National Provincial Bank V Ainsworth

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1 of 3 DOCUMENTS
NATIONAL PROVINCIAL BANK, LTD. v. AINSWORTH.
HOUSE OF LORDS
[1965] AC 1175, [1965] 2 All ER 472, [1965] 3 WLR 1, 194 EG 1085, [ 1965] EGD 173,
8 Legal Decisions Affecting Bankers 374
HEARING-DATES: 10, 11, 15, 16, 17, 18, 22, 23, 24, 25 February, 2 March, 13 May
1965
13 May 1965
CATCHWORDS:
Husband and Wife -- Deserted wife's right to remain in occupation of matrimonial home -- No such proprietary
right.
Husband and Wife -- Deserted wife's right to remain in occupation of matrimonial home -- Registered land --
Overriding interest -- Personal right not an overriding interest -- Land Registration Act, 1925 (15 & 16 Geo. 5 c. 25), s.
70 (1) (g).
HEADNOTE:
A husband and wife lived together in a house which belonged to the husband, the title to which was registered. He
deserted his wife. She remained in occupation. After the desertion the husband mortgaged the house to the bank.
Default having been made under the mortgage, the bank sought possession.
Held: the bank was entitled to possession, the wife having no right of property entitling her to remain in the former
matrimonial home as against the bank as mortgagee for the following reasons --
(i) a wife's rights in relation to occupation of the matrimonial home, where that was the property of her husband,
were personal rights against her husband, flowing from her status as wife, and did not confer on her any equitable
interest or right of property in the land, nor was she, if she lived in the matrimonial home, there as licensee of her
husband; consequently, if a deserted wife remained in occupation of a matrimonial home that belonged to her husband,
she had no right, good against third parties such as a purchaser or mortgagee from him, to continue in occupation of the
matrimonial home (see p. 485, letters A and B, p. 489, letter A, p. 494, letter D, p. 498, letter G, p. 501, letter C, p. 477,
letter D, p. 480, letter I, to p. 481, letter A, p. 481, letter D, and p. 482, letters A and H, post).
Thompson v. Earthy ([1951] 2 All E.R. 235) approved.
Bendall v. McWhirter ([1952] 1 All E.R. 1307); Street v. Denham ([1954] 1 All E.R. 532) and Jess B. Woodcock &
Son, Ltd. v. Hobbs ([1955] 1 All E.R. 445) overruled.
Churcher v. Street ([1959] 1 All E.R. 23) and Westminster Bank, Ltd. v. Lee ([1955] 2 All E.R. 883) disapproved
in their assumption of the deserted wife's equity.
(ii) since any right of a deserted wife as such to continue in occupation of the matrimonial home was not a right of
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[1965] AC 1175, [1965] 2 All ER 472, [1965] 3 WLR 1, 194 EG 1085, [ 1965] EGD 173, 8 Legal Decisions Affecting
Bankers 374
property and had not the quality of being able to endure through different ownerships of the land according to normal
conceptions of title to real property, it was not an overriding interest within s. 70 (1) (g) * of the Land Registration Act,
1925 (see p. 481, letter E, p. 482, letters F and H, p. 489, letter H, p. 502, letter H, and p. 503, letter G, post).
* Section 70 (1) (g) is set out at p. 476, letter G, post.
Reeves v. Pope ([1914] 2 K.B. 284) applied.
Decisions of the COURT of APPEAL sub nom. National Provincial Bank, Ltd. v. Hastings Car unart, Ltd. ([1964]
3 All E.R. 93) reversed and ([1964] 1 All E.R. 688) overruled.
NOTES:
There were in fact an intervening transfer of the house in the present case to a company and a mortgage by the
company to the bank, which were later set aside at the wife's instance as against the husband; these are irrelevant to the
rationes decidendi of the opinions, and are thus not indicated in the headnote (cf. p. 490, letter I, post). The bank had no
knowledge that the house was occupied by a wife who had been deserted, but there had been question whether the bank
had constructive notice; the question of constructive notice is, however, immaterial on the grounds of decision of this
appeal (see [1964] 1 All E.R. at p. 700, letters H, I, and cf. p. 485, letter G, and p. 491, letter B, post). So, too, while
certain opinions proceed on the assumption that the wife was in actual or exclusive occupation of the house, there is no
decision whether she was or was not (see p. 481, letter F, p. 484, letter H, and p. 503, letter G, post).
As to a deserted wife's right to remain in the matrimonial home, see 19 HALSBURY'S LAWS (3rd Edn.) 849-851,
para. 1388; and for cases on the subject, see 3rd DIGEST Supp.
As to overriding interests, see 23 HALSBURY'S LAWS (3rd Edn.) 179-184, paras. 346-350.
As to the rights of purchasers for value without notice, see 14 HALSBURY'S LAWS (3rd Edn.) 547, 548, para.
1025.
For the Land Registration Act, 1925, s. 70, see 20 HALSBURY'S STATUTES (2nd Edn.) 1002.
CASES-REF-TO:
Aaron v. Aaron, (1944), 61 W.N. (N.S.W.) 93; 2nd 2nd Digest Supp.
Bendall v. McWhirter, [1952] 1 All E.R. 1307; [1952] 2 Q.B. 466; 3rd Digest Supp.
Bramwell v. Bramwell, [1942] 1 All E.R. 137; [1942] 1 K.B. 370; 111 L.J.K.B. 430; 27 Digest (Repl.) 261, 2109.
Brennan v. Thomas, [1953] V.L.R. 111; A.L.R. 214; 3rd Digest Supp.
Brown v. Draper, [1944] 1 All E.R. 246; [1944] K.B. 309; 113 L.J.K.B. 196; 170 L.T. 144; 31 Digest (Repl.) 661, 7623.
Cardiff Corpn. v. Robinson, [1956] 3 All E.R. 56; [1957] 1 Q.B. 39; 120 J.P. 500; 38 Digest (Repl.) 482, 52.
Churcher v. Street, [1959] 1 All E.R. 23; [1959] Ch. 251; [1959] 2 W.L.R. 66; 3rd Digest Supp.
Clore v. Theatrical Properties, Ltd. and Westby & Co., Ltd., [1963] 3 All E.R. 483; 30 Digest (Repl.) 535, 1703.
Cobb v. Cobb, [1955] 2 All E.R. 696; [1955] 1 W.L.R. 731; 3rd Digest Supp.
De Mattos v. Gibson, (1859), 4 De G. & J. 276; 28 L.J.Ch. 498; 33 L.T.O.S. 193; 45 E.R. 108; 35 Digest (Repl.) 573,
2491.
Dickson v. McWhinnie, [1958] S.R. (N.S.W.) 179; 75 W.N. 204; 3rd Digest Supp.
Dillwyn v. Llewelyn, [1861-73] All E.R. 384; (1862), 4 De G.F. & J. 517; 31 L.J.Ch. 658; 6 L.T. 878; 45 E.R. 1285; 25
Digest (Repl.) 589, 281.
Doe d. Merigan v. Daly, (1846), 8 Q.B. 934; 7 L.T.O.S. 160; 115 E.R. 1126; sub nom. Doe d. Daley v. Daley, 15
L.J.Q.B. 295; 27 Digest (Repl.) 260, 2103.
Dudley (Lord) v. Lady Dudley, (1705), Prec. Ch. 241; 24 E.R. 118; 20 Digest (Repl.) 252, 1.
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Bankers 374
Dunn v. Dunn, [1948] 2 All E.R. 822; [1949] P. 98; [1949] L.J.R. 87; 112 J.P. 436; 27 Digest (Repl.) 336, 2796.
Errington v. Errington, [1952] 1 All E.R. 149; [1952] 1 K.B. 290; 3rd Digest Supp.
Ferris v. Weaven, [1952] 2 All E.R. 233; 3rd Digest Supp.
Foster v. Robinson, [1950] 2 All E.R. 342; [1951] 1 K.B. 149; 31 Digest (Repl.) 698, 7888.
Gorulnick v. Gorulnick, [1958] 1 All E.R. 146; [1958] P. 47; [1958] 2 W.L.R. 58; 3rd Digest Supp.
H. v. H., see Hutchinson v. Hutchinson.
Harriman v. Harriman, [1908-10] All E.R. Rep. 85; [1909] P. 123; 78 L.J.P. 62; 100 L.T. 557; 73 J.P. 193; 27 Digest
(Repl.) 363, 3005.
Henderson v. Henderson, (1950), 51 S.R. (N.S.W.) 217.
Hill v. Hill, [1916] W.N. 59; 27 Digest (Repl.) 261, 2107.
Hine v. Hine, [1962] 3 All E.R. 345; [1962] 1 W.L.R. 1124; 3rd Digest Supp.
Hole v. Cuzen, [1953] 1 All E.R. 87; sub nom. Bradley-Hole v. Cuzen, [1953] 1 Q.B. 300; 3rd Digest Supp.
Hutchinson v. Hutchinson, [1947] 2 All E.R. 792; sub nom. H. v. H., 63 T.L.R. 645; 27 Digest (Repl.) 263, 2121.
Jones v. Smith, (1841), 1 Hare 43; 11 L.J.Ch. 83; 66 E.R. 943; 20 Digest (Repl.) 341, 706.
King v. David Allen & Sons, Billposting, Ltd., [1916-17] All E.R. Rep. 268; [1916] 2 A.C. 54; 85 L.J.P.C. 229; 114
L.T. 762; 30 Digest (Repl.) 542, 1763.
Lee v. Lee, [1952] 1 All E.R. 1299; [1952] 2 Q.B. 489 n.,. 3rd Digest Supp.
Lloyds Bank, Ltd. v. Oliver's Trustee, [1953] 2 All E.R. 1443; [1953] 1 W.L.R. 1460; 3rd Digest Supp.
London & South Western Ry. Co. v. Gomm, [1881-85] All E.R. Rep. 1190; (1881), 20 Ch.D. 562; 51 L.J.Ch. 193; 45
L.T. 505; 37 Digest (Repl.) 91, 267.
London County Council v. Allen, [1914-15] All E.R. Rep. 1008; [1914] 3 K.B. 642; 83 L.J.K.B. 1695; 111 L.T. 610; 78
J.P. 449; 40 Digest (Repl.) 328, 2698.
Maio v. Piro, [1956] S.A.S.R. 233.
Malden & Coombe Corpn. v. Bennett, [1963] 2 All E.R. 527; [1963] 1 W.L.R. 652; 127 J.P. 411; 3rd Digest Supp.
Middleton v. Baldock, [1950] 1 All E.R. 708; [1950] 1 K.B. 657; 31 Digest (Repl.) 698, 7894.
Nisbett & Potts' Contract, Re, [1905] 1 Ch. 391; C.A., [1904-07] All E.R. Rep. 865; [1906] 1 Ch. 386; 75 L.J.Ch. 238;
94 L.T. 297; 40 Digest (Repl.) 81, 613.
Old Gate Estates, Ltd. v. Alexander, [1949] 2 All E.R. 822; [1950] 1 K.B. 311; 31 Digest (Repl.) 726, 8090.
Pargeter v. Pargeter, [1946] 1 All E.R. 570; 27 Digest (Repl.) 260, 2104.
Phillips v. Phillips, (1862), 4 De G.F. & J. 208; 31 L.J.Ch. 321; 5 L.T. 655; 45 E.R. 1164; 20 Digest (Repl.) 276, 202.
Public Trustee v. Kirkham, Kirkham v. Kirkham, [1956] V.L.R. 64.
Reeves v. Pope, [1914] 2 K.B. 284; 83 L.J.K.B. 771; 110 L.T. 503; 31 Digest (Repl.) 267, 4008.
Rimmer v. Rimmer, [1952] 2 All E.R. 863; [1953] 1 Q.B. 63; 3rd Digest Supp.
Rogers v. Hosegood, [1900-3] All E.R. Rep. 915; [1900] 2 Ch. 388; 69 L.J.Ch. 652; 83 L.T. 186; 40 Digest (Repl.) 340,
2769.
Rogers' Question, Re, [1948] 1 All E.R. 328; 27 Digest (Repl.) 264, 2130.
Shipman v. Shipman, [1924] All E.R. Rep. 365; [1924] 2 Ch. 140; 93 L.J.Ch. 382; 131 L.T. 394; 27 Digest (Repl.) 258,
2091.
Short v. Short, [1960] 3 All E.R. 6; [1960] 1 W.L.R. 833; 3rd Digest Supp.
Stewart v. Stewart, [1947] 2 All E.R. 813; [1948] 1 K.B. 507; [1948] L.J.R. 799; 27 Digest (Repl.) 263, 2125.
Street v. Denham, [1954] 1 All E.R. 532; [1954] 1 W.L.R. 624; 3rd Digest Supp.
Symonds v. Hallett, (1883), 24 Ch.D. 346; 53 L.J.Ch. 60; 49 L.T. 380; 27 Digest (Repl.) 258, 2090.
Taylor v. McHale, (1948), 151 E.G. 371.
Thomas v. Sorrell, (1673), Vaugh. 330; 3 Keb. 264; Freem. K.B. 137; 124 E.R. 1098; 30 Digest (Repl.) 527, 1645.
Thompson v. Earthy, [1951] 2 All E.R. 235; [1951] 2 K.B. 596; 115 J.P. 407; 27 Digest (Repl.) 81, 621.
Wabe v. Taylor, [1952] 2 All E.R. 420; [1952] 2 Q.B. 735; 3rd Digest Supp.
