Nature of Co-Ownership
Cases on Creation
Moroney v Moroney
Court of Common Pleas.
31 January 1874
[1874] 8 I.L.T.R 136
Morris, J.
This is a special case reserved for the opinion of this Court by Deasy, B., at the last Limerick Summer Assizes. An ejectment for over-holding was brought by the plaintiffs, to recover possession of certain premises to which they are entitled under a lease of 1832. Margaret Moroney and Helena Ford allege that they derive their title to the premises from their father as joint tenants, because on the death of their last brother the title vested in them as surviving joint tenants. The notice to quit, which was intended to terminate the tenancy of the defendant, is signed by Margaret Moroney, for herself and on behalf of her sister. Now, if we considered Margaret and her sister were seised as joint tenants, we would hold the notice signed by one of the two as sufficient; but the question of the validity of the notice to quit is founded on *136 the supposition of an intestacy as to the real estate. The will of Michael Barry is short and informal. After mentioning some matters of no importance to the issue, its words run thus:—“For the fulfilment of my intentions I hereby appoint my brother-in-law, Mr. Joseph Kirkey, and the Rev. Mr. Hayden, P.P., as executors to this will, in order that they, my executors, should act fairly and impartially in the several divisions of my property between my beloved wife, Margaret Barry, and my legitimate children, of her begotten.” The question is, did the interest of the testator, the lessee, being real estate, pass under this will? It is settled law that a gift of “my property” in a will passes real estate. Now, here there is no gift of property, but only a general direction to executors as to how they should divide property among a class of the testator’s family. Considering the nature of the property and the language of the will, we are of opinion that the real estate passed thereunder. This being so, the plaintiffs are tenants in common merely, and the notice to quit, signed by Margaret Moroney, only ends half the tenancy. In the Superior Courts she might recover her share, but she could not do so in the Civil Bill Court, on the authority of Corboy v. Corboy, 1 Cr. & Dix. 572, or upon the proper construction of 23 & 24 Vic., c. 154, s. 72.
It is unnecessary to consider what would be the effect of the condition against assignment and sub-letting in the lease of 1832.
L’ESTRANGE V. L’ESTRANGE
[1902] 1 LR. 467 (Court of Appeal)
Lord Ashbourne C.:
Notwithstanding the very clear and able arguments of Mr. Molony and Mr. Wilson, we are all of opinion that the decision appealed from is correct. It is a case turning on the construction of a will, and, like all cases of that class, its decision depends upon the intention of the testator, to be gathered from all the language he has used.
There is no doubt that at the commencement of this residuary bequest the
testator used words which would, standing alone, make the children joint tenants, but then they are followed by this clause – ‘With power to my said trustees to advance such sum or sums of money as they may think fit for the education and advancement in life of my said daughters and my son Patrick.’ The question is – Does the use of these words indicate an intention on the part of the testator to cut down the joint tenancy to a tenancy in common? It is one of those clauses of which, when read for the first time, one may not see the full effect, or ascertain how far the words will go; but when read more closely it is clear that the words confer a power, not of maintenance, but of advancement. If a sum, perhaps of a considerable amount, were advanced for one child, it would be right to debit that sum against his or her share, and that debit could not be worked out if these children were joint tenants, and could not be done unless they were tenants in common.
We find abundant authority to support this view. In Taggartv. Taggart (1 Sch. &
Lef. 88) Lord Redesdale said: ‘Joint tenancy as a provision for the children of a marriage is an inconvenient mode of settlement, because during their minorities no use can be made of their portions for their advancement, as the joint tenancy cannot be severed.’ These words express this view of the question in a clear and pointed manner, and that decision was referred to in Mayn v. Mayn (L.R. 5 Eq. 150). In the course of the argument counsel said: ‘Amongst powers usually inserted in marriage settlements is certainly a power of advancement which, according to Lord Redesdale’s judgment in Taggart v. Taggart (l Sch. & Lef. 88), is in itself a presumption against a joint tenancy having been intended.’ In giving judgment Lord Hatherley approved of the decision in Taggart v. Taggart (l Sch. & Lef. 88). He read the passage from Lord Redesdale’s judgment to which I have referred, and he adopted the principle of that decision.
In the present case the testator has used words which show that the governing idea in his mind could only be satisfied by holding that these legatees took the property as tenants in common.
In my opinion the decision of the Vice-Chancellor is right, and should be affirmed, and the appeal dismissed, with costs.
FitzGibbon L.J.:
The incompatibility of a discretionary power of advancement with a joint tenancy is absolute, because the exercise of such a power implies the reduction of several parts of the property into possession. Mr. Molony tried to get out of it by contend ing that if an advancement was made, it was to be made out of cash, and cash might be produced by savings of income. But the words of the will, which describe the subject of the power, are not confined to cash. There was no obligation to save income, and advancement is usually made out of capital. The words of the testator are – ‘the rest, residue, and remainder of my property, real, freehold, and chattel.’ He did not confine the power to his cash, though cash must be provided before an advancement could be made. Before any advancement could be made the share of each child would have to be segregated, so that each advancement might be made, not out of the property as a whole, but only out of the share of the child who was to receive the advance. This negatives joint tenancy.
In my opinion the appeal is wholly unsustainable.
Holmes L.J.:
The only ground upon which it would be possible to support this appeal would be by showing that the advancement to the children, which, by the terms of the will, the trustees are given power to make, is an advancement out of the whole of the property, and not out of the share of it devised and bequeathed to the child to whom the advancement is made. But this is opposed to the idea of advancement, which is a term of legal art. It implies that it is to be made out of the property to which the person advanced is actually or contingently entitled. It is now well settled that where a devise or bequest is made to children, followed by a power of advancement, such a power is inconsistent with a joint tenancy in the children, and upon this principle we hold that they took as tenants in common.
Byrne v Byrne
Unreported (High Court) (1978 No. 402 Sp. ) (Judgment delivered 18th January, 1980)
The facts are as set out in the judgment.
McWilliam J.:
This summons has been brought for the administration of the estate of William Byrne, (hereinafter called the deceased) who died on 24th Novemeber 1976, but the only issue before me at the moment is as to the effect on a joint tenancy of an agreement by two joint tenants to sell property held by them as such.
The father of the deceased, also William Byrne (hereinafter called the testator), died on 2nd March 1971 having by his last will devised and bequeathed certain lands to the deceased and the defendant as joint tenants. Prior to the death of the testator, the deceased and the defendant had assisted the testator in the working of the lands and, as the testator was aged 78 when he died, they had probably done most of the work for some years previously. After the death of the testator they continued to work the lands although there is some conflict of evidence as to which of the two contributed the most effort, the defendant being also engaged in the business of erecting haysheds in the neighbourhood. I do not consider this slight conflict to be relevant as it appears that everything was considered as a joint venture and all earnings from whatever source were paid into joint accounts, both current and deposit, and no discussions took place about dividing either the land or the money. In 1976 the deceased and the defendant decided to sell the lands, probably due to the failing health of the deceased. A sale was negotiated to some relatives. Again, the evidence with regard to the negotiations does not appear to me to be relevant except that contracts dated 24th February 1976 for the sale of two portions of the lands to two different relatives were prepared and, as the lands had remained in the name of the testator, the contracts were entered into by the executors of the testator as vendors. The sales were not closed until 5th August 1977 nearly a year after the death of the deceased. The plaintiff is one of the next-of-kin of the deceased and claims that the joint tenancy on which the lands were held by the deceased and the defendant was severed by the sale of the lands before the death of the deceased. The defendant, who is occupying a difficult dual capacity, claims that the purchase money representing the lands passed to him in his personal capacity as surviving joint tenant.
