Overview
Cases
Savage v Nolan
[1978] ILRM 151
Mr. Justice Costello
There is very little Irish authority on the legal principles which I should apply and the English authorities which are cited in the text books are not of recent origin. Mr. Maguire, on behalf of the defendant firstly referred to Brindley .v. Woodhouse (1845)1 C & K.647. This was a case concerning a lost sixty year old Deed. There was tendered in evidence a document purporting to be an attested copy of the lost Deed. The person who attested the copy was dead but his handwriting was proved. The Court, however, refused to receive the copy as secondary evidence of the Deed. That case was referred to in Halifax Banking Company Limited .v. Woods 79 L.T.R. 183 which was, again, a case in which the Court refused to accept secondary evidence of a lost Deed on the ground that the document tendered was a draft which had not been compared with the Deed. It is, however, to be noted that this was a case dealing with a dispute between a vendor and purchaser in which the purchaser refused to accept a copy of a Deed when he had requisitioned the original to compare it with the abstract furnished by the vendor’s solicitor. The Court decided that the purchaser was not bound to accept the unauthenticated copy, pointing out;
“It seems to me that as between vendor and purchaser a vendor, in the present case, has been by misfortune unable to discharge his duty to the purchaser by verifying the abstracted property” (p. 185).
The Irish case of Nally .v. Nally & Others (1953) I.R. 19was a case in which an original Deed was lost but the solicitor who prepared it was able to prove its execution and the accuracy of a copy. The copy duly stamped was admitted as evidence of the content of the lost Deed. Kerins .v. Davoren (1861) 12 Irish Chancery Reports 352 was a case in which specific performance was sought of an agreement dated the 1st of November, 1768 to grant a lease for lives renewable for ever. The written agreement on which the action was brought was lost but the plaintiff produced as secondary evidence a document purporting to be a copy of it on which was endorsed in the handwriting of the deceased and his solicitor the fact that he had compared it with the original and that it was a true copy and in which he verified the handwriting of the attesting witnesses. The report quotes the Lord Chancellor as stating “I cannot receive this evidence” but does not give the reasons for his conclusions.
Mr. Herbert, on behalf of the plaintiffs, referred me to Roscoe’s “Evidence in Civil Actions” (1934 Ed.) Vol. 1. p. 13; Halsbury’s “Laws of England”, 4 Ed. “Evidence” paragraph 130; Wigmore “Evidence” (1940 Ed.) Vol. 7, paragraph 2143; “The Laws of Evidence”, Baron Gilbert, 1769 Ed. p. 98. and to certain of the cases therein mentioned which, he said, supported the submissions (a) that if the purple document was a copy of the original Deed (as the plaintiffs contended it was) it was admissible as secondary evidence; and (b) that if the purple decument was, in fact, a draft it was still admissible in evidence. In support of the proposition that copies produced from proper custody may be treated as good evidence he referred to Permanent Trustee Company of New South Wales .v. Fells (1918) A.C. 879 in which the judicial committee of the privy-council expressed the opinion that “in certain circumstances copies produced from proper custody may after the lapse of time be treated as good evidence” but which also pointed out that this rule does not apply when an original is in actual existence. Green .v. Bailey (1847) 15 Sim. 542 to which he also referred was a case in which the Court accepted that a lost marriage settlement was in conformity with the draft which was produced at the hearing when there was evidence that the marriage settlement had been recited in an instrument and also in a will: Waldey .v. Gray 20 L.R. Equity, 238 was another case in which the Court admitted secondary evidence of a lost Deed of Mortgage. The secondary evidence consisted of a draft from which the original was engrossed. The Court considered a number of circumstances given in evidence to establish that the draft could safely be acted on and Bacon, V.C. (at p.250) concluded:
“Then it is said, very truly, that there are no degrees of secondary evidence, and that the secondary evidence mainly relied on by the plaintiff consists of drafts of Deeds (with one exception where the draft has been lost) and that, although you may prove the contents of a Deed by a copy, yet you must show that the copy was truly made, that it is not a mere copy of a copy, and further that it is the best evidence which the nature of the case furnishes.
Now it is not suggested that any copy of the Deed was ever made. The drafts are not tendered as copies of the Deeds. The drafts are brought out of the repositories of Waters, who prepared the Deeds; they are there standing as records, to a certain extent, of the contents of the Deeds. The endorsements on them show that the Deeds were engrossed from these identical drafts, and they were duly stamped, and duly executed. In my opinion, that is perfectly good secondary evidence”.
From the authorities which I have examined I can not conclude that there is a rule of law which would require the rejection as evidence of the purple document in this case. There is no rule which prohibits me from reaching a conclusion that in the circumstances of this case and on the balance of probabilities it represents the contents of the lost Deed or which, having reached this conclusion, prohibits me from admitting the document. I therefore propose to accept it as secondary evidence and turn now to examine the rights of the parties in the light of the marriage settlement as evidenced by this document. The settlors had transferred the “trust property” to Trustees and after making provision for certain life interests declared that the trust property should be held by the Trustees upon trust “for the children of the said intended marriage as the said Patrick Doran and Elizabeth White shall by Deed jointly appoint and in default of any such appointment upon trust for the children of the said intended marriage in equal shares”. The defendant points to the absence of words of limitation and say that the children of the marriage only take life interests in the freehold registered land and that after the death of the children there is a resulting trust in favour of the first-named settlor. In support of this construction they rely on In re Bostock’s Settlement (1921) 2 Ch. 469 and Jameson .v. McGovern (1934) I.R. 758.
It is part of the defendant’s contention that the Court can not consider the intention of the settlor in construing the settlement. For reasons which I will refer to later the plaintiffs contend that the settlor’s intention in the present case isrelevant. Before giving my conclusion on this aspect of the problem I think I should indicate what in my opinion the settlors’ intention was. As I have already pointed out, having made provision for what was to happen during the lives of their son and his intended wife they then directed that their trustees would hold the trust property for such of the children of the intended marriage as their son and his wife would by Deed jointly appoint. They then made provision that in default of appointment the children of the intended marriage were to take the trust property in equal shares, and went on to provide that if their son predeceased his intended wife and had no children then she was to be paid a sum of £650 and that the Trustees were to hold the property in trust for the first-named settlor his heirs and assigns in fee simple. It seems to me to be clear from an examination of the settlement that although the settlors did not say that their grandchildren were to get the property “absolutely” and although they did not use any words of limitation to the effect that they were to take the property “in fee simple”, nonetheless the settlors intended that their grandchildren would take the trust property in equal shares absolutely if no joint appointment was made. This interpretation of their intention is strengthened by the fact that the first-named settlor made specific provision for a reversion of the trust property to himself and his heirs in certain circumstances which he specified, but did not so provide if default was made in a joint appointment by his son and his wife.
The defendant in support of her contention that the Court is not permitted to consider the intention of the settlor in construing the effect of the Deed of Settlement relied, firstly, on In re Bostock’s Settlement ( 1921 2 Ch.469.). In that case the settlor had mortgaged certain freeholds prior to the settlement. On his second marriage he conveyed the equity of redemption in the freeholds to Trustees in fee simple to the use of his wife and himself for successive life interests and afterwards in trust “for the child or children of the husband now born or hereafter to be born who shall attain the age of 21 years and if more than one in equal shares as tenants in common and if there shall be no such child then in trust for the right heirs” of the husband. The Court of Appeal held that the trusts in the settlement must have the same construction as in the case of legal estates executed and that in the absence of words of limitation the children took life estates only in the freeholds. The settlement also contained an assignment of leaseholds and chattels to the Trustees upon similar trusts but it was pointed out by the Master of the Rolls (p.479) that no question arose as to the leaseholds and the chattels. In the present case there is also an assignment of chattels to the Trustees as part of the “trust property” but the plaintiffs do not contend that this part of the trust property is subject to the same construction as is urged in relation to the freehold registered land. The decision of the Court of Appeal was unanimous. In the course of his judgment younger, L.J. pointed out that the decision was arrived at with considerable reluctance as it was based “not on any presumed intent in the settlement but in spite of and contrary to what I believe to be its real purpose” (p.487).
The Supreme Court was required to consider a similar problem in Jameson .v. McGovern (1934) I.R. 758. This, too, was a case relating to the construction of a marriage settlement. The defendant had refused to complete a contract on the grounds that the plaintiffs (who were the vendor’s representatives) were unable to make out a good title. It was claimed that the title depended on the gift to a wife in a Deed of Settlement who, in the events that had happened, survived her husband but as no words of limitation were used she obtained only a life interest in the property. As both parties in the present case rely on this authority in support of the construction they urge which should be placed on the marriage settlement in the present case I must examine the judgment in some detail.
Firstly, it is important to observe that what the Court was doing was considering whether in an executed declaration of trust words and terms known to the Common Law must be given the same effect in equity or whether the construction of the trust can be gathered from the intention of the settlor (p. 770). It was urged on behalf of the plaintiffs in that case that, following Bostock’s Settlement,in the case of an executed declaration of trust the Court is precluded from considering the intention of the settlor and that the Court must construe a limitation in a trust in the same way as in the case of a legal estate executed and that therefore in the absence of words of limitation only a life estate was taken by the wife. After a lengthy review of the authorities Murnaghan, J. concluded that the decision in the Court of Appeal in Bostock’s Settlement should be followed and that accordingly the Court should not as a general rule consider the intention of the settlor but should in the absence of words of limitation, decide that the wife’s interest under the settlement was only a life estate.
In a passage towards the end of the judgment Murnaghan, J. adverted to a special feature of the case as follows:
“The settlement was made before marriage and the agreement was to settle the husband’s lands on the wife absolutely if she survived him. Every provision with regard to her falls directly within the consideration: Nairm .v. Prowse (6 Ves 752). In my opinion in this case the wife has an equity independent of the declaration of trust made by the settlor and this equity is sufficient to construe the settlement as giving her the equitable fee which it was contracted that the should have in the events which have happened” (p.777-778).
Mr. Gill, on behalf of the plaintiffs, submitted that the passage which I have quoted makes clear that there may be exceptions to the general rule laid down in Bostock’s Settlement. He suggested that an exception arises when a settlement contains an agreement by virtue of which an equity arises (apart from the declaration of trust) by which a person entitled to the equity can have enforced an agreement to grant an equitable fee. Mr. Gill submits that I can apply this principle in the present case. He submits (1) that the settlor intended that the children of the marriage would take absolute interests and (2) that an enforceable agreement exists to that effect as the children of a marriage are persons within the marriage consideration (see Halsbury’s “Laws of England” 3rd Edition p. 459). In support of this submission he refers to Holliday .v. Overton (15 Beaven 480) in which the Master of the Rolls considered an argument that the children referred to in the instrument he was examining should be regarded as “purchasers” and that being purchasers a construction of the declaration of the trust was required which would vest the fee in the children without the necessity of employing any words of inheritance for this purpose. In that case the Master of the Rolls observed “if the children mentioned in this settlement could be considered as purchasers within the meaning of the word, as employed in these passages, some argument might be founded on those authorities”. Mr. Gill says that in the case before me the children of the marriage can be regarded as purchasers.
In my opinion the submissions made on behalf of the plaintiffs are correct. Firstly, the decision of the Supreme Court in Jameson .v. McGovern can only be interpreted as meaning that an exception to the strict rule in Bostock’s Settlement does exist when the settlement being construed contains an agreement to settle the lands referred to in the Deed on the wife of the intended marriage absolutely. Secondly, I am satisfied that the exception applies to the present case. I have already pointed out that the settlor intended that the children of the intended marriage would, in the events that have happened, take absolute interests – even though such express words were not employed. I accept that it is well established that the children of an intended marriage are within the consideration of the marriage and that accordingly the settlement constitutes an agreement which is enforceable by them by which they are entitled to absolute interests in the events that have happened. Just as the wife in Jameson .v. McGovern had an equity which would have allowed the Court to give effect to the intention of the settlor so, in the present case, the children of the marriage have a similar equity. In my opinion I am, not, therefore, required to follow the strict rule of law laid down in Bostock’s Settlement but I can decide that the settlement, in the events that have happened, has effectively vested an estate in fee simple in the plaintiffs and the defendent since the death of their mother on the 24th of January, 1973.
I will, in the light of the findings I have just made, consider submissions by the parties as to the form the Court’s Order should take.
Gilburn v Gilbourne and Others
[1975] 7 JIC 0901
KENNY J.:
William Gilburn (“the testator”) was the registered owner of part of the lands of Cloonpasteen in the County of Limerick which had been registered on Folio 2798 of the Register of Freeholders for the County of Limerick on the 11th June 1906, He was also registers as owner of part of the lands of Bohard in the same county which had been registered on Folio 10439 of the Register for that county in 1919. Part IV of the Registration of Title Act 1891 applied to the devolution of both these lands.
On the 3rd April 1926 he made his will his signature to which was witnessed by two solicitors. The relevant parts of it read:
“I William Gilburn of Cloonpasteen Kilmeedy in the County of Limerick Farmer make and declare this writing as and for my last will and testament raveling all former wills if any heretofore made by me.”
I will devise and bequeath unto my nephews Patrick Gillburn and William Gillburn sons of my brother Robert my lands of Cloonpasteen and Bohard to be held by them as joint tenants so that same shall pass to the heir-at-law of the survivor of them, subject to and charged with the payment of my debts, funeral and testamentary expenses”.
The testator died on the 8th July 1936 and his nephews, who were subsequently registered as limited owners, took possession of the lands. At some time during their joint lives, William transferred his share of the joint tenancy to his son Robert and so severed the joint tenancy for the joint lives or, as the defendants contend, severing the joint tenancy in the fee simple. William Gilburn died on the 14th October 1962 and Patrick on the 14th October 1972. The plaintiff in this action was the heir-at-law of Patrick and claims that he is the owner of the lands under the terms of the testator’s will. His case is that the will created a joint tenancy in the two nephews for their lives and when one died, a tenancy for life in the survivor with a contingent remainder la favour of the person who was the heir-at-law of the survivor. The defendants are the next-of-kin of the nephew William and they contend that the affect of the celebrated rule in Shelley’s Case (1581)1 Co. Rep. 93 was that the two nephews Patrick aid William became owners in fee simple as joint tenants of the lands and that as next-of-kin of William, they are now entitled to one half of them.
