WILLIAMS & GLYN’S BANK LIMITED
(APPELLANTS)
v.
BOLAND AND ANOTHER
(RESPONDENTS)
WILLIAMS & GLYN’S BANK LIMITED
(APPELLANTS)
v.
BROWN AND ANOTHER
(RESPONDENTS)
[CONJOINED APPEALS]
Lord Wilberforce
MY LORDS,
These appeals, apart from one special point affecting only Mr. Boland, raise
for decision the same question: whether a husband or a wife, (in each actual
case a wife) who has a beneficial interest in the matrimonial home, by virtue of
having contributed to its purchase price, but whose spouse is the legal and
registered owner, has an “overriding interest” binding on a mortgagee who
claims possession of the matrimonial home under a mortgage granted by that
spouse alone. Although this statement of the issue uses the words “spouse”,
“husband and wife”, “matrimonial “home”, the appeals do not, in my under-
standing, involve any question of matrimonial law, or of the rights of married
women or of women as such. Exactly the same issue could arise if the roles of
husband and wife were reversed, or if the persons interested in the house were
not married to each other. The solution must be derived from a consideration
in the light of current social conditions of the Land Registration Act 1925 and
other property statutes.
The essential facts behind this legal formulation are as follows. Each wife
contributed a substantial sum of her own money toward the purchase of the
matrimonial home or to paying off a mortgage on it. This, indisputably, made
her an equitable tenant in common to the extent of her contribution. Each
house being registered land was transferred into the sole name of the husband
who became its registered proprietor. Later, each husband mortgaged the house
by legal mortgage to the appellant Bank, which made no enquiries of either wife.
Default being made, the Bank started proceedings in the Boland case in the High
Court, in the Brown case in the Dartford County Court, for possession, with a
view to sale. In each case the judge made an order for possession but his decision
was reversed by the Court of Appeal. So the question is whether the legal and
registered mortgage takes effect against the matrimonial home, or whether the
wives’ beneficial interest has priority over it.
The legal framework within which the appeals are to be decided can be
summarised as follows.
Under the Land Registration Act 1925, legal estates in land are the only
interests in respect of which a proprietor can be registered. Other interests take
effect in equity as “minor interests”, which are overriden by a registered transfer.
But the Act recognises also an intermediate, or hybrid, class of what are called
“overriding interests”: though these are not registered, legal dispositions take
effect subject to them. The list of overriding interests is contained in section 70
and it includes such matters as easements, liabilities having their origin in tenure,
land tax and title rentcharge, seignorial and manorial rights, leases for terms not
exceeding 21 years; and finally, the relevant paragraph being section 70(1)
(g):-
2
“The rights of every person in actual occupation of the land or in receipt
“of the rents and profits thereof, save where enquiry is made of such person
“and the rights are not disclosed”.
The first question is whether the wife is a “person in actual occupation” and
if so, whether her right as a tenant in common in equity is a right protected
by this provision.
The other main legal element arises out of the Law of Property Act 1925.
Since that Act, undivided shares in land can only take effect in equity, behind
a trust for sale upon which the legal owner is to hold the land. Dispositions of
the land, including mortgages, may be made under this trust, and provided that
there are at least two trustees, or a trust corporation, “overreach” the trusts.
This means that the “purchaser” takes free from them, whether or not he has
notice of them, and that the trusts enforceable against the proceeds of sale.
See Land Property Act 1925, section 2(2) and section 2(3) which lists certain
exceptions.
The second question is whether the wife’s equitable interest under the trust
for sale, if she is in occupation of the land, is capable of being an overriding
interest, or whether, as is generally the rule as regards equitable interests, it can
only take effect as a “minor interest”. In the latter event a registered transferee,
including a legal mortgagee, would take free from it.
