order for maintenance
of each of her children taking into account
the fact that she remained in
occupation of 124, Milward Road rent
free. The house was charged by
the husband to the Appellant bank
in July, 1958, and in April, 1960, a
preceding charge in favour of
a Building Society was discharged as a
result of which the
Appellant became the sole chargee. In November,
1959, the husband
raised from the Appellant nearly £6,000 secured by a
mortgage
on 124, Milward Road, 7, Bank Buildings, Hastings (where he
carried
on business as a car dealer) and a second mortgage on 13,
Devonshire
Road where his mother lived and he himself went to live
on leaving the
Respondent. On 17th December, 1959, the husband
conveyed both 7, Bank
Buildings and 124, Milward Road to a company
called Hastings Car Mart,
Ltd., and the company on the same day
charged the two properties to the
Appellant. The Appellant at once
advanced sufficient to the company to
enable it to discharge the
husband's debt to the Appellant; the husband
becoming a guarantor
of the company's debt to the Appellant. The
company was duly
registered as the proprietor of 124, Milward Road, the
charge
given by the husband in July, 1958, was discharged and the
charge
given by the company in December, 1959, was entered on the
charges
register.
On 2nd
November, 1961, the Appellant issued notice on the company
calling
in the debt, then some £2,308. The company did not comply
with
the demand, and on 10th April, 1962, the Appellant served a
second notice
stating that in default of payment the Appellant
would proceed to exercise
its rights as mortgagee of 124, Milward
Road.
On the 4th
July, 1962, the Appellant issued an Originating Summons
in the
Chancery Division asking for possession of the house but
the
Respondent resisted the claim on the ground that her husband
had deserted
her leaving her in the house. On the 27th March,
1963, Cross, J., decided
in favour of the Appellant but in the
meantime the Respondent had
applied to the Divorce Division for an
order under section 2 (1) of the
Matrimonial Causes (Property and
Maintenance) Act, 1958, setting aside
the conveyance of the house
by the husband to the company on the ground
that it was used to
defeat her claim for maintenance.
Accordingly
Cross, J., did not make an immediate order for possession.
The
Respondent succeeded on her application to the Divorce Division
and
then applied to Cross, J., to vary his order. This he refused to
do
holding that the order of the Divorce Division only operated to
re-vest in
the husband any beneficial interest in the house
immediately previously
held by the company and did not affect the
legal charge to the Appellant,
2
a
purchaser for value without notice of any intention on the part of
the
husband to defeat the wife's claim for financial relief. This
order has
been affirmed by the Court of Appeal and there is no
further appeal from it.
The
subject-matter of the appeal to your Lordships' House is the claim
of
the Appellant for possession of the house and the question to be
decided,
the property being registered land, is whether the
Respondent is entitled to
an overriding interest in reference
thereto within the meaning of s. 70(l)(g)
of the Land
Registration Act of 1925. The section provides as follows:
" All
registered land shall, unless under the provisions of this Act
"
the contrary is expressed on the register, be deemed to be subject
"
to such of the following overriding interests as may be for the
time
" being subsisting in reference thereto, and such
interests shall not be
" treated as incumbrances within the
meaning of this Act, (that is to
" say): -- . . . (g) The
rights of every person in actual occupation of the
" land or
in receipt of the rents and profits thereof, save where inquiry
"
is made of such person and the rights are not disclosed ; . . . '
As a
preliminary to the construction of this section, important
considerations
arise as to the impact of matrimonial relations on
real property rights
generally, quite apart from the rights of
husband and wife inter se.
The
husband is by English law bound to maintain his wife although
the
common law lends her but slender assistance, merely enabling her
to
pledge his credit if he fails in his duty. The Ecclesiastical
Courts pro-
ceeded upon the principle that it is the duty of
married persons to live
together and that this duty should be
enforced by the Court unless it could
be shown that the
complaining party had been guilty of some matrimonial
offence for
which a judgment authorising living apart might have been
obtained
by the other: Weldon v. Weldon (1883) 9 P.D. p. 52 per
Sir James
Hannen, President, at p. 55. The President went on to
cite "the words of
" Blackstone ": " The suit
for restitution of conjugal rights is brought when-
" ever
either the husband or wife is guilty of the injury of subtraction or
lives
" separate from the other without any sufficient
reason, in which case they
" will be compelled to come
together again, if either party be weak enough
" to desire
it, contrary to the inclination of the other." The decree of
the
Court was enforced by imprisonment until obedience was secured
and by
the 22nd section of the Matrimonial Causes Act, 1857, the
jurisdiction of
the Ecclesiastical Courts was carried over into
the Queen's Courts who, as
in Weldon's case (supra),
followed the same principle as their predecessors.
Subsequently
in place of imprisonment as a consequence of failure to obey
a
decree for restitution of conjugal rights orders for money payment
were
made under the Matrimonial Causes Act, 1884. By the Summary
Juris-
diction (Married Women) Act, 1895, power to make orders for
payment of
money in favour of, among other persons, deserted wives
became available
in courts of Summary Jurisdiction and in 1949 by
the Law Reform (Miscel-
laneous Provisions) Act of that year
similar procedure began to be operated
in the High Court. The
matrimonial law did not, however, at any time give
the wife any
property in the house in which she lived with her husband
unless
she could rely upon a settlement. His duty is to live with his
wife
arid to support her but she has no proprietary rights in the
house by virtue
of her status as a wife. She is lawfully there not
by reason of any contract
or licence but simply because she is the
wife. If her husband leaves her
the right which she has to be left
undisturbed is a personal right and does
not attach itself to any
specific piece of property which may at a given
time be the home
in which the spouses have lived together. The husband
may return
or provide accommodation for the wife elsewhere or the relation-
ship
of the spouses may change by the wife losing her right to her
husband's
consortium and to be maintained by him.
So long as
she has not forfeited her rights the Courts have often intervened
to
protect the wife's right to live in the house which she and her
husband
have occupied together. Proceedings are available under
section 17 of the
Married Women's Property Act, 1882, which
enables questions between
husband and wife to be decided in a
summary way. The Court has inter-
vened by injunction to restrain
a husband from entering into a contract
3
for the
sale of the house while his wife and children are living there
until
the husband provided suitable alternative accommodation. Lee
v. Lee
[1952] 2 Q.B. 489 (N) where the Court of Appeal
confirmed an order of a
County Court Judge to this effect. Even
after a separation has been judicially
pronounced and the spouses
are released from their obligation to live together
the Court has
exercised its discretion to make an order in relation to
property
since the subsistence of the marriage tie is sufficient
to confer jurisdiction.
Hutchinson v. Hutchinson [1947]
2 All E.R. 792. Questions have arisen
in considering the extent of
the discretion of the Court under section 17 of
the Act of 1882,
but broadly speaking the view is accepted that the court
has a
discretion to be exercised in the interest of the parties to restrain
or
postpone the enforcement of legal rights but not to vary agreed
or established
rights to property in an endeavour to achieve a
kind of palm tree justice.
In
addition to section 17 of the Act of 1882 section 12 of the same
Act
(now repealed) which gave remedies to a married woman for the
protection
of her separate property was used so as to pronounce in
effect a separation
against a husband who had treated his wife
badly for he was restrained
from entering the home which was the
wife's separate property. Shipman
v. Shipman [1924] 2
Ch. 140.
Whether
proceedings could be taken between husband and wife for
possession
of property outside the terms of the Act of 1882 is no longer of
more
than academic interest since the Law Reform (Husband and Wife)
Act
of 1962 now enables husband and wife to sue one another in tort.
I have
referred in a little detail to some of the decided cases which
bear
on the wife's right to live in her husband's house not only
when he is there
but after he has left her since in those cases
lies the seed which is said to have
germinated so as to give the
wife an equity which is available to her not
only against a
defaulting husband but against third parties. As the Master
of the
Rolls put it in his judgment in the present case [1964] 2 W.L.R.
757
at page 761 " But substantive law has a habit of being
secreted in the
" interstices of procedure " and he
found the answer to the question posed
to be in effect that the
wife's position was such that she could not be
dislodged save by a
purchaser for value without notice of her rights. He
quoted with
approval a paragraph from the report of the Royal Commission
on
Marriage and Divorce (Command 1956 9678 para. 664):
" We
think it has been right to afford this protection to a deserted
"
wife, to allow her to keep a roof over her head ; it would be
shocking
" to contemplate that a husband could put his wife
and children into
" the street, so that he could himself
return to live in the home, perhaps
" with another woman."
But as the
Master of the Rolls himself pointed out the question is not
here
one between husband and wife but it concerns the position of
successors
in title. To put it another way is the property in such
a case no longer
transferable save subject to the clog upon it
created by the wife's irremov-
ability?
Until 1952
it was not thought that the wife's right was other than a
personal
right against her husband which she could not enforce against a
third
party. In Thompson v. Earthy [1951] 2 K.B. 596 Roxburgh
J. had
no hesitation in rejecting a submission that such an
enforceable right existed
even where the purchaser had notice of
the wife's position. It should be
noted that the wife's right
against her husband is not varied by his desertion
of her. He
cannot turn her out capriciously whether he has deserted her
or
not and the observations contained in the paragraph I have cited
from
the Royal Commission's report are applicable to any wife who
is living in
the marriage home. So long as her status as a wife
remains so long do
her rights against her husband survive. She
needs no licence from him
to sustain her.
In 1952.
however a decision of the Court of Appeal in the case of Bendall
v.
McWhirter [1952] 2 Q.B. 466 laid down for the first time that the
wife's
rights were binding on the trustee in bankruptcy of the
husband.
The
majority view (that of Somervell and Romer LL.J.) was that
the
trustee by virtue of his statutory position was subject to the
same special
32792 A 2
4
restriction
as prevented the husband from evicting the wife. The minority
view
propounded by Denning L.J. was that the wife had an equity
which
bound the trustee. The majority view was necessarily
accepted by the Court
of Appeal in the following year in
Bradley-Hole v. Cusen [1953] 1 Q.B. 300
but the
minority view was rejected at p. 306 per Jenkins L.J., the other
mem-
bers of the Court concurring, when he said that the wife's
rights against her
husband are " purely personal ". The
minority view has, however, been
followed in later cases at first
instance so that the wife's right has been held
to be binding on a
subsequent purchaser with notice of the wife's right after
desertion
has occurred (see Street v. Denham [1954] 1 W.L.R. 624)
and
accepted as correct in other cases, e.g. Westminster Bank
Ltd. v. Lee [1956]
Ch. 7.
At first
sight there is much to be said for the majority view that the
trustee
in bankruptcy should be placed in no better plight than
the husband. On-
the other hand, there is no reason why the wife
should be in a better position
if her husband becomes bankrupt
after leaving her than she would have been
if his bankruptcy had
taken place while they were living together. Section
105 (1) of
the Bankruptcy Act, 1914, which gives the trustee discretion
would
not appear to enable the wife to be preferred to the
husband's creditors.
If the
majority view of the Court of Appeal in Bendall v.
McWhirter
cannot be supported on the ground of the special
position of the trustee in
bankruptcy one must look to the wider "
equity " referred to by Denning L.J.
as justifying the
decision. It being conceded that the " equity " is not
an
equitable interest in the land I find difficulty in seeing how
it can operate
so as to affect third parties. The court can
protect itself against sham sales
cf. Ferris v. Weaven
[1952] 2 All E.R. 233, a decision which can be supported
on
that ground, and the court now has power to set aside transfers
of
property made to defeat claims for alimony or maintenance as
happened in
this case.
When there
is a genuine transfer there is no reason why the wife's
personal
rights against her husband, which are derived from her
status, should enter
the field of real property law so as to clog
the title of an owner.