A joint tenancy will be severed if any one of the joint tenants alienates his interest in the property, or a part of his interest, by an inter vivos transaction. See page 366 of Wylie’s Irish Land Law where it is also stated that no severance occurs if all the joint tenants join together in the alienation. The case of Hayes’ Estate [1920] 1 LR. 207 is cited in support of this proposition.
The case is very strongly relied upon on behalf of the defendant. In it there had been a sale by joint tenants to the Congested Districts Board but the purchase price was represented by stock and not money. Two of the joint tenants having died the question arose as to whether the sale had effected a severance. Sir James Campbell said, at p. 209:
‘There is no reason in the nature of things why joint tenants might not be equally well satisfied to hold the stock as joint property just in the same way as if, instead of selling the estate for money, they had exchanged it for other lands, or had received some other consideration instead of money for the purchase-price.’
O’Connor, L.J., said at p. 211:
‘A mere agreement by persons entitled as joint tenants to convert their property from one species to another does not operate to work a severance.’
Each of the three judges refers to the lack of evidence of an intention to sever and it is clear that they considered that, in order to effect a severance, there must be evidence of an intention to do so.
I have also been referred to the case of In re Denny; Stokes v. Denny 177 L.T.
291. This was a case in which a third of the residue of an estate had been given to three sisters as joint tenants and, after the deaths of all three, a sum of £1,800 fell in and became subject to the gift. A question arose as to whether the joint tenancy had been severed or whether the whole of the £1,800 formed part of the estate of the survivor. With regard to severance Jenkins, J., said at p. 293:
‘A joint tenancy may be served in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share Each one is at liberty to dispose of his own interest in such manner
as to sever it from the joint fund – losing, of course, at the same time, his own right of survivorship. Secondly, a joint tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.’
It seems to be clear from the judgments in these two cases that, on a sale by joint tenants, there must, in order to effect a severance, be evidence of an intention to do so, although, in the case of a sale for money, this would be clear if there was a division of the money between the joint tenants.
I accept also that the burden of proof lies on the person contending that there has been a severance.
There is not, in the present case, any evidence of any sort before me of an intention to sever the joint tenancy and the previous business arrangements between the joint tenants and the fact that they continued to live together after the sale until the deceased became ill and went to live with a sister in Carlingford suggest that no intention had been formed at all. Accordingly, I will declare that, at the date of the death of the deceased, the interest of the deceased and the defendant in the purchase money was as joint tenants.
O’Connell v. Harrison
[1927] IR 330
Kennedy C.J.
The plaintiff, Sir John Robert O’Connell, has taken out this originating summons as executor of Margaret Wooloughan, deceased, claiming to have it determined that he is entitled, as such executor, to a sum of £651 18s., which was lodged by him to the credit of the matter of Elizabeth Harrison, a person of unsound mind, and separate credit of the residuary bequest contained in the will of Margaret Wooloughan, pursuant to order in that matter, dated 2nd March, 1923. The summons is directed to Henry Harrison, personal representative of the said Elizabeth Harrison, who has died. The case was, by leave, listed before me, the question having arisen for determination upon the winding up of the matter of Elizabeth Harrison.
Margaret Wooloughan and Elizabeth Harrison (formerly Wooloughan) were sisters. Their father, James Wooloughan, prior to his death purchased fifteen shares in the National Bank, Ltd., which he caused to be transferred into the joint names of himself, the said Margaret Wooloughan, and the said Elizabeth Harrison (then Wooloughan).
James Wooloughan died on the 18th December, 1875, having made his will, dated the 3rd August, 1868, and a codicil, dated the 27th June, 1871, which was duly proved on the 12th May, 1876, by Margaret Wooloughan, the executrix therein named. The joint effect of the will and codicil was to give all the residue of the testator’s property to his daughters, Margaret and Elizabeth,”jointly in equal shares.”
On the 19th January, 1880, Messrs. M’Cann & Co., stockbrokers, purchased three shares in the National Bank, Ltd., for the account of Margaret Wooloughan and Elizabeth Wooloughan, and the shares were transferred to the joint names of the two sisters.
On the 15th November, 1880, a deed was made between Elizabeth Wooloughan of the one part, and Margaret Wooloughan of the other part, and executed by both sisters. The deed recited the will and codicil of James Wooloughan, and the probate, and that his residuary estate consisted of the shares and other property therein specified, including, amongst other things, fifteen shares in the National Bank. It was then recited that the sisters had agreed to carry on the testator’s business of barm brewers for their equal mutual benefit as tenants in common, and not as joint tenants, and that they should also be possessed of, and interested in, the testator’s shares and debentures equally as tenants in common, and not as joint tenants, and that Elizabeth should indemnify Margaret as executrix. The deed then contained on the part of Elizabeth Wooloughan a release and indemnity of Margaret Wooloughan as executrix in relation to the estate of James Wooloughan, deceased, followed by a declaration by both parties that they, Margaret Wooloughan and Elizabeth Wooloughan, should thenceforth “be equally seised and possessed of the said brewery concerns, and carry on the business thereof for their mutual benefit, and hold and be possessed of the said shares equally as tenants in common, and not as joint tenants.” It was assumed in argument that the fifteen shares in the National Bank mentioned in this deed were the same fifteen shares which, as already stated, were purchased by the testator in the joint names of himself and his two daughters. The deed contains no mention of the three shares in the National Bank purchased in January, 1880.
In September, 1881, shares in the National Bank were subdivided into three shares each, so that the eighteen shares standing in the joint names of Margaret Wooloughan and Elizabeth Wooloughan became now fifty-four shares, standing in the same names.
On the 22nd February, 1882, Messrs. M’Cann & Co. purchased an additional ten shares in the National Bank for the account of the two sisters, and again the transfer was taken into the two names of Margaret Wooloughan and Elizabeth Wooloughan, bringing the total holding in their names up to sixty-four shares, and they so remained until the year 1921. A slip of paper has been exhibited, upon which is a note or memorandum, alleged to be in the handwriting of Margaret Wooloughan, in these words and figures”64 National Bank, half Liz.” No evidence has been givenI am told that none can be givenas to the source of the moneys paid, or the proportions in which contributed, for either of the purchases made through Messrs. M’Cann & Co., so that the matter must rest on inference from the other facts.
In the year 1920, Elizabeth Wooloughan, who had in the meantime married, and become a widow, was (by her then name of Elizabeth Harrison) declared to be of unsound mind, and incapable of managing her property, and was taken under care of the Court. Margaret Wooloughan was appointed to be Committee of her person and property. Margaret Wooloughan brought in a statement of facts, duly verified by her affidavit, wherein she stated that the property of Elizabeth Harrison comprised (amongst other things) “32 shares of£10 each in the National Bank, Limited,” and asked to have an order made transferring them into Court to the credit of the matter.
