Deceaseds’ Estates
Cases
McHugh v McHugh
[2015] IESC 101
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 17th day of December, 2015
Introduction:
1. The plaintiff is a security officer and part-time farmer and resides at 4 Palace Fields, Tuam, in the County of Galway. In addition he, the plaintiff:-
(a) is a brother of the first and second named defendants herein. They also had two sisters, one now deceased, making a total of five siblings;
(b) is a lawful son of the late Michael McHugh, who died on the 9th May, 1976, and the late Rita McHugh, who died on the 12th January, 1998; and
(i) on the death of his father, Gerard inherited the lands comprised in Folio 53169F of the Register of Freeholders of the County of Galway;
(ii) prior to her death, Mrs. McHugh was entitled to be registered as full owner of the property the subject matter of the within proceedings, namely the lands and hereditaments comprised in and described on Folio 43217F of the Register of Freeholders of the County of Galway (sometimes referred to as “the subject lands”), such entitlement arising from the provisions of a Marriage Settlement executed in 1943, evidently on the marriage of the parents to the parties herein;
(c) is a grandson of the late Mary Ellen Dunne, mother of Rita McHugh, who died on the 23rd June, 1985, and who prior to her death was registered as limited owner of the aforesaid lands on Folio 43217F of the Register of Freeholders of the County of Galway.
2. These proceedings, howsoever formulated and howsoever worded, essentially involve a dispute between the three brothers in relation to the subject lands. The plaintiff challenges the validity of a Deed of Transfer of such lands made by his late mother to the defendants in 1990. In the circumstances occurring, which are more fully described later in this judgment, he claims that for the several reasons as pleaded, he – and not his brothers – should be regarded as the rightful owner of these lands. The defendants issued a motion to have the proceedings dismissed on the basis that the same were not maintainable against them and were bound to fail; Murphy J. acceded to such application in a judgment delivered on the 10th February, 2012. Mr. Gerard McHugh (“the plaintiff” or “the appellant”) has appealed to this Court from the entirety of such judgment and the resulting order, dated the 28th February, 2012, and perfected on the 3rd May, 2012.
3. In addition to the headline details set out at para. 1 above, the following events which took place on the dates specified are important factors in an understanding of this case:-
• 9th July, 1987: Mrs Rita McHugh (“the deceased”) made her last Will and Testament in which, having nominated the plaintiff as her sole executor, she devised and bequeathed all of her property, both real and personal, of every kind and nature and wheresoever situate, to her son Gerard, absolutely.
• 5th February, 1990: the deceased executed a Deed of Transfer of the subject lands in favour of the defendants, who duly lodged the executed Transfer with the Land Registry for registration.
• 19th February, 1991: the defendants became registered as full owners in fee simple of the subject lands.
• 12th January, 1998: the deceased, as above stated, died.
• 26th October, 2011: Probate of the last Will and Testament of the deceased was granted to the plaintiff.
4. Whatever may be the legal outcome of this appeal, it can with both certainty and conviction be said that this is a most tragic case which has created deep and suffering divisions within the McHugh family. Not for the first time this Court has witnessed first-hand how families can be irreparably divided on issues such as due entitlements, property inheritance and the cruelty of real or perceived ingratitude. In fact, such disputes can be everlasting in memory and affect not simply the immediate members who are personally embattled in conflict, but also many members of their extended families. It is of enormous regret that some less confrontational forum could not have been settled upon which might have helped to resolve this conflict in a less attritional and harrying manner, and at least to have achieved some degree of acceptance for those involved, even if that should have fallen short of the harmonious relationship which we all strive for in a family context. Alas, even that bit of good fortune was beyond the McHughs.
5. The best which this Court can hope for now is that, irrespective of the decision which I am about to give, some measure of finality will be brought to these proceedings so that the parties involved can, at least in some respect, reposition this dispute and concentrate more fully on their lives and the lives of their loved ones, without the ever constant reminder of the underlying hurt which the further continuation of this case would inevitably perpetuate. Even though earnestly stated, I have no doubt but that the aggrieved party will still feel wronged and will find little comfort in what I have said. However, having accessed the legal process and having ended up before this particular Court, I hope that the expressed sentiments will not be entirely discarded. They apply with equal authority to the parties who will feel more satisfied with the outcome, but both Myles and Anthony McHugh should not forget that they too have played a significant role in this saga. There are, to use the awful phrase, no ultimate winners in this conflict.
A Bit More Detail:
6. In order to understand more fully the issues raised in this appeal, it is necessary to refer to the pleadings, and firstly to note that the date of the issue of the Plenary Summons was 4th March, 2004. For reasons not entirely clear, but fortunately not of real significance at this point in time, the exchange of documentation in this case certainly took a leisurely course, with the joint defence being delivered only on the 24th January, 2007. Ultimately, however, some movement of substance was achieved by the delivery of an amended defence and counterclaim on the 23rd March, 2011, which came about in circumstances which I will outline in a moment. First, however, reference must be made to the claim advanced on behalf of the plaintiff:
7. In the Statement of Claim the following reliefs were sought:-
(a) an Order directing that the purported Deed of Transfer by the said Rita McHugh, dated 5th February, 1990, of the lands in question to the first and second named defendants be set aside, revoked and cancelled;
(b) an Order providing that Probate in Solemn Form of the last Will and Testament of the said Rita McHugh, made on the 9th July, 1987, be granted to the plaintiff;
(c) a Declaration pursuant to the provisions of s. 117 of the Succession Act 1965 that the said Rita McHugh failed in her moral duty to make proper provision for the plaintiff in accordance with her means;
(d) a Declaration that the defendants are estopped from asserting title to the subject lands and a Declaration that they be regarded as holding such lands on trust for the plaintiff; in either event, a further Order was sought that such lands be conveyed to the plaintiff;
(e) an Order that the plaintiff is entitled to be registered as owner of the said lands “pursuant to the provisions of the Registration of Title Act 1964”.
Further consequential orders as would follow from the granting of any of these reliefs were also prayed for. Finally, damages were sought for the loss and damage, including special damages, allegedly suffered and sustained by the plaintiff, as well as interest thereon and the costs of these proceedings.
8. The Defence and Counterclaim in its original form was delivered on the 24th January, 2007. It did not contain any plea referable to statutory time bars, although it did raise as an issue the matter of delay based on common law/equitable principles. That was to change, however, which change had an important bearing on this case. Following the issue of a Notice of Motion to that effect, the High Court, by Order dated the 17th January, 2011, permitted the defendants to file an Amended Defence and Counterclaim. The significance of this was that for the first time the defendants decided to meet the claim by asserting statutory time barriers: they did so under the heading of “Preliminary Objections”. These were pleaded as follows:-
“Preliminary Objections:
(I) Save to the extent that these proceedings comprise a claim to prove the purported last will and testament of the late Margaret (otherwise Rita) McHugh (“the Deceased”), dated 9th July, 1987, they are not maintainable by the Plaintiff against the Defendants and ought to be struck out on the grounds that:-
(a) insofar as they comprise a claim made pursuant to sections 117 and/or 121 of the Succession Act, 1965, same are not maintainable as against the Defendants herein who are not the personal representatives of the Deceased;
(b) insofar as they comprise an application to set aside the transfer of 5th February, 1990, the Plaintiff is neither a party to the said transfer nor the personal representative of a party thereto and as such the plaintiff does not have locus standii (sic) to maintain such an application;
(c) insofar as they comprise a claim based on an alleged agreement made between the Deceased and the Plaintiff and/or representations or promises allegedly made by the Deceased to the Plaintiff and/or upon the alleged legitimate expectation on the part of the Plaintiff arising as a result of the Deceased’s conduct, same are not maintainable as against the Defendants, neither of whom are the personal representatives of the deceased; and
(d) insofar as they comprise a claim for damages, any claim for damages, even if valid (which is denied), is a claim against the estate of the deceased and is not maintainable against the Defendants herein.
(II)Insofar as the plaintiff seeks to set aside the aforesaid transfer of 5th February, 1990 pursuant to s. 121 of the Succession Act, 1965, such an application is not maintainable in respect of a disposition occurring in excess of three years prior to the death of the disponer and so is not maintainable in respect of the said transfer since the same was executed by the Deceased almost eight years prior to her death.”
9. Very shortly after filing this Amended Defence and Counterclaim, for which a further extension of time was required, the defendants, energised by the antecedent order of the 17th January, 2011, issued a motion dated the 9th June, 2011, in which they sought to have the plaintiff’s claim dismissed, save to the extent that Probate in Solemn Form of the last Will and Testament of the deceased was being claimed. They did so on the basis set out in that amending document. In addition, they sought, if appropriate, a Declaration that the purported will constitutes the only valid and duly executed will of their mother and they also looked for a default judgment in respect of the counterclaim. The application was moved on the grounding affidavit of their solicitor, Mr. John Murphy. With issue having being joined on the factual and evidential matters as averred to, the application came on for hearing before Murphy J. in November, 2011, who delivered his judgment in February, 2012. The resulting order, which was perfected on the 3rd May, 2012, dismissed the plaintiff’s claim, awarded full costs against him and granted judgment in default on the counterclaim (see para. 22 infra for full details). It was a complete victory, one might say, for the defendant brothers. It is against both the judgment and the Order that Gerard McHugh has appealed to this Court: he has done so on the several grounds set out in his Notice of Appeal dated the 18th May, 2012. This is my decision on such appeal.
Family Background: Assertion and Counter Assertion:
10. As pleaded, the plaintiff says that he was attending Athenry Agricultural College in or about 1974 when his father fell ill. He forwent his studies and at the time returned to work and live on the home farm in Tuam in order to support the family, as his father was no longer able to do so. As stated, he became owner or entitled to ownership of the lands contained in Folio 53169 of the Register of the Freeholders of the County of Galway on his father’s death. On many occasions throughout the years, the plaintiff’s mother represented to him that the lands in Folio 43217 F would fall to be his upon her death. He says that both parcels of land are contiguous and would obviously farm as a unit: the defendants deny this. In any event, the plaintiff claims that he relied on these statements of his mother and in so doing irretrievably altered his position and standing in life, all to his long term detriment.
11. By working as he did and where he did, the plaintiff was able to provide support for his mother, father and grandmother until each of their respective deaths. His mother became seriously incapacitated in and from 1988 onwards, with the plaintiff and his wife caring for her for the following two years. In September, 1990, Mrs. Rita McHugh was admitted to a nursing home and there she was to remain until her death on the 12th January, 1998. The plaintiff says that he discharged the entirety of the expenses associated with this care, whilst also considerably improving the lands the subject matter of this dispute.
12. Mrs. McHugh, as above noted, made a Will on the 9th July, 1987, devising all her property, including realty, to the plaintiff, who was also named as sole executor of her Estate. However, by Deed of Transfer dated the 5th February, 1990, the said testatrix purported to convey the said lands to the defendants, who were registered as owners in the Land Registry on 19th February, 1991. The plaintiff maintains that this Deed of Transfer was obtained by unlawful means, including the exercise of improper and undue influence and the application of inappropriate pressure on his mother by the defendants. He furthermore asserts that his mother was, at the date of the purported Deed, of unsound mind and was both physically and mentally incapable of resisting the pressure of which he speaks; in addition, she received no independent legal advice at the time, which, if she had, might well have seen a revocation clause being included, or at least might have ensured that adequate consideration was inserted at an appropriate value. Even more astonishing was the absence of any life interest or right of residence, despite her illness, or any right of maintenance and support. Whilst I do not have to explore these issues, given the view which I have taken of the case, it cannot but be acknowledged that in different circumstances these may well be worthy of serious and critical investigation.
13. Gerard McHugh goes on to say that the defendants did not make him aware of their purported ownership of the lands until after their mother’s death, sometime around May, 1998. From that time onwards, the defendants have wrongfully sought to exclude him from the use, enjoyment and ownership of the subject lands contained in Folio 43217 F of the relevant Register of the County of Galway. He has thus suffered serious loss and damage as a result.
14. The plaintiff also claims that in making the Deed of Transfer, his mother breached agreements, promises and representations made to him over the years, all to the effect that the lands would be his, thus acting in breach of trust and in breach of his legitimate expectation. A separate cause of action is also couched within the meaning of s. 117 of the Succession Act 1965, in which context he points out that each of the plaintiff’s two brothers were provided with a third level education by their parents, which enabled them to become established in substantive and remunerative occupations. Each of his two sisters was afforded the same support, even if for different reasons neither availed of it. In any event, this leads the plaintiff to say that, within the meaning of the said section, his mother therefore made proper, adequate and appropriate provision in accordance with her means for all of her other children, including in particular the defendants.
15. Finally, the plaintiff claims that it would be unjust, unconscionable and inequitable to allow the defendants to disregard the promises so made to him and to insist on their legal rights, if any, to the said lands. He states that the defendants hold the land in trust for him.
16. The defendants take issue with much of the detail as asserted by Mr. Gerard McHugh: they deny that he was ordered or requested to forgo his education in order to support the family on the farm; they in fact assert that he returned to the home place of his own volition. They also state that the plaintiff was adequately compensated for his work on the farm inter alia by obtaining ownership of the lands in Folio 53169 F, comprising 33.4 acres (para. 1 supra): this of itself constituted proper, adequate and appropriate provision for him under the Succession Act. They take issue with the alleged promises and representations and strongly claim that the plaintiff knew of their parents’ wishes, namely that the subject lands would pass to the defendants upon the survivor’s death.
17. The defendants continue their narrative by seriously disputing virtually all of the germane allegations made by their brother: it is unnecessary, however, to further impose on this judgment the manner in which this confrontation continues, as it does so in such a personal way as, for example, by questioning who, when and how often Mrs. McHugh was visited whilst in nursing home care. Only you, the family, know the full and true story. In any event, further elaboration of matters of similar disposition is legally unnecessary and, certainly from my point of view, ought to be strongly avoided.
The High Court Judgment:
18. The learned High Court judge took the view that, at the time of initiation of the action in 2004, the plaintiff, whilst nominated as the Estate’s executor in the Will of his mother, was not the legal personal representative of the deceased as no grant of probate had either been applied for or obtained at that time. This as a matter of law is unquestionably correct.
19. Insofar as he purported to make a claim against the Estate, the plaintiff was, according to Murphy J., precluded from doing so in his capacity as executor. Mr. McHugh could not suppose to prosecute, and in the same breath to defend a claim, both on behalf of and against the Estate. If he wished to pursue a cause of action, he should not have sought a grant, or if he had already obtained same he should renounce it, in which case an independent person would be required to extract a grant of representation with Will annexed so as to administer the Estate, and as part thereof to consider the merits of the claim made and if necessary to defend it. This applied to both applications made under ss. 117 and 121 of the Succession Act 1965, respectively.
20. The learned judge stated that it is clear from the provisions of s. 9(2)(b) of the Civil Liability Act 1961, as amended (“the 1961 Act”) that the relevant limitation period for maintaining a cause of action which has survived against the estate of a deceased person “is that which first expires, the period of two years after the date of death, or, at most, a twelve year period from the 5th February, 1990”, the transfer date. The court was satisfied that the plaintiff did not have standing to challenge the Deed of 5th February, 1990, and that the purported claims were not maintainable by reason of the efflux of time and in the face of the statutory period for the bringing of same. There had been undue and inordinate delay, and the reasons advanced to explain it could not excuse it.
21. The transfer was made in 1990 and registered in 1991. Rita McHugh died in January, 1998. Proceedings did not issue until more than six years later, on the 4th March, 2004. Furthermore, the plaintiff remained on the land for some time after his mother’s death. The Court was satisfied that such a delay was inexcusable in the circumstances. Even in light of the plaintiff’s submission that he was not aware of the defendants’ ownership of the lands until they sought possession shortly after his mother’s death, it was still a further six years before he took action. The Court was “satisfied that s. 9(2) of the Civil Liability Act 1961 precludes the plaintiff from making a claim after two years from the date of the death of the deceased.” Accordingly, the Court granted the defendants’ application and made the orders as next appearing.
High Court Order:
22. The High Court, in an Order dated the 28th February, 2012, and perfected on the 3rd May, 2012, ordered that the action be dismissed and that the plaintiff pay all costs, including reserved costs. The “lis pendens” registered on the lands in Folio 43217 F was vacated. The plaintiff was refused liberty to deliver a defence to the Counterclaim; judgment was entered against him in respect of that claim with damages to be assessed by a judge sitting alone. A stay on the High Court Order was refused. Further, although not so expressly stated, the learned judge in his judgment also effectively refused to allow the plaintiff to deliver an Amended Statement of Claim. In this regard, however, let it be immediately said that even if allowed the amendments would not, in the learned judge’s view, cure the inordinate and inexcusable delay point and, more specifically, could not overcome the statutory bar contained in s. 9(2) of the 1961 Act.
Notice of Appeal:
23. By Notice of Appeal dated the 18th May, 2012, the appellant indicated his intention of appealing to this Court against the judgment and Order of the High Court. The grounds relied upon are numerous, involving much repetition and duplication: rather than setting these out or even attempting to paraphrase them, I think that I do no injustice whatsoever to Gerard McHugh if I quote para. 8 of his affidavit sworn on 20th February, 2015; it reads:-
“The plaintiff contends and will contend at the hearing of the plaintiff’s motion and the hearing of the plaintiff’s appeal and any subsequent hearing in relation to this case, the following:-
(A) That the plaintiff is entitled to be considered the legal personal representative of his mother, the late Rita McHugh, and in March, 2004 to bring proceedings in this case.
(B) That the said “Deed of Transfer” dated 5th February, 1990, was a wholly improvident Deed and would likely be declared null and void and struck out by a court on a number of grounds, said grounds have been set out in the plaintiff’s submissions elsewhere.
(C) That the plaintiff’s case should not have been dismissed by Justice Murphy on the grounds that it is barred under the Statute of Limitations.
(D) That the plaintiff is not guilty of causing inordinate delay either in bringing his case against the defendants, Myles and Anthony McHugh, or in bringing said case to trial and that any such delay should not be deemed to be inexcusable, and
(E) That the Supreme Court is empowered under O. 58(8) of the Rules of the Superior Courts 1986, to allow the plaintiff adduce evidence as contained in the plaintiff’s documents index and not least in circumstances where there is such a clear dispute on facts.”
Notice of Motion:
24. On the 12th December, 2013, the appellant issued a motion, returnable before this Court, seeking permission to include in the Books of Appeal a collection of documents described as an “Exhibit Index”, so that the same might be referred to and used by him as part of his appeal. This application was grounded upon a supplemental affidavit in which, over almost 100 paragraphs (in fairness all very brief), he identifies each document, what in broad terms it covers and how, in his view, it is relevant to the appeal. As the respondents objected to the admission of virtually every such document, the court decided to adjourn further consideration of the application, to the appeal proper. Hence, that issue is also before this Court.
Submissions of the Appellant:
25. In his “Written Submissions for Permission to Appeal”, Gerard McHugh described the judgment of Murphy J. as being based on two grounds: a) that he was not the legal representative of the deceased at the time of bringing the proceedings in 2004; and b) that his case was outside the time allowed for bringing such action under the Statute of Limitations and further, that there was inordinate and inexcusable delay. He strongly challenged both of these conclusions.
26. The plaintiff in person presented his address on these issues and responded in a succinct and admirable manner to any engagement instigated by the court. He referred to s. 10(1) of the Succession Act 1965 (“the 1965 Act”), which provides that both the real and personal estate of a deceased person shall on his/her death, notwithstanding any testamentary disposition, devolve on and become vested in his/her personal representative(s). He said that an executor who carried out certain acts or functions in relation to an estate might be deemed to have accepted the office. His intention from the outset, he submitted, was to prove the Will and as the sole beneficiary he also had a particular interest in the prosecution of these proceedings.
27. Mr. McHugh also referred to McGlynn v. Gallagher [2007] IEHC 329, a case which he said touched upon the locus standi of a beneficiary to bring an administration suit. In that case the plaintiffs had extracted a grant of probate 18 months after the death of the deceased, having been nominated as executors in her last Will and Testament. Edwards J. dismissed the first named defendant’s appeal from a comprehensive order of the Circuit Court, which endeavoured to cover every aspect of that long running litigation. The plaintiffs had a grant of probate and the court was not entitled to look behind it. While the defendants were beneficiaries and the plaintiffs were not, the issue of the locus standi of such beneficiaries to seek a Grant simply did not arise in these circumstances.
28. The appellant submitted that the jurisdiction of the court to strike out or stay proceedings exists so as to ensure that an abuse of process does not take place. Barry v. Buckley [1981] I.R. 306, per Costello J. Thus proceedings will be stayed if they are frivolous or vexatious or if it is clear that the claim as advanced must fail. The other purpose of the jurisdiction is to ensure that litigants are not subjected to the time consuming, expensive and worrying process of being asked to defend a claim which is unstateable and which therefore cannot succeed. His claim, he submitted, did not fall into either of these categories.
29. Mr. McHugh conceded that his claim under s. 117 of the 1965 Act and his reliance on estoppel principles could not be asserted against the defendants/respondents. Nevertheless, the remainder of the cause of action was a serious and significant claim concerning the validity of the deed of transfer. Where a relationship giving rise to a presumption of undue influence is established, and where it is shown that a “substantial benefit” has been obtained, the onus lies on the donee(s) to prove that the gift or transaction in question resulted from the “free exercise of the donor’s will”. Carroll v. Carroll [1999] 4 I.R. 241 was cited as an authority for this proposition.
30. On the issue of delay it was also submitted that there could be no possible prejudice in allowing the case to proceed, as all of the key witnesses were available to give evidence.
Respondents’ Submissions:
31. The respondents identify the issues arising on this appeal as being “(a) whether the plaintiff should be permitted to maintain a claim to set aside the Transfer; (b) whether the plaintiff should be entitled to amend his Statement of Claim to include a plea of estoppel against the Defendants; and (c) whether the default judgment in respect of the Defendants’ counterclaim ought to be set aside.”
