NOTES OF CASES

AuthorHamish R. Gray
Publication Date01 Nov 1955
DOIhttp://doi.org/10.1111/j.1468-2230.1955.tb00326.x
NOTES
OF CASES
EQUITABLE
PRIORITIES
AND
THE
M
~TRIMONIAL
HOME
ONE
of the chief difficulties of the property lawyer asked to advise
on a case affecting the deserted wife’s right to occupy the matri-
monial home is a problem of classification: is the right of such a
kind that a purchaser of the land concerned must take subject to
it? In an earlier issue of this
Review
Professor Kahn-Freund
described this whole problem as requiring the attention of
Parliament, and the recent decision of Upjohn
J.
in
Westminster
Bank Ltd.
v.
Lee
gives his plea a renewed urgency.
The case was the now familiar one of a mortgagee seeking
possession of a matrimonial home against a deserted wife estab-
lished there with an order made under section
17
of the Married
Women’s Property Act,
1882.
The facts were, however, new in
that
(1)
the mortgagee had an equitable mortgage only; and that
(2)
the wife had been deserted (and hence her right of occupation
had arisen)
before
the date of the creation of the mortgage.
Upjohn
J.
held
(1)
that the mere fact of occupation of the matri-
monial home by the wife did not constitute notice of her interest;
(2)
that the wife’s interest could be overridden by a subsequent
purchaser for value without notice, even although such a pur-
chaser took an equitable interest only, on the ground that the
wife’s interest was a
mere equity
and not an equitable interest
in the strict sense. Accordingly he awarded possession of the house
to the mortgagee.
This undoubtedly breaks new ground in the field of equitable
priorities. Since
Bendall
v.
McWhirter
and more especially
since
Jess
B.
Woodcock
8j.
Sons
Ltd. V. Hobbs
it had seemed that
the deserted wife enjoyed a real equitable estate in the matrimonial
home, an estate for life, determinable however at the discretion
of
the court. With these cases in mind the well-established
principles
:
Where the equities are equal the law prevails,”
and
Where the equities are equal, the first in time prevails,”
could be taken to have been duly applied. This involved no
anomalies and fitted reasonably into the existing relation between
law and equity.
1
Above
at
pp.
412,
415.
See
also
Cheshire
at
16
M.L.R.
1
and
Crane
at
16
The Conveyancer
323.
2
rig551
3
W.L.R
376; 1-19551
2
~ii
E.R.
883.
--
3
[i952j 2
Q.B.
466.
4
[1955] 1
W.L.R.
152; [1955] 1
All
E.R.
445.
5
Lloyds Bank Ltd.
v.
Olioer’s Trustee
[1953]
1
W.L.R.
1460.
6
Barclays Bank Ltd.
V.
Bird
[1954]
Ch.
274.
596

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