On the 11th January, 1921, an order was made by the then Lord Chancellor confirming the report of the Registrar in Lunacy, which found that the property of the said Elizabeth Harrison consisted of (amongst other things) “32 shares of£10each in the National Bank, Ltd.” and, the income of the patient being insufficient to pay the charges for her maintenance and treatment, amounting to £120 a year, the balance over and above £85 a year was charged on the corpus of her property; and it was thereby ordered that Margaret Wooloughan “sell thirty-two shares of Ten Pounds each in the National Bank, Limited, the property of the said Elizabeth Harrison, now standing in the name of the said Margaret Wooloughan, and lodge the proceeds of such sale . . . to the credit of this matter.” Pursuant to this order, the thirty-two sharesthat is to say, one-half of the joint holding of sixty-four sharesin the National Bank, Ltd., were sold by Margaret Wooloughan, and the proceeds of the sale lodged in Court to the general credit of the matter. The sale was effected by Margaret Wooloughan in a two-fold capacitypersonally, as one of the persons in whose names the shares stood, and as Committee of the other of such persons.
Margaret Wooloughan died on the 20th August, 1922, having made a will, dated the 11th October, 1918, and two codicils, dated respectively the 29th October, 1918, and 22nd September, 1919, which will and codicils were duly proved on the 21st October, 1922, by the plaintiff, Sir John Robert O’Connell, one of the executors therein named. The effect of the dispositions made by the testatrix was that, after a number of legacies, her residuary estate was to be realised, and the income to be applied for the benefit of her sister, Elizabeth Harrison, during her life, and after her death the residue was to pass for certain charitable purposes.
On the 2nd March, 1923, an order was made by Molony C.J. in the lunacy matter, on the application of Mr. O’Shaughnessy, who had been appointed Committee in place of Margaret Wooloughan, deceased, and on hearing Sir John R. O’Connell, that Sir John R. O’Connell, as executor of Margaret Wooloughan, “be at liberty to sell thirty-two shares in the National Bank, Ltd., now standing in the joint names of the said Margaret Wooloughan and Elizabeth Harrison”that is to say, the residue of the original holding of sixty-four shares; and it was also ordered that he be at liberty to deduct from the proceeds of such sale the amount of his miscellaneous costs, as executor of Margaret Wooloughan, when taxed, and to lodge the balance of the proceeds of the sale in Court to the credit of the lunacy matter, “and separate credit of the trusts of the residuary bequest contained in the will of Margaret Wooloughan.” The shares were accordingly sold, and the net proceeds, amounting to the sum of £651 18s., lodged to the credit mentioned in the order. This is the sum in question upon the present originating summons.
Elizabeth Harrison died on the 3rd December, 1924, having made her will, dated the 1st April, 1913, which was duly proved on the 24th July, 1925, by the defendant, Henry Harrison, as one of the next-of-kin, to whom letters of administration with the said will annexed were granted. By her will, Elizabeth Harrison bequeathed all her property to her sister, Margaret Wooloughan, who, however, pre-deceased her.
The defendant, as personal representative of Elizabeth Harrison, the survivor of the two sisters, put forward a claim that the three shares in the National Bank purchased in January, 1880, and the ten shares purchased in February, 1882, were held by the sisters as joint tenants, with benefit of survivorship, on the ground that, as he suggested, they were purchased out of moneys contributed by them in equal shares. Thereupon, the plaintiff, as personal representative of Margaret Wooloughan, took out the present summons to have the question determined. The sum mentioned in the summons represents the proceeds of sale of thirty-two shares, after deducting costs, and the claim made would only affect so much of that sum as represents nine-and-a-half shares; the whole sixty-four shares having been equally divided, the thirty-two shares sold by Sir John O’Connell would include four-and-a-half of the nine shares, into which the three shares bought in January, 1880, were sub-divided, and five of the ten shares bought in February, 1882.
The first question which I have to determine is whether the shares bought by the two sisters in January, 1880, and February, 1882, were bought by them to be held jointly, with right of survivorship, or were to be held in equity upon a beneficial ownership in common, without right of survivorship. Mr. Walker, for the defendant, urged that it was to be assumed that the moneys invested in the purchase of the shares were contributed by the two sisters in equal shares, and that it was to be inferred from such equal contribution that the shares were acquired to be held in joint tenancy. He relied on the rules stated in White and Tudor’s Leading Cases, 8th edition, vol. II, at p. 978 in the notes under the cases of Lake v. Gibson (1), and Lake v.Craddock (2).
I am ready to assume, with Mr. Walker, that the purchase money was contributed by these ladies in equal shares, but that assumption does not lead to a conclusive inference of joint tenancy if there is evidence which I may properly consider showing a contrary intention. In the case of In re Jackson; Smith v. Sibthorpe (3), North J. went behind an express joint account clause in a mortgage upon which three sisters lent money derived by them as tenants in common under a brother’s will, and he drew from the circumstances of the case as proved the inference that the three mortgagees were entitled to the moneys in equity as tenants in common. That was, however, a case of money lent on a mortgage, and a curious distinction has crept into the cases between the investment of moneys equally contributed upon a joint purchase of property and the investment of such moneys upon a joint loan. I may refer in passing to the editor’s note to Jackson v. Jackson (4), to the notes in White and Tudor’s Leading Cases in Equity, vol. II. under Lake v.Gibson (1), and Lake v. Craddock (2), and to the case of Steedsv. Steeds (5).
Among the cases of joint purchase, there is a group of cases quite directly in point upon the question I have to determine. My only hesitation in mentioning them arises from the fact that they were not cited by counsel on either side in the course of the argument. I refer particularly to Edwards v. Fashion (1); Robinson v. Preston (2); and Bone v. Pollard (3), all of which have much in common with the present case on their facts, but especially Robinson v. Preston (2)always bearing in mind that, as Romilly M.R. said, in Bone v. Pollard (3), “cases of this description must be determined by their own facts”and these three cases are very helpful as to the facts which may be admitted into consideration in arriving at such determination. For while, if the only fact be a joint purchase made out of moneys equally contributed, no equity intervenes to take the property out of joint tenancy, and reduce it to a tenancy in common; yet evidence is admissible as to the surrounding circumstancesas to the conduct of the parties whether before or after the purchase, and as to statements against interest (but not as to statements of intention)and such evidence may establish the true intention of the joint purchasers to have been a purchase for a beneficial tenancy in common, and displace or rebut the inference of joint tenancy which the Court would draw from the fact of equal contribution of the purchase money standing alone: Robinsonv. Preston (2); Edwards v. Fashion (1); Aveling v. Knipe (4).See also Phipson on Evidence, 4th edition, at p. 536.