The most authoritative statement of this role is to be found in the speech of Lord Davey invan Grutten v. Foxwell (1897) A.C. 658 at pp. 684 sad 685. I say “most authoritative” because it has been cited in all subsequent cases though Lord Macnaghten’s speech is more entertaining and in many ways more profound. Lord Daivey’s statement of the rule is:
“In my opinion the rule inShelley’s Case is a rule of law and not a mere rule of construction – i.e. one laid down for the purpose of giving effect to the testators expressed or presumed intention. The rule is this: that wherever an estate for life is given to the ancestor or propositus, and a subsequent gift is made to take effect after his death, in such terms as to embrace, according to the ordinary principles of construction, the whole series of his heirs or heirs of the body or heirs male of his body or whole inheritable issue taking in a course of succession, the law requires that the heirs, or heirs male of the body, or issue, shall take by descent, and will not permit them to take by purchase, notwithstanding any expression of intention to the contrary Wherever, therefore, the Court comes to the conclusion that the gift, over includes the whole line of heirs, general or special, the rule at once applies, and an estate of inheritance is executed in the ancestor or tenant for life, even though the testator has expressly declared that the ancestor shall take for life and no longer, or has endeavoured to graft upon the words of gift to the heirs, or heirs of the body, additions, conditions or limitations which are repugnant to an estate of inheritance, and such as the law cannot give effect to. The rule, I repeat, is not one of construction, and indeed, usually overrides and defeats the expressed intention of the testator; but the question always remains, whether the language of the gift after the life estate properly construed is such as to embrace the whole line of heirs or heirs of the body or issue, and that question must be determined apart from the rule, according to the ordinary principles of construction, including those which I have already referred to.
The testator may conceivebly show by the context that he has used the words “heirs” or heirs of the body” or “issue” In some limited or restricted sense of his own which is sot the legal meaning of the words – e.g. he may have used the words in the sense of children or as designating some individual person who would be heir of the body at the time of the death of the tenant for life or at some other particular time. If the Court is judicially satisfied that the words are so used, I conceive that the premises for the application of the rule in Shelley’s Case are wanting, and the rule is foreign to the case. But I repeat, that la every case the words are to be interpreted in their legal sense as words of limitation unless it be made plain to the mind of the Court that they are not go used, and in what sense they are used by the testator.”
This decision and the many other reported cases, old and modern, relating to the application of the rule establish these principles which have relevance to the question in this case:
1. While the rule is a rigid rule of law when its application to a deed is being considered, the first question which arises when its application to a will is involved is one of construction, did the testator by the use of the words “his heirs” or “heirs of the body” or any corresponding words mean heirs of the ancestor generally or, as it is sometimes put, the whole line of succession or did he mean a specific person who fulfilled the qualification of being “the heir” or “the heir of the body” of the ancestor. If he meant one specific person, the rule does not apply.
2. In a deed the word “heirs” or the words “heirs of the body” must be used if the rule is to apply (Mallory’s Case (1601) 5 Co. Rep. 111)but in a will the rule may apply when words having the same menaing as “heirs” or “heirs” of the body” are used. (Lord Davey’s speech in Van Grutten v. Foxwell (1897) A.C. 658: re Keane’s Estate (1903) l I.R. 215).
3. When the word “heir” is used it is easier for the Court to find an intention that the testator did not mean the whole line of succession but referred only to an individual who fulfilled a qualification. (Silcocks v. Silocks 1961 2 Ch. 161 at p.166: Inre Hack 1925 1 ch. 633: Megarry and Wade: The law of Real Property 1st edition p.62).
4. It was not contested that the rule inShelley’s Case may apply to the will of an owner of freehold registered land. It seems to me that it does for it is the devolution on intestacy of such land which has been changed.
It seems to co that the construction of the will indicates that the testator was using the word “heir-at-law” in the sense that he was referring to a désignated person, the individual who would be the heir-at-law of the survivor of Patrick and William. My reasons for forming this view are:
1. The testators signature was witnessed by two solicitors and the language of the will shows that it was drafted by one of them. He would have been aware that the lands would descend to the next-of-kin and not the hair of the survivor of the two joint tenants if the survivor died intestate. It is reasonable therefore to infer that the testator who gave the instructions had the heir-at-law of the survivor in mind aid did not intend the words to refer to the whole line of succession but to the designated person, the heir-at-law of the survivor.
2. The limitation is not “to be held by then as joint tenants and on the death of the survivor to the heir-at-law of such survivor” but “to be held by them as joint tenants so that the same shall pass to the heir-at-law of the survivor of them”. The use of the words “so that the same shall pass” indicates that the testator intended the lands to go to a specific person. The case is within Lord Davey’s words: “he may have used the words in the sense of children or as designating some individual person who would be heir of the body at the time of the death of the tenant for life or at some other particular time”.
3. The limitation not to theheirs of the survivor but to the heir-at-law of the survivor of them and although the wordheir-at-law can attract the rule, its use indicates that the testator had in Bind a specific individual who fulfilled a qualification, being heir-at-law of the survivor. This taken with the other two points shows that the rule does not apply to this gift. As the rule in Shelley’s Case does not apply, I reject the contention that the effect of the will was to make the two nephews joint tenants in fee simple.
Though the joint tenancy for life was severed, on William’s death the lands passed to Patrick for his life and on his death to his heir-at-law.
The questions will be answered accordingly.
Corrigan v Corrigan
[2016] 3 IR 60, [2016] IESC 56
Supreme Court (Ireland)
Judge: Ms. Justice Laffoy
Issues on the appeal
22
In the light of the findings of the trial judge and the remaining grounds of appeal, the issues on the appeal can be netted down to three issues. First, the core issue is whether the Testator intended that the disposition of the farmlands created in Clause 1 would be a determinable fee, as the trial judge found, as distinct from a fee simple upon condition. Secondly, if he did, it is necessary to consider whether, as a matter of law, as was found by the trial judge, the determining event is void for uncertainty. Thirdly, if the determining event is void for uncertainty, the remaining issue is to whom do the farmlands pass in accordance with the provisions of the Will as a whole and, in particular, do they fall in the residuary estate, as the trial judge held. Before addressing those issues, it is appropriate to make a number of general observations in relation to the application of the provisions of the Act of 1965.
23
First, s. 89 provides as follows:
‘Every will shall, with reference to all estate comprised in the will and every devise or bequest contained in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.’
No contrary intention appears from the Will and, accordingly, Clause 1 must be construed having regard to the circumstances which prevailed on 5th March, 2000.
24
Secondly, in applying s. 90 and in determining whether the extrinsic evidence adduced on behalf of the Personal Representative, which has been outlined earlier, is admissible to show the intention of the Testator, as was found by the trial judge, the test to be applied is the test laid down by this Court in Rowe v. Law [1978] I.R. 55. The test as identified in the judgment of Henchy J. (at p. 72) has –
‘… the double requirement of
(a) showing the intention of a testator, and
(b) assisting in the construction of, or explaining any contradiction in, a will.’
(Emphasis as in original)
25
Thirdly, s. 91 provides that, unless a contrary intention appears from the will, any estate comprised in any devise contained in the will which fails or is void or is otherwise incapable of taking effect, shall be included in any residuary devise contained in the will. No contrary intention appears in the Testator’s Will.
26
Finally, the interest of the Testator in the farmlands at the date of his death was a fee simple interest and he was registered as full owner of the lands on Folio 13658, County Westmeath. Section 94 of the Act of 1965 provides:
‘Where real estate is devised to a person (including a trustee or executor) without any words of limitation, the devise shall be construed to pass the whole estate or interest which the testator had power to dispose of by will in the real estate, unless a contrary intention appears from the will.’
By virtue of the operation of s. 94, the fee simple passed to the Personal Representative on the death of the Testator. The issues of construction which arise relate to the beneficial interest or interests which the Testator intended to create in Clause 1 in the farmlands held by the Personal Representative on trust.
Determinable fee or Conditional fee: the law
27
In outlining the relevant legal principles applicable to this very arcane area of law, it is convenient to follow the format adopted in the most recent text on land law in this jurisdiction relied on by the parties, that is to say, Wylie on Irish Land Law 5th Ed. (Dublin, 2013).
28
In classifying the types of fee simple interests in land, Wylie identifies two main categories: a fee simple absolute and a modified fee simple, the latter category consisting of two types, namely, a determinable fee, and a fee simple upon condition.
29
As is explained by Wylie (at para. 4.47), a determinable fee is a fee simple which will determine automatically on the occurrence of an event which may or may not happen. In the case of a determinable fee the determining event is specified by the original grantor of the estate. The grantor retains some interest in the property, which is called a possibility of reverter, i.e. the possibility of acquiring an estate in the future. A fee simple upon condition, or a conditional fee, on the other hand, as is pointed out by Wylie (at para. 4.49) is a fee simple to which is attached a condition subsequent, which may cause the estate to be brought to an end. As Wylie points out (at para. 4.47), often it is a difficult matter of construction whether the estate is a determinable fee or a fee simple upon condition, emphasising also that the consequences and incidents of the estates are different. Wylie goes on to consider the distinction between the two estates, first by reference to how one recognises which estate is created by the wording used in the relevant deed or will, and then identifying the different rules applying to the two types of modified fee.
30
As to identifying whether a particular document creates a determinable fee or a fee simple upon a condition, Wylie points out (at para. 4.50) that this is largely a matter of the precise wording of the document. From a theoretical standpoint, the position is clear: in the case of a determinable fee the words describing the determining event are part of the words of limitation, i.e., they delimit the estate granted. In the case of a fee simple upon a condition, however, the words containing the condition are not part of the words of limitation, but rather are independent words of condition, which confer a right of entry on the grantor or his successor, which must be exercised to determine the fee simple. In relation to deciding the effect of the particular words used in a particular document, which Wylie acknowledges is not always an easy problem to solve, he states as follows (at para. 4.50):
‘The courts have adopted over the years some “rules of thumb” whereby particular words or phrases are taken to indicate one type of estate rather than another. Thus words like “while”, “during”, “until” and “as long as” tend to be interpreted as words of limitation creating a determinable fee; words like “provided that”, “on condition that” and “but if” are usually taken to mean words of condition.’
Attorney General v. Cummins’ Ors. [1906] 1 I.R. 406 is cited as authority for the statement that the first group of words referred to tend to be interpreted as words of limitation creating a determinable fee. That authority will be considered later.
31
Turning to the distinguishing features in relation to determination (that is to say, the end point) of each of the modified fees, Wylie points out (at para. 4.51) that, in the case of a determinable fee, when the specified event occurs, the fee simple comes to its natural determination according to the words of limitation, and the possibility of reverter takes effect automatically to confer the fee simple absolute on the grantor (or his successor, if he has since died). On the other hand, in the case of a fee simple upon a condition, the occurrence of the specified event, or satisfaction or breach of the condition, merely gives the grantor a right of entry so as to forfeit the grantee’s estate.
32
Of more particular significance for present purposes is Wylie’s commentary on the approach of the courts to a determinable fee and a fee simple upon condition having regard to matters of public policy. As Wylie points out (at para. 4.54), the courts will treat as invalid any condition which is illegal, immoral, a violation of constitutional rights under the Constitution or which otherwise contravenes what they regard as public policy. Moreover, it is clear that a condition may be declared void for uncertainty. If a condition subsequent is void for uncertainty, or as being contrary to constitutional rights or public policy, the fee simple becomes a fee simple absolute and, as is explained, only the condition fails and the fee simple itself remains in effect, provided it is conveyed with appropriate words of limitation. However, the contrary is the position in the rare case of a limitation in a grant of a determinable fee being held void as against public policy. In such case, the words of limitation themselves are defective and so fail to pass the fee simple; the whole grant is ineffective and the grantee is left with nothing. Although not expressly mentioned by Wylie in this context, by analogy the same principle obviously applies where the determining event is void for uncertainty. It is convenient at this juncture to consider the only authorities to which this Court has been referred in which a finding of a determinable fee was made by a court.
33
While the decision in Attorney General v. Cummins dates from 1895 it was reported in 1906 as an addendum to Switzer v. Rochford [1906] 1 I.R. 399. The dispute in Attorney General v. Cummins concerned the effect of letters patent whereby King Charles II granted to the Earl of Castlehaven specified quit rents ‘to hold the same to the [E]arl, his heirs and assigns, till he or they should receive and be paid the sum of £5,000 sterling at one entire payment’. The application before the court in 1895 was an application by the Attorney General seeking that the Crown should be at liberty to redeem the quit rents by paying £5,000 and that the Crown be at liberty to pay that sum into court. In his judgment Palles C.B. held that the estate created was a determinable fee. He stated as follows (at p. 406):
‘The grant passed the quit rents in fee subject to a condition determining that fee upon payment by the Crown at any time of the sum of £5,000. Under such a grant the grantee, until the happening of the determining event, has the whole estate in him, and the old Common Law doctrine was undoubtedly that a possibility of reverter, a possibility coupled with an interest, remained in the grantor, and that the fee of the rents would, upon performance of the condition, revert to the Crown. “If,” says Plowden (p. 557), “land is given to a man and to his heirs so long as he shall pay 20s. annually to A, or as long as the Church of St. Paul shall stand, his estate is a fee-simple determinable, in which case he has the whole estate in him, and such perpetuity of an estate which may continue forever, though, at the same time there is a contingency which when it happens will determine the estate”.’
34
There was a dispute in Attorney General v. Cummins as to whether the common law doctrine which was outlined in that passage still prevailed, notwithstanding the modern rule against perpetuities. The court rejected the arguments advanced on behalf of the defendants that the rule against perpetuities applied and defeated the estate of the Crown. In a passage on which the Appellant relies, Palles C.B. stated (at p. 409):
‘Now, there is not a trace in the books of any rule which limited the period during which the determination of an estate by condition should take effect, and it is abundantly clear that the modern rule could not have applied, because the donor took not by way of new limitation, but by the determination of the estate given.’