The system of land registration, as it exists in England, which long antedates
the Land Registration Act 1925, is designed to simplify and to cheapen
conveyancing. It is intended to replace the often complicated and voluminous
title deeds of property by a single land certificate, on the strength of which land
can be dealt with. In place of the lengthy and often technical investigation of
title to which a purchaser was committed, all he has to do is to consult the regis-
ter; from any burden not entered on the register, with one exception, he takes
free. Above all, the system is designed to free the purchaser from the hazards
of notice—real or constructive—which, in the case of unregistered land, in-
volved him in enquiries, often quite elaborate, failing which he might be bound
by equities. The Law of Property Act 1925 contains provisions limiting the
effect of the doctrine of notice, but it still remains a potential source of danger
to purchasers. By contrast, the only provisions in the Land Registration Act
1925 with regard to notice are provisions which enable a purchaser to take the
estate free from equitable interests or equities whether he has notice or not. (See,
for example, section 3(xv) s.v. “minor interests”). The only kind of notice
recognised is by entry on the register.
The exception just mentioned consists of “overriding interests” listed in
section 70. As to these, all registered land is stated to be deemed to be subject
to such of them as may be subsisting in reference to the land, unless the contrary
is expressed on the register. The land is so subject regardless of notice actual or
constructive. In my opinion therefore, the law as to notice as it may affect
purchasers of unregistered land, whether contained in decided cases, or in a
statute (the Conveyancing Act 1882, section 3, Law of Property Act, section
199) has no application even by analogy to registered land. Whether a particular
right is an overriding interest, and whether it affects a purchaser, is to be decided
upon the terms of section 70, and other relevant provisions of the Land Regis-
tration Act 1925, and upon nothing else.
In relation to rights connected with occupation, it has been said that the
purpose and effect of section 70(l)(g) of the Land Registration Act 1925 was to
make applicable to registered land the same rule as previously had been held
to apply to unregistered land (see per Lord Denning M.R. in National Provincial
Bank Ltd. v. Hastings Car Mart Ltd. [1964] Ch. 665, 689, and in this House
[1965] AC 1175, 1259).
I adhere to this, but I do not accept the argument which learned counsel for
the appellant sought to draw from it. His submission was that, in applying
3
section 70(l)(g), we should have regard to and limit the application of the
paragraph in the light of the doctrine of notice. But this would run counter to
the whole purpose of the Act. The purpose, in each system, is the same, namely,
to safeguard the rights of persons in occupation, but the method used differs.
In the case of unregistered land, the purchaser’s obligation depends upon what
he has notice of—notice actual or constructive. In the case of registered land,
it is the fact of occupation that matters. If there is actual occupation, and the
occupier has rights, the purchaser takes subject to them. If not, he does not.
No further element is material.
I now deal with the first question. Were the wives here in “actual occu-
pation”? These words are ordinary words of plain English, and should, in my
opinion, be interpreted as such. Historically they appear to have emerged in the
judgment of Lord Loughborough in Taylor v. Stibbert (1974) 2 Yes. 437, in a
passage which repays quotation:—
“. . . whoever purchases an estate from the owner, knowing it to be in
“possession of tenants, is bound to inquire into the estates those tenants
“have. It has been determined that a purchaser being told particular parts
“of the estate were in possession of a tenant, without any information as to
“his interest and taking it for granted it was only from year to year, was
“bound by a lease that tenant had, which was a surprise upon him. That
“was rightly determined; for it was sufficient to put the purchaser upon
“inquiry, that he was informed the estate was not in the actual possession
“of the person with whom he contracted; that he could not transfer the
“ownership and possession at the same time; that there were interests, as
“to the extent and terms of which it was his duty to inquire.”
They were taken up in the judgment of the Privy Council in Barnhart v.
Greenshields (1853) 9 Moo.P.C. 18. The purpose for which they were used, in
that case, was evidently to distinguish the case of a person who was in some
kind of legal possession, as by receipt of the rents and profits, from that of a
person actually in occupation as tenant. Given occupation, i.e. presence on the
land, I do not think that the word “actual” was intended to introduce any
additional qualification, certainly not to suggest that possession must be
“adverse”: it merely emphasises that what is required is physical presence, not
some entitlement in law. So even if it were necessary to look behind these plain
words into history, I would find no reason for denying them their plain meaning.
