United Kingdom House of Lords Decisions

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Cite as: [1891] UKHL 953, 28 ScotLR 953

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SCOTTISH_SLR_House_of_Lords

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House of Lords.

Tuesday, July 28. 1891.

(Before Lords Herschell, Watson, and Morris.)

28 SLR 953

Welch

v.

Tennent.

Ante, June 28, 1889, 26 S.L.R. 600, and 16 R. 876.)

Subject_Husband and Wife — Foreign — Heritable Estate of Wife in England — Sale of Wife's Estate with her Consent — Husband's Right to Proceeds — Jus Mariti — Donatio inter virum et uxorem — Surrogatum — Act for the Abolition of Fines and Recoveries (3 and 4 Will. IV. c. 74).
Facts:

The wife of a domiciled Scotsman, with concurrence of her husband, sold a heritable estate belonging to her in England and acknowledged the conveyance before two commissioners appointed under the Act for the Abolition of Fines and Recoveries (3 and 4 Will. IV. c. 74), and “declared that she did intend to give up her interest in the said estate without any provision made for her in lieu thereof.” Her husband received the price, and applied it to his own purposes. The spouses subsequently separated by mutual consent, and the wife executed a deed of revocation of all her donations and provisions in favour of her husband. She then sued him for declarator that the amount in his hands was a surrogatum for her heritage and not subject to the jus mariti.

Held ( rev. the decision of the First Division) that the price of the wife's interest in the estate did not belong to her as a surrogatum for her heritable estate.

Headnote:

This case is reported ante, June 28, 1889, 26 S.L.R. 600, and 16 R. 876.

The defender Ralph Dalyell Welch appealed.

At delivering judgment—

Judgment:

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, as to which the declaration I have mentioned was claimed, 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 this action was afterwards commenced.

There can be no doubt, as I have said, that the rights of the spouses as regards moveable property must, in the circumstances of this case, be regulated by the law of Scotland, but it is equally clear that their rights in relation to heritable estate are governed by the law of the place where it was situate. This is not denied by the respondent, but it is said that as soon as

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the heritable estate in England became by sale converted into moveables the Scottish law became applicable. The case of the pursuer was put in this way. It was admitted that all moveables accrued by the law of Scotland to the husband by virtue of the jus mariti, but it was said that there is an exception to this in the case of the proceeds of the heritable estate of the wife, that they do not pass to the husband but remain the property of the wife, and that if she permits her husband to receive and spend them, this is in the nature of a donation which may be at any time recalled by her. It follows, it was argued, that as soon as the estate in England was sold, the proceeds, though they would according to the law of England be the husband's, became subject to the law of Scotland, and so did not pass to him. It is, I think, established that moveables which represent the heritable estate of the wife are not by the law of Scotland subject to the jus mariti, and where the matrimonial rights are governed by that law, I think this would be the case, even though the heritable estate of the wife were situate out of Scotland. But it is manifest that the lex loci rei sitce must determine whether the estate be heritable estate of the wife's during coverture, and what is the nature and extent of her right in respect thereof. It becomes necessary, therefore, to inquire what was the effect of the marriage according to the law of England upon the heritable estate of which the wife was then possessed. The husband became immediately possessed of an estate therein during their joint lives, and if there was issue of the marriage, for the term of his own life, though he survived his wife. The wife could not during her husband's lifetime convey her interest in the property to any other person except with the concurrence of the husband, and by a deed acknowledged in the manner prescribed by the 3 and 4 Will. IV. c. 74. She could not during coverture dispose of it by will, and if she predeceased her husband, and there were issue of the marriage, the estate would on the death of the husband descend to such issue.

It is therefore, in my opinion, not accurate to treat the purchase money of the Overton estate as the proceeds of a heritable estate belonging to the wife, and as surrogatum for that estate. It was an estate in which both spouses possessed undetermined interests, the extent of their respective interests depending on whether there was issue of the marriage, and which of them survived the other. It was heritable estate of the husband as well as of the wife, and could not be disposed of to a purchaser without the concurrence of both of them. The purchase money of the estate in which they were thus interested cannot, in my opinion, truly be regarded as the price of a heritable estate of the wife's, which, according to the law of England, becomes the husband's only by the jus mariti, and which, if the law of Scotland be applicable, must be regarded, if the wife permits her husband to retain it, as a donation by her to him. The right of the husband to the proceeds does not flow only from the jus mariti. It cannot be dissociated from the real property law of this country, which gave the husband the estate and interest which I have described in the heritable property possessed by his wife at the time of the marriage. The price received from the purchaser represents as much the husband's estate and interest as the wife's. The wife, it is true, was by the sale deprived of the interest which she had in the heritable property, but I do not think that her assent to the entire price being received by her husband, without that provision being made for her which she could have insisted on as the price of her concurrence in the conveyance, can be regarded as a donation. There could have been no sale without the concurrence of the husband, and if he gives that concurrence on the terms that the whole purchase money of the estate in which they both have an interest shall be received by him, I do not think that this can be regarded as a donation of all the purchase money, or even of so much of it as might be found on an actuarial calculation to represent her interest, especially where, as in the present instance, the husband has, in order to complete the sales, entered by the deed of conveyance into an onerous covenant by reason of the charge which existed on the property. But it is perhaps hardly necessary to determine whether the purchase money could be regarded as a donation by the wife to the husband to the extent to which it represented her interest as ascertained on an actuarial calculation, inasmuch as the claim in this action is not to have it ascertained how much of the purchase money received in 1877 represented the interest of the wife in the heritable subject, and to treat so much of the purchase money as should be found to represent that interest as a donation inter virum et uxorem, but to treat the entire price of the estate as surrogatum for the heritable estate of the pursuer.

For the reasons I have given, I think it is impossible to do so, even allowing the fullest effect to the Scottish law as regulating the matrimonial rights of the parties. I think the difference between the view I have indicated and that of the Court below has probably arisen from the circumstance that the contention mainly urged upon them on behalf of the appellant appears to have been that the purchase money, according to the law of England, became the husband's upon the conveyance; and that their attention was not so definitely directed as your Lordships' has been to the fact that, having regard to the English law of real property, the price could not properly be regarded as representing the heritable estate of the wife, and as surrogatum. Therefore I am of opinion that the interlocutors appealed from ought to be reversed, and the defender assoilzied from the conclusions of the summons, and I move your Lordships accordingly.

Lord Watson and Lord Morris concurred.

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Their Lordships reversed the interlocutors appealed from.

Counsel:

Counsel for the Appellant— Rigby, Q.C.— M'Laren. Agent— A. Beveridge, for Carment, Wedderburn, & Watson, W.S.

Counsel for the Respondent—The Lord Advocate— Strachan— Moore. Agent— Charles Turner, for John Elder, S.S.C.
1891