35
One other authority in which a finding of a determinable fee was made has been put before the Court, but that authority – In re King’s Trusts (1892) 29 LR Ir. 401– is more renowned for the observations of Porter M.R. than for the finding on the facts. There the testatrix by her will bequeathed an annuity of £50 per annum to each of the five children of her deceased brother and directed that the said several annuities should be payable half-yearly from the date of her decease, for their respective lives, or until any of them should marry, and that, on the death or marriage of any of the said children of her deceased brother, the annuity to any such child should cease and determine. It was held that the proviso determining the annuities on death or marriage was a limitation and not a condition subsequent or defeasance. In the oft-quoted passage (at p. 410) Porter M.R. stated:
‘The case is an instance of the very unsatisfactory state of the law on this question. It is little short of disgraceful to our jurisprudence that in reference to a rule professedly founded on considerations of public policy, a gift of an annuity to AB for life, coupled with a proviso that if he married the annuity should cease, whether there be a gift over or not, gives AB a life estate, whether he marries or not; while a gift to CD until he marries or dies, with a gift over, is at an end if CD should marry. The distinction is intelligible to a lawyer; but no testator except a lawyer could be expected to understand it, much less to have regard to it in framing his will. We must, however, take the law as we find it.’
36
In Pearce and Mee ( op. cit.) (at p. 78) that passage is referred to in the context of stating that the distinction between a determining event and a condition subsequent is very narrow. The authors also refer in that context to Re Sharp’s Settlement Trusts [1972] 3 All ER 151. There, delivering judgment in the Chancery Division of the English High Court, Pennycuick V-C referred to the description ‘in an Irish case’ of the distinction as ‘little short of disgraceful to our jurisprudence’ and he continued (at p. 156):
‘I am bound to say that according to modern ideas this criticism appeals to me. However, the distinction is well established and must be accepted so far as it is comprehensible.’
Allowing Wylie the last word on the observations of Porter M.R., it is suggested (at para. 4.50) that the Master of the Rolls seems to have had in mind wills, which the court usually interprets more liberally than conveyances inter vivos, but the author goes on to state:
‘But however nonsensical the distinction may appear to the layman the fact remains that much depends upon it. The legal system has devised different rules with respect to the two estates …’
Determinable fee or Conditional fee: application of the law to Clause 1 of the Will
37
Reading Clause 1 of the Will, being, to use the words of Lowry L.C.J., ‘the immediately relevant portion’ thereof, in his words as ‘a piece of English’, in the first step of the procedure advocated by him, with a view to deciding ‘if possible, what it means’, Clause 1 starts with an introduction or preamble which contains a description of the property the subject of the disposition in Clause 1, the farmlands, and a statement of what the Testator had been advised as to the zoning status of all or part of the farmlands. On a plain reading of the introduction, it was clearly intended merely to describe the property being disposed of under Clause 1 and it was not intended to be a dispositive provision. The actual disposition of the farmlands follows. As regards the beneficial interest or interests intended to be created, it is helpful to consider the disposition by reference to the two elements embodied in it.
38
The words contained in Clause 1 intended to create the beneficial interest or interests follow the direction given by the Testator to the Personal Representative to hold the farmlands upon ‘the following trusts’. The first element directs the Personal Representative to allow the Appellant ‘to hold and enjoy the profits of the [farmlands] for his own benefit until’ the happening of a specified event. Those words are properly construed as having been intended to be words of limitation, not in a technical sense, but in the sense that they were intended to delimit the duration of the Appellant’s beneficial interest. Accordingly, those words must be construed as having been intended to create a determinable fee. Despite the approach adopted in the grounds of appeal, on the hearing of the appeal on 14th July, 2016, the Appellant accepted that the words in Clause 1 do create a determinable fee, but he argued that the determining event is not void for uncertainty.
39
It was not argued by the Appellant on the hearing of the appeal that the Court should look to the instructions given by the Testator to his solicitor for assistance in the construction of that element of Clause 1. Indeed, as outlined earlier, it was asserted in the grounds of appeal that the trial judge had erred in admitting the attendance notes. Being conscious, however, of the fact that the instruction given by the Testator to his solicitor, as recorded by the solicitor, was that the farmlands were to go to the Appellant, but that was qualified by the happening of an event which was introduced by the phrase ‘but if’, which traditionally has been treated as a phrase giving rise to a condition, for completeness, I propose to consider whether the Court should have regard to the wording of the instruction in the attendance notes under s. 90 of the Act of 1965 in construing the first element. That raises the question whether the second requirement in the test set out in Rowe v. Law is met. In other words, do the contents of the attendance note assist in the construction of, or explain any contradiction in, that element of the disposition? There is no suggestion of there being, and there is not, a contradiction in the first element of the beneficial provisions of Clause 1, which is being considered. The question remains whether the contents of the attendance notes would assist in the construction of Clause 1. In my view, they would not. The element of Clause 1 which is being addressed is open to only one construction: that the interest thereby granted to the Appellant would endure until the happening of the specified event. To substitute the phrase ‘but if’ for the word ‘until’ in Clause 1 would amount to more than the construction of the will. It would amount to a re-writing of it, which is not permissible. Accordingly, the first element of the beneficial provisions of Clause 1 must be construed as being intended to create a determinable fee.
40
However, it remains to consider the second element of the beneficial provisions, which is the remainder of Clause 1, and which defines the determining event by reference to the words which follow the word ‘until’. The issue of construction which arises in relation to the second element is whether the trial judge was correct in finding that the determining event is void for uncertainty.
Determining event void for uncertainty?
41
There is no doubt but that the Testator prefaced the disposition of the farmlands in Clause 1 by an equivocal and incorrect statement of fact in relation to the zoning status of the farmlands. The affidavit of Ms. Fahy established that on 5th March, 2000 neither all of the lands registered on Folio 13658, County Westmeath nor any part thereof was zoned ‘for residential and/or industrial development’. However, on a plain reading of the words of Clause 1 of the Will, the determining event was not related to the existing or future zoning of the farmlands. It was specifically related to and dependent on ‘acquisition’ of the farmlands ‘for residential and/or industrial development’. As the Appellant put it on the hearing of the appeal, it was the acquisition, not the zoning, of the farmlands which had the ‘triggering effect’. The trial judge in his judgment highlighted the problem created by the use of the words ‘acquisition’ and later the words ‘not so acquired’ in that context. He rightly pointed out that it is unclear whether the Testator had in mind the farmlands being compulsorily acquired for the purposes mentioned or whether he had in mind the children of the Testator, other than the Appellant, being in a position to compel the executors to sell the farmlands. Another question which arises from the use of those words is whether the Testator intended the determining event to be a single acquisition or, possibly, a series of acquisitions.
42
This Court has been referred to quite a number of authorities in which consideration was given to whether part of a limiting or provisional clause in a will was void for uncertainty, the clause in issue in most of the cases, predictably, being a condition subsequent. As Wylie points out (at para. 4.54), where non-compliance will involve forfeiture of an already vested estate, courts will require sufficient certainty that it can be seen precisely and distinctly from the date of the condition coming into operation what events will cause a forfeiture. The earliest authority cited by Wylie for that proposition, Clavering v. Ellison (1859) 7 HLC 707, is frequently cited and the following passage from the opinion of Lord Cranworth (at p. 725) is frequently quoted:
‘I consider that, from the earliest times, one of the cardinal rules on the subject has been this: that where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.’
43
By analogy, where a fee simple is to be automatically determined by the happening of a specified determining event, as a matter of construction, when that event may happen must be ascertainable from the beginning, precisely and distinctly.
44
Reading the words which come after the word ‘until’ and define the determining event in Clause 1, no certainty can be gleaned, whether conceptually or otherwise, as to when the determining event may occur, and, adopting the words of Pearce and Mee quoted above (at para. 13) there is ambiguity in the description of the determining event. Apart from uncertainty as to what constitutes ‘acquisition’, the uncertainty is aggravated by the fact that in the last sentence in Clause 1 there is uncertainty as to how frequently the Testator intended that a determining acquisition could occur. The precision and distinctness from the beginning as to the happening of the determining event, which Lord Cranworth considered necessary, is definitely absent. Accordingly, having regard to the words used in the Will, the provision in relation to the definition of the determining event in Clause 1 is void for uncertainty and the entire disposition is thus rendered void.
45
For completeness, I would add that the instructions given by the Testator to his solicitor, as recorded in the attendance notes, do not explain any contradiction as to when the determining event would occur, nor do they assist in construing that element of the beneficial provisions of Clause 1, with a view to ascertaining when the determining event intended by the Testator would occur. On the contrary, as the words used in the attendance notes to record the instructions differ from the words deployed in the Will, consideration of the instructions in the attendance notes adds to, rather than eliminates, the uncertainty in the Will. The following examples illustrate that. First, rather than the words ‘acquisition’ and ‘not so acquired’ in the Will, the attendance notes contain the word ‘sold’. Secondly, whereas the Will refers to acquisition for ‘residential and/or industrial development’, the attendance notes refer to the farmlands being sold for ‘residential or commercial purposes’. Thirdly, while the Will refers to any section of the farmlands ‘not so acquired’ becoming the absolute property of the Appellant, the attendance notes refer to the Appellant keeping ‘what is not required for residential purposes’. The Testator, having had the opportunity to consider the draft will which accompanied the letter of 28th August, 1997, made one single amendment to Clause 1 of the draft, which has been outlined earlier. Having regard to all of the foregoing factors, it cannot be concluded that the instructions received by the solicitor from the Testator, as recorded in the attendance notes, assist in any way in clarifying the Testator’s intention as to when the determining event provided for in Clause 1 would occur and they are irrelevant to the construction of Clause 1.
46
Similarly, a number of other matters raised in the submissions which are irrelevant to the Court’s task, which is the proper construction of Clause 1 of the Will, will now be considered.
Other matters raised
47
It would appear to be the case that, when he made the Will, the Testator’s understanding as to the zoning status of the farmlands at that time was both unclear, as the reference to ‘the said land or part thereof’ in Clause 1 indicates, and erroneous, the source of which it is not possible to identify. Even if the farmlands had been zoned ‘for residential and/or industrial development’ on 5th March, 2000, the uncertainty as to when the determining event was intended to occur, having regard to the words used in Clause 1 of the Will, would still subsist. Notwithstanding that it is submitted on behalf of the Personal Representative on the appeal that it was open to the trial judge to decide that the devise of the farmlands in Clause 1 of the Will was predicated on a mistaken belief of the Testator that the lands were zoned in a particular way and that, as a result, the entire bequest should fall, I find it unnecessary to determine that issue, having decided to follow the route taken by the trial judge and deal with the issues identified earlier (at para. 22).
48
The Appellant’s contention that the appeal should be allowed on the ground that the trial judge failed to interpret the Will as a whole so as to give effect to the Testator’s intentions does not stand up to scrutiny. Apart from Clause 1, the only provisions of the Will which manifest an intention on the part of the Testator to dispose of his assets are Clause 2 and Clause 3. Clause 2 relates solely to the Testator’s residence and Clause 3 relates solely to his residuary estate. There is nothing in either Clause 2 or Clause 3 which gives any indication as to the Testator’s intention in relation to the disposition of the farmlands. Accordingly, each of those clauses is immaterial to the proper construction of Clause 1.
49
Two matters were also adverted to at the hearing of the appeal to which this Court can attach no significance whatsoever in ascertaining the proper construction of Clause 1.
50
The first is an averment which was contained in the replying affidavit sworn by the Residuary Legatee on 10th July, 2006, in which he averred that should the Court find that –
‘… the bequest of [the farmlands] forms part of the residue of the [Testator’s] estate, I say that I am prepared to execute a Disclaimer in respect of the residuary clause and I say that then, accordingly, that part of the residue will be divided between the deceased’s children equally, which I believe was the intention of the deceased.’
In his written submissions, the Appellant suggested that that averment was ‘perhaps inappropriate’, which proposition was rejected on behalf of the Residuary Legatee. The Court’s task is to construe the Will, and, in particular, Clause 1, in accordance with well established principles. The professed intention of the Residuary Legatee, dependent on one outcome of the construction of the Will, irrespective of how well motivated, is wholly immaterial to the performance by the Court of its function and has had no bearing on the conclusions I have reached as to the proper construction of Clause 1.
51
The other matter disclosed to this Court at the hearing, which is of no materiality to the issues this Court has to decide, is the fact that since the hearing in the High Court, Westmeath County Council has made a compulsory purchase order to compulsorily acquire part of the farmlands comprising 0.693 hectares for the purpose of a link road, the compulsory purchase order having been confirmed by An Bord Pleanála on 10th December, 2008 and the Personal Representative having in 2013 entered into an agreement with Westmeath County Council in relation to the compensation to be payable. That development has had no bearing on the conclusions I have reached as to the proper construction of Clause 1. As has been emphasised earlier (at para. 23), the Will must be construed as at the date of the death of the Testator, that is to say, 5th March, 2000.
Consequence of findings
52
The consequence of the findings that Clause 1 created a determinable fee but the determining event is void for uncertainty is that the devise of the lands registered on Folio 13658, County Westmeath contained in Clause 1 has no effect. Therefore, the devise intended to be created in Clause 1 being incapable of taking effect, by virtue of s. 91 of the Act of 1965, those lands fall into the residue and are held by the Personal Representative on trust for the Residuary Legatee.
Order
53
I would propose that there should be an order dismissing the Appellant’s appeal. I think that it would be prudent if the order were to include declarations to the following effect:
(a) that the intention of the Testator by the words used in Clause 1 of the Will was to create a determinable fee in relation to the lands registered on Folio 13658, County Westmeath;
(b) that the determining event which the Testator intended to apply to the determinable fee is unclear and imprecise and that the determining event is void for uncertainty; and
(c) that the Personal Representative holds the said lands upon trust for the Residuary Legatee.
As declarations in the foregoing terms address of the all relevant issues on the construction of the Will, I consider it unnecessary for this Court to answer all of the questions posed in the special summons.
Corrigan v Corrigan & Corrigan
[2007] IEHC 367
Mr. Justice Brian McGovern
1. Christopher Corrigan (“the deceased”) died on the 5th day of March 2000. He was a widower and left surviving him five children. He made his last will and testament on the 23rd September, 1997. The will was drawn up by a solicitor who is now deceased. In his will he appointed the plaintiff and the first and second named defendants as executors.