32. The respondents submit that the High Court Order as made by the learned trial judge constitutes a “final order” for the purposes of the Rules of the Superior Courts 1986. The Minister for Agriculture v. Alte Leipziger AG [2000] 4 IR 32 at pp. 44 and 50; Woods v. Woods (unrep.) 3rd April, 2003. Accordingly, leave to adduce any new evidence is required. They say that the appellant cannot satisfy two of the requirements for the admission of such evidence, being those identified in Lynagh v. Macken [1970] I.R. 180. Firstly, he has not explained why the evidence which he now seeks to adduce was not used in the High Court. Secondly, he has not sought to explain the influence which such documents might have on the result of case. It is not appropriate, they say, for the court to form its own view as to either of these matters: there must be evidence to meet the criteria which, in the respondents’ view, simply does not exist in this case.
33. In Keating on Probate (4th ed.), the author, having referred to Ingall v. Moran [1944] 1 K.B. 160 at para. 21-28, says:-
“It is well established that an executor can institute proceedings and maintain an action before probate of the testator’s will is obtained, but a grant will be necessary before the hearing of the action.”
34. In the present case, on no occasion from the time of death in 1998, through the issue of the Statement of Claim in 2004 and right up to 2011, did the appellant seek to sue or maintain a cause of action in his capacity as executor of the deceased: his only claim in this regard being limited to obtaining a Grant of Probate to the Estate of the deceased person. Mr. McHugh did not extract a Grant until 2011, some 13 years after the date of death and over 20 years subsequent to the Deed of Transfer. In the interim he had put forward claims under ss. 117 and 121 of the Succession Act 1965, as well as claiming promissory estoppel against the deceased; these claims were entirely inconsistent with the position of a legal personal representative.
35. The respondents submit that allegations based on the alleged breach of legitimate expectation and promissory estoppel were barred in law by the time of the institution of the within proceedings. Any claim which the plaintiff could now bring as executor would appear to be in equity, in which case the principle of laches, as well as those involving inordinate and inexcusable delay, would apply.
36. The respondents say that the appellant, in the institution and in the prosecution of these proceedings, has been guilty of inordinate and inexcusable delay and that his claim, on this ground alone, should be dismissed. It is said that the principles underlying such a rule are well established. Firstly, the court must determine that the delay has been both inordinate and inexcusable; the onus of establishing the same is on the party so alleging. Secondly, even where an inordinate and inexcusable delay is found to exist, the court must exercise a judgment on whether in its discretion the balance of justice is in favour of or against the continuation of the case. Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 at p. 567 (“Rainsford”); Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459.
37. The respondents address two specific issues in this context, both of which have been the subject of judicial discussion in recent years: firstly, the impact of the European Convention on Human Rights (ECHR) on applications to dismiss and, secondly, the extent to which a defendant’s inactivity is taken into account when addressing the balance of justice point. The former, i.e. the Convention, was looked at in cases such as Gilroy v. Flynn [2005] 1 ILRM 290, Stephens v. Paul Flynn Ltd [2008] 4 IR 31, Desmond v. M.G.N Ltd [2009] 1 IR 737, Rodenhuis and Verloop BV v. HDS Energy Ltd [2011] 1 IR 611 and Comcast International Holdings Inc v. Minister for Public Enterprise [2012] IESC 50 (“Comcast”). The respondents submit that despite a difference in judicial views as to whether the ECHR requires a “tightening up” of the test applicable to cases of delay, such that the courts should be less indulgent than previously, in practice the relevant principles remain unchanged.
38. As regards the role of alleged inactivity on behalf of a defendant as an ingredient to be considered when determining where the balance of justice lies (Rainsford), the respondents state that later decisions suggest that little weight should be given to this consideration. Anglo Irish Beef Processors v. Montgomery [2003] I.R. 510; De Braam Mineral Water Company Ltd v. BHP Exploration Inc [2011] IEHC 46. The respondents acknowledge the judgment of McKechnie J. in Comcast, where certain circumstances were identified which might result in a defendant’s inactivity being treated as a significant factor militating against granting an application to dismiss: however, it was forcibly argued that no such factors are present in the instant case.
39. The respondents say that, in light of facts of this case, the trial judge could not have come to any conclusion other than that there had been inordinate and inexcusable delay in the commencement of these proceedings given that they had issued in March 2004, almost six years after the plaintiff had become aware of the Transfer and had been evicted from the lands. Furthermore, they state that Mr. McHugh then failed to progress the proceedings to the point where the pleadings were closed and the issues were properly defined for a further period of seven years. Thus, the High Court was justified in concluding that there had been inordinate and inexcusable delay in prosecuting the claim. The respondents further assert that a trial which was concerned with factual issues which occurred over twenty years ago could not be fair. They submit that the Court should also have due regard for the value of the subject land and that the continuation of the present litigation would be disproportionate to that value.
40. The respondents further submit that the High Court was correct in dismissing all other aspects of the appellant’s claim, a situation which in effect he himself has acknowledged by indicating that the only cause of action with which he now wishes to proceed is the challenge to the Deed of Transfer.
41. As regards the Counterclaim, they say that in the absence of a reply and defence thereto, the High Court was entitled to grant judgment in such circumstances and that the order so declaring should stand. Any issues in relation to quantum can be addressed in the context of the hearing to assess damages.
42. The respondents’ answer to the motion which had been issued (para. 24 supra) is to say that the proposed amendments to the Statement of Claim, even if allowed, could not have saved the claim from being dismissed by the court in the exercise of its inherent jurisdiction and as such the court was correct to refuse the relief prayed for in that motion.
43. By a supplemental legal submission, the respondents addressed the level of review that this Court should engage in when considering an appeal against a discretionary Order of a High Court Judge. They say that the Court should not interfere with such an Order provided that, as in this case, it is within the limits of the trial judge’s reasonable discretion.
Decision:
44. The jurisdiction to terminate an action without a due merits consideration of the issues involved is one which produces a truncated form of justice and is one, even if very well established, which is inherently capable of creating an unforeseen injustice, unless the many safeguards which a series of cases have established are clearly understood and correctly applied, with a generous measure of scepticism to the fore. However, where the required searching type analysis is properly carried out, there is no doubt but that both under the Rules of the Superior Courts and by its inherent jurisdiction, a court not only has the competence but also is duty bound to strike out a case at that point in the proceedings, if justified in so doing. An unsuccessful claimant can have no justifiable grievance at such a course, as a respondent also has an equal right to justice and should not be forced to continue meeting a claim which, within established parameters, is, for example, bound to fail. Classically, this doctrine most appropriately fits situations where the facts (both primary and secondary), their meaning, and any inference(s) that may be relied upon are not disputed and are positioned in the context of particular statutory provisions, such as, for example, limitation periods. This is one such type case. Accordingly, if the learned trial judge on the limitation issue correctly applied the relevant provisions of either the Civil Liability Act 1961 and/or the Statute of Limitations 1957 to the undisputed facts, taking the appellant’s version at its highest, then he would have been justified in law in dismissing the action.
45. At the outset, it is important to note that on an application such as this the Court does not involve itself in an exercise of adjudicating on disputed issues of fact, or of resolving rival contentions made by or on behalf of the respective parties. It proceeds on the basis of taking the claim as made “at its high watermark”, and as assuming that the factual context pleaded, unless demonstrably wrong or self-evidently incredulous, is correct. This particular approach is required by law and should not be taken as being in any way equivalent to a judgment following a full trial, wherein the judge sets out his findings and prefers or accepts one version of the story as against and above another version. Therefore, in the context of this case the conflicting accounts, whilst noted, are not to be regarded as having been resolved. In fact, they are not, as it is not necessary to do so in order to apply the principles of law above set out. It is on such basis that this appeal is being determined.
46. Given this approach it is not necessary to deal with the Notice of Motion issued by the appellant in which he seeks to have admitted, for the purposes of this application, the “Exhibit Index” so referred to. Whilst I note that he has assembled what appears to be an impressive array of affidavits from different individuals, which to some greater or lesser degree support his case, nonetheless their consideration is not necessary for the reasons given. This equally applies to the medico-legal report of Dr. John A. Waldron, dated 9th July, 2003, to the admission and discharge records from Merlin Park Hospital for the period October 1978 to March 1991, and to a report dated 5th September, 1990, signed by the Registrar to Dr. O’Loughlin from the Mater Hospital, all of which relate to the medical condition and prognosis of his mother. In other circumstances and in a different context, the same could be highly material, but for present purposes cannot be so regarded.
47. Many issues have been canvassed on the documentation, a number of which have been referred to in the High Court judgment. The submissions, in as helpful a way as possible, have addressed these points. However, having given careful consideration to this matter, both in a narrow but also in a wider sense, I have come to the conclusion that the application can and, given the context of the dispute, as a matter of the utmost prudence and necessity, must be resolved by way of a simple issue. That relates to the asserted time bar contained in the Civil Liability Act 1961 (“the 1961 Act”) and perhaps far more pertinently in the Statute of Limitations 1957 (“the 1957 Act”).
48. This means that in addition to the “Exhibit Index” not being essential, the merits of the underlying case, as such, are not highly material. The only factors of real note are the events referred to in the earlier part of this judgment, coupled with an acknowledgement by Mr. Gerard McHugh that he/his solicitors obtained a copy of the relevant Folio No. 43217 F, in February, 1998. That folio, without doubt, showed both respondents as being full owners of one undivided half share each of the subject lands, having been registered as such on the 19th February, 1991. The referenced delay or the reasons therefor in the appellant obtaining a copy of the Deed of Transfer are not material to the question of knowledge regarding the ownership of these lands, if that issue had still been relevant. Since 1991, the respondents have been named on the relevant folio. The fact that their mother was never registered as such, and that the registered owner immediately preceding the entry of Myles and Anthony McHugh was their grandmother, is perfectly explainable as a matter of routine conveyancing practice. Once the folio was obtainable – and certainly once obtained – it was clear ex facie who the registered owners were.
49. It seems rather obvious, given the absence of any caveat being lodged, that there may have been no justification for the appellant in his Statement of Claim seeking an order granting him liberty to apply for a Grant of Probate: the continuation of that plea, however, was entirely justified in light of the allegation pleaded in the defence, namely that the said Will of the deceased had been procured by undue influence and by the improper exercise of pressure by the appellant on his mother. Whilst that plea was formally withdrawn in 2011, I am entirely satisfied that there was never any factual or sustainable basis for its making in the first instance, and that it was a highly inappropriate plea to have ever been included in the defence.
50. In this context, I accept that the Mr. McHugh at all times intended to obtain a Grant of Probate but that he was not advised at the earliest possible time that he should have taken steps to apply for such a grant. Therefore, his delay in so doing cannot be attributed to any inconsistent stance being adopted or ulterior motive being pursued by him: the simple explanation being that as given.
51. Lest by the approach which I have adopted I should be taken as in any way agreeing that the judge’s findings on the issue of non-statutory delay were correct, I should say this on the point. Whilst I agree that the delay was inordinate, I would if anything be of the view that it may in fact be capable of being excused: even if not, I would be inclined to think that on the balance of justice the case should not have been terminated on such basis. An important consideration in this regard was the fact that the respondents did not move to amend their defence, in such a crucial manner, until early 2011, almost four years after filing that document in its original form. There are other factors which in my view would also tend against granting the application on such basis. However, as I have said, a conclusive view on this issue is not necessary.
52. There is a further matter that ought to be addressed. It was entirely surprising to find on a motion, the essence of which was to have the plaintiff’s claim dismissed on the basis of being bound to fail, that the learned trial judge also gave judgment on the Counterclaim. This was remarkable for many reasons, including the correspondence which had passed between the plaintiff’s then solicitors, Scarry O’Connor, and the solicitors representing the defendants, Murphy Ballantyne. On the 21st April, 2011, the latter issued a twenty one day warning letter seeking a reply to the Counterclaim. On the 3rd May, 2011, Messrs. Scarry O’Connor indicated their intention to come on record and sought a letter of consent to the late filing of a reply to the amended defence and counterclaim. Without apparently any further correspondence the motion issued and, even more surprisingly, the Counterclaim was dealt with by the trial judge in the manner indicated. Irrespective of whatever outcome this appeal should otherwise have, I would be strongly of the view that it was inappropriate to proceed in this manner, and that in respect of a claim where the special damages, as of March 2011, were said to be almost €60,000.00 and continuing, to have given a judgment in this context, without directing a hearing in the normal way, could not be justified. In fact, I do not understand counsel for the respondents to now dispute this proposition.
53. This issue, however, is no longer one of real agitation. In the course of hearing this appeal, there were exchanges between counsel representing the defendants/respondents and the court regarding the Counterclaim. Therefrom I am taking the situation to be that in the event of the respondents being successful and that the appellant’s claim cannot go further, then it would not be his clients’ intention to proceed with the Counterclaim. Whilst I appreciate that only one of his clients was in court, nonetheless, that, so far as I am concerned, was the stated position when this discussion had been finalised.
54. Under s. 71 of the 1957 Act, it is provided that where a cause of action is based on the fraud of the defendant or his agent, or that the right of action is concealed by the fraud of any such person(s), then the appropriate limitation period shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have so discovered it. Somewhere amidst the evidence or submissions or arguments made in this case, there lingers a suggestion that the respondents, as a matter of law, may have enabled the appellant, by their actions, to rely on these provisions. I am perfectly satisfied that this is not the case. As stated on more than one occasion previously, the respondents were registered within a relatively short time of the Deed of Transfer having been executed. Thus, that information had been available for almost seven years before the death of Mrs. Rita McHugh. In such circumstances, whilst the appellant may well feel aggrieved at a moral, social or relationship level that he had not been specifically told of the transfer, nonetheless such cannot be said to create a sustainable ground upon which the provisions of s. 71 may be invoked.
55. The provisions of s. 72 of the 1957 Act, which deals with the commencement of the limitation period where “mistake” is in issue, do not arise for consideration on the facts of this case.
56. Although the discussion travelled far and wide as to what at this point in time the appellant’s real case is, I think that the answer can again be found in an affidavit sworn by him on 20th February, 2015 where, at para. 13, he says:-
“I say and believe and am so advised that the central and core issue of the plaintiff relates to the validity of the said Deed of Transfer and that the plaintiff accepts that he cannot make any case under s. 117 of the Succession Act as against the defendants herein and likewise that it is not appropriate to raise a case on estoppel or legitimate expectation against these defendants.”
One can also recite the following in support, from an affidavit sworn by his solicitor, Michelle Scarry, on 28th October, 2011:-
“4. I say that the core of the Plaintiff’s claim is that he, as executor of his late mother’s estate, under her last Will and Testament made on the 9th July 1987, wishes to proceed with his claim to challenge the validity of a Deed subsequently entered into by his deceased mother and made on the 5th February 1990.
13. I say and believe and am so advised that the central and core issue of the Plaintiff relates to the validity of the said Deed of Transfer and that the Plaintiff accepts that he cannot make any case under s. 17 of the Succession Act as against the Defendants herein and likewise that it is not appropriate to raise a case on estoppel or legitimate expectation against those Defendants.”
57. It is thus clear that the legal challenge is no longer one under the provisions of s. 117 of the 1965 Act, or one based on estoppel or legitimate expectation. One can also add in s. 121 of the 1965 Act, as well as pointing out that the inconsistent claim to adverse possession under s. 49 of the Registration of Title Act 1964, though advanced by Mr. McHugh in his affidavit of 9th July, 1998, is likewise not being pursued. Therefore, his claim is directly based and solely focused on having the Deed of Transfer invalidated, on whatever ground.
58. In that context there are two statutory provisions which must be referred to: the first is s. 9 of the Civil Liability Act 1961, which in its material wording reads as follows:-
“9 – (1) In this section “the relevant period” means the period of limitation prescribed by the Statute of Limitations or any limitation enactment.
(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either –
(a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or
(b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.
59. Section 13 of the 1957 Act is the other provision; subs (2) reads:-
“13 – (2) The following provision shall apply to an action by a person (other than a state authority) to recover land –
(a) subject to subpara. (b) of the subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it…
(b) …”
An “action to recover land” is defined in s. 2 of the 1957 Act as including “(a) an action claiming a declaration of title to land …”.
60. References to other potential sections of either the 1957 Act or the 1961 Act do not add anything further to this discussion. Therefore, the provisions of ss. 14, 18 and 46 of the 1957 Act will not be addressed, and neither will s. 7 of the 1961 Act. In addition, I cannot see how, even if he was not bound by the six year period therein provided for, he could hope to invoke s. 45 of the 1957 Act as substituted by s. 126 of the 1965 Act. The decision of the Supreme Court in Gleeson v. Feehan (No 1) [1991] I.L.R.M. 783 confirmed the obiter dictum of McMahon J. in Drohan v. Drohan [1981] I.L.R.M. 473 to the effect that s. 45 of the 1957 Act does not apply to actions brought by a personal representative to recover land from someone in possession thereof. In such circumstances, the twelve year limitation period laid down in s. 13(2) of the 1957 Act applies.
61. At the date of the institution of these proceedings the plaintiff had not obtained a Grant of Probate and his attempted reliance on the provisions of s. 10 of the 1965 Act, as in essence having the same effect as a Grant, is misplaced. It is therefore likely that he was acting in a personal capacity in making and pursuing these claims. I say “likely” because there is the possibility that, in certain circumstances, he could come within the principles as described by Keating at para. 33 above. Indeed, as a matter of fact he did have a Grant when the respondents’ motion came on for hearing before the High Court in November, 2011.
62. However, when one looks at the underlying reality it will be utterly clear that Mr. McHugh’s ambition was to obtain ownership of the subject lands. Obviously he could not do so unless the registered owners, i.e. his brothers, were named as defendants in any such proceedings which he might issue. As these lands were not part of the Estate of the deceased at the date of her death, it is impossible to see any point in suing the Estate, even if all of the other infirmities above described had been resolved. Certainly without the Deed of Transfer being set aside and for so long as that remained the position, the lands simply stood outside the Estate and thus no possible benefit could be obtained by the plaintiff in suing the Estate, given his intended purpose. Therefore, I cannot agree that it can be said that the instant cause of action was one which fell within the provisions of s. 9 of the 1961 Act. Consequently, it has to follow that the within proceedings could not be statute barred by virtue of these provisions.
63. In my view, however, the correct way of assessing and thus of approaching this case is to consider that the proceedings had been instituted in the plaintiff’s personal capacity, with the intention of recovering the lands in question for his sole use and benefit. Therefore, the most pertinent statutory provision must be s. 13 of the 1957 Act.
64. It will be recalled that the Deed of Transfer was dated the 5th February, 1990, and that the respondents became the registered owners on the relevant Folio as of the 19th February, 1991. Therefore, any such action for the intended purpose, even if properly formulated, would have to be instituted within twelve years from the date when the right of action accrued. Given that the Plenary Summons did not issue until the 4th March, 2004, it obviously follows that such proceedings were out of time in respect of the cause of action so construed. As there is no applicable provision by which the period may be extended, that statutory barrier of itself has the effect of preventing the appellant from continuing with the claim as so framed.
65. Even if, however, I should be incorrect in this regard, and that it could be said that the appellant was acting in either an executor capacity or some capacity equivalent or analogous to that, then quite evidently he could not as a matter of law act in effect as prosecutor and defender in the same cause of action. Furthermore, and again notwithstanding what I have said, if the claim, despite the most unconventional and not altogether clearly understood manner of how it is pleaded, is to be regarded as one against the estate of the deceased person, then under the provisions of s. 9(2) of the 1961 Act, it is self evident that the same would be statute barred.
66. Therefore, whichever way one approaches this case, it seems to me that as a matter of a statutory limitation, which cannot be extended, these proceedings are bound to fail. Accordingly, for these reasons I would dismiss the appeal.
Gunning v Sherry
[2015] IESC 76
The parties
1. The appellant on this appeal (Ms. Gunning) was the plaintiff in plenary proceedings which were initiated in the High Court on 8th November, 2010 (Record No. 2010/10220P). The respondent on the appeal and the defendant in the High Court proceedings is named as “Brian Sherry Solicitors”. Brian Sherry (the Personal Representative) is a solicitor. In the circumstances outlined later, he became, and is, the Personal Representative of James Gunning (the Testator), Ms. Gunning’s late father. In an affidavit sworn by him on 18th February, 2011, which grounded the application which is the subject of this appeal, he pointed out that the proceedings as brought against him are silent as to the capacity in which he is sued. He further averred that his only association with Ms. Gunning has been in his capacity as Personal Representative of the Testator. The only conclusion which can be drawn from Ms. Gunning’s participation in the High Court proceedings and, in particular, in the application which is the subject of this appeal, is that the Personal Representative was being sued in that capacity.
Background to the proceedings in outline
2. By his will dated 25th June, 1982 the Testator appointed Ms. Gunning to be executrix thereof. The effect of his will was that he devised a half interest in all his property, both real and personal, to his widow, Sarah Gunning (the Widow), and the remaining half interest to his daughters, Ms. Gunning and her sister, Mary Gunning. The Testator died on 10th October, 1984. A grant of probate of the said will issued to Ms. Gunning, as executrix named in the will, on 3rd September, 1985.
3. The asset of the Testator which became the subject of contention between Ms. Gunning and the Widow around the year 2000 was a dwelling house standing on in excess of three quarters of an acre at Blacklion, Greystones, County Wicklow, which was, and is, known as Chrysanthemum Cottage (the Cottage). At the time of his death the Testator held the Cottage under a lease dated 9th January, 1936 (the Lease) made between Isabel Jane Orpen and Florinda Kingdon Ward (both with addresses in the United Kingdom) of the one part and Patrick Gunning of the other part, which created a term of fifty years from the 1st day of November, 1935 at the yearly rent of £5. Patrick Gunning was the father of the Testator and the Testator succeeded him as lessee under the Lease. Accordingly, the term of the Lease expired just in excess of a year after the death of the Testator. Notwithstanding that, the Widow continued in possession of, and to reside in, the Cottage. Ms. Gunning, who had been living abroad for some years, returned with her daughter to live in the Cottage around 1991.
4. From late 1985 onwards, obviously the title of the Testator’s estate to the Cottage was anything but satisfactory. It appears from the documentation furnished to this Court that an attempt had been made by the Testator to acquire the fee simple under the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 (the Act of 1978) in or around 1980. However, that application was not successful. In 1998 an application was made to the Land Registry in the name of the Widow and Ms. Gunning to be registered as owners of the Cottage. The basis of that application was that the applicants had acquired a possessory title by adverse possession against the freehold owner, whoever the freehold owner was. That application (reference D98KW10103P) was eventually treated as abandoned in May 2000, when the Widow’s solicitors, Ferrys, lodged an application in the name of the Widow claiming to be sole full owner of the Cottage on the basis of adverse possession. That application (reference D00KW06927Y) was subsequently treated by the Land Registry as having been abandoned in June 2001, when, despite reminders, the Land Registry did not get a response from Ferrys in relation to rulings issued.
