Dealings & Disputes
Cases
McSweeney v McKeown
[1970] 12 JIC 0701
Judge: KENNY J.:
KENNY J.:
By a lease made on the 22nd June 1888 Robert Humphreys let to James Lawlor property which included 36B, Main Street, Eray (“the prenises”) for l50 years at the yearly rent of £18. The interest of the lessee under this lease subsequently became vested in Mary McSweeney (formerly Mary Lawlor) and Ellen Redmond (formerly Ellen Lawlor) as tenants in common in equal shares.
On the 31st July 1925 Mary McSweeney and Ellen Redmond made a letting of the premises to Leo McKeown (“Mr. McKeown”) for one year and thereafter from year to year at a yearly rent of £50: the tenant was responsible for all rates and taxes. Mr. KcKeown went into occupation of the premises after this agreement was made and remained in possession until his death in 1966. The rent payable for the premises let by the agreement of 1925 was subsequently fixed at £35. 12. 0 plus an addition of £7. 2. 4 by the Circuit Court under the Increase of Rent and Mortgage Interest (Restrictions) Acts 1923-30.
Mary McSWeeney died on the 18th October 1933 intestate and letters of administration to her estate were granted to her husband James McSweeney who subsequently married Mary McDonnell. James McSweeney died on the 6th May 1942 and by his will left all his property to his wife. By a deed made on the 3rd August 1948 she assigned her undivided moiety in the leasehold interest created by the lease of 1888 in the premises to Mr. McKeown for £600 subject to a primary liability of £3, part of the rent reserved by the lease of 1888. From the time when this deed was executed, Mr. McKeown paid to Ellen Redmond a rent which was one half of the rent fixed by the Order of the Circuit Court.
Ellen Redmond died on the 4th July 1959 and by her will left her undivided moiety in the premises to the plaintiff James J. McSweeney who continued to accept the rent. Mr. McKeown died in 1966 and by his will left all his property to the defendant who is now in occupation of the premises.
By a civil bill issued in March 1969 the plaintiff claimed a declaration that the defendant’s tenancy in the premises had been determined under section 13 of the Rent Restrictions (Amendment) Act1967. This claim was subsequently withdrawn but at the hearing, the plaintiff was given liberty to amend the civil bill by claiming a declaration that the tenancy created in 1925 had been extinguished or merged by the assignment. By an order made on the 29th April 1970 the Circuit Court Judge declared that the 1925 tenancy querycircuments came to an end on the 3rd August 1948 by act and operation of law and queryadver “that the defendant’s interest in the premises Is that of co-tenant with the plaintiff and as tenant of his undivided share.” The Court also declared “that t ho defendant is presently lawfully in exclusive occupation of the property, such occupation flowing from her own possessory right as tenant in common to an undivided moiety of the property and from an implied agreement whereby the only other tenant in common permitted her undivided moiety of the property to be occupied exclusively by the predecessor, in title of the defendant in return for the payment of sums equalling a moiety of the former yearly rent of the premises”. No evidence was given in the Circuit Court and the defendant appealed against the whole of the Order made by the Circuit Court Judge. Counsel for the defendant asked me to state a case for the Supreme Court on the question whether there had teen a surrender by act and operation of law of the 1925 tenancy querycircumvents but as no evidence was called in the Circuit Court, I have no power to do this. The contention that the 1925 tenancy querycreat merged in the leasehold interest created by the lease of 1888 was withdrawn and the debate was confined to the issuas/whether there had been a surrender by act and operation of law of the 1925 tenancy querycreated in and, if there had been, on what terms the defendant now holds/the premises.
At common law it was not possible for anyone to grant a tenancy to himself or for two persons to grant a tenancy to themselves and as one cannot contract with oneself, this was not changed by Deasy’s Act. “A person cannot be, at the same time both landlord and tenant of the same premises; for as soon as the tenancy and the reversion are in the same hands the tenancy is merged, that is, sunk or drowned in the reversion. Neither could a person at common law covenant with himself nor could two persons with themselves. Neither could one person covenant with himself and others jointly” (Lord Denning in the House of Lords in Rye v. Rye (1962) A.C. 496: 1962 1 All E.R. 145 at p.155). So if a tenant in occupation acquires his landlord’s interest, or a part of it, the tenancy determines because the same person cannot be landlord and tenant. If the tenant in possession who holds from a number of owners in common acquires the interest of one of them, there is, in my opinion, a surrender by act and operation of law. If there were not, how could the landlords (of whom the tenant is one, enforce the covenants against the tenant?