2
2. These proceedings were brought by the plaintiff as executor seeking a construction of a clause in the will. A grant of probate issued to the plaintiff and the second named defendant from the District Probate Registry of Mullingar on 10th January, 2002. By order of the High Court dated 23rd January, 2006 the second named defendant was given liberty to renounce his rights to act as an executor and he did so on the 30th January, 2006. The first named defendant renounced his position as executor on the 2nd November, 2001 prior to the grant of probate.
3
3. The first named defendant is joined in these proceedings as a person who is named as a beneficiary in the will on foot of a clause that requires construction by the court. The second named defendant is joined in the proceedings as the person entitled to the entirety of the residuary estate.
4
4. Difficulties have arisen in construing clause 1 of the will which states as follows:
“1. I have 21 acres of land in Folio 13658 Co. Westmeath and I have been advised that said land or part thereof is zoned for residential and/or industrial development. I direct my executors to hold the said lands upon the following trusts:”
(a) To allow my son Sean to hold and enjoy the profits of the land for his own benefit until there is acquisitions of my lands for the purposes mentioned above. In such event the net proceeds of the sale of my land shall be divided equally amongst all my children and any section of the farm not so acquired shall become the absolute property of my son Sean.”
5
5. At the time of the execution of the will the lands referred to in the bequest were zoned for agricultural use. In April 2005 some of these lands were rezoned for use as a special district for business and enterprise development by Westmeath County Council.
6
6. The plaintiff as personal representative seeks the assistance of the court in administering the Estate..
7
7. These proceedings have been commenced by special summons in which the plaintiff seeks the answers to a number of questions which I will answer later in this judgment.
8
8. The bequest which I am to construe (“the bequest”) is in clause 1 in that part of the will in which the testator disposes of his property. Clause 1 is divided into two parts. The first part is a preamble in which the testator states that he has 21 statute acres of land in Folio 13658 Co. Westmeath and that he has been advised “…that the said land of part thereof is zoned for residential and/or industrial development”. The second part of the clause comprises the bequest to Sean in the following terms:
“to allow my son Sean to hold and enjoy the profits of the land for his own benefit until there is acquisition of my lands for the purposes mentioned above. In such event, the net proceeds of the sale of my land shall be divided equally amongst all my children and any section of the farm not so acquired shall become the absolute property of my son Sean.”
9
9. The bequest only makes sense in the light of the first part of the clause and seems to be predicated on it. This can clearly be seen from the words “… until there is acquisition of my lands for the purposes mentioned above” (my highlights). On the face of it, it appears that the intention of the testator was that first named defendant should hold and enjoy the profits of the lands until they were acquired for the development purposes which are stated to be residential and/or industrial. This would appear from the use of the words “to allow my son Sean to hold and enjoy the profits of the lands for his own benefit until…” (my highlights). In other words the testator expected the lands or part of them to be acquired for a value that would reflect the fact that they were zoned for residential and/or industrial development in that event the proceeds of sale would be divided equally among his children and first named defendant would hold any part of the lands not so acquired.
10. Interpretation of the will
It is clear from the evidence that the testator acted under a mistake of fact when he declared that “… the said land or parts thereof is zoned for residential and/or industrial development”. He may well have been advised that that was case but the advice was wrong and he was therefore acting under a mistake of fact. Even now, after the rezoning of the land they have not been zoned for residential or industrial development but rather for use as a special district for business and enterprise development.
11
11. In interpreting the will the court must have regard to the relevant provisions of the Succession Act, 1965.
12
12. Section 90 provides that “extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will”. In Rowe v. Law [1978] I.R. 55 and O’Connell v. Bank of Ireland [1998] 2 I.R. the Supreme Court held that s. 90 must be strictly interpreted. In Rowe v. Law, Henchy J. stated on p. 72:
“I read s. 90 as allowing extrinsic evidence to be received if it meets the double requirement of”
(a) showing the intention of the testator, and
(b) assisting in the construction of , or explaining any contradiction in, a will.”
At p. 73 he states:
“…s. 90 allows extrinsic evidence of the testator’s intention to be used by a court of construction only where there is a legitimate dispute as to the meaning or effect of the language used in the will. In such a case… it allows the extrinsic evidence to be drawn on so as to give the unclear or contradictory words in the will a meaning which accords with the testator’s intention as thus ascertained. The section does not empower the Court to rewrite the will in whole or in part.”
13
13. I am satisfied that the clause 1 of the bequest contains a lack of clarity and that there is ambiguity contained therein. I am also satisfied that the admission of extrinsic evidence is permissible in this case. There is extrinsic evidence to be found in notes taken by the testator’s solicitor upon taking instructions for the drafting of the will. I will look at these notes in some detail later in this judgment.
14
14. Section 91 of the Succession Act provides:
“Unless a contrary intention appears from the will, any estate to comprise or intended to be comprised in any devise or bequest contained in the will which fails or is void by reason of the fact that the devisee or legatee did not survive the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, shall be included in any residuary devise or bequest as the case may be, contained in the will.”
15
15. Section 94 provides:
“Where real estate is devised to a person (including a trustee or executor) without any words of limitation, the devise shall be construed to pass the whole estate or interest which the testator had power to dispose of by will in the real estate, unless a contrary intention appears from a will.”
16
16. Section 99 provides:
“If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.”
General principles of construction
17
17. In considering the authorities on this subject it seems that the following principles apply:-
(i) The court will strive as far as it can to give effect to the intention of the testator insofar as this can ascertained from the will. In limited circumstances the court is permitted to rectify a will to safe it from bad drafting. See Curtin v. O’Mahony [1991] 2 I.R. 566.
(ii) The court considers the will by placing itself in the position of the testator sitting in his armchair shortly before his death to see what he was setting out to achieve.
(iii) As a general rule the court will give legal or technical words used in a will their legal or technical meaning.
(iv) The guidelines suggested by Lowry L.C.J. in Heron v. Ulster Bank Limited [1974] N.I. 44 at 52 were approved and adopted by Carroll J. in Howell v. Howell [1992] 1 I.R. 290. These are as follows:-
1
Read the immediate relevant portion of the will as a piece of English and decide, if possible, what it means.
2
Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest the need for modification in order to make harmonious sense of the whole, or alternatively, whether an ambiguity in the immediately relevant portion can be resolved.
3
If ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
4
One may at this stage have resort to rules of construction, where applicable, and aids, such as the presumption of early vesting and the presumption against intestacy and in favour of equality.
5
Then see whether any rule of law prevents a particular interpretation from being adopted.
6
Finally, and, I suggest, not until the disputed passage has been exhaustibly studied, one may get help from the opinions of other courts and judges on similar words, rarely as binding precedents, since it has be well said that “no will has a twin brother” (per Werner J. in Matter of King [1910] 200 N.Y. 189, 192), but more often as examples, sometimes of the highest authority) of how judicial minds nurtured in the same discipline have interpreted words in similar context.”
Construing the ‘conditions’
18
18. The court has to decide whether the statement in clause 1 of the bequest is a declaration of the testator’s belief (which was erroneous) or whether it constitutes a condition attaching to the bequest. If it is a condition then the court has to decide if it is a condition precedent or a condition subsequent. Counsel for the plaintiff adopts a neutral position. Counsel for the first named defendant argues that it is clearly a condition subsequent and counsel for the second named defendant argues that it is a condition precedent.
19
19. I take the view that if it is a condition it must be a condition subsequent. There is a presumption of early vesting and it is clear that, if the words at the beginning of the bequest are a condition, that the first named defendant is to hold and enjoy the profits of the lands until such time as the condition is fulfilled, namely, the lands are acquired for the purposes of residential and/or industrial development. There are a number of cases which are authorities for the proposition that where a condition attaches to a bequest the court should approach the condition prima facie as a condition subsequent unless its construction as a condition precedent is unavoidable. (See McGowan v. Kelly [2007] IEHC 228 Mackessey v. Fitzgibbon [1993] I.R. 520 and Re Porter [1995] N.I. 157). If a condition subsequent is found to be void the beneficiary takes the bequest freed from the condition. So in this case if clause one of the bequest is a condition subsequent and is found to be void for uncertainty or incapable of taking effect, the first named defendant would take the bequest free from the condition. (See judgment of Laffoy J. in McGowan v. Kelly [2007] IEHC 228 and judgment of Gavan Duffy P. in Bourke and O’Reilly v. Bourke and Quale [1951] I.R. 216 at 223).
What is the effect of the factual error in the belief of the testator?
20
20 A gift made upon a mistake of fact cannot be cut down or altered to suit the supposed facts. See Theobald on Wills, 16th Ed., para. 53.36. Correction of mistakes by the court can only arise where the words used do not accurately reflect what the testator intended. A court can only supply or omit words in exceptional circumstances and with the greatest caution. If the gift to the first named defendant is made upon a mistake of fact then the entire bequest would fail and the bequest would fall into the residuary estate by virtue of s. 91 of the Succession Act.
Extrinsic evidence
21
In clause 1 of the bequest there are a number of words which give rise to difficulty. In the first place there is the factual inaccuracy concerning the zoning of the lands. Then there is the use of the words “…until there is acquisition of my lands for the purposes mentioned of above” and a further reference to “…any section of the farm not so acquired….” Counsel for the plaintiff argues that the use of these words tends to suggest that the testator had in mind the compulsory acquisition of land rather than a sale in the ordinary course of events. Looking at the extrinsic evidence one gets some general idea of the testator wishes. The hand written notes of the testator’s solicitor (“now deceased”) show that he received instructions at 11.00 am on the 26th August, 1997. In the course of those instructions he sets out the name and status of the testator, namely, that he is a widower, and then he sets out names and status of the children. He goes on to set out the assets and the executors. When it comes to the heading “dispositions” his notes read as follows: “farm to Sean, but if any is sold for residential or commercial purposes then it’s to be divided between all children equally. Sean can keep what is not required for residential purposes, all five to share in such sale money”. Two things are interesting about the notes. In the first place they make reference to what will happen if the property is “sold”. The words “acquired” or “acquisition” are not used. Secondly, the notes refer to what will happen if any of the property is sold “for residential or commercial purposes”. In the bequest in the actual or final will the words “… zoned for residential and/or industrial development” are used.
22
22. In the draft will the following words appear:
“I make dispositions of my property -”
1
I have about 21 acres in Folio 13658 Co. Westmeath and am aware that it is or will be zoned for residential and/or industrial development…”
In the instructions, the solicitor records the deceased assets and when referring to the farm says “farm; zoned for residential”.
23
23. When the will was drawn up the word ‘is’ appears in connection with the zoning although it is coupled with the words “… I have been advised that …”. So the position has moved from a situation where the assets were stated to include a farm which is “zoned for residential” to a draft will which says that the land ” is or will be zoned for residential and/or industrial development…” to a final position where the testator says in his well that he has been advised that the land or part thereof is zoned for residential and/or industrial development. All in all the position concerning the land is anything but clear. What does seem to emerge from the instructions and the bequest in the will is that it was the intention of the testator to let his son Sean hold the land if it remained in agricultural use but that if the land or part thereof was rezoned and sold or acquired at a significantly greater value than agricultural land then all his children should share in that windfall and Sean would retain such part of the land (if any) as was not rezoned. That is as much as can be said from looking at the will and the extrinsic evidence to be found in the solicitor’s notes.
24
24. But it seems to me that a great deal of uncertainty remains. In the first place it is not clear what was the zoning of the land as understood by the testator. The notes suggest that he instructed his solicitor that the farm was zoned for residential use whereas in the will he says that he has been “advised” that the lands are zoned for residential and/or industrial development. But it is now clear that the lands were not zoned as understood by the testator or as “advised” to the testator and although part of the land has been rezoned since his death it has not been zoned for residential or industrial development. In April 2005 part of the deceased land was rezoned as a special district for business and enterprise development and part was zoned for open space. The larger portion of the land which is zoned as a special district is intended to be a business and enterprises district. Evidence to this effect was given by Ms. Geraldine Fahy, a planning consultant in an affidavit of the 30th April, 2007. She says that the aim of the special district zoning is to attract economic and commercial investment and substantial employment but that residential development is not permitted in a special district zoning. It may well be that the zoning of part of the land as a special district constitutes “commercial purposes” as referred to in the draft instructions of the testator’s solicitor and indeed it might amount to “industrial development” as stated in the bequest. But there remains the problem of the use of the word “acquisition” of the testator’s land for residential and/or industrial development. It is unclear whether this means that in the event of the lands being compulsorily acquired for those purposes then the children of the deceased will share equally the proceeds of such acquisition. Or did the testator intend that if the land (as he believed) was zoned for residential and/or industrial development that the lands should be sold and the proceeds divided among his children. The problem is that the will does not say that and appears to “allow” Sean to remain on the land and enjoy the profits of same until they are acquired. When would they be acquired? Could the other children of the deceased compel the executors to sell the land? I take the view that if clause 1 of the bequest contains a condition, that the condition is vague and uncertain. I have already indicated that, in my view, if it is a condition it is a condition subsequent. If the condition subsequent is void for uncertainty then it follows that the first named defendant would be entitled to the land without the condition.
25
25. The plaintiff and the first named defendant both raised the possibility that the estate intended to be created by the bequest to the first named defendant could be regarded as a conditional or determinable freehold. It is argued that where the word “until” is used in the grant of a fee simple the general rule of constructions is that it may be construed as giving rise to a determinable fee simple. (See Lyall: Land Law in Ireland, 2nd edition, p. 179.) If it is a determinable fee simple then it gives rise to a “possibility of a reverter” in the grantor or settlor, in this case, the estate of the deceased. The court has been referred to Attorney General v. Cummins [1906] I.R. 406 where it was held that the rule against perpetuity does not apply to the possibility of reverter in such a situation. If the bequest to the first named defendant is a determinable fee simple, then it follows that if the determining events are void for uncertainty or otherwise the entire limitation fails. See Lyall: Land Law in Ireland at p. 180 where the following statement appears:
“At common law, if the determining event occurs, the land reverts automatically to the grantor. The grantor has the possibility of a reverter. Indeed, this is the only interest that can exist after the determinable fee simple at common law. At common law the grantor cannot, in the same deed create a determinable fee and then provide that if the event occurs, the land is to pass to someone else. The grantor cannot create a gift over to a third party after a determinable fee.”
This seems to me to be a correct statement of the law.
26
26. I have been urged to look at the will as a whole and that is what the authorities suggest I must do. However, in this particular case the will as a whole does not offer much assistance in construing clause 1 of the bequest.