Now let us see what evidence of the character I have mentioned is presented in the present case. In the first place, we find the two ladies acquiring a business concern and certain investments under their father’s will, and, a few years later, entering into the deed of 15th November, 1880, for the purpose of affirming that the business, which they continued to carry on, and the investments were held by them beneficially as tenants in common, and not as joint tenants. This deed, at any rate, evinced a strong leaning against joint tenancy on the part of the sisters, then both unmarried, and apparently united in management of their business affairs. (See the observations of Page-Wood V.-C. upon the deed in Robinson v. Preston (2).) It is highly probable, but not directly established in evidence, that the two investments now in question were acquired with moneys arising from the properties with which the deed was concerned. Then, it is surely not without significance that the ladies purchased two further lots of shares in a company in which they already had a holding standing in their joint names, which they declared by deed to be held in common, and not in joint tenancy, and that they took the transfers of the new parcels into the same namesas it were, enlarging their existing holding. It is to be remembered that one does not look to find a declaration of a tenancy in common in the transfer instrument of shares or stock in a company.
Nothing relevant then arises after the purchase in 1882 until the year 1920, when Margaret Wooloughan brought in her statement of facts as petitioner in the lunacy matter. There we find her declaration verified on oath, that one-half of the entire holding of shares in the National Bank was the property of her sister, Elizabeth, with her request to have them transferred into Court to the credit of the matter. This is evidence bearing on the question, admissible as evidence of conduct, and also as a declaration against interest affecting property standing in her own name. (See Robinson v. Preston (1), as to a statement made in a will by one of the joint owners.)
In the next place, we have the order of the Lord Chancellor, made at the instance of Margaret Wooloughan, declaring the thirty-two shares to be the property of Elizabeth Harrison, and ordering Margaret Wooloughan to sell them, and lodge the proceeds to the credit of the matter, which she did, as I have already mentioned, in her twofold capacity, while retaining the other thirty-two shares as her owna fact not without special significance, having regard to the liability attaching to these bank shares.
There is also the slip of paper with the note by Margaret Wooloughan; but I leave it out of consideration. I will only say that it does not conflict with the conclusion at which I arrive otherwise.
From all the circumstancesfrom the business relations and attitude of mind disclosed by the deed of 15th November, 1880; from the conduct of Margaret Wooloughan in the lunacy matter, manifesting how she understood the transactions, and from her sworn statement of factsI draw the inference, and I find as a fact established to my satisfaction, that the two parcels of shares in the National Bank, even if purchased out of moneys contributed in equal amounts, and though transferred into their joint names, were held by Margaret Wooloughan and Elizabeth Harrison in equity as tenants in common.
The decision at which I have arrived as to the fact of tenancy in common disposes of the case, but I wish to add some observations on the other branch of the argumentnamely, the contention that, assuming the shares were held in joint tenancy with right of survivorship, the joint tenancy was not severed by the action of the Court in the lunacy matter.
It is the long-settled policy and practice of the Court in the administration of lunatics’ estates to preserve the character of their property as far as possible, and to avoid disturbing the succession to such property: Attorney-General v. Ailesbury (2);Lunacy Regulation (Ireland) Act, 1871, sect. 67 (which deals only with lands). But that policy and practice is always subject to the paramount obligation and duty upon the Court to provide for the maintenance and care of the patient out of his means, and to manage and administer his property in his interest, and for his benefit. There can be no question, in my opinion, of the power of the Court under its statutory jurisdiction to sever such a joint tenancy in funds as the joint tenancy alleged in the present case, and to realise the patient’s share, if the patient’s interest and benefit so require. Did the patient’s interest in the present case require that she should cease to be joint tenant with her sister of these bank shares (if such was the case)? In my opinion, imperatively so, and for two main reasons.
In the first place, Elizabeth Harrison had limited means. Her income was not sufficient to pay the annual charges of the institution in which she was being cared and maintained. An arrangement had to be made with the institution for payment of an annual sum on account, the balance to accumulate, and be charged on the corpus of her property; and, as a basis for such arrangement, it was necessary to make available as large a corpus as the circumstances allowed. The paramount claim of the patient’s care and maintenance required that her interest in the National Bank shares be realised, even if the result was to sever the joint tenancy, and defeat the right of succession.
In the second place, the shares were liable to heavy calls, from which liability it was essential that the patient’s estate should be freed.
Add to these considerations of the patient’s interest the fact that her sister, who was petitioner in the matter and Committee, was an actively concurring party in the division of the shares and the sale, and the contention put forward by the defendant here seems to me hopelessly untenable.
I am of opinion, therefore, that the sum of £651 18s., mentioned in the originating summons, is, all of it, the proper moneys of Margaret Wooloughan, deceased, and that the plaintiff is entitled to the declaration for which he prays.
Both parties will have their costs out of the fund; the plaintiff’s costs as executor’s costs.
In the Matter of an Indenture of Conveyance between
Gavagan v Ryan
James Kennedy and James Lawler v Sheila Ryan
High Court.
23 May 1938
[1938] 72 I.L.T.R 94
Gavan Duffy J.
1
Gavan Duffy, J., in the course of his reserved judgment said:—The difficulty in this case arises upon the words “their and each of their heirs.” It would be unsafe to base any conclusion upon the word “assigns”: Brookman v. Smith, L. R. 6 Ex. 306. Since 1883 where real estate is conveyed to husband and wife they take as joint tenants. I am pressed by Mr. Vaughan Wilson to hold that they took as joint tenants in fee-simple. Mr. Ryan died on the 19th February, 1938, leaving the defendant, Sheila Ryan, his widow, and a son and daughter, both infants, surviving. The will was proved by both plaintiffs and the defendant, who are his *94 executors and trustees. If there was a joint tenancy in fee-simple Mrs. Ryan has the benefit of survivorship. The argument for her is that a grant to husband and wife “their and each of their heirs” is a grant to the husband and wife and their heirs so that the words “and each of” are superfluous and are to be rejected in the construction of the deed. The plaintiffs who are devisees in trust answer that this ignores the implication of distinctness or plurality of interest in the expression by the force of which the property, or at least the inheritance, can only be held as a tenancy in common.
Mr. Burke relies on a series of cases on the force of the word “respective,” cases in which a devise to A and B (being persons who cannot marry) and their heirs respectively has been held to give a joint tenancy to A and B for life with remainder as tenants in common. This principle has been applied to a devise to two nieces as joint tenants “and their several and respective heirs and assigns”: Doc v. Green, 4 M. & W. 229; and to a devise to trustees in trust for A, B and C and for their respective heirs, executors, administrators and assigns: In re Atkinson, [1892] 3 Ch. 52. A devise to two daughters and their issue or to two nieces to hold to them, their heirs and assigns, without the word “respective,” produces a like result. Cook v. Cook, 2 Vern 545; Forrest v. Whiteway, 3 Ex. 367. The authority for this is S. 283 of Littleton’s Tenures. Littleton was dealing with an estate tail, but it is equally applicable to fee-simple: Doe v. Green (supra) at p. 244. The majority of the cases have been wills, but Littleton was speaking of a deed at common law and the principle was applied in Wilkinson v. Spearman, cited in 2 P. Wms. at p. 530—see the correction in 1 De G. & Sm. at p. 79n—where the House of Lords appears reluctantly to have followed the same rule on a grant to two daughters and the heirs of their bodies. The question is considered in Fleming v. Fleming, 5 Ir. Ch. R. 129 as to the indications necessary to create a tenancy in common. Much less definite words have proved enough in a will or a conveyance to uses: 3 Preston’s Abstract 471. But there is no doubt as to the applicability of Littleton’s principle to both grants at common law and wills.