The phrase “surrender by act and operation of law” appeared in s. 1 of the Statute of Frauds (7 Will queryIII c.12) which was repealed by Deasy’s Act in which it appeared in s. 7. It has nothing to do with the intention of the parties but is the construction put by the law on acts which are inconsistent with the continuance of the tenancy. “A surrender by act and operation of law I think may properly be stated to be a surrender effected by the construction put by the Courts on the acts of the parties, in order to give to those acts the effect substantially intended by them; and when the Courts see that the acts of the parties cannot have any operation, except by holding that a surrender has taken place, they held it to have taken place accordingly”. (Brady C.B. in Lynch v. Lynch (l343) 6 In L.R. 131) and in the same case Lefroy B, said : “According to all the authorities, if a tenant in a dealing between himself and his landlord does an act acquiring a new interest, or a new estate inconsistent with his former estate, that amounts to a surrender of his former estate by operation of law. But each of these ingredients must concur in the transaction in order to constitute it a valid surrender by operation of law; namely:-there must be an act affecting the possession – that act must create an interest; and lastly that interest must be inconsistent with the tenant’s former interest”.
The conclusion that there was a surrender by act and operation of law in this case is not consistent with some of the statements in the judgment of Mr. Justice O’Connor la Glynn v. Coghlan (1918) I.R. 482 He is reported to have said that in order to constitute a surrender by operation of law, there must be an act of purported surrender, invalid per se by reason of non-compliance with statutory or other formalities and some change of circumstances which by reason of the doctrine of estoppel or part performance cakes It inequitable for any of the parties to rely upon the invalidity of the purported surrender. This, as a complete statement of all the circumstances in which a surrender by act and operation of law takes place, is entirely incorrect out an earlier part of the judgment shows that the Judge was dealing with cases in which there was a surrender by act and operation of law as a result of a giving up by a tenant of his interest to a landlord and the acceptance by the landlord of a new tenant with the assent of the outgoing one. The general statement which appears in the headnote and the judgment must be confined to one set of circumstances in which there may be a surrender by act and operation of law.
As there was a surrender by act and operation of law of the 1925 tenancy, the next question is whether the payment of rent by Mr. McKeown to Mrs. Redmond created a tenancy of her undivided moiety. The Circuit Court Judge thought that the relationship of landlord and tenant of an undivided moiety could not exist between one co-owner and another and that the proper inference was that there was a licence to the co-owner in occupation. I do not see any reason in principle why the owner of an undivided moiety should not lease it to another co-owner and this was decided by the Court of Appeal in England querycircumvent inLeigh v. Dickeson (1884) 15 Q.B.D. 60 which was not not cited. In that case Cotton L.J, said: “In this case there was a lease to the defendant from his co-tenant of her share of the property and after the expiration of that lease the defendant continued in possession and claimed and held exclusive possession: I think the defendant was properly held liable to pay the rent”.
In my opinion the proper inference from the admitted facts is that from 1948 the interest of Mr. McKeown in the premises was as to one undivided moiety as owner of that and as to the other undivided moiety, as tenant from year to year of it. The order of the Circuit Court will be varied accordingly and, subject to this, the appeal will be dismissed.
McHugh v O’Brien
[1975] 3 JIC 0401, 1965 WJSC-HC 5647
KENNY J.:
In 1918 John McHugh (“the testator”) was the owner of an ordinary present tenancy in part of the lands of Carrowneden County Mayo containing 10 acres on which there was a house in which he lived. The plaintiff, then Mary Loftus and now Mary McHugh, and he had agreed to get married and on the 18th March 1918 they executed a marriage settlement under seal by which he assigned and transferred “unto himself and his intended wife the said Mary Loftus all that and those part of the lands of Carrowneden……… …….. containing in or about 10 acres statute measure with the dwellinghouse thereon with the appurtenances and held from the congested Districts Board as an ordinary present yearly tenancy at the yearly rent of £3.14.9d to hold the same………… unto the said John McHugh and his intended wife the said Mary Loftus as joint tenants and to hold the same on the death of either of them, the said John McHugh or Mary Loftus, unto the survivor his or her executors administrators and assigns”.