The Master
of the Rolls by way of analogy referred to a number of autho-
rities
dealing with licences coupled with an interest or cases where money
had
been expended by a licensee in occupation of land. Dillwyn
v. Llewelyn
[1862] 4 De G.F. & J. 517 is a well
known example of the latter class of
case where a son spent money
on property of his father by building a house
on it and was held
entitled to a conveyance of the fee simple.
These and
other cases are exceptions to the general rule that a transferee
is
not bound by a licence even if he has notice of its existence. It may
be that
the list of exceptions is not closed but it is, in my
opinion, unnecessary
to examine the various cases which may be
said to have been decided on
grounds which show a departure from
this general rule for in this field the
licence cases are
unhelpful.
To
describe a wife as a licensee, unless that overworked word is
merely
used to describe a person lawfully on land and not a
trespasser, is not only
uncomplimentary but inaccurate. She is not
a person who needs any licence
from her husband to be where she
has a right to be as a wife.
Thomas
v. Sorrell (1673) Vaughan 330 at p. 351 contains the
classic
definition of a licence propounded by Vaughan C.J.:
" A
dispensation or licence properly passeth no interest, nor alters
"
or transfers property in any thing, but only makes an action
lawful,
" which without it had been unlawful."
This shows
the fallacy of the analogy for the wife would not be a trespasser
in
her husband's house in the absence of a licence from her husband.
If one
leaves out of account the authorities on contractual licences
and
examines the nature of the wife's rights as against her
husband the concep-
tion of it as one which affects interests in
land becomes a difficult one.
Looking upon her as an occupant of
the home she has no right to exclusive
occupancy as against her
husband and her own right may be determined by
her own conduct or
by the offer of suitable alternative accommodation (see
5
Hill v.
Hill [1916] W.N. 59). In few cases would it be easy for a
purchaser
to ascertain the true relationship between husband and
wife where the wife
claimed that without just cause her husband
had deserted.
The
duration of the right if it were held to affect the land would be
un-
certain. It would not survive divorce nor would it necessarily
survive a
judicial separation by order of the court which puts an
end to the duty of
cohabitation on both sides. See Harriman v.
Harriman [1909] p. 123. The
•duration of the right is
said to be discretionary during the subsistence
of the marriage
and the discretion is to be exercised either under or
in like
manner with that of section 17 of the Matrimonial Causes Act,
1882.
If the land is transferred to third parties as happened in this
case
no principle would seem to be involved which could guide the
•courts
in the exercise of the discretion as between a deserted wife
and a
purchaser. Equity may not be past the age of child-bearing but
an
infant of the kind suggested would lack form or shape. Counsel
for the
Respondent sought to support the view that equity would
assist his client
to claim a proprietary right in the land by
reference to the language of
Lord Cowper in Dudley v.
Dudley, Pr. Ch. 241 at p. 245:
" Now
Equity is no part of the law, but a moral virtue, which quali-
"
fies, moderates, and reforms the rigour, hardness, and edge of the
"
Law, and is an universal truth; it does also assist the Law where
it
" is defective and weak in the constitution (which is the
life of the
" Law) and defends the Law from crafty evasions,
delusions, and new
" subtilties, invented and contrived to
evade and delude the Common
" Law, whereby such as have
undoubted right are made remediless;
" and this is the Office
of Equity, to support and protect the Common
" Law from
shifts and crafty contrivances against the justice of the
"
Law. Equity therefore does not destroy the Law, nor create it, but
"
assist it."
He
submitted that in the facts of such a case as this where a wife has
been
deserted in this house she has acquired a proprietary right
on the footing
that personal obligations affecting proprietary
rights have been performed.
He further submitted as a general
proposition that where a promise relat-
ing to real property
express or implied is no longer executory so that the
promisee or
lessee has acquired a right in respect of the property a pur-
chaser
with notice of the right or a volunteer with or without notice
can
only take subject to that right.
On the
facts of this case he submitted that the promise ceased to
be
executory on the 17th August, 1957, when the husband deserted
and created
an equity which related to the property and defeated a
purchaser except a
purchaser for value without notice.
The answer
to these submissions is that they have no relation to the
facts of
this case. The husband in deserting his wife did not confer
or
purport to confer on her a right to any property other than she
had had
before he left her. No question of performance of a
promise arises. If
there were an equity it would arise whether or
not there had been any
performance.
Lastly, I
shall refer to the passage cited by the Master of the Rolls
from
Barnhart v. Greenshields (1853) 9 Moore P.C.C.
18 at page 32 where Mr.
Pemberton Leigh (afterwards Lord
Kingsdown) said :
" if
there be a tenant in possession of land, a purchaser is bound by
"
all the equities which the tenant could enforce against the vendor."
The word
"equities" is italicised in the Master of the Rolls'
judgment.
Counsel for the Appellant drew your Lordships' attention
to the case of
Reeves v. Pope [1914] 2 KB 284
where the equity claimed was based on
a personal contract and the
argument based on the dictum from Barnhart
" and
Greenshields was interrupted by Buckley L.J. saying "This
right
" which is claimed is not an interest in the land ".
In his judgment Reading
L.C.J. used these words:
"The
other case Barnhart v. Greenshields contains words
which,
taken by themselves, and apart from the rest of the case,
and also from
6
"
the facts with which the Court was then dealing, would be
certainly
wide enough to cover the proposition. But as Buckley
L.J. has pointed
" out, they must be read as if the words at
p. 32 after ' A purchaser
" ' is bound by all the equities
which the tenant could enforce against
" ' the vendor ' were
' in the land '."
Having
reached the conclusion that the rights which have been referred to
as
those of " a deserted wife " are of their nature
personal rights and such that
they cannot be treated as in any
sense running with the land, I am of opinion
that those cases
which proceed on the basis of an opposite conclusion were
wrongly
decided. Beginning with Bendall v. McWhirter (supra) I
do not
think that the decision can be supported on principle or on
the ground that
a trustee in bankruptcy is in a special position,
for that would involve
putting the wife in front of her husband's
creditors after desertion, a position
which she could not claim to
occupy before desertion. Street v. Denham
(supra), which
proceeded on the footing that the cases of the trustee in
bank-
ruptcy could not be effectively distinguished from the
purchaser, must suffer
the same fate.
The same
applies to the case of Jess B. Woodcock & Sons Ltd. v.
Hobbs
[1955] 1 W.L.R. 152 which seems to have been based on
the footing that the
deserted wife had an equity available against
a purchaser for value with
notice of her occupation so as to make
it discretionary for the court to give
possession to the
purchaser. Parker L.J. in that case, however, saw great
difficulty
in extending the protection given in Bendall v. McWhirter
so as to
give her any rights against a bona fide purchaser
for value whether with or
without notice. In Westminster Bank
v. Lee (supra) and Churcher v. Street
[1959]
Ch. 251 there was no argument but the equity was assumed.
Having
done the best I can to analyse the nature of the right which the
wife
has against her husband which is fundamentally the right relied on
by
the Respondent. I conclude that it does not operate as a clog
on the land
which protects her by operating as a mere equity
against anyone but a
purchaser for value without notice.
I now
approach the construction of the Land Registration Act, 1925,
and
find myself in full agreement with Cross J. and Russell L.J.
in excluding the
right with which we are concerned from the
category of " overriding " interests
in section 70 and
respectfully adopt the first sentence of the first paragraph on
page
772 of the Report where Russell L.J. says: " It seems to me that
section
" 70 in all its parts is dealing with rights in
reference to land which have the
" quality of being capable
of enduring through different ownerships of the
" land,
according to normal conceptions of title to real property ". I
agree
that the right now in question is not of that quality and I
am not prepared to
hold that it is embraced by the language of
section 70.
I have
assumed for the purpose of my conclusion oh the point of
construc-
tion that the wife is " in actual occupation of the
land " notwithstanding the
powerful argument of counsel for
the Appellant that the husband and not
the wife must be the person
in actual occupation. He relied on the cases
decided under the
Rent Restriction Acts where a husband even when he has
deserted
his wife has been treated as still in occupation of the premises
since
he remained in possession of them through his wife. The
statutory tenancy in
these cases still survives cf. Brown v.
Draper [1944] K.B. 309, Old Gate
Estates Ltd. v.
Alexander [1950] I K.B. 311 and Middleton v. Baldock
[1950]
1 K.B. 657 where the wife was joined as a defendant to
a claim by a landlord
for possession made against a husband, who
had deserted her leaving her in
the house, and was able to defeat
the landlord's claim. I cast no doubt on
the authority of these
cases but do not think they are conclusive on the con-
struction
of the words " in actual occupation " contained in section
70(1)(g)
of the Land Registration Act. 1925. Similar
considerations apply to the
argument based on the cases dealing
with rateable occupation.
I would
accordingly allow the appeal, order possession of the property
124,
Milward Road, Hastings to be given to the Appellant within 28 days
and
discharge the order for costs made against the Appellant in
the Court of
Appeal. No order for costs against the Respondent
having been sought by the
Appellant, no further order is required.
7
Lord Cohen
MY LORDS,
I have had
the opportunity of reading the speeches which have been
prepared
by my noble and learned friends. I agree with them that this
appeal
should be allowed for the reasons they give and can state
shortly the ground
on which I reach this conclusion.
The
question for your Lordships' decision has been conveniently stated
by
Lord Hodson. It is whether the Respondent is entitled to an
over-riding
interest within the meaning of section 7(1)(g)
of the Land Registration Act,
1925, which has already been read to
your Lordships. On the facts of this
case this question raises
only two subsidiary questions:
was the
Respondent in actual occupation of 124, Milward Road
within the
meaning of the subsection?
was her
right as against her husband to remain in that house an
over-riding
interest within the subsection?
Like Lord
Hodson, I am prepared to assume in the Respondent's favour
that
she was in actual occupation, but I find it impossible to hold that
her
right to remain there was an over-riding interest within the
meaning of the
subsection.
It is
common ground that the Respondent's right to remain in the house
is
a mere equity; and that her husband's desertion does not confer on
her
any equitable estate or interest in the house. She could no
doubt have
obtained from a court of equity an injunction
restraining her husband from
dealing with the house so as to
interfere with her enjoyment thereof (see
Lee v. Lee
[1952] 2 Q.B. 489). But she would have been successful
not
because she had any estate or interest in the house or,
indeed, any contract
in relation thereto but solely because of her
personal right against her
husband arising from her status as his
wife. As Russell, L.J., in the
Court below pointed out (see [1964]
2 W.L.R. at page 772) it is the rights
of a person in occupation
which constitute the over-riding interest not the
mere fact of
occupation, and I agree with Russell, L.J., that section 70
is
dealing in all its parts with rights in reference to land which
have the
quality of being capable of enduring through different
ownerships of the
land according to normal conceptions of title to
real property. The right
on which the Respondent must rely is a
personal right as against her
husband and is not of the quality to
which Russell, L.J., refers. In my
opinion, therefore, it does not
constitute an over-riding interest within
section 70 (1) (g).
I
arrive at this conclusion with some reluctance for I recognise
that
the Respondent is an admittedly wronged and deserted wife.
Some protec-
tion to a woman in her position is available in view
of the decision in
Lee v. Lee (supra) but the
existing law I think is in an unsatisfactory state,
particularly
as regards the position of the deserted wife and of third
parties.
The Royal Commission on Divorce called attention to this
point (see Com-
mand 1956—No. 9678 paragraph 664) and your
Lordships' decision may
make it desirable that their
recommendations on the subject in paragraph 685
should be further
considered. See also per Russell L.J. in the present case
at page
776. It would, however, be beyond my province to make any
further
comments on this aspect of the matter.
Lord Guest
MY LORDS,
I
have had the advantage of reading the speech of my noble and
learned
friend, Lord Hodson, and there is nothing I can usefully
add. I agree the
appeal should be allowed.
8
Lord Upjohn
MY LORDS,
The
relevant facts have been fully stated in the opinion of my noble
and
learned friend, Lord Hodson, and I can proceed at once to the
problem
which your Lordships have to consider.