Findings
27
27. I have already stated in this judgment that if clause 1 of the bequest contains a condition then it is a condition subsequent.
28
28. I am satisfied, however, that the bequest to the first named defendant in clause 1 does not contain a condition. The use of the words “allow” and “until” cause me to take the view that the bequest to the first named defendant is in the nature of a determinable fee simple. I am satisfied that at common law the Testator cannot, in his will, create a determinable fee simple to the first named defendant and then provide that, in the event that a determining event occurs, the land is to pass to someone else. A testator cannot create a gift over to third parties after a determinable fee. On that ground, the entire limitation and the entire bequest fails.
29
29. I am satisfied that the determining event specified in clause 1 of the bequest is void for uncertainty and it follows therefore, that on this basis, the entire limitation and bequest fails.
30
30. I am also satisfied that the bequest to the first named defendant was made upon a mistake of fact and that, in the circumstances of this case, it is not possible for the court to rectify or correct the mistake of fact.
31
31. It follows in my view that the subject matter of clause 1 of the bequest falls into the residuary estate of the Testator.
I answer the questions posed in the Special Summons as follows:
1
The bequest of lands comprised in Folio 13658 in the County of Westmeath is not subject to a condition.
2
Not applicable.
3
Not applicable.
4
No. The statement or declaration is incorrect.
5
The statement is of no dispositive effect.
6
No.
7
Not applicable.
8
Not applicable.
9
Not applicable.
10
The bequest is a determinable fee simple.
11
Yes.
12
Yes.
13
Not applicable.
14
No.
15
Yes.
Kearns v Manresa Estates
[1975] 7 JIC 2501
KENNY J,
This is the third case in our jurisdiction in which the validity and certainty of what is commonly called “a name and arms” clause has been questioned. Inre Montgomery Deceased, Jellett .v. Waddington (1953) 89 I.L.T.R. 62 Mr. Justice Dixon decided that such a clause was void for uncertainly because it was impossible to state when the disuse of the name which the person was bound to assume occurred. In de Vero Deceased, Jellett .v. O’Brien (1961) I.R.224 Mr. Justice Budd followed Mr. Justice Dixon’s decision and held that such a clause was void for uncertainty on grounds corresponding to those given in the first case. Since those two cases have been decided, the Court of Appeal in England, declining to follow a number of earlier English decisions, held in re Neeld Deceased (1962)2 All E.R. 335 that such a clause was valid and was not void for uncertainty. The purchaser in this case is buying a substantial area of land in Clontarf which formerly formed part of the Vernon Estate and as the validity of the vendors’ (the plaintiffs) title depends on the acceptance of the correctness of the views taken by the High Court in Ireland, has decided to bring this vendor and purchaser summons. The purchaser maintains, despite the two Irish decisions, that a name and arms clause in a deed made on the 18th December 1933 is valid and effective and that accordingly the vendors have not shown title in accordance with their contract. In order to indicate how the question has arisen it is necessary to deal with the history of the Vernon family to the lands in Clontarf. Unfortunately, this is a most complicated title.
By an Indenture of Settlement made on the 23rd December 1879 made between John Edward Venables Vernon of the first part, Edward Vernon of the second part and numerous other parties, the lands known as the Clontarf Estate were conveyed to the use of John Edward Venables Vernon during his life with remainder to the use of Edward Vernon during his life with remainder to the use of Edward Kingston Vernon during his life with remainder to the first, second, third and every other son of Edward Kingston Vernon successively in remainder one after the other according to priority of birth and the heirs of their respective bodies. John Edward Venables Vernon died on the 29th April 1890, Edward Vernon died on the 20th November 1912 and thereupon Edward Kingston Vernon became entitled to the lands as tenant for life with remainder to his sons in tail male. Edward Kingston Vernon was married in 1911 and had four children. His eldest and only son was Robert Edward Kingston Vernon and he had three younger children, Gwendoline, Elizabeth and Cynthia (subsequently called Mabel Cynthia). These three ladies have married.
By a disentailing deed dated the 18th December 1933 the lands still subject to the settlement of the 23rd December 1879 were conveyed by Edward Kingston Vernon and Robert Edward Kingston Vernon with the consent of Edward Kingston Vernon as protector to John George Oulton and Edward William Davy and their heirs subject to the life estate of Edward Kingston Vernon but discharged from all estates in tail at law or in equity of Robert Edward Kingston Vernon to such uses, for such estates and subject to such powers and provisions as Edward Kingston Vernon and Robert Edward Kingston Vernon should at any time thereafter by any deed, revocable or irrevocable, jointly appoint. Edward Kingston Vernon and Robert Edward Kingston Vernon had agreed to make a settlement of the lands of Clontarf and this was done by a deed made on the same day but executed after the disentailing assurance.
By the deed made on the 18th December 1933 between Edward Kingston Vernon of the first part, Robert Edward Kingston Vernon, the eldest son of the said Edward Kingston Vernon of the second part and John George Oulton and Edward William Davy of the third part in which the earlier history of the title is elaborately recited, Edward Kingston Vernon and Robert Edward Kingston Vernon, in exercise of the powers vested in them by the disentailing deed, appointed Clontarf Estate (which was elaborately described in the First Schedule to the deed) subject to the life estate of Edward Kingston Vernon to the use of the said Robert Edward Kingston Vernon during his life and from and after his decease to the use of the first and every other son of the said Robert Edward Kingston Vernon successively in remainder one after the other according to their respective seniorities and the heirs male of their respective bodies and, in default of issue of the said Robert Edward Kingston Vernon, to the use of Gwendoline Vernon, Elizabeth Vernon, Cynthia Vernon and every other daughter of the said Edward Kingston Vernon successively in remainder one after the other according to their respective senorities and the heirs of their respective bodies.
The next clause in the settlement is the one which has caused the difficult problem in this case and as the decided authorities turn on nicoties of language, it is essential that it should be set out.
It read:
“It is hereby agreed and declared that every person who shall under the limitations hereinbefore contained become entitled as tenant in tail male or in tail by purchase to the possession or receipt of the rents and profits of the said lands and hereditaments hereby settled other than a person who shall then use the surname of Vernon and bear the arms of Vernon shall within one year after he or she shall so become entitled or being an infant within one year after he or she shall attain the age of 21 years and also that the husband of every female so becoming entitled not being a peer or the eldest or only son of a peer shall within one year after such female shall so become entitled or marry which shall last happen assume the surname of Vernon and apply for a proper licence to bear the arms of Vernon either alone or quarterly with his or her own arms and in case such licence is obtained shall forthwith assume such arms unless in either of such cases if such person shall be prevented from so doing by death and if the person so entitled as aforesaid or in the case of a married woman her husband shall refuse or neglect within such year to assume such surname or to apply for such licence as aforesaid or shall at any time afterwards disuse such surname or shall at any time after obtaining such licence disuse such arms then and in every case immediately after the expiration of such year or such disuse if the person so entitled as aforesaid shall be a tenant in tail male or in tail by purchase the estate in tail male or in tail of such person shall absolutely determine and the said lands and hereditaments hereby settled shall immediately devolve on the person next in remainder as if such person were dead without having had issue inheritable under such limitation in tail male or in tail.”
The features of this clause which are relevant for this case are that if any daughter became entitled and married, her husband was to assume the name and arms of Vernon and in addition if either the daughter or her husband “shall at any time afterwards disuse such surname” the lands were to devolve on the person next in remainder as if the person entitled were dead without having had issue inheritable under such limitation in tail male or in tail.
By a deed dated the 15th July 1937 between the said Edward Kingston Vernon and Robert Edward Kingston Vernon of the one part and the said John George Oulton and Edward William Davy of the other part, which was expressed to be supplemental to the settlement of the 18th December 1933, Edward Kingston Vernon and Robert Edward Kingston Vernon in exercise of the power of appointment given to them by the deed of the 18th December 1933 appointed the lands settled by that settlement of the 18th December 1933 to the same uses as were by that settlement declared in default of any appointment by them save and except the use thereby declared in default of issue of the said Robert Edward Kingston Vernon in favour of Margaret Gwendoline Jane Vernon, Daisy Elizabeth Vernon and Cynthia Mabel Vernon and in lieu of the said use in default of issue of the said Robert Edward Kingston Vernon, the said lands and hereditaments should on his death be held to the use of the said Margaret Gwendoline Jane Vernon, Daisy Elizabeth Vernon and Cynthia Mabel Vernon and every other daughter of the said Edward Kingston Vernon as tenants in common in tail with cross remainders between such daughters as to their original and accruing shares as tenants in common in tail and, subject to this alteration, the said Edward Kingston Vernon and Robert Edward Kingston Vernon confirmed the settlement of the 18th December 1933.
Robert Edward Kingston Vernon died on the 30th June 1945 unmarried and thereupon the three daughters became entitled to the lands as tenants in common in tail. The first daughter married and her husband’s name was Kellett. He has not assumed the surname of Vernon and she has not barred the entail so it is said that her estate has been determined. The second daughter Elizabeth married and her husband’s name was Shepard and the third daughter called Cynthia in the deed of 1933 and now calling herself Mabel Cynthia married and her name was Mabel Cynthia Rann though there is no evidence what name she now uses.
By a deed made on the 15th January 1962 between Daisy Elizabeth Shepard and Mabel Cynthia Rann of the first part, Edward Kingston Vernon of the second part and Rupert Willoughby Oulton and Leslie Melon of the third part, Daisy Elizabeth Shepard and Mabel Cynthia Rann with the consent of the said Edward Kingston Vernon as protector of the settlement granted two equal undivided third parts of them the said Daisy Elizabeth Shepard and Mabel Cynthia Rann in the lands of Clontarf settled by the deed of the 18th December 1933 to hold the same unto the said Rupert Willoughby Oulton and Leslie Melon and their heirs discharged from the respective estates tail and all estates, powers and interests to take effect after the determination or in defeasance of such respective estates tail, nevertheless as to the share or shares of and in the said hereditaments and premises of which the said Daisy Elizabeth Shepard was previously to the execution of the deed tenant in tail to the use of the said Daisy Elizabeth Shepard her heirs and assigns and, as to the share or shares of in the said hereditaments and premises of which the said Mabel Cynthia Rann was previously to such execution tenant in tail, to the use of the said Mabel Cynthia Rann her heirs and assigns. Although the two daughters who executed this deed used their married names they were not then entitled as tenants in tail as Edward Kingston Vernon was alive. He has since died. Gwendoline Kellett’s husband has refused to adopt the name of Vernon. There is no evidence in the papers as to whether Gwendoline Kellett has assumed the name of Vernon but I assume from the answers to the requisitions on title that she has. She did not bar her entail by the deed of the 15th January 1962 and is, subject to the name and arms clause if it be valid, a tenant in tail.
The plaintiffs in this summons purchased the lands of Manresa from the three daughters of Edward Kingston Vernon. They had held the lands under two leases for a number of years and then purchased the free-hold interest from the three daughters. They have now agreed to sell the lands to the defendants. One of the requisitions on title made by the purchaser was:
“Mrs. Margaret Kellett’s husband does not appear to have complied with the provisions of clause 2 of the deed of the 18th December 1933 (name and arms clause) and accordingly the purported conveyance by her of one third of the property for sale contained in the conveyance to the vendors was inoperative and such one third is outstanding in the person next entitled as tenant in tail male of her share. A confirming conveyance from him must be procured.”
To this the answer made was:
“No confirming conveyance necessary. The name and arms clause is void for uncertainty.”
There is no evidence that Mrs. Margarot Kellett’s husband has refused to adopt the surname Vernon but the case was argued on the basis that he had and I propose to assume this for the purpose of deciding the questions which have arisen in this case.
A name and arms clause creates a condition subsequent for it divests an existing estate. In the case of such a condition the classic statement of its Effect is that of Lord Cranworth inClavering .v. Ellison (1859) 7 H.L. Cas. 707:
“I consider that from the earliest times one of the cardinal rules on the subject has been this: that where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the proceeding vested estate was to determine.”
There is however, another statement which has particular application to the problem in this case, that of Mr. Justice Fry inre Exmouth (Viscount), Exmouth (Viscount) .v. Praed (1883) 23 Ch. D 158:
“………..; the condition must be clear and certain. That in my opinion includes not only certainty of expression in the creation of the limitation but also certainty in its operation. It must be such a limitation that at any given moment of time it is ascertainable whether the limitation has or has not taken effect.”
These words were approved by Lord Rome???query?????? in the advice of the Privy Council inSifton .v. Sifton (1938) 3 All E.R. 435 and he added:
“If the provision be clearly expressed, it is the fault or the misfortune of the person affected if he should fail to know whether he is committing a breach of it. This is implied however in the language used by Fry J. He said that it must be ascertainable whether the provision has taken effect or not, not that it must be ascertainaned in fact by the person affected or even that it must be ascertainable by him without difficulty.”
It is therefore essential that the Court must be able to decide whether at any given moment of time the person has disused or discontinued to use (and I regard these two expressions as having the same meaning) the surname he is required to use. This is the ground upon which Mr. Justice Dixon held that a name and arms clause if it contained the word “disuse” is void for uncertainty because the Court cannot say that at any given moment of time the person has ceased to use the particular surname.
Name and arms clauses have appeared in all the standard books of conveyancing precedents for about 150 years and no challenge to their validity was made until 1945. This absence of challenge to their validity has been strongly relied on by the purchasers’ counsel as an argument in their favour and he has cited the words of Lord Simonds L.C. inBromley .v. Tryon (1952) A.C. 205:
“A long course of conveyancing practice cannot, I think, even where titles may be founded on it, be given the same effect as a line of judicial authority. But at the lowest I should hesitate long before I concluded that words which had for nearly a hundred years passed unchallenged by conveyancers, men often profoundly learned in the law of real property and apt to dwell on nice distinctions of language were after all incapable of sufficiently precise definition.”