By a Fiat of the Land Commission made on the 10th February 1927 part of the lands of Carrowneden containing 24 acres 2 roods and 9 perches, were vested in the testator and he was registered on Folio 15060 of the Register of Freeholders County Mayo as full owner subject to such rights or equities as arose by reason of the interest vested in him being deemed to be a graft on his previous interest in the land. It has not been possible to find out how the testator acquired the tenant’s interest in 14 acres 2 roods and 9 perches, the difference in area between the lands vested by the Land Commission and the lands settled by the deed of 1918. The lands were registered subject to a right-of-way for the Land Commission and their licencees to pass over part of the lands and this suggests that the 14 acres 2 roods and 9 perches were allotted to the testator by the Land Commission to be consolidated with his original holding and if this happened, (as it probably did), he would have agreed to hold the additional lands on the same trusts as he held the original holding. As the additional lands were allotted to him by reason of his ownership of the lands settled by the deed of 1918, they were an accretion to his original holding and so subject to the same rights and trusts as it was. “The principle upon which an accretion to property becomes subject to the title to the property depends upon the principle of the identity of the property itself, notwithstanding that it has been increased by reason of something which has grown out of the use and enjoyment of the property having become annexed to and incorporated with it. Thus, to take a typical case, if a lessee extends the boundary of his lands and aquires a title under the Statute of Limitations, the extension will be subject to the lease as an accretion to the premises; and if the lessee had made a mortgage of his leasehold interest, the extension would have been accretion to the security created by the mortgage”. (See the judgment of Mr. Justice Meredith in Meares and Collis and, Haves ( 1927 IR 397 at pp 402 and 403) and the passage in McAllister on Registration of Title in Ireland at pp 73 and 74).
The testator and the plaintiff had one son who died in 1963. By a transfer made on the 18th January 1966 in which the testator and Kevin McHugh were the parties, the testator in consideration of natural love and affection for his cousin Kevin McHugh and of the provision for the testator and the plaintiff contained in it and of £500 paid by Kevin McHugh, transferred all the lands in folio 15060 of the Register County Mayo to Kevin McHugh in fee simple to the use of the testator during his lifetime and after his death to Kevin McHugh in fee simple, subject to the right of the testator during his lifetime to reside in the dwellinghouse on the said lands and to have the use and occupation of it so as to provide for his support and the support of the plaintiff and after the termination of the life interest of the testator subject to the right of the plaintiff to have the exclusive use of a furnished room in the dwelling house and to be supported, clothed and maintained therein. Although the plaintiff was not expressed to be a party to this transfer she signed and sealed it. The purpose of getting her to execute this deed was probably to ensure that she could enforce the covenants for her benefit contained in it. The testator was then registered as limited owner of the lands.
The purpose of the transfer made in 1966 was that Kevin McHugh would work the lands with the testator and succeed to them on his death. The arrangement however did not work out and on the 26th September 1968 Kevin McHugh signed a transfer by which after a recital that disputes had arisen between the testator and him and that they had agreed to “a complete cancellation and revocation of the Deed of Transfer of the 18th January 1966” and that the £500 had been refunded he transferred all the fee simple estate and interest in remainder to the testator who, as limited owner, transferred all his limited estate and interest to himself “to hold the same unto and to the use of the testator in fee simple”. By a separate instrument, made on the 3rd March 1969, the plaintiff consented to the registration of the testator as full owner of the property under the Deed of Transfer of the 26th September 1968 freed from the rights and privileges in her favour under the deed of the 18th January 1966. Although the deed of the 26th September 1968 contained a recital that the parties had agreed to a complete cancellation and revocation of the transfer of the 13th January 1966, the operative part of it consisted of a transfer by Kevin McHugh of his interest in remainder to the testator and a transfer by the testator of his limited estate to himself. It was not therefore a revocation or cancellation of the deed of 1966 although it restored the position to that which had prevailed before that deed.
In 1972 the testator sold the lands in folio 15060 without the consent of the plaintiff for £9,000 and invested the purchase price in £9,000 85/4% Conversion Stock in his name only. After the sale the testator and the plaintiff went to live with Patrick McHugh at 54 Whitehall Cross, Terenure, Dublin.
The testator made his will on the 21st May 1973 by which he appointed John O’Brien, the defendant, to be the executor and left him £50. It then continued:
“I bequeath the sum of three thousand five hundred pounds to Patrick McHugh of 54 Whitehall Cross Terenure Dublin and in the event of my own wife surviving me the said bequest to Patrick McHugh is conditional on he (sic) providing for the care and maintenance of my said wife during her life in his own home”.
The testator then gave the residue of his estate to his nephews and nieces. He died on the 17th August 1973 and probate issued to the defendant. The testator’s net estate amounted to £11,305.71 and the estate duty payable was £678.34.