In what
circumstances, if any, is a wife in continued occupation of
the
matrimonial home, which home in law and equity is solely the
property
of the husband and from which he has wrongfully deserted
her, entitled to
stay in occupation of that home against the
wishes of a subsequent purchaser
from or incumbrancer of the
husband.
The home
in question, No. 124, Milward Road, Hastings, is registered
land
and the ultimate solution must depend on the true construction
of
section 70 of the Land Registration Act, 1925. However, as the
question
is of great importance in connection with unregistered
land and furthermore
as it is, in my opinion, proper to approach
the true construction of section 70
against the background of the
general law relating to unregistered land,
I propose to consider
the problem in relation to unregistered land first and
to consider
the construction of section 70 at the conclusion of my Opinion.
The first
essential is to examine the rights and obligations of husband
and
wife inter se. These rights and obligations stem from
two basic concepts
which flow from the status of marriage—
the right and duty of the spouses to live together, and
the duty of the husband to maintain his wife.
If one
spouse refuses to live with the other the latter may obtain a
decree
for restitution of conjugal rights (see Weldon v.
Weldon 9 P.D. p. 52). I need
not quote again the
well known words of Hannen P. nor trace the subsequent
statutory
history of the right of the wife in whose favour a decree of
restitution
has been made to obtain orders for periodical
maintenance in lieu of obtain-
ing an order committing the husband
to prison for failing to obey a decree,
for Lord Hodson has dealt
with this fully in his speech. Neither the Common
Law nor the
Ecclesiastical Law ever went further or gave to the wife any
right
to occupy any particular matrimonial home which was the sole
property
of the husband.
Secondly,
if a husband failed to maintain his wife the common law did no
more
than give the wife the right to pledge her husband's credit for
neces-
saries, though by many statutes a wife has been able to
obtain orders for
maintenance where the husband is shewn to be
guilty of a wilful failure to
maintain her.
But the
law has never adjudicated between the parties where or how they
are
to live. It is for the spouses to decide where and in what state they
and
the family are to live, be it in the Ritz or a caravan. The
choice from time to
time of the matrimonial home is entirely a
matter for decision within the
domestic forum ; though, no doubt,
as Pilcher J. once pointed out (in Dunn
v. Dunn [1949]
p. 98 at 104) where there is a difference of opinion between
the
spouses as to the place of the matrimonial home someone must
have the
casting vote. A wife on entering a matrimonial home, the
property of her
husband, has no rights even inchoate in that home
which the law will
recognise or protect (see Lloyds Bank Ltd.
v. O's Trustees [1953] 1 W.L.R.
1460). But, on the
other hand, having regard to the duty of the spouses to
Jive
together the court does not, during the subsistence of the
marriage,
merely give effect to the strict legal and equitable
rights of a spouse qua
owner of the property as though the
spouses were strangers. Recognising
the obligations of the spouses
to live together the Court will only make orders
with regard to
the occupation of the matrimonial home subject to those
obligations.
Thus in
Hill v. Hill 1916 W.N. 59 Neville J. by interlocutory
injunction
ordered the wife to leave the husband's house, though
it formed the matri-
monial home because the wife was
contumaciously preventing it from being
9
sold, but
suspended the operation of the injunction until the husband
provided
the wife with a suitably furnished house as a home for
the wife and children.
It does not appear that the wife had been
deserted in that case.
In Shipman
v. Shipman [1924] 2 Ch. 140 the Court of Appeal granted
an
injunction restraining a husband from entering the matrimonial
home which
belonged to the wife but there was evidence which would
justify the wife
resisting a decree of restitution. Pollock M.R.
after quoting from the
judgment of Cotton L.J. in Symonds v.
Hallett said at p. 145—"while
" protecting
the property of a wife as a proper subject for protection, we
"
must also regard the duties of spouses to each other ".
Later in
Stewart v. Stewart [1948] 1 K.B. 507, Tucker, L.J. at
p. 513 said—
"... but the cases do show that, whether
in that form of proceeding
" [section 17] or in some other
form of proceeding by a husband against
" a wife or a wife
against a husband, where the court is considering the
"
question of possession or occupation of the matrimonial home, it
will
" be very slow to make any order concerned with the
legal rights of the
" parties which might have the effect of
depriving either wife or husband
" of the right to occupy the
matrimonial home."
The
earlier authorities were recently considered in Gorulnick v.
Gorulnick
[1958] p. 47 where the Court of Appeal refused to
interfere with the
discretion of Wallington J. who in divorce
proceedings refused to grant an
interlocutory injunction
restraining the husband, against whom the wife had
brought a
petition for divorce on the ground of cruelty, from entering
the
matrimonial home which was her property.
Thus the
principle is that the Court when giving effect to the legal
and
equitable rights of the spouse who is owner of the property by
way of injunc-
tion or possession always does so subject to the
overriding mutual marital
right and duty of the spouses to live
together.
But what
of the position if the husband deserts his wife leaving her
and
the family in occupation of the matrimonial home. The first
question
that arises is what is the nature of the wife's
occupation.
It
was contended on the part of the Appellant Bank that in law
the
husband remains the occupier. No doubt he does for some
purposes such,
for example, as liability to rates, for he does
retain a beneficial occupation in
that his wife for whose
maintenance he is responsible is residing there. See
Cardiff
Corporation v. Robinson [1957] 1 Q.B. 39 and Maiden and
Coombe
Corporation v. Bennett [1963] 1 W.L.R. 652. Equally, it
is clear that the
cases have gone a long way in holding that a
husband who has deserted the
matrimonial home nevertheless remains
in occupation for the purposes of the
Rent Restriction Acts (see
Brown v. Draper [1944] 1 K.B. 309; Old Gate
Estates
v. Alexander [1950] 1 K.B. 311 and Middleton v.
Baldock [1950]
1 K.B. 657). No doubt in practice this was
to prevent collusive arrangements
between the deserting husband
and the landlord with a view to turning out
the wife and family,
but the decisions are fully justifiable in law because a
protected
tenant can only surrender his tenancy by giving up possession;
and
when the wife lawfully remains in possession as the wife of this
tenant
(a matter I shall discuss more fully in a moment) the
landlord and the
tenant cannot agree to ignore her lawful
possession and treat her as a
trespasser Taylor v. Michale
was wrongly decided. The Rent Restriction
cases, however, give
no help to the consideration of the problem of the
nature of the
wife's occupation when deserted by her husband in other
cases.
Furthermore (at all events until a decree of judicial
separation), the wife's
occupation is not exclusive against the
deserting husband for he can at
any moment return and resume the
role of occupier without the leave
of the wife. Nevertheless, I
cannot seriously doubt that in this case in truth
and in fact the
wife at all material times was and is in exclusive occupation
of
the home. Until her husband returns she has the dominion over
the
house and she could clearly bring proceedings against
trespassers; so I
shall for the rest of this Opinion assume that
the wife was and is in exclusive
occupation of the matrimonial
home at all material times.
10
The cases
which I must later examine seem to proceed on the footing
that
when deserted the wife is a licensee of the husband but with a
special
right under which her husband cannot turn her out except
under an order
of the Court.
My Lords,
I think a great deal of the trouble that has arisen in this
branch
of the law is by reason of attaching to the wife the label of
"
licensee ". But a wife does not remain lawfully in the
matrimonial home
by leave or licence of her husband as the owner
of the property. She
remains there because as a result of the
status of marriage it is her right
and duty so to do and if her
husband fails in his duty to remain there
that cannot affect her
right to do so. She is not a trespasser, she is not a
licensee of
her husband, she is lawfully there as a wife, the situation is
one
sui generis. She may be described as a licensee if that word
means
no more than one who is lawfully present, but it is
objectionable for
the description of anyone, as a licensee at once
conjures up the notion of
a licensor, which her deserting husband
most emphatically is not.
But apart
from authority, what is the extent and ambit of her right to
continue
in occupation? I have already pointed out that before desertion
she
has no special rights in the particular house where the
spouses are living
and I cannot see why on principle any better
rights should arise on desertion.
Her rights as a wife continue as
before, they are not increased by breach of
duty on the part of
the husband, but being in breach himself he may
find it difficult
to turn her out of the house where she is lawfully living
awaiting
his return and the Court may prevent the husband by injunction
from
dealing with his property to the prejudice of the wife without
safe-
guarding her position (Lee v. Lee [1952] 2
Q.B. 489). But then many
things may happen: he may offer
alternative accommodation to the wife;
he may offer her
substantial maintenance to go and live elsewhere. The
cases that I
have already cited shew that provided the wife's marital rights
are
adequately safeguarded the Court would not normally refuse to evict
a
wife if the husband wants to deal with his property. Or he may
return
and resume cohabitation when the domestic forum resumes
exclusive juris-
diction. Or the wife may change her position. She
may commit a
matrimonial offence which may lead the Court to
refuse her the right
to continue under her husband's roof; she may
obtain (as in this case)
a decree of judicial separation which at
all events brings the husband's
desertion to an end (Harriman
v. Harriman [1909] P 123). Such a decree
must
necessarily be an important though not conclusive factor if the
husband
is seeking to turn his wife out of occupation. Finally,
any right on the part
of the deserted wife to remain in occupation
terminates when the marriage
terminates.
Now such
being the general nature of the rights of the wife against
the
husband after desertion, how do they affect third parties
dealing with the
husband at a date after the desertion who I will
assume (though it is
certainly not conceded in this case) have
full notice of the desertion. The
right of the wife to remain in
occupation even as against her deserting
husband is incapable of
precise definition, it depends so much on all
the circumstances of
the case, on the exercise of purely discretionary reme-
dies, and
the right to remain may change overnight by the act or behaviour
of
either spouse. So as a matter of broad principle I am of opinion
that
the rights of husband and wife must be regarded as purely
personal
inter se and that these rights as a matter of law
do not affect third parties.
In this
case your Lordships are dealing with essentially
conveyancing
matters. It has been the policy of the law for over a
hundred years to
simplify and facilitate transactions in real
property. It is of great impor-
tance that persons should be able
freely and easily to raise money on the
security of their
property. Of course an intending purchaser is affected
with notice
of all matters which would have come to his notice if such
inquiries
and inspections had been made by him as ought reasonably to have
been
made (s. 199 of the Law of Property Act 1925). But surely any
inquiry,
if it is to be made reasonably must be capable of
receiving a positive answer
as to the rights of the occupier and
lead to a reasonably clear conclusion
11
as to what
those rights are. The answer " I am a deserted wife " (if
given)
only gives notice of a right so imprecise, so incapable of
definition, so
impossible of measurement in legal phraseology or
terms of money that
if he is to be safe the mortgagee will refuse
to do business and much unneces-
sary harm will be done. I
discussed some aspects of this matter in West-
minster Bank v.
Lee [1956] Ch 7 and Russell L.J. discussed it at
greater
length in the Court below at [1964] 2 W.L.R. 774. I agree
with his
observations and am content as a matter of exposition to
leave it there. It
does not seem to me that an inquiry as to the
marital status of a woman in
occupation of property is one which
the law can reasonably require to
be made; it is not reasonable
for a third party to be compelled by law to
make inquiries into
the delicate and possibly uncertain and fluctuating state
of
affairs between a couple whose marriage is going wrong. Still less
can it
be reasonable to make an inquiry if the answer to be
expected will probably
lead to no conclusion which can inform the
inquirer with any certainty as to
the rights of the occupant.
These considerations give strong support to the
opinion I have
already expressed that the rights of the wife must be regarded
as
purely personal between herself and her husband.
But I must
examine further the basis of the principle on which it has
been
held that third parties with notice are affected by and take subject
to
the wife's right as against the husband to remain in
possession. As Lord
Denning M.R. has pointed out the principle was
originally founded on
the assumption that possession by a
deserting husband could only be
obtained by an application under
section 17 of the Married Women's
Property Act 1882 for a husband
could not sue his wife in tort. This stems
from certain obita
observations made by Goddard L.J. in Bramwell v.
