National Provincial Bank Ltd v Ainsworth

[1965] 2 All ER 472

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(Judgment by: Lord Wilberforce)

Between: National Provincial Bank Ltd
And: Ainsworth

Court:

Judges: Lord Hodson
Lord 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

Hearing date: 10-11, 15-18, 22-25 February 1965 and 2 March 1965
Judgment date: 13 May 1965

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Judgment by:
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. 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. 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 appellant's title is to be considered as derived from him. An important feature is that his title to it is registered at HM 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: (i) his desertion of his wife is established and is not disputed by the appellant; (ii) the legal mortgage to the appellant was subsequent to the desertion; (iii) the appellant 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 appellant 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 appellant 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 26 June 1965 (subject to liberty for either party to apply), paying to the appellant a weekly sum of £3 per week. It is from that decision that the appellant now appeals. The appeal raises two questions, one of general, the other of more limited scope. The general question is whether the respondent, 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 appellant 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 "overriding interest". If it is, it may prevail over the legal interest of the appellant, 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 appellant.

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 1952 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, moreover, 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 of 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. Doe d Merigan v Daly is of interest not only because it shows this, but also 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 (cf Bramwell v Bramwell ([1942] 1 All ER 137 at pp 138, 139, [1942] 1 KB 370 at p 374.) per Goddard LJ; Hill v Hill (a decision received, in my experience, with some caution), and in New South Wales Aaron v Aaron and Henderson v Henderson)-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 s 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 considerations 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 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 on 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 ((1883), 9 PD 52 at p 56.), per Sir James 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, ie, by living with her and supporting 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 specific 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 s 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 successors in title. Secondly, the section has been treated, rightly in my opinion, as conferring on 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. 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 LJ ([1947] 2 All ER at p 814, [1948] 1 KB at p 513.):

"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 show that, whether in that 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 cases show that, whether it is an injunction that is being granted or some other form of relief, great care must be taken in a normal case where there is a subsisting marriage between husband and wife, the parties hitherto living together, and no order having been made by the Divorce Court or by justices giving the one the right to live apart from the other, to see that the rights of the wife or the husband should be safeguarded in the form of the order made. I do not think the cases go beyond that."

The reference will be noted to-"that form [sc under s 17] or some other form of proceeding"-and there is further authority to show that the discretion is the same whatever the nature of the proceedings may be. I may refer to Shipman v Shipman, a case where the wife was seeking relief in respect of some property of hers under s 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 Ernest Pollock MR said ([1924] All ER Rep at p 366, [1924] 2 Ch at p 145.) of the doctrine of a court of equity that:

"while regarding 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 support; 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. 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 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 definitive, 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 permanence 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 LJ said in Bendall v McWhirter ([1952] 1 All ER at p 1311, [1952] 2 QB at p 477.) that it "flows from the status of marriage, coupled with the fact of separation owing to the husband's misconduct", and in Lloyds Bank Ltd v Oliver's Trustee, 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 circumstances may prescribe, but would create impossible difficulties for those dealing with the property of a married man. It would mean that the concurrence 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 during 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, Jess B Woodcock & Son Ltd v Hobbs ([1955] 1 All ER 445 at p 449.). 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 appellant in this case has been held so to take. 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 Act of 1882 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 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 Lord Denning MR has said ([1964] 1 All ER at p 698, [1964] Ch at p 691.), 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. 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.

I must refer briefly, however, 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 binding 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? In what enquires 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 enquiries and inspection had been made as ought reasonably to have been made by him. What does this involve? He would, no doubt, inquire 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 investigation, 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 LJ in his judgment in the Court of Appeal ([1964] 1 All ER at p 704, [1964] Ch at p 701.). 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 generally, 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 on 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 sometimes 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 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 cohabitation and support and the right to resist dispossession by her husband if that would interfere with marital rights. What is not surely legitimate is to start by describing the wife as a licensee, and then to ascribe 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 (eg, 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 by which licences, or at least licences coupled with occupation, are binding on "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 anything 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 on which to determine the character of the wife's rights. I would only add, with reference to the authorities (i) 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 and Clore v Theatrical Properties Ltd and Westby & Co Ltd are put on one side as not, or no longer, relevant authorities; (ii) that, while accepting the actual decision, I do not find that Errington v Errington, even if reconcilable with the two cases which 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, ie, 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, and possibly before that date, the courts in a number of instances have given protection to deserted wives of tenants of rent controlled 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, Old Gate Estates Ltd v Alexander, Middleton v Baldock, and Wabe v Taylor. This doctrine now seems to be firmly established, although the Court of Appeal in Taylor v McHale decided in a contrary sense, but this has been passed over sub silentio in later authorities. 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 unprofitable 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 which 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 equitable interest in land: see Thompson v Earthy, 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 authorities, 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 enforced, 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 Denning LJ in Jess B Woodcock & Son Ltd v Hobbs ([1955] 1 All ER at p 449), and to Bendall v McWhirter ([1952] 1 All ER at pp 1313, 1314, [1952] 2 QB at p 481), where the comparison with restrictive covenants is made.