Then, were the wives in actual occupation? I ask: why not? There was
physical presence, with all the rights that occupiers have, including the right to
exclude all others except those having similar rights. The house was a matri-
monial home, intended to be occupied, and in fact occupied by both spouses,
both of which have an interest in it: it would require some special doctrine of
law to avoid the result that each is in occupation. Three arguments were used
for a contrary conclusion. First, it was said that if the vendor (I use this word to
include a mortgagee) is in occupation, that is enough to prevent the application
of the paragraph. This seems to be a proposition of general application, not
limited to the case of husbands, and no doubt, if correct, would be very con-
venient for purchasers and intending mortgagees. But the presence of the vendor,
with occupation, does not exclude the possibility of occupation of others. These
are observations which suggest the contrary in the unregistered land case of
Caunce v. Caunce [1969] 1 W.L.R. 286, but I agree with the disapproval of
these, and with the assertion of the proposition I have just stated by Russell L.J.
in Hodgson v. Marks [1971] Ch 892, 934. Then it was suggested that the wife’s
“occupation” was nothing but the shadow of the husband’s—a version I suppose
of the doctrine of unity of husband and wife. This expression and the argument
flowing from it was used by Templeman J. in Bird v. Syme-Thomson [1979]
1 W.L.R. 440-444, a decision preceding and which he followed in the present
case. The argument was also inherent in the judgment in Caunce v. Caunce
(supra) which influenced the decisions of Templeman J. It somewhat faded
from the arguments in the present case and appears to me to be heavily obsolete.
The appellants main and final position became in the end this: that, to come
within the paragraph, the occupation in question must be apparently incon-
sistent with the title of the vendor. This, it was suggested, would exclude the
4
wife of a husband-vendor because her apparent occupation would be satisfac-
torily accounted for by his. But, apart from the rewriting of the paragraph which
this would involve, the suggestion is unacceptable. Consistency, or incon-
sistency, involves the absence, or presence, of an independent right to occupy,
though I must observe that “inconsistency” in this context is an inappropriate
word. But how can either quality be predicated of a wife, simply qua wife? A
wife may, and everyone knows this, have rights of her own; particularly, many
wives have a share in a matrimonial home. How can it be said that the presence
of a wife in the house, as occupier, is consistent or inconsistent with the husband’s
rights until one knows what rights she has? And if she has rights, why, just
because she is a wife (or in the converse case, just because an occupier is the
husband), should these rights be denied protection under the paragraph? If
one looks beyond the case of husband and wife, the difficulty of all these
arguments stands out if one considers the case of a man living with a mistress,
or of a man and a woman—or for that matter two persons of the same sex—
living in a house in separate or partially shared rooms. Are these cases of
apparently consistent occupation, so that the rights of the other person (other
than the vendor) can be disregarded? The only solution which is consistent with
the Act (section 70(l)(g)) and with common sense is to read the paragraph for
what it says. Occupation, existing as a fact, may protect rights if the person in
occupation has rights. On this part of the case I have no difficulty in concluding
that a spouse, living in a house, has an actual occupation capable of con-
ferring protection, as an overriding interest, upon rights of that spouse.
This brings me to the second question, which is whether such rights as a
spouse has under a trust for sale are capable of recognition as overriding
interests—a question to my mind of some difficulty. The argument against this
is based upon the structure of the Land Registration Act 1925 and upon specific
provisions in it.
As to structure, it is said that the Act recognises three things: (a) legal estates,
(b) minor interests, which take effect in equity, (c) overriding interests. These are
mutually exclusive: an equitable interest, which is a minor interest, is incapable
of being at the same time an overriding interest. The wife’s interest, existing
under, or behind, a trust for sale is an equitable interest and nothing more. To
give it the protection of an overriding interest would, moreover, contradict the
principle according to which such an equitable interest can be overreached by
an exercise of the trust for sale. As to the provisions of the Act, particular
emphasis is placed on section 3(xv) which, in defining “minor interests”
specifically includes in the case of land held on trust for sale “all interests and
“powers which are under the Law of Property Act, 1925, capable of being
“overriden by the trustees for sale” and excludes, expressly, overriding interests.
