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	United Kingdom House of Lords Decisions
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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: https://www.bailii.org/uk/cases/UKHL/1965/1.html Cite as: [1965] 3 WLR 1, [1965] 2 All ER 472, [1965] UKHL 1, [1965] AC 1175

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JISCBAILII_CASE_PROPERTY

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:

1. was the Respondent in actual occupation of 124, Milward Road
   within the meaning of the subsection?

2. 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—

1. the right and duty of the spouses to live together, and

2. 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:

1. His desertion of his wife is established and is not disputed by the
   Appellant Bank ;

2. The legal mortgage to the Bank was subsequent to the desertion ;

3. 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.

2. 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.

3. 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.

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