The House of Lords, the court of final appeal, held that someone living in a home, who was deserted, did not by that fact alone have an interest in equity.

Lord Wilberforce offered a definition of property rights, however this level of the decision was compromised, and forms heavily amended principles of law, as the concept of the constructive trust was developed further.

In 1962 he (as borrower) fell behind in the payments to the bank who soon sought possession of the house and sued, bringing this action.

Lord Denning MR held that the ‘deserted wife’s equity’ was capable of binding a third party like a bank.

Prior to the war it was recognised that, where the husband owns the matrimonial home and is living there himself, he cannot turn his wife out.

This court has held that the trustee stands in no better position than the husband and cannot turn her out: see Bendall v McWhirter.

[11] Take finally this case, where the husband conveys the house to a company, which is entirely under his control, in return for fully paid shares.

Take this simple instance: Suppose the husband says to a prospective purchaser: "I cannot myself turn out my wife because I have deserted her; but if you buy from me, there is nothing to stop you getting her out, and then you can sell with vacant possession."

If such a transaction were permitted, the husband would benefit greatly because he would get a high price at his wife's expense.

440), to Professor Crane for his article on The Deserted Wife's Licence (19 Conveyancer and Property Lawyer, yer, N.S.

If the owner of land grants a licence to another to go upon land and occupy it for a specific period or a prescribed purpose, and on the faith of that authority the licensee enters into occupation and does work, or in some other way alters his position to his detriment, then the owner cannot revoke the licence at his will.

It was held that the licence, coupled as it was with actual occupation of the land on which the stack stood, was binding, not only on the licensor, but also on his successors.

It has invariably been held that, once the works are executed, the licensee has an "equity" which is binding on the licensor and his successors: see Duke of Beaufort v Patrick;[16] Dillwyn v Llewelyn.

[17] There may be no binding contract to grant any particular interest to the licensee, but nevertheless the court will look at the circumstances in each case to decide in what way the "equity" can be satisfied: see Plimmer v Wellington Corpn.

[18] Quite recently there was a similar case, but the court reached the same result by invoking the doctrine of estoppel: see Hopgood v Brown.

[19] But whether it be called an "equity" or an "estoppel," the fact remains that the successor was bound just as the original licensor.

[20] Finally, there was a case where the owner of land granted a licence to a young couple to occupy a house as their home so long as they paid the instalments to the building society.

Indeed in all the cases that I have found where a licence, coupled with an equity, has been held binding on successors, the licensee has been in actual occupation of the land.

Such being the nature of the right of a deserted wife - it is a "licence coupled with an equity" - there remains the task of fitting it into the property statutes.

It is protected against any successor except a purchaser for value without notice; and the question of notice is to be determined by asking whether the particular matter would have come to the knowledge of the successor "if such inquiries and inspections had been made by him as ought reasonably to have been made by him": see section 199 (1) (ii) (a) of the Law of Property Act 1925, and the judgment of Upjohn J. in Westminster Bank Ltd v Lee.

Section 70 (1) of the Land Registration Act 1925, includes amongst "over-riding interests" the following: (g) The rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save when inquiry is made of such person and the rights are not disclosed."

The section is a statutory application to registered land of the well-known rule protecting the rights of persons in occupation.

So far as unregistered land is concerned, it is a right to be in actual occupation, and it is available against all successors except purchasers for value without notice.

In cases such as the present there is very little difference in the result; because anyone who is buying a dwelling-house, or lending money on the security of it, ought reasonably to make inquiries as to who is in actual occupation of the house and on what terms.

If the purchaser makes no inquiry, he takes his chance and is bound by the rights of whomsoever is in actual occupation.

In the words of Mr. Pemberton Leigh (afterwards Lord Kingsdown) in Barnhart v Greenshields:[26] "the possession of the tenant" – and, I would add, the possession of the person in actual occupation – "is notice that he has some interest in the land, and that a purchaser having notice of that fact, is bound, according to the ordinary rule, either to inquire what that interest is, or to give effect to it, whatever it may be."

Applying section 70 (1) (g) to the present case, in my opinion the right of the wife was an overriding interest.

...in this case in truth and in fact the wife at all material times was and is in exclusive occupation of the home.

[28]Lord Wilberforce noted that a deserted wife’s equity has been there partly because of a persistent post war housing shortage, and has been variously described as an equity, clog, licence or status of irremovability, and said this is all about whether despite Mrs Ainsworth’s rights against her husband, she had any against the bank.

The ultimate question must be whether [Mrs Ainsworth] can be given the protection which social considerations of humanity evidently indicate without injustice to third parties and a radical departure from sound principles of real property law.