Bramwell
[1942] 1 K.B. 370 to the effect that .the plaintiff ought to
have
proceeded under section 17 instead of suing at law. The other
members
of the court were silent on this point which was left
entirely open in
the later case of Pargeter v. Pargeter [1946]
1 A.E.R. 570. I share the
doubts of Devlin L.J. in Short v.
Short [1960] 1 W.L.R. 833 at 848 on the
correctness of
these observations of Goddard L.J. Furthermore, the wife
is
lawfully in possession, she is not a trespasser as Goddard L.J.
treated
her and no question of a tort arises when the true
principles which were
applicable are properly understood. As I
have pointed out earlier both in
the Chancery and Probate
Divisions many orders with regard to possession
of the property of
the spouses were made; and they were made without
particular
reliance on section 17; such orders are based not on tort but on
the
obligations of the spouses to live together.
However,
the point is now academic, see Law Reform (Husband and
Wife) Act,
1962.
Apart from
this, however, I cannot understand how a purely procedural
section
such as section 17 can confer any new substantive rights on either
of
the spouses. The section provides a very useful summary method
of
determining between husband and wife questions of title and the
right to
possession of property. With all respect to the learned
Master of the Rolls
I am of opinion that he has put a far too wide
construction upon this
section. In H. v. H. [1963]
T.L.R. 645 he said in reference to the ambit
of section 17—"
The judge should have a free hand to do what is just".
In the
recent case of Hine v. Hine [1962] 1 W.L.R. 1124 he
said of the
section: " Its discretion transcends all rights,
legal or equitable ". I prefer
the approach of Devlin L.J. in
Short v. Short (supra) at 849. The powers
of the
Court under section 17, as the learned Lord Justice said, are
sub-
stantially the same as in any other proceeding where the
ownership or
possession of property is in question. The discretion
of the Court is no
wider and no narrower than the ordinary
discretion of the Court in such
cases. In Cobb v. Cobb
[1955] 1 W.L.R. 731 Romer L.J. said:
" I
know of no power that the court has under section 17 to vary
"
agreed or established titles to property. It has power to ascertain
the
" respective rights of husband and wife to disputed
property, and fre-
" quently has to do so on very little
material; but where, as here, the
" original rights to
property are established by the evidence, and those
12
"
rights have not been varied by subsequent agreement, the court
"
cannot, in my opinion, under section 17 vary those rights merely
"
because it thinks that in the light of subsequent events the
original
" agreement was unfair."
See also the observations of Russell L.J. in Wilson v. Wilson [1963]
1 W.L.R. 601 at 608.
Title must
be decided as a matter of fact and law; but there will be
many
cases where after years of happy married life frequently with one
com-
mon banking account to which both contribute and no one
taking much heed
as to who pays for what the ownership of property
has become so in-
extricably entangled or become legally incapable
of solution that an
equitable knife must be used to sever the
Gordian knot; In re Rogers'
Question [1948] 1 A.E.R. 328
and Rimmer v. Rimmer [1953] 1 Q.B. 63
are typical
examples. But when once the relevant document has been
construed
or the rights as to title determined by judicial decision on
the
available evidence, as must be necessary (if possible) in the
first place,
no further question of discretion on questions of
title arise. Questions of
possession must of course still be
determined having regard to the mutual
matrimonial duties of the
spouses.
Depending
as they do on a wider construction of section 17 than it
should
have in my opinion, I would not myself regard the recent cases
of
Mine v. Mine [1962] 1 W.L.R. 1124 and Appleton
v. Appleton [1965] 1 W.L.R.
25 as correctly decided. In the
former case the intention of the parties
was clear assuming the
learned County Court judge correctly interpreted
the legal effect
of the discussion as to avoiding estate duty (and I have no
reason
to doubt that he did); in the latter case the husband could have
no
claim on property which he knew to be his wife's by doing work
on it,
in the absence of some agreement.
Furthermore,
I cannot myself see how this section which is purely personal
between
husband and wife (though the section may be invoked by the
company
in whose books the disputed property stands) can be used to
confer
upon the wife, just because she has been deserted by her
husband, any rights
against third parties. That the section was
available in proceedings against
third parties was, however,
apparently assumed (though in my opinion
wrongly) without serious
argument, in Woodcock v. Hobbs [1955]
1 W.L.R. 152.
Now,
however, the deserted wife's right is said to be based on
principle
and not to stem from procedural considerations. It is
said to be a licence
coupled with an equity. In the words of Lord
Denning MR. in the Court
of Appeal at page 763: " The wife
has no tenancy. She has no legal
" estate or equitable
interest in the land. All that she has is a licence. But
"
not a bare licence. She has a licence coupled with an equity. I
mean
"an 'equity' as distinguished from an equitable
interest." Then after
referring to Westminster Bank v.
Lee (supra) he continued: " It is an equity
"
which the court will enforce against any successor except a
purchaser
" for value without notice."
The wife
is asserting rights over the land of another and in respect of
which
she has no beneficial ownership. Nevertheless, she claims to
enforce
her rights against an assignee of her husband, the owner.
How, as a matter
of principle, can she do this?
First, (I
am still dealing with the general law) mere exclusive occupation
is
by itself not sufficient to establish such a right. It all depends on
what
her rights are; of course it may be sufficient, e.g., if the
wife is a lessee
who thereby necessarily has an interest in the
land. Secondly, notice to a
purchaser that the wife is in
occupation as a deserted wife (assuming con-
trary to my opinion
that such a right is capable of reasonable definition) is
rot per
se sufficient. The observations of Knight Bruce L.J. in de
Mattoz v.
Gibson cannot be applied to the law of real
property (see L.C.C. v. Allen
[1914] 3 KB 642 at
658). Furthermore, the necessity for notice is to get
rid of the
effect of the legal estate; notice itself does not create the
right.
To create a right over the land of another that right must
(apart from
staute) create a burden on the land, i.e., an
equitable state or interest in
13
the land.
All this was pointed out in the closely analogous case of
restrictive
covenants by Farwell J. in Nisbett and Potts'
Contract [1905] 1 Ch 391 at
pp. 397-8 in a very full judgment
reviewing the earlier authorities which
though at first instance
has always been accepted as authoritatively stating
the law. So in
principle, in my opinion, to create a right over the land of
another
that right must in contemplation of law be such that it creates
a
legal or equitable estate or interest in that land and notice of
something
though relating to land which falls short of an estate
or interest is insufficient.
There are no doubt many cases where
judges have said the purchaser " takes
subject to all
equities " but they meant " equitable interests ".
Such, in my
opinion, were the cases of Jones v. Smith 1
Hare 53, 60 and Barnhardt
v. Greenshields 9 Moo
P.C.C. 18. This, I think, is quite clear from the
case of Reeves
v. Pope [1914] 2 KB 284. See the interjection of
Buckley
L.J. at p. 286 and the judgment of Lord Reading C.J. on pp. 288-9.
An
equity to which a subsequent purchaser is subject must create an
interest
in the land. As Professor Crane has pointed out in an
interesting article
in 19 Conveyancer 343 at 346—
"
Beneficial interests under trusts, equitable mortgages, vendors'
liens,
" restrictive covenants and estate contracts are all
equitable interests."
No lesser
interests have been held to be sufficient. A mere " equity "
used
in contradistinction to an " equitable interest"
but as a phrase denoting
a right which in some circumstances may
bind successors is a word of
limited application and, like the
learned editors of Snell, 25th edition, at
p. 18, I shall attempt
no definition of that phrase. It was illustrated in
the case
before me of Westminster Bank v. Lee (supra) where I
was con-
strained in the then state of the authorities to assume
that a mere equity
might bind successors, yet being at most a mere
equity, even subsequent
equitable encumbrancers, contrary to the
usual rule, could plead purchaser
for value without notice. But,
my Lords, freed from the fetters which there
bound me, I myself
cannot see how it is possible for a " mere equity " to
bind
a purchaser unless such an equity is ancillary to or
dependent upon an
equitable estate or interest in the land. As Mr.
Megarry has pointed out in
71 L.Q.R. at p. 482 the reason why a
mere equity can be defeated by a
subsequent purchaser of an
equitable estate for value without notice is that
the
entire equitable estate passes and it is not encumbered or burdened
by
a mere equity of which he has no notice. For example, a
purchaser takes
subject to the rights of a tenant in possession
whatever they may be. If
he sees a document under which the tenant
holds, that is sufficient unless
he knows, or possibly in some
circumstances is put in inquiry to discover,
that the tenant has
in addition a mere equity, e.g., a right to rectify the
document.
If the purchaser knows that, he knows that the document does
not
correctly describe the estate or interest of the tenant in the land
and he
takes subject to that estate or interest, whatever it may
be. But a mere
" equity " naked and alone is, in my
opinion, incapable of binding successors
in title even with
notice; it is personal to the parties.
So, my
Lords, even if my opinion is wrong that from its very nature
the
right of the deserted wife is purely personal between husband
and wife and
incapable of binding third parties I am of opinion,
with all respect to the
Master of the Rolls' statement of her
rights, first that it is incorrect to regard
her as the husband's
licensee and, secondly, her mere equity not amounting
to an
equitable interest nor being ancillary to or dependent upon an
equitable
interest does not bind purchasers.
Your
Lordships heard much interesting discussion as to the rights of
con-
tractual licensees to remain in occupation as against third
parties. As I
emphatically decline to equate the deserted wife
with a contractual licensee
or to draw any analogy between the two
I shall be very brief on this subject.
The cases of Forster v.
Robinson [1951] 1 K.B. 149 and Errington v.
Errington
and Woods [1952] 1 K B 290 were much canvassed
before your Lordships.
In the latter case the licensees were in
exclusive occupation upon the terms
of paying off the mortgage
instalments and after the matrimonial rupture
the wife continued
to do so. This, I would have thought, would have given
the spouses
an interest in the land, in accordance with a well known line
14
of
authority starting with Webb v. Paternoster 2 Roll
Rep. 143, valid
against all except a purchaser for value without
notice.
The more
interesting and really text book case is Foster v.
Robinson
(supra). Whether the right (undoubted
contractually against the owner
of the property) of Robinson the
retired servant to remain in exclusive
occupation of his cottage
rent free for the rest of his life will by judicial
decision one
day be held to create an equitable estate or interest binding
all
except purchasers for value without notice, or whether, as Russell
L.J.
thinks, statutory legislation is required to bring about that
result is a matter
upon which I propose to express no opinion. On
the other hand, Rox-
burgh J. in Thompson v. Earthy
[1951] 2 K.B. 596 at p. 599 may have
taken the view that an
exclusive licensee may thereby have an interest in
the land, and
Professor Cheshire supports this view in a very interesting
article
on this matter in 16 Modern Law Review, page 1. He does, I think,
in
that article underestimate the difficulties created by King v.
David Allen
& Sons, Billposting, Ltd. [1916] 2 AC 54
and Clore v. Theatrical Properties,
Ltd., and Westby &
Co. Ltd. [1936] 3 A.E.R. 483. But if it is later decided
that
a licensee having an irrevocable licence to remain in occupation of
the
land for a defined period creates an interest in land and is
valid against
subsequent purchasers with notice that would not
affect my view that the
purely personal, evanescent and changeable
rights exercisable against her
husband by the deserted wife cannot
affect a purchaser from the husband.
My Lords,
it follows that so far as unregistered land is concerned Bendall
v.
McWhirter was itself wrongly decided, for a trustee in
bankruptcy
succeeds only to the property of the bankrupt in its
then plight and condition
and is not concerned with personal
rights that do not affect that property.
So was Street v.
Denham [1954] 1 W.L.R. 624. Ferris v. Weaven
[1952]
2 A.E.R. 233 may possibly be justified on its own
facts.
