National Provincial Bank Ltd v Ainsworth
[1965] 2 All ER 472(Decision by: Lord Upjohn)
Between: National Provincial Bank Ltd
And: Ainsworth
Judges:
Lord Hodson
Lord Cohen
Lord Guest
Lord UpjohnLord Wilberforce
Subject References:
LAND
Property Rights
HUSBAND and WIFE
Deserted wife's right to remain in occupation of matrimonial home
No such proprietary right
Registered land
Overriding interest
Personal right not an overriding interest
Legislative References:
Land Registration Act, 1925 (15 & 16 Geo 5 c 25) - s 70(1)(g)
Case References:
Aaron v Aaron - (1944) 61 WN (NSW) 93; 2nd Digest Supp
Appleton v Appleton - [1965] 1 All ER 44; [1965] 1 WLR 25
Barclays Bank Ltd v Bird - [1954] 1 All ER 449; [1954] Ch 274; [1954] 2 WLR 319; 35 Digest (Repl) 457, 1477
Barnhart v Greenshields - (1853) 9 Moo PCC 18; 22 LTOS 178; 14 ER 204; 20 Digest (Repl) 319, 569
Bendall v McWhirter - [1952] 1 All ER 1307; [1952] 2 QB 466; 3rd Digest Supp
Bramwell v Bramwell - [1942] 1 All ER 137; [1942] 1 KB 370; 111 LJKB 430; 27 Digest (Repl) 261, 2109
Brennan v Thomas - [1953] VLR 111; [1953] ALR 214; 3rd Digest Supp
Brown v Draper - [1944] 1 All ER 246; [1944] KB 309; 113 LJKB 196; 170 LT 144; 31 Digest (Repl) 661, 7623
Cardiff Corpn v Robinson - [1956] 3 All ER 56; [1957] 1 QB 39; 120 JP 500; 38 Digest (Repl) 482, 52
Churcher v Street - [1959] 1 All ER 23; [1959] Ch 251; [1959] 2 WLR 66; 3rd Digest Supp
Clore v Theatrical Properties Ltd and Westby & Co Ltd - [1963] 3 All ER 483; 30 Digest (Repl) 535, 1703
Cobb v Cobb - [1955] 2 All ER 696; [1955] 1 WLR 731; 3rd Digest Supp
De Mattos v Gibson - (1859) 4 De G & J 276; 28 LJCh 498; 33 LTOS 193; 45 ER 108; 35 Digest (Repl) 573, 2491
Dickson v McWhinnie - [1958] SR (NSW) 179; 75 WN 204; 3rd Digest Supp
Dillwyn v Llewelyn - [1861-73] All ER 384; (1862) 4 De GF & J 517; 31 LJCh 658; 6 LT 878; 45 ER 1285; 25 Digest (Repl) 589, 281
Doe d Merigan v Daly - (1846) 8 QB 934; 7 LTOS 160; 115 ER 1126; sub nom Doe d Daley v Daley; 15 LJQB 295; 27 Digest (Repl) 260, 2103
Dudley (Lord) v Lady Dudley - (1705) Prec Ch 241; 24 ER 118; 20 Digest (Repl) 252, 1
Dunn v Dunn - [1948] 2 All ER 822; [1949] P 98; [1949] LJR 87; 112 JP 436; 27 Digest (Repl) 336, 2796
Errington v Errington - [1952] 1 All ER 149; [1952] 1 KB 290; 3rd Digest Supp
Ferris v Weaven - [1952] 2 All ER 233; 3rd Digest Supp
Foster v Robinson - [1950] 2 All ER 342; [1951] 1 KB 149; 31 Digest (Repl) 698, 7888
Gorulnick v Gorulnick - [1958] 1 All ER 146; [1958] P 47; [1958] 2 WLR 58; 3rd Digest Supp
H v H - see Hutchinson v Hutchinson
Harriman v Harriman - [1908-10] All ER Rep 85; [1909] P 123; 78 LJP 62; 100 LT 557; 73 JP 193; 27 Digest (Repl) 363, 3005
Henderson v Henderson - (1950) 51 SR (NSW) 217
Hill v Hill - [1916] WN 59; 27 Digest (Repl) 261, 2107
Hine v Hine - [1962] 3 All ER 345; [1962] 1 WLR 1124; 3rd Digest Supp
Hole v Cuzen - [1953] 1 All ER 87; sub nom Bradley-Hole v Cuzen; 3rd Digest Supp
Hutchinson v Hutchinson - [1947] 2 All ER 792; sub nom H v H; 27 Digest (Repl) 263, 2121
Jones v Smith - (1841) 1 Hare 43; 11 LJCh 83; 66 ER 943; 20 Digest (Repl) 341, 706
King v David Allen & Sons, Billposting Ltd - [1916-17] All ER Rep 268; [1916] 2 AC 54; 85 LJPC 229; 114 LT 762; 30 Digest (Repl) 542, 1763
Lee v Lee - [1952] 1 All ER 1299; [1952] 2 QB 489; 3rd Digest Supp
Lloyds Bank Ltd v Oliver's Trustee - [1953] 2 All ER 1443; [1953] 1 WLR 1460; 3rd Digest Supp
London & South Western Ry Co v Gomm - [1881-85] All ER Rep 1190; (1881), 20 ChD 562; 51 LJCh 193; 45 LT 505; 37 Digest (Repl) 91, 267
London County Council v Allen - [1914-15] All ER Rep 1008; [1914] 3 KB 642; 83 LJKB 1695; 111 LT 610; 78 JP 449; 40 Digest (Repl) 328, 2698
Maio v Piro - [1956] SASR 233
Malden & Coombe Corpn v Bennett - [1963] 2 All ER 527; [1963] 1 WLR 652; 127 JP 411; 3rd Digest Supp
