105 / 298
GAZETTE
APRIL 1981
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
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.
A more progressive trend
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