Webb v. Paternoster, (1619), 2 Roll. Rep. 143, 152; Palm. 71; Poph. 151; 81 E.R. 713, 719; 30 Digest (Repl.) 539,
1725. &&&
Weldon v. Weldon, (1883), 9 P.D. 52; 53 L.J.P. 9; subsequent proceedings (1885), 54 L.J.P. 60; 27 Digest (Repl.) 284,
2289.
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Bankers 374
Westminster Bank, Ltd. v. Lee, [1955] 2 All E.R. 883; [1956] Ch. 7; [1956] 3 W.L.R. 376; 3rd Digest Supp.
Wilson v. Wilson, [1963] 2 All E.R. 447; [1963] 1 W.L.R. 601; 3rd Digest Supp.
Woodcock (Jess B.) & Son, Ltd. v. Hobbs, [1955] 1 All E.R. 445; [1955] 1 W.L.R. 152; 20 Digest (Repl.) 349, 775.
INTRODUCTION:
Appeal. This was an appeal by the appellant bank from an order of the Court of Appeal (LORD DENNING, M.R.,
LORD DONOVAN and RUSSELL, L.J.), dated June 26, 1964, and made in an appeal, reported sub nom. National
Provincial Bank, Ltd. v. Hastings Car Mart, Ltd., [1964] 3 All E.R. 93, which was an adjourned hearing of the appeal
reported [1964] 1 All E.R. 688, in which on Jan. 29, 1964, the Court of Appeal reversed an order of CROSS, J., dated
Mar. 27, 1963, and reported [1963] 2 All E.R. 204. CROSS, J., ordered that the respondent, Marjorie Pattie Ainsworth,
the third defendant in proceedings by the appellant, should give up possession of the matrimonial home at 124, Milward
Road, Hastings. The respondent, having been deserted by her husband, the second defendant, had remained in
occupation of the house, which he had mortgaged to the appellant, that mortgage being later superseded by a charge
given by the first defendants, Hastings Car Mart, Ltd. The Court of Appeal (RUSSELL, L.J., dissenting) held (see
[1964] 1 All E.R. 688) that the right of a deserted wife in actual occupation to remain in the matrimonial home was an
overriding interest within s. 70 (1) (g) of the Land Registration Act, 1925, save where enquiry was made of her and her
rights were not disclosed. On June 26, 1964, the Court of Appeal in its discretion made an order for possession within
twelve months, the respondent to pay 3 per week to the appellant. The facts are set out in the opinion of LORD
HODSON.
COUNSEL:
E. I. Goulding, Q.C., and D. H. Mervyn Davies for the appellant bank. Harold Lightman, Q.C., and K. Bruce
Campbell, Q.C., for the respondent.
JUDGMENT-READ:
Their Lordships took time for consideration. May 13. The following opinions were delivered.
PANEL: Lord Hodson, Lord Cohen, Lord Guest, Lord Upjohn and Lord Wilberforce
JUDGMENTBY-1: LORD HODSON
JUDGMENT-1:
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 Mar. 27, 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 Aug. 17, 1957, since when she has
continued to make her home at the house with her children. On Aug. 14, 1956, the husband was registered as the
proprietor of the freehold property at 124, Milward Road. On Mar. 15, 1961, the respondent was granted a decree of
judicial separation, and on May 2, 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 Dec. 17,
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1959, the husband conveyed both 7, Bank Buildings and 124, Milward Road to a company called Hastings Car Mart,
Ltd., and the company on the same day charged the two properties to the appellant. The appellant at once advanced
sufficient to the company to enable it to discharge the husband's debt to the appellant; the husband becoming a
guarantor of the company's debt to the appellant. The company was duly registered as the proprietor of 124, Milward
Road, the charge given by the husband in July, 1958, was discharged and the charge given by the company in
December, 1959, was enteered on the charges register. On Nov. 2, 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 Apr. 10, 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 July 4, 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 Mar. 27, 1963, CROSS, J., n(1) 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 n(2) 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 n(3) and there is no further appeal
from it.
n(1) [1963] 2 All E.R. 204; [1964] Ch. 9.
n(2) [1963] 3 All E.R. 649; [1964] Ch. 128.
n(3) [1964] 1 All E.R. 688; [1964] Ch. 665.
The subject-matter of the appeal to your lordships' House is the claim of the appellant fo 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 n(4) per SIR JAMES HANNEN, P.
The President words of Blackstone":
n(4) (1883), 9 P.D. 52 at p. 55.
"The suit for restitution of conjugal rights is brought whenever either the husband or wife is guilty of the injury of
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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 n(5), 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 n(6), 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 n(7).
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 n(8). 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.
n(5) (1883), 9 P.D. 52.
n(6) [1952] 1 All E.R. 1299; [1952] 2 Q.B. 489, n.
n(7) [1947] 2 All E.R. 792.
n(8) [1924] All E.R. Rep. 365; [1924] 2 Ch. 140.
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, M.R., put it in his judgment in the present case n(9): "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 n(10) with approval a paragraph from the report of the Royal Commission on Marriage and
Divorce (Command 1956, No. 9678, para. 664):
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n(9) [1964] 1 All E.R. at p. 693; [1964] Ch. at p. 684.
n(10) [1964] 1 All E.R. at p. 694; [1964] Ch. at p. 684.
"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 n(11), 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 n(12) 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, L.JJ.) 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, L.J., was that the wife
had an equity which bound the trustee. The majority view was necessarily accepted by the Court of Appeal in the
following year in Hole v. Cuzen n(13), but the minority view was rejected n(14) per JENKINS, L.J., 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 n(15)), and
accepted as correct in other cases, e.g., Westminster Bank, Ltd. v. Lee n(16).
n(11) [1951] 2 All E.R. 235; [1951] 2 K.B. 596.
n(12) [1952]1 All E.R. 1307; [1952] 2 Q.B. 466.
n(13) [1953] 1 All E.R. 87; [1953] 1 Q.B. 300.
n(14) [1953] 1 All E.R. at p. 91; [1953] 1 Q.B. at p. 306.
n(15) [1954] 1 All E.R. 532.
n(16) [1955] 2 All E.R. 883; [1956] Ch. 7.
At first sight, there is much to be said for the majority view that the trustee in bankruptcy should be placed in no
better plight than the husband. On the other hand, there is no reason why the wife should be in a better position if her
husband becomes bankrupt after leaving her than she would have been if his bankruptcy had taken place while they
were living together. Section 105 (1) of the Bankruptcy Act, 1914, which gives 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
n(17) cannot be supported on the ground of the special position of the trustee in bankruptcy, one must look to the wider
"equity" referred to by DENNING, L.J., as justifying the decision. It being conceded that the "equity" is not an
equitable interest in the land, I find difficulty in seeing how it can operate so as to affect third parties. The court can
protect itself against sham sales (cf. Ferris v. Weaven n(18), a decision which can be supported on that ground), and the
court now has power n(19) to set aside transfers of property made to defeat claims for alimony or maintenance as
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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, L.J., by way of analogy, referred to a number of authorities n(20) dealing with licences coupled with an
interest or cases where money had been expended by a licensee in occupation of land. Dillwyn v. Llewelyn n(21) 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.
n(17) [1952] 1 All E.R. 1307; [1952] 2 Q.B. 466.
n(18) [1952] 2 All E.R. 233.
n(19) I.e., under the Matrimonial Causes (Property and Maintenance) Act, 1958, s. 2; 38 HALSBURY'S
STATUTES (2nd Edn.) 443; cf., p. 476, letter C, ante.
n(20) Cf. [1952] 1 All E.R. at p. 1312; [1952] 2 Q.B. at pp. 479, 480.
n(21) [1861-73] All E.R. Rep. 384; (1862), 4 De G.F. & J. 517.
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 n(22) contains the classic definition of a licence
propounded by VAUGHAN, C.J.:
n(22) (1673), Vaugh. 330 at p. 351.
"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 n(23). 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 n(24). 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.
n(23) [1916] W.N. 59.
n(24) [1908-10] All E.R. Rep. 85; [1909] P. 123.
Counsel for the respondent sought to support the view that equity would assist his client to claim a proprietary right
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in the land by reference to the language of LORD COWPER in Lord Dudley v. Lady Dudley n(25):
n(25) (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 subtilities,
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 spomises 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 Aug. 17, 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, M.R. n(26) from Barnhart v. Greenshields n(27)
where Mr. PEMBERTON LEIGH (afterwards LORD KINGSDOWN) said:
n(26) [1964] 1 All E.R. at p. 697; [1964] Ch. at p. 689.
n(27) (1853), 9 Moo. P.C.C. 18 at p. 32.
"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'
attemtion to Reeves v. Pope n(28), where the equity claimed was based on a personal contract and the argument based
on the dictum from Barnhart v. Greenshields n(27) was interrupted by BUCKLEY, L.J., saying n(29), "This right which
is claimed is not an interest in the land". In his judgment, LORD READING, C.J., used these words n(30):
n(27) (1853), 9 Moo. P.C.C. 18 at p. 32.
n(28) [1914] 2 K.B. 284.
n(29) [1914] 2 K.B. at p. 286.
n(30) [1914] 2 K.B. at p. 288.
"The other case Barnhart v. Greenshields n(31) 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'."
n(31) (1853), 9 Moo. P.C.C. 18.