Reliance is also placed on section 86, which, dealing analogously, so it is said,
with settled law, prescribes that successive or other interests created by or
arising under a settlement take effect as minor interests and not otherwise, and
on section 101 which, it is argued, recognises the exclusive character of minor
interests, which in all cases can be overridden.
My Lords, I find this argument formidable. To reach a conclusion upon it
involves some further consideration of the nature of trusts for sale, in relation
to undivided shares. The trusts upon which, in this case, the land is to be held
are defined—as “statutory trusts”—in section 35 of the Law of Property
Act, 1925, i.e.
‘ . . . upon trust to sell the same and to stand possessed of the net
“proceeds of sale, after payment of costs, and of the net rents and profits
“until sale after payment of rates, taxes, costs of insurance, repairs, and
“other outgoings, upon such trusts, and subject to such powers and
“provisions, as may be requisite for giving effect to the rights of the
“persons . . . interested in the land”.
In addition to this specific disposition, the general provisions as to trusts for
sale in sections 23-31, where not inconsistent, appear to apply. The right of
occupation of the land pending sale is not explicity dealt with in these sections
5
and the position as to it is obscure. Before the Act the position was that owners
of undivided shares (which could exist at law) had concurrent rights of occup-
ation. In Bull v. Bull [1955] 1 Q.B. 234, it was held by the Court of Appeal,
applying In re Warren [1932] 1 Ch. 42, that the conversion of these legal estates
into equitable interests by the Law of Property Act 1925 should not affect the
mutual rights of the owners. Denning L.J., in a judgment which I find most
illuminating, there held, in a factual situation similar to that of the instant
cases, that “when there are two equitable tenants in common, then, until the
“place is sold, each of them is entitled concurrently with the other to the
“possession of the land and to the use and enjoyment of it in a proper manner”
(I.c. p.238). And he referred to section 14 of the Law of Property Act 1925
which provides that the Act “shall not prejudicially affect the interest of any
“person in possession or in actual occupation of land to which he may be
“entitled in right of such possession or occupation”.
How then are these various rights to be fitted into the scheme of the Land
Registration Act 1925? It is clear, at least, that the interests of the co-owners
under the “statutory trusts” are minor interests—this fits with the definition
in section 3(xv). But I can see no reason why, if these interests, or that of any
one of them, are or is protected by “actual occupation” they should remain
merely as “minor interests”. On the contrary, I see every reason why, in that
event, they should acquire the status of overriding interests. And, moreover,
I find it easy to accept that they satisfy the opening, and governing, words of
section 70, namely, interests subsisting in reference to the land. As Lord
Denning M.R. points out, to describe the interests of spouses in a house jointly
bought to be lived in as a matrimonial home as merely an interest in proceeds
of sale, or rents and profits until sale, is just a little unreal see also Elias v.
Mitchell [1972] Ch. 652 per Pennycuick V.-C. with whose analysis I agree,
and contrast, Cedar Holdings v. Green [1979] 3W.L.R.31 (which I consider to
have been wrongly decided).
There are decisions, in relation to other equitable interests than those of
tenants in common, which confirm this line of argument. In Bridges v. Mees
[1957] Ch. 475, Harman J. decided that a purchaser of land under a contract
for sale, who had paid the price and so was entitled to the land in equity, could
acquire an overriding interest by virtue of actual occupation, and a similar
position was held by the Court of Appeal to arise in relation to a resulting trust
(Hodgson v. Marks [1971] Ch 892). These decisions (following the law as it
undoubtedly existed before 1925—see Barnhart v. Greenshields I.c. p.32,
Daniels v. Davison (1809) 16 Yes. 249, Allen v. Anthony (1816) 1 Mer. 282, 284
per Lord Eldon) provide an answer to the argument that there is a firm dividing
line, or an unbridgeable gulf, between minor interests and overriding interests,
and, on the contrary, confirm that the fact of occupation enables protection of
the latter to extend to what without it would be the former. In my opinion,
the wives’ equitable interests, subsisting in reference to the land, were by the
fact of occupation, made into overriding interests, and so protected by section
70(l)(g). I should add that it makes no difference to this that these same interests
might also have been capable of protection by the registration of a caution
(see Bridges v. Mees p.c. p.487, Land Registration Act 1925, section 59(6)).
