National Provincial Bank Ltd v Hastings Car Mart Ltd

JurisdictionUK Non-devolved
Date1965
CourtHouse of Lords
[HOUSE OF LORDS.] NATIONAL PROVINCIAL BANK LTD. APPELLANT; AND AINSWORTH RESPONDENT. [APPEAL FROM NATIONAL PROVINCIAL BANK LTD. v. HASTINGS CAR MART LTD.] 1965 Feb. 10, 11, 15, 16, 17, 18, 22, 23, 24, 25; Mar. 2; May 13. LORD HODSON, LORD COHEN, LORD GUEST, LORD UPJOHN and LORD WILBERFORCE.

Husband and Wife - Matrimonial home - Desertion by husband - Mortgage subsequently - Wife in occupation - Registered land - Whether wife's right an overriding interest - Land Registration Act, 1925 (15 & 16 Geo. 5, c. 21), s. 70 (1) (g). - Registered Land - Mortgage - Tenant's rights - Deserted wife - Whether right to occupy matrimonial home an “overriding interest” - Land Registration Act, 1925, s. 70 (1) (g). - Husband and Wife - Maintenance (Disposition to avoid) - Matrimonial home - Legal charge - Conveyance of house by husband to a company - Mortgage created by company - Disposition by husband conveying house to company set aside - Whether mortgagee's interest affected - Right of mortgagee to possession - Matrimonial Causes (Property and Maintenance) Act, 1958 (6 & 7 Eliz. 2, c. 35), s. 2. - Husband and Wife - Tort - Matrimonial home - Power to sue wife in tort - Whether right to recover possession against deserted wife - Law Reform (Husband and Wife) Act, 1962 (10 & 11 Eliz. 2, c. 48). - Husband and Wife - Maintenance - Common law position - Matrimonial home - Wife's remedies. - Husband and Wife - Restitution of conjugal rights - Effect of order - Disobedience - Wife's remedies. - Husband and Wife - Act of 1882, s. 17 - Jurisdiction - Matrimonial home - Extent of court's discretion. - Law Reform - Whether necessary - Husband and Wife - Matrimonial home - Deserted wife's limited rights.

A husband deserted his wife in August, 1957, leaving her and four children in occupation of the matrimonial home. The wife obtained a decree of judicial separation in March, 1961, and was also granted custody of the children, permanent alimony and maintenance for the children on the basis that she was provided with rent-free accommodation.

The husband had purchased the matrimonial home in June, 1956. He also owned two other properties, at one of which he carried on the business of a car dealer and his mother lived in the other. He went to live with her there after leaving his wife. By November, 1959, he owed nearly £6,000 to a bank secured by a charge on the matrimonial home. He incorporated his business into a company and conveyed the matrimonial home and his place of business to the company. The company charged both premises to the bank and the husband's liability to the bank was discharged. The company was duly registered at H.M. Land Registry as proprietor of the matrimonial home and the bank's charge was duly registered in the charges register. In November, 1961, and in April, 1962, the bank called in the money secured by this charge and gave notice that in the event of failure to replay it would exercise its power to sell the matrimonial home. Neither the company nor the husband complied with the notice. Before the charge was executed the bank made no inquiries at the premises as to the wife's occupation. The bank was not aware of the husband's desertion at the time the charge was created.

On a summons for possession being brought by the bank, which was resisted by the wife, the question arose whether a deserted wife's right in the matrimonial home was an “overriding interest” within the meaning of section 70 (1) (g) of the Land Registration Act, 1925.F1

Cross J. held that the wife's interest was not an overriding interest and he made an order for possession, the operation of which was postponed pending the hearing of the wife's application to the divorce court.

The wife applied under section 2 of the Matrimonial Causes (Property and Maintenance) Act, 1958, for an order setting aside the disposition whereby the husband had conveyed the house to the company, on the ground that it was made to defeat her claim for maintenance. On July 18, 1963, an order was made in the Divorce Division by Hewson J., under section 2 of the Act of 1958, setting aside the disposition whereby the husband had conveyed the house to the company.

On an application by the wife for rescission of the possession order on the ground that, as a result of the order of Hewson J., the bank's security was destroyed, Cross J. held that the effect of Hewson J.'s order was to revest the matrimonial home in the husband subject to the bank's legal charge and that, accordingly, the bank was entitled to possession.

On appeal by the wife, the Court of Appeal (1) reversed Cross J.'s decision on the question of possession and held that the wife had a right to remain in the house for such period as the court should determine, but (2) affirmed his decision in respect of the effect of Hewson J.'s order.