Romilly, M.R., in Ex parte Tanner, 20 Beav. 377, says: “If land were given to a man and woman and the heirs of their bodies this would be an estate in special tail, and the word “respective,” if introduced before the word “heirs,” would have the effect of making the man and woman joint tenants for life; it would be the same as if the gift were to a man and woman who could not marry and the heirs of their bodies.” This obiter dictum if correct may apply to sever the fee-simple inheritance in this case; if the word “respective” be equivalent to the limitation here. Littleton (Coke on Littleton, par. 182a) says:—“Also there may be some joyntenants, which may have a joynt estate, and be jointenants for terme of their lives, and yet have severall inheritances. As if lands be given to two men and to the heires of their two bodies begotten, in this case the donees have a joint estate for the term of their two lives, and yet they have severall inheritances … And the reason why they shall have several inheritances is this, inasmuch as they cannot by any possibility have an heir between them ingendred, as a man and woman may have, &c., the law will that their estate and inheritance be such as is reasonable, according to the forme and effect of the words of the gift, and this is to the heires which the one shall beget of his body by any of his wives, and to the heirs which the other shall beget of his body by any of his wives, &c., so as it behoveth by necessitie of reason, that they have several inheritances.” The doctrine of a joint tenancy for life with a tenancy in common of the inheritance is here expressly based on the physical impossibility of the two men procreating a single heir. It is singularly inept where the first takers are husband and wife. I am relieved of the necessity of considering whether to be guided by Romilly, M.R., by the fact that the words here are different from those in his case.
The expression “their and each of their heirs” is not unfamiliar in ill-drawn instruments. It may be that in loose draftsmanship of this kind the writer may use the words elliptically and inaccurately to mean “their heirs and the heirs of each of them”; if so, that is not what he has said. The grammatical meaning of the words is plainly “the heirs of A and B and each of those heirs,” and I see no reason in this particular deed for rejecting the grammatical in favour of a conjectural meaning. It may be that the draftsman had in mind the immediate heir at law without realising that if land descends to co-parceners they are but one heir to their ancestor. But I cannot attribute any such notion to him if the word “heirs” designates a class, not individual persons. On the latter view he may have been contemplating each unit in the line of legal successors, but that is already necessarily *95 implied in the word “heirs.” The word “heirs” is a word of limitation in this deed, not of purchase; it describes the whole class, so that the rule in Shelley’s Case applies. See Thomas’s Note to Shelley’s Case, 1 Rep. 106b. In my opinion since the words “their and each of their heirs” are directed to a class in law the word “each” adds nothing except an otiose emphasis. So the construction of the deed will not be altered by the insertion of this pleonasm, and it is a joint tenancy in fee-simple.
The unity in law of husband and wife strengthens the argument for a joint tenancy in fee in this case. The Married Women’s Property Acts, while enabling a wife to make a joint tenancy with her husband. Thornley v. Thornley, (1893) 2 Ch. 229, have not abrogated the existing principles of law where their provisions do not apply, except by altering the wife’s rights to property as between herself and her husband, so that the Court should lean towards a construction which respects that unity. As to the traditional tendency of Courts of Equity to lean towards a tenancy in common, this can have no force as against the intrinsic force of the words which I have to construe. As it is put in Kenworthy v. Ward, 11 Hare, at p. 204, where the Court finds slight words of severance it should act upon them, but where the words are such as to create a joint tenancy, that must be taken to be the real intent of the deed, unless there is some distinct ground to prevent its operation. I see no such ground here. Accordingly I hold that on the true construction of the Indenture of Conveyance dated the 24th of August, 1934, the late George Ryan and Sheila Ryan acquired an estate in fee-simple in joint tenancy.Kennedy and Lawler v. Ryan. [1938] IR 621
Gavan Duffy J.
I have to determine the construction of a deed, dated the 24th of August, 1934, whereby one, Thomas Gavigan, in consideration of a substantial sum of money, granted and conveyed the freehold house, No. 1 Fownes’s Street in the City of Dublin, unto George Ryan and Sheila Ryan “to hold the said premises unto and to the use of the said George Ryan and Sheila Ryan their and each of their heirs and assigns” and purported to assign unto the said George Ryan and Sheila Ryan the seven day licence (for liquor) attached to the premises “to hold the same unto the said George Ryan and Sheila Ryan absolutely.”
The difficulty arises upon the words “their and each of their heirs”; it would be unsafe to base any conclusion upon the presence of the word “assigns”: Brookman v.Smith (9); since 1883, where real estate is conveyed to husband and wife jointly, they take as joint tenants and I am pressed by Mr. Vaughan Wilson to hold that Mr. and Mrs. Ryan, who were husband and wife, took the property as join tenants in fee simple.
Mr. Ryan died on the 19th of February, 1938, leaving the defendant, Sheila Ryan, his widow, and a son and daughter, infants, surviving; his will was proved by the two plaintiffs and the defendant, who are his executors and trustees. If there was a joint tenancy in fee simple, Mrs. Ryan has the benefit of survivorship; the argument for her is that a grant to husband and wife, their and each of their heirs is a grant to the husband and wife and their heirs, so that the words “and each of” are superfluous, and, as such, to be rejected in the construction of the deed. The plaintiffs, who are devisees in trust, reply that this contention ignores the clear implication of distinctness or plurality of interest in the expression “their and each of their heirs,” by the force of which the property, or at least the inheritance, can only have been held by the grantees as tenants in common.
Mr. Burke for the plaintiffs relies upon a series of cases recognising the partitive force of the word “respective”to make a tenancy in common, cases in which a devise to A. and B. (being persons who could not marry) and their heirs respectively has been held to give a joint life estate to A. and B., with remainder to each of them as tenants in common after the death of the survivor. This principle has been applied to a devise to two nieces as joint tenants and their several and respective heirs and assigns for ever: Doe v. Green (1); and to a devise to trustees in trust for A., B. and C. and for their respective heirs, executors, administrators and assigns: In re Atkinson (2). A devise to two daughters and their issue or to two nieces to hold to them, their heirs and assigns for ever (without the word”respective”) produces the like result, since there are necessarily several inheritances: Cook v. Cook (3); Forrest v.Whiteway (4). The authority for this construction is to be found in s.283 of Littleton’s Tenures, in a passage to which I shall return; Littleton was dealing with an estate tail, but the principle is equally applicable to an estate in fee simple: Doe d., Littlewood v. Green (5). The cases have generally been decided upon wills, but Littleton was speaking of a deed at common law, and the principle was applied in England to a deed, of which we have scanty particulars, in Wilkinson v. Spearman (6), where the House of Lords appears reluctantly to have followed the same rule upon a grant to two daughters and the heirs of their bodies. The common law position is carefully examined
by Brady L.C. in Fleming v. Fleming (1), as to the indications necessary to create a tenancy in common; much less definite words have proved sufficient in a will or conveyence to uses. (See Bacon’s Abridgement, tit. “Joint Tenants”(F), and 2 Preston’s Abstract, 471.) But there is no doubt as to the applicability of Littleton’s principle to cases as wide apart as grants at common law and wills, and so to what I may collect under one head as the various intermediate types of assurance.