I turn then to consider section 70 of the Land Registration Act.
The whole
question is whether the right of the wife as against her husband
to
remain in actual occupation of the matrimonial home is an
overriding
interest for the purposes of section 70 (1) (g).
Having analysed fully the
nature of this right it seems to me
clear that such a right cannot possibly
be elevated to the status
of an overriding interest for the purposes of the
section.
I find
myself in complete agreement with the observations of Russell
L.J.
set out in the opinions of my noble and learned friends, Lord
Hodson and
Lord Cohen, and I do not think it is necessary to add
anything further.
My Lords,
when differing as I do with regret from so eminent a judge
as the
Master of the Rolls I think it is important to see how this
problem
has been dealt with in other comparable jurisdictions.
Both in
Australia and New Zealand there has been a refusal to recognise
that
the deserted wife has any equity available against third parties.
In
Brennan v. Thomas 1953 V.L.R. III Sholl J. sitting in
the Supreme Court
of Victoria after an exhaustive review of the
authorities including Bendall
v. McWhirter then
recently decided in the Court of Appeal refused to
recognise any
right, on the part of the wife available against purchasers
for
value.
In Public
Trustee v. Kirkham 1956 V.L.R. 64 sitting in the same
court
Herring C. J. criticised the doctrine.
In Maio
v. Piro 1956 S.A.S.R. 233 Ligertwood J. sitting in the
Supreme
Court of South Australia followed Sholl J. in preference
to the English
decisions.
Finally in
Dickson v. McWhinnie 1958 S.R.N.S.W. 179 the Full Court
of
New South Wales sitting in bane refused to follow Bendall v.
McWhirter
save in relation to bankruptcy. I derive much
comfort from such a strong
body of opinion in favour of the view I
have expressed.
In
conclusion, my Lords, I would like to express my concurrence with
the
opinion expressed by Lord Cohen at the conclusion of his opinion
15
that it is
desirable that the recommendations of the Royal Commission on
this
subject should receive some further consideration.
I would allow this appeal.
Lord Wilberforce
MY LORDS,
The
doctrine of the " deserted wife's equity " has been evolved
by the
courts during the past thirteen years in an attempt to
mitigate some effects
of the housing shortage which has persisted
since the 1939-45 war. To a
woman, whose husband has left her,
especially if she has children, it is
of little use to receive
periodical payments for her maintenance (even if
these are in fact
punctually made) if she is left without a home. Once
possession of
a house has been lost, the process of acquiring another place
to
live in may be painful and prolonged. So, even though, as is
normally
the case, the home is in law the property of the husband,
the courts have
intervened to prevent him from using his right of
property to remove his
deserted wife from it and they have
correspondingly recognised that she
has a right, or " equity
" as it has come to be called, which the law will
protect, to
remain there.
This case
relates to one aspect, and one aspect only, of that right.
No
question arises here as to any claim which a deserted wife may
have against
her husband: all that we are concerned with is the
right of a deserted
wife to remain in possession as against a
third party, claiming, in good faith,
under the husband. And the
issue is even narrower than that: it relates
only to the position
of a third party whose title arises subsequently to the
desertion.
Those whose rights arise before the desertion are admittedly in
a
different position: there are cases in which that has been
decided and they
have not been challenged. And lastly, unaffected
by anything that may be
decided in this appeal, are the large
number of instances in which the house
in question is leasehold
property held on a tenancy protected by the Rent
Restriction
legislation—a special category on its own to which I shall
make
some later reference. The issue is thus a narrow one,
affecting a small
proportion only of those deserted wives who are
left in occupation of their
husband's house. Nevertheless as to
them, as to the Respondent in the
present case, issues of
importance, and probably of hardship, are involved.
The ultimate
question must be whether such persons can be given the
protection
which social considerations of humanity evidently indicate
without
injustice to third parties and a radical departure from
sound
principles of real property law.
The third
party in the present case is the National Provincial Bank,
the
Appellant, which has a legal mortgage over the house in which
the
Respondent, the deserted wife of Mr. Ainsworth, is living.
There are some
complications regarding Mr. Ainsworth's title to
the house which engaged
the attention of the courts below, but I
need not go into them here. For
all the purposes of the present
appeal it is agreed that Mr. Ainsworth is to
be taken as the owner
of the house and that the Bank's title is to be
considered as
derived from him. An important feature is that his title to
it is
registered at H.M. Land Registry. There was a good deal of
evidence
as to his matrimonial and business affairs but I think
that all that it is
material to know is that:
His
desertion of his wife is established and is not disputed by
the
Appellant Bank ;
The legal mortgage to the Bank was subsequent to the desertion ;
The Bank
had at the date of the mortgage no actual knowledge or
notice of
the desertion, but, on the other hand, they made no
enquiries as
to the occupation of the house, whether from the
Respondent, who
was living there, or otherwise. There was some
attempt when these
proceedings were before Cross J. in the
Chancery Division to
prove circumstances which would fix the
16
Bank with
constructive notice of the desertion, but, in view of the
fact
that the title was registered, it became unnecessary to
decide
whether this was so or not.
The
position as it now stands is that the Court of Appeal, reversing
in
this respect the decision of Cross J., has held by a majority
that the
Respondent had a right to remain in the house as against
the Bank for
such period as the Court should determine. On a
consideration of the
circumstances, the Court of Appeal in fact
has determined that she should
remain in possession until 26th
June, 1965 (subject to liberty for either
party to apply) paying
to the Bank a weekly sum of £3 per week. It is
from that
decision that the Bank now appeals.
The appeal
raises two questions, one of general, the other of more
limited
scope. The general question is whether the Respondent Mrs.
Ainsworth
as the deserted wife of her husband, the owner of the
house, has any interest
in or right over it which is capable of
binding the Bank as the proprietor
of a legal interest in the
land. This is a general question of real property
law. The second
question arises out of the fact that the land is registered
land.
It is, briefly, whether the Respondent's interest, or right, is an "
over-
" riding interest ". If it is, it may prevail over
the legal interest of the Bank
even though it is not registered or
indeed capable of registration: if it is
not, it may be overridden
by the registered disposition in favour of the
Bank.
I turn to
the first and more general question: what is the nature of
the
deserted wife's interest, or right? In the cases which have
evolved from
] 952 onwards it is variously described: it is called
an " equity ", a " clog ",
a " licence ",
a " status of irremovability ". The description is shifting
and
evolutionary as different situations appear. I shall have to
refer to some of
these cases in some detail. But before doing so I
think it useful to look at
the wife's situation more generally, as
it stands under well established
principles of law. After all,
married women and deserted wives are
familiar enough in our legal
system and there cannot be much doubt
what their rights are.
English
law (with certain recent statutory exceptions) gives to the wife
no
interest, or participation, in her husband's property: the common
law
right of dower, which existed over her husband's freeholds
during his life,
until 1833, and after his death until 1925, has
been abolished. Since 1833
the husband has been absolutely free,
inter vivos, to dispose of any freehold
or leasehold
property which he owns without his wife's concurrence. The
common
law, moreveor, does not recognise, as having any special status
in
the law of property, a matrimonial home, though this expression
will be
found in several of the cases: nor does it recognise any
right to the wife to
remain in occupation of any of the husband's
property against his will.
Although the husband could not directly
sue her for trespass he could, by
the device of a fictitious
lessee, bring an action of ejectment against her.
The case of Doe
dem Merigan v. Daly (1846) 8 Q.B. 934 is of interest
not
only because it shows this, but because the defendant wife
there was actually
a deserted wife. And the decision prompts the
thought that if, as was decided,
the wife had no defence against
the imaginary lessee Mr. Doe, she could
have no defence either
against a real lessee, including a mortgagee by demise.
Whether,
after the abolition of the old action of ejectment in 1852,
the
husband could bring proceedings against his wife for recovery
of possession
of his land is perhaps a matter of some doubt. There
are decisions, or at
least dicta, either way (c.f. Bramwell
v. Bramwell [1942] 1 K.B. 370 per
Goddard L.J.; Hill
v. Hill 1916 W.N. 59 (a decision received, in my
experi-
ence, with some caution) and in New South Wales Aaron
v. Aaron (1944)
61 W.N. (N.S.W.) 63, and Henderson
v. Henderson (1951) 51 S.R. (N.S.W.)
217) but it seems
clear that if any such action could be brought, it would be
dealt
with by the court in the same way as proceedings under section 17
of
the Married Women's Property Act, 1882, as I shall shortly explain.
I
mention this point because it has been suggested that procedural
considera-
tions lay at the origin of the wife's right. The
foundation for this argument
seems to be far from solid and in any
event such considerations do not exist
17
at the
present time now that a husband is free to sue his wife in tort
(Law
Reform (Husband and Wife) Act, 1962).
Equity
followed the law in not conferring upon the wife any interest in
the
husband's property during his life. Equitable intervention was
confined to
the protection of the wife's trust property or
separate property from the
husband ; this was matured in the world
of Victorian property owners, of
marriage settlements and of funds
in court, when money did not depreciate
and houses could easily be
obtained, so that the kind of difficulty in which
wives now are
did not often arise, or at least reach the courts.
But equity
did more than this if circumstances required. For though
the wife
had (apart from dower) no proprietary interest, at law or in
equity,
in her husband's property, she had certain rights against
her husband by
virtue of her status of marriage; and equity, in
disputes as to property
between husband and wife, came to
recognise those rights. It is important
to see just what those
rights were since it is here, if anywhere, that the
foundation for
whatever claim the wife may have to remain in her husband's
house
is to be sought.
By virtue
of marriage, a wife acquired the right to two things: the right
of
cohabitation with her husband and the right to support according to
her
husband's estate and condition. She could obtain against him,
from the
Ecclesiastical Courts, an order for restitution of
conjugal rights which, in its
usual form, ordered him to take her
home and receive her as his wife and
render her conjugal rights—an
order which could be enforced by attachment
for non-obedience.
What the wife gained by the order was the provision
of a suitable
dwellinghouse and maintenance coupled with the obligation
of the
husband to live with her (Weldon v. Weldon 9 P.D. 52 at
p. 56 per
Sir J. Hannen, P.).
The
essential point is that the wife had no right to be provided with, or
kept
in, any particular home: her rights were not rights in
rem, nor were they
related to any particular property: they
were purely personal rights against
her husband, enforceable by
proceedings against his person, which he could
satisfy by
rendering her conjugal rights, i.e., by living with her and
support-
ing her in a suitable home. The jurisdiction of the
Ecclesiastical Courts has
long since given way to that of the High
Court, there have been changes of
jurisdiction, of remedy and of
nomenclature, but nothing in the various
reforms which have taken
place has altered the fundamental character of
the wife's rights.
They remain the right to cohabitation and support, and no
more now
than before 1857 has she, by virtue of her married status, any
speci-
fic right to be provided with or maintained in any
particular property.
Of course,
this is not the end of the matter, nor is the position which I
have
stated necessarily decisive of the attitude which the courts should
adopt
when faced with conflicting claims between husband and wife
as to the right
to occupy a particular property. The courts in
their equitable jurisdiction
have been flexible in dealing with
such disputes. The machinery by which
they can be so is provided
by section 17 of the Married Women's Property
Act, 1882.
The section, omitting immaterial portions, reads as follows:
" In
any question between husband and wife as to the title to or
"
possession of property, either party .... may apply by summons or
"
otherwise in a summary way to any judge of the High Court of
Justice
" .... [or of the County Court] .... and the judge
.... may make such
" order with respect to the property in
dispute ... as he thinks fit, or
" may direct such
application to stand over from time to time, and any
"
inquiry touching the matters in question to be made in such manner
"
as he shall think fit."
This
section has proved itself as one of very general utility and it
would
be undesirable that anything said here should circumscribe
its usefulness.