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. 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 Ry Co v Gomm ([1881-85] All ER Rep 1190 at p 1197, (1882), 20 ChD 562 at p 587.)-I refer to the judgment of Lindley LJ), but in the law of restrictive covenants to which an appeal by way of analogy was made. Fifty years ago, ^[F4] 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 LJ in his judgment in the Court of Appeal refuted precisely the argument which was advanced here. I refer to his judgment ([1914-15] All ER Rep at p 1013, [1914] 3 KB at p 657.), 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 LJ in Rogers v Hosegood ([1900-3] All ER Rep 915 at p 921, [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 instrument, cannot claim the benefit of it if he knows that there is a good equitable claim to reform it: see per Lord Westbury LC in Phillips v Phillips ((1862), 4 De GF & J 208 at 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 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. 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 ([1951] 2 All ER at p 237, [1951] 2 KB at p 599.):

"This, however, is not a case between husband and wife. 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 is capable of running with the premises so as to bind them in the hands of a purchaser. I have never heard of any estate or interest of this character in land, and no authority has been cited to me which suggests that there is any. The authorities which were cited suggest (though they do not decide) that there is no such estate or interest. For instance in Old Gate Estates, Ltd. v. Alexander [[1949] 2 All ER at p 825, [1950] 1 KB at p 319.] DENNING, L.J., is careful to point out that the wife 'is not the sub-tenant or licensee of the husband'-I stress the word 'licensee' ... For these reasons, I should pause long before declaring the existence of a new species of equitable right hitherto never suggested-especially as the husband himself has a right to apply to the court for possession against the [wife] under the Married Women's Property Act, 1882, s. 17, whether or not the court would exercise its discretion under the section in his favour. The [purchaser] however, 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 must decline to declare the existence of a suggested equitable interest for which there is no previous authority whatever. The [purchaser] has proved her title to the land. The [wife] has proved no estate or interest, legal or equitable, in the land, and, accordingly, she is a trespasser, 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 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. 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 mortgagees 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 LJ put the alternatives in this way ([1952] 1 All ER at p 1312, [1952] 2 QB at p 478.)-"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?" The Court of Appeal decided that she had a right affecting the husband's property, the majority (Somervell and Romer LJJ) 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 had 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 LJ ([1952] 1 All ER at pp 1315, 1316, [1952] 2 QB at pp 484, 485.). 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 USA 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 on 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 bankruptcy, 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 the wrong road and that the decision, whether for the reasons given by the majority of the court or for those given by Denning LJ 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. If Bendall v McWhirter is overruled, as I think it must be, those cases which depend on it cannot stand; these include Street v Denham in which Lynskey J against his own judgment, felt obliged to follow Bendall v McWhirter; Jess B Woodcock & Son Ltd v Hobbs (an unsatisfactory case in any event since the point of law was not argued); Churcher v Street. Ferris v Weaven 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 on so broad a basis as Denning LJ in that case and other later decisions has done, and Lynskey J (in Street v Denham), Harman J (in Barclays Bank Ltd v Bird), Parker LJ (in Jess B Woodcock & Son Ltd v Hobbs), Upjohn J (in Westminster Bank Ltd v Lee), Roxburgh J (in Thompson v Earthy and Churcher v Street), have all, to different degrees, indicated that their own views would not have been in favour of it. The reasoning, too, of Jenkins LJ in Hole v Cuzen ([1953] 1 All ER at p 91, [1953] 1 QB at p 306.), though following the decision in Bendall v McWhirter is 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 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, purely personal."

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 Thomas, where, as early as 1953, Sholl J gave powerful reasons for preferring Thompson v Earthy to Bendall v McWhirter, and to the decision of the Full Court of New South Wales in Dickson v McWhinnie.

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. 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 ([1952] 2 All ER 233.). Thirdly, there are some extensive powers conferred by statute (Matrimonial Causes (Property and Maintenance) Act, 1958, s 2) 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 Roxburgh J in Churcher v Street ([1959] 1 All ER at p 32, [1959] Ch 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 injustices to other people unless each case is brought before the courts, which is, after all, 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, s 20(1), a registered disposition for valuable consideration (such as the appellant has here) passes a legal estate to the transferee subject only to over-riding interests. A list of "overriding interests" is given in s 70, and includes (sub-s (1)(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."

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 MR in the Court of Appeal, the other that which found favour with Lord Donovan.

Lord Denning said ([1964] 1 All ER at p 696, [1964] Ch at p 689.) 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 Lord Donovan. Lord Denning went on (and it is here that I find myself unable to follow him) to found an argument ([1964] 1 All ER at p 697, [1964] Ch at p 689.) that the wife's right (in his view an "equity") is an overriding interest, in a phrase used by Lord Kingsdown in Barnhart v Greenshields ((1853), 9 Moo PCC at p 32.) where he 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."

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 Kingsdown was concerned with was an equity of redemption, a well-known type of transmissible interest, and the principle which he states is that the possession of the tenant is notice that he has some interest in the land ((1853), 9 Moo PCC at p 32.). His proposition is limited to this type of case. That this is so is confirmed by the Court of Appeal decision of Reeves v Pope (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 ([1914] 2 KB at p 286.)

"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 LJ is reported to have observed: "This right which is claimed is not an interest in the land", and Lord Reading CJ in his judgment ([1914] 2 KB at p 288.) 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. Buckley LJ in his judgment said ([1914] 2 KB at p 290.):

"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 enquire what it is, or forbear to enquire, as he thinks proper, but if he does not enquire 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 s 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 Lord Donovan ([1964] 1 All ER at p 699, [1964] Ch at pp 692, 693.), 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 which 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, 1925, and see what rights affect purchasers 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 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 s 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, ie, 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 overriding 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 nevertheless 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 LJ in the Court of Appeal; I desire to express my concurrence with Russell LJ's judgment on this point ([1964] 1 All ER at p 701, [1964] Ch at p 696.). In my opinion, s 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.

Appeal allowed.

Solicitors: Wilde, Sapte & Co (for the appellant); Preston, Lane-Claypon & O'Kelly agents for Perring & Co Hastings (for the respondent).

Wendy Shockett - Barrister.