Romilly M.R., applying Littleton’s principle, in Ex parte Tanner (2), says:”If land were given to a man and woman, and the heirs of their bodies, this would be an estate in special tail, and the word ‘respective,’ if introduced before the word ‘heirs,’ would have the effect of making the man and woman joint-tenants for life: it would be the same as if the gift were to a man and woman who could not marry and the heirs of their bodies.” This obiter dictum if it be correct, may apply to sever the inheritance in fee simple in the present case, provided that the limitation here be equivalent to a limitation to the respective heirs of the husband and the wife, a question which I shall have to examine. The reasoned statement in Littleton deserves to be quoted, that statement, as reproduced in Coke upon Littleton, par. 182a, reads:
“Also there may be some joyntenants, which may have a joynt estate, and be joyntenants for terme of their lives, and yet have severall inheritances. As if lands be given to two men and to the heires of their two bodies begotten, in this case the donees have a joynt estate for terme of their two lives, and yet they have severall inheritances. . . . And the reason why they shall have severall inheritances is this, inasmuch as they cannot by any possibility have an heir between them ingendred, as a man and woman may have, &c. the law will that their estate and inheritance be such as is reasonable, according to the forme and effect of the words of the gift, and this is to the heires which the one shall beget of his body by any of his wives and to the heires which the other shall beget of his body by any of his wives, &c. so as it behoveth by necessitie of reason, that they have severall inheritances.”
Upon this passage my Lord Coke waxes eloquent on reason as the life of the law and earnestly recommends all students of law to apply their principal endeavour to attain thereunto. The doctrine of a joint tenancy for life in such a case, with a tenancy in common of the inheritance, is here expressly based on necessity, on the physical impossibility of the two men procreating a single heir. (Cp. Fearne, 9th edn., p. 35; ch. I (V; § 4, 5).) That doctrine and the specific reason for it are, therefore, singularly inept where the first takers are husband and wife. Happily, however, I am relieved of the necessity for considering whether or not to be guided by Romilly M.R. by the fact that the words which I have to construe are different from those which he puts in his supposititious case.
The expression “their and each of their heirs” is not unfamiliar in ill-drawn instruments. It may be (I know not) that in loose draftsmanship of this kind the writer uses the words elliptically and inaccurately to mean “their heirs and the heirs of each of them”; if so, that is not what he has said. The grammatical meaning of the words, as Mr. Vaughan Wilson points out, is plainly “the heirs of A. and B. and each of those heirs,” and I see no reason whatever in this particular deed for rejecting the grammatical, in favour of a conjectural meaning. The draftsman may have had in mind, in designating each of the heirs, the immediate heir-at-law, without realising that, if land descends to co-parceners, they “be but one heir to their ancestor,”but I cannot attribute any such notion to him if the word”heirs” designates, not individual persons, but a class, on the latter view, on the assumption that he had any clear notion in his mind, when he wrote down “each,” he may have been contemplating each unit in the line of legal successors, but every such unit is already necessarily implied in the word “heirs.” Now, it is, I think, beyond question that the word “heirs” in the limitation in this deed is a word of limitation, not a word of purchase; if so, the word describes the whole class of legal successors, the whole line which is to succeed, so that the Rule in Shelley’s Case must apply; the word does not designate the individual or particular person answering the description of heir at the death of the ancestor. (See Thomas’s note to Shelley’s Case, (1).) In my opinion, since the words “their and each of their heirs” are directed to a class of successors in law, the mention of “each” member of the class adds nothing (except a quite otiose emphasis) to the already complete category of “their heirs” and therefore it involves a redundancy. If that conclusion be correct, the construction of the deed will not be altered by the insertion of this pleonasm, and it makes a joint tenancy in fee simple.
The apparent ambiguity in such expressions as “to the right heirs of both” (husband and wife) and “to the right heirs of Walter Read and Mary his wife forever” was resolved in the eighteenth century in such cases as Roe v.Quartley (1), and Green v. King (2), by reference to the principle that in law husband and wife are one person. That unity of husband and wife strengthens the argument (if any corroboration be needed) for a joint tenancy in fee simple in the present case, for the Married Women’s Property Acts, while enabling a wife to take in joint tenancy with her husband: Thornley v. Thornley (3), have not abrogated existing principles of law in cases where their provisions do not apply, nor changed the wife’s legal position in respect of property, except by altering the wife’s right to property as between herself and her husband: Butler v. Butler (4); In re Jupp ; Jupp v. Buckwell (5), so that the Court should, I think, lean towards a construction which respects that unity. The purchase of the property, with the moneys of the husband, if (as I gather) they were his, in the joint names of husband and wife and a resultant joint tenancy in fee simple are, of course, entirely consistent with the presumption of advancement in favour of the wife. And, if we have inherited the traditional tendency of Courts of Equity towards tenancies in common, that consideration can have no weight as against the intrinsic force of the words that I have to construe; as Page Wood V.C. put it in Kenworthyv. Ward (6), where the Court finds slight words of intention of severance, the course is to act upon them, but, where the words are such as to create a joint tenancy, that must be taken to be the real intent of the conveyance, unless there is some distinct ground to prevent its operation. I see no such ground here. Accordingly, I hold that, upon the true construction of the conveyance of the 24th of August, 1934, the late George Ryan and his wife, the defendant Mrs. Sheila Ryan, acquired an estate in fee simple in joint tenancy. I may add that I have not required the infant heir of the late George Ryan to be made a party to this suit, because in my opinion such a proposition as that the heir takes by purchase under this deed would be quite unarguable.
Re Byrne
[1966] 1 JIC 0101
Judge: Teevan J
In so far as the Order of the Circuit Court Judge declares that Mary Byrne acquired a joint tenancy in fee with her husband Patrick Byrne in the lands the subject of the application, it cannot stand.
Thomas Byrne is entered on Folio 2563 of County Tipperary as full owner of the lands. He died intestate on the 30th September 1927 survived by his widow Annie Byrne, his daughter Elizabeth wife of Martin Cody, his son Patrick Byrne and the children of a married daughter who had predeceased him. The widow of the registered owner died on 18th February 1928, presumably intestate. The ultimate effect of these two deaths was to vest a one third undivided equitable fee in the said Thomas Byrne, the remaining two thirds being shared by Elizabeth Cody and the children of the predeceased daughter Bridie. The two daughters Elizabeth and Bridie had already left home on their respective marriages before the death of their father. As is usual or certainly frequent in the case of farming properties of this kind no administration of the assets of Thomas Byrne was undertaken. Patrick remained in possession and farmed the lands as if they were his own, to the exclusion of the other members of the family. It follows that if nothing more had happened the claims of these other members of the family would have become barred after twelve years and Patrick would then have become solely entitled to the lands.
Patrick Byrne married May Carter on 12th February 1929 and she came to live with him on the lands as his wife. There was no settlement of the lands. Patrick Byrne died intestate on the 18th April 1964. There was no issue of the marriage.