What is material for present purposes is, first,
to observe that it only applies
as between husband and wife
themselves, including probably their legal
personal
representative, (there is additionally power to bring in banks
or
companies whose books or registers relate to the property in
dispute but
this does not touch the point I am making) not as
between their respective
18
successors
in title. Secondly, the section has been treated, rightly in
ray
opinion, as conferring upon the court power, without
disturbing established
property rights, not to allow those rights
to be fully enforced where to do
so would run counter to the
duties of one spouse to another. This use
of the section may be
illustrated by the case in the Court of Appeal of
Stewart v.
Stewart ([1948] 1 K.B. 507). There a husband, by
proceedings
under the section, sought possession of premises
belonging to him where
he had been cohabiting with his wife. There
were divorce proceedings
pending based on allegations of the
wife's adultery. The judge had made
an order for possession and
the Court of Appeal refused to interfere with
his exercise of
discretion, but made it clear that, in their opinion,
the
jurisdiction was discretionary. I quote a passage from the
judgment of
Tucker L. J. :
"
There is jurisdiction in the county court judge under this section
"
to make an order for possession at the instance of husband or wife
"
against the other spouse; but the cases do show that, whether in
"
that form of proceeding or in some other form of proceeding by a
"
husband against a wife or a wife against a husband, where the court
"
is considering the question of possession or occupation of the
"
matrimonial home, it will be very slow to make any order concerned
"
with the legal rights of the parties which might have the effect of
"
depriving either wife or husband of the right to occupy the
matrimonial
" home. The cases show that, whether an
injunction or some other
" form of relief is being granted,
great care must be taken in a normal
" case, where a marriage
is subsisting, where the parties have hitherto
" been living
together, and where no order has been made by the
" Divorce
Court or by the justices touching on the right of the one
"
spouse to live apart from the other, that the rights of a wife or
"
husband should be safeguarded in the form of the order made. I do
"
not think that the cases go beyond that."
The
reference will be noted to—" that form of proceeding [s.c.
under s. 17]
" or in some other form of proceeding "—and
there is further authority
to show that the discretion is the same
whatever the nature of the pro-
ceedings may be. I may refer to
Shipman v. Shipman ([1924] 2 Ch. 140)
a case where
the wife was seeking relief in respect of some property of
hers
under section 12 of the Married Women's Property Act, 1882,
which
allowed a married woman to sue her husband for the
protection of her
property. An injunction was granted, but Sir E.
Pollock M.R. said (at
p. 145) of the doctrine of a Court of
Equity—
"
that while protecting the property of a wife as a proper subject
for
" protection, we must also regard the duties of spouses
to each other ",
and he had regard to the fact that the
conduct of the husband would justify
the wife in resisting a suit
for restitution of conjugal rights.
The
position then, at the present time, is this. The wife has no
specific
right against her husband to be provided with any
particular house, nor to
remain in any particular house. She has a
right to cohabitation and sup-
port. But, in considering whether
the husband should be given possession
of property of his, the
court will have regard to the duty of the spouses
to each other,
and the decision it reaches will be based on a consideration
of
what may be called the matrimonial circumstances. These include
such
matters as whether the husband can provide alternative
accommodation
and if so whether such accommodation is suitable
having regard to the estate
and condition of the spouses; whether
the husband's conduct amounts to
desertion, whether the conduct of
the wife has been such as to deprive
her of any of her rights
against the husband. And the order to be made
must be fashioned
accordingly: it may be that the wife should leave
immediately or
after a certain period: it may be subject to revision on a
change
of circumstances.
The
conclusion emerges to my mind very clearly from this that the
wife's
rights, as regards the occupation of her husband's
property, are essentially
of a personal kind: personal in the
sense that a decision can only be
reached on the basis of
considerations essentially dependent on the mutual
19
claims of
husband and wife as spouses and as the result of a broad weighing
of
circumstances and merit. Moreover, these rights are at no time
defini-
tive, they are provisional and subject to review at any
time according as
changes take place in the material circumstances
and conduct of the parties.
On any
division, then, which is to be made between property rights on
the
one hand, and personal rights on the other hand, however broad
or
penumbral the separating band between these two kinds of rights
may be,
there can be little doubt where the wife's rights fall.
Before a right or
an interest can be admitted into the category of
property, or of a right
affecting property, it must be definable,
identifiable by third parties, capable
in its nature of assumption
by third parties, and have some degree of per-
manence or
stability. The wife's right has none of these qualities, it
is
characterised by the reverse of them.
So far I
have been considering the position, in relation to a house, of
a
married woman: but here we are not concerned with all married
women,
only with those who are deserted. This qualification gives
rise to a fresh
difficulty. For it is not contended that the right
to remain in the husband's
property as against third parties
arises on marriage: no decision has so
held. On the contrary
Denning L.J. (as he then was) said in Bendall v.
McWhirter
that it " flows from the status of marriage coupled with
the
"fact of separation owing to the husband's misconduct
([1952] 2 Q.B. at
p. 47) and in Lloyds Bank Ltd. v. O's
Trustee [1953] 1 W.L.R. 1460 my
noble friend, Lord Upjohn,
then a judge of first instance, gave conclusive
reasons why this
could not be so; and it is easy to see why no other view is
possible.
For to hold that the wife acquires on marriage a right valid
against
third parties to remain in the house where she lives with
her husband would
not only fly in the face of the reality of the
marriage relationship which
requires the spouses to live together,
as they can agree, wherever circum-
stances may prescribe, but
would create impossible difficulties for those
dealing with the
property of a married man. It would mean that the con-
currence of
the wife would be necessary for all dealings. So the courts have
held
that third parties who acquire an interest in the husband's
property
miring marriage take that interest unaffected by, or in
priority to, any
right the wife may acquire on subsequent
desertion and they have stated
the doctrine of the wife's equity
in the form that it arises only on desertion—
a kind of
springing interest (see for example Woodcock v. Hobbs
[1955] 1
W.L.R. 152 at 156). But this replaces one difficulty
by another, as well as
being unsupported by any rule or principle
of the law of husband and wife.
Let us
look at the claim of a " deserted wife " through the eyes
of a
prospective purchaser or mortgagee. Mrs. X. is living in the
house: she
claims that she has been " deserted ". But
Mr. X denies this. Perhaps he
claims that he is living elsewhere
for business reasons, or to care for his
aged parents: or that he
has been wrongfully excluded from the house and
that Mrs. X. is
guilty of constructive desertion: or that his wife is living
in
adultery with another man. He may say that he has offered her
alternative
accommodation, or that she has property of her own to
which she can go.
Not every case, nor necessarily the majority of
cases, are such as the present
where the desertion is clear and
uncontestable: yet where it is not, how can
a third party, seeking
to take a title to the property, be expected to involve
himself in
these matrimonial complications? Furthermore, it is an
essential
consequence of the doctrine that a " purchaser "
taking with notice, including
constructive notice, of the wife's
right takes subject to it—the Bank in this
case has been
held so to take. But how is that to be worked out, as it must
be,
whenever proceedings are brought by the purchaser against the wife
for
possession? While the property remains that of the husband he
holds it
subject to the right of his wife to invoke the
discretionary jurisdiction of the
court (whether under s. 17 of
the 1882 Act or otherwise) to have regard to the
mutual rights of
the spouses. When he passes the property to a third party,
does
the third party hold subject to the same discretionary power? In
other
words, can the wife's personal rights against her husband
(based on the
court's discretion as between husband and wife) pass
so as to bind a
purchaser? Surely not, since in any proceedings
between the purchaser and
20
the wife
the husband would not be a party and he might well not be willing
to
make the merits of his conduct, or the demerits of his wife's
vis-à-vis
himself, available to the purchaser. The courts
have not so held. They have
held, indeed, that the wife's right to
remain in possession is discretionary,
but the discretion is now
to be exercisable as between the purchaser and the
wife. An
example is this case—the court is, as the Master of the Rolls
has
said, to " temper justice with mercy. Justice to the bank
with mercy to the
" wife " and evidence has been
received as to the wife's resources—that she has
so much
from family allowances and from National Assistance and no
doubt
regard has been had to the size and resources of the
creditor. One can see
that no other solution is possible. But the
fact that this is so demonstrates
the fragility of the doctrine
for it shows that we are not dealing here with
any right, or
interest, or equity, which passes to a purchaser with notice,
but
with something which cannot pass at all, which disappears when
the
disposition takes place, and is replaced by a new creation
altogether—a
right based on a kind of discretionary justice
(as seen by the courts) between
one man and another without any
guiding principle as to the basis on which
the discretion is to be
exercised.
These
difficulties are to my mind so overwhelming and show so clearly
that
this right of the wife has no place in the law of property
that I am reluctant
further to lengthen the argument by
consideration of what the position may
be if the wife, while in
occupation, commits adultery or obtains or has
granted against her
a decree of judicial separation, and how the "
purchaser's "
position can be adopted to such circumstances.
But I must
refer briefly to one other line of argument which has
appeared
prominently in several of the cases. It is clear—at
any rate as regards
unregistered land—that if the wife's
right is held to be a right capable of
bmding a purchaser, the
purchaser will be bound only if he has notice,
or constructive
notice, of her claim. How then is constructive notice to
be
established? And in what enquiries would the purchaser become
involved?
Section 199 of the Law of Property Act, 1925, fixes him
with notice of a fact
if it would have come to his knowledge if
such inquiries and inspection had
been made as ought reasonably to
have been made by him. What does this
involve? He would no doubt
enquire as to the occupation of the property,
there is perhaps no
difficulty about this, but the moment the enquiry is taken
further,
whether this is done by written requisition or by doorstep
investiga-
tion, he would inevitably become involved in the
intricacies, possibly of a
controversial character, of the mutual
claims of husband and wife against
each other. I need not
elaborate on the complications which may arise ;
they have been
very clearly marked out by Russell L.J. in his judgment in
the
Court of Appeal. This demonstrates in a practical way that the
claim
of the wife to remain in the house is not something which
can be brought
on to the title of the land.
So far I
have been considering the nature of the wife's right quite
gener-
ally, and I have not referred to the reported cases by
which the recent
doctrine has been created and elaborated. Before
I do so there are some
general arguments which have been stated
and which it may be convenient
to examine,
1. The
licence theory. One main line of argument, for conferring
upon
the deserted wife an interest binding her husband's
successors in title, has
been to this effect: the wife is a
licensee in the house under, so it is some-
times said, an
irrevocable licence, or at least a licence which is only
revocable
by the court: some licences which are irrevocable are
binding on
purchasers with notice: ergo the wife's rights are binding
on
purchasers with notice. I hope that I do justice to the
argument by this
brief summary. I confess that I find it far from
helpful. In the first place,
I doubt the utility of describing the
wife as a licensee. If all that is done
by this is to place some
descriptive label on the capacity in which the wife
remains in the
house, I suppose that the word " licensee " is as good
as
any other, though I would think that most wives would consider
this
description a strange one. But what is achieved by the
description? After
she has been so described, the incidents of the
description have to be
21
ascertained,
and the only correct process is surely to analyse what the
nature
of the wife's rights are, the answer being that they are rights of
co-
habitation and support and the right to resist dispossession
by her husband
if that would interfere with marital nights. What
is not surely legitimate
is to start by describing the wife as a
licensee, and then to abscribe to her
rights which are defined by
reference to other kinds of licences: that is an
argument per
saltum. The second comment which must be made on the
argument
is that even if one accepts the leap from the wife as licensee
to
other (e.g. contractual) licensees, one has not reached a
solution, for
the legal position of contractual licensees, as
regards " purchasers", is
very far from clear. The Court
of Appeal has attempted to reach a
generalisation toy which
licences, or at least licences coupled with occupa-
tion, are
binding upon " purchasers " but I note that the members of
that
court are not wholly agreed as to this doctrine. No doubt the
time will
come when this whole subject will have to be reviewed;
this is not the
occasion for it and I think that it would be
undesirable now to say any-
thing which might impede the
development of this branch of the law.
