Registrar-General (NSW) v Wood [1926] HCA 43

Registrar-General (NSW) v Wood [1926] HCA 43 - HCA 1926 case summary — Zoe

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comprised in a certain certificate of title, being lots 28 and 29 on a certain plan, in the parish of Wilton and county of Camden; and William Harry Wood and his wife were and had been since 26th November 1918 the registered proprietors as tenants by entireties of the said land. By memorandum of transfer dated 6th April 1914 there was transferred by the Nepean Estate Co. Ltd. to William Harry Wood and his wife as tenants by entireties all the land comprised in a certain certificate of title, being lot 27 on a certain plan, in the parish of Wilton and county of Camden, and William Harry Wood and his wife were and had been since 6th May 1914 the registered proprietors as tenants by entireties of the said land. On or about 18th March 1925 there was issued out of the Supreme Court of New South Wales a writ of fieri facias in an action in the said 'Supreme Court in which one Kenneth McDonald White was the plaintiff and the said Annie Wood was defendant, and on or about 19th March 1925 the said writ directed against the said lands of the said Annie Wood was lodged in the Department of the Registrar- General. The said writ bore a notification that it was intended to bind all the land comprised in the aforesaid certificates of title. It was entered on the proper register books on 2nd April, the memorials on the said register books stating that the writ affected the undivided interest of Annie Wood. The Sheriff duly caused to be sold on Ist June 1925 the interest of the said Annie Wood in the said lands and William Harry Wood duly purchased the same from the Sheriff. Thereafter the Sheriff on or about 26th June 1925 executed a memorandum of transfer whereby he purported to transfer to William Harry Wood all the estate and interest of Annie Wood in the whole of the said lands. The Registrar-General refused to register the said transfer, stating that "the transfer to the proprietors in this case must upon registration be deemed to have conveyed the subject land to them, subject to all the incidents attending a tenancy by entireties at common law. If this is so, then, having regard to the nature of such a tenancy, the wife's interest cannot be regarded as her separate property, and conse- quently such interest was not liable or competent to be taken in execution (Act No. 45 of 1901, sec. 3 (2)). On this footing, the writ of fiert facias was not properly issued and should not have

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basic argument for the appellant is the ancient fiction that a wife has no independent existence, her personality being merged in that of her husband. It was a very deeply-rooted fiction, and in some departments of the law, where it has some relation to common sense or convenience in establishing a settled rule, as, for instance, in domicil, it still persists. But for the purposes of daily life it is so opposed to fact and experience and to present-day habits of thought that outside the solemn precincts of a Court no one in his senses would venture to affirm it. Inside those precincts it certainly needs a little, but only a little, in my opinion, to enable a Court to disregard it. So far as this case is concerned, I am of opinion the Legislature of New South Wales has brought the law of the com- munity into accord with its general sentiment. It is true that the rule at common law, as the Privy Council has said in Dias v. De Livera (1), that "a gift to a man and his wife, and to a third person, is to be construed as a gift of a moiety to the husband and wife and a moiety to a third person, is founded on the doctrine of the English law that husband and wife are, for most purposes, one person." Their Lordships, however, go on to say: "' And yet any indication, however slight, of an intention that each shall take separately has been held to defeat the application of this doctrine." That concluding observation may very probably be extended to the intention of the Legislature. It is probably true that the New South Wales Parliament, finding that according to English decisions its main legislation still permitted the primeval doctrine to prevail in such a case as that referred to by the Privy Council, passed what is now sec. 26 of the Married Women's Property Act 1901. That section provides: "In the construction of any gift or limitation of real or personal property made after the sixteenth day of April, one thousand eight hundred and ninety-three, by any will, deed, or other instrument, to more than one individual jointly or in common, a husband and wife shall not be regarded as one person for the purpose of deciding the proportionate shares of such individuals respectively, unless a contrary intention therein appears." I read that section as assuming that as between themselves husband

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and wife already took individual shares, and the section merely prescribed the quantum where a third person was affected. It is a strong confirmation of the interpretation placed by the Supreme Court on secs. 5 and 8. The words are: "to more than one individual jointly or in common." The expression "a joint tenancy " is not used, though even that would not be inconsistent. It was strongly urged on behalf of the appellant that a tenancy by entireties was in its essentia! nature different from that of a joint tenancy. Thatisnot so. A tenancy by entireties is, or rather was, a joint tenancy of husband and wife. It was different only in - the incapability of severing the respective interests of husband - and wife. Co. Litt., 326a, says: " Where the husband and wife are jointly seised to them and their heirs of an estate made during the coverture." As Challis (3rd ed., p. 376 (note) ) observes, Coke regards a tenancy by entireties as being a species of joint tenancy, with the distinguishing characteristic that it confers no power of severance. That characteristic arose not from the different nature of the disposition by which the grantees obtained their interests, but by the nature of the relation existing between them, which, once the interests were acquired, so operated as to preclude the power of severance, but the interests were in no other way different from an ordinary joint tenancy. Fearne (8th ed.), at p. 36. says ofa - limitation to a husband and wife: '* His wife having a joint estate of freehold with him, and there being no moieties between them," &c. At p. 40 he says: "If a joint estate be made to husband and wife, and a third person, the husband and wife have but one moiety, and the third person will have as much as them both; because the husband and wife are but one person in law." In Moody v. Moody (1) Lord Camden L.C. refers to the distinction made by Co. Litt., 187, between a joint estate "given to the husband and wife during the marriage" and a "joint estate" to them before marriage, and the Lord Chancellor says: "In the former case their interest is not severable, in the latter case they take in moieties." (See also Williams on Real Property, 23rd ed., p. 339.) T entertain no doubt that the Married Women's Property Act was intended to emancipate married women in this respect. Finding

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Judgment (80 paragraphs)