There is no question that Patrick Byrne’s possession has barred the claims of his sister Elizabeth and the family of his sister Bridie to their respective shares in the land as next of kin of the registered owner. That is not contested. The present controversy arises in these circumstances. In respect of the assets of the late Patrick Byrne in excess of £4,000 in value, his next of kin are entitled to share, his widow Mary Byrne the former applicant, being entitled to the entire estate if it does not exceed £4,000. The widow claimed that she succeeded to the lands as surviving joint tenant and consequently that the lands formed no portion of her deceased husband’s distributable assets. The next of kin dispute that and as the estate will be much more valuable if the lands be included they are naturally very interested in disputing the case for a joint tenancy. Mary Byrne, the widow and original applicant raised representation to the estate of her deceased husband and launched the present proceedings but before the hearing died on the 23rd December 1965. The application is now continued by her personal representative Margaret Quirke
I have said that there was no settlement of the lands on the marriage of Patrick and Mary Byrne, but Margaret Quirke the present applicant, swears in an affidavit put on the file that Mary Byrne who was her sister brought with her a fortune of, she thinks, £250. She says she was present on an occasion about a month before the marriage when their brother John Carter handed over the money to Patrick Byrne as his sister’s fortune. Comment has been made on the fact, which is so, that no mention of this was made by the late Mary Byrne in her affidavit in support of the original application. Nevertheless I accept it as true that some such fortune was paid.
The applicant contends that Patrick Byrne and Mary his wife jointly acquired the necessary title as joint tenants in fee
Mr. Morris for the applicant sought to distinguish Keelan v Garvey on the ground that in that case the wife sought to oust the husband, while in the present case she is setting up her possession against and “adverse” to a title claimed by strangers. He relied on IN RE MICHAEL DAILY 1944 N.I.R.I.
The distinction between KEELAN V. GARVEY and MICHAEL DAILY’S case is so clearly expounded by Andrews L.C.J. in the latter case that I summarise it only for the purpose of construst with the case before me. In KEELAN V. GARVEY the wife’s possession of the tenant interest in the land was shown to have been as bailiff for the husband in its inception. Nothing had happened to change the nature of that possession at the time when the wife acquired the fee under the Land Purchase Acts as a graft on the title to the pre-existing tenancy, and the wife as purchaser of the fee was held to have purchased and taken the fee as trustee for the husband. The husband’s ownership had been subject to burdens and indeed to a partial interest in another person in part of the holding. These were recognised and honoured by the wife and remained extant long after the husband’s departure. There was, at least a tacit, understanding that the wife was taking the profits in way of the husband’s obligation to provide for her support and maintenance. There were in the words of Andrews L.C.J. “special facts” to keep the absent husband’s possession in being. If I might put the contrast in a single phrase, in DAILY’S case the husband abandoned the farm to the wife’s possession while in KEELAN’S case the husband throughout his long absence retained his possession through the agency of his wife.
It is not accurate or it is over-simplification, to say that in the present case the possession asserted by the wife is as against strangers, not against her husband. The husband was already beneficially entitled to an undivided one-ninth share when he was joined by his wife. It cannot be said that in his lifetime his wife was acquiring a joint ownership adverse to her husband in that share.
A few examples of the consequences of the applicant’s case, were it to prevail will serve to show how untenable the argument really is. Had there been issue of the marriage, and the fact that there was not is the real source of this contest, then with the birth of each child the estate of the father would have been diminished, for if the wife should prescribe against him why not his children? Indeed the supposed estate of the wife would likewise diminish. Or, again, if the argument is sound, during the joint lives of husband and wife, the wife could have sought severance and partition. That would surely be something novel in our experience and something that would unsettle the titles of thousands of families similarly situated.
The appeal must be allowed and the application dismissed and the declaration will be that the husband, Patrick Byrne had at the time of his death acquired the fee simple by possession each party to abide own costs.
Mahon v Lawlor
[2010] IESC 58
Docket Number: Record No. 016/2009, [S.C. No. 16 of 2009]
Reported In: [2011] 1 IR 311, [2010] 11 JIC 2504
Jurisdiction: Ireland
Court: Supreme Court (Ireland)
Judge: Mr Justice Finnegan
The preliminary issue came on for hearing before the High Court (Laffoy J.). The second named respondent, the moving party on the preliminary issue, contended that the registration of the judgment mortgages against the interest of Mr Lawlor, who was one of two joint tenants, did not sever the joint tenancy and that on the death of Mr Lawlor, the joint tenancy not having been severed, the second named respondent became the sole owner of the lands by right of survivorship free from the judgment mortgages. For the appellant it was contended that the registration of the judgment mortgages against the interest of Mr Lawlor effected severance so that Mr Lawlor thereupon became the owner of an undivided interest subject to the judgment mortgages and that on his death that undivided interest became part of his estate and the judgment mortgages remained as an encumbrance affecting the same.
In a judgment delivered on the 30th July 2008 the High Court (Laffoy J.) dealt in detail with severance of a joint tenancy by the registration of a judgment mortgage in relation to unregistered land. In relation to registered land she considered the Registration of Title Act 1964 and the changes thereby effected in the system of registration of title and in particular considered the effect of section 4(c) of the Succession Act 1965 and section 62, section 69 and section 71 of the Registration of Title Act 1964. The first question for decision was whether registration of a judgment mortgage on registered land in which a joint tenancy exists severs the joint tenancy. The High Court held that it did not. Further it held that the registration of the judgment mortgages against Mr Lawlor’s interest as joint tenant in the lands was subject to Mrs Lawlor’s right of survivorship so that in the events which happened, that Mr Lawlor pre-deceased her without the joint tenancy having been severed, she became entitled to be registered as full owner with absolute title freed and discharged from the judgment mortgages. From the judgment and order of the High Court the appellant appeals.
1. Does registration of a judgment mortgage against the interest of a joint tenant in registered land sever the joint tenancy.
Severance converts a joint tenancy into a tenancy in common. It occurs where a joint tenant alienates his interestinter vivos or in equity by an enforceable contract to alienate or by the subsequent acquisition of a further estate in the land. Thus if one joint tenant creates a mortgage or life interest out of his interest severance occurs: York v Stone [1709] 1 Salk. 158, Re Pollard’s Estate [1863] 32 L.J. Ch. 657 and Co. Litt. 302. The creation of a mere encumbrance such as a rent charge however does not effect severance: Co. Litt 286. A joint tenancy is also severed by partition or by homicide. See also The Law of Real Property, Megarry and Wade 4th edition pp 404-407 and Challis Real Property 3rd edition footnote at page 367.
In relation to unregistered land the Judgment Mortgage (Ireland) Act 1850 section 7 has the effect that the registration of a judgment mortgage against the share of a joint tenant involves the transfer of the judgment debtor’s interest to the judgment creditor”as if an effectual conveyance…had been made, executed and registered”. Thus registration of a judgment mortgage affidavit effects severance as it destroys one of the four unities, unity of title, and so creates a tenancy in common: McIlroy v Edgar 7 L.R. Ir. 521.