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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 n(32), 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 n(33), 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 n(34), which seems to have
been based on the footing that the deserted wife had an equity available against a purchaser for value with notice of her
occupation so as to make it discretionary for the court to give possession to the purchaser. PARKER, L.J., in that case,
however, saw n(35) great difficulty in extending the protection given in Bendall v. McWhirter n(32) 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
n(36) and Churcher v. Street n(37) 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.
n(32) [1952] 1 All E.R. 1307; [1952] 2 Q.B. 466.
n(33) [1954] 1 All E.R. 532.
n(34) [1955] 1 All E.R. 445.
n(35) [1955] 1 All E.R. at p. 451.
n(36) [1955] 2 All E.R. 883; [1956] Ch. 7.
n(37) [1959] 1 All E.R. 23; [1959] Ch. 251.
I now approach the construction of the Land Registration Act, 1925, and find myself in full agreement with
CROSS, J., and RUSSELL, L.J., in excluding the right with which we are concerned from the category of "overriding"
interests in s. 70 and respectfully adopt the sentence where RUSSELL, L.J., says n(38):
n(38) [1964] 1 All E.R. 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 n(39), Old Gate Estates, Ltd. v. Alexander n(40) and Middleton v. Baldock n(41), 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
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occupation.
n(39) [1944] 1 All E.R. 246; [1944] K.B. 309.
n(40) [1949] 2 All E.R. 822; [1950] 1 K.B. 311.
n(41) [1950] 1 All E.R. 708; [1950] 1 K.B. 657.
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.
JUDGMENTBY-2: LORD COHEN
JUDGMENT-2:
LORD COHEN: My Lords, I have had the opportunity of reading the speeches which have been prepared by my
noble and learned friends. I agree with them that this appeal should be allowed for the reasons which they give and can
state shortly the ground on which I reach this conclusion. The question for your lordships' decision has been
conveniently stated by LORD HODSON. It is whether the respondent is entitled to an overriding interest within the
meaning of s. 70 (1) (g) of the Land Registration Act, 1925, which has already been read to your lordships. On the facts
of this case this question raises only two subsidiary questions: (i) was the respondent in actual occupation of 124,
Milward Road within the meaning of the subsection? (ii) was her right as against her husband to remain in that house
an overriding interest within the subsection?
Like LORD HODSON, I am prepared to assume in the respondent's favour that she was in actual occupation, but I
find it impossible to hold that her right to remain there was an overriding interest within the meaning of the subsection.
It is common ground that the respondent's right to remain in the house is a mere equity; and that her husband's desertion
does not confer on her any equitable estate or interest in the house. She could no doubt have obtained from a court of
equity an injunction restraining her husband from dealing with the house so as to interfere with her enjoyment thereof:
see Lee v. Lee n(42). She would, however, have been successful, not because she had any estate or interest in the house
or, indeed, any contract in relation thereto, but solely because of her personal right against her husband arising from her
status as his wife. As RUSSELL, L.J., in the court below pointed out n(43), it is the rights of a person in occupation
which constitute the overriding interest not the mere fact of occupation, and I agree with RUSSELL, L.J., that s. 70 is
dealing in all its parts with rights in reference to land which have the quality of being capable of enduring through
different ownerships of the land, according to normal conceptions of title to real property. The right on which the
respondent must rely is a personal right as property. The right on which the respondent must rely is a personal right as
against her husband and is not of the quality to which RUSSELL, L.J., refers. In my opinion, therefore, it does not
constitute an overriding interest within s. 70 (1) (g).
n(42) [1952] 1 All E.R. 1299; [1952] 2 Q.B. 489, n.
n(43) [1964] 1 All E.R. at p. 701; [1964] 1 Q.B. at p. 696.
I arrive at this conclusion with some reluctance, for I recognise that the respondent is an admittedly wronged and
deserted wife. Some protection to a woman in her position is available in view of the decision in Lee v. Lee n(42), but
the existing law I think is in an unsatisfactory state, particularly as regards the position of the deserted wife and of third
parties. The Royal Commission on Divorce called attention to this point (see Cmd. 1956, No. 9678, para. 664), and
your lordships' decision may make it desirable that their recommendations on the subject in para. 685 should be further
considered. See, also, per RUSSELL, L.J., in the present case n(44). It would, however, be beyond my province to
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make any further comments on this aspect of the matter.
n(44) [1964] 1 All E.R. at p. 704; [1964] 1 Q.B. at p. 701.
JUDGMENTBY-3: LORD GUEST
JUDGMENT-3:
LORD GUEST: My Lords, I have had the advantage of reading the speech of my noble and learned friend, LORD
HODSON, and there is nothing that I can usefully add. I agree that the appeal should be allowed.
JUDGMENTBY-4: LORD UPJOHN
JUDGMENT-4:
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 n(45). I need not quote again the
well known words of SIR JAMES HANNEN, P. n(46), 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.
n(45) (1883), 9 P.D. 52.
n(46) (1883), 9 P.D. at p. 55.
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 n(47)), 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 n(48). But, on the other hand, having regard to the duty of the spouses to live together the court does
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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 n(49), 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 n(50),
the Court of Appeal granted an injunction restraining a husband from entering the materimonial home which belonged
to the wife, but there was evidence which would justify the wife resisting a decree of restitution. SIR ERNEST
POLLOCK, M.R., after quoting from the judgment of COTTON, L.J., in Symonds v. Hallett n(51) said n(52):
n(47) [1949] P. 98 at p. 104.
n(48) [1953] 2 All E.R. 1443.
n(49) [1916] W.N. 59.
n(50) [1924]All E.R. Rep. 365; [1924] 2 Ch. 140.
n(51) (1883), 24 Ch.D. 346 at p. 351.
n(52) [1924] All E.R. 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 n(53), TUCKER, L.J., said:
n(53) [1947] 2 All E.R. 813 at p. 814; [1948] 1 K.B. 507 at p. 513.
"... 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 n(54), 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.
n(54) [1958] 1 All E.R. 146; [1958] P. 47.
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 n(55) and Malden & Coombe Corpn. v. Bennett n(56). 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 n(57); Old Gate
Estates, Ltd. v. Alexander n(58) and Middleton v. Baldock n(59). 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
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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 n(60) 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.
n(55) [1956] 3 All E.R. 56; [1957] 1 Q.B. 39.
n(56) [1963] 2 All E.R. 527.
n(57) [1944] 1 All E.R. 246; [1944] K.B. 309.
n(58) [1949] 2 All E.R. 822; [1950] 1 K.B. 311.
n(59) [1950] 1 All E.R. 708; [1950] 1 K.B. 657.
n(60) (1948), 151 E.G. 371.
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 n(61). 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 n(62). 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.
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n(61) [1952] 1 All E.R. 1299; [1952] 2 Q.B. 489n.
n(62) [1908-10] All E.R. Rep. 85; [1909] P. 123.
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 n(63) and RUSSELL, L.J., discussed it at greater length in the court below
n(64). 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.
n(63) [1955] 2 All E.R. 883; [1956] Ch. 7.
n(64) [1964] 1 All E.R. at p. 703; [1964] Ch. at p. 699.
I must examine further the basis of the principle on which it has been held that third parties with notice are affected
by, and take subject to, the wife's right as against the husband to remain in possession. As LORD DENNING, M.R.,
has pointed out n(65), 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, L.J., in Bramwell v.
Bramwell n(66) 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
n(67). I share the doubts of DEVLIN, L.J., in Short v. Short n(68) on the correctness of these observations of
GODDARD, L.J. Furthermore, the wife is lawfully in possession, she is not a trespasser as GODDARD, L.J., treated
her, and no question of a tort arises when the true principles which were applicable are properly understood. As I have
pointed out earlier, 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.
n(65) [1964] 1 All E.R. at p. 693; [1962] Ch. at p. 683, 684.