Middleton v Baldock - [1950] 1 All ER 708; [1950] 1 KB 657; 31 Digest (Repl) 698, 7894
Nisbett & Potts' Contract, Re - [1905] 1 Ch 391, CA; [1904-07] All ER Rep 865; [1906] 1 Ch 386; 75 LJCh 238; 94 LT 297; 40 Digest (Repl) 81, 613
Old Gate Estates Ltd v Alexander - [1949] 2 All ER 822; [1950] 1 KB 311; 31 Digest (Repl) 726, 8090
Pargeter v Pargeter - [1946] 1 All ER 570; 27 Digest (Repl) 260, 2104
Phillips v Phillips - (1862) 4 De GF & J 208; 31 LJCh 321; 5 LT 655; 45 ER 1164; 20 Digest (Repl) 276, 202
Public Trustee v Kirkham, Kirkham v Kirkham - [1956] VLR 64
Reeves v Pope - [1914] 2 KB 284; 83 LJKB 771; 110 LT 503; 31 Digest (Repl) 267, 4008
Rimmer v Rimmer - [1952] 2 All ER 863; [1953] 1 QB 63; 3rd Digest Supp
Rogers v Hosegood - [1900-3] All ER Rep 915; [1900] 2 Ch 388; 69 LJCh 652; 83 LT 186; 40 Digest (Repl) 340, 2769
Rogers' Question, Re - [1948] 1 All ER 328; 27 Digest (Repl) 264, 2130
Shipman v Shipman - [1924] All ER Rep 365; [1924] 2 Ch 140; 93 LJCh 382; 131 LT 394; 27 Digest (Repl) 258, 2091
Short v Short - [1960] 3 All ER 6; [1960] 1 WLR 833; 3rd Digest Supp
Stewart v Stewart - [1947] 2 All ER 813; [1948] 1 KB 507; [1948] LJR 799; 27 Digest (Repl) 263, 2125
Street v Denham - [1954] 1 All ER 532; [1954] 1 WLR 624; 3rd Digest Supp
Symonds v Hallett - (1883), 24 ChD 346; 53 LJCh 60; 49 LT 380; 27 Digest (Repl) 258, 2090
Taylor v McHale - (1948), 151 EG 371
Thomas v Sorrell - (1673) Vaugh 330; 3 Keb 264; Freem KB 137; 124 ER 1098; 30 Digest (Repl) 527, 1645
Thompson v Earthy - [1951] 2 All ER 235; [1951] 2 KB 596; 115 JP 407; 27 Digest (Repl) 81, 621
Wabe v Taylor - [1952] 2 All ER 420; [1952] 2 QB 735; 3rd Digest Supp
Webb v Paternoster - (1619), 2 Roll Rep 143; 152, Palm 71; Poph 151; 81 ER 713, 719; 30 Digest (Repl) 539, 1725
Weldon v Weldon - (1883), 9 PD 52; 53 LJP 9; subsequent proceedings (1885), 54 LJP 60; 27 Digest (Repl) 284, 2289
Westminster Bank Ltd v Lee - [1955] 2 All ER 883; [1956] Ch 7; [1956] 3 WLR 376; 3rd Digest Supp
Wilson v Wilson - [1963] 2 All ER 447; [1963] 1 WLR 601; 3rd Digest Supp
Woodcock (Jess B) & Son Ltd v Hobbs - [1955] 1 All ER 445; [1955] 1 WLR 152; 20 Digest (Repl) 349, 775
Judgment date: 13 May 1965
Decision by:
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 s 70 of the Land Registration Act, 1925. However, as the question is of great importance in connexion with unregistered land, and furthermore as it is, in my opinion, proper to approach the true construction of s 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 s 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-(i) the right and duty of the spouses to live together, and (ii) 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. I need not quote again the well known words of Sir James Hannen P ((1883), 9 PD at p 55.), 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 obtaining 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 necessaries, though by many statutes a wife has been able to obtain orders for maintenance where the husband is shown 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 p 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 Oliver's Trustee. But, on the other hand, having regard to the duty of the spouses to live 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, Neville J by interlocutory injunction ordered the wife to leave the husband's house, though it formed the matrimonial home, because the wife was contumaciously preventing it from being 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, 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. Sir Ernest Pollock MR after quoting from the judgment of Cotton LJ in Symonds v Hallett ((1883), 24 ChD 346 at p 351.) said ([1924] All ER Rep at p 366, [1924] Ch at p 145.):
"while regarding 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 ([1947] 2 All ER 813 at p 814, [1948] 1 KB 507 at p 513.), Tucker LJ said:
"... but the cases show that, whether in [section 17] or some other form of proceeding, the court will be very slow to make any order dealing with the legal rights of the parties which might have the effect of depriving either the wife or the husband of her or his right to occupy the matrimonial home."
The earlier authorities were recently considered in Gorulnick v Gorulnick, 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 injunction 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 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 Corpn v Robinson and Malden & Coombe Corpn v Bennett. 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; Old Gate Estates Ltd v Alexander and Middleton v Baldock. 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 occupation as the wife of the tenant (a matter that I shall discuss more fully in a moment), the tenant cannot agree to ignore her lawful occupation and treat her as a trespasser unless he has made proper alternative provisions for her. Taylor v McHale 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.
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 that 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". 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.
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 safeguarding her position: Lee v Lee. 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 show that, provided the wife's marital rights are adequately safe-guarded in some such way, 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 jurisdiction. 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. 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.
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 remedies, 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 importance 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). Surely, however, any enquiry, 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 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 unnecessary harm will be done. I discussed some aspects of this matter in Westminster Bank Ltd v Lee and Russell LJ discussed it at greater length in the court below ([1964] 1 All ER at p 703, [1964] Ch at p 699.). 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 enquiry 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 enquiries 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 enquiry if the answer to be expected will probably lead to no conclusion which can inform the enquirer with any certainty as to the rights of the occupant. These considerations give strong support to the opinion which I have already expressed that the rights of the wife must be regarded as purely personal between herself and her husband.
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 MR has pointed out ([1964] 1 All ER at p 693, [1962] Ch at p 683, 684.), the principle was originally founded on the assumption that possession by a deserting husband could only be obtained by an application under s 17 of the Married Women's Property Act, 1882, for a husband could not sue his wife in tort. This stems from certain obiter observations made by Goddard LJ in Bramwell v Bramwell to the effect that the plaintiff ought to have proceeded under s 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. I share the doubts of Devlin LJ in Short v Short ([1960] 3 All ER 6 at p 18.) on the correctness of these observations of Goddard LJ. Furthermore, the wife is lawfully in possession, she is not a trespasser as Goddard LJ 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, in every Division many orders with regard to possession of the property of the spouses are made; and they are made without particular reliance on s 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 the Law Reform (Husband and Wife) Act, 1962.