As the will made no provision for the plaintiff she claimed her legal right to one half of the testator’s estate under the Succession Act1965and the defendant conceded her right to this. She also contended that she was entitled to the whole of the £9,000 Conversion Stock on the ground that it represented the proceeds of sale of the lands in County Mayo to which she had become solely entitled, because the testator, although registered as full owner, was a joint tenant with her of the lands when he sold them and so she had become entitled to the proceeds as survivor. Patrick McHugh claimed that he was entitled to immediate payment of the legacy of £3,500. The plaintiff is at present living in his house where she is maintained. She brought proceedings against the defendant to enforce her claim to the Conversion Stock, Patrick McHugh was added as a plaintiff and on the 8th July 1974 I directed that two issues be tried. The first was whether the plaintiff was entitled to the entire £9,000 ???query???8¾%??? Conversion Stock standing in the name of the testator and the dividends thereon: the second was whether the legacy of £3,500 is now payable to Patrick McHugh.
Although the testator was registered as full owner of the lands there was a note as to equities on the folio when they were sold. The result was that while the testator was the legal owner of the lands he held them as a trustee subject to the trusts declared by the settlement of 1918 so that if in equity the plaintiff would have become absolutely entitled to the lands as survivor if they had not been sold, she is now entitled to the entire proceeds of the sale.
The first question therefore is whether the deed of 1918 created a joint tenancy which could be severed or whether its effect was that the survivor became entitled to the lands in any event even if the joint tenancy which existed during the joint lives of the testator and the plaintiff had been severed. By the deed of 1918 the lands were conveyed “to hold the same……………. unto the said John McHugh and his intended wife the said Mary Loftus as joint tenants and to hold the same on the death of either of them the said John McHugh or Mary Loftus unto the survivor his or her executors administrators and assigns”. The feature which creates the difficulty is the two habenda. If the tenancy had been conveyed to hold the same unto the said John McHugh and his intended wife as joint tenants and to the survivor of them, the words “to the survivor of them” might be regarded as surplusage which merely expressed a feature of the joint tenancy. The words undoubtedly created a joint tenancy during the joint lives which could be severed with effect during the joint lives but was the severance effective after the death of one of them or was the survivor entitled in any event to all the lands, if they had not been sold, or to the proceeds. There seems to be no reported case on this question but there is a passage in Challis’s Law of Real Property (Third Edition), which has some relevance to the problem. At p. 368 the author wrote:
“When two or more persons are joint tenants for their lives, whether by express limitation or by implication of law and although the limitation be expresslyto the survivor of them. then on a severance of the joint tenancy, the share of each will afterwards be held for his own life only. This is because the words in italics are mere surplusage, which express nothing which the law would not without them have implied. Hence it appears, observes Lord Coke, that a severance of the joint tenancy of a lease for lives is beneficial to the lessor.
“In the limitation of a fee simple in joint tenancy, the words above placed in italics, instead of erring from mere superfluity, are highly pernicious. They turn the limitation to a joint free-hold for lives, with a contingent remainder in fee simple to the survivor”.
The first case in this passage deals with the position when two persons are joint tenants for their lives, but in the deed of 1918 the tenancy was not conveyed to the testator and the plaintiff for their lives. Although the second case mentioned by Challis relates to a fee simple, it seems to me that the same principle should apply to a leasehold and to this case because the limitation to the survivor in this case was not done by way of words of limitation but by a separate habendum. It follows that in my view the effect of the deed of 1918 was to create a joint tenancy for the lives of the testator and the plaintiff which could be severed with effect during their joint lives, but with a limitation to the survivor, in any event, even if the joint tenancy had been severed during the joint lives. The plaintiff as the survivor, is accordingly entitled to the entire holding of £9,000 ???query???8¾%??? Conversion Stock.
There was a debate as to whether the deed of the 18th January 1966 in which the testator conveyed the lands to Kevin McHugh, had the effect of severing the joint tenancy, as the lands were subsequently conveyed on the 26th September 1968 back to the testator. The conclusion which I have reached on the effect of the deed of 1918 means that this question does not arise but as it was argued, I think I should express a view on it. The general principle is that any alienation by a joint tenant which is inconsistent with the right of survivorship severs the joint tenancy.In re Wilks (1891) 3 Ch 59 Mr. Justice Stirling said that any act which precludes the actor from claiming by survivorship an interest in the subject matter of the joint tenancy severs it. The transfer of the land in 1966 by the testator was wholly inconsistent with his right of survivorship for on his death before that of the plaintiff, the lands were to go, not to the survivor, but to Kevin McHugh. It was argued however, that the deed of 1968 cancelled the deed of 1966 and so restored the joint tenancy. There is a recital that the parties intended to cancel and revoke the transfer of 1966 by the transfer of 1968, but the form of the transfer of 1968 was not a revocation or cancellation but a transfer by Kevin McHugh of his estate in remainder to the testator. While this restored the position at law which prevailed before the transfer of 1966, it did not affect the severance of the joint tenancy which existed during the remainder of the joint lives of the testator and the plaintiff, a severance which was the result of the transfer of 1966. The law does not now favour joint tenancies and I see no reason why the transfer of 1968 should be read as undoing the severance which had been affected by the transfer of 1966.