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n(66) [1942] 1 All E.R. 137 at pp. 138, 139; [1942] 1 K.B. 370 at p. 374.
n(67) [1946] 1 All E.R. 570.
n(68) [1960] 3 All E.R. 6 at p. 18.
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,
M.R., I am of opinion that he has put a far too wide construction on this section. In H. v. H. n(69), 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 n(70), he
said of the section: "Its discretion transcends all rights, legal or equitable..." I prefer the approach of DEVLIN, L.J., in
Short v. Short n(71). 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 n(72), ROMER, L.J.,
said:
n(69) (1947), 63 T.L.R. 645 at p. 646.
n(70) [1962] 3 All E.R. 345 at p. 347.
n(71) [1960] 3 All E.R. at p. 18.
n(72) [1955] 2 All E.R. 696 at p. 700.
"... 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, L.J., in Wilson v. Wilson n(73).
n(73) [1963] 2 All E.R. 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 n(74) and Rimmer v. Rimmer n(75)
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 n(76) and Appleton v. Appleton n(77) 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)
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without serious argument, in Jess B. Woodcock & Son, Ltd. v. Hobbs n(78). 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, M.R., in the Court of Appeal n(79):
n(74) [1948] 1 All E.R. 328.
n(75) [1953] 2 All E.R. 863; [1953] 1 Q.B. 63.
n(76) [1962] 3 All E.R. 345.
n(77) [1965] 1 All E.R. 44.
n(78) [1955] 1 All E.R. 445.
n(79) [1964] 1 All E.R. 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 n(80) he continued: "It is an equity which the court will enforce
against any successor except a purchaser for value without notice."
n(80) [1955] 2 All E.R. 883; [1956] Ch. 7.
The wife is asserting rights over the land of another and in respect of which she has no beneficial ownership.
Nevertheless, she claims to enforce her rights against an assignee of her husband, the owner. How, as a matter of
principle, can she do this? First (I am still dealing with the general law), mere exclusive occupation is by itself not
sufficient to establish such a right. It all depends on what her rights are; of course it may be sufficient, e.g., if the wife
is a lessee who thereby necessarily has an interest in the land. Secondly, notice to a purchaser that the wife is in
occupation as a deserted wife (assuming contrary to my opinion that such a right is capable of reasonable definition) is
not per se sufficient. The general observations of KNIGHT BRUCE, L.J., in De Mattos v. Gibson n(81), 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 n(82). 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, i.e., 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 n(83), 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 n(84) and
Barnhart v. Greenshields n(85). This, I think, is quite clear from Reeves v. Pope n(86): see the interjection of
BUCKLEY, L.J., n(87), and the judgment of LORD READING, C.J., n(88). 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:
n(81) (1859), 4 De G. & J. 276 at p. 282.
n(82) [1914-15] All E.R. Rep. 1008 at p. 1014; [1914] 3 K.B. 642 at p. 658.
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n(83) [1905] 1 Ch. 391 at pp. 397, 398.
n(84) (1841), 1 Hare 43 at p. 60.
n(85) (1853), 9 Moo. P.C.C. 18.
n(86) [1914] 2 K.B. 284.
n(87) [1914] 2 K.B. at p. 286.
n(88) [1914] 2 K.B. at pp. 288, 289.
"... 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 n(89), 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, e.g., a right to rectify the document. If the purchaser knows that, he knows that the
document does not correctly describe the estate or interest of the tenant in the land and he takes subject to that estate or
interest, whatever it may be. But a mere "equity" naked and alone is, in my opinion, incapable of binding successors in
title even with notice; it is personal to the parties. So, my lords, even if my opinion is wrong that from its very nature
the right of the deserted wife is purely personal between husband and wife and incapable of binding third parties I am of
opinion, with all respect to LORD DENNING, M.R.'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.
n(89) [1955] 2 All E.R. 883; [1956] Ch. 7.
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 n(90) and Errington v. Errington
n(91) 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 n(92), valid against all except a purchaser for value without notice. The
more interesting and really text book case is Foster v. Robinson n(90). Whether the right (undoubted contractually
against the owner of the property) of Robinson, the retired servant, to remain in exclusive occupation of his cottage rent
free for the rest of his life will by judicial decision one day be held to create an equitable estate or interest binding all
except purchasers for value without notice, or whether, as RUSSELL, L.J., thinks, statutory legislation is required to
bring about that result is a matter on which I propose to express no opinion. On the other hand, ROXBURGH, J., in
Thompson v. Earthy n(93) may have taken the view that an exclusive licensee may thereby have an interest in the land,
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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. n(94) and Clore v. Theatrical Properties, Ltd. and Westby & Co., Ltd. n(95). 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 n(96) 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 n(97).
Ferris v. Weaven n(98) may possibly be justified on its own facts.
n(90) [1950] 2 All E.R. 342; [1951] 1 K.B. 149.
n(91) [1952] 1 All E.R. 149; [1952] 1 K.B. 290.
n(92) (1619), 2 Roll. Rep. 143.
n(93) [1951] 2 All E.R. 235 at p. 237; [1951] 2 K.B. 596 at p. 599.
n(94) [1916-17] All E.R. Rep. 268; [1916] 2 A.C. 54.
n(95) [1963] 3 All E.R. 483.
n(96) [1952] 1 All E.R. 1307; [1952] 2 Q.B. 466.
n(97) [1954] 1 All E.R. 532.
n(98) [1952] 2 All E.R. 233.
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, L.J., n(99) 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.
n(99) [1964] 1 All E.R. at p. 701; [1964] Ch. at p. 696.
My lords, when differing as I do with regret from so eminent a judge as LORD DENNING, M.R., 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 n(100), SHOLL, J., sitting in the Supreme Court of Victoria, after an exhaustive review of the
authorities including Bendall v. McWhirter n(101), 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 n(102), sitting in the same court, HERRING, C.J., criticised the doctrine. In Maio v. Piro n(103),
LIGERTWOOD, J., sitting in the Supreme Court of South Australia followed SHOLL, J., in preference to the English
decisions. Finally, in Dickson v. McWhinnie n(104), the Full Court of New South Wales refused to follow Bendall v.
McWhirter n(101) 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.
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n(100) [1953] V.L.R. 111.
n(101) [1952] 1 All E.R. 1307; [1952] 2 Q.B. 466.
n(102) [1956] V.L.R. 64 at p. 67.
n(103) [1956] S.A.S.R. 233.
n(104) [1958] S.R.(N.S.W.) 179.
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.
JUDGMENTBY-5: LORD WILBERFORCE
JUDGMENT-5:
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, Ltd., 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 H.M. Land Registry. There was a good deal of evidence as to his matrimonial and business affairs, but I
think that all that it is material to know is that: (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., n(105) in the Chancery Division to prove circumstances which would
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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 n(106),
reversing in this respect the decision of CROSS, J. n(105), 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 n(107) in fact has determined that she should remain in possession until June 26,
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.
n(105) [1963] 2 All E.R. 204; [1964] Ch. 9.
n(106) [1964] 1 All E.R. 688; [1964] Ch. 665.
n(107) [1964] 3 All E.R. 93; [1964] Ch. 665.
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 n(108) 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 n(109) per
GODDARD, L.J.; Hill v. Hill n(110) (a decision received, in my experience, with some caution), and in New South
Wales Aaron v. Aaron n(111) and Henderson v. Henderson n(112)) -- 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).
n(108) (1846), 8 Q.B. 934.