Apart from this, however, I cannot understand how a purely procedural section, such as s 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 Lord Denning MR I am of opinion that he has put a far too wide construction on this section. In H v H ((1947), 63 TLR 645 at p 646.), he said in reference to the ambit of s 17: "the judge should have a free hand to do what is just." In the recent case of Hine v Hine ([1962] 3 All ER 345 at p 347.), he said of the section: "Its discretion transcends all rights, legal or equitable ... " I prefer the approach of Devlin LJ in Short v Short ([1960] 3 All ER at p 18.). The powers of the court under s 17, as the learned lord justice said, are substantially the same as in any other proceeding where the ownership of 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] 2 All ER 696 at p 700.), Romer LJ said:
"... I know of no power that the court has under s. 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 frequently has to do so on very little material; but where, as here, the original rights to property are established by the evidence and those rights have not been varied by subsequent agreement, the court cannot in my opinion under s. 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 LJ in Wilson v Wilson ([1963] 2 All ER 447 at p 452.).
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 common 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 inextricably entangled or become legally incapable of solution that an equitable knife must be used to sever the Gordian knot: Re Rogers' Question and Rimmer v Rimmer are typical examples. When once the relevant document has been construed, however, or the rights as to title have been 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 too wide construction of s 17, I would not myself regard the recent cases of Hine v Hine and Appleton v Appleton as correctly decided. In the former case, the intention of the parties was clear, assuming that 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 on 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 Jess B Woodcock & Son Ltd v Hobbs. 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 ([1964] 1 All ER at p 695, [1964] 1 Ch at p 686.):
"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 Ltd v Lee 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, eg, 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 contrary to my opinion that such a right is capable of reasonable definition) is not per se sufficient. The general observations of Knight Bruce LJ in De Mattos v Gibson ((1859), 4 De G & J 276 at p 282.), with regard to the obligations imposed by mere notice of a covenant cannot be applied to the law of real property: see London County Council v Allen ([1914-15] All ER Rep 1008 at p 1014, [1914] 3 KB 642 at p 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 statute) create a burden on the land, ie, an equitable estate or interest in the land. All this was pointed out in the closely analogous case of restrictive covenants by Farwell J in Re Nisbett & Potts' Contract ([1905] 1 Ch 391 at pp 397, 398.), 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 Jones v Smith ((1841), 1 Hare 43 at p 60.) and Barnhart v Greenshields. This, I think, is quite clear from Reeves v Pope: see the interjection of Buckley LJ ([1914] 2 KB at p 286.), and the judgment of Lord Reading CJ ([1914] 2 KB at pp 288, 289.). 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 and Property Lawyer 343 at p 346:
"... beneficial interests under trusts, equitable mortgages, vendor's 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's Principles of Equity (25th Edn) at p 18, I shall attempt no definition of that phrase. It was illustrated in the case before me of Westminster Bank Ltd v Lee, where I was constrained 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. 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 on, an equitable estate or interest in the land. As Mr Megarry has pointed out in 71 Law Quarterly Review 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 on enquiry to discover, that the tenant has in addition a mere equity, eg, 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 Lord Denning MR's 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 on an equitable interest does not bind purchasers.
Your lordships heard much interesting discussion as to the rights of contractual 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. Foster v Robinson and Errington v Errington were much canvassed before your lordships. In the latter case, the licensees were in exclusive occupation on 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 of authority starting with Webb v Paternoster, valid against all except a purchaser for value without notice. The more interesting and really text book case is Foster v Robinson. 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 LJ thinks, statutory legislation is required to bring about that result is a matter on which I propose to express no opinion. On the other hand, Roxburgh J in Thompson v Earthy ([1951] 2 All ER 235 at p 237, [1951] 2 KB 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, p 1. He does, I think, in that article underestimate the difficulties created by King v David Allen & Sons, Billposting Ltd and Clore v Theatrical Properties Ltd and Westby & Co Ltd. If, however, it is later decided that 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, to conclude my observations on unregistered land, 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. Ferris v Weaven may possibly be justified on its own facts.
I turn then to consider s 70 of the Land Registration Act, 1925. 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 s 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 LJ ([1964] 1 All ER at p 701, [1964] Ch at p 696.) 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 Lord Denning MR I think that 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, 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, Kirkham v Kirkham ([1956] VLR 64 at p 67.)), sitting in the same court, Herring CJ criticised the doctrine. In Maio v Piro, Ligertwood J sitting in the Supreme Court of South Australia followed Sholl J in preference to the English decisions. Finally, in Dickson v McWhinnie, the Full Court of New South Wales 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 which 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 that it is desirable that the recommendations of the Royal Commission on this subject should receive some further consideration.
I would allow this appeal.