There was finally an argument based upon section 74 of the Land Registration
Act 1925.
“74. Subject to the provisions of this Act as to settled land, neither
“the registrar nor any person dealing with a registered estate or charge
“shall be affected with notice of a trust express implied or constructive,
“and references to trusts shall, so far as possible, be excluded from the
“register”.
The argument was that if the overriding interest sought to be protected is,
under the general law, only binding on a purchaser by virtue of notice, the
section has the effect of denying the protection. It is obvious—and indeed
conceded—that if this is right, Hodgson v. Marks and Bridges v. Mees (supra)
must have been wrongly decided.
6
I am of opinion that this section has no such effect. Its purpose is to make
clear, as I have already explained, that the doctrine of notice has no application
to registered conveyancing, and accordingly to establish, as an administrative
measure, that entries may not be made in the register which would only be
appropriate if that doctrine were applicable. It cannot have the effect of cutting
down the general application of section 70(1)(9).
I would only add, in conclusion, on the appeal as it concerns the wives a
brief observation on the conveyancing consequences of dismissing the appeal.
These were alarming to Templeman J., and I can agree with him to the extent
that whereas the object of a land registration system is to reduce the risks to
purchasers from anything not on the register, to extend (if it be an extension)
the area of risk so as to include possible interests of spouses, and indeed, in
theory, of other members of the family or even outside it, may add to the
burdens of purchasers, and involve them in enquiries which in some cases may
be troublesome.
But conceded, as it must be, that the Act, following established practice,
gives protection to occupation, the extension of the risk area follows necessarily
from the extension, beyond the paterfamilias, of rights of ownership, itself
following from the diffusion of property and earning capacity. What is involved
is a departure from an easy-going practice of dispensing with enquiries as to
occupation beyond that of the vendor and accepting the risks of doing so.
To substitute for this a practice of more careful enquiry as to the fact of
occupation, and if necessary, as to the rights of occupiers can not, in my view
of the matter, be considered as unacceptable except at the price of overlooking
the widespread development of shared interests of ownership. In the light of
section 70 of the Act, I cannot believe that Parliament intended this, though it
may be true that in 1925 it did not foresee the full extent of this development.
Mr. Boland’s appeal
The special point taken by Mr. Boland arises out of the facts of his case and
the nature of the Bank’s proceeding against him. This was brought under
R.S.C. Order 88 for summary judgment. Mr. Boland contended that there was
a dispute as to the amount actually owed by him to the Bank, and that until
this dispute was resolved by trial, judgment for possession ought not to be
granted against him before he had had an opportunity of invoking the discretion
of the Court under the Administration of Justice Act 1970 section 36. The
judgment of Templeman J., who fully considered this point, provides a complete
answer to this contention. It is clear that, on the view of the matter most
favourable to Mr. Boland, he owes a substantial sum, of the order of £40,000,
to the Bank. He has, on the other hand, put forward no material evidence as
to the likelihood, or possibility, of discharging or refinancing this indebtedness,
upon which to invoke the court’s discretion under the section, and the judge
was undoubtedly right in refusing to exercise it in the absence of such material
evidence. In any case, there was no basis upon which the Court of Appeal could
legitimately interfere with the decision of the judge, and indeed no substantial
reason was given for doing so. In my opinion this part of the decision of the
Court of Appeal cannot be supported.
However, on the main issue on both appeals, as they affect the wives, the
decision of the Court of Appeal was, in my opinion, right, and an order for
possession cannot be made in either case. I would dismiss the appeals.