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n(109) [1942] 1 All E.R. 137 at pp. 138, 139; [1942] 1 K.B. 370 at p. 374.
n(110) [1916] W.N. 59.
n(111) (1944), 61 W.N. (N.S.W.) 93.
n(112) (1951), 51 S.R. (N.S.W.) 217.
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 n(113), 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, i.e., 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.
n(113) (1883), 9 P.D. 52 at p. 56.
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
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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 n(114).There a husband, by proceedings under the
section, sought possession of premises belonging to him where he had been cohabiting with his wife. There were
divorce proceedings pending based on allegations of the wife's adultery. The judge had made an order for possession
and the Court of Appeal refused to interfere with his exercise of discretion, but made it clear that, in their opinion, the
jurisdiction was discretionary. I quote a passage from the judgment of TUCKER, L.J., n(115):
n(114) [1947] 2 All E.R. 813; [1948] 1 K.B. 507.
n(115) [1947] 2 All E.R. at p. 814; [1948] 1 K.B. 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 [s.c. 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 n(116), 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, M.R., said n(117) of the doctrine of a court of
equity that:
n(116) [1924] All E.R. Rep. 365; [1924] 2 Ch. 140.
n(117) [1924] All E.R. Rep. at p. 366; [1924] 2 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",
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.
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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, L.J., said in Bendall v. McWhirter n(118) 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 n(119), 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 n(120). But this replaces one difficulty by another, as well as being unsupported by any rule or principle
of the law of husband and wife.
n(118) [1952] 1 All E.R. at p. 1311; [1952] 2 Q.B. at p. 477.
n(119) [1953] 2 All E.R. 1443.
n(120) [1955] 1 All E.R. 445 at p. 449.
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-a-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, M.R.,
has said n(121), to "temper justice with mercy -- justice to the bank, with mercy to the wife", and evidence has been
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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.
n(121) [1964] 1 All E.R. at p. 698; [1964] Ch. at p. 691.
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, L.J., in his judgment in the Court of Appeal n(122). 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.
n(122) [1964] 1 All E.R. at p. 704; [1964] Ch. at p. 701.
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 (e.g., contractual) licensees, one has not reached a solution, for the
legal position of contractual licensees, as regards "purchasers", is very far from clear. The Court of Appeal has
attempted to reach a generalisation 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
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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. n(123) and Clore v. Theatrical Properties, Ltd. and Westby & Co., Ltd. n(124) 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 n(125), 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, i.e., whether she was the
legal personal representative or the successor in title of the licensor.
n(123) [1916-17] All E.R. Rep. 268; [1916] 2 A.C. 54.
n(124) [1936] 3 All E.R. 483.
n(125) [1952] 1 All E.R. 149; [1952] 1 K.B. 290.
2. The Rent Restriction cases. Since, at any rate 1944 (Brown v. Draper n(126)), 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
n(126), Old Gate Estates, Ltd. v. Alexander n(127), Middleton v. Baldock n(128), and Wabe v. Taylor n(129). This
doctrine now seems to be firmly established, although the Court of Appeal in Taylor v. McHale n(130) 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.
n(126) [1944] 1 All E.R. 246; [1944] K.B. 309.
n(127) [1949] 2 All E.R. 822; [1950] 1 K.B. 311.
n(128) [1950] 1 All E.R. 708; [1950] 1 K.B. 657.
n(129) [1952] 2 All E.R. 420; [1952] 2 Q.B. 735.
n(130) (1948), 151 E.G. 371.
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 n(131), 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
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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, L.J., in Jess B. Woodcock & Son, Ltd. v. Hobbs n(132), and to
Bendall v. McWhirter n(133), where the comparison with restrictive covenants is made.
n(131) [1951] 2 All E.R. 235; [1951] 2 K.B. 596.
n(132) [1955] 1 All E.R. at p. 449.
n(133) [1952] 1 All E.R. at pp. 1313, 1314; [1952] 2 Q.B. at p. 481.
In my opinion, this line of argument is but a revival of a fallacy that, because an obligation binds a man's
conscience, it, therefore, becomes binding on the consciences of those who take from him with notice of the obligation.
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 n(134) -- I
refer to the judgment of LINDLEY, L.J.), but in the law of restrictive covenants to which an appeal by way of analogy
was made. Fifty years ago n(135), it was decided that an obligation (be it noted of a far more specific and transmissible
character than the obligation with which we are concerned) relating to the use of land, of a personal nature, was not
binding on a purchaser, and BUCKLEY, L.J., in his judgment in the Court of Appeal refuted precisely the argument
which was advanced here.I refer to his judgment n(136), in which he pointed out that the obligation, though relating to
the use of land, was a personal obligation, and quoted from the judgment of COLLINS, L.J., in Rogers v. Hosegood
n(137), where he said:
n(134) [1881-85] All E.R. Rep. 1190 at p. 1197; (1882), 20 Ch.D. 562 at p. 587.
n(135) In London County Council v. Allen, [1914-15] All E.R. Rep. 1008; [1914] 3 K.B. 642.
n(136) [1914-15] All E.R. Rep. at p. 1013; [1914] 3 K.B. at p. 657.
n(137) [1900-3] All E.R. Rep. 915 at p. 921; [1900] 2 Ch. 388 at p. 407.
"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
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good equitable claim to reform it: see per LORD WESTBURY, L.C., in Phillips v. Phillips n(138). 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.
n(138) (1862), 4 De G.F. & J. 208 at p. 215.
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 n(139). 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 n(140):
n(139) [1951] 2 All E.R. 235; [1951] 2 K.B. 596.
n(140) [1951] 2 All E.R. at p. 237; [1951] 2 K.B. 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 n(141) 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."
n(141) [1949] 2 All E.R. at p. 825; [1950] 1 K.B. at p. 319.