Neither contractual
licences nor those licences where money has been
expended by the
licensee in my view afford any useful analogy or basis
upon which
to determine the character of the wife's rights.
I would
only add, with reference to the authorities (1) that I must not
be
taken as accepting the arguments placed before the Court of
Appeal
whereby such cases as King v. David Allen &
Sons, Billposting, Ltd. ([1916]
2 A.C. 54) and Clore v.
Theatrical Properties, Ltd. and Westby & Co., Ltd.
([1936]
3 A.E.R. 483) are put on one side as not, or no longer,
relevant
authorities; (2) that, while accepting the actual
decision I do not find that
the case of Errington v.
Errington and Woods ([1952] 1 K.B., 290), even if
reconcilable
with the two cases I have mentioned, is of assistance as to
the
transmissibility of contractual licences. The Court of Appeal
in that
case seem to have treated it simply as one of contract and
not to have
focused their argument on the precise legal position
of the plaintiff, i.e.,
whether she was the legal personal
representative or the successor in title
of the licensor.
The
Rent Restriction cases. Since, at any rate 1944 (Brown v.
Draper
[1944] 1 K.B. 309) and possibly before that date,
the courts in a number of
instances have given protection to
deserted wives of tenants of rent con-
trolled premises. They
have done this by the device of holding that the
husband-tenant
cannot put an end to the tenancy, even by such acts as
delivering
the keys to the landlord, so long as his wife remains on
the
premises: he remains there by her, and so long as he does
so, whatever
else he does or says, the tenancy remains.
Examples of this type of case
are Brown v. Draper (supra) Old
Gate Estates Ltd. v. Alexander [1950]
1 K.B. 311
(C.A.) Middleton v. Baldock ibid 657 (C.A.) Wabe v.
Taylor
[1952] 2 Q.B. 735 (C.A.). This doctrine now
seems to be firmly estab-
lished although the Court of Appeal in
Taylor v. McHale [1948] decided in a
contrary
sense, but this has been passed over sub silentio in later
authori-
ties. I do not find it necessary to examine these
cases: they relate to
the special and intricate world of rent
control in which the courts have
had in many directions to work
out empirical solutions to prevent injustice
being done. They
have done so in this line of cases, and it would be un-
profitable
to point to inconsistencies in the decisions. This group
of
decisions is, I find, of no assistance in the solution of the
present problem:
if it is true that the courts have, in this
particular field, taken steps to
protect deserted wives in
possession, it is equally true that they have done
so by a
technique which is the opposite of that which it is sought to use
in
the present case. For in the rent cases, the wife's
occupation has been
treated as the husband's so as to give to her
the benefit, against the landlord,
of the tenant's statutory
protection. Here it is sought to separate the wife's
occupation
from that of the husband and to deny to the purchaser against
the
wife the rights which he would undoubtedly be free to exercise
against
the latter. For the reasons I have given they should be
left on one side.
The "
equity theory ". Early in the development of the doctrine
it
was perceived that the deserted wife's right could not be
classified as an
22
equitable
interest in land (see Thompson v. Earthy [1951] 2 K.B.
596 per
Roxburgh J.). This appears to me to have been inevitable
and correct, and
it should have led to the conclusion that the
wife's right was not binding on
third parties. But, instead, it
was sought to describe it as an " equity "
which as such
could be binding on assignees of the husband. In the authori-
ties,
the word is used in several senses and for several purposes.
Sometimes
it is used as referring merely to the exercise of an
equitable remedy, such
as a remedy by injunction: the thought
seems to have been that since the
courts will interfere by
injunction to prevent interference with or departure
from a right,
that gives to the proprietor of the right something which is
capable
of binding not only the other party but his assignees, or
successors,
provided of course that they have notice of the right.
In this form the
argument is clearly fallacious. The fact that a
contractual right can be
specifically performed, or its breach
prevented by injunction, does not
mean that the right is any the
less of a personal character or that a purchaser
with notice is
bound by it: what is relevant is the nature of the right, not
the
remedy which exists for its enforcement. Before your Lordships
the
argument was not put in this form. It was said that the wife's
right was an
equitable claim, binding on the husband's conscience,
and that consistently
with what has been decided in relation to
such matters as restrictive
covenants, it should be held to be
binding on the conscience of a
" purchaser " with
notice. The doctrine has in fact been put in this way in
the
cases—as an example I refer to the judgment of the Master of
the
Rolls (then Denning L.J.) in Woodcock v. Hobbs
[1955] 1 W.L.R. 152, at
p. 156, and to Bendall v.
McWhirter [1952] 2 Q.B. 466) where the comparison
with
restrictive covenants is made (p. 481).
In my
opinion, this line of argument is but a revival of a fallacy
that,
because an obligation binds a man's conscience, it therefore
becomes binding
on the consciences of those who take from him with
notice of the obligation.
But this has been decisively rejected,
not only in relation to covenants
(enforceable by specific
performance) entered into by the predecessor of the
purchaser whom
it is sought to bind (London & South Western Railway Co.
v.
Gomm 20 ChD 562—I refer to the judgment of Lindley
L.J. at p. 587)
but in the law of restrictive covenants to which
an appeal by way of
analogy was made. Fifty years ago it was
decided that an obligation (be it
noted of a far more specific and
transmissible character than the obligation
with which we are
concerned) relating to the use of land, of a personal
nature, was
not binding on a purchaser, and Buckley L.J. in his judgment
in
the Court of Appeal refuted precisely the argument which was
advanced
here. I refer to page 657 of his judgment in which he
pointed out that the
obligation, though relating to the use of
land, was a personal obligation
and quoted from the judgment of
Collins L.J. in Rogers v. Hosegood [1900]
2 Ch. 388
at p. 407) where he said " The covenant must be one that is
"
capable of running with the land before the question of the
purchaser's
" conscience and the equity affecting it can come
into discussion." There
may, I recognise, be something to be
said for the view that the courts have,
in this field, taken too
strict a line, but what is quite certain is that if the
wife's
claim here is to be binding on her husband's mortgagee, that must
be
so not by analogy with the law of restrictive covenants but by
extension, and
considerable extension, from it. But it can hardly
be said that a suitable
subject for any such extension is to be
found in the husband's marital
obligations to his wife.
Lastly, an
analogy was sought to be drawn with such an equitable claim
as one
for rectification or rescission on the ground of fraud. But even
if
such an " equity " can be binding on the purchaser of
a legal estate in land,
that can only be on the footing that the
purchaser, taking under an instru-
met, cannot claim the benefit
of it if he knows that there is a good equitable
claim to reform
it (see per Lord Westbury, L.C. in Phillips v. Phillips
4 De
G.F. & J. p. 215). Such a case bears no relation
to the present.
In my
opinion, even if one accepts the description of the wife's right
as
an " equity ", that does nothing to elevate the right from
one of a personal
character, to be asserted against the husband,
to one which is binding
23
on
successors in title to the land. The word is, like "licensee",
another
label which of itself adds nothing to the argument.
So now at
last I come to the authorities as to the position of the
deserted
wife. The first case in which a purchaser was affected
was Thompson v.
Earthy [19511 2 K.B. 596. There the
desertion was established and the case
was argued and decided on
the assumed basis that the purchaser from the
husband knew of the
latter's prior desertion. Roxburgh J. decided that the
purchaser
was entitled to possession against the deserted wife. I quote
from
his judgment because it contains so much of the argument which,
for
my part, I find relevant to the present case:
" But
this is not a case between husband and wife at all. So far
"
as I know, there is no legal obstacle to prevent the purchaser from
"
bringing an action in tort against the wife. The real question is.
"
whether or not the wife has any legal or equitable interest in the
"
premises which runs with the premises so as to bind them in the
"
hands of a purchaser. I have never heard of, and no authority has
"
been cited to me which suggests that there is, any estate or
interest
" in land of this character. On the contrary, the
authorities which
" have been cited to me suggest, though
they do not decide, that there
" is not. For instance,
Denning L.J. in Old Gate Estates Ltd. v.
" Alexander
was careful to point out that the wife is not the sub-tenant
"
or licensee (and it is the word ' licensee' that I desire to stress)
of her
" husband.
" In
those circumstances I should pause long before declaring the
"
existence of a new species of equitable right hitherto never
suggested ;
" and I should be particularly slow to do such a
thing when I realize
" that the vendor, at any rate, has a
remedy under the Married Women's
" Property Act. The court
may not exercise it in his favour, but he
" has a right to
apply to the court for possession against his wife under
"
that Act, and the court may or may not exercise the discretion in
"
his favour. But the purchaser could not apply under that Act;
"
and therefore, if I were to invent this new equitable interest, she
"
would be in a worse position than the vendor from whom she has
"
purchased.
" In
these circumstances I decline to declare the existence for the
"
first time of a suggested equitable interest for which there is no
"
previous authority whatever. The position is that the purchaser has
"
proved her title to the land. The wife has proved no estate or
"
interest, legal or equitable, in the land. She is accordingly a
tres-
" passer, and I must order her to deliver up possession
to the plaintiff."
This case
has never been expressly overruled but, as Roxburgh J. himself
in
a later case (Churcher v. Street [1959] Ch. 251) felt obliged
to recognise,
subsequent decisions inconsistent with it have been
given. In my opinion,
the decision was entirely correct and its
validity ought to be affirmed.
The key
decision in favour of the doctrine of the deserted wife's equity
is
that of the Court of Appeal in Bendall v. McWhirter
(supra). This case
has the special feature that it was
concerned not with a purchaser or
mortgagee but with the husband's
trustee in bankruptcy, but it has been
treated as an authority of
general scope. In my opinion, that is correct
and no distinction
relevant to the issue now before us can validly be made
between
trustees in bankruptcy on the one hand and purchasers or mort-
gagees
on the other. The test, on the question whether the deserted wife
has
a right to remain in occupation of the premises must, as the Court
of
Appeal thought, be whether she has something affecting the
title to the
land, of the nature of a real right, in which case
the land would be bound
in the hands of the trustee, or whether,
on the other hand, she merely has
certain in personam claims
against her husband. Denning L.J. (as he then
was) put the
alternatives in this way—" Is it [sc. the wife's right] a
clog
" or fetter on the land itself, like a lien, or is it a
mere personal claim like
" her claim to maintenance "
(p. 478). The Court of Appeal decided that
24
she had a
right affecting the husband's property, the majority (Somervell
and
Romer L.JJ.) holding that it was in the nature of a clog or fetter
on
the debtor's title, Denning LJ. accepting this but going
further to hold
that it was an " equity " ; or that she
was a " licensee with a special right ":
he agreed that
she has no legal interest in the land.
One may
pause here to consider the consequences of this holding—taking
as
a test case that of a wife, left without means in the house of
a
bankrupt husband who has creditors but no assets. The decision
involves
that the wife may stay in the house. To leave the matter
there would
obviously prejudice the creditors, so what is said is
that she cannot stay
indefinitely, she stays subject to the
discretion of the Court (see per
Denning L.J. pp. 484-5). But this
involves nothing less than that the wife
is to be allowed to hold
on for a time, however short does not matter
in principle, to the
only asset of the bankrupt. No justification can be
found for this
in the law of bankruptcy: our law does not, as does the
law in
many places (particularly in the U.S.A. and Canada), recognise a
"
homestead " right of the wife, nor does it give the wife of a
bankrupt
any preference or priority—perhaps it ought to do
so—but in fact the
wife of a bankrupt is left to depend upon
the share of his future earnings.
Yet this decision in effect
gives her a most important measure of preference,
or security,
over the unsecured creditors of her husband, wholly extra-
statutory,
emerging for the first time by judicial decision in 1952.