Viscount Dilhorne
I had intended to deliver a speech in this important case but since I have had
the advantage of reading in draft the speech of my noble and learned friend,
Lord Wilberforce, I have come to the conclusion that no useful purpose would
be served by my doing so as I agree with him so completely, both in his reasoning
and in his conclusions.
I too would dismiss the appeals.
7
Lord Salmon
my lords,
I have had the advantage of reading in draft the speech prepared by my noble
and learned friend, Lord Wilberforce. For the reasons he gives, I too, would
dismiss the appeal.
Lord Scarman
MY LORDS,
The result of the appeals in the two wives’ cases will depend upon the
construction to be put upon section 70(l)(g) of the Land Registration Act 1925.
But the importance of the House’s decision is not to be judged solely by its
impact on conveyancing, or banking, practice. The Court of Appeal recognised
the relevance, and stressed the importance, of the social implications of the
case. While the technical task faced by the courts, and now facing the House,
is the construction to be put upon a sub-clause in a subsection of a conveyancing
statute, it is our duty, when tackling it, to give the provision, if we properly
can, a meaning which will work for, rather than against, rights conferred by
Parliament, or recognised by judicial decision, as being necessary for the
achievement of social justice. The courts may not, therefore, put aside, as
irrevelant, the undoubted fact that, if the two wives succeed, the protection of
the beneficial interest which English law now recognises that a married woman
has in the matrimonial home will be strengthened, whereas, if they lose, this
interest can be weakened, and even destroyed, by an unscrupulous husband. Nor
must the courts flinch when assailed by arguments to the effect that the pro-
tection of her interest will create difficulties in banking or conveyancing practice.
The difficulties are, I believe, exaggerated: but bankers, and solicitors, exist to
provide the service which the public needs. They can—as they have successfully
done in the past—adjust their practice, if it be socially required. Nevertheless,
the judicial responsibility remains—to interpret the statute truly according to
its tenor. The social background is, therefore, to be kept in mind but can be
decisive only if the particular statutory provision under review is reasonably
capable of the meaning conducive to the social purpose to which I have referred.
If it is not, the remedy is to be found not by judicial distortion of the language
used by Parliament but in amending legislation.
Fortunately, these appeals call for no judicial ingenuity—let alone distortion.
The ordinary meaning of the words used by Parliament meets the needs of
social justice.
Each appeal is concerned with registered land; and each raises the same
point—the true construction of section 70(l)(g) of the Land Registration Act
1925. The relevant terms of the subsection are:—
“70—(1) 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 enquiry is
“made of such person and the rights are not disclosed;”
It is conceded that each wife has a beneficial interest in the land, which is
her matrimonial home. Each is an equitable tenant in common behind a trust
for sale, there being only one trustee, her husband, in whom the legal estate
(a freehold) is vested. Each, therefore, enjoys by reasons of her interest, a
8
present right of occupation as well as a right to a share in the proceeds of sale,
if and when the house is sold: Bull v. Bull [1955] 1 Q.B. 234. It is also conceded’
that each was at all material times living in her house with her husband: and,
for the reasons given by my noble and learned friend, Lord Wilberforce,
I have no doubt that the wife was, as also was her husband, in actual occupation
of the home.
Upon these facts, a construction of the subsection based upon the ordinary
meaning of the words of the subsection can lead to only one conclusion:
the wife has an overriding interest. For each wife meets the three requirements
of the section. She was in “actual occupation”, in the ordinary meaning of the
words, and she enjoyed “rights”, one of which, her right to occupation, was
certainly an interest “subsisting in reference” to registered land. Since the Bank
made no enquiry of the wife in either case before granting the husband a
mortgage, its claim as mortgagee to possession is, on this view of the subsection,
defeated by the wife’s overriding interest.
But the Bank submits that this simple approach to the interpretation of the
subsection must be rejected as inconsistent with other key provisions in the
Land Registration Act 1925 and with its legislative purpose. It is submitted that
the true meaning of the subsection is to be gathered from an examination of
the statute against its historical background and in the context of the property
law, which includes the provisions of the 1925 legislation dealing with the
trust for sale.