The next question is whether the legacy to Patrick McHugh should be paid to him now despite the condition subsequent which is attached to it. The condition is not a devise or bequest to the plaintiff and so she has a valid claim to one half the testator’s estate under the Succession Act1965and to the benefit of the clause attached to the legacy. When a condition subsequent is attached to a devise of land and there is no gift over in the event of the condition not being complied with, the permanence of land gives the security for the performance of the condition for if it is not observed, the person entitled to the benefit of the condition can enforce it against the land. But when the condition subsequent is a legacy of a chattel or money there is no security for the performance of the condition if the chattel is transferred or the pecuniary legacy is paid to the legatee for he may have spent the money or sold the chattel when the condition is not complied with. For this reason the Court of Chancery developed the rule that when a condition subsequent was attached to a legacy of a chattel or money, the Court would in some cases require security for the performance of the condition. The necessity for such a principle is shown by this case for if the legacy of £3,500 be paid to Patrick McHugh and if he were adjudicated bankrupt in two years time, the house where he resides would be sold and the plaintiff would not have any effective remedy against him or against the house because her rights are not charged on it.
InAston .v. Aston (1703) 2 Vernon. 452 Sir Willoughby Aston by his will directed that the portions of £6,000 of his then unmarried daughters should be made up as to £4,000 out of his personal estate and lands devised to be sold for that purpose provided that each of the said daughters should marry with the consent of his wife and if she were dead with the consent of his eldest son and if any of his said daughters should marry without such consent, her portion was to go to make up the other daughters portions if the fund were deficient. He time for payment of the portions was specified and the unmarried daughters sued for recovery of their portions. The Lord Chancellor held that the portions were vested before marriage subject to a condition subsequent attached to each of them that the daughter to whom it was given married with consent and ordered taut the portions should be paid immediately “but on security to refund in case the condition be broken”. In Colston .v. Morris(1821) 6 haddock 89 a legacy was given to a fattier on condition that he did not ???query???interfer??? with the education of his daughter. When he brought proceedings for payment of the legacy the Vice Chancellor required him to give security for the performance of the condition. In Roper on Legacies (Fourth Edition (1847/ at pp 864 and 865) a book of the highest authority, it was stated that when a legacy given generally is subject to a limitation over upon a subsequent event, the divesting contingency will not prevent the legatee from receiving his legacy at the end of the year after the testator’s death and he is under no obligation to give security for repayment of the money in case the event shall happen. This, it is said is based on the principle that as the testator has entrusted him with the money without requiring-security no person has authority to require it. The author adds:
“But it seems, where a legacy is given upon a condition to do or abstain from a certain act and the time of payment is arrived, a Court of Equity will require security from the legatee for the observance of the condition.”
In this case the legacy is payable immediately but it is expressed to be conditional on the legatee doing a certain act, providing for the care and maintenance of the plaintiff during her life in his own hone, so it seems to me that common sense and the authorities require that security must be given. It would be impossible for the legatee to get a bond from an insurance company to guarantee the performance of the condition and it seems to me that the only way in which security can be given is that the legacy of £3,500 should be lodged on deposit with the Agricultural Credit Corporation or the Industrial Credit Corporation in the joint names of the legatee and the defendant. The interest on the deposit should be paid to Patrick McHugh during the life of the plaintiff and on her death he will become entitled to the capital.
The answers to the issues accordingly will be:
1. The plaintiff, Mary MuHugh, is solely entitled to the holding of £9,000 ???query???8¾%??? Conversion Stock 1976 standing in the name of John McHugh deceased and the dividends thereon.
2. The legacy of £3,500 under the will Of John McHugh deceased is not now payable to Patrick McHugh. The legacy is to be placed on deposit in the joint names of Patrick McHugh and the defendant. The interest is to be paid to Patrick McHugh during the lifetime of Mary McHugh and the legacy will be payable to him on the death of Mary McHugh.
