National Provincial Bank Ltd v Ainsworth (A.P.).

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Hodson,Lord Cohen,Lord Guest,Lord Upjohn,Lord Wilberforce
Judgment Date13 May 1965
Judgment citation (vLex)[1965] UKHL J0513-4

[1965] UKHL J0513-4

House of Lords

Lord Hodson

Lord Cohen

Lord Guest

Lord Upjohn

Lord Wilberforce

National Provincial Bank Limited
and
Ainsworth (A.P.)

Upon Report from the Appellate Committee, to whom was referred the Cause National Provincial Bank Limited against Ainsworth (A.P.), that the Committee had heard Counsel, as well on Wednesday the 10th, Thursday the 11th, Monday the 15th, Tuesday the 16th, Wednesday the 17th, Thursday the 18th, Monday the 22d, Tuesday the 23d, Wednesday the 24th and Thursday the 25th, days of February last, as on Monday the 2d, day of March last, upon the Petition and Appeal of National Provincial Bank Limited, of 15 Bishopsgate, London, E.C.2, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 26th of June 1964, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Marjorie Patty Ainsworth, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 26th day of June 1964, in part complained of in the said Appeal, be, and the same is hereby, Reversed, except so far as regards the words, "And it is Ordered that the said Order dated 8th October 1963 be affirmed", and also except so far as regards the words, "and (2) on the common fund basis the costs to which the said Legal Aid and Advice Acts apply incurred on behalf of the Defendant Marjorie Patty Ainsworth": And it is further Ordered, That the Judgment of the Honourable Mr. Justice Cross of the 27th day of March 1963, thereby Discharged, so far as it directed that the Defendant Marjorie Patty Ainsworth should on or before 27th June 1963 deliver to the Plaintiffs possession of the property hereinafter mentioned, be, and the same is hereby, Restored:

And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Chancery Division of the High Court of Justice with a Direction to make an Order for possession by the Plaintiffs within 28 days of the premises at 124 Milward Road, Hastings, and to do therein as shall be just and consistent with this Judgment:

And it is also further Ordered, That the Costs incurred by the Respondent in respect of the said Appeal to this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960.

Lord Hodson

My Lords,

1

This is an appeal from an order of the Court of Appeal reversing by a majority a decision of Cross, J., dated 27th March, 1963, by which he ordered the Respondent to give possession of a dwellinghouse 124, Milward Road, Hastings, where the Respondent lives, upon the application of the Appellant, the National Provincial Bank Ltd., who claim to be entitled as mortgagee to an order for possession.

2

The Respondent is a married woman who was deserted by her husband on the 17th August, 1957, since when she has continued to make her home at the house with her children. On the 25th May, 1956, the husband was registered as the proprietor of the freehold property at 124, Milward Road.

3

On the 15th March, 1961, the Respondent was granted a decree of judicial separation and on the 2nd May, 1961, an order for alimony was made in favour of the Respondent and there was also made an order for maintenance of each of her children taking into account the fact that she remained in occupation of 124, Milward Road rent free. The house was charged by the husband to the Appellant bank in July, 1958, and in April, 1960, a preceding charge in favour of a Building Society was discharged as a result of which the Appellant became the sole chargee. In November, 1959, the husband raised from the Appellant nearly £6,000 secured by a mortgage on 124, Milward Road, 7, Bank Buildings, Hastings (where he carried on business as a car dealer) and a second mortgage on 13, Devonshire Road where his mother lived and he himself went to live on leaving the Respondent. On 17th December, 1959, the husband conveyed both 7, Bank Buildings and 124, Milward Road to a company called Hastings Car Mart, Ltd., and the company on the same day charged the two properties to the Appellant. The Appellant at once advanced sufficient to the company to enable it to discharge the husband's debt to the Appellant; the husband becoming a guarantor of the company's debt to the Appellant. The company was duly registered as the proprietor of 124, Milward Road, the charge given by the husband in July, 1958, was discharged and the charge given by the company in December, 1959, was entered on the charges register.

4

On 2nd November, 1961, the Appellant issued notice on the company calling in the debt, then some £2,308. The company did not comply with the demand, and on 10th April, 1962, the Appellant served a second notice stating that in default of payment the Appellant would proceed to exercise its rights as mortgagee of 124, Milward Road.

5

On the 4th July, 1962, the Appellant issued an Originating Summons in the Chancery Division asking for possession of the house but the Respondent resisted the claim on the ground that her husband had deserted her leaving her in the house. On the 27th March, 1963, Cross, J., decided in favour of the Appellant but in the meantime the Respondent had applied to the Divorce Division for an order under section 2 (1) of the Matrimonial Causes (Property and Maintenance) Act, 1958, setting aside the conveyance of the house by the husband to the company on the ground that it was used to defeat her claim for maintenance.

6

Accordingly Cross, J., did not make an immediate order for possession. The Respondent succeeded on her application to the Divorce Division and then applied to Cross, J., to vary his order. This he refused to do holding that the order of the Divorce Division only operated to re-vest in the husband any beneficial interest in the house immediately previously held by the company and did not affect the legal charge to the Appellant, a purchaser for value without notice of any intention on the part of the husband to defeat the wife's claim for financial relief. This order has been affirmed by the Court of Appeal and there is no further appeal from it.

7

The subject-matter of the appeal to your Lordships' House is the claim of the Appellant for possession of the house and the question to be decided, the property being registered land, is whether the Respondent is entitled to an overriding interest in reference thereto within the meaning of s. 70(1)( g) of the Land Registration Act of 1925. The section provides as follows:

"All registered land shall, unless under the provisions of this Act the contrary is expressed on the register, be deemed to be subject to such of the following overriding interests as may be for the time being subsisting in reference thereto, and such interests shall not be treated as incumbrances within the meaning of this Act, (that is to say): �� ( g) The rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where inquiry is made of such person and the rights are not disclosed; �"

8

As a preliminary to the construction of this section, important considerations arise as to the impact of matrimonial relations on real property rights generally, quite apart from the rights of husband and wife inter se.

9

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 upon the principle that it is the duty of married persons to live together and that this duty should be enforced by the Court unless it could be shown that the complaining party had been guilty of some matrimonial offence for which a judgment authorising living apart might have been obtained by the other: Weldon v. Weldon (1883) 9 P.D. p. 52 per Sir James Hannen, President, at p. 55. The President went on to cite "the words of Blackstone":

"The suit for restitution of conjugal rights is brought whenever either the husband or wife is guilty of the injury of subtraction or lives separate from the other without any sufficient reason, in which case they will be compelled to come together again, if either party be weak enough to desire it, contrary to the inclination of the other."

10

The decree of the Court was enforced by imprisonment until obedience was secured and by the 22nd section of the Matrimonial Causes Act, 1857, the jurisdiction of the Ecclesiastical Courts was carried over into the Queen's Courts who, as in Weldon's case ( supra), followed the same principle as their predecessors. Subsequently in place of imprisonment as a consequence of failure to obey a decree for restitution of conjugal rights orders for money payment were made under the Matrimonial Causes Act, 1884. By the Summary 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 properly in the house in which she lived with her husband unless she could rely upon a...

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