In a number of English cases(Lewis Hill Trusts (1951) W.N.591, Bouverie Deceased (1952) 1 All E.R. 408, Woods Will Trusts (1952) 1 All E.R. 740 and in re Kersey (1952) W.N.541, Judges of the High Court in England had held that name and arms clauses, insofar as they created a limitation over on the disuse of a surname which a person was required to assume, were void for uncertainty. These cases were considered by Mr. Justice Dixon in re Montgomery Deceased (1953) 89 I.L.T.R. 62 and I have had the advantage of consulting the original manuscript of his judgment. In that case a person was required to use and continue to use a particular surname and there was a gift over if the beneficiary discontinued to use and bear the surname. The case had also a similarity to the present case in that the requirement to use and bear the surname applied to the husband of every female who became entitled to the lands and any refusal, neglect or discontinuance by any such husband was to be deemed to be a refusal, neglect or discontinuance by his wife. Mr. Justice Dixon pointed out that the discontinuance of the use of a surname was not so much a definite act as a gradual process but that if the clause were to be held to be valid it was essential that the Court should be able to point to the moment at which the gradual abandonment of the surname was complete. If a person required to assume a particular surname inadvertently uses the original surname or orders goods from a shop using the original surname because the shopkeeper knows who that person is or knows the address or has opened a credit account, is this a disuse of the name which the person is required to use? It is essential if the clause is to be valid that the Court will be able to say with reasonable certainty when the disuse or discontinuance has occurred. It has been conceded in all the cases that the name and arms clause is to be construed as a unit. The whole of the clause must be valid if any of it is to be effective. If a person refuses to adopt a surname, then in relation to that part there is no uncertainty but this does not save the clause. I mention this because although there is no evidence that Mr. Kellett has refused to assume the surname of Vernon, the fact that he has refused to adopt it would not enable the person next entitled to say that in the events which happened the clause was valid, for if the clause is void for uncertainty immediately after the death of the testator or immediately after the execution of the deed in which it is contained, the person bound by it is entitled to rely on this and to say that the whole clause is invalid. If therefore, the part of the clause dealing with disuse is invalid, then the whole of the clause is void for uncertainty. It would be ridiculous that in one set of facts (refusal to adopt the name) the clause was effective to divest, and in another (disuse) it was void for uncertainty.
Inde Vere Deceased Jellett .v. O’Brien (1961) I.R. 224 the obligation imposed by will was to continue to use and bear in all deeds and writings which he or she shall sign and upon all occasions the surname of de Vere and there was a subsequent provision that if the person who became entitled should at any time discontinue to use and bear the surname and arms of de Vere, then the estate of that person should absolutely determine and become void. Mr. Justice Budd following the decision of Mr. Justice Dixon hold that no one could say when the disuse or discontinuance had occurred and that the whole clause was accordingly void for uncertainty. In this case the person entitled had refused to use the name de Vere at any time.
Both these decisions were given before that of the Court of Appeal in England inre Neold, Carpentor .v. Inigo Jones (1962) 2 AllE.R. 335. In that case in the High Court Mr. Justice Cross had hold that a name and arms clause was effective and distinguished the earlier English cases. The three members of the Court of Appeal held that the earlier cases were incorrectly decided and that the introduction of the word “disuses” or the words “discontinues to use” did not introduce such uncertainty that the clause was invalid. When the case had been heard in the Court of Appeal, the three Judges gave separate judgments. Lord Evershed, when dealing with the clause about disuse said:
“Equally, as it seems to me, there is no real ambiguity in a divesting provision expressed to take effect if I should at any time “disuse” or “discontinue to use” the surname which I have adopted though I do not say that there might not be circumstances in which a disuse from accident or in some other special circumstances will seriously raise the question of its application.”
But this is precisely the problem. What are the circumstances in which a disuse from accident or some special circumstances which will justify the Court in deciding that there has been a disuse. I think that Lord Evershed has stated the problem but not solved it. Upjohn L.J. dealt with the matter at greater length. He said:
“Equally I see no uncertainty if the will directs that the estate is to be forfeited by “discontinuing” or “disusing” the name and arms. Apart from peers and possibly peeresses, and dismissing from consideration those at the other end of the scale, vagrants and criminals, every person must have a surname and, indeed though it is immaterial, a christian name in order that he or she may be identified. A person lives with his name; he cannot do without it; he uses it on all normal occasions for business and social purposes. Many must be familiar with and have experience of persons who, for good reason, have changed their names. There is no difficulty or uncertainty about it. The operation is one which necessarily takes time. Professional and business associates, tradesmen and friends have to be informed of the change of name; that will take some time but in the end, when some time has elapsed, the person who was formerly known as “X” becomes ordinarily known as “Y”. He has effectively changed his name. That can be done easily within the year laid down in the clauses in the will. He must then use that name on all occasions. Of course mistakes of forgetfulness will be made to begin with and, with all respect to the opinion of Wilberforce, J. in re Howards Will Trusts (1961) 2 All A.E.R. 413 at p. 418 I would think such lapses even after the expiration of the year should be treated as de minimis. No reported case has ever suggested any uncertainty in this operation, as I shall later point out.”
But it is precisely the question as to what lapses are a disuse or a discontinuance that causes the difficulty for the Court. How many deliberate or unintentional lapses bring the “de minimis” principle into operation? How many lapses are necessary so that it can be said that “de minimis” does not apply? I have the highest respect for any view expressed by Upjohn L.J. (subsequently Lord Upjohn) but invoking the maxim of de minimis seems to be to be a way of avoiding the difficulty. None of the judgments inre Neeld deal with the question as to how the Court is to decide that at any given moment of time (and that, as Mr. Justice Fry pointed out, is the critical question) a person has disused or discontinued to use the surname which he is obliged to assume. I do not accordingly propose to adopt the reasoning in re Neeld (1962) 2All E.R. 335.
There is another argument to which I attach considerable weight. Since the decisions inre Montgomery Deceased (1953) 89 I.L.T.R. 62 and de Vere Deceased (1961) I.R. 224, titles to property included in the Vernon estate and in other estates have been accepted on the basis that names and arms clauses are void for uncertainty in Ireland. A decision now that the clauses involved were valid would render these titles bad. Although I am not bound by decisions of other Judges of the High Court, the usual practice is to follow them unless I am satisfied that they were wrongly decided. I am not so satisfied: indeed I think that the reasoning of Mr. Justice Dixon is unanswerable.
To sum up:
1. Since 1953 names and arms clauses have been regarded in Ireland as being void for uncertainty.
2. There were at least five decisions of High Court Judges in England that they were and these included Judges with a high reputation and wide experience of Chancery matters.
3. The fact that a name and arms clause appears in all the standard text books on conveyancing is not of itself conclusive because the validity and certainty of these clauses was never questioned.
4. I think that when there have been two decisions of Judges of the High Court in Ireland, I should follow them and not multiply uncertainty and put titles in doubt.
5. The judgments inre Neeld Deceased do not advert to the difficulty that in order to be valid, the Court must be able to say that at any given moment of time the person who has assumed a name has disused it or discontinued to use it. Invocation of the de minimis principle makes the matter even more complicated for how is the Court to say what is the minimum or how many occasions on which the former name was used, be it by inadvertance or deliberately, constitute disuse. If for example it were established that at the end of the year a person who had assumed a surname had on six occasions used his earlier name
In re Coghlan, Deceased
Motherway v. Coghlan and the Attorney General
[1963] IR 246
Maguire C.J.; Kingsmill Moore J. 250
Supreme Court
MAGUIRE C.J.
14. March
In this case Mr. Justice Dixon has held that the part of the condition in the will of the testator obliging the defendant to marry is not void and that the condition obliges him to marry within one year of the testator’s death. He also held that the condition which obliges the defendant to come and reside on the testator’s farm within one year from the date of the testator’s death is void for uncertainty. This latter finding is accepted. The Court is asked, however, to hold that the condition as regards marriage is void as being contrary to public policy. This submission is unsustainable. The only question which gives rise to any difficulty is whether the two conditions should be regarded as one, with the result that as part of the condition is void the other part must also be held to be void.
As Mr. Justice Dixon says, it is plain that the testator desired that “within a year of his death his nephew should not only marry but also take up his residence on the farm . . . There are two requirements, therefore, the non-fulfilment of which will work a forfeiture.” He states that the effect of his holding that the condition as to residence is void is that the will would then read as if the residence condition is eliminated from it. The marriage condition remained and if not fulfilled a forfeiture would take place. At the time the judgment was given there still remained a period during which the condition, viz., marriage within twelve months of the testator’s death, could have been fulfilledthat time has now elapsed. Accordingly, if the learned Judge’s view is right the gift over takes effect.
The appellant’s submission is that the two conditions should be treated as one and that the invalidity of a part affects the whole. No authority is cited which is of any help to the appellant. I agree that the desire of the testator was that both of the conditions should be fulfilled in order that the defendant should become entitled under his will. I do not think, however, that one can rely upon this when considering the position which has arisen when it is held that one of the conditions is void. The two conditions are separate and distinct. In my opinion the learned Judge was right in so holding.
The appeal should be dismissed.
KINGSMILL MOORE J. :
Thomas Coghlan, a farmer of Buttevant in County Cork, died on the 12th November, 1953, a widower, without ascendants or descendants him surviving. His estate consisted of deposit receipts to the amount of £568 7s. 8d. (which are subject to a claim that they were given as a donatio mortis causa), a farm of 63 acres, registered land, with a Poor Law Valuation of £41 10s. 0d., stock and machinery on the farm, and household effects in the farm house.
By his will, dated the 17th August, 1945, the testator appointed Cornelius Motherway to be his sole executor and trustee and, after making a devise and bequest in trust, devised and bequeathed the residue of his estate to his executor to be applied for the celebration of Masses.
The bequest was in the following terms:
“I give devise and bequeath my farm and dwelling with all stock thereon and all contents to my said trustee upon trust for my nephew John Coghlan, son of my brother John, provided my said nephew shall marry (if he be not married at my death) and come to reside there within one year from the date of my death, and in the event of my said nephew not marrying and coming to live there as aforesaid, in trust to sell said farm and house and all stock and contents and apply the proceeds of such sale for the celebration of Masses . . .”
The nephew, who was resident in Cork city and aged about 35, queried the validity of the conditions attached to the gift to him, and the executor accordingly brought a construction summons naming as defendants the nephew and the Attorney General.
Mr. Justice Dixon held that the condition as to residence was framed in too indefinite a manner and was void for uncertainty. Accordingly, being a condition subsequent, it was ineffective to deprive the nephew of the farm, if he chose not to comply with it. Against this portion of his decision there is no appeal.
He held, however, that the condition requiring marriage within the year was a separate and severable condition, to which there could be no legal objection, and that if the nephew did not marry within a year forfeiture would take place.
Against this latter part of the judgment the nephew, John Coghlan, appeals. The only argument adduced on his behalf which it is necessary to consider is the contention that, properly viewed, these are not two independent and severable conditions, but one composite condition, which I may call a condition of “married residence,” and that as the element of residence is bad for uncertainty the whole composite condition fails.
Certain points seem clear. The residence portion of the condition is bad for uncertainty: Sifton v. Sifton (1); Moffat v. McCleary (2). Both conditionsor the composite conditionare conditions subsequent, and conditions subsequent which would operate to defeat a vested estate are to be construed strictly.
“With regard to . . . conditions which are to have the effect of defeating a vested estate, it is a plain rule that such limitations must be construed strictly. That rule is one of very old standing”: Clavering v. Ellison (1), per Kindersley V.C., at p. 470.
“As conditions subsequent, to defeat vested estates they must be construed strictly, and to work a forfeiture there must be shown a breach of a defined line of conduct which the parties concerned must reasonably have known would work a forfeiture”: Clavering v. Ellison (2), per Lord Campbell at p. 721.
“The contingency . . . should be something definite and certain . . . so expressed as not to leave it in any degree doubtful or uncertain what the contingency is which is intended to defeat the prior estate”: Clavering v. Ellison (1)per Kindersley V.C., at p. 470.
“Where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine”: Clavering v. Ellison (2), at p. 725.
I cite these familiar passages for two reasons. First, to show that the condition as to residence was invalidas to which there is now no disputeand secondly, to show that if there be doubt as to whether the two conditions are entirely distinct (in which case non-marriage within the year would cause divesting) or are composite (in which case the composite condition would fail for indefiniteness) the doubt should be resolved in such a manner as not to involve divesting.
Grammatically the two conditions are severable, but this is not conclusive. In Duddy v. Gresham (3) a testator left property to his wife “on the condition that [she] shall retire immediately after my death into a convent of her own choice,”and, “she being bound to go into a convent, and not to marry as aforesaid.” His wife survived the testator for seventeen months, never re-married, but did not enter a convent. Morris C.J. considered the main object of the testator was that his wife should not marry again, and the clause as to retirement too uncertain. Christian L.J. thought that the direction to retire into a convent was subsidiary to a condition against re-marriage: that the condition against re-marriage failed as being in terrorem, and that it involved the subsidiary condition in its downfall. Deasy L.J. held the condition as to retirement void for uncertainty. Ball C., on the other hand, considered that the two conditions should be read together but in a sense contrary to that which appealed to Christian L.J. and amounted to a condition that the widow should become a nun. I cite the case as showing that it is permissible to construe conditions, in form severable, as being in effect unitary, or conjunct.
What was the object and intention of the testator in the will now before the Court? Undoubtedly he desired a member of the family to take up residence on the family farm, and he desired him to be married when he took up residence. Having regard to what we know of the prevalent desire among Irish countryfolk to preserve a family farm in the hands of the family it is, I think, a reasonable, if not an inevitable, conclusion that the testator inserted the condition as to marriage in order that, when his nephew took up residence on the farm he should beget children who, after his death, should still preserve the connection between the farm and the family. Can we assume that, if owing to the invalidity of the condition as to residence his nephew was not bound to go to reside on the farm but was free to dispose of it at once, the testator would have had any interest in whether he was married or not? Of course it never occurred to the testator that the condition as to residence could be invalid, and the Court is faced with the familiar difficulty of discovering the presumed intentions of a testator in an event which he never contemplated, by his expressed intentions in regard to events which he did contemplate but which have not come to pass. I can only say that it appears to me that the condition as to marriage was in all probability subsidiary to, and dependent on, the condition as to residence, and that if the condition as to residence fails for uncertainty the condition as to marriage fails also. In truth it is not two separate conditions, one good and one bad, but a composite condition which fails by reason of the failure of one of its component parts.
