D1 bought a house in which he and D2 lived. He mortgaged the house, with her knowledge and approval, and when he ceased payments the bank, P, sued for possession. CA rejected D2’s claim to an overriding interest under s.70(1)(g) because D2 had consented or gone along with the decision to give priority to the bank’s charge over the land. Therefore she could not claim her interest to have priority.
Browne-Wilkinson LJ: There was no agreement, express or implied. However since D2 approved of the mortgage and benefited from it, it was to be imputed that she consented to the bank’s interest taking priority over hers.