Byrne v Byrne
[1980] 1 JIC 1801,
Mr. Justice McWilliam
This summons has been brought for the administration of the estate of William Byrne, (hereinafter called the deceased) who died on 24th November 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 has 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 defendant is the personal representative 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. and the case of Hayes’ Estate (1920) 1 I.R.207 is cited in support of this proposition.
This 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. Tow 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.”
“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.”
O’Connor, L.J., said at p. 211:-
Each of the three judges refers to the lack of evidence of an intention ot 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 be referred to the case ofIn 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 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 severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severence 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.
Moore (plaintiff) v Moore and Others
[2011] 1 IR 623
Neutral Citation: [2010] IEHC 263, [2010] IEHC 462
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr. Justice Roderick Murphy5. Decision in relation to first and second named defendants
The first two defendants submitted that the title of the plaintiff to any estate or interest in the premises was statute barred on 5 th January, 1996, when Mr. Moore died. At that point they say that there was no question of fraud.
Section 71 of the Statute of Limitations 1957, is an express provision postponing the date of the accrual of the cause of action in cases involving fraud to the date when the fraud was, or could with reasonable diligence have been, discovered. The statute provides that where the action is either “based on” or “concealed by” the fraud of the defendant, the limitation period does not begin to run until the plaintiff either discovered the fraud or could, with reasonable diligence, have discovered it.
The classic statement on the meaning of fraud is attributed to Lord Evershed M.R. in Kitchen v Royal Air Force Association [1958] 1 W.L.R. 563, 572 – 573, which was in the context of s. 26(b) of the Limitation Act 1939, that it was by no means limited to common law fraud or deceit. In that case there was concealment from the plaintiff by the second named defendants who were acting as her solicitors of what was being proposed to the plaintiff “a necessary consequence, the concealment”.
“A necessary consequence of the concealment (as the second defendant must have realised, if they had given any thought to the matter at all) was a concealment also from the plaintiff of the real effect of their having thrown away – and I use that word deliberately – any case which she might have possessed under the Fatal Accidents Acts in May 1946. Does, however, that concealment amount to fraud? There is no finding, and no justification for any finding of dishonesty as that word is ordinarily understood. It is now clear, however, that the word ‘fraud’ in s. 26(b) of the Limitation Act 1939, is by no means limited to common law fraud or deceit. Equally it is clear, having regard to the decision in Beaman v ARTS Ltd [1949] 1 All E.R. 465, that no degree of moral turpitude is necessary to establish fraud within the section. What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define two hundred years ago, and I certainly shall not attempt to do so now, but it is, I think clear that the phrase covers conduct which having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other.”
Has there been a fraud or concealment? If so who concealed what from whom? Was there a special relationship between the defendants and the plaintiff? It is easier to answer the latter question in the affirmative: the first and second defendants as personal representatives of their father did have a special relationship with the plaintiff.
What did they aver? That there was no severance of the tenancy before the death of the other Maureen Moore? Did they conceal thereby that the plaintiff was possibly alive?
While fraud has been alleged it has to be examined in terms of two letters in 1996, from the first and second named defendants’ solicitors to Vincent Hoey and P.C. Moore seeking the address of the plaintiff. Furthermore, there was a letter to nursing homes and to whom the first and second named defendants made enquiries.
The Court agrees that the plaintiff’s cause of action was not based on the fraud of the defendants. Moreover, the cause of action was not concealed by the fraud of any such person. The plaintiff could, at any time, by using any reasonable diligence have ascertained years earlier that the said John Moore was dead.
I am satisfied from the evidence that they did attempt to ascertain the whereabouts of the plaintiff. They may have been less than thorough in identifying the Maureen Moore who died the year before their father with the plaintiff, their foster mother. Notwithstanding, there was no evidence of fraud or concealment.
The fraud alleged, which is against the first and second named defendants in relation to the procurement of the death certificate of the Maureen Moore who died on the 21 st January, 1995, is accordingly, not established.
The first and second named defendants contended that the title of the plaintiff to any estate or interest in the premises was statute barred long before they located the death certificate. There was no issue of fraud before obtaining the death certificate.
The plaintiff had left and remained out of upwards of twelve years from the premises and, accordingly, s. 21 of the Statute of Limitations 1957, applies.
The plaintiff says that her dispossession of the property was caused by the conduct of the deceased. She was acknowledged as a deserted wife.
Moreover, the plaintiff submits that the first and second named defendants are estopped by their conduct in relation to the averments in the Inland Revenue Affidavit, that the joint tenancy was not severed until the death of the other Maureen Moore.