5. In 2001 the Widow adopted a different approach to get possession of the Cottage from Ms. Gunning. She instituted ejectment proceedings on the title (Record No. 154/01) in the Circuit Court, County Wicklow, on 5th March, 2001 claiming that she was in sole and exclusive occupation and possession of the Cottage until around 1990 when, at her invitation, Ms. Gunning and her daughter had moved into the Cottage under licence from, and with the permission of, the Widow. The outcome of those proceedings was an order made in the Circuit Court by His Honour Judge O’Hagan on 29th July, 2002 in which he ordered that the Widow had acquired no claim by adverse possession and dismissed her claim.
6. The next step the Widow took was to institute proceedings in the High Court by special summons (Record No. 2003/122SP) in 2003 against Ms. Gunning (named as Eileen Gunning Hameed) as defendant, invoking s. 26(2) of the Succession Act 1965 (the Act of 1965) to have the grant of probate of the will of the Testator to Ms. Gunning revoked and to have an order granting administration of the estate of the Testator to the Personal Representative made under s. 27(4) of the Act of 1965. The special summons proceedings were heard in the High Court by Smyth J., who delivered judgment on 31st July, 2003. One of the matters adverted to in that judgment was that there was no evidence before the Court that the Widow had ever been given or served with notice under s. 56(1) of the Act of 1965 informing her of her right to have the Cottage appropriated to her in satisfaction of her share of the estate of the Testator. Further, Smyth J. stated in his judgment that the plaintiff had not “observed her duties as a trustee”. In that regard, he was referring to s. 10(3) of the Act of 1965, which provides that a personal representative shall hold the estate of the deceased person as trustee for the persons by law entitled thereto. That finding was based on the facts recorded earlier by Smyth J. in which he stated that the evidence established that Ms. Gunning, unknown to the Widow and undisclosed to His Honour Judge O’Hagan in the Circuit Court, had set in train a line of inquiry as to the successors in title to the owners of the freehold in the premises and had sought to acquire the freehold for her own benefit and to be registered as sole owner of the premises in the Land Registry. Smyth J. concluded his judgment as follows:
“In the instant case [Ms. Gunning’s] intention to have herself registered as owner of the premises is in complete conflict with her role as executrix. In my judgment it is a very necessary and serious step to take to remove [Ms. Gunning] from her role – but on the evidence I am satisfied that it must be done. It is the only way in which this matter can be dealt with properly and impartially.
Accordingly, [Ms. Gunning] will cease to be as and from this judgment as executrix to the estate of the [Testator]; the Court hereby recalls and cancels the grant of probate of 3rd September, 1985 handed in to Court during the course of the hearing; and pursuant to s. 27(4) of the [Act of 1965] appoints Brian Sherry, solicitor . . . to be the administrator of the estate of the [Testator].”
7. The order of the High Court made pursuant to the judgment of Smyth J. was dated 31st July, 2003. Two components of the curial part of the order are relevant for present purposes. First, an order was made pursuant to s. 26(2) of the Act of 1965 removing Ms. Gunning as executrix of the will of the Testator. The second was that an order was made pursuant to s. 27(4) of the Act of 1965 that letters of administration of the estate of the Testator be granted to the Personal Representative. It is appropriate to record at this juncture that s. 26(2) of the Act of 1965 provides that the High Court shall have power to revoke, cancel or recall any grant of probate. While the effect of s. 26(2) was not set out in the order in the terms provided in the sub-section, clearly the intention in the order was to give effect to the statement in the judgment recalling and cancelling the grant of probate of 3rd September, 1985 which had issued to Ms. Gunning.
8. Pursuant to the order of the Court dated 31st July, 2003, on 25th April, 2006 letters of administration with the will of the Testator annexed issued from the Probate Office to the Personal Representative as the person appointed by the Court pursuant to s. 27(4) of the Act of 1965. That grant of letters of administration was expressed to be made by order of the Court dated 31st July, 2003. Further, it was noted on the order as follows:
“The Grant of Probate which issued from the Probate Office on 3rd September, 1985 having been Revoked by Order of the Court dated 31st July 2003.”
9. The time gap in the Personal Representative extracting the letters of administration was in part attributable to the fact that Ms. Gunning had appealed against the order of the High Court dated 31st July, 2003. An order of this Court made on 18th June, 2004 on a motion on the part of the Widow for an order striking out Ms. Gunning’s appeal for want of prosecution discloses what happened. It is recorded in the order that Ms. Gunning informed the Court that it was her intention to withdraw the appeal, which brought the appeal to an end. Accordingly, the judgment and order of Smyth J. are the final determinations on the issues thereby dealt with.
10. The Widow died on 4th April, 2005. There is attached to the written submissions filed by Ms. Gunning a copy of the grant of probate of the last will of the Widow which issued on 21st November, 2005 to Deborah Crowley and Padraic Ferry, both solicitors, the executors named in the said will. In that will, which was dated 24th September, 2004, the Widow specifically devised her interest or share in the Cottage to her daughter, Mary Gunning, for her own use and benefit absolutely. She devised and bequeathed the residue of her estate as to one half share to her daughter Mary Gunning and as to a quarter share to a grandson and as to the remaining quarter share to her granddaughter, Ms. Gunning’s daughter. The only relevance of the probate and will of the Widow for present purposes is that it points to the ultimate destination of her share in the Cottage and of her estate in general.
11. Before outlining the proceedings taken by the Personal Representative against Ms. Gunning after the grant of letters of administration issued to him, I propose returning to the reference made in the judgment of Smyth J. to Ms. Gunning having set in train a line of inquiry as to the successors in title to the owners of the freehold in the Cottage and having sought to acquire the freehold for her own benefit and to be registered as sole owner of the Cottage and lands in the Land Registry. On the hearing of the appeal, Ms. Gunning attached particular significance to two documents she handed in to this Court. One was an application form for a vesting by consent under the Act of 1978 (Form A) filed by her in the Land Registry on 15th October, 2002. In that Form A application, Ms. Gunning applied to have the fee simple vested in her on the basis that she had obtained the consent of the freehold owner. The second document was the consent form under the Act of 1978 (Form C). It named Pleione Tooley, with an address in the United Kingdom, as the owner of the fee simple. It also disclosed that the agreed purchase price for the fee simple in the Cottage was stated to be “£85.00 = €137.05” and receipt of £85 was acknowledged. The form was signed by “P. Tooley”. In the second schedule to the Form C the particulars of the interest of Pleione Tooley were stated as follows:
“I am the elder daughter of Florinda Kingdon Ward (nee Norman Thompson) and I believe Jane Orpen may have been her mother.”
12. The line taken by Ms. Gunning, both in the High Court and on the appeal, was that she had a superior title in the Cottage, that is to say, superior to the interest of the Personal Representative. In her written submissions she stated that she bought out the fee simple or ground rent in September 2002, eighteen years after the Testator’s death. One of the Land Registry applications referred to in the last paragraph of her written submissions is an application designated 02GR00968, which I assume is the application to which the Form A and the Form C referred to above apply. It is by no means clear what the outcome of the application was. However, on the copy of the Form A before the Court there appears the notation “W/D 20/8/03”, which suggests to me that it was treated as withdrawn by the Land Registry, following the order made by Smyth J. in 2003. In any event, there is no evidence that a vesting certificate was ever issued by the Land Registry in favour of Ms. Gunning. Indeed, it would not be surprising that none issued, apart altogether from the intervention of the High Court proceedings. There is nothing to show that the fee simple interest was vested in the lessors in the Lease, nor is there anything to prove that the title of the lessors, whatever interest they had, devolved to Pleione Tooley.
13. In February 2007 the Personal Representative brought proceedings against Ms. Gunning in the Circuit Court in County Wicklow on foot of an equity civil bill (Record No. 105/07(E)) claiming possession of the Cottage. The matter was heard in the Circuit Court by His Honour Judge White, who made the following orders on 4th November, 2008:
(a) that Ms. Gunning and all persons having notice of the order deliver possession of the Cottage forthwith to the Personal Representative; and
(b) that Ms. Gunning deliver to the Personal Representative all title documents in her possession relating to the Cottage and also what was referred to as “a Deed of Consent from the Land Registry to the vesting of the Fee Simple executed in or around 2001 by Pleione Tooley”.
I presume that the reference to “a Deed of Consent” is the reference to the consent form (Form C) signed by Ms. Tooley. There is nothing in the papers before this Court to suggest that the Land Registry acted on foot of the consent form. Indeed, as outlined earlier, the impression I get is that it did not.
14. The decision of Judge White was appealed to the High Court. The appeal was heard by Murphy J. on 26th February, 2009. He ordered that the order of the Circuit Court dated 4th November, 2008 be affirmed. That was the end of the road as regards the Personal Representative’s claim for possession of the Cottage against Ms. Gunning. The order of the High Court, being an order on an appeal from the Circuit Court, was a final order.
15. Subsequently, an execution order issued from the Circuit Court in favour of the Personal Representative on 7th October, 2009. Eventually on 1st October, 2010 the Personal Representative attended at the Cottage with the Sheriff for the purpose of executing the order. Some time later, Ms. Gunning, in the company of her daughter, vacated the Cottage. Unfortunately, having subsequently broken back into the Cottage, Ms. Gunning was committed for contempt of Court to Dóchas Women’s Prison in Dublin. However, this Court is not concerned with the course of the proceedings by the Personal Representative against Ms. Gunning in the Circuit Court in County Wicklow subsequent to the initiation of the proceedings in the High Court the subject of this appeal.
16. Nonetheless, before considering those proceedings, it is appropriate to record that in the proceedings in the Circuit Court before His Honour Judge O’Hagan, in the proceedings in the High Court before Smyth J., in the proceedings in the Circuit Court before His Honour Judge White, and in the proceedings on the appeal from the Circuit Court to the High Court before Murphy J., Ms. Gunning was not legally represented. Moreover, she has not been legally represented in the proceedings the subject of this appeal, either in the High Court or on the appeal. Ms. Gunning would undoubtedly have benefited from professional legal advice from the late 1990s onwards, particularly as regards the complex legal issues in relation to the title to the Cottage.
The proceedings in the High Court
17. As stated above, the plenary summons issued on 8th November, 2010. To recapitulate, it is assumed that the Personal Representative is sued in his capacity as Personal Representative of the Testator. In the general endorsement of claim on the plenary summons Ms. Gunning (at paras. 8, 9 and 10) sought the following reliefs:
(a) an order for the return of the keys of her home, [the Cottage], without further delay;
(b) an order preventing the Personal Representative, and other named parties who are not before the Court, from interfering with her home and property and causing her and her family any further mental distress and torture; and
(c) damages for stress, torture, damage to her home, furniture and valuables from dampness over an extended period since her illegal eviction together with damage to her health, welfare and reputation and that of her daughter, Fatima.
18. The wrongdoing which Ms. Gunning alleged gave rise to her entitlement to such relief was set out in paras. 1 to 7 inclusive of the general endorsement of claim. In order to identify the foundation of Ms. Gunning’s claim, it is convenient to summarise those paragraphs, in which the following wrongdoing is alleged:
(i) abuse of privilege and power to steal and dispossess Ms. Gunning of her family home, the Cottage;
(ii) colluding with others to cover up the facts to steal her home and property on false and fraudulent documentation;
(iii) colluding with others to destroy, deface and conceal the fact that her home and property “was very valuable in a sought after area of Greystones, County Wicklow”;
(iv) the denial to her of her legal and lawful inheritance contrary to the Act of 1965;
(v) concealing vital evidence from the courts, the Land Registry offices and the County Council Planning Section and An Bord Pleanála;
(vi) filing false and fraudulent documentation in the Probate Office to mislead and deny Ms. Gunning her legal and lawful inheritance;
(vii) collusion with others to obtain a false and fraudulent court order for an illegal and unlawful eviction from her family home, the Cottage; and
(viii) mental torture and massive abuse of her eighty year old mother and interference with her sister, Mary Gunning, “in the use of the age old method of Divide and Conquer to destroy our Family to make belief that we were the authors of our own misfortune”.
In relation to the allegations at (viii), it is appropriate to recall that the Personal Representative’s entitlement to apply for a grant of letters of administration to the estate of the Testator derives from the judgment and order of the High Court (Smyth J.) in proceedings at the suit of the Widow made on 31st July, 2003 and his actual authority derives from the grant of letters of administration with the will of the Testator annexed, which issued to him after the death of the Widow. As those allegations at (viii) have not been advanced either by the personal representatives of the Widow or by Mary Gunning, none of whom are before the Court, it is unnecessary, and it would not be appropriate, to consider them further.
The application the subject of the appeal
19. Following delivery of Ms. Gunning’s statement of claim, but before delivering a defence, the Personal Representative brought an application to the High Court on 21st February, 2011 seeking the following orders:
(a) an order pursuant to Order 19, rule 28 of the Rules of the Superior Courts (the Rules) dismissing the plaintiff’s claim on the grounds that it discloses no reasonable cause of action and is frivolous and vexatious;
(b) an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff’s claim as an abuse of process; and
(c) an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff’s claim on the grounds that it is an attempt to re-litigate a case that was decided by the Circuit Court and the High Court and is, accordingly, res judicata.
The applicant also sought an Isaac Wunder order prohibiting the plaintiff from issuing proceedings against the Personal Representative without leave of the Court. As recorded earlier, the application was grounded on the affidavit of the Personal Representative sworn on 18th February, 2011.
20. It is necessary to consider the process of the application through the High Court in detail. Fortunately, there are before this Court transcripts of the DAR recordings of the proceedings in the High Court. I have read and carefully considered the content of each transcript.
21. The matter first came on for hearing in the High Court before Hogan J. (the trial judge), on 16th May, 2011. There was also a motion by Ms. Gunning for discovery before the High Court on the same day. However, the trial judge took the view that it was logical to address the Personal Representative’s motion first. In my view, that was undoubtedly a sensible approach. In relation to the Personal Representative’s application, in broad terms, the response of Ms. Gunning was grounded on two propositions: that she was claiming absolute title to the Cottage; and that the earlier decisions of the Circuit Court and the High Court had been procured by fraud. After exploring those propositions with Ms. Gunning, the trial judge, having made it clear that the previous orders of the High Court were prima facie binding on him, indicated that he would give Ms. Gunning an opportunity to adduce clear evidence that the previous decisions were procured by fraud. Ms. Gunning was also to have an opportunity to demonstrate that she had, in fact, got a superior title to the Cottage than the Personal Representative had. In the circumstances the Judge adjourned the application to 27th June, 2011, having directed Ms. Gunning that any documents she wished to rely on should be served on the Personal Representative on or before 20th June, 2011. That decision was the subject of an order of the Court perfected on that day.
22. When the matter was back before the trial judge on 27th June, 2011, Ms. Gunning was still persisting in her argument that she had a superior title to the Personal Representative to the Cottage, but she had not produced any concrete evidence of that. Moreover, she was still persisting in her contention that the previous orders of the High Court had been procured by fraud, but, again, she had not produced any satisfactory evidence to that effect. In the course of hearing her submissions, the trial judge stated that he was minded to put the matter in for a full viva voce hearing and he made it clear that, given the existence of a previous High Court order (i.e. the order of Murphy J. on the appeal from the Circuit Court), he had no jurisdiction unless she could show that it was obtained by fraud. Later, the trial judge made it clear to Ms. Gunning that he was giving her the opportunity to establish fraud and also to establish that she had a superior title. In relation to the latter aspect of the matter he made it clear that she would have to get an opinion showing that she had a superior title either from a solicitor or a conveyancing counsel. On that basis, the matter was adjourned for hearing to 26th July, 2011. The matter did not proceed to hearing on 26th July, 2011, because on 20th July, 2011 the matter was listed for mention at the request of the Personal Representative. The position of the Personal Representative on that occasion was that, it being the holiday season, he had some difficulty in relation to adducing oral evidence. In any event, that problem became immaterial because, when the matter came before the Court, Ms. Gunning alleged that the trial judge had a serious conflict of interest and that she was objecting to him continuing with the case any further. The outcome of that was that the trial judge adjourned the application to enable Ms. Gunning raise the matter with the President of the High Court.
23. In the event, another High Court Judge, Cross J., was assigned to hear Ms. Gunning’s complaint. He heard Ms. Gunning’s application, which, in his ruling of 28th October, 2011, he characterised as an application to “remove Judge Hogan from sitting in judgment of my case, Eileen Gunning v. Brian Sherry”. Cross J. in a reasoned ruling addressed the history of the case, the involvement of the trial judge in the case, Ms. Gunning’s application and her grounds for seeking the relief she sought. He also cited the relevant authorities. He set out his decision as follows:
“I am of the view that Judge Hogan had showed absolutely no bias against [Ms. Gunning]. Given her status as a lay litigant, he was very indulgent of her and offered her every opportunity to make the case and, notwithstanding the fact that on the 27th June, 2011 she did not produce the evidence she was required to do, Judge Hogan still, in ease of her, ordered that the case go to full trial, when he clearly could have halted the case there and then on the [Personal Representative’s] motion. There was no bias against [Ms. Gunning] and no evidence either that the Judge assisted the legal representative of the [Personal Representative].”
Accordingly, Cross J. dismissed Ms. Gunning’s application. That decision was reflected in the order of the Court made on 28th October, 2011, in which it was ordered that Ms. Gunning’s application stood refused. There was no appeal against the order of Cross J. 24. The hearing of the Personal Representative’s application was resumed before the trial judge on 7th February, 2012. At Ms. Gunning’s insistence, counsel for the Personal Representative opened the grounding affidavit of the Personal Representative. He also opened the order of His Honour Judge White and the order of Murphy J. and made some brief submissions. Ms. Gunning was accompanied by a McKenzie friend, John Gill, whom this Court was informed has since died. Thereafter, Ms. Gunning and, occasionally, Mr. Gill, addressed the Court. It was clear that Ms. Gunning was still submitting that the Court orders on which the Personal Representative relied had been obtained, to use Mr. Gill’s terminology, “by false and malicious misleading information to the courts” (Transcript, page 12). It was also clear that Ms. Gunning was persisting in her claim that she was one hundred per cent owner of the Cottage. She was reminded by the trial judge that she was being given permission to call oral evidence (Transcript, page 24). After further allegations by Ms. Gunning and Mr. Gill against persons, most of whom were not before the Court, and an intervention from a person in the body of the Court, the trial judge reminded Ms. Gunning once again that he had given her every opportunity to call such witnesses as she saw fit (Transcript, page 32).
25. Later, in answer to a question from the trial judge as to how Ms. Gunning was claiming to be the one hundred per cent owner of the Cottage, Mr. Gill’s response was that she was going to have to get an opportunity to explain that. It then became apparent that Ms. Gunning was looking for a further adjournment (Transcript, page 34). Subsequently, it was made clear that she was looking for a two month adjournment. When the views of the Personal Representative were canvassed as to adjourning the Personal Representative’s application to dismiss the proceedings, the Personal Representative objected to an adjournment on the ground that Ms. Gunning had had an ample opportunity to gather the oral evidence which she had been informed by the Court she was entitled to adduce on the 27th June, 2011. Just before the lunch break, the trial judge ruled on the application for an adjournment and he refused it (Transcript, page 52).
26. After the lunch break, there was further interchange between Ms. Gunning and Mr. Gill and the Court, but no evidence was called. On the final occasion on which the trial judge informed Ms. Gunning that she could call whatever evidence she wished, her response was a request that he make his order, whereupon the trial judge commenced his ex tempore ruling (Transcript, page 59). In the course of the ex tempore ruling, having interrupted the trial judge, both Ms. Gunning and Mr. Gill left the Court. The trial judge ruled that he had no alternative but to strike out the proceedings as an abuse of process (Transcript, page 64). He then dealt with the application for an Isaac Wunder order. He stated that he would make such an order as would restrain Ms. Gunning from issuing any further proceedings in the High Court without the prior leave of the High Court (Transcript, page 66). As regards costs, the trial judge made an order that the Personal Representative was entitled to the costs of the proceedings to be paid out of the estate of the Testator and he made a costs order over against Ms. Gunning that she pay to the estate the costs of the proceedings, the costs to be taxed in default of agreement (Transcript, page 67). At the end, the trial judge stated that he would give his reasons in writing for the ruling on 28th February, 2012 and he adjourned the matter to that date.
The judgment of the High Court
27. The judgment of the High Court was delivered on 28th February, 2012 (Neutral Citation [2012] IEHC 88). Having outlined the factual background, the first proceedings in the Circuit Court (Record No. 154/01), the first proceedings in the High Court (Record No. 2003/122SP), and the withdrawal of the appeal by Ms. Gunning to this Court against the order of Smyth J., the second proceedings in the Circuit Court (Record No. 105/07(E)), and the appeal to the High Court against the order of His Honour Judge White, the trial judge (at para. 18 et seq.) went on to deal with the proceedings before him and the Personal Representative’s application to strike out the proceedings as an abuse of process. He stated (at para. 23) that, in the absence of any evidence that the earlier decisions were wrong in some way, much less evidence of fraud, it followed that the earlier decision of the High Court (the decision of Murphy J.) affirming the Circuit Court decision (the decision of His Honour Judge White) must stand. However, on the basis that it might be useful to do so, he went on to inquire of possible grounds of fraud which might conceivably exist or have existed. He made the point that the will of the Testator had never been challenged. In fact, it is difficult to see how Ms. Gunning could have challenged it, she having applied for and been granted probate of the will in 1985. The trial judge then considered two possible bases on which Ms. Gunning could claim to be the full owner of the Cottage: the first being that she purchased the fee simple reversion; and the second being that she had acquired a possessory title.