An English lawyer ignores history at his peril. But the lessons of our legal
history are not always easy to discern. Legal history, even English legal history,
is not one of unbroken continuity in the law’s development: it includes some-
times the rejection of existing principles and the introduction of new ones.
The Land Registration legislation is an example. The wearisome and intricate
task of examining title, and with it the doctrine of notice have been replaced
by a statutory system of registration (where the Act applies), subject to the
overriding interests set out in section 70(1). These interests take effect under the
section without registration and whether or not a purchaser has notice of them.
I do not, therefore, read the Act of 1925 as requiring the courts to give the
words “actual occupation” in section 70(l)(g) the special meaning for which
the appellants contend, namely an occupation, which by its nature necessarily
puts a would-be purchaser (or mortgagee) upon notice of a claim adverse to
the registered owner. On the contrary, 1 expect to find—as I do find—that the
statute has substituted a plain factual situation for the uncertainties of notice,
actual or constructive, as the determinant of an overriding interest. Nor—and
for the same reason—do I accept the submission that assistance in interpreting
these words is to be gained from considering such cases as Caunce v. Caunce
[1969] 1 W.L.R. 286, which dealt with unregistered land. The issue in those
cases was as to the circumstances in which occupation constitutes constructive
notice to a purchaser of the rights of the occupier. Like Russell L.J. in Hodgson
v. Marks [1971] Ch 892 (pp.934-935), I am by no means certain that Caunce
v. Caunce was correctly decided. However, since the present case is concerned
only with registered land, it is unnecessary to express a final opinion upon the
point.
My noble and learned friend, Lord Wilberforce, has dealt with the appellants’
arguments based on the Act’s definitions of minor interests and overriding
interests. I agree with him in rejecting them, and will, therefore, add only a few
words of my own. The critically important right of the wife, so far as these
appeals are concerned, is the right of occupation of the land. This right, if
unaccompanied by actual occupation, is clearly within the definition of a minor
interest: section 3(xv). It is not, therefore, itself an overriding interest. But, once
it is associated with actual occupation, the association is an overriding interest.
I agree with the appellants that overriding interests and minor interests are, as
categories, exclusive of each other. But there is no logical difficulty in the
association of a minor interest with another factor (i.e. actual occupation) being,
qua association, an overriding interest. And this is, in my judgment, the effect
of section 70(1)(g).
9
For these reasons I would dismiss the appeals of the Bank in the wives’ cases.
I agree with my noble and learned friend that Mr. Boland’s appeal must, how-
ever, be dismissed. But his lack of success makes no difference to the outcome
of the litigation. The Bank fails in each case to obtain what it seeks, an order
for possession of the matrimonial home, because the wife is in actual occupation
and has herself a right of occupation.
Lord Roskill
my lords,
I have had the advantage of reading in draft the speech of my noble and
learned friend Lord Wilberforce. I agree with it, and would dismiss this appeal
for the reasons therein set out.
Since your Lordships have reached the same result as the Court of Appeal, it is
in my judgment desirable to correct one statement in the judgment of Lord
Justice Ormrod in that court which learned counsel for the respondents found
himself unable to support, lest otherwise that statement by the learned Lord
Justice may be thought to have the approval of your Lordships’ House. That
statement appears in the report of Lord Justice Ormrod’s judgment in [1979]
Ch. 309 at p.337. He was dealing with the appellants’ submissions based on
section 3(xv) (a) of the Land Registration Act 1925 and on section 2 of the Law
Property Act 1925. He said:—
“I think, with respect, that the answer to both points is that the wives’
“interests have not been overreached and are not capable of being over-
“reached because in each case the land was held by a sole trustee who has no
“overreaching powers . . . “.
Your Lordships were told by learned counsel that this point had not been
discussed in argument before the Court of Appeal, but was raised for the first
time in this judgment. Accordingly counsel did not have the opportunity of
drawing the attention of the learned Lord Justice to section 49(2) of the Land
Registration Act 1925 and to the protection that that section accords. No doubt
had they done so, the learned Lord Justice would not have expressed himself
as he did.
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