O’Dalaigh J. :
It is agreed that so much of the condition subsequent as refers to residence is bad for uncertainty; and the major question raised by the appeal is whether the remaining portion of it, referring to marriage, is also bad.
It is the appellant’s submission that the condition is a single condition, and being bad in part, that it must accordingly be regarded as bad in its entirety. The respondent disputes this submission and argues that the marriage clause is severable from the residence clause. Counsel have been unable to find any authority on the question at issue and the case therefore stands to be decided as a matter of construction. Did the testator desire to achieve two separate and distinct things (i) the marriage of his nephew and (ii) the nephew’s residence on the farm. I can find nothing in the will to indicate that the testator was concerned with either marriage or residencesimpliciter. It seems to me he wanted a man with a wife to take over his farm. I do not see two conditions, but a single condition, undoubtedly expressed in two clauses but so expressed only because of the exigencies of language. The clauses are so interlocked that one clause cannot be condemned without destroying the entire condition. It would in my opinion be contrary to the testator’s wishes to allow the marriage clause to stand alone; it must, I think, fall with the rest of the condition.
Accordingly I also would allow the appeal.
NI Renewables Limited v Carey
1
Neutral Citation No: [2014] NICh 15 Ref: DEE9274
Judgment: approved by the Court for handing down Delivered: 13/05/14
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
2012/05420
CHANCERY DIVISION
________
NORTHERN IRELAND RENEWABLES LTD
Plaintiff
and
HARRY CAREY
Defendant
________
DEENY J
[1] The plaintiff herein issued proceedings against the defendant on 24
September 2012. The principal relief sought with relevance to this judgment was an
order for specific performance of a contract made, on the plaintiff’s contention, on 1
December 2010 by notice pursuant to an option agreement of 5 December 2003
requiring the defendant to grant a lease of premises to the plaintiffs in the terms set
out in a draft lease annexed to the said option agreement.
[2] The option agreement allowed the plaintiff to exercise the option within 7
years of 5 December 2003. It did so almost at the limit of that period. It contends
that that entitles it to a lease of the defendant’s lands, as set out in the agreement and
draft lease, on which it may erect one or more wind turbines.
[3] The plaintiff, on 15 November 2013, issued a summons for summary
judgment in connection with this matter. When the matter was case managed before
me on 5 December 2013 the view was collectively arrived at that the matter would be
better dealt with by way of an Order 33 summons to resolve one or more
preliminary issues of law regarding the interpretation and enforceability of the
option agreement and draft lease. In the events it was the defendant which issued
that summons. It was amended on consent and the court was left with 3 questions
for consideration.
2
(i) Whether the draft lease reserves a rent within the meaning of Section 3 of the
Landlord and Tenant Law Amendment Act (Ireland) 1860?
(ii) If the answer to (i) is in the negative, whether this means that the draft lease
does not (and cannot) give rise to the relationship of landlord and tenant
between the plaintiff and the defendant?
(iii) If the answer to (ii) is in the affirmative, whether the draft lease then
constitutes a contractual licence and whether the defendant is obliged to grant
that contractual licence to the plaintiff?
[4] The essence of the matter as to the first question was this. The rent to be paid
to the defendant under the draft lease, if the option was exercised by the plaintiff, as
here, was to be calculated under the third schedule to that draft lease. Pursuant to
that schedule the tenant, i.e. plaintiff, was to pay the landlord defendant rent per
year at the rate of £2,000 per megawatt of manufacturers rated installed capacity
from the first day of contracted supply. However, the defendant points out that that
meant there was no rent payable at the date the draft lease was entered into because
at that time there was no wind turbine producing electricity, let alone one which had
commenced contracted supply. There was no minimum rent figure, nominal or
otherwise, specified in the draft lease.
[5] Furthermore, and importantly, the draft lease did not impose a duty on the
plaintiff to erect wind turbines, even if it exercised the option, either within a
specified time or at all. It could enjoy the lease for the term of 25 years without
building a wind turbine and, therefore, without paying a penny in rent to the
defendant. His counsel submitted that there was therefore no rent, properly defined,
payable under the lease or, at least, no certain rent.
[6] Mr Douglas Stevenson appeared for the plaintiff and Mr Stephen Shaw QC
with Mr Mark Reel for the defendant. There was no dispute between them that the
Landlord and Tenant Law Amendment Act (Ireland) 1860, commonly referred to as
Deasy’s Act from the name of the law officer who was responsible for its passage
through the House of Commons, does require a rent, i.e. “any sum or return in the
nature of rent, payable or given by way of compensation for the holding of any
lands” (Section 1 and see Section 3).
[7] The area of dispute was as to whether this could and did in law constitute a
rent. Counsel referred to Irish Shell and BP Ltd v Costello [1891] ILRM 66; Escalus
Properties Ltd v Robinson [1995] 4 All ER 852; R v Westbrook [1847] 10 QB 177;
Attorney General of Alberta v Huggard [1953] AC 420; Daniel v Gracie [1844] 6 QB
144 and Street v Mountford [1985] 1 EGLR. I also considered Ashburn Anstalt v
Arnold [1989] Ch. 1 and Prudential Assurance Company Ltd v London Residuary
Body [1992] 3 All ER 504. Counsel also referred to leading text books on the subject.
3
[8] In the light of my conclusion on the second question it is not necessary for me
to resolve this interesting point.
[9] It was an essential part of the defendant’s case for the determination of these
preliminary issues that not only did the rent provided for in the Draft Lease not
constitute a rent within the meaning of Deasy’s Act but that Deasy’s Act was the
only way in which the relationship of landlord and tenant could be formed in
Ireland, including, for these land law purposes, Northern Ireland. It was necessary
for them to establish this as it clearly is not the law in England that the payment of a
rent is essential to create the relationship of landlord and tenant. See Woodfall, Law
of Landlord and Tenant, Volume 1, paragraph 7.003 and Ross, Commercial Leases:
Division G, Rent Review, Chapter 10, paragraph 768 and the case law cited therein.
[10] The defendants’ starting point must be Section 3 of Deasy’s Act itself. It reads
as follows:
“The relation of landlord and tenant shall be deemed to
be founded on the express or implied contract of the
parties, and not upon tenure or service, and a reversion
shall not be necessary to such relation, which shall be
deemed to subsist in all cases in which there shall be an
agreement by one party to hold land from or under
another in consideration of any rent.”
[11] The first thing that must be said about that is that it does not expressly say
that it is the only way of creating the relationship of landlord and tenant in Ireland
thereafter. It says that the relationship of landlord and tenant is founded on the
contract between the parties. That could be a contract not requiring rent, although if
there is rent then the relationship is deemed to subsist.
[12] The defendant relies on part of the conclusion of the learned authors of Wylie,
Irish Landlord and Tenant Law, 3rd issue, paragraph 2.10. But it is necessary to
quote a slightly longer extract than that relied on by the defendant. This is at the
conclusion of a consideration of the matter by the authors:
“The arguments seem evenly balanced and, with a dirth
[sic] of authority, difficult to resolve. Fortunately, as the
weight of judicial authority suggests, the point probably
has little practical significance, except, perhaps, on the
question of whether rent must be reserved. On this
question, we take the view that the better opinion is that a
rent must be reserved to create the relation in Ireland.”
[13] The defendant also relies on the dissenting opinion of Kenny J in a three man
Irish Supreme Court in Irish Shell and BP Ltd, op. cit. I am not convinced that the
4
majority were expressing any clear opinion on this issue, as Mr Shaw argues. If they
were it was obiter and, in any event, not binding on me.
[14] I drew to the attention of counsel a decision of the Court of Appeal in
Northern Ireland which appears to me to resolve the issue. It is an unreported
judgment of Carswell LJ, as he then was, in Todd v Unwin and Others, 5 May 1994,
sitting in the Court of Appeal with one or more unnamed colleagues. This was on
an appeal from a decision of the Lands Tribunal for Northern Ireland in which the
then President, His Honour Judge Gibson QC, held in favour of the respondent on a
preliminary point of law. The facts were quite different from those before me and
involved an issue as to whether a deed operated as an assignment or a sub-lease.
The following passage is, however, very relevant.
“The Tribunal examined the historical background of
section 3 of Deasy’s Act and came to the conclusion
that it is a permissive or enabling provision, which
extends the situations in which the relationship of
landlord and tenant is created and does not purport
to define them. We agree with the analysis of the
object of the section contained in the Tribunal’s
decision, and can set our own views in a fairly
summary manner.
At common law a reversion was always required to
create the relationship of landlord and tenant: Pluck v
Digges [1832] 5 Bligh NS 31; Porter (lessee of) v
French [1844] 9 Ir LR 514. The object of enacting
section 3 of Deasy’s Act was to make provision for the
“middlemen”, who stood between the great
landowners and their tenants. Their role was of
considerable social importance in rural Ireland in the
18th and 19th centuries. They were the agents of
absentee landlords, who in effect operated as retailers
of land to the tenant occupiers, in that they took
larger holdings from the landlords, by way of
wholesale transactions, then sub-let in smaller
holdings to the occupiers without reserving a
reversion. In the absence of a reversion they might
find themselves unable to invoke the remedies
available to a landlord, such as distress. Historically
one of the main reasons for the enactment of section 3
of Deasy’s Act was to confer a lessor’s rights upon the
middleman and fee farm grantor: see Wylie, Irish
Land Law, 2nd ed, para 17.006; Montrose, “The
Relation of Landlord and Tenant”, [1939] 3 NILQ 81;
5
and cf Chute v Busteed [1865] 16 ICLR 222. The Land
Law Working Group summarised its effect in their
Report, para 4.2.19, in a passage quoted by the
learned President of the Lands Tribunal in his
decision:
‘. . . section 3 of Deasy’s Act did not
make contract the sole basis of the
relation of landlord and tenant. It did
not apply to that relation all the rules
appertaining to contract. What it did do
was to allow the parties to constitute
that relation by contract in
circumstances where the relation would
not have arisen at common law. The
category of the relation was extended by
that section, and the law was to
recognise as the relation of landlord and
tenant a relation which the parties by
their contract considered as being that of
landlord and tenant.’
The conclusion which the President of the Lands
Tribunal drew from this is contained in a passage at
pages 9 to 10 of his decision:
‘Section 3 of Deasy’s Act was thus a
statutory intervention to allow the
parties to reflect their intention (namely
to create a lease, even although the
middleman was assigning his entire
term). What is quite vital, however, is
that the starting point is the intention of
the parties. Only if that intention is to
create a lease (or a sub-lease) does
section 3 begin to bite . . . The argument
for the Respondents in the present case
thus appears to have been based on a
false premise. It begins by looking for a
rent, and having found one, works
backwards by way of ex post facto
rationalisation. A rent exists, therefore
the relation of landlord and tenant is
deemed to exist, therefore the deed of 4
July 1983 is a lease and not an
6
assignment. The proper starting point is,
however, not whether a rent has been
reserved but the intention of the parties
in creating the deed of 4 July 1983. If
that intention was to create the
relationship of landlord and tenant then
section 3 of Deasy’s Act helps the
parties. If, however, the intention was
the opposite then section 3 has no role to
play.’
We agree with this statement of the law, and consider
that the correct approach to the present case is to
attempt at the outset to ascertain the intention of the
parties in executing the 1983 Deed, which is to be
gathered from its construction.”
[15] Mr Shaw submits that these remarks are obiter dicta. Even if this is so and this
judgment in our Court of Appeal is not expressly binding upon me, I propose to
follow it. I respectfully agree with the view the Court and Judge Gibson Q.C. formed
and consider it clearly preferable to the alternative, for the reasons set out therein
and at [11] above. On that basis, therefore, the second question of those posed to me
must be answered with the finding that the draft lease can and does give rise to the
relationship of landlord and tenant between the plaintiff and the defendant, whether
or not there is a rent compliant with Deasy’s Act, so far at least as the issues have
been canvassed before me. The court was informed that the defendant had issued
proceedings against the solicitor who had acted for him in 2003.
[16] In the circumstances therefore it is neither necessary nor appropriate to
address the third question. Mr Shaw submitted, in any event, that that proposition
had not been pleaded and was not in a position to be resolved by the court.
Rhatigan v. Gill
[1999] 2 I.L.R.M. 427 JUDGMENT of O’Sullivan J. delivered the 16th day of February 1999.
1. The single issue which I have to determine in this judgment (all other issues arising on the claim and counterclaim herein having been compromised by the parties after several days hearing) is which of the parties is entitled to possession of a 12 foot strip of land immediately adjoining the eastern boundary of a site transferred by the Defendant to the Plaintiffs on the 30th August, 1994. I will refer to this strip of land hereafter as “the twelve foot strip” .
BACKGROUND
2. The way in which this issue came about is as follows: The Defendant has been the owner of a six acre site at Ballagh, Bushy Park in the City of Galway since 1970. He built his own house thereon in 1972/3. At all material times he intended to develop this site as an upmarket residential development comprising seven generous sites in addition to his own. In this judgment I am concerned with the three sites adjoining the Defendant’s own house and proceeding into the site in a westerly direction. These sites have been referred to throughout the case as Sites 1, 2 and 3 and I will adopt the same style in this judgment. Site 1 adjoins the Defendant’s own house.
3. The evidence shows that Site 1 was transferred to James Egan on the 30th November, 1989. Its eastern boundary was common with the western boundary of the Defendant’s own site. James Egan is the registered owner of that site. Site 2 was transferred to Noel Elwood on the 3rd April, 1992 and its eastern boundary as shown on the transfer as common with the western boundary of Site 1.
4. Site 3 was transferred to the Plaintiffs on the 30th August, 1994 and once again, this transfer shows that the eastern boundary of Site 3 was common with the western boundary of Site 2. It is common case that the Defendant intended to transfer the entire of the land between the eastern boundary of Site 1 and the western boundary of Site 3 by means of the three transfers to which I have referred.