28. While emphasising that no formal documents of title were put before the High Court as evidence of her acquisition of the freehold reversion, the trial judge considered the first basis on the assumption, in Ms. Gunning’s favour, that she had purchased the reversionary interest. Lest there be any doubt on this point, I reiterate that there is no evidence before this Court that Ms. Gunning acquired the freehold reversion; all that is before this Court is the consent form (Form C) signed by Ms. Tooley, which, on the basis outlined earlier, proves nothing. The point made by the trial judge was that, if his assumption was correct, Ms. Gunning was, in any event, the personal representative of the Testator at the relevant time. The trial judge referred to the relevant legal principles governing the situation where a person in a fiduciary capacity acquires the freehold reversion in property in which the leasehold interest is held in trust (as here, because of the application of s. 10(3) of the Act of 1965), referring to a decision in Gabbett v. Lawder (1881) 11 L.R. Ir. 295 and the following passage from Delany on Equity and the Law of Trusts in Ireland (5th Ed.) at p. 225:
“. . . where a fiduciary purchases the reversion of a lease . . . it is probable that a trust will only arise in the circumstances outlined by Chatterton VC in Gabbett v. Lawder or where the fiduciary has clearly taken advantage of his position as lessee to obtain this benefit. However, having regard to the tenor of the authorities in this area, the onus will undoubtedly lie on the fiduciary to establish that he has not acted improperly, particularly where he occupies the position of trustee.”
The trial judge reached the following conclusion (at para. 30):
“. . . even if [Ms. Gunning] managed to buy out the fee simple reversion in the manner that she claimed, this does not give her any superior title, because, as a matter of law, she holds that reversionary interest on trust for the beneficiaries of her father’s estate given that this was acquired at a time when she was executrix. This is not evidence of fraud, but it is rather the application of a rule of law designed in itself to prevent fraud.”
29. That the conclusion of the trial judge is correct is unquestionable. Further, I would point out that the position was even clearer on the case made by Ms. Gunning in this Court. She handed in the Form A and the Form C as evidence that she had acquired the freehold reversion. If she had, she would have done so on the basis that the leasehold interest under the Lease, which had passed to her as personal representative of the Testator, gave a statutory entitlement to acquire the fee simple compulsorily under the Act of 1978. While it is by no means clear that there was such an entitlement, if there was, and if Ms. Gunning obtained a vesting certificate under the Act of 1978, she would have unquestionably held that interest in trust for the estate of the Testator. It is interesting to observe that, in her written submissions in this Court, which were filed on 21st April, 2015, Ms. Gunning stated as follows:
“Later in 2002 I, as my father’s, Executrix, I bought out the Ground Rent by Consent from the Successors in Title of the Orpin estate . . .”
Thus, Ms. Gunning actually acknowledged that, assuming she had acquired the freehold, she had acquired it in a fiduciary capacity.
30. Turning to consideration of whether Ms. Gunning has acquired a possessory title to the Cottage, unlike the question as to the implications of the purchase of the fee simple reversion by Ms. Gunning, if it happened, which in my view is totally hypothetical because there is no evidence that it did happen, the question as to whether Ms. Gunning was in adverse possession for a sufficient period of time to have obtained a possessory title in the Cottage against the Personal Representative is anything but hypothetical. It has to be seen in the context that –
(a) the Personal Representative obtained an order for possession against Ms. Gunning in the Circuit Court in the proceedings commenced in 2007, the order of the Circuit Court having been made on 4th November, 2008, and
(b) the order of the Circuit Court was affirmed by order of the High Court (Murphy J.) made on 26th February, 2009.
31. As the trial judge pointed out (at para. 32), the limitation period in respect of claims against the estate of a deceased person is six years, as provided for in s. 45 of the Statute of Limitations 1957 (the Act of 1957), as inserted by s. 126 of the Act of 1965, although it is appropriate to record that s. 123(1) of the Act of 1965 provides:
“A personal representative in the capacity of personal representative shall not, by reason only of section 10, be a trustee for the purposes of the Statute of Limitations, 1957.”
Further, in the case of claims by a personal representative to recover a deceased’s assets against a person holding adversely to the estate, the courts have held that the normal twelve year limitation period of twelve years, as prescribed by s. 13 of the Act of 1957, applies. As to the application of the Statute of Limitations to the position of Ms. Gunning, the trial judge stated (at para. 34):
“. . . the earliest possible date on which time might have run in favour of [Ms. Gunning] was 1999 when her mother [the Widow] left the property. Time was, however, interrupted by virtue of the fact that [the Widow] purported to terminate [Ms. Gunning’s] licence to remain in the dwelling in December, 2000 and then commenced proceedings in March, 2001 whereby she sought an order for possession. Even if it be said that time commenced again when Judge O’Hagan dismissed that claim in July 2002, it was interrupted again no later than February, 2007 when [the Personal Representative] commenced proceedings against [Ms. Gunning] as the legal personal representative of the estate of the [Testator]. Such periods of adverse possession as might have run in favour of [Ms. Gunning] do not approach the requisite period of 12 years.”
On the foregoing basis the trial judge concluded that a claim based on adverse possession had not been made out. That is consistent with the outcome of the Circuit Court proceedings initiated in 2007 and the affirmation by the High Court (Murphy J.) of the order of the Circuit Court made by His Honour Judge White.
32. The trial judge then went on to consider whether the Court should make an Isaac Wunder order against Ms. Gunning and he held that it should. His reasoning was that, while the plaintiff had issued only one action in her own name, the case of the Cottage had been in the courts for years. He stated (at para. 40):
“The very fact that these proceedings were commenced without a willingness to support the claim of fraud is itself evidence of abuse. A considerable amount of judicial time and resources have been expended in considering the rights of the parties to this dispute. The other beneficiaries to the estate have been adversely affected by this on-going litigation. Further litigation can only add to the misery which this tragic dispute over home ownership has caused.”
It is impossible to disagree with that reasoning.
Order of the High Court
33. The order of the High Court made on 28th February, 2012 ordered –
(a) that these proceedings be dismissed as constituting an abuse of process of the Court; and
(b) that Ms. Gunning be restrained from instituting any further proceedings directly or indirectly concerning the Cottage without the prior leave of the President of the High Court or some other Judge nominated by him and it was specified that the restraint only applied to new proceedings concerning possession and ownership of the Cottage and the administration of the estate of Ms. Gunning’s late parents and not to any existing proceedings involving Ms. Gunning or any appeal to the Supreme Court against that decision.
Notice of appeal
34. On 13th March, 2012 Ms. Gunning filed a notice of appeal against the judgment and order of the High Court. The only ground of appeal set out in the notice of appeal was that Ms. Gunning “was not given a fair hearing or indeed a hearing at all”.
Application for leave to amend grounds of appeal
35. In June 2015, Ms. Gunning brought an application to this Court pursuant to Order 28, rule 1 of the Rules seeking leave to allow her to include additional grounds of appeal. The application was resisted by the Personal Representative. It was listed for hearing before this Court with the hearing of Ms. Gunning’s appeal on 29th July, 2015.
36. On Ms. Gunning’s application seeking leave to allow her to include additional grounds of appeal, which the Court considered before hearing the appeal, Ms. Gunning outlined the additional grounds in the notice of motion as follows:
(a) that the Personal Representative, presumably meaning his solicitor’s practice, is now incorporated in the firm of Ferrys Solicitors who acted for the Widow in her Circuit Court and High Court cases against Ms. Gunning and, as such, a conflict of interest exists on the part of the Personal Representative in his capacity as administrator of the Testator’s estate;
(b) that the failure of the Personal Representative to administer the Testator’s estate for three years after he was appointed exacerbated the dispute between herself and her sister;
(c) that the original grant of probate issued to her was not revoked by the order of the High Court (Smyth J.) dated 31st July, 2003 and there cannot be two grants of probate for the same person so that the second one issued to the Personal Representative is invalid, Ms. Gunning having completed the administration of the Testator’s estate in 1985; and
(d) that she and her daughter have been in adverse possession since 1999.
37. The Personal Representative, in his replying affidavit sworn on 10th July, 2015 on the application to amend the grounds of appeal averred that his solicitor’s firm amalgamated with Ferrys Solicitors in October 2013.
38. Having heard the submissions of the parties on 29th July, 2015, the Court refused Ms. Gunning’s application to amend the notice of appeal by adding the additional grounds. First, the Court was satisfied that no conflict arose by reason of the Personal Representative having joined the firm of Ferrys in October 2013. In fact, Brian Sherry had been nominated to act as personal representative of the estate of the Testator in the proceedings brought by the Widow in the High Court in 2003, in which Ferrys acted for the Widow, and to which Ms. Gunning was a party, and he had effectively been appointed to the position of personal representative by the High Court (Smyth J.). Secondly, the suggestion of delay on the part of the Personal Representative or of consequences flowing therefrom was not raised in the High Court and cannot be raised on this appeal. Thirdly, as regards the suggestion that the first grant of probate of the will of the Testator had not been revoked, the Court was satisfied that that was not the case on the basis of the sequence of events outlined at paras. 6, 7 and 8 above and the content of the documents issued by the High Court as set out in those paragraphs. Finally, the issue as to adverse possession had already been finally determined by the High Court (Murphy J.) on the appeal from the Circuit Court. Despite the very clear, and, in my view, correct, guidance given by the trial judge to Ms. Gunning as to the approach she would have to adopt to overturn that final determination, no ground contradicting that approach or indicating any other basis for setting aside that final determination was advanced by Ms. Gunning. In short, the only inference one can draw from the conduct of the proceedings by Ms. Gunning is that she is not prepared to face the reality of the situation.
Conclusion on appeal
39. Accordingly, the only matter which remains on the appeal is whether Ms. Gunning was not given a fair hearing in the High Court, as she contends. As a careful consideration of the transcripts discloses, nothing could be further from the truth.
40. I agree with the views expressed by Cross J. as to the manner in which Ms. Gunning was treated by the trial judge in the hearings prior to 28th October, 2011. As regards the hearing on 7th February, 2012, it is amazing, having regard to the observations of Cross J., which I have quoted above, that Ms. Gunning did not prepare herself for an oral hearing on that day and was not in a position to adduce oral evidence in support of her case that the proceedings should not be dismissed as an abuse of process. Once again on 7th February, 2012, the trial judge was very indulgent of Ms. Gunning and she was given every opportunity to make her case and adduce evidence in support of it. I would go so far as to say that, bearing in mind what we learn from the Old Testament about Job, the trial judge demonstrated patience of biblical proportions.
41. Given that just short of nine months before the hearing on 7th February, 2012 the trial judge had afforded Ms. Gunning the opportunity to mend her hand and adduce clear evidence of the type necessary to avoid having her proceedings discontinued, and that despite reminders of what was required from both the trial judge and Cross J. in the intervening period, she did not do so, the trial judge, in my view, was quite correct in refusing to adjourn the Personal Representative’s application any further. It would have been grossly unfair, not only to the Personal Representative, but more importantly to the ultimate beneficiaries of the estate of the Testator, if he were to do otherwise.
42. The failure of Ms. Gunning to adduce any evidence in support of her multifarious allegations of fraud and falsification in connection with the previous decisions of the High Court or in support of her contention that she was the hundred per cent owner of the Cottage left the trial judge with no choice but to make the order he made dismissing Ms. Gunning’s proceedings as an abuse of process.
43. Even at the risk of unnecessary repetition, it is appropriate to reiterate that there were two fundamental factors underlying the position from which the trial judge had to start. The first was the existence of the judgment and order of the High Court (Smyth J.), the appeal brought by Ms. Gunning having been withdrawn, which finally determined that Ms. Gunning should be removed as personal representative and that a grant of letter of administration with the will of the Testator annexed should issue to the Personal Representative, on whom the duty of administering the estate of the Testator was then imposed. The second was the existence of the order of the High Court (Murphy J.) affirming the decision of the Circuit Court granting possession of the Cottage to the Personal Representative in that capacity, which meant that there was a final order in place that Ms. Gunning was not entitled to possession of the Cottage, there being no further right of appeal. As he stated in the passage from his judgment (at para. 23) referred to earlier, the trial judge had no option but to find that the latter decision of the High Court stood, there being no evidence on the basis of which the High Court could have considered setting it aside. That remains the position.
44. In summary, the plaintiff has not established that she was not given a fair trial in the High Court. Nor, following a careful consideration of all of the documentation put before this Court by Ms. Gunning as a personal litigant, has anything emerged on the appeal to suggest that the decision of the trial judge to dismiss the proceedings as constituting an abuse of process of the Court, being an attempt to re-litigate matters which have already been judicially finally determined, might have been incorrect. Therefore, the only course open to this Court on the appeal is to affirm the order of the High Court dismissing the proceedings.
45. Further, for the reasons advanced by the trial judge, I am of the view that it was appropriate that an Isaac Wunder order in the terms set out by the trial judge was made and that such an order should continue in existence. Unfortunately, the reality of the situation is that, by participating in the various proceedings in the manner in which she participated, Ms. Gunning has incurred liability for costs which has dissipated her entitlement to a share of the estate of the Testator. She may also have adversely affected the entitlement of the other beneficiaries, including her daughter. Although it is unlikely that she would agree, that she is restrained from continuing to litigate could well be seen as being in her interest.
Order
46. Accordingly, there will be an order dismissing the plaintiff’s appeal and affirming the order of the High Court as outlined at para. 33 above.
John Drohan v Mary Drohan
[1981] I.L.R.M. 473
McMAHON J
delivered his judgment on 31 July 1980 saying: This is an appeal from a judgment of Judge Sheridan. The claim in the action is for the recovery of possession of the lands comprised in Folio No. 1126 County Waterford. These *474 lands were the property of James Drohan the registered owner who died intestate on 1 February 1966 leaving him surviving his wife Ellen, his sons Thomas and John and a daughter Brigid. The widow Ellen Drohan died on 14 January 1970. Thomas Drohan remained in possession of the lands after his father’s death to the exclusion of John and Brigid. Thomas died intestate on 11 March 1975 leaving the defendant Mary Drohan his widow and three children in possession of the lands. On 4 August 1976 Letters of Administration Intestate to James Drohan the registered owner were issued to the plaintiff. He now brings this action to recover the lands of the deceased James Drohan. The proceedings before the Circuit Court judge were reduced to an issue whether the plaintiff in his capacity as personal representative was statute barred pursuant to s. 45 of the Statute of Limitations 1957 as amended by the Succession Act, 1965 s. 126. If the period of limitation was that provided originally in the Statute of Limitations 1957 that is a period of twelve years the plaintiff’s claim was not statute barred but if the period of six years provided in s. 45 of the Act of 1957 as inserted by s. 126 of the Succession Act 1965 is the relevant period the claim was statute barred. The Succession Act, 1965 did not come into operation until 1 January 1967 but it was contended for the defendant that s. 126 of the Act came into operation on the date of the passing of the Act. S. 9(3) provides: ‘Except to the extent to which any provision of this Act expressly provides to the contrary the provisions of this Act shall not apply to the estate of any person dying before the commencement of this Act’.
The defendant contended that s. 126 of the Act contains an express provision to the contrary within s. 9(3). S. 126 provides as follows:
The Statute of Limitations 1957 is hereby amended by the substitution of the following section for section 45;
45
(1) Subject to s. 71 no action in respect of any claim to the estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy or under s. 111 of the Succession Act, 1965 shall be brought after the expiration of six years from the date when the right to receive the said share or interest accrued.
(2) No action to recover arrears of interest in respect of any legacy or damages in respect of such arrears shall be brought after the expiration of three years from the date on which the interest became due.
Counsel for the defendant submitted that the words ‘is hereby amended’ in their ordinary and natural sense mean that the repeal and re-enactment was effected on the date of the passing of the Act namely 22 December 1965 and amounted to an express provision to the contrary within s. 9(3) that the provisions of the Act should not apply to the estate of any person dying before the commencement of this Act.
The learned Circuit Court judge rejected this contention and I agree with his conclusion. To constitute an express provision to the contrary within s. 9 there must in my view be a provision which is expressed and not merely implied which is a clear and explicit provision that s. 126 is to apply to the estates of persons dying before the commencement of the Act.
There is in my view nothing in s. 126 which clearly and explicitly so provides. The contention of counsel for the defendant is based on the meaning alleged *475 to be implied in the words ‘is hereby amended’, that these words take effect from the date of passing of the Act. I do not agree that that meaning is implied as the words have no effect until the Act comes into operation. In any event the words cannot be construed as constituting an express provision that s. 126 should operate from the date of its enactment.
I would therefore agree with the conclusion of the learned Circuit Court judge that s. 45 Limitation Act, 1957 as inserted by s. 126 Succession Act, 1965 did not come into operation until the date of commencement of the latter Act that is 1 January 1967.
I do not agree however that s. 45 Limitation Act, 1957 contains the relevant period of limitation applicable to the plaintiff’s claim in this Action. The provision in England corresponding to s. 45 is s. 20 Limitation Act, 1939 which is in almost identical language to s. 45. The genesis of both these sections is explained in the judgment of the Court of Appeal In Re Diplock Diplock v Windle [1948] Ch 465 at p. 509 et seq. affirmed sub nom. Ministry of Health v Simpson [1951] AC 251.
The sections derive from s. 13 Law of Property Amendment Act, 1860 which fixed the period of twenty years for a suit ‘to recover the personal estate of any share of the personal estate of any person dying intestate’ to which were added the words:
‘Possessed by the legal representative of such intestate’ and s. 8 Real Property Limitation Act, 1874 which applied to actions to recover legacies a period of twelve years ‘after a present right to receive the same shall have accrued to some person capable of giving a discharge’.
The claims for which periods of limitation were provided by these sections were claims against the personal representative by a person claiming a legacy or a share of the residue or a share of the assets on a death intestate.
In both s. 20 in England and s. 45 in Ireland the claims barred for described as actions: ‘In respect of any claim to the personal estate of a deceased person or to any share or interest in such estates whether under a will or intestacy’.
It was held in Re Diplock’s estate (supra) that the change of wording from the words: ‘To recover the personal estate or any share of the personal estate’ in the Act of 1860 to the words in the Act of 1939 ‘Action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate’ had the effect of including in the actions to which the period of limitation applied a claim by an unpaid beneficiary against one overpaid or wrongly paid Re Diplock’s estate (supra) Lord Greene MR at p. 512 said:
Having regard to the repeal of the Acts of 1833 and 1874 it seems to us plain that s. 20 of the Act of 1939 must apply to claims by an unpaid beneficiary against the executor or administrator, in other words claims by a beneficiary ‘to recover’ his legacy or share. On the other hand we cannot see that, according to ordinary usage of the English language the section does not equally apply to a claim by an unpaid beneficiary directed against one overpaid or wrongly paid.
For these reasons in my view s. 45 has no application to a claim by a personal representative to recover assets of the deceased from a person whether a beneficiary *or a stranger holding adversely to the estate. The limitation applicable in the present case is that provided for claims for the recovery of land by s. 13(2) that is a period of 12 years. The provisions of s. 23 are applicable namely that the administrator is deemed to claim as if no interval occurred between the death and administration. Applying the period of limitation of twelve years from the date when the cause of action accrued the plaintiff’s claim is clearly not statute barred and he is entitled to recover the lands.
I therefore affirm the judgment of the Circuit Court judge.
Ellen Maher v John Joseph Maher
[1987] I.L.R.M. 582
: In these ejectment proceedings on the title the plaintiff claims possession of the lands and premises comprised in Folios 8687, 7598 and 6519 of the Register of Freeholders, County Kilkenny.
Her title to the property is disputed by the defendant, who claims that on the death intestate of John Maher, father of the plaintiff, his wife, M.M. became entitled to a one-third interest in the said lands, and that his six children, Ph.M., Ellen (the plaintiff), K.M., J.M., P.M., and A.M. each succeeded to a one-ninth interest in the lands. He further claims that M.M. *584 bequeathed her one-third interest to her son, Ph.M.. by will, and that P.M., A.M., and J.M. transferred their one-ninth interests to Ph.M. by deed in or about the year 1943. By this means he says that Ph.M. became entitled to a seven-ninths interest in the lands and left it to him, the defendant, by his last will dated 1 March 1983. Ph.M. died on 29 April 1983 without having altered or revoked his said will and probate thereof was granted forth of the District Registry at Kilkenny on 21 November 1985, to the defendant, the sole executor therein named. K.M. died intestate in 1986 and he claims to have succeeded to part of her one-ninth share in the lands as one of the children of her brother, J.M., who was his father. He acknowledges that the plaintiff should be entitled to claim a one-ninth share in the lands in succession to her father, J.M., and to share in the one-ninth interest of K.M., as here sister and one of her next-of-kin.
The plaintiff, however, claims that any interest which devolved upon her mother, M.M., and upon her brothers and sisters, other than Ph.M. and K.M., following upon the death of her father, J.M., (which occurred on 11 June, 1913), and upon the death of her mother, M.M. (which occurred — apparently — in 1961), was defeated by the adverse possession of herself, Ph.M. and K.M., being the only member of the family who continued to occupy the lands after M.M. left to live in Galmoy. M.M.’s departure from the lands seems to have taken place prior to the outbreak of World War II and perhaps as long ago as 1935.
I am satisfied, on the evidence, that Ph.M., K.M., and Ellen were in sole occupation of the lands after the departure of their mother, M.M., and that this possession should be regarded as adverse to the claims of their said mother and of their brothers and sisters, all of whom had also left the lands prior to or concurrently with the departure of M.M.
In or about the year 1943 a deed of transfer was drawn up by a firm of solicitors, Michael Buggy & Co., of Kilkenny, on the instructions of M.M., with the apparent intention of securing the transfer to Ph.M. of her own interest, and the interest of all the next-of-kin of J.M. other than Ph.M. himself, so that Ph.M would become full owner of the entire lands subject only to rights of residence and support in favour of Ellen and K.M. as recited in the said document.
The document, which was made available from the files of Messrs Buggy & Co., for the purposes of the present proceedings, appears to have been signed by A.M., J.M., and P.M. (although no one has signed as witness in respect of any of the said signatures), but it seems clear that it was never signed or sealed by M.M. herself, or by her remaining children, C.M. (K.M.), Ellen or Ph.M. The correspondence from the solicitors, several years later, refers to ‘the proposed transfer … which transfer was not proceeded with owing to the fact that your daughters, C and Ellen refused to sign.’ I think this is a correct description of what occurred — the preliminary steps were taken for the purpose of a family settlement which would have had the effect of vesting the entire interest in the lands in Ph.M. but as it was not possible to secure the agreement of all the interested parties *585 to this course, it was abandoned and did not bring about any enhancement of the interest Ph. would otherwise have acquired in the said lands.