The
anomalous character of this right to remain, as against a
trustee in bank-
ruptcy, is underlined when one compares the case
of a deserted wife with
that of a married woman not deserted but
living with her husband in a
house of his. If he becomes bankrupt,
there is no doubt but that the
trustee is entitled to the house
and that he may obtain an order in rem
for possession of
it, which is effective against both husband and wife: but
why
should the wife's position be worse in this case than if she had
been
deserted by her husband, possibly just before the bankruptcy?
From the
interlocutory observations reported in the case, it seems that
the
members of the Court of Appeal felt, strongly at one time, the
difficulties
in the way of the deserted wife. With the benefit of
the further exploration
of the doctrine that has since taken
place, and of the argument that your
Lordships have heard, I am
clearly of opinion that in the end they took
ihc wrong road and
that the decision, whether for the reasons given by the
majority
of the court or for those given by Denning L.J. cannot be
supported.
The wife's claim should have been recognised for what
it is, a personal
claim to support, which can be satisfied by the
provision of a home, and
not as something attaching to the
property which can follow it into the
trustee's hands.
II Bendall
v. McWhirter is overruled, as I think it must be, those
cases
which depend upon it cannot stand: these include Street
v. Denham ([1954]
I W.L.R. 624) in which Lynsky J.,
against his own judgment, felt obliged to
follow Bendall v.
McWhirter; Woodcock v. Hobbs [1955] 1 W.L.R. 152
(an
unsatisfactory case in any event since the point of law was not
argued);
Churcher v. Street [1959] ch. 251 ;
Ferris v. Weaven ([1952] 2 A.E.R. 233) I
regard as a
very special case where there was every justification for
regarding
the purported sale as a complete sham.
If this
conclusion seems somewhat drastic it is right to have in mind, and
to
record, that many learned judges have expressed their doubts as to
the
soundness of the doctrine as it has evolved in relation to
third parties. In
Bendall v. McWhirter itself the
majority of the Court of Appeal did not
put the doctrine upon so
broad a basis as Denning L.J. in that case and
other later
decisions has done, and Lynsky J. (in Street v. Denham),
Harman
J. (in Barcleys Bank v. Bird [1954] ch.
274) Parker L.J. in Woodcock v.
Hobbs (v.s.) Upjohn J. in
Westminster Bank v. Lee (v.s.) Roxburgh J. in
(Thompson
v. Earthy (v.s.) and Churcher v. Street (v.s.))
have all, to different
degrees, indicated that their own views
would not have been in favour of it.
The reasoning, too, of
Jenkins L.J. in Bradley-Hole v. Cusen [1953] 1 Q.B.
300
at page 306, though following the decision in Bendall v.
McWhirter is
25
cogently
destructive of it, or at least of the " equity " theory.
His judgment
contains this passage: " The husband was under a
personal obligation to his
" wife based on their
relationship, to permit her to remain in the matrimonial
"
home. If the trustee was simply in the position of an ordinary
assignee
" of the house, I should have thought that there
would be grave difficulty
" in seeing how there was any
interest in the wife which could override his
" interest as
assignee, for the husband's obligation to the wife was, as I have
"
said, a purely personal obligation." I should add that I have no
reason
to doubt that the decision in that case, which was not
concerned with a
deserted wife but simply with the relation of
landlord and tenant, was correct.
Lastly the doctrine has met with
a mixed reception overseas—I would
particularly refer to the
Victoria case of Brennan v. Shall (1953) V.L.R,
111
where, as early as 1953, Sholl J. gave powerful reasons for
preferring
Thompson v. Earthy (v.s) to Bendall v.
McWhirter (v.s.) and to the decision
of the Full Court of
New South Wales in Dickson v. McWhinnie (1958)
S.R,
(N.S.W.) 179.
The
deserted wife therefore, in my opinion, cannot resist a claim from
a
" purchaser " from her husband whether the "
purchase " takes place after
or before the desertion. As
regards transactions subsequent to the desertion
this disability
is somewhat mitigated by three factors. First, if it appears that
the
husband is threatening to dispose of the house in such a manner as
to
defeat her rights, she may be able to obtain an injunction to
restrain him from
doing so (Lee v. Lee [1952] 2 Q,B. 489).
An injunction is, of course, a
discretionary remedy and it does
not follow that the wife will be granted it
in every case, but in
suitable circumstances she has this protection. Secondly,
the
courts have ample powers to detect, and to refuse to give effect to,
sham
or fraudulent transactions—such as that which was
attempted in Ferris v.
Weaven. Thirdly, there are
some extensive powers conferred by statute
(Matrimonial Causes
(Property and Maintenance) Act, 1958,) to set aside
dispositions
aimed at defeating the wife's right to maintenance: these powers
were
in fact used in the present case to set aside the husband's transfer
of
the house to a company, and they go some distance towards
protecting the
legitimate claims of deserted wives. As regards
those cases (and I recognise
that they may exist) which fall
outside, the deserted wife may be left
unprotected—she may
lose her home. As to them, it was said by Rox-
burgh J. in
Churcher v. Street ([19591 ch. p. 251, at p. 258): "
It would have
" been an advantage, in my view, if Parliament,
rather than a higher court,
" had intervened, because, in
order to prevent certain cases of injustice to
" deserted
wives, a position has been brought about which may produce
"
considerable injustice to other people unless each case is brought
before
" the courts, which is a course involving considerable
expenditure". I
respectfully agree with this statement.
The second
point in this appeal arises from the fact that this land
is
registered land. Under the Land Registration Act, 1925,
(section 20), a
registered disposition for valuable consideration
(such as the Bank has here)
passes a legal estate to the
transferee subject only to over-riding interests. A
list of "
overriding interests " is given in section 70 and includes
(subsection
(1) (g)): "The rights of every
person in actual occupation of the land or
" in receipt of
the rents and profits thereof, save where enquiry is made of
"
such person and the rights are not disclosed."
There are
two quite separate ways in which this subsection has been
invoked
on behalf of the Respondent; one is that adopted by Lord Denning
M.R.
in the Court of Appeal, the other that which found favour
with
Donovan L.J.
Lord
Denning said of the subsection that it " is a statutory
application to
" registered land of the well known rule
protecting the rights of persons in
" occupation ".
I entirely
agree with this and (as I shall shortly show) it provides the
best
argument against the alternative approach adopted by Donovan
L.J. Lord
Denning went on (and it is here that I find myself
unable to follow him) to
26
found an
argument, that the wife's right (in his view an " equity ")
is an over-
riding interest, in a phrase used by Lord Kingsdown in
Barnhart v. Green-
shields (9 Moo P.C. 18 at p. 32) where
he said " if there be a tenant in posses-
" sion of land
a purchaser is bound by all the equities which the tenant could
"
enforce against the vendor ". I have already commented on the
description
of the wife's right against her husband as an "
equity ", and I do not think
that any support can be found in
this passage for a proposition that an
unenquiring purchaser is
bound by purely personal rights. What Lord Kings-
down was
concerned with was an equity of redemption, a well known type
of
transmissible interest and the principle which he states is that the
posses-
sion of the tenant is notice that he has some interest in
the land (ibid. p. 32).
His proposition is limited to this
type of case.
That this
is so is confirmed by the Court of Appeal devision of Reeves
v.
Pope [1914] 2 K.B. p. 284 (to which it seems that
the Court of Appeal in this
case was not referred). There the
person in occupation had a claim by way
of damages against his
lessor which it was held he could not enforce against
a mortgagee
from the latter with notice of his claim. Counsel for the
Appellant
put this proposition " If a person purchasing property, when
there
" is a tenant in possession, neglects to enquire into
the title, he takes subject
" to any rights which the tenant
may have." To which Buckley L.J. is reported
to have
observed: —" This right which is claimed is not an
interest in the
land ", and Lord Reading C.J. in his judgment
stated that once it was
ascertained that the right was only a
claim for damages for breach of a
personal covenant and was not an
interest in the land such authorities as
Barnhart v.
Greenshields were not in point. And Buckley L.J. in his
judgment
said: "... The doctrine is this—that, whether
there be a purchaser or
" mortgagee (it does not matter
which), and the purchaser or mortgagee finds
" a tenant in
possession, he is bound to assume that the tenant in possession
"
has some interest in the land. He may inquire what it is, or forbear
to
" inquire, as he thinks proper, but if he does not inquire
he must give effect to
" it, whatever the interest in point
of fact is. Now, is that doctrine confined
" entirely to the
interest of the tenant in the land? All that these mortgagees
"
knew was that there were such facts as that the tenant was saying ' I
have
' a personal right against the mortgagor to damages in
respect of his having
" ' failed to perform some obligation
which lay upon him to do something
" ' upon the land '."
In my
opinion, the right of the wife here is of the same character as
the
right of the occupier in Reeves v. Pope: under
the general law it is not such
a right as affects a purchaser,
even one with notice, and all that section
70 (1) (g) of
the Land Registration Act, 1925, does is to adapt the system
of
registration, and the modified form of enquiry which is
appropriate to that
system, to the same kind of right as under the
general law would affect a
purchaser finding a person in
occupation of his land.
This
brings me to the more radical argument of Donovan L.J. which
involves
that any right of an occupier becomes by this subsection binding
on
a purchaser who does not enquire. The answer to this, in my view,
is
that provided by Lord Denning in the passage I have already
quoted. This
Act is a registration Act concerned (in this
instance) to provide that certain
rights are to be binding without
registration and without the necessity for
actual notice. To
ascertain what " rights " come within this provision,
one
must look outside the Land Registration Act and see what
rights affect pur-
chasers under the general law. To suppose that
the subsection makes any
right, of howsoever a personal character,
which a person in occupation may
have, an overriding interest by
which a purchaser is bound, would involve
two consequences: first
that this Act is, in this respect, bringing about a
substantive
change in real property law by making personal rights
bind
purchasers: second, that there is a difference as to the
nature of the rights
by which a purchaser may be bound between
registered and unregistered
land ; for purely personal rights
including the wife's right to stay in the
house (if my analysis of
this is correct) cannot affect purchasers of unregistered
land
even with notice. One may have to accept that there is a
difference
between unregistered land and registered land as
regards what kind of notice
binds a purchaser, or what kind of
enquiries a purchaser has to make. But
27
there is
no warrant in the terms of this paragraph or elsewhere in the Act
for
supposing that the nature of the rights which are to bind a
purchaser
is to be different, excluding personal rights in one
case, including them in
another. The whole frame of section 70,
with the list that it gives of
interests, or rights, which are
overriding, shows that it is made against a
background of
interests or rights whose nature and whose transmissible
character
is known, or ascertainable, aliunde, i.e. under other statutes
or
under the common law. So, if the right of a deserted wife is a
purely
personal claim against her husband, not specifically
related to the house in
question, but merely, at its highest, to
be provided with a home, there is no
difficulty in seeing that
this type of right cannot, any more than any purely
contractual
right, be an over-riding interest.
Cross J.
in effect decided this point in this way: he felt himself bound
to
assume (following Bendall v. McWhirter) that in certain
cases assignees of
the proprietor of the land would be bound by
the wife's right, but neverthe-
less he held that, apart from
these cases, the wife had no overriding interest.
Liberated from
Bendall v. McWhirter he would, it seems, have taken
the
same view of the subsection as I have done, as in fact did
Russell L.J. in the
Court of Appeal: I desire to express my
concurrence with Russell L.J.'s
judgment on this point. In my
opinion, section 70 (1) (g) of the Land
Registration Act,
1925, does not assist the Respondent. I should add that
an
additional argument was put forward by the Appellant that the
deserted
wife is, in any event, not in " actual occupation "
of the land, the suggestion
being that the occupier is the
husband, or perhaps the husband and wife
jointly. I prefer to
express no opinion on this point.
I agree,
therefore, that the Appellant succeeds on both points: the
appeal
must be allowed, and I concur in the form of Order which
has been proposed.
(P/32792) Wt. 8097—186 100 5/65 St.S.