National Provincial Bank Ltd v Ainsworth
[1965] 2 All ER 472(Decision by: Lord Hodson)
Between: National Provincial Bank Ltd
And: Ainsworth
Judges:
Lord HodsonLord Cohen
Lord Guest
Lord Upjohn
Lord 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 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 27 March 1963, by which he ordered the respondent to give possession of a dwellinghouse, 124 Milward Road, Hastings, where the respondent lives, on the application of the appellant, the National Provincial Bank Ltd who claims to be entitled as mortgagee to an order for possession.
The respondent is a married woman who was deserted by her husband on 17 August 1957, since when she has continued to make her home at the house with her children. On 14 August 1956, the husband was registered as the proprietor of the freehold property at 124, Milward Road. On 15 March 1961, the respondent was granted a decree of judicial separation, and on 2 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, and 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 17 December 1959, the husband conveyed both 7, Bank Buildings and 124, Milward Road to a company called
Hastings Car Mart 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 2 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 10 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 4 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 27 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 s 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, 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 of 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(1)(g) of the Land Registration Act, 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 consideration 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 proceeded on the principle that it was 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 PD 52 at p 55.) per Sir James Hannen P. The President went on to cite "the words of Blackstone":
"The suit for restitution of conjugal rights is brought whenever 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 s 22 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, 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 Jurisdiction (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 (Miscellaneous 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 on a settlement. His duty is to live with his wife and 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 had 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 relationship of the spouses may change by the wife losing 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 s 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 intervened by injunction to restrain a husband from entering into a contract for the sale of the house while his wife and children are living there until the husband provided suitable alternative accommodation; see Lee v Lee, 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. Questions have arisen in considering the extent of the discretion of the court under s 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 s 17 of the Act of 1882, s 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. 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, 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 also against third parties. As Lord Denning MR put it in his judgment in the present case ([1964] 1 All ER at p 693, [1964] Ch at p 684.): "But substantive law has a habit of being secreted in the interestices 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 ([1964] 1 All ER at p 694, [1964] Ch at p 684.) with approval a paragraph from the report of the Royal Commission on Marriage and Divorce (Command 1956, No 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 Lord Denning himself pointed out, the question is not here one between husband and wife but one which 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 on it created by the wife's irremovability?
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, 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 which 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 Bendall v McWhirter 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 LJJ) was that the trustee, by virtue of his statutory position, was subject to the same special restriction as prevented the husband from evicting the wife. The minority view propounded by Denning LJ 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 Hole v Cuzen, but the minority view was rejected per Jenkins LJ the other members of the court concurring, when he said that the wife's rights against her husband were "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, and accepted as correct in other cases, eg, Westminster Bank Ltd v Lee.
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 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 LJ 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, a decision which can be supported on that ground), and the court now has power [F2] 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. Denning LJ by way of analogy, referred to a number of authorities [F3] dealing with licences coupled with an interest or cases where money had been expended by a licensee in occupation of land. Dillwyn v Llewelyn 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), Vaugh 330 at p 351.) contains the classic definition of a licence propounded by Vaughan CJ:
"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 conception of it as one which affects interests in land becomes a difficult one. Looking on 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 Hill v Hill. 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 uncertain. 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. 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 s 17 of the Married Women's Property 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 Lord Dudley v Lady Dudley ((1705), Prec Ch 241 at p 244.):
"Now equity is no part of the law, but a moral virtue, which qualifies, 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 subtleties, 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, on 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 relating to real property express or implied is no longer executory so that the promises or lessee has acquired a right in respect of the property, a purchaser 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 17 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 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 Lord Denning MR ([1964] 1 All ER at p 697, [1964] Ch at p 689.) from Barnhart v Greenshields ((1853), 9 Moo PCC 18 at p 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 Lord Denning's judgment. Counsel for the appellant drew your lordships' attention to Reeves v Pope, where the equity claimed was based on a personal contract and the argument based on the dictum from Barnhart v Greenshields ((1853), 9 Moo PCC 18 at p 32.) was interrupted by Buckley LJ saying ([1914] 2 KB at p 286.), "This right which is claimed is not an interest in the land". In his judgment, Lord Reading CJ used these words ([1914] 2 KB at p 288.):
"The other case Barnhart v. Greenshields contains words which, taken by themselves, and apart from the rest of the case, and also from 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, 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, which proceeded on the footing that the case of a trustee in bankruptcy could not be effectively distinguished from that of a purchaser, must suffer the same fate. The same applies to Jess B Woodcock & Son Ltd v Hobbs, 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 LJ in that case, however, saw ([1955] 1 All ER at p 451.) 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 Ltd v Lee and Churcher v Street there was no argument but the equity was assumed. Having done the best that 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 LJ in excluding the right with which we are concerned from the category of "overriding" interests in s 70 and respectfully adopt the sentence where Russell LJ says ([1964] 1 All ER at p 701, [1964] Ch at p 696.):
"It seems to me that s. 70 of the Land Registration Act, 1925, 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 s 70. I have assumed for the purpose of my conclusion on the point of construction 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, Old Gate Estates Ltd v Alexander and Middleton v Baldock, 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 that they are conclusive on the construction of the words "in actual occupation" contained in s 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 twenty-eight 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.