This case has never been expressly overruled but, as ROXBURGH, J., himself in a later case (Churcher v. Street
n(142)) 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.
n(142) [1959] 1 All E.R. 23; [1959] Ch. 251.
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 n(143). 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
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title to the land, of the nature of a real right, in which case the land would be bound in the hands of the trustee, or
whether, on the other hand, she merely has certain in personam claims against her husband. DENNING, L.J., put the
alternatives in this way n(144) -- "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, L.JJ.) holding that it was in the nature of a clog or fetter on the
debtor's title, DENNING, L.J., 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.
n(143) [1952] 1 All E.R. 1307; [1952] 2 Q.B. 466.
n(144) [1952] 1 All E.R. at p. 1312; [1952] 2 Q.B. at p. 478.
One may pause here to consider the consequences of this holding -- taking as a test case that of a wife, left without
means in the house of a bankrupt husband, who has creditors but no assets. The decision involves that the wife may
stay in the house. To leave the matter there would obviously prejudice the creditors, so what is said is that she cannot
stay indefinitely, she stays subject to the discretion of the court: see per DENNING, L.J. n(145). This involves nothing
less than that the wife is to be allowed to hold on for a time, however short does not matter in principle, to the only asset
of the bankrupt. No justification can be found for this in the law of bankruptcy; our law does not, as does the law in
many places (particularly in the U.S.A. and Canada), recognise a "homestead" right of the wife, nor does it give the wife
of a bankrupt any preference or priority -- perhaps it ought to do so -- but in fact the wife of a bankrupt is left to depend
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?
n(145) [1952] 1 All E.R. at pp. 1315, 1316; [1952] 2 Q.B. at pp. 484, 485.
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, L.J., cannot be supported. The wife's claim should have been recognised for what it is, a
personal claim to support, which can be satisfied by the provision of a home, and not as something attaching to the
property which can follow it into the trustee's hands. If Bendall v. McWhirter n(146) is overruled, as I think it must be,
those cases which depend on it cannot stand; these include Street v. Denham n(147) in which LYNSKEY, J., against his
own judgment, felt obliged to follow Bendall v. McWhirter n(146); Jess B. Woodcock & Son, Ltd. v. Hobbs n(148) (an
unsatisfactory case in any event since the point of law was not argued); Churcher v. Street n(149). Ferris v. Weaven
n(150) 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 n(146) itself, the majority of the Court of Appeal did not put the doctrine on so broad a basis as
DENNING, L.J., in that case and other later decisions has done, and LYNSKEY, J. (in Street v. Denham n(147)),
HARMAN, J. (in Barclays Bank, Ltd. v. Bird n(151)), PARKER, L.J. (in Jess B. Woodcock & Son, Ltd. v. Hobbs
n(148)), UPJOHN, J. (in Westminster Bank, Ltd. v. Lee n(152)), ROXBURGH, J. (in Thompson v. Earthy n(153) and
Churcher v. Street n(149)), have all, to different degrees, indicated that their own views would not have been in favour
of it. The reasoning, too, of JENKINS, L.J., in Hole v. Cuzen n(154), though following the decision in Bendall v.
Page 30
Bankers 374
McWhirter n(146) is cogently destructive of it, or at least of the "equity" theory. His judgment contains this passage
n(154):
n(146) [1952] 1 All E.R. 1307; [1952] 2 Q.B. 466.
n(147) [1954] 1 All E.R. 532.
n(148) [1955] 1 All E.R. 445.
n(149) [1959] 1 All E.R. 23; [1959] Ch. 251.
n(150) [1952] 2 All E.R. 233.
n(151) [1954] 1 All E.R. 449; [1954] Ch. 274.
n(152) [1955] 2 All E.R. 883; [1956] Ch. 7.
n(153) [1951] 2 All E.R. 235; [1951] 2 K.B. 596.
n(154) [1953] 1 All E.R. at p. 91; [1953] 1 Q.B. at p. 306.
"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 lanlord 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 n(155), where, as early as 1953,
SHOLL, J., gave powerful reasons for preferring Thompson v. Earthy n(156) to Bendall v. McWhirter n(157), and to
the decision of the Full Court of New South Wales in Dickson v. McWhinnie n(158).
n(155) [1953] V.L.R. 111.
n(156) [1951] 2 All E.R. 235; [1951] 2 K.B. 596.
n(157) [1952] 1 All E.R. 1307; [1952] 2 Q.B. 466.
n(158) [1958] S.R. (N.S.W.) 179.
The deserted wife, therefore, in my opinion, cannot resist a claim from a "purchaser" from her husband, whether the
"purchase" takes place after or before the desertion. As regards transactions subsequent to the desertion, this disability
is somewhat mitigated by three factors.First, if it appears that the husband is threatening to dispose of the house in such
a manner as to defeat her rights, she may be able to obtain an injunction to restrain him from doing so: Lee v. Lee
n(159). 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
n(160). 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
Page 31
Bankers 374
ROXBURGH, J., in Churcher v. Street n(161):
n(159) [1952] 1 All E.R. 1299; [1952] 2 Q.B. 489, n.
n(160) [1952] 2 All E.R. 233.
n(161) [1959] 1 All E.R. 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, M.R., in the Court of Appeal, the other that which found favour with LORD
DONOVAN. LORD DENNING said n(162) 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 n(163) 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 n(164)
where he said:
n(162) [1964] 1 All E.R. at p. 696; [1964] Ch. at p. 689.
n(163) [1964] 1 All E.R. at p. 697; [1964] Ch. at p. 689.
n(164) (1853), 9 Moo. P.C.C. at p. 32.
"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 n(164). 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 n(165) (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 n(166)
"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."
Page 32
Bankers 374
n(164) (1853), 9 Moo. P.C.C. at p. 32.
n(165) [1914] 2 K.B. 284.
n(166) [1914] 2 K.B. at p. 286.