By her will dated 25 January 1949 the said Mary Maher left to her said son Ph., her interest in the lands of Graigueswood, Sweethill and Clontubbrid together with the stock, crops and chattels thereon, subject to rights of maintenance and support and residence in favour of K. and Ellen. Mary appears to have died in the year 1961, and Philip died in 1983.
The lands of Clontubbrid comprised in Folio 7598 were first registered in the name of M.M. on 1 October 1917, and the Agreement to purchase of 24 January 1914, described her as tenant in occupation of the holding. Similarly, in the case of the lands of Graigueswood described in Folio 8687, Mary Maher executed the purchase Agreement dated 1 May 1913 in which she is described – as the tenant in occupation of the holding, notwithstanding that her husband, J.M., was still alive on that date. M.M. was also registered as owner of the lands of Sweethill comprised in Folio 6988, portion of the lands formerly comprised in Folio 6519, on 20 August 1914.
I am of opinion that an interest of M.M., or of her children J.M., P.M. and A.M. in the lands referred to in the Ejectment Civil Bill became barred by the adverse possession of Philip, Katie and Ellen over a long period of years from the year 1935, or shortly thereafter, and that when M.M. died in or about the year 1961 she had no remaining interest in the lands which could pass under the terms of her will to Ph.
As regards the nature of the possession of the parties who remained on in the lands (i.e. Ph.M., Ellen and K.M.) I do not consider that this should be regarded as a case of adverse possession on the part of Ph. alone, with the two sisters merely residing on the lands by virtue of their own interest as next-of-kin of J.M. The evidence given is sufficient to satisfy me that while Ph. as the man about the house, had to bear the brunt of the physical labour about the farm while he was fit to do so, the two sisters also played an active role in the running of the farm, and engaged in milking, herding and other forms of labour over and above their household chores. It is noteworthy that the draft deed of transfer which was drawn up in or about the year 1943, with the intention of benefiting Ph., referred to a right of residence and maintenance which it was intended to confer on Ellen and K.M. ‘provided that they shall while so residing be bound to assist in the working and management of all said lands without any remuneration other than said support clothing and maintenance’. This implied a recognition on the part of the family that the two sisters were very much involved in the running of the farm as well as in their other work about the house.
In this situation where some of the next-of-kin of a deceased owner remain on in possession and acquire title by adverse possession to the shares of other next-of-kin who are out of possession, it is clear on the authorities that they acquire the shares of those excluded from possession as joint tenants and not as tenants in common. Accordingly, as neither Ph. nor K.M. had done anything during their respective lifetimes to sever the joint tenancy, the plaintiff, Ellen Maher, by right of survivorship should *586 now be regarded as having acquired title to the interest of M.M. and any of the next-of-kin of J.M. who were excluded from the lands for the statutory period.
This leaves for consideration the question of the interest of Ph. and of K.M., as next-of-kin of J.M. deceased — as the defendant stands to benefit by the provisions of Ph.’s will and as one of the next-of-kin (per stirpes) of K.M. The defendant contends that the original owner of the lands was J.M., notwithstanding that his wife, M.M., appears to have been registered as first owner on the Folios, subject to equities. The defendant contends that while Ph.M., K.M., and Ellen may have acquired by adverse possession against Mary and the excluded next-of-kin, as joint tenants, in so far as their own shares as next-of-kin of J.M. were concerned, they continued to occupy the lands as tenants in common and not as joint tenants in respect of these one-ninth shares, and that Ph.M. had the right to dispose of such interest, at the very least, by the terms of his will, while K.M.’s one-ninth share should pass to her next-of-kin.
This point is not so clearly settled by authority as is the point regarding the character in which those acquiring by adverse possession defeat the claims of those who are excluded from possession. It is correct to say that the decisions to the effect that next-of-kin occupy their shares as tenants in common and not as joint tenants outnumber any decisions which suggest that the contrary may be the true situation, but the decided cases are not completely uniform in this regard.
In Coyle v McFadden [1901] 1 IR 298, a decision of Ross J, it was held that where some of the next-of-kin of an intestate remained on in possession of lands, while others were away from the lands for the statutory period, those remaining in possession acquired a statutory title to the entire lands as joint tenants — and not merely to the shares of those excluded from possession.
He said:
In what capacity did they (the next-of-kin in possession) occupy? Though they were entitled to their shares, their possession of the whole was wrongful. They could have been ejected by the personal representative on administration being taken out; they occupied no better position as to the estate than an ordinary trespasser. Therefore I hold they acquired title by the Statute of Limitations. It is clear law that when parties together acquire title in this way, being disseisors, their interest is a joint tenancy and not a tenancy in common. I hold that the lands formed no part of the assets of the deceased.
(The deceased referred to was one of the next-of-kin who had remained on in possession but had died leaving one other next-of-kin in possession still surviving).
Palles CB refused to follow this decision some years later in Martin v Kearney (1902) 36 ILTR 117, a decision given at Lifford on the hearing of an appeal from the County Court.
He held that next-of-kin remaining in possession without administration being taken out to the deceased intestate were equitable tenants in common under a good equitable title and were not trespassers and when the Statute ran, their equitable tenancy in common became a legal estate as tenants in common.
He relied largely on a decision of the House of Lords in Cooper v Cooper LR 7 HL 53, which expressed the view that as regards the substantial title to property, the right of the next-of-kin (subject only to the claims of creditors) is complete, but at the same time he acknowledged himself unable to reconcile that decision with the later decision of the House of Lords in Lord Sudeley v Attorney-General [1897] AC 11. In Lord Sudeley’s case the House of Lords held that a wife’s claim under her husband’s will was not to one-fourth or any part of certain mortgages in specie, but to require her husband’s executors to administer his personal estate and to receive from them one-fourth part of the clear residue.
The apparent conflict between the two decisions of the House of Lords was reconciled in In Re Cunliffe-Owen [1953] 1 Ch 545, where Evershed MR summarised what he considered to be the true position as follows:
An interest in an intestate’s estate is not sufficiently specific — apart from agreement with the next-of-kin where there are more than one — to enable any one of the next-of-kin to say to the administrator: This or that thing is mine — hand it over to me.
To revert back to the Irish decisions, however, the head-note to Tobin v Brett (1906) 40 ILTR 249, suggests that Coyle v McFadden was overruled in this case, but the decision as reported does not purport to do so, nor is it concerned with the particular problem which was under consideration in Coyle v McFadden, but with the defeasance of the title of some of the next-of-kin who had received portions in the lifetime of the deceased in discharge of their expectant shares.
In Smith v Savage [1906] I IR 469, Barton J held as follows:
In my opinion the next-of-kin who remained in possession continued to be tenants in common as to their original shares but acquired title to the shares of the absent ones as joint tenants.
This was followed in Christie v Christie [1917] 1 IR 17. And in the earlier case of Morteshed v Morteshed [1902] 36 ILTR 142, Kenny J deciding an appeal from the County Court in Nenagh, followed Martin v Kearney (the decision of Chief Baron Palles) in preference to Coyle v McFadden.
It will be seen from the foregoing review of some of the relevant authorities that the weight of authority is in favour of the view that the next-of-kin remaining in possession should be regarded as occupiers as tenants in common and not as joint tenants. Nevertheless I find the argument to the contrary more persuasive.
From the date of death of an intestate the next-of-kin have no right to take possession of any part of his assets until they come to be vested in them by the personal representative. Under s.13 of the Administration of Estates Act 1959 it was provided that where a person died intestate his real and personal estate until administration was granted in respect thereof, should vest in the President of the High Court in the same manner and to the same extent as formerly in the case of personal estate it vested in the Ordinary.
*588
Under s. 22 of the same Act it was provided that on the death of a sole registered full owner of land the personal representatives of the deceased owner should alone be recognised by the registering authority as having any rights in respect of the land, until an assent in the prescribed form was made available by the personal representative for the purpose of securing the registration of the persona named in such assent, as owner.
It appears to me that if some of the next-of-kin take possession or remain on in possession of lands of an intestate to the exclusion of others, their possession of the entire interest in the lands is adverse to the claims of the personal representative and of the other next-of-kin and that they should not be regarded as occupying the lands in a different character as to the shares claimed by them in their capacity as next-of-kin and as to the shares of the other next-of-kin and the entitlement of the personal representative which they are in the process of extinguishing. I consider that their occupation was as joint tenants in the entire lands and every interest therein.
Any doubts about the matter were ultimately resolved for the future by the provisions of 125(1) of the Succession Act 1965 which provides as follows:
Where each of two or more persons is entitled to any share in land comprised in the estate of a deceased person, whether such shares are equal or unequal, and any or all of them enter into possession of the land, then, notwithstanding any rule of law to the contrary those who enter shall (as between themselves and as between themselves and those (if any) who do not enter), be deemed for the purposes of the Statute of Limitations 1957, to have entered and to acquire title by possession as joint tenants (and not as tenants in common) as regards their own respective shares and also as regards the respective shares of those (if any) who do not enter.
I think the Statute was giving effect to what should always have been the true construction of the situation which arose in the circumstances which have already been referred to.
On this basis I come to the conclusion that Ph.M., K.M., and Ellen became entitled by long possession to be registered as full owners of the lands occupied by them, as joint tenants and not as tenants in common, and that on the death of Ph.M. and K.M. without having severed the joint tenancy, Ellen became entitled by right of survivorship to the entire interest in the said lands.
I therefore affirm the order made by the learned Circuit Court judge, and allow the plaintiff’s claim to possession of the lands referred to in the Civil Bill herein, and dismiss the defendant’s counter-claim. I also affirm the order made by the learned Circuit Court judge regarding rectification of the Register, but reserve liberty to the parties to apply if it should become necessary to do so concerning this part of the order, as Folio 6519 of the Register does not appear to have been produced in evidence before me.
Browne v Fahy
[1975] 10 JIC 2402
KENNY J.:
In the civil bill which was issued in this matter on the 2nd of March 1971 the plaintiff, Hary Browne, claimed to be the owner in foe simple and the occupier of parts of the lands of Lemonfield near Oughtorard, County Galway and pleaded that the original defendant, the late Nora Fahy, trespassed on these lands in September [ ]”” and claimed an injunction to prevent this. In her defence the original defendant denied that the plaintiff was the owner or occupier of these lands and relied on the Maintenance and Embracery Act 1634 (10 Charles I, Sess. 5 Cap 15 commonly miscalled the Pretenced titles Act 1634). She pleaded that she and her predecessors in title had for 20 years been in occupation and possession of the lands without giving any admission of title to anybody.
The Circuit Court Judge gave judgment in favour of the plaintiff on the 1st of February 1972 and the defendant appealed to this Court. I heard the case in Galway on the 13th of March 1972 and as the defendant’s counsel stated that he was relying on the Maintenance and Embracery Act 1634 (“the Act of 1634”) but did not refer to the text of that statute or any of the many cases decided on it and on the corresponding Act in England (32 Henry VIII Cap 9) and as a copy of the Act of 1634 was not available in Galway, I reserved judgment. The defendant died shortly afterwards and it therefore became impossible to give judgment until probate of her will had been granted to someone. This grant did not issue until the 19th of May 1975 when Bridget Fahy, a daughter of the original defendant obtained it: it was not banded into Court until July 1975. There will accordingly be an order that Bridget Fahy be made a party to this action as personal representative of the original defendant, and that she be substituted as defendant in that capacity and that the action do proceed against her.
On the 21st of June 1938 the Irish Land Commission sold lands at Oughterard, which were on the foreshore of Lough Corrib, to Miss Simonds. She Miss Simonds built a bungalow on the lands some distance in from the road and it was approached by an avenue from the road. The lands granted to her included the lands north and south of this avenue which runs from the east to the west to the public road. The lands to the north of the avenue contain 0.70 acres and those to the south 0.41 acres. They are of the poorest quality, are not arable, are covered with rough overgrowth and are fit only for the grazing of a few cattle. The dispute in this case relates to the lands on the north of the avenue which are bounded on the north by other lands owned by Commandant Burgess. By a deed made on the 8th of February 1945 Miss Simonds conveyed all the lands granted to her by the Irish land Commission in 1935 with the bungalow thereon called Ballyowen and the lands on the north and south of the avenue to Oswald Browne, the husband of the plaintiff. Oswald Browne died on the 18th of October 1959 and by his will left all his estate to the plaintiff. Emocution of this will by him was proved by a witness in this case. On the 23rd of July 1960 the plaintiff sold the small part of the lands which were north of the avenue to Mr. and Mrs. Wilson Wright for £300. They had a residence on the other side of the public road and there is a small frontage of the lands in dispute to this road. Barbley Fahy, who died in November 1967 and who was the husband of the late Nora Fahy the original defendant, was grazing the lands in dispute since 1938. It had been employed by Miss Simonds as a gardener and when Oswald Browne acquired the lands in 1945, Bartley Fahy asked Mr. Browne for permission to graze a few cattle on these lands. When Oswald Browne died, the plaintiff continued this arrangement as she was on friendly terms with the Fahys and neither her husband nor she had any cattle and did not wish to use the lands in any way. On the 25th of July 1961 the solicitors acting for Mr. & Mrs. Wilson Wright wrote to Bartley Fahy and as the terms of the letter are of importance and I must set it out.
“We have been consulted by Mr. & Mrs. Wilson Wright, Coclin, Oughtorard, regarding the lands owned by them on the opposite side of the road from their residence. One of these portions was purchased by our clients from Mr. O’Connor in 1959 and the other from Mrs. Browne in 1960.
Our clients advise us you have, at times, been permitting your stock to graze upon each of these portions of the land. Actually they do not themselves grazo the lands but they do with us to advise you that you must, if requested, by them, stop grazing your stock upon same and further to advise you that you have, of course, no right or title or interest of any sort in or to same.
Mrs. & Mrs. Wilson Wright have no desire to have any unpleasant relations with you as we understand you have always been on friendly terms but it is correct that we should place on record in this letter the fact that any grazing by you of the said lands is as a permissive occupant only and that you must desist from same when and if our clients ask you to do no.”
There was no reply to this letter. On the 6th of May 1970 Mr. & Mrs. Wilson Wright sold the lands in dispute, to the plaintiff for £10 and the deed contained a covenant against building. Execution of these deeds of the 23rd of July 1960 and the 6th of May 1970 was proved by a witness in this action the three deeds of February 1945, July 1960 and May 1970 included the lands in dispute. The late Bartley Fahy and the late Nora Fahy objected strongly to the sale in 1960 to Mr. and Mrs. Wilson Wright and at some date before the execution of the deed of July 1960 the original defendant had offered to buy the lands from the plaintiff.
In 1957 Bartley Fahy had planted a row of trees on the lands running from the north to the south; this was done to give shelter to the cattle which he ground on the lands. In 1958 he constructed a fence on that part of the land which fronted on to the public road and in 1971 he put stakes and wire on the place where the lands fronted on the avenue so that the cattle would not escape from the lands on to the avenue and from there on to the public read because there was no gate at the place where the avenue runs into the public road. the lands and drained part of them and his widow and he had allowed persons to camp on the lands and collected money when they granted this privilege. Mr. Wilson Wright occasionally walked over the lands and made constant complaints to the late Nora Fahy about the trespass of cattle on the lands which he had bought. He was however most reluctant to issues proceedings against them because he hoped to remain on friendly terms with then and because the lands were of such poor quality that he did not think that they were worth the trouble of a law suit.
I am satisfied that Bartley Fahy grased cattle on the lands in dispute because he had obtained a licence to do so from Miss Simonds, Oswald Browne and the plaintiff. He never claimed to have any interest in the lands until they were sold to Mr. & Mrs. Wilson Wright and his allegation then was not that he owned the lands but that the sale to them was invalid because they had not obtained the consent of the land Commission to it. The doctrine of adverse possession has received statutory recognition in s. 18 of the Statute of Limitations 1957, a section which corresponds exactly to section 10 of the English Limitation Act 1939 and a person who occupies lands under a licence from the owner is not in adverse possession. InMoses .(1952) 1 All B.R. 1279 land Justice “[ ] said: “In my opinion, if one looks to the position of the occupier and finds that his right to occupation is derived from the owner in the form permission or agreement or grant, it is not adverse. The deed by which the lands were granted to Mr. and Mrs. Wilson Wright was made on the 23rd of July 1960 and the civil 1.11 was issued on the 2nd of March 1971. Until the deed of July 1960 Bartley Fahy was certainly not in adverse possession of the lands and so, if the Statute of Limitations with the only point in issue in the case, the defendants could not claim that they had acquired the lands by adverse possession because they had not had 12 years adverse possession which is required to acquire a title. The question however of who was in possession of the lands between 1960 and 1970 is relevant to the application of the Act of 1634 as counsel for the defendant (Mr. O’Connor) has contended that Mrs. and Mrs. Wilson Wright were never in possession of the lands and so the conveyance by them to the plaintiff is void under the Act of 1634. The title to the land in dispute has not been registered under the Registration of title Acts and so if Mr. and Mrs. Wilson Wright were never in possession occupation of the lands, the conveyance by them to the plaintiff would be void. It therefore becomes necessary to consider whether they were in possession of the lands for the year proceeding 6th of May 1970.
The plaintiff has established conclusively that her husband was the owner in foe simple of the lands in dispute and that he left all of them to her. The plaintiff has therefore proved documents of title which gave Mr. and Mrs. Wilson Wright a good title to the lands. When a person with a good title brings an action for recovery of the land and the Statute of Limitations is pleaded as a defence, the defendant must prove that the title holder, the plaintiff, has been dispossessed or has discontinued when possession of the lands in question for the statutory period. This seems to me to be the meaning of s. 14 of the Statute of Limitations 1957 and was decided to be the law before the 1st of January 1959 when the Statute of Limitations 1957 came into operation (see Leigh .v. Jack (1879) 5 Ex. D. 264). The question whether a defendant who relies on the Statute of Limitations was and is in adverse possession must, as Lord O’Hagan said in Lord Advocate .v. Lord Lovat (1880) 5 App. Cas. 273 “be considered in every case with reference to the peculiar circumstances …… the character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests ……… all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession. The same idea was expressed by Lord Diplock, when giving the advice of the Privy Council inWestbank Estates Limited .v. Arthur (1967) A.C. 665 when he approved of the view “[ ] the advise “[ ] must not be consistent with the enjoyment of the land by the person entitled.
The acts relied on by the defendant as establishing adverse possession were that Bartley and Nora Fahy had put cattle on the land for the last 30 years, that no one else had used the lands, that they put down a bolt of trees on them in 1957, that they fenced the lands fronting on to the roadway in 1958, that they put a post and wire fence on the boundary of the lands where they front on to the avenue, that they manured and “[ ] them lands and that they allowed persons to camp on the then the issue and collected money from them for this. For the plaintiff it was said that Mr. and Mrs. Wilson Wright and she did not own any cattle at any time and so could not use them for guessing, that Mr. Wilson Wright walked the lands on a number of occasions, that he protested about cattle trespass in 1961 and subsequently made constant complaints about this. The substance of the plaintiff’s argument was that what Mr. and Mrs. Wilson Wright did was that the proprietor might reasonably be expected to do with a due regard to his own interests having regard to the fact that the lands were of little value and were suitable for the grazing of a few cattle only.
In my opinion the acts relied on by the defendant were not inconsistent with the enjoyment of the land by Mr. and Mrs. Wilson Wright. The cattle were on the lands because of permission given by Mr. Oswald Browne and his widow and the Wilson Wrights had no cattle. The planting of the trees was to give shelter for the cattle which were on the lands. The creation of fences on the boundary with the public road was to keep the cattle in so that they would not stray while the creation of a fence between the lands and the avenue was intended to prevent the cattle from getting on to the avenue and from there on to the road. The draining and manuring of the land was consistent with a licence to use the lands for grazing and the collection of money from the campers was what would be expected when a person had the grazing of the lands and lived near them. Any person looking permission to camp would naturally assure that the person where cattle were on the lands was the owner. The property was of little value and the only way that Mr. & Mrs. Wilson Wright could use the lands was by walking on them and I accept the evidence that Mr. Wilson Wright walked over the lands on a number of occasions.
It follows that Bartley Fahy and the original defendants, the late Nora Fahy, were never in advorse possession of the lands in dispute and that Mr. & Mrs. Wilson Wright were in possession of the lands from the time that the lands were conveyed to them until they sold thing to the plaintiff.
The next defence was s. 2 of the Act of 1634. The Act is entitled “An Act against Maintenance, “[ ] and against “[ ] Buying of Titles”. It was based on one copied from the English Statute 32 Henry VIII Cap. 9 but as there is considerable controversy about the correct text of the English Act, I propose to quoto the section in the Irish Act as it appears in Grioraon’s Edition of the Statutes passed in the Parliaments hold in Ireland printed in 1794:
“And over that, be it further enacted by the authority aforesaid, that no person or persons, of what cat, degree or condition so over he or they be, shall from henceforth, bargaine, buy or sell or by any ways or means obtaine, get or have any pretenced rights or titles, or take, promise, grant or covenant to have any right or title of any person or persons in or to any manners, lands, tenements or hereditaments; but if such person or persons which shall so bargaine, sell, give, grant, covenant or promise the same, their ancestors, or they by when he or they claims the same, have been in possession of the same or of the reversion or remainder thereof, or taken the rents or profits thereof by the space of one whole year next before the said bargaine, covenant, grant or promise made, upon “[ ] he that shall make any such bargaine, sale, promise, covenant or grant, to forfeit the whole value of the lands “[ ] or hereditaments so bargained, sold, promised, covenanted or granted contrary to the form of this Act; and the buyer or taken thereof, knowing the same, to forfeit also the value of the said lands “[ ] or “[ ] so by him bought or taken as is abovesaid; the one half of the said forteitures to be to the King or Sovereign Lord and the other half to the party that will sue for the same in any of the King’s courts of record, by action of debt, bill, plaint or information; in which action, bill, plaint or information, no essoyne, protection, wager of law nor injunction shall be allowed.”
The words “but if such person or persons” which shall so bargain……” clearly mean “except such person or persons”. This latter was the version which appeared in the English Statutes at Large but not in the Statutes of the Realm which is the more authentic. I am indebted to Professor Geoffrey Hand for information in connection with the text of 32 Henry VIII c. 9.
