Deschamps v Miller: 1908

The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband left the wife, went to India, and bigamously married a lady who became his de facto wife. He acquired business premises in Madras and other lands there. After living a great many years in India (and having been separated from his de jure wife for 30 years) he put them in trust for the benefit of the de facto wife. These lands, it was said, were after-acquired property within the meaning of the marriage contract, and had been transferred to the benefit of the de facto wife other than for valuable and sufficient consideration, in breach of that contract. After the death of all three members of the triangle, the de jure wife’s son, claimed as her successor according to the law of France. He took out English letters of administration of her estate. He claimed to be entitled to a share of the Indian property, and sued the trustees of the Indian settlement. However, according to Indian law the estate of the de facto wife was vested in the Administrator-General of Madras. The parties were personally subject to the jurisdiction of the English court. But the Administrator-General was not a party – even though the point had been taken in the defendant’s pleadings.
Held: Even on the facts as alleged, the English court ought not to entertain jurisdiction, because the lands were situate in India. An English court has no power to make orders affecting ownership of land in foreign countries, except where the defendant has assumed a personal obligation to transfer the property to another: ‘But it is alleged that the conveyances of the husband under which the defendants claim title were not made for good consideration according to French law [i.e. were made at an undervalue], and that consequently, according to the same law, the wife could follow the property and claim it in the defendants’ hands. It is obvious, however, that whether or not the wife could assert any interest against land outside France would be governed entirely by the law of the place where the land is situate. If, for example, the land were in England, it would not be enough to prove that according to French law the wife had an interest. In order to assert such an interest against the defendants it would have to be made out either that the defendants were not purchasers for value, or that, though they were purchasers for value, they had notice of the wife’s interest under the French contract. Of course a purchase for value under the English law may have a totally different meaning from a purchase for good consideration according to French law; and I am told in the present case that in France good consideration for such a purpose as this means full consideration in money or money’s worth. In order, therefore, to decide whether the plaintiff can succeed in following the property into the hands of the defendants I should have to consider the law relating to immovable property in India. Not only may that law differ from the law of England in the extent to which equitable interests are recognized, but also in the importance which attaches to the presence or absence of notice. It may also contain provisions such as the statutes for the limitation of actions or suits, or for the registration of title, which would materially affect the matter I have to decide.’
‘In my opinion the general rule is that the Court will not adjudicate on questions relating to the title to or the right to possession of immovable property out of the jurisdiction. There are, no doubt, exceptions to that rule, but, without attempting to give an exhaustive statement of those exceptions, I think it will be found that they all depend on the existence between the parties to the suit of some personal obligation arising out of contract or implied contract, fiduciary relationship or fraud, or other conduct which, in the view of a Court of Equity in this country, would be unconscionable, and so not depend for their existence on the law of the locus of the immovable property. Thus, in cases of trusts, specific performance of contracts, foreclosure, or redemption of mortgages, or in the case of land obtained by the defendant by fraud, or other such unconscionable conduct as I have referred to, the Court may very well assume jurisdiction. But where there is no contract, no fiduciary relationship, and no fraud or other unconscionable conduct giving rise to a personal obligation between the parties, and the whole question is whether or not according to the law of the locus the claim of title set up by one party, whether a legal or equitable claim in sense of those words as used in English law, would be preferred to the claim of another party, I do not think the Court ought to entertain jurisdiction to decide the matter. In the present case there is, in my opinion, no such personal obligation as above mentioned, and I do not think I could assume jurisdiction in this case without acting contrary to the decision in Norris v. Chambres.’
Parker J
[1908] 1 Ch 856
England and Wales
Citing:
CitedNorris v Chambres 1862
A company director had advanced part of a loan for the purchase of a mine in Prussia. He died, and because of lack of funds, his estate risked losing everything. His estate sought its recovery.
Held: ‘With respect to this advance, I think . .

Cited by:
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Dictum approvedLightning v Lightning Electrical Contractors Ltd CA 1998
Mr K asserted beneficial ownership under a resulting trust over land in Scotland bought by an English company to which he had advanced the purchase price. Scots law, the lex situs of the land, did not recognise any equitable interest. The company . .
CitedAkers and Others v Samba Financial Group SC 1-Feb-2017
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CitedLuxe Holding Ltd v Midland Resources Holding Ltd ChD 23-Jul-2010
Midland agreed to sell to Luxe shares in 20 companies, 17 of which were incorporated in Russia or the Ukraine, with the lex situs of the shares in them being also there. Midland defaulted, sold the shares in the Russian and Ukrainian companies . .
CitedAkers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .

These lists may be incomplete.
Updated: 09 February 2021; Ref: scu.199469