However, the defendants say that the plaintiff is a stranger to the estoppel in the declaration. It is not a statement of fact communicated to the representee which determined a change of position by the plaintiff.
There was no acknowledgment by the deceased of the plaintiff’s rights in or over the house such as to apply s. 55 of the Statute.
Adverse possession by spouses would appear to be in a different category from adverse possession by others, including squatters. Keelan v Garvey [1925] 1 I.R. 1 is authority for the rule a person cannot be in adverse possession to his or her spouse, even where there has been desertion.
In that case, the plaintiff had inherited lands from his father in 1896, and had married in 1897. Following quarrels with his wife, left the farm later that year and did not return until 1923 after the death of his wife. His wife had continued to reside at and manage the farm until her death. She had an agreement for the purchase of the holding under the provisions of the Irish Land Act 1903. In 1909 the holding was vested in her by fiat of the Land Commission and she was registered in the Land Registry as owner and fee simple, subject to equities which were later, on her application, cancelled.
His wife had, by her will, devised and bequeathed the farm to her brother. The plaintiff claimed to be beneficially entitled to the farm.
The Supreme Court (Kennedy C.J., O’Connor and FitzGibbon J.J.) held that the plaintiff never ceased to be in possession of the farm, that his wife never entered into possession adversely to him; that she was provided with the residence and with support on his farm in fulfilment of his marital obligations; and that the Statute of Limitations never ran against him. Accordingly his wife’s executor was the trustee of the legal estate for him. It was held that the register should be rectified accordingly.
In that case, Mrs. Keelan was not a joint tenant. Her only entitlement was to right of residence. Before she died she was in occupation as spouse and not as a joint tenant.
Keelan v. Garvey was considered almost twenty years later in Re. Daily [1944] N.I.1 and both cases are commented on by Lyall, “Land Law in Ireland” 3 rd Ed. 2010.
The owner of registered lands lived on the lands with his wife and two children until 1928, when, owing to disagreements with his wife, he left with her approval and lived elsewhere without making any claim or without any acknowledgment of right.
The Court of Appeal held that but for the provision of the Local Registration of Title (Ireland) Act 1891, the right of the registered owner would be statute barred.
In the present case the plaintiff was joint tenant. Her husband could not have been in adverse possession to her legal entitlement.
Moreover, the first and second defendants are estopped from denying that the joint tenancy had severed. While there was no evidence of fraud or concealment there was clearly a mistake as to the identity of the Maureen Moore who died the year before their father. The court is satisfied that within a year after the plaintiff became aware of her husband’s death, when she was so informed by his brother in 2006, she commenced proceedings.
It is then necessary, absent fraud or concealment, to examine the effects of the first and second named defendants’ mistake.
“Section 72 of the Statute of Limitations 1957 states as follows:”
2 72(1) Where, in the case of any action for which a period of limitation is fixed by this Act, the action is for relief from the consequences of mistake, the period of limitation shall not begin to run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it.
(2) Nothing in subsection (1) of this section shall enable any action to be brought to recover, or enforce any charge against, or set aside any transaction affecting, any property which has been purchased for valuable consideration, subsequently to the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake was made.
Wylie (Fourth Edition) at 23.25 comments on s. 72 of the Statute of Limitations as follows:
“…the general rule is that mistake does not stop time running ( Re Jones’s Estate [1914] 1 I.R. 188) and squatter’s rights are often acquired by such means, e.g., where neighbouring landowners make a mistake as to where the boundary lies between their adjoining lands. However, where the action in question is for relief from the consequences of mistake, time does not run until the plaintiff discovers the mistake, or could have done so with reasonable diligence. (Statute of Limitations 1957, s 72(1)). In the case of land, relief for mistake usually involves an application for equitable relief, i.e., rescission or rectification, and as such is not subject to the statute of limitations anyway. Like all equitable relief, on the other hand, it is subject to the doctrine of laches.”
Brady & Kerr at pages 196 – 198:
“Time does not begin to run until the plaintiff has discovered his mistake or could have discovered it with reasonable diligence. The language of s. 72(1) is narrower in scope than that in s. 71(1) and it is the fact of a mistake and not its concealment which gives rise to the equitable relief. Caselaw suggests that the mistake must be an essential ingredient to the cause of action.”
While Brady and Kerr refer to the plaintiff’s mistake, nothing in the provision would suggest that it is restricted to a mistake on the part of the plaintiff.