This section was amended by the Statute Law Revision (pre-Union Irish Statutes) Act1962but the amendments are not relevant to the question in this case. The application of what corresponds to s. 2 in the English Act was considerably reduced by s. 6 of the Real Property Act 1845 which made a right of entry assignable by deed but this applied to England only and not to Ireland. Section 2 17 the Act of 1634 is still in force in the Republic of Ireland (see Nelson .v. Small (1862 13 Ir. C.L.R. 558). The whole of what corresponds to s. 2 in the English Act was repealed in England by the Land Transfer Act 1897. I Gillespie .v. Hogg (1947) 13 Ir. Jur. R. 15 Mr. Justice James Murnaghan held that s. 2 did not apply to land the title to which had been registered under the Registration of Title Acts. Why the whole of the section was not repealed in “[ ] inappropriate to modern conditions is a mystery.
The purpose and true construction of the section in the English Act which corresponds to s. 2 of the Act of 1634 were expounded in a passage in the judgment of Chief Justice Montague inPartridge .v. Strange, Plowden 88 in a passage which was approved in the Irish case of Robb and Reid .v. Dorrian (1877) I.R. 11 C.L. 292. The original version of Plowden’s reports was in Latin and Norman French and I quote from the version in English published in 1756: “Before I enter into consideration of the Statute I will lay down what is a pretenced right or title. And it seems to me that a pretenced right or title is but in one case, and that is, where one is in possession of lands or tenaments and another, that is out of possession, claims them or sues for them, that is a pretenced right or title. I take the Statute that if he who is out of possession bargains or sells or makes any covenant or promise to part with the land after he shall have obtained the possession of it, this shall be within the danger of the Statute whether he who so bargaine, sells or promises have a good and true right and title or not: and in this point the Statute has not altered the law for the common law before this Statute was, that he who was out of possession might not bargain, grant or let his right or title, and if he had done so, it would have been void.”
Section 2 of the Act of 1634 has however no application once it is established that Mr. & Mrs. Wilson Wright were in possession of the lands when they executed the deed of the 6th of May 1970. In my opinion neither Bartley Fahy nor his widow the original defendant were ever in adverse possession of the lands and Mr. & Mrs. Wilson Wright were in possession of them from July 1960 to the 6th of May 1970. The plaintiff’s title accordingly is not avoided or rendered invalid by s. 2 of the Act of 1634.
The County Registrar’s note of the Circuit Court Judge’s judgment was that he awarded one shilling for damages and gave leave to apply for an injunction. A formal order was apparently never drawn up. I propose to grant an injunction restraining the defendant Bridget Fahy as personal representative of Nora Fahy or in her personal capacity entering on or trespassing on the plaintiff’s lands at Lemenfield, Oughterard, County Galway. This order will bind the other members of the Fahy family when they are informed of it. The plaintiff will be awarded the costs of the proceedings in the Circuit Court and in this Court against the added defendant Bridget Fahy as personal representative of Nora Fahy.
Moore (plaintiff) v Moore and Others
[2011] 1 IR 623 [2010] IEHC 263, [2010] IEHC 462
Murphy J.
5. 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.
Bellew v Bellew
[1983] ILRM 128, [ [1982] IR 447 (Digest), [1982] IR 447
Supreme Court (Ireland)
What then of the legal consequence of these events” As indicated, thisis not a case of the wrongful or non-consentual occupation of one man’sland by another. On the contrary, this is a case in which the originaloccupation was with the approval and consent of the then owner. Theoccupation has, however, continued long beyond what was originallycontemplated and has so continued to the total exclusive of the originalowner.It seems to me that on the facts there possibilities must be considered.In the first place, was the occupation of the lands merely as the resultof a licence from the Plaintiff which conferred a privilege but nointerest and which preserved the Plaintiff’s rights at all times”Secondly, if the original occupation was by licence only, was it limitedto the period of the negotiations and when these ended, was itsupplanted by a period of adverse possession without any legal basis soas to enable the father to acquire a title under the Statute ofLimitations” Finally, is the true explanation of the father’s entry intopossession and occupation of the lands that he was not a mere licencebut a tenant at will having an interest as such in running the farm onhis own account and for the benefit of his household which included thePlaintiff’s wife and family”
In considering these three possibilities, particularly the first andlast, the concern must be to ascertain the intention of the parties inthe absence of direct evidence from the circumstances in whichoccupation was commenced.It was formerly accepted that once a person had been in exclusiveoccupation of another’s land for an indefinite period he was to beregarded as a tenant at will and not a licensee (Doe v.Chamberlain 1839 5 M & W 14; Lynes v. Snaith 1899 IQ.B. 486). However, the tendency of more recent cases has been to moveaway from this facile assumption and to consider each case in relationto its own particular facts. This tendency has probably been accentuatedby the operation of the Rent Acts. The headnote of Cobb v. Lane1952 I A.E.R. 1199 (quoted with approval by Roskill L.J. in Heslopv. Burns 1974 3 A.E.R. 408 at 412) sets out what I regard as thepresent position on the authorities. It is as follows:
“The fact of exclusive occupation of property for an indefiniteperiod is no longer inconsistent with the occupier being a licensee andnot a tenant at will. Whether or not a relationship of landlord andtenant has been created depends on the intention of the parties and inascertaining that intention the court must consider the circumstances inwhich the person claiming to be a tenant at will went into occupationand whether the conduct of the parties shows that the occupier wasintended to have an interest in the land or merely a personalprivilege without any such interest.”
Having said this, I propose now to consider each of the threepossibilities which I have mentioned.
The first possibility is that the entry into occupation was under a merelicence. I have referred to the two letters of authorisation but I thinkit is only necessary to consider the second which contained no timelimit and which in effect continued the then existing situation. Thisletter is certainly capable of being regarded as conferring a licenceonly. However, regard must be had to the circumstances in which it waswritten. It was written by the Plaintiff after he had deserted andabandoned his wife. It referred to the only source or means whereby thewife and family could be maintained, viz., the income from the farm, andit was written to the only person who could, by running that farm,maintain that income. In addition, if accepted, it imposed no benefitbut rather a burden on the Plaintiff’s father who would be obliged totake on extra responsibilities in ease of the Plaintiff and for thebenefit of the Plaintiff’s dependants.Finally, it was written in contemplation of a more permanent legalarrangement, in respect of which negotiations were then under way, underwhich the father would have a lease of the farm. For these reasons I donot think a licence was intended or given. As I hope to show, it was theintention of the parties that the father should go into occupation as atenant at will pending the conclusion of the negotiations which werethen in being. However, if I am incorrect in this view and if theoriginal entry into occupation was by licence, I must consider thesecond possibility and the question whether this licence survived thebreakdown of the negotiations. The learned trial Judge took the viewthat it did not, and, that from July 1963 the father was in adversepossession of the lands. I find it difficult to say that this viewcannot be justified by the evidence and I am not prepared to say that itis incorrect. My only hesitation in adopting it is that if the letter ofthe 5th December 1961 conferred a licence “pending furthernegotiations” when did this licence come to an end” Did it endbecause thenegotiations actually in being were not fruitful or could it be saidthat it continued to exist because other and fresh negotiations werealways possible”
As indicated, however, I regard the third possibility as containing thetrue explanation as the circumstances of the father’s entry intopossession and occupation of the farm. The Plaintiff wished to relievehimself of his obligations to his wife and family. He contemplated doingso by giving a lease to his father in return for his father’s promise tolook after the wife and family. Obviously he was never going to returnto Barmeath as he was living with the other lady in England andcontemplated divorce proceedings. Even as a short-term measure theintricacies of running a large farm with a danger of trespass, thepossibility of agistment and other contracts, required that the personrunning such a farm would have some legal interest therein. It seems tome that such a situation indicated that a tenancy at will pending thegrant of the contemplated lease must have been intended. While theinferring of tenancies at will may now be lessfrequent by reason of the Rent Acts and other social changes, suchinference is still to be found in circumstance such as have occurred inthe present case. A passage from the Judgment of Scarman L.J. in Heslop v. Burns at 416 is apposite. He says:
“In the books (and we were referred to a passage in Woodfall) onefinds still the assertion that an exclusive occupation of indefiniteduration can create a tenancy at will. The social changes to which Ihave alluded seen to show that less and less will the courts be inclinedto infer a tenancy at will from an exclusive occupation of indefiniteduration. It may be that the tenancy at will can now serve only onelegal purpose, and that is to protest the interests of an occupierduring a period of transition. If one looks to the classic cases inwhich tenancies at will continue to be inferred, namely the case ofsomeone who goes into possession prior to a contra of purchase, or ofsomeone who with the consent of the landlord, holds overs after theexpiry of his lease, one sees that in each there is a transitionalperiod during which negotiations are being conducted touching the estateor interest in the land that has to be protected, and the tenancy atwill is an apt legal mechanism to protest the occupier during such aperiod of transition; he is there and can keep out trespassers; he isthere and can keep out trespassers; he is there with the consent of thelandlord and can keep out the landlord as long as that consent ismaintained.”
I have, therefore, come to the view that the father entered intooccupation of the farm lands at Barmeath as the tenant at will of thePlaintiff. The intention was that this tenancy would be replaced by along-term lease but the breakdown of negotiations made this impossible.The father, nevertheless, continued on in occupation and now in theseproceedings has pleaded the Statute of Limitations in answer to theson’s claim to assert title to the lands.
By Section 13(2) of the Statute of Limitations 1957 it is provided asfollows:
“(2) The following provision shall apply to an action by a person(other than a State authority) to recover land
(a) subject to paragraph (b) of this subsection, no such action shall bebrought after the expiration of twelve years from the date on which theright of action accrued to the person bringing it or, if it firstaccrued to some person through whom he claims, to thatperson”.
Section 17(1) of the Statute provides as follows:
“(1)”
(a) A tenancy at will shall, for the purposes of this Act, be deemedto be determined at the expiration of one year from the commencementthereof, unless it has previously been determined.
(b) The right of action of a person entitled to land subject to atenancy at will shall be deemed to have accrued on the date on which thetenancy is determined.”
And by Section 24 it is provided that at the expiration of the periodfixed by the Act, for any person to bring an action to recover land, thetitle of that person to the land shall be extinguished. By reason ofthese provisions I am of the opinion that the Plaintiff’s right torecover the lands the subject of this appeal was barred after theexpiration of thirteen years from the month of June 1961 and that asfrom June 1974 his title to these lands was extinguished.
It is only necessary to add that certain statements, one in a letterfrom the father’s solicitors in 1975 and another in an affidavit swornby him in the English divorce proceedings in 1977 were relied on asacknowledgment of the Plaintiff’s title so as to prevent time runningagainst him. I express no view as to whether these acknowlegments weresuch as to comply withthe Statute but I regard them as irrelevant since they occurred afterthe period of limitation had expired and as the Plaintiff’s title tothese lands had been extinguished.
Griffin J.
The father was undoubtedly in exclusive occupation of the lands whilethe negotiations were going on and until they broke down in July 1963.It is therefore necessary to consider the nature of that occupation. Itwas formerly accepted law that where there was exclusive possession foran indenfinite period a tenancy at will must be implied. That is nolonger the case nor has it been for many years. In Shell-Mex v.Manchester Garages Ltd., 1971 1 W.L.R. 612 Lord Denning tritelyreferred to it as being “old law which is now gone”.Although exclusive possession is an important consideration indetermining whether the person in occupation is a licensee or a tenant,it is no longer a decisive factor, and the transaction as a whole mustbe looked at to ascertain the intention of the parties – see Shell-Mex v. Manchester Garages Ltd. (supra); Gatien MotorCo. v. Continental Oil, 1979 I.R. 406.In Cobb v. Lane, 1952 1 A.E.R. 1199, Somervell L.J. said at p.1200:
“The modern cases establish that, if there is evidence of thecircumstances in which the person claiming to be a tenant at will, wentinto occupation, those circumstances must be considered in deciding whatthe intention of the parties was”.
Shortly after Cobb v. Lane was decided, Denning L.J. said in Fachini v. Bryson, 1952 1 T.L.R., 1386, 1389:
“In all the cases where an occupier has been held to be a licenseethere has been something in the circumstances, such as a familyarrangement, an act of friendship or generosity, or such like, tonegative any intention to create a tenancy”.
Cobb v. Lane was applied in Heslop v. Burns, 1974 1W.L.R. 1241. In that case, Roskill L.J. thought that the principle laiddown in Cobb v. Lane should be added to by what Denning L.J.said in Fachini v. Bryson, and Scarman L.J. said that it seemedto him that what Denning L.J. had said gives some helpful guidanceas to the sort of circumstances that now have to be examined andassessed in determining whether or not a tenancy at will has beencreated.
The circumstances in which the father went into occupation in this casewere, and were intended to be, in the nature of a family arrangementwhile the negotiations relating to a separation agreement between theplaintiff and his wife, and to the hoped for disposition of theplaintiff’s life estate in Barmeath, were being carried on. Applying theprinciples established in the cases to which I have referred, althoughthe father was in exclusive possession of the lands until thenegotiations were finally concluded (by breaking down) in July 1963, hewas in my opinion in occupation as a licensee and not as a tenant atwill, and time could not run in his favour while he so occupied as alicensee – see Murphy v. Murphy, 1980 I.R. 183, per Kenny J. atp. 202; Hughes v. Griffin, 1969 1 W.L.R. 23.
However, as the arrangement under which he was inoccupation of the lands finally came to an end in July 1963, so also didthe licence and permission to occupy under the arrangements made betweenthe parties and their solicitors. The father was then in his middle 70’sand, not unexpectedly for one of his generation, was somewhat outragedat all that had taken place in the previous two years. He wanted, andindeed had, no further contact whatever with the plaintiff or withanyone on his behalf. He farmed the lands at Barmeath as his own, paidall outgoings, and did not account to the plaintiff for any of theprofits of the land. After July 1963 no communication whatever came tothe father from the plaintiff; he did not contribute one penny to thesupport or maintenance of his wife or family, nor did he at anytime makeany claim to the lands or seek any account of the profits of thefarm.
In the foregoing circumstances, was the father in adverse possessionwithin the meaning of s. 18 of the Act of 1957″ The learned trial judgeheld that hewas, and in my opinion he was correct in so finding. In Murphy v.Murphy, (supra) Costello J. in considering the question of adversepossession, applied the test “was the defendants’ possessioninconsistent with and in denial of the (widow’s) rights as legalowner”s – the father’s possession undoubtedly satisfied that test.That case came to this Court on appeal and the decision of Costello J.was upheld. In the course of his judgment, Kenny J. said at p. 202:
“In s. 18 of the Act of 1957 adverse possession means possessionof land which is inconsistent with the title of the true owner; thisinconsistency necessarily involves an intention to exclude the trueowner; and all other persons, from enjoyment of the estate or interestwhich is being acquired. Adverse possession requires that there shouldbe a person in possession in whose favour time can run”.
The possession of the father was inconsistent with the title of theplaintiff; he clearly intended to exclude the plaintiff and all otherpersons from the lands, which he treated as his own, and he was a personinwhose favour time could run. He was, in my opinion, undoubtedly inadverse possession of the lands. Accordingly, by virtue of theprovisions of s. 13(2)(a), s. 14(1) and s. 24 of the Act of 1957, theplaintiff’s right of action to recover the land was barred after 12years commencing in July 1963, and his title was, at the end of thattime, extinguished.
One further matter arises in the appeal. It is alleged that in November1975 and again in November 1977 there were acknowledgments of the titleof the plaintiff by the father, and that accordingly by virtue of s.51(1) of the Act of 1957 a fresh right of action was deemed to haveaccrued to the plaintiff on each of these occasions. In November 1975,the solicitors who act for the father wrote to the plaintiff inconnection with wealth tax on the life tenancy in the land. The fatherwas totally unaware of any such correspondence. In November 1977, thefather made an affidavit in the son’s divorce proceedings. It isalleged that on each of these occasions there was an acknowledgment ofthe title of the plaintiff. Whilst I do not think that there was an”acknowledgment” within the meaning of chapter III of theAct of 1957 on either occasion, it is not necessary to decide thisquestion, as the matter may be decided on a much broader ground. In thecase of land, once the full limitation period of 12 years has run, noacknowledgment can operate to revive any action to recover the land.Prior to 1833, the statutes then in force barred only the remedy and notthe right. S. 34 of the Real Property Limitation Act, 1833, changed thelaw by providing that, once the full period of limitation had run, theright and title of the owner to the land was extinguished, so that notonly was the remedy to recover the land barred but the title to the landwas also barred. This position was continued by s. 24 of the Act of1957. This section, as was pointed out in the judgments delivered byWalsh J. and by me in Perry v. Woodfarm Homes Ltd., 1975 I.R. 104, means what it says. No purported acknowledgment madeafter July 1975 could, therefore, revive the plaintiff’s right of actionto recover the land.
I would accordingly dismiss this appeal.
I agree with the judgment of Mr. Justice Griffin and that the order ofthe High Court should be affirmed.
Murphy v Murphy
[1979] 7 JIC 2503, 1978 WJSC-SC 3591
Supreme Court
O’HIGGINS C.J.
The facts relevant to the issues which arise on this appeal are fully set out in the Judgment of the trial Judge, Mr. Justice Costello, and in the Judgment about to be delivered by Mr. Justice Kenny. It is unnecessary, therefore, for me to refer to these facts in any detail It suffices to say that the effect of the Will of the late Laurence Murphy who died on June 23rd, 1936, was to divide his farm of 153 acres into three parts at the end of the ten-year trust period provided for in his Will. This farm lay north and south of the Loughrea-Kilchreest road in the County of Galway. The portion north of the road contained 40 acres and the portion south of the road contained 113 acres. As residuary legates his widow became entitled to the 40 acres north of the road, while the portion south of the road was divided between his two sons, Thomas and Laurence, the Plaintiff and Defendant, respectively in these proceedings. The widow was given in addition a right of residence and support on whichever portion of the sons’ divisions she should choose at the end of the trust period. The ten-year trust provided for the working of the farm as a unit by the testator’s son, Laurence, as manager under the direction of the trustees and for the lodging of all profits derived from the working of the farm, in a bank account in the joint names of the widow and himself. The terms of the Will were carried out and for the period of the trust the lands were managed and farmed as one unit by Laurence and the joint bank account was duly kept, into which the profits of the farm were lodged. After the expiration of the trust period, Thomas the Plaintiff in this action, assigned his division of the lands to Laurence by a transfer which became effective in 1954. In that year also the joint account came to an end and since then and up to the commencement of this action Laurence has farmed all the lands as the apparent owner. From the death of the testator the widow continued to reside in the family home which was on Laurence’s divide. She was provided for and maintained thereon by Laurence until 1968 when she went to a Home where she died on the 25th March 1971 at the advanced age of 91. By her Will she appointed the Plaintiff her Executer and sole residuary devisee and legatee. As such the Plaintiff claims that the lands north of the Loughrea-Kilchreest road are now his property and he seeks to recover them from the Defendant. The Defendant claims that he has acquired title to these lands and that the Plaintiff’s claim thereto is barred by the Statute of Limitations 1957. In the High Court, Mr. Justice Costello decided this issue in favour of the Defendant and against that decision this appeal has been brought.
Section 13(2) of the Statute of Limitations Act1957provides that no action for the recovery of land may be brought by any person (other than a State authority) “after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims to that person.” In this case the Plaintiff claims through his mother, the testator’s widow. She became entitled to this portion of the lands under the terms of the Will at the expiration of the trust period which occured in 1946. At that time she was residing in the old family home with the Defendant. The lands continued to be farmed as one unit with the Plaintiff also there, until he left in 1949 to go to England. He sold and transferred his share to the Defendant in 1954. In that year also the joint account which had been continued after the expiration of the trust period was closed and from there on the Defendant ran the farm himself on his own account.
Section 18(1) of the Statute of Limitations provides as follows:
“18(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.”
The question which arises is when on the facts as found by the trial Judge did the widow’s right of action to recover these lands accrue. Her title commenced in 1946 but at that time and untill 1954 the joint account continued. The trial Judge regarded this period from 1946 to 1954 as being equivocable by reason of the continued existence of the joint account. He took 1954 as the starting point and concluded that from then on all equivocation in relation to Laurence’s possession ceased and that the limitation period commenced to run. Section 18 defines adverse possession as being possession by some person in whose favour the period of limitation can run. The period would not run in favour of a person in possession as a licensee or as an agent or as a trustee – nor would it run if there were disability or fraud. None of these circumstances exist in this case. Here the trial Judge found as a fact that from 1954 onwards the Defendant’s possession was adverse within the meaning of the 1957 Act because he was a person who was in possession and in whose favour the limitation period could run. It is possible that the widow never knew of her rights to the 40 acres under the Will and assumed that the entire farm had been divided
Judgment delivered 25th July 1979.KENNY J.: Parke J. CONCURRING
KENNY J.
On 29th of March, 1920, Laurence Murphy (“the testator”) bought the freehold interest in the lands of Gortnamacken in the county of Galway containing 153 acres. The Loughrea-Kilchreest road divides these lands into two portions: the road runs on a bridge which is above the level of the lands but access from one part of them to the other is got through two arches at ground level in the bridge. The lands to the north of the road are liable to heavy flooding and are suitable only for the grazing of cattle. The dwelling-house on the lands known as Millmount is on the south side of the road. The land to the south of the road contains 113 acress and that to the north of it 40 acres.