The bank appealed to the House of Lords:—

Held, (1) that the rights of a deserted wife were of their nature personal rights and such that they could not be treated as in any sense constituting a clog on the property of the husband so as in the case of realty to run with the land; and that, accordingly, a deserted wife could not resist a claim from a genuine purchaser of the matrimonial home from her husband whether the purchase took place after or before desertion (post, pp. 1226E, 1233G, 1239A, 1257B, C, 1258E).

Observations of Roxburgh J. in Thompson v. Earthy [1951] 2 K.B. 596; [1951] 2 T.L.R. 82; [1951] 2 All E.R. 235 approved.

Lee v. Lee [1952] 2 Q.B. 489n.; [1952] 1 T.L.R. 968; [1952] 1 All E.R. 1299, C.A. and Ferris v. Weaven [1952] 2 All E.R. 233; [1952] W.N. 318 considered.

Bendall v. McWhirter [1952] 2 Q.B. 466; [1952] 1 T.L.R. 1332; [1952] 1 All E.R. 1307, C.A.; Street v. Denham [1954] 1 W.L.R. 624; [1954] 1 All E.R. 532; and Jess B. Woodcock & Sons Ltd. v. Hobbs [1955] 1 W.L.R. 152; [1955] 1 All E.R. 445, C.A. overruled.

A wife has a right to be in occupation of the matrimonial home by virtue of her status as a wife and not by virtue of any leave or licence of her husband (post, pp. 1220B, C, 1228B, C, 1232E, F).

(2) That section 70 of the Land Registration Act, 1925, in all its parts was dealing with rights in reference to land which had the quality of being capable of enduring through different ownerships of the land, according to normal conceptions of title to real property. That the right now in question was not of that quality and, therefore, it was not embraced by the language of the section (post, pp. 1226F, G, 1227A, 1228E, 1262B).

The existing law is in an unsatisfactory state (post, pp. 1228F, 1241B).

Quaere. Whether for the purposes of section 70 it is the husband and not the deserted wife who is in actual occupation (post, pp. 1227B, 1228B, 1262C)

Decision of the Court of Appeal [1964] Ch. 665; [1964] 2 W.L.R. 751; [1964] 1 All E.R. 688, C.A. reversed in part.

APPEAL from the Court of Appeal.F2

This was an appeal from an order of the Court of Appeal (Lord Denning M.R. and Donovan L.J., Russell L.J. dissenting) reversing an order for possession of the Chancery Division (Cross J.) made on March 27, 1963. The last-mentioned order was made in proceedings commenced by originating summons under R.S.C., Ord. 55, r. 5A, issued by the appellant, National Provincial Bank Ltd., as mortgagees, against Hastings Car Mart Ltd. as mortgagors, Gordon Ainsworth (hereinafter called “the husband”) and the respondent, Marjorie Patty Ainsworth (hereinafter called “the wife”), the person in occupation, for possession of the freehold dwelling-house known as 124, Milward Road, Hastings, in the county of Sussex, which was registered at H.M. Land Registry under title No. HT 15956. No appearance was entered for the Hastings Car Mart Ltd. or the husband.

The husband and wife lived at 124, Milward Road, of which he was the registered proprietor, with their four children, aged 14, 12, 9 and 6. The husband deserted his wife on August 17, 1957, leaving her and the children in occupation of 124, Milward Road. On February 27, 1959, the wife brought a petition for judicial separation against the husband and was granted the decree and custody of the children on March 13, 1961. On May 2, 1961, an order was made requiring the husband to pay permanent alimony and maintenance for the children from April 25, 1961, on the basis that they continued to live rent-free. The husband fell in arrears under that order.

The husband also owned 7, Bank Buildings, Hastings, where he carried on the business of a car dealer, and 13, Devonshire Road, Hastings, where his mother lived, and he himself went to live after leaving his wife.

On July 8, 1958, the bank lent the husband £1,000, through its Hastings branch, securing this loan and such further advances as it might make to him by a charge on 124, Milward Road. That charge was duly registered at the Land Registry on July 24, 1958. By November, 1959, the husband owed the bank nearly £6,000, which was secured by first mortgages on 124, Milward Road and 7, Bank Buildings, and by a second mortgage on 13, Devonshire Road. The husband wished to transfer his business and properties to a company and the bank was prepared to accept the company as its principal debtor in his place if he guaranteed the company's account. In pursuance of this arrangement Hastings Car Mart Ltd., the first defendant, was incorporated on November 23, 1959, the subscribers to the memorandum being the husband, whose address was given as 13, Devonshire Road; his mother, Margaret Alice Ainsworth, of the same address, and one Jones. On December 17, 1959, the husband conveyed 7, Bank Buildings and 124, Milward Road to the company, and the company on the same day charged the two properties to the bank to secure payment of all moneys from time to time owing by it to the bank which at once advanced it enough to discharge the existing debt of the husband, who at the same time signed a guarantee in respect of the company's indebtedness to the bank. In that guarantee his address was...

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