The Gazette 1981

APRIL 1981

GAZETTE

to have required that the purchaser must have notice of the actual occupation protected by the paragraph, Russell L.J. held that Marks the purchaser did in fact have notice of Mrs. Hodgson's occupation. She was in actual occupation of the property and he held that there was a resulting trust of the beneficial interest to her. The influence of Caunce, rather than of Hodgson is, however, to be seen in Bird v. Syme Thomson [1978] 3 All E.R. 1027. This decided that, where a husband and wife were in occupation and the legal title was held by one of them and actual occupation for purposes of paragraph (g) belonged to the spouse with the legal title, the other spouse was only there as a shadow of the owner's occupation. This case could also be regarded as an extension of Ainsworth and it applied the doctrine of that case to the occupancy of somebody who was not a "bare" wife but one who had an equitable interest. The reformist tendency of Hodgson has, however, now returned with a decision of the Court of Appeal and of the House of Lords in two cases reported under Williams & Glyn's Bank v. Boland [1979] Ch. 312 and [1980] 3 W.L.R. 138 respectively. Both husbands were registered as sole proprietors of the matrimonial home where they lived with their respective wives. In both cases the wife had made a substantial contribution to the purchase of the house but had not registered any form of caution, restriction or notice. In each case the husband, in order to secure business indebtedness, charged the house to the plaintiff bank without his wife's knowledge. In neither case did the bank make any inquiry as to any interest which might be held by the wife. When the debts were not paid, the bank sought possession of the matrimonial homes. Although the conveyance was taken in the husband's name alone, it was common ground in both of these cases that the wife, owing to her contribution to the purchase, was entitled, in equity, to a share in the house. Thus, her right to occupy was, of course, something more than the right of the "bare" wife with which Ainsworth dealt. The only question was whether she was herself a person "in actual occupation." In Bird v. Syme Thomson, Templeman J.'s view (at p. 1030) was that "when a mortgagor is in actual occupation of the matrimonial home, it cannot be said that his wife also is in actual occupation." Lord Denning held that this view could not stand with Hodgson nor with the standing of women in our society today:— "Most wives now are joint owners of the matrimonial home — in law or in equity — with their husbands. They go out to work just as their husbands do. Their earnings go to build up the home just as much as their husband's earnings. Visit the home and you will find that she is in personal occupation of it just as much as he is. She eats there and sleeps there just as he does. She is in control of all that goes on there — just as much as he. In no respect whatever does the nature of her occupation differ from his. If he is a sailor away for months at a time, she is in actual occupation. If he deserts her, she is in actual occupation. These instances all show that "actual occupation" is matter of fact, not matter of law. It need not be single. Two partners in a business can 105 A more progressive trend

produced a decision very much at variance with the con- servative trend of that epochal decision. What makes Hodgson of particular interest to the Irish practitioner is that it dealt with an occupant who was not the vendor's wife and therefore its scope has not been largely pre- empted by the Family Home Protection Act, 1976. In 1959, Mrs. Hodgson, a widow and old age pensioner, then aged 72, took as a lodger a Mr. Evans "a very ingratiating person, tall, smart, pleasant, self- assured, 50 years of age, apparently dignified by greying hair and giving the impression . . . of a retired colonel." Mrs. Hodgson's nephew was in the Foreign Service and returned on six months' leave from time to time. Evans succeeded in persuading her that her nephew would turn him out unless the land was transferred to him. He brought her land certificate to solicitors who were strangers both to him and Mrs. Hodgson and who entrusted the matter to a managing clerk, Mr. Goodland. Mrs. Hodgson executed a transfer of the property on 30 June 1960 on what appeared to be her only visit to the solicitors' office. Evans was registered as proprietor on 1 September, 1960, but the transfer of legal ownership did not result in any change in the relationship between Mrs. Hodgson and her lodger. Evans however, unknown to Mrs. Hodgson, on 28 July 1964 contracted to sell the property, with vacant possession on completion, to Marks for £6,000. The transfer was executed on 12 August and Marks was registered as proprietor with title absolute on 1 September 1964. The purchase was effected with the aid of a loan from a building society (who were to become the second defendants) and Marks executed a charge in their favour on the same day on which he executed the transfer. Their charge was registered simultaneously with Mark's registration as proprietor. Marks had visited the house before the contract. He had seen Mrs. Hodgson coming up the path but did not ascertain who she was, much less make of her the enquiry prescribed by paragraph (g). The evidence did not directly establish that, before registration of the transfer to him and the charge in favour of the building society, "he knew or had reason to know that she had any interest in the house." Nor, apart from his knowing that, a separate bedroom was occupied by a woman, "did he know or have reason to know" that anybody other than Evans was in occupation. The latter had told Marks that he was married and there may have been an assumption that the lady seen on the premises was his wife. It was not until May 1965 that Mrs. Hodgson discovered that the house had been sold, and that Marks realised that she claimed to be its owner. ^ The trial judge, Ungoed-Thomas, J., dismissed Mrs. Hodgson's action for declarations that Marks was bound to transfer the property to her free from the building society's charge and that she was entitled to be registered as proprietor free from his charge. The Court of Appeal allowed Mrs. Hodgson's appeal. Russell, L.J. was not responsive to the argument that paragraph (g) did not apply to a vendor who was also in occupation and that any other view would lead to an impossible burden of inquiry on the purchaser, and more particularly on a mortgagee. Although he does not seem