When the testator made his will on the 30th of May, 1936, there was a cottage known as “Garvins” with a small garden attached to it on the north side and very near to the road”. Opposite Garvins’ garden and on the south side of the road there were two pillars. In a field south of the road there was a hard’s house and at the most southern portion of the lands there was a field which was owned by an adjoining occupier and known as “Martin Ford’s tillage field”. When the testator made his will, his wife, his daughter Annette, his two sons, Thomas (the plaintiff) and Laurence (the defendant) and he resided in Millmount House. By his will the testator left the lands to his trustees to hold them upon trust for his wife, Agnes Murphy and the plaintiff and the defendant for a term of ten years from the date of his death, and directed that the defendant was to act as manager of the lands and that all profits derived from them should be lodged in the National Bank at Loughrea in the joint names of his wife and the defendant. He directed that at the end of the period of ten years, legacies were to be paid to his wife and his daughter to out of the moneys lodged. He directed that at the and of the period of ten years his lands were to be divided by drawing a dividing line from the two pillars opposite Garvins’ garden to proceed straight towards the herd’s house up to the corner of Martin Ford’s tillage field” and he left that part of the lands on the eastern side of the dividing line with the dwelling-house and premises thereon to his trustees upon trust for the defendant absolutely. The lands on the western side of the line were left to trustees upon trust for the plaintiff absolutely. The will continued:
“I direct that from and after the said division and from and after the vesting of the said respective portions of my said farm and lands in my said sons my said wife shall have the right during her life to reside upon whichever portion of the said lands she chooses and to be supported, clothed, maintained and fed thereon and thereout and that in addition she shall be paid during her life by my said son Laurence Murphy a sum of £10 each year and a similar sum by my said son Thomas Murphy”.
The testator left all the residue of his property real or personal to his wife. He died on the 23rd of June, 1936 and on the 16th of April, 1941 letters of administration with the will annexed were granted to the defendant. The title to the lands at Gortnamackan was never registered under the Registration of Title Act, 1891 or under that of 1964.
All the lands north and south of the road were farmed by the plaintiff and the defendant untill 1951 when the plaintiff agreed to sell the lands given to him by the testator’s will to the defendant and the plaintiff then left and went to England. This agreement was carried out by a conveyance made on the 9th of March, 1954 by which the plaintiff conveyed all the lands left to him by the testator’s will to the defendant. In 1954 the bank account referred to in the will was closed and the legacies left to Agnes Murphy and her daughter were paid. The widow and her daughter continued to live in “Millmount” and were supported and maintained by the defendant who paid the widow the sum referred to in the will. In 1968 the widow left the lands and went into a home for old people and the daughter remained in the dwelling-house. Agnes, the widow, died on the 27th of March, 1970 and by her will left everything she had to the plaintiff.
I am convinced that under the testator’s will the lands north of the road became the property of the widow under the residuary clause but I am equally certain that she never knew this and assumed that from 1954 Laurence was the owner of the 153 acres subject to her right to reside in the house and to be maintained out of the lands south of the road. From 1954 Laurence farmed the entire holding and spent money on draining the lands north of the road. The defendant assumed that all the lands north and south of the road belonged to him.
In 1976 the plaintiff brought proceedings for a declaration that he was the owner of the lands north of the road under the bequest to him made by his mother’s will. The defendant claimed that he had acquired a title to them under the statute of Limitations 1957. The trial Judge (Mr. Justice Costello) held that the widow’s right to the lands north of the road had become barred under that statute. I agree with his conclusion.
The provisions of that statute which are relevant are s.13 sub-s. 2 and s.18 sub-s.(1). Section 13 sub-s. 2 reads:
2 “(2) The following provisions shall apply to an action by a person (other than a State authority) to recover land.
a – No such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.”
Section 18 sub-s.(1) reads:
“No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adversepossession) of some person in whose favour the period of limitation can run”.
The ignorance of the widow and of Laurence that the lands north of the road belonged to her does not prevent the Statute of Limitations 1957 applying and does not prevent Laurence (the defendant) being in adverse possession of these lands. In Wylie’s Irish Land law at p. 857 it is stated: “It is also established that the adverse possession may take place without either party being aware of it”. The widow was not maintained out of the land north of the road because although the whole farm was worked as one unit, her right to maintenance and to the annual sum came out of the lands left by the testator to the plaintiff and the defendant and the only claim she had to the lands north of the road was as residuary legatee.
The question then is did the defendant have adverse possession of the lands north of the road from 1954 when the joint account was closed” Before 1833 the common law had engrafted the doctrine of nonadverse possession on to the earlier Statute of Limitations so that the title of the true owner was not endangered until there was possession clearly inconsistent with recognition of his title i.e. adverse possession and so there had to be an ouster. This doctrine of non-adverse possession was abolished by the Real Property Limitation Act, 1833 in which the words “adverse possession” with not used (Lord Upjohn in Paradise Beach and Transportation Company Limited v. Robinson (1968) A.C. 1072). The use of the words “adverse possession” in the Act of 1957 does not revive the doctrine of non-adverse possession which existed before 1833. In s. 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner and all other persons from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus, it cannot run in favour of a licensee or a person in possession as servant or caretaker or a beneficiary under a trust (Hughes v. Griffin 1969 1 All E.R.460). In the instant case the defendant’s possession from 1954 was inconsistent with his mother’s title to the lands north of the road. She never made any claim to be the owner of them because she did not know that she had one. The fact that she lived in Millmount until 1968 and that all the lands were farmed as one unit was not an assertion by her of any claim to the lands north of the road. There is no evidence that she ever went on these lands or made any use of them. This view is strongly supported by a recital in a deed of mortgage of the 14th of December, 1954 by which Laurence charged all the 153 acres in favour of the National Bank. The widow joined to postpone her rights under the will to the claim of the Bank. In that deed Laurence, the defendant, is called the mortgagor and in the deed which is signed by the widow and the daughter there is a recital: “and whereas the mortgagor is now seised and possessed of the lands in the Schedule hereto”: these are the entire holding of 153 awes.
I have considered the decisions of the English Court of Appeal inWallis. v. Shell Mex and B. P. (1974) 3 A.E.R. 575 andTreloar v. Nute (1977) 1 A.E.R. 230. In each of these cases the question was whether the person in possession of lands had been in adverse possession. This is ultimately a question of fact: in this case I have no doubt that the defendant was in adverse possession since 1954. The plaintiff’s claim to the lands north of the road is therefore barred by the Statute of Limitations and the action fails and should be dismissed.
Dolan v Reynolds
[2011] IEHC 334
Abbott J.
Conclusions
(I) Adverse Possession of the Defendant
a A. The defendant clearly was not in adverse possession in relation to his late father, Matthew Reynolds, as he did not reside on the lands to the exclusion of his father’s family, i.e. his later mother and siblings. Also, his evidence was that his father requested him to carry out the extension for him and there was no suggestion that this work was an exercise of the defendant in the exclusion of the father.
b B. Neither was the defendant in adverse possession as against the mother insofar as he was not in possession to the exclusion of other persons, especially the mother and his siblings, although as time went on the siblings were coming and going on a less frequent basis. The dealings admitted by the defendant to have taken place between himself and the mother, such as the Deed of Release of 1980 and the action taken by the mother to provide security for a loan to the defendant from a financial institution to enable him to carry out works, is overwhelming evidence to indicate that there was no exclusion by the defendant of the mother either in her own right or in her capacity as personal representative of his late father, Matthew Reynolds.
c C. Neither did the defendant exclude the plaintiff or other members of the family from the premises insofar as he participated to a certain extent in the endeavour of the plaintiff to provide housing for herself on the site of the lands, and it was only late in the day when a spat arose over the placing of material on the lands on behalf of the plaintiff that an adverse claim commenced to be asserted.
(II) Statute of Limitations
31. As the defendant was not in adverse possession of the lands and did not have exclusive occupation thereof as against either his father or his personal representative and did not have the requisite period of time from the death of his mother to the commencement of proceedings by the plaintiff to establish title by adverse possession as against the estate of the mother, I find that the plaintiff is not statute barred from claiming possession of the lands and is, therefore, entitled to an injunction in this case subject to such further equitable considerations as arise.
(III) Delay
32. I accept the statement of the law in Delaney quoted above in relation to the general non-applicability of the defence of delay to cases governed by the Statute of Limitations. The principles referred to are all the more applicable in a case such as this where registered land is involved, insofar as the jurisprudence arising from ÓDomhnaill v. Merrick and other following cases is not relevant to the situation of a person seeking to establish a right to the lands which would constitute a burden without the necessity for registration under s. 71(1)(p) of the Registration of Title Act 1964, which deals with rights of persons acquiring or in the course of being acquired under the Statute of Limitation by way of adverse possession. It seems to me that the disqualification from asserting a right as envisaged by ÓDomhnaill v. Merrick, such as the inability to establish a defence, is anathema to the positive acquisition of a right envisaged under s, 72(1 )(p) or for that matter, establishing a right as a person in actual occupation as envisaged by s. 72(1)(j) of the 1964 Act. While I note that consideration of a case of delay under ÓDomhnaill and related cases involved the balancing of conduct including delay on the part of a person in the defendant’s position, I consider that the delay caused by the defendant in this case by not accepting service of proceedings and subsequently tardiness in replying to a notice for particulars necessitating, in both cases, remedial applications to the Circuit Court, while being relevant in relation to consideration of various aspects of the case later on, would not tip the balance against the defendant even if he were to get some advantage or defence on the basis of ÓDomhnaill principles.
(IV) Absence of Assent
33. As transactions in relation to registered land are governed in detail by Statute and the rules made thereunder, the courts should be reluctant to interfere with such an extensive scheme which has had and continues to have the effect of greatly simplifying the complexities of conveyancing. Hence, I am very reluctant to accept that the solution proposed in the judgment of Keane J. in Mohan v. Roche in the case of the absence of an assent of non-registered land, should be followed as it would fly in the face of the principle of the conclusiveness of the register and the express provisions of s. 72 of the 1964 Act specifically listing burdens which may affect registered land whether those burdens are or not registered. To concede an extension of the Mohan v. Roche principle to registered land would be for the courts to create an additional burden affecting land of a type outside s. 72 and would constitute an unwarranted usurpation of the powers of the Oireachtas.
(V) Compensation for Work
34. The defendant is clearly statute barred in respect of any claim for works done on behalf of his father, Matthew Reynolds deceased. While his counsel did attempt to argue that the performance of works by the defendant for his late father should give rise to an inference that there was an agreement expressed or implied by the father to grant an interest in the lands corresponding to the proportionate value of the works to the defendant, this argument has no credence in the light of the dealings which the defendant had with his mother in relation to the Deed of Release and undertaking of mother through her solicitor to hold title deeds as security for a loan (even though the formal title to the lands in question was not perfected by reason of the absence of an assent). The plaintiff did not really contest the entitlement of the defendant to the sum of €60,000 awarded by the learned Circuit Court Judge in respect of works carried out during the life of his mother and after the death of his father up to the 18 th May, 2004. Similarly the question arises whether the carrying out of such extensive works which, combined with the works done during the life of his father, fundamentally altered the footprint and image of the house would carry with it by reason of the court holding that there was an implied agreement that an interest would pass proportionality to the defendant in the lands, I can say that there was no course of dealing evidenced between the mother and son such as would indicate such an agreement express or implied. The case is, therefore, one where the defendant should be compensated for the work done after the death of his father on the basis that to grant an injunction without further compensation would be to unjustly enrich the estate of the deceased and the other beneficiaries.
(VI) Entitlement of the Defendant to remain in Possession
35. While counsel on behalf of the plaintiff prevaricated on the matter during the course of the appeal, it is clear that it is contemplated that the plaintiff, as personal representative of the deceased registered owner, will sell the property and administer the estate as was stated on her behalf by her solicitors in the preliminary letter sent to the defendant prior to the commencement of the proceedings herein. Indeed, on the basis of Gleeson v. Fehan above, to do otherwise than sell the lands and administer the estate for distribution to the next of kin or their personal representatives would be to create from these proceedings an incorrect interpretation of the commendation of the Statute of Limitations and the Succession Act as an engine of fraud. Therefore, I consider that the order of the Circuit Court in para. E that the sale of the property be subject to the defendant remaining in the property pending sale is inappropriate as such a provision would not only jeopardise the sale of the property, but could well lead to further disputes and litigation in a family already damaged by such events.
(VII) Treatment in Equity
36. As the plaintiff could, having regard to this judgment, have brought proceedings by way of ejectment on the title which might not be amenable to the flexibility and fine tuning of the same relief being obtained by way of an injunction, and the defendant has eloquently prayed for equitable relief to temper the severity of any order for possession by way of injunction, it is appropriate in the interests of justice and this family that the court would temper the injunction with the following terms:-
a A. That the defendant is not entitled to payment of the sum of €60,000 compensation until he administers the estate of his mother and pays the next of kin their appropriate shares.
b B. That the plaintiff proceeds forthwith to administer the estate of Matthew Reynolds, deceased.
Summary
37. The court discharges the order of the 3 rd day of April, 2009, and substitutes therefore the following order:-
a A. A declaration that the plaintiff, as administrator of the estate of Matthew Reynolds, is entitled to possession of the lands comprised in folio 21280 of the Register of County Meath.
b B. A declaration that James Reynolds, the defendant/appellant, has not acquired title to Folio 21280 of the Register of County Meath by way of adverse possession.
c C. A declaration that the defendant/appellant is entitled to financial compensation in the sum of €60,000 for work expended on the property from the 19 th January, 2002, to the 18 th May, 2004, such compensation to be paid on condition of compliance with the conditions for payment of same as described in this judgment.
d D. That the defendant/appellant be restrained from carrying out any further works on the property.
e E. A mandatory injunction directing the defendant/appellant to forthwith vacate the lands contained in Folio 21280 of the Register of County Meath and give up possession thereof, including all keys, utility bills and all matters for the effective handover of the property to the plaintiff.
f F. That the plaintiff/respondent proceed with the proper administration of the estate of Matthew Reynolds, deceased, upon receipt of possession of the property and lands contained in Folio 21280 aforesaid in accordance with the preliminary letter herein.
38. The court invites the parties to make submissions in the light of the foregoing judgment and amended order in relation to the costs of the parties and how the costs of these proceedings should be dealt with (if at all) in the administration of the relevant estates.
Gleeson v Feehan
[1997] 1 ILRM 522
Court: Supreme Court (Ireland)
Keane J.
The submissions on behalf of both parties can be briefly summarised. On behalf of the Defendants, it is submitted that, on the death of James Dwyer, the registered owner, in 1937, the lands became vested in the President of the High Court pending the extraction of a Grant of Letters of Administration. The next-of-kin, it was said, acquired no legal or equitable interest on the death of James Dwyer to any particular asset which happened to form part of his estate. In those circumstances, it was urged that the occupation by Edmond, or anyone else, of the lands was unlawful and could have been restrained by the legal owner, i.e. the President of the High Court. Since Edmond and Jimmy had acquired title as disseisors, it followed that they acquired that title as joint tenants and that, on the death of Edmond in 1971, Jimmy, as the surviving joint tenant, became entitled to the land.
On behalf of the Plaintiffs, it was submitted that, on the death intestate of the owner of the lands, the beneficial interest vested immediately in the next-of-kin entitled under the statute of distributions and that any of them who remained on in possession were equitable tenants in common of the land and not trespassers. Prior to the Administration of Estates Act 1959and the Succession Act 1965the personal representative (or the President of the High Court before the raising of administration) could only eject the next-of-kin in possession if a sale of the lands was required for the payment of debts. Moreover, the beneficiaries were entitled to call on the personal representative to vest the land in them. In the present case, the lands vested in the six children of James O’Dwyer to the exclusion of anyone else, whether in possession or otherwise. The claims of the remaining five tenants in common were statute barred at the time of Edmond’s death and, accordingly, he was solely entitled to the land at that stage. It thereupon devolved on his next-of-kin of whom Jimmy was not one.
Before considering the authorities, I would make two preliminary observations.
In the first place, I think some confusion may be caused by describing a person in the position of Edmond as “a trespasser”. If the submissions advanced on behalf of the Defendants are well founded, it is true to say that he was, in the strictly legal sense, a trespasser. Many people would instinctively think of a trespasser as a person who takes possession of land to which he has no right. It would seem inappropriate in everyday language to describe a member of a family who goes on living in the family home after the death of his parents as a “trespasser”. If, however, a person has remained in what the law has come to call “adverse possession” of land for the specified period prescribed by the relevant statute of limitations and thereby becomes the legal owner of the land, it may well be that, in strict legal theory, his possession throughout that period can also be described as that of “a trespasser”, however, incongruous that description may appear to be when applied to a child who stays on in possession of the family home which everyone else has left.
In the second place, while there has been much debate in this case as to the nature of the interest, if any, of the next-of-kin of James Dwyer in these lands after his death, it does not seem to me to be axiomatic that the existence of a beneficial interest in the property, if such there was, ipso facto carried with it a right to possession of the land.
In considering the authorities, it will probably be convenient to start with Martin v. Kearney, 36 ILTR 177, since it is to some extent the sheet anchor of the Plaintiff’s case. In that case, the Plaintiff was one of four children who were in possession of a farm after their father’s death. The other three having died before the proceedings were instituted, the Plaintiff claimed to be entitled to the entire farm as a surviving joint tenant. The Defendant was his sister who had left the farm on her marriage before the father’s death and had returned to it with her son at the request of the Plaintiff’s brother shortly before his death.
The County Court Judge having given a decree in favour of the Plaintiff, the appeal came on before Palles C.B. He held that the Plaintiff was entitled to no more than a one fourth share in the farm as tenant in common and was not entitled to an ejectment decree against his sister. He, accordingly, converted the Ejectment Civil Bill into an Equity Civil Bill and made an order declaring the Plaintiff entitled to one undivided fourth part in the farm.
In the course of his judgment, which appears to have been extemporary, the Chief Baron said that he was not prepared to follow a decision of Ross J. (as he then was) in Coyle v. McFadden, 35 ILTR 95 to the effect that next-of-kin remaining on in possession in such circumstances acquired a possessory title as joint tenants. The report continues:
“Palles, C.B…held that the next-of-kin remaining in possession without any administration having been taken out to the deceased intestate were equitable tenants in common under a good equitable title, and were not trespassers, and that, when the statute of limitations ran, their equitable tenancy in common became a legal estate as tenants in common…”
Counsel for the Defendants had relied on a decision of the Irish Court of Appeal in Gilsenan v. Tevlin, which had just been decided and which is reported in the same volume ( 36 ILTR 35). In that case, the Court had held that a next-of-kin of the owner of land who died intestate had a specific interest against which a judgment mortgage may be registered. There was little, if any, discussion of the applicable principles of law in the judgments of O’Brien LCJ and Fitzgibbon LJ since they considered themselves bound by the decision of the House of Lords in Cooper v. Cooper, [1874] 7 HL 53 to hold that the next-of-kin of an owner of land who dies intestate have a clear and tangible interest in the land from the time of his death. Fitzgibbon LJ accepted that, to the extent that this was the effect of the decision in Cooper v. Cooper, it was irreconcilable with the later decision of the House of Lords in Lord Sudeley v. Attorney General, [1897] AC 11. However, he was also of the view that, in accordance with the doctrine of stare decisis as it was then understood, the House of Lords was bound by its own decisions and that, confronted with a choice between two apparently conflicting decisions, the Irish Court of Appeal should follow the earlier one.
It is, accordingly, clear that the view of the law taken by Palles C.B. in Martin v. Kearney, which led him to conclude that the next-of-kin remaining in possession were equitable tenants in common and were not trespassers, derives ultimately from the decision in Cooper v. Cooper. Having regard to the disapproval which some aspects of that decision have subsequently evoked in England and elsewhere, it must be considered with some care.
The facts were as follows. A testator gave a property called Pain’s Hill in Surrey, together with personal property, to trustees on trust, after his widow’s death, to sell, and hold the proceeds, with his other property, in trust for any one of his children in such form or manner as his widow, before a certain fixed period, should appoint. He died, leaving three sons, WH, RE and FJ. Before the expiration of the fixed period, the widow executed a deed by which, after disposing of other property, she directed the proceeds of Pain’s Hill to be divided equally among the three sons. The deed reserved to her a power of revocation. She afterwards made a will, apparently under the impression that she still had power to dispose of Pain’s Hill, under which she gave that property to WH, the eldest son, and then by different successive codicils, gave benefits to the other two sons and a special legacy to each of the two children of RE (the only one of the three sons of the original testator who had married). RE died before his mother intestate. On his mother’s death a suit was instituted in which it was declared that, so far as the estate of Pain’s Hill was concerned, her will was inoperative, since it could only speak from the date of her death and therefore purportedly came into operation long after the expiration of the period fixed for the making of the appointment. The eldest son, WH, then filed a bill to compel the two children of RE and also his youngest brother, FJ, to elect between their claims under the deed of appointment and under the will and codicils. FJ submitted; the two children of RE resisted.
This would have seemed a classic case for the application of the equitable doctrine of election, under which the law does not permit a beneficiary to claim a benefit under the will and at the same time to defeat the intention of the testator in regard to other gifts contained in that will. One of the arguments advanced on behalf of the children of RE, however, was to the effect that the doctrine of election did not apply where the benefit allegedly taken under the will was not a defined or tangible interest in property, but was merely a right to have the estate administered in due course of law and to be paid whatever the beneficiary’s share of the residue might be after the payments of debts.
It is not surprising that this singularly unmeritorious argument was rejected in the House of Lords since, as the Lord Chancellor, Lord Cairns, pointed out, it was perfectly clear that, whatever the nature of the right of a residuary legatee or next-of-kin might be, it was beyond argument that it was a right which was capable of being released or assigned. (It has never been disputed that the rights of the residuary legatee or next-of-kin to a share in the balance of the estate is a chose in action capable of being assigned.) The children, in that case, were accordingly in a position to abandon the benefit they took under the will and rely on their share of the proceeds of the sale of Pain’s Hill by virtue of the deed of appointment. Alternatively, they could release their interest under the deed of appointment and take the benefits under the will. They could not, however, both approbate and reprobate the will.
In arriving at this conclusion, Lord Cairns undoubtedly expressed a view, which was not dissented from by any of the other law lords, that the interest of the next of kin in the estate of an intestate is a defined and tangible interest in specified property. The relevant passage in his speech (at p.p. 64/6) is as follows:
“My Lords, it was very much pressed on your Lordships in the extremely able argument we heard at the bar from the Counsel for the Appellants, that the interest of a next-of-kin in the estate of an intestate is an undefined and intangible interest, that it is a right merely to have the estate converted into money and to receive a payment in money after the debts and expenses are discharged. My Lords, no doubt the right of a next-of-kin is a right which can only be asserted by calling upon the administrator to perform his duty, and the performance of the duty of the administrator may require the conversion of the estate into money for the purpose of paying debts and legatees. But I apprehend that the rule of law, or the rule laid down by the statute, which requires the conversion of an intestate’s estate into money, is a rule introduced simply for the benefit of creditors, and for the facility of division. For the benefit of creditors, and for the facility of division among the next-of-kin, the estate is to be turned into money, but as regards substantial proprietorship the right of the next-of-kin remains clear to every item forming the personal estate of the intestate, subject only to those paramount claims of creditors.” [Emphasis added.]