5. James Egan is registered full owner of Site 1. A difficulty has arisen, however, because he has set out his site so that the western boundary is some twelve feet short of what it should be if it were set out along the boundary shown on the transfer. This difficulty has been compounded by reason of the fact that Mr Elwood set out his site not by reference to the correct boundary between Sites 1 and 2 as shown on the transfer but by reference to the actual physical boundary set out by Mr Egan twelve feet short of the boundary of Site 1 on the transfer. The result has been that both the western and eastern boundaries of Site 2 are set out 12 foot to the east of the points on the ground where they should be in order to comply with the transfer. Accordingly, there is a strip of ground 12 foot wide immediately to the west of the western boundary of Site 2 as it has been set out on the ground which was included in the transfer of Site 2 from the Defendant to Mr Elwood but which has been excluded from Site 2 as physically marked out on the ground. The Plaintiffs have taken the benefit, so to speak, of this 12 foot strip of ground in that they have included it inside the eastern boundary of their own site whilst setting out the western boundary of Site 3 in its correct position as shown on the transfer thereof.
6. James Egan is registered full owner of the entire of Site 1 as transferred but it will be seen is in actual possession only of that site less the western most 12 foot strip thereof. Mr Elwood’s successor in title, Mr Curran, is in actual possession of a piece of ground which includes the western 12 foot strip of Site 1 as transferred from the Defendant to James Egan but minus the western most strip of Site 2 as transferred from Mr Gill to Mr Elwood. The Plaintiffs are in actual possession of the entire of Site 3 as transferred together with the western most strip of Site 2 as transferred from Mr Gill to Mr Elwood. The only one of these three sites to be registered with the Land Registry is Site 1.
7. The Defendant is registered owner of the entire overall site so that he is entitled to possession of any portion thereof not transferred to third parties or subject to rights given by him to third parties.
8. Site 2 was the subject of litigation between Noel Elwood and the Defendant which was finally determined by the High Court on Circuit on the 9th March, 1994. I will be returning to the Order of the High Court in that case at a later point in this judgment.
THE EVIDENCE
9. The evidence in the present case shows that the first named Plaintiff was aware of litigation between the Defendant and Mr Elwood at a time when he was considering buying Site 3 from the Defendant. In order to ascertain with certainty the boundaries of Site 3 he attended on site with the Defendant and he walked the four corners of the site with him. Noel Elwood had had a company called Celtic Surveyors set out his (Elwood’s) site and it was apparent that there was a gap between the western boundary of that site which was marked with a temporary fence and the eastern boundary of Site 3 which had been pegged out by the Defendant. Padraic Rhatigan gave evidence that he queried the Defendant about this gap and the Defendant said “that’s correct – those two smart asses set out their sites incorrectly and they’ll have to correct that” . He said that the Defendant told him that Elwood would have to bring his site “to where my boundary is pegged” . Padraic Rhatigan gave evidence that it was clear from this that the Defendant was not claiming the 12 foot strip and he commented that he would have had problems if the Defendant had been making such a claim.
10. This piece of evidence was repeated twice by Padraic Rhatigan in his evidence in chief, namely once when he was describing his own case and once when he was being taken through the Defendant’s counterclaim. It was not put to him in cross-examination that the Defendant had not used the emphatic expressions referred to above, although it was put to him that he was aware, before signing the contract, that the Defendant was claiming possession of the 12 foot strip. He denied this.
11. The Plaintiffs signed their contract to purchase Site 3 from the Defendant on the 18th February, 1994 (the transfer being executed on the 30th August, 1994). The Elwood -v- Gill litigation concerning Site 2 was finally determined by order of the High Court on Circuit (per Keane J.) dated the 9th March, 1994.
12. The dispute between the Elwoods and the Defendant related to a claim by the Defendant that they had wrongfully knocked a masonry stone wall bounding Site 2 to the north (that is the side adjoining the access road) whereas in fact the site as transferred stops short of this wall by some four metres. I will deal with the issues which arose in that case shortly.
13. The order of the High Court at paragraph 1 made a declaration as follows:-
“A declaration that the Plaintiff is solely and beneficially entitled to the plot of ground bounded on the north by the masonry wall but having an area of .369 hectares”.
14. To complicate matters a little further, there are two versions of this order both apparently signed by the County Registrar. Furthermore the copy of these two different versions are both, apparently, certified by the County Registrar as a true copy. The second version of the order adds the following to paragraph 1.
“… and the Land Registry map be amended to incorporate those measurements.”
15. For the purposes of this case, the relevant Circuit Court file was requested but it is missing.
16. In the result the Defendant lost the case brought against him by the Elwoods. He had contended that a piece of land along the northern strip of Site 2 (that is the strip adjoining the access road) some four metres deep had not been transferred by him to the Elwoods. The Court found otherwise and expressed its decision in one or other version of the words already referred to.
17. In their civil bill the Elwoods had claimed that the Defendant had expressly or impliedly represented and warranted to them that the boundary wall (along the northern boundary) formed part of the lands of Site 2. In his defence the Defendant relied on the transfer map which he claimed did not include the 4 metre plot behind that wall and counterclaimed for damages for trespass upon the basis that the Elwoods were in possession of more than the land sold which was outlined on the Land Registry map (the transfer map) which he said delineated the extent of Site 2.
18. So far as the precise extent of Site 2 was concerned, the issue in the Elwood – Gill proceedings was whether or not the Elwoods were entitled to the plot of land extending some four metres into the site from the northern boundary. This issue was determined in the Circuit Court and in the High Court in favour of the Elwoods.
THE SUBMISSIONS
19. The Defendant contends that the effect of the declaration in that case is to circumscribe the extent of the lands to which the Elwoods were entitled so as to exclude the 12 foot strip. The reason for this is because in the context of that case the Elwoods had set out the boundaries of Site 2 by reference to the western boundary of Site 1 which, it will be recalled, was incorrectly set out in that it fell some twelve feet short of the true position as shown by the transfer map. The Elwood site, therefore, was itself incorrectly set out (being some 12 foot to the east of where it should be). The engineers, (there were five of them in total) who gave evidence in the Elwood – Gill litigation differed as to the area of this site but their evidence in relation to it was based on the site as plotted on the ground without, apparently, taking into account the fact that the transfer map included the 12 foot strip. The issue as to ownership of the 12 foot strip was not an issue in those proceedings at all. The issue, insofar as the extent of Site 2 was concerned, was confined to whether or not the Elwoods were entitled to the 4 metre plot of ground immediately adjoining the masonry wall bounding the site to the north. In the result the Court held that they were.
20. The Defendant’s claim in the present action arises from the determination in the Elwood case. He submits that the determination of the issue in that case, and in particular the manner in which the Court order is formulated, means that the ownership of the Elwoods is determined in such a way as to exclude the 12 foot strip. The Plaintiffs in the present case lay no claim to it on the basis of his transfer to them and accordingly, he is entitled to possession thereof as being the registered owner of all lands not transferred to any third party.
21. The Plaintiffs in these proceedings submit as follows:-
(1) It is common case that the Defendant never intended to retain the twelve foot strip for himself, his intention being to transfer it as part of Site 2;
(2) The determination of the Elwood – Gill litigation did not address the question of the twelve foot strip and who was entitled to possession of it;
(3) The Defendant specifically disavowed, at least by inference, any claim to it when he spoke with Padraic Rhatigan when they were discussing the extent of Site 3 prior to signing a contract;
(4) Whilst the Plaintiffs do not claim entitlement to possession of the twelve foot strip on the basis that it was included in the transfer to them by the Defendant of Site 3, they say that they are in occupation thereof with the permission of the owners of Site 2, namely the Elwoods and now the Currans, and indeed they point to a tripartite agreement between the owners of Sites 1, 2 and 3 whereby it is agreed that the sites will be registered with the Land Registry to reflect the actual on-the-ground boundaries as distinct from the boundaries as shown on the transfer;
(5) The Plaintiffs emphasise that none of the documentation (i.e. planning, transfer or contract) indicate an intention on the part of the Defendant to reserve the twelve foot strip for himself; on the contrary it is clear that his intention was to transfer it to the Elwoods as part of Site 2.
Jus Tertii
22. In response to this Counsel for the Defendant argues that the Plaintiff is not entitled as a trespasser to set up against the Defendant’s claim to possession the right of another, namely the Elwoods/Currans. They say that jus tertii is no defence in the present case and they refer to the 21st edition of Salmond and Heuston on Tort (page 47) and adopt as their argument the following passage:-
“The mere de facto and wrongful possession of land is a valid title of right against all persons who cannot show a better title in themselves, and is therefore sufficient to support an action of trespass against such persons. Just as a legal title to land without the possession of it is insufficient for this purpose, so conversely the possession of it without legal title is enough. In other words, no Defendant in an action of trespass can plead the jus tertii – the right of possession outstanding in some third person – as against the fact of possession in the Plaintiff. It is otherwise, of course, if the Defendant is himself the lawful owner or has done the act complained of by the authority, precedent or subsequent, of him who is thus rightfully entitled.”
23. The Defendant says that even if his possession (and possession in this context is an entitlement to immediate possession as distinct, of course, to actual physical possession) is wrongful as against the Elwoods/Currans, this does not avail the Plaintiffs in the present case as a defence to his counterclaim against them as trespassers. They cannot set up the mere right of a third party as a defence to such a claim.
24. Counsel for the counterclaimant has referred in this context to two cases. The first is Glenwood Lumber Company -v- Phillips (1904: AC: 405) and cites in particular from the judgment of Lord Davey at page 410/11 as follows:-
“In Jeffries -v- Great Western Railway RW. Co. (1856:5:E and B 802 at page 805) Lord Campbell is reported to have said: ‘I am of opinion that the law is that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him having no title in himself is a wrong-doer, and cannot defend himself by showing that there was title in some third person, for against a wrong-doer possession is title.’ The Master of the Rolls, after quoting this passage, continues; ‘Therefore it is not open to the Defendant, being a wrong-doer to enquire into the nature or limitation of the possessor’s right, and unless it is competent for him to do so the question of his relation to, or liability towards, the true owner cannot come into the discussion at all, and therefore, as between those two parties, full damages have to be paid without any further enquiry.’ ”
25. The second case to which I was referred is Nicholls -v- Ely Beet Sugar Factory (1931: 2: CH: 84) and in particular to the following passage from the judgment of Mr Justice Farwell at page 86:
“I find as a fact that the Plaintiff is and has at all material times been in possession of these two several fisheries, under what appears to be a good title from the apparent owners. He brings this action accordingly. Is it open to the Defendants to put his title in issue, if by so doing they are only setting up a jus tertii ?
It is well settled that in an action of trespass a Defendant may not set up a jus tertii . He may set up a title in himself, or show that he acted on the authority of the real owner, but he cannot set up a mere jus tertii . That is well settled, and was not seriously disputed.”
26. Counsel for the Plaintiffs (as defendants to the counterclaim) submits that in the present case they are not merely setting up the right of a third person, namely the Elwoods/Currans as against the Defendant: They say that they are in occupation of the 12 foot strip with the permission of the owners of Site 2 and indeed point to a formal agreement whereby those owners in addition to themselves and the owner of Site 1 have agreed that Sites 1, 2 and 3 be registered in the Land Registry showing the boundaries as they are on the ground rather than as they are shown in the relevant transfers.
27. In my view the Plaintiffs are not setting up a mere jus tertii. They are not merely pointing to the owners of Site 2 and claiming that those owners are entitled to the 12 foot strip and therefore the Defendant is not; they go further because they say that they are in occupation of the 12 foot strip on the authority of the Elwoods/Currans who are the real owners (to use the phraseology used in Farwell) and they say that it is competent for them to question the Defendant’s relation to the Elwoods/Currans by reason of their own relationship with those parties (to use the phraseology in the Glenwood case).
28. As I understand the authorities and the doctrine of jus tertii, it fails as a defence in the mouth of a trespasser only if it is a mere jus tertii ; if the claim of the third party’s entitlement is coupled, in addition, with a further claim that the alleged trespasser is in occupation on the authority of that party, then the defence does not fail on the grounds of jus tertii. In the present case the Plaintiffs have established, in my view, that they are in occupation of the 12 foot strip with the consent and on the authority of their next door neighbours who are probably entitled to the possession of Site 2 as transferred by the Defendant, namely the Elwoods/Currans.
ISSUE ESTOPPEL
29. This brings me to the last question, namely whether the determination of the Elwood – Gill litigation has the meaning contended for by the Defendant in these proceedings.
30. The effect of the Defendant’s submission is that the issue as to the extent of Site 2 was determined in those proceedings so as to exclude the 12 foot strip and that the Plaintiffs are not free to re-open this issue (they are estopped by record) because in so doing they are standing in the shoes of the Elwoods and are therefore bound by the High Court decision as between themselves and the Defendant.
31. Before looking at the record of the Elwood – Gill litigation to determine what was at issue in that case, I will set out, briefly, the law as I understand it where a party such as the Defendant in the present case contends that the Plaintiff in laying claim to the 12 foot strip is making a submission which is the precise point which having been distinctly put in issue has been found against him by a Court of competent jurisdiction (or as in this case), against those from whom he claims authority. The principle is well established but has recently been restated in two cases involving the same plaintiff, Osgur Breathnach. The first of these ( Breathnach -v- Ireland, The Attorney General, Egan & Ors : 1989: IR: 489) was tried by Lardner J. who held that the Plaintiff in civil proceedings claiming damages for assault and battery was estoppoed from so pleading upon the basis that the issue had been determined in earlier criminal proceedings against the Plaintiff. The learned judge pointed out that the prosecution in the earlier proceedings involved a lengthy enquiry in which evidence was adduced by witnesses for the prosecution and for the defence and which lasted for 30 days during a trial of 35 days and which had been conducted to determine whether or not the statements were voluntary. That enquiry involved the consideration of the accused’s allegations of assault and battery followed by a clear determination by the Special Criminal Court that no member of the Garda Siochana (who were among the Defendants in the civil litigation) had subjected the Plaintiff to any assault or battery. Accordingly, the identical question now raised in the civil proceedings had already been decided against the Plaintiff by a Court of competent criminal jurisdiction. Accordingly, Lardner J. held the Plaintiff estopped from making this particular allegation.
32. It is worth noting that the precise issue had arisen in the earlier proceedings and had been the subject of a lengthy investigation by the Special Criminal Court which “… was concluded by a full and detailed consideration of the evidence adduced and a detailed statement of the Court’s decision on the several allegations.” In fact that statement disclosed the determination by the Special Criminal Court that there had been no assault or battery to the Plaintiff but it did not reveal a determination that there was no false imprisonment, no malicious prosecution or no failure to vindicate his constitutional rights