In Phillips-Higgins v Harper ( [1954] 1 QB 411) it was held that the equivalent English provision is limited to cases where mistake forms part of the cause of action, but does not extend to cases where the plaintiff was mistaken as to, or ignorant of, his rights (Canny, Limitation of Actions at 10-23). The mistake of the first and second defendants was the receipt and use of a death certificate of a different person by the name of Maureen Moore in or around 2001/2002. The joint tenancy was not severed by the time the other Maureen Moore died on 21 st January 1995, it was still not severed by the time Mr Moore died in 1996.
Would s. 72 of the Statute of Limitations have applied in these circumstances? Brady and Kerr in “The Limitations of Action” (2 nd Ed. 1994) state that the mistake must be an essential ingredient to the cause of action. As a result of the receipt and use of the incorrect death certificate, the Folio was changed and the property sold after the Grant of Letters of Administration was obtained. This prevented the plaintiff asserting her rights (s. 72(2) also supports this), because of the right of the third defendant and that of her bank.
A consequence of the first and second defendants’ mistake was that the plaintiff was not located and contacted on her late husband’s death. The first and second named defendants acknowledge in the Inland Revenue Affidavit (sworn on the 12 th March 2001) that the plaintiff was his spouse. However in pleadings they refer to her “alleged widowhood” and state that they do not admit that she was his widow and that they require proof of same. If those defendants had not made the mistake in relation to the death certificate, and had located the plaintiff, she would have been able to attempt to assert her rights at that stage.
The court is satisfied that the joint tenancy was not severed by the time Mr Moore died, twelve years have not passed from the date of his death because time has ceased to run on the 11 th year with the issuing of the summons.
There were two consequences of the mistake: the Folio was amended, and the plaintiff was not told about her estranged husband’s death. The plaintiff would have been the party to take out the grant of letters of administration, or alternatively to renounce her right to do so. There is no indication in the papers before the court as to what the personal representatives (the first and second defendants) swore in the Oath of Administration Intestate, which is the document setting out the correct history of entitlement of the applicant to extract the Grant.
If the plaintiff was not statute barred, the defendants’ mistake resulted in the plaintiff not getting the property which was the subject of the joint tenancy on survivorship, because severance had not occurred. However, if she was statute barred, the joint tenancy was severed and it was solely Mr Moore’s, the property would go into his estate and she should become entitled to her legal share of his estate under the Succession Act 1965, as he died intestate. Therefore the defendants’ mistake resulted in the plaintiff not being able to take out the grant of letters of administration and she did not get her legal share of her late husband’s estate (the property having gone back into his estate by reason of her having become statute barred and the joint tenancy being severed). For this reason it would seem that there might be an entitlement to damages and costs.
Personal representatives are not only obliged to perform their duties but to perform them diligently or at least prudently. The duty of diligence that a personal representative owes to creditors and beneficiaries commences from the date of the grant, and continues while gathering in and preserving the assets and when administering and distributing the estate among the persons entitled. (See Keating on Probate at 17 -01)
6. The Position of the Third Named Defendant
Even if the first and second named defendants were estopped from raising the Statute of Limitations against the plaintiff, no estoppel arises against the third named defendant who is entitled to rely upon the Statute.
Moreover the register is conclusive evidence of title. If the plaintiff sustained loss as result of fraud then the plaintiff may be entitled to compensation under the provisions of s. 120 of the Registration of Title 1964.
The plaintiff is not entitled to any order under s. 31 of the Registration of Title Act 1964, rectifying the register in circumstances where the third named defendant was a bona fide purchaser for value without notice of the alleged fraud
Moreover, the present registered charge holder, Ulster Bank Ireland Limited, is also a bona fide purchaser for value without notice of the alleged fraud.
The court is satisfied that estoppel cannot apply, particularly in relation to the third named defendant, but also in relation to the first and second named defendants as the plaintiff is a stranger to the estoppel in that no communication was made to her.
In relation to the third named defendant the registration of title is, pursuant to s. 31(1) of the Registration of Title Act conclusive evidence of the title of the owner to the land as appearing on the register. This is further strengthened by the provisions of s. 55, which deems the instrument of transfer to operate as a conveyance by deed within the meaning of the Conveyancing Acts.
Moreover, the repudiation of a contract is impossible where third parties have intervened and acquired rights thereunder for value. As a bona fide purchaser for value, the third named defendant had charged the property to Ulster Bank Limited, who is not a party. The charge held by the bank cannot be rescinded or removed.
The court refuses the plaintiff’s claim as against the third named defendant.
The court will hear the parties regarding the issue of damages resulting from the mistake which deprived the plaintiff of her interest.
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