In Lord Sudley v. Attorney General, the issue was as to whether probate duty was payable on the value of mortgages of property in New Zealand. The testator had left one quarter of his residuary estate to his widow and had not specifically disposed in the will of the mortgages. His widow died domiciled in England before the administration of her husband’s estate had been completed. It was claimed by her executors that the value of these mortgages should not be taken into account for the purpose of ascertaining the duty, but it was unanimously held in the House of Lords that the widow had not, so long as the residue was unascertained, a right to claim a share of any particular assets of the estate in specie: she could only call on the executors to administer in due course and claim her share of the residue when finally ascertained. Lord Herschell said:
“I do not think that they (the executors) have any estate, right, or interest, legal or equitable in these New Zealand mortgages so as to make them an asset of her estate.”
Cooper v. Cooper is not referred to in any of the speeches and was, it would seem, not cited in the course of the arguments. Lord Sudley’s case was also applied by the House of Lords in Doctor Barnardo’s Homes v. Special Income Tax Commissioners, [1921] 2 AC 1. In Vanneck v. Benham, [1917] 1 Ch 60, Younger J. sought to reconcile the apparent conflict between the two earlier decisions of the House of Lords in this passage:
“It is not difficult to arrive at the true distinction between the two lines of authority which at first sight may seem to be in conflict. The distinction, it appears to me, is that an interest in an intestate’s estate is sufficiently specific to raise a case of election, representing as that interest does all the money’s worth of the property comprised therein, but that such interest is not sufficiently specific apart from agreement by the next-of-kin, whether one or more than one, to enable anyone of the next-of-kin to say to the administrator “This or that thing is mine. Hand it over to me”.”
That explanation was approved by Evershed M.R. in Re Cunliffe-Owen, [1953] 1 Ch 545.
The divergent lines of authority were also referred to by Kingsmill Moore J. giving the judgment of this court in In re: Cuff Knox Deceased, [1963] IR 263. That was another revenue case in which the revenue, relying on Lord Sudley’s case, argued that estate duty was payable in respect of a trust fund settled by an Irish trust instrument. The person in respect of whose death the claim arose was domiciled in the Channel Islands at the time of his death, but it was argued on behalf of the revenue that he had no interest in specie in the specific investments constituting the trust fund, but had only a personal right of action to call upon the trustee to execute the trust declared by the relevant instruments and, if necessary, to enforce that request by legal action. The locality of such a right, it was contended, was that of the proper law of the instruments creating the trust and would in the circumstances be Irish.
Kingsmill Moore J. said that he was not prepared to extend Lord Sudley’s case beyond what it actually decided. Having referred to the fact that the judges in Gilsenan v. Tevlin had pointed out the impossibility of reconciling some of the reasons given in that case with the judgments in Cooper v. Cooper and to the explanation of the two decisions by Younger J. in Vanneck v. Benham, he went on
“So explained, Sudley’s case is not applicable to an ascertained residue, certainly where there is only one residuary legatee; nor is it applicable to an ascertained trust fund, certainly when there is only one beneficiary entitled; and this is so, as will appear subsequently, even when there are charges on the fund.”
That case, accordingly, although clearly authority for the proposition that Lord Sudley’s case does not apply to an ascertained residue, at least where there is only one residuary legatee, does not assist in determining the question as to whether the general statements of the law by Lord Cairns in Cooper v. Cooper represent the law in Ireland today.
In England, however, the conflict between Cooper v. Cooper and Lord Sudley’s case was authoritatively resolved by the decision of the Judicial Committee of the Privy Council in Commissioner of Stamp Duties (Queensland) v. Livingston, [1965] AC 694. The facts were somewhat similar to those in Lord Sudley’s case. A testator, who died domiciled in New South Wales, by his will, which was proved in New South Wales, gave his real estate and the residue of his personal estate to his executors and trustees, of whom his widow was one, on trust as to one third thereof for his widow absolutely. His assets consisted of real and personal estate in both New South Wales and Queensland. The widow died intestate, domiciled and resident in New South Wales. The testator’s estate was at the date of her death still in the course of administration, no clear residue had been ascertained, and consequently no final balance payable or attributable to the shares of residuary beneficiaries had been determined. On a claim by the Appellant, the Commissioner of Stamp Duties (Queensland), under the relevant revenue legislation that the Respondent, as administrator of the estate of the widow, or, alternatively, as one of her next-of-kin, was liable to pay duty in respect of her share of the Queensland assets on the ground that her death conferred a succession on those becoming entitled to her estate, it was held inter alia that no beneficial interest in any item of the testator’s property in Queensland, real or personal, belonged to his widow at the date of her death and duty was therefore not exigible.
Giving the advice of the Judicial Committee, Vicount Radcliffe, having cited the relevant passages from Lord Cairns’ speech in Cooper v. Cooper, went on:
” Cooper v. Cooper certainly was not cited during the argument of Sudley v. Attorney General and it has apparently been suggested that, if it had been, the law as laid down in that case would somehow have been stated in a different or qualified form. Their Lordships can give no encouragement at all to this speculation. The members of the House who decided Sudley were dealing with a branch of the law that was familiar and well established and they were dealing with it with the precision that they regarded as being required by the particular issue that was before them. The law as they there stated it was reaffirmed by the House in the same terms in Doctor Barnardo’s Homes v. Special Income Tax Commissioners.”
Vicount Radcliffe added:
“In their Lordships’ opinion the truth of the matter is that Lord Cairns’ speech in Cooper v. Cooper cannot possibly be recognised today as containing an authoritative statement of the rights of next-of-kin or residuary legatee in an unadministered estate. His language is picturesque but inexact; and while it was no doubt sufficient to enforce the point with which he was concerned to deal, a beneficiary’s right or duty of election, and the decision of the case remains an authority on that point, it would be idle to try to set it up as an exposition of the general law in opposition to what was said and laid down in the Sudley and Barnardo cases.”
It will be obvious from this necessarily abridged summary of the authorities that the decision of the Irish Court of Appeal in Tevlin v. Gilsenan, on which Palles C.B. presumably based his terse judgment in Martin v. Carney, must today be regarded as resting on, at the very least, somewhat insecure foundations. Martin v. Kearney was followed by Kenny J. in Morteshed v. Morteshed, [1902] 36 ILTR 142 in preference to Coyle v. McFadden and by O’Connor MR in Re Christie, [1917] 1 IR 17. In Smith v. Savage, [1906] 1 IR 469, Barton J, while adopting the view that the next-of-kin who remained on in possession did so as equitable tenants in common, held that they acquired title to the shares of the absent next-of-kin as joint tenants.
In Maher v. Maher, [1987] ILRM 582, O’Hanlon J, while acknowledging that the weight of Irish authority was in favour of the view that the next-of-kin remaining in possession should be regarded as occupiers as tenants in common and not as joint tenants, said that he found the argument to the contrary more persuasive. He summed up his views as follows:
“From the date of death of an intestate the next-of-kin have no right to take possession of any part of his assets until they come to be vested in them by the personal representative. Under S.13 of the Administration of Estates Act 1959it was provided that where a person died intestate his real and personal estate until administration was granted in respect thereof should vest in the President, of the High Court in the same manner and to the same extent as formerly in the case of personal estate it vested in the ordinary.”
“Under s.22 of the same Act it was provided that on the death of a sole registered full owner of land the personal representative of the deceased owner should alone be recognised by the registering authority as having any rights in respect of the land, until an assent in the prescribed form was made available by the personal representative for the purpose of securing the registration of the persons named in such assent as owner.”
“It appears to me that if some of the next-of-kin take possession or remain on in possession of lands of an intestate to the exclusion of others, their possession of the entire interest in the lands is adverse to the claims of the personal representative and of the other next-of-kin and that they should not be regarded as occupying the lands in a different character as to the shares claimed by them in their capacity as next-of-kin and as to the shares of the other next-of-kin and the entitlement of the personal representative which they are in the process of extinguishing. I consider that their occupation was as joint tenants in the entire lands and every interest therein.”
It is safe to assume that O’Hanlon J. would have treated that view as reinforced by the opinion of Vicount Radcliffe in Livingstonwhich, however, does not appear to have been cited in that case.
I should also refer to the Northern Ireland decision of Kavanagh v. Best, [1971] NI 89. In that case, the issue was as to whether a judgment mortgage was well charged on the Defendant’s interest in a property which had been specifically devised to her. The executors of the will had let her into possession and agreed to assent to the devise but no actual assent was executed. The Plaintiff relied on Gilsenan v. Tevlin, and, in the course of his judgment, Gibson J. considers the divergent lines of authority and the resolution of the issue in England by Livingston. However, he was also of the view that s.2 (3) of the Administration of Estates Act (Northern Ireland) 1955, which provided in terms similar to s.7(1) of our Administration of Estates Act 1959and s.10 (3) of the Succession Act 1965, that the executors are trustees for the persons by law entitled to the real and personal estate, meant that the executors in that case held the premises as express trustees for the Defendant and the creditors of the estate. In his view, it was not necessary, in order that a judgment mortgage might be registered against an equitable interest of a person, that the interest should be exclusive.
The relevant statutory provisions must next be considered. These were lands to which Part IV of the Local Registration of Title (Ireland) Act 1891 applied when James Dwyer died in 1937. Section 84 (1) provided that land to which that part of the Act applied devolved to, and became vested in, the personal representative as if it were a chattel real. Section 86 (1) then provided that
“subject to the powers, rights, duties and liabilities hereinafter mentioned, the personal representative of a deceased person shall hold such land as trustees for the persons by law beneficially entitled thereto, and those persons shall, subject to the provisions of this Act, have the same power of requiring a transfer thereof as they have of requiring a transfer of personal estate.”
As already noted, similar provisions were enacted in 1959 in the case of all freehold land and the provisions were re-enacted by Section 10 (3) of the Succession Act 1965which was applicable to all the real and personal estate of the deceased person.
Section 15 of the Probate and Letters of Administration (Ireland) Act 1859, as amended, provided that:
“From and after the decease of any person dying intestate, and until letters of administration shall be granted in respect of his estate and effects, the personal estate and effects of such deceased person shall be vested in (the President of the High Court) for the time being, in the same manner and to the same extent as heretofore they vested in the Ordinary.”
A similar provision was contained in s.13 of the Administration of Estates Act 1959and in s.13 of the Succession Act 1965.
The first question that arises in this case is, accordingly, as to whether the lands comprised in Folios 11057 and 3371 of the register of freeholders, County Tipperary, of which James Dwyer was the registered owner, vested in the six children of James Dwyer as equitable tenants in common, entitled to one undivided sixth share each, after the deaths of James and Mary Dwyer.
It is obvious that, using the word in a loose and imprecise sense, the next-of-kin of the intestate owner of property have at least an “interest” in ensuring that the administration of his property is carried out in accordance with law by the administrator. They have indeed more than a mere “interest” of that nature: they have a right, in the nature of a chose in action, to payment to them of the balance of the estate after the debts have been discharged, a right which can be enforced against the personal representative. It is also not in dispute that, whatever the legal nature may be of the estate vested in an executor or administrator, he does not hold the property for his own benefit: to that extent, at least, he is properly regarded as a trustee who must perform the duties of his office, not in his own interest, but in the interests of those who are ultimately entitled to the deceased’s property, whether as beneficiaries or as creditors.
It is, however, clearly contrary to elementary legal principles to treat the persons entitled to the residuary estate of a deceased person as being the owners in equity of specific items forming part of that residue, until such time as the extent of the balance has been ascertained and the executor is in a position either to vest the proceeds of sale of the property comprised in the residue in the residuary legatees or, where appropriate, to vest individual property in specie in an individual residuary legatee. Precisely the same considerations apply to the rights of a next-of-kin in relation to the estate of a person who dies intestate. Until such time as the extent of the residue after payment of debts available to the beneficiaries is ascertained, there is no basis in law for treating them as entitled in equity to any specific item forming part of the estate.
As Vicount Radcliffe pointed out in Livingston, it is no answer to these fundamental propositions to say that the beneficial interest in the property must reside somewhere during the course of administration and that, since the executor or administrator is not beneficially entitled, it must vest in the residuary legatee or (in a case such as the present) the next-of-kin. He disposes of that contention in this well known passage:
“This dilemma is founded on a fallacy, for it assumes mistakenly that for all purposes and at every moment of time the law requires the separate existence of two different kinds of estate or interest in property, the legal and the equitable. There is no need to make this assumption. When the whole right of property is in a person, as it is in an executor, there is no need to distinguish between the legal and equitable interest in that property, any more than there is for the property of the full beneficial owner. What matters is that the court will control the executor in the use of his rights over assets that come to him in that capacity; but it will do it by the enforcement of remedies which do not involve the admission or recognition of equitable rights of property in those assets. Equity in fact calls into existence and protects equitable rights and interests in property only where their recognition has been found to be required in order to give effect to its doctrines.”
It cannot, in my view, be plausibly contended that the provisions of s.86 (1) of the Local Registration of Title (Ireland) Act 1891 or the corresponding provisions in the Administration of Estates Act 1959and the Succession Act 1965have brought about a wholly different result in Ireland from that identified by the English decisions in Lord Sudley’s case, Barnardo and Livingston. It is to be remembered that, prior to the 1891 Act and the 1959 Act, freehold land devolved upon the heir at law and did not vest in the personal representative. When the legislature decided to change the law, in the case of compulsorily registrable freehold land in 1891 and all freehold land, whether registered or not, in 1959, it was perfectly logical that it should also provide that that land would vest in the personal representatives, not for their own benefit, but in trust for the persons entitled to the land, whether they should ultimately prove to be creditors or beneficiaries or both. There was no reason why the legislature should draw any distinction in this regard between the nature of the estate which vested in the personal representative in the case of personal property and in the case of real property and I do not believe that these provisions were intended to create any such distinction. It would appear, in any event, that identical provisions to those contained in the 1959 Act had been enacted for England by the Land Transfer Act 1897 and, if the English decisions after that date are not applicable in Ireland, it cannot be because of any difference in the statute law in the two jurisdictions.
To the extent that there is a conflict between the view of O’Hanlon J. in this regard in Maher v. Maher and Gibson J. in Kavanagh v. Best, I would, with respect, prefer the view adopted by O’Hanlon J. However, it should be pointed out that, while the observations of Gibson J. as to the effect of the relevant legislation in Northern Ireland are not easy to reconcile with the approach to the law adopted in Livingston, he was dealing in that case with a specific devise of property and not with the position of a residuary legatee or the next-of-kin of an intestate owner. While it is not necessary to decide the point in the context of the present case, it may be that different considerations arise in such a case.
I am satisfied that the decision of the Court of Appeal in Gilsenan v. Tevlin cannot now be regarded as correctly stating the law in Ireland. It follows that the decision in Martin v. Kearney and the subsequent cases in which it has been followed must be overruled. The possession of both Edmond Dwyer and Jimmy Dwyer of these lands was at all times adverse to the title of the true owner, the President of the High Court, in whom the entire estate in the land was vested pending the raising of representation. That view is not only in accord with the law as stated in Lord Sudley’s case, Doctor Barnardo’s Homes and Livingston: it also accords with the views of the majority of the Australian High Court in Livingston and of the Supreme Court of Canada in In Re: Steed and Raeburn Estates, Minister of National Revenue v. Fitzgerald, [1949] SCR 453. This is how the law is also stated in such well known English textbooks as Snell’s Equity 29th Edition 41/2; Underhill and Hayton on The Law of Trusts and Trustees, 15th Edition, 13/14 and Pettit on Equity and the Law of Trusts, 7th Edition 35/6. It is also supported by the leading Australian textbook, Meagher, Gummow and Lehane on Equity: Doctrines and Remedies, 3rd Edition, Para 404/412 where Livingston and its implications, in particular, are subjected to a characteristically close analysis. It is the view of the law I took at first instance in Moloney v. AIB, [1986] IR 67 and Mohan v. Roche, [1991], IR 560 and I have not been persuaded by the arguments in this case that I was wrong. It is unnecessary, in the context of the present case, to decide whether the law as so stated has any application save to the unadministered residue or the unadministered estate of an intestate and whether, for example, it applies to a specific bequest or devise.
I have so far approached the case on the assumption, implicit in some at least of the authorities and in the submissions advanced on behalf of the Plaintiffs, that, if Edmond Dwyer was entitled to an undivided share in these lands as an equitable tenant in common prior to the raising of any representation, his possession in the land was as a necessary consequence not adverse to the title of the true owner. It is, however, difficult to see why this should be so. Even if, contrary to the authorities already cited, the next-of-kin of an intestate owner of land have an equitable interest in the land from the time of his death, it does not follow that they also have a right of possession which they can enforce against the personal representative. The right, if it exists, of any of the next-of-kin to possession of any part of the estate cannot depend on the purely fortuitous circumstance that he or she happens to be in possession of the particular property at the time of the intestate’s death. If the administrator were to institute ejectment proceedings against any other person in possession, it would be no defence for that person to say that he was entitled to remain in possession of the property until such time as the administrator put up the property for sale with a view to paying the debts of the deceased. There seems no reason in principle why any different law should apply to one of the next-of-kin who happens to be in possession at the date of death.
These fundamental legal realities have been somewhat obscured in Ireland by the traditional reluctance of small farmers in rural Ireland to make wills or raise representation. The traditional method of establishing the tide to such holdings was by an application under s.52 of the Local Registration of Title (Ireland) Act 1891 or Section 49 of the Registration of Title Act 1964for registration on the basis of a title having been acquired by long possession. Hence, questions rarely arose as to the rights of personal representatives to recover possession in the circumstances I have mentioned.
If, however, the next-of-kin at the time of the intestate owner’s death are entitled to possession, not by concession, but as a matter of legal right, the same must apply to a house in a city or town. It cannot be seriously suggested that, in those cases where the owner of such a house happens to die intestate leaving, say, six children, only one of whom was living with him at the date of his death, all six are entitled to possession of the house. The personal representative may, of course, enter into some arrangement with one or more of the next-of-kin which renders their possession no longer adverse. It seems to me that, save where some licence from the true owner can be so proved or inferred, the possession of the next-of-kin must be considered as adverse.
It follows that the possession of both Edmond and Jimmy after the deaths of James and Mary Dwyer was adverse to the title of the true owner, i.e. the President of the High Court.
It is conceded on behalf of the Plaintiffs that, in the event of both Edmond and Jimmy being regarded as in adverse possession during the relevant period, they would have acquired title to the lands as joint tenants and not as tenants in common and that, accordingly, the interest of Edmond in the lands would have devolved by survivorship on his death on Jimmy.
It is clear from the decision of this court in Perry v. Woodfarm Homes Limited, [1975] IR 104 that, at the expiration of the limitation period, there is nothing in the nature of a “parliamentary conveyance” to the person in adverse possession. Since, however, under s.24 of the Statute of Limitations 1957,
“at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished”,
it is also clear that, at the end of the limitation period, no persons other than Edmond and Jimmy were entitled to any interest in the land. While the distinction is somewhat academic, I do not think that it is a case of the shares of the absent next-of-kin having vested in Edmond and Jimmy at the end of the limitation period, since, for the reasons already given, they had no proprietary interest in the land, legal or equitable, pending the administration of the estate. What was extinguished at the end of the limitation period was the title of the President of the High Court to the land and his right to bring an action to recover the land. As a result, no estate or interest in the land could thereafter be vested in the next-of-kin, whether in or out of possession, by anyone. It need hardly be said that the Grant of Letters of Administration Intestate to the estate of James Dwyer on 14th January 1983 could not have the effect of reviving the title to the land which had been extinguished many years before by the operation of s.24 of the 1957 Act.
I am satisfied that this conclusion is not in conflict with the decision of this court at an earlier stage in these proceedings, i.e. Gleeson v. Feehan, (unreported; Judgments delivered 20th June 1991). In that case, the only issue with which the Court was concerned was whether the present proceedings were statute barred by virtue of s.45 of the 1957 Act (as inserted by s.126 of the Succession Act 1965) which requires an action in respect of any claim to the estate of a deceased person to be brought before the expiration of six years from the date when the right to receive the share or interest accrued. The Court unanimously held that the relevant statutory period was s.13(2)(a) of the 1957 Act, under which an action by a person to recover land must be brought before the expiration of twelve years from the date on which the right of action accrued to the person bringing the proceedings. The Court did not have to resolve the issue which has now arisen, i.e. as to whether, assuming that the proceedings were not barred by s.45 of the 1957 Act, the lands were assets forming part of the estate of Edmond Dywer or whether his interest in the land was that of a joint tenant which devolved upon his death to the surviving joint tenant.
As I have already noted, Barton J. in Smith v. Savage held that the next-of-kin in possession held their shares as tenants in common, but acquired the shares of the absent next-of-kin as joint tenants. This position was altered by s.125 of the Succession Act 1965which provided that those in possession were to be deemed to have acquired title as joint tenants (and not as tenants in common) as regards their own shares and also as regards the shares of the absent next-of-kin. This provision was not in force at the time Edmond and Jimmy acquired their title by possession and is, therefore, of no relevance in this case. It is, accordingly, unnecessary to determine whether the section proceeds upon the mistaken assumption that the next-of-kin in possession are entitled as of the date of death to an equitable interest in the property or whether it is simply directed to the nature of their co-ownership of the land at the stage when, by virtue of adverse possession, they have acquired title to the land.
It has been urged on behalf of the Plaintiff that, having regard to the long standing practice in rural Ireland of not raising representation to the estates of deceased persons, particularly when they consist of small farms, the conclusions arrived at in this judgment would lead to considerable uncertainty as to the title to such properties. That is indeed an argument of last resort which I do not find in the least persuasive. The facts of the present case demonstrate that the state of the law, thought to have been established by Martin v. Kearney,is itself capable of producing injustice. I would, accordingly, answer the questions in the Case Stated as follows:-
1
(a) No.
(b) Yes.
2
(a) Yes.
(b) No.
3
As joint tenants.