Welch v Tennent
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 1891 |
| Date | 28 July 1891 |
| Docket Number | No. 13. |
| Court | House of Lords |
Ld. Herschell, Lord Watson, Lord Morris.
Husband and Wife—Foreign—Sale of English heritage belonging to wife—Surrogatum—Donation inter virum et uxorem.—
The wife of a domiciled Scotsman, with her husband's concurrence, sold the estate of X, in England, belonging to her, and acknowledged the conveyance before two commissioners in terms of the Act 3 and 4 Will. IV. cap. 74, for the Abolition of Fines and Recoveries, declaring at the same time that she intended to give up her interest in the estate without having any provision made for her in lieu thereof. Her husband received the price and applied it to his own uses. The spouses afterwards separated by mutual consent, and the wife executed a deed of revocation of all donations and provisions made by her in her husband's favour. She then brought an action against him for declarator that the price in his hands was either (1) a surrogatum for her heritage, and not subject to the jus mariti, or (2) was a donation to him which she had validly revoked.
Held (rev. judgment of First Division) that by the law of England the husband on his marriage acquired an estate in his wife's heritage, so that at the date of the sale the estate of X was the heritable estate of the husband as well as of the wife, and that the price could not be regarded as a surrogatum for her estate solely.
Opinion that the wife's consent to her husband receiving the price could not be regarded as a donation by her in respect that the sale could not have been carried through without the husband's consent, and that his consent was only given on these terms.
(In the Court of Session, June 28, 1889, 16 R. 876.)
The defender appealed.
After consideration,—
Lord Herschell.—The parties were married in the year 1877 without any marriage-contract, and the domicile of the husband being Scottish, it was not disputed that this was the matrimonial domicile, and that all questions as to the right to moveables accruing to either of the spouses fall to be determined according to the law of Scotland.
The respondent was at the time of her marriage the owner of a freehold estate in England called Overton. She was also possessed of a leasehold house situated there. These freehold and leasehold properties were both sold shortly after the marriage. The £950 was the purchase money of the leasehold house, and as the claim in respect of it was abandoned it need not be further referred to. The £18,000 was part of the price of the freehold estate which was received by the husband on the execution of the conveyance in July 1877. The balance of the purchase money, £5500, was invested as security for the payment of an annuity of £200 a-year which was charged on the estate. It is not questioned that the £18,000 was received by the husband with the full assent of his wife, but the circumstances under which it was received and the precise nature of the transaction will be hereafter considered. Mrs Tennent, on the 28th of December 1882, revoked all donations in favour of her husband, and...
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...67 L.J.Q.B. 447, applied. (35) Swiss Bank & Trust Corp. Ltd. v. Iorgulescu, 1994–95 CILR 149, referred to. (36) Welch v. Tennent, [1891] A.C. 639, not followed. Legislation construed: Grand Court Rules 1995, O.2, r.1(1): ‘Where, in beginning or purporting to begin any proceedings … there ha......
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