To which BUCKLEY, L.J., is reported to have observed: "This right which is claimed is not an interest in the land", and
LORD READING, C.J., in his judgment n(167) 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 n(168) were not in point. BUCKLEY, L.J., in his judgment said n(169):
n(167) [1914] 2 K.B. at p. 288.
n(168) (1853), 9 Moo. P.C.C. 18.
n(169) [1914] 2 K.B. 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 n(170);
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.
n(170) [1914] 2 K.B. 284.
This brings me to the more radical argument of LORD DONOVAN n(171), 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, i.e., under other
statutes or under the common law. So, if the right of a deserted wife is a purely personal claim against her husband, not
Page 33
Bankers 374
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 n(172))
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 n(172) he would,
it seems, have taken the same view of the subsection as I have done, as in fact did Russell, L.J., in the Court of Appeal;
I desire to express my concurrence with RUSSELL, L.J.'s judgment on this point n(173). 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.
n(171) [1964] 1 All E.R. at p. 699; [1964] Ch. at pp. 692, 693.
n(172) [1952] 1 All E.R. 1307 [1952] 2 Q.B. 466.
n(173) [1964] 1 All E.R. at p. 701; [1964] Ch. at p. 696.
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.
DISPOSITION:
Appeal allowed.
SOLICITORS:
Wilde, Sapte & Co. (for the appellant); Preston, Lane-Claypon & O'Kelly, agents for Perring & Co., Hastings (for
the respondent).