In relation to registered land it was generally considered that section 21 of the Registration of Title Act 1891 had the like effect and that registration of a judgment mortgage severed the joint tenancy: there remained some doubt about this by virtue of section 45(1) of the Act which provided for the registration of a judgment mortgage as a burden only. Section 21 provided as follows:-
2 “21(1)From and after the date of the registration of any land (including in the word ‘land’, tenements and incorporeal hereditaments) the registration of the affidavit required by the Act passed in the session of the thirteenth and fourteenth years of the reign of Her present Majesty, chapter 29, and the Acts amending the same (in this section referred to as the said Acts), for the purpose of registering a judgment as a mortgage upon the land shall be made in the prescribed manner, and with such entries as may be prescribed.
(2) Immediately upon such registration all such and the same consequences in all respects shall ensue, and all such and the same rights, powers and remedies in all respects shall be acquired and possessed by every or any person as would have ensued or been acquired and possessed by or by reason of the registration of such affidavit in the Registry of Deeds pursuant to the provisions of the said Acts, if this Act had not passed.”
The Conveyancing Act 1881 defines mortgage at section 2(vi) as follows:-
“Mortgage includes any charge on any property for securing money or monies worth; and mortgage money means money, or monies worth, secured by a mortgage; and mortgagor includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage, according to his estate, interest or right, in the mortgaged property; and mortgagee includes any person from time to time deriving title under the original mortgagee: and mortgagee in possession is, for the purposes of this Act a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property.”
The fact that “mortgage” in the Conveyancing Act 1881 includes a charge and that a judgment mortgage is a charge does not affect the well settled law that a charge on the interest of a joint tenant will not effect severance.
Thus to come within section 62 the charge must be created by the registered owner and a judgment mortgage not being created by the registered owner does not come within the section and accordingly will not operate as a mortgage pursuant to section 62(6) of the Act. A judgment mortgage is registerable under section 69(1)(i) of the Act. The effect of section 71 of the 1964 Act is that registration of a judgment mortgage affidavit creates a burden only: it does not operate as a mortgage by deed. The registered owner is not thereby divested of his interest and so unity of title is not affected and severance does not occur. The judgment creditors remedy is not as mortgagee but rather he has such rights and remedies for the enforcement of the charge as may be conferred on him by order of the Court.
Finally it is necessary to consider whether the order of the 24th November 2004 in the action taken by Dermot Coyne against Liam Lawlor could have effected severance. It is well settled that a binding contract for sale, as it divests the joint tenant of his equitable interest in his estate, will effect severance. However an order for sale of the interest of a joint tenant has not the effect of divesting a joint tenant of his interest: thus a judgment mortgage can be registered against the same: In Re Scanlon [1897] 1 I.R. 462. The joint tenant will only be divested of his interest giving rise to severance on a purchaser entering into an enforceable contract for sale pursuant to the order for sale.
Having regard to the foregoing I am satisfied that the respondents joint tenancy has not been severed.
Jones v Reade
(1876) I.R. 10 C.L. 315 (Exchequer)
Palles, C.B.:
The principal question reserved at the trial was whether there was evidence to go to the jury that the plaintiff and the defendant were tenants in common of the back wall. We are of opinion that there was. There was evidence that the wall was the wall of the plaintiff. That has been admitted in the course of the argument. Again, there was evidence – and undoubtedly very strong evidence, taken by itself – that the wall was the wall of the defendant. The facts relied upon by the contending parties, as establishing their respective cases, are not inconsistent. Every material fact relied upon by the plaintiff is consistent with every material fact relied upon by the defendant. The title, at the time the wall was built, to the land upon which it stands was not shown. There was no evidence whether, at that time, the land was the property of one owner or whether the titles to the plots, now respectively the plaintiff’s and the defendant’s, had previously become separate. The question is, what inference could, under the circumstances, be drawn by a jury. In the consider ation of this question cases such as Matts v. Hawkins (5 Taunt. 20) have no application. In all cases of that class the title to the land upon which the wall was built was found, and, as a matter of law, the property in the wall followed the property in the land upon which it stood. The next class of case relied upon was that of which Richards v. Rose (9 Ex. 218) is the type. These cases, we are told, coerce us to hold that one person, and one only, has the property in the entire wall; and that the right, if any, of the other must be in the nature of an easement. Such an argument assumes the question it is intended to establish. In Richards v. Rose (9 Ex. 218) the deeds, under which the plaintiff and the defendant held, were pro duced; and, upon the construction of that under which the first purchaser claimed, the Court held that the property in the entire wall passed to him. The determi nation of the right of the second purchaser was therefore necessarily based upon the hypothesis that the sole property in the wall was in his neighbour. These cases being inapplicable, the question is simple, and one which could well be disposed of irrespective of authority. Evidence of a number of consistent facts some of which, per se, afford evidence of the possession of the entire wall being in the plaintiff, and others of which taken by themselves lead to the inference of possession of the same entire wall in the defendant, amount to evidence of a possession in common, and, therefore, of a tenancy in common. If, however, authority were required,·we have it in Wiltshire v. Sidford (1 Man. & Ryl. 404), the judgment of Mr. Justice Bayley in which is decisive on the question.
For the purpose of the next objection we must assume that the parties were tenants in common. I apprehend that there can be no doubt that if a wall, of which two persons are tenants in common, be in a ruinous and dangerous state, either of the co-tenants has a right to take it down for the purpose and with intention of rebuilding it. But the present is not the case of a taking down ‘with an intention to rebuild.’ Mr. Exham’s attention was called during the trial to the omission of these words in the questions he desired to be submitted to the jury, and he declined to insert them. Indeed the facts proved left him no alternative, as I should have been obliged to direct the jury that if the defendant’s intention when he took down the wall was to build in the way in which the wall has since in fact been erected, it would not amount to an intention to rebuild. There was clear evidence of ouster by the defendant. There was the taking down, which was in itself a destruction of the common property without the intention necessary to excuse it, and in addition there was a total appropriation of the wall, by the wall-plate being so placed on it as to exclude the plaintiff from her previous use of the wall. Two questions remain, was the verdict against the weight of the evidence, or was it unsatisfactory, having regard to the mode in which the question of damages was left to the jury? As to the first question, having regard to the facts proved and to the absence of evidence of the state of the title, I cannot say that I am dissatisfied with the verdict. I also think that the mode in which the question of damages was submitted to the jury was correct. If the taking down of the wall was justifiable, and the sole acts of trespass were the placing of the wall upon the new structure, the principle upon which the damages were assessed would be erroneous. But when (as we now determine) the taking down the wall was without legal justification it was an act of trespass, and the injury caused to the plaintiff’s house by that act was an element for the consider ation of the jury in determining the amount of damages. All the grounds upon which the conditional order was obtained therefore fail, and the verdict must stand. At the same time we should take care that the defendant shall be protected against the plaintiff recovering in any other form of action, as, for instance, in an action for negligently taking down the wall. We shall therefore discharge the conditional order with costs, the plaintiff undertaking not to bring any further action in respect of anything done to the wall by the defendant prior to the commencement of this action, but without prejudice to her compelling the defend ant to remove the wall-plate.
Fitzgerald, Deasy and Dowse, BB., concurred.