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NATIONAL PROVINCIAL BANK, LTD. v. AINSWORTH.

Thompson v. Earthy ([1951] 2 All E.R. 235) approved.

* Section 70 (1) (g) is set out at p. 476, letter G, post.

Reeves v. Pope ([1914] 2 K.B. 284) applied.

JUDGMENTBY-1: LORD HODSON

n(1) [1963] 2 All E.R. 204; [1964] Ch. 9.

n(2) [1963] 3 All E.R. 649; [1964] Ch. 128.

n(3) [1964] 1 All E.R. 688; [1964] Ch. 665.

n(4) (1883), 9 P.D. 52 at p. 55.

n(5) (1883), 9 P.D. 52.

n(6) [1952] 1 All E.R. 1299; [1952] 2 Q.B. 489, n.

n(7) [1947] 2 All E.R. 792.

n(8) [1924] All E.R. Rep. 365; [1924] 2 Ch. 140.

n(9) [1964] 1 All E.R. at p. 693; [1964] Ch. at p. 684.

n(10) [1964] 1 All E.R. at p. 694; [1964] Ch. at p. 684.

n(11) [1951] 2 All E.R. 235; [1951] 2 K.B. 596.

n(12) [1952]1 All E.R. 1307; [1952] 2 Q.B. 466.

n(13) [1953] 1 All E.R. 87; [1953] 1 Q.B. 300.

n(14) [1953] 1 All E.R. at p. 91; [1953] 1 Q.B. at p. 306.

n(15) [1954] 1 All E.R. 532.

n(16) [1955] 2 All E.R. 883; [1956] Ch. 7.

n(17) [1952] 1 All E.R. 1307; [1952] 2 Q.B. 466.

n(18) [1952] 2 All E.R. 233.

n(22) (1673), Vaugh. 330 at p. 351.

n(23) [1916] W.N. 59.

n(24) [1908-10] All E.R. Rep. 85; [1909] P. 123.

n(25) (1705), Prec. Ch. 241 at p. 244.

n(26) [1964] 1 All E.R. at p. 697; [1964] Ch. at p. 689.

n(27) (1853), 9 Moo. P.C.C. 18 at p. 32.

n(27) (1853), 9 Moo. P.C.C. 18 at p. 32.

n(28) [1914] 2 K.B. 284.

n(29) [1914] 2 K.B. at p. 286.

n(30) [1914] 2 K.B. at p. 288.

n(31) (1853), 9 Moo. P.C.C. 18.

n(32) [1952] 1 All E.R. 1307; [1952] 2 Q.B. 466.

n(33) [1954] 1 All E.R. 532.

n(34) [1955] 1 All E.R. 445.

n(35) [1955] 1 All E.R. at p. 451.

n(36) [1955] 2 All E.R. 883; [1956] Ch. 7.

n(37) [1959] 1 All E.R. 23; [1959] Ch. 251.

n(38) [1964] 1 All E.R. at p. 701; [1964] Ch. at p. 696.

n(39) [1944] 1 All E.R. 246; [1944] K.B. 309.

n(40) [1949] 2 All E.R. 822; [1950] 1 K.B. 311.

n(41) [1950] 1 All E.R. 708; [1950] 1 K.B. 657.

JUDGMENTBY-2: LORD COHEN

n(42) [1952] 1 All E.R. 1299; [1952] 2 Q.B. 489, n.

n(43) [1964] 1 All E.R. at p. 701; [1964] 1 Q.B. at p. 696.

make any further comments on this aspect of the matter.

n(44) [1964] 1 All E.R. at p. 704; [1964] 1 Q.B. at p. 701.

JUDGMENTBY-3: LORD GUEST

JUDGMENTBY-4: LORD UPJOHN

n(45) (1883), 9 P.D. 52.

n(46) (1883), 9 P.D. at p. 55.

n(47) [1949] P. 98 at p. 104.

n(48) [1953] 2 All E.R. 1443.

n(49) [1916] W.N. 59.

n(50) [1924]All E.R. Rep. 365; [1924] 2 Ch. 140.

n(51) (1883), 24 Ch.D. 346 at p. 351.

n(52) [1924] All E.R. Rep. at p. 366; [1924] Ch. at p. 145.

n(54) [1958] 1 All E.R. 146; [1958] P. 47.

n(55) [1956] 3 All E.R. 56; [1957] 1 Q.B. 39.

n(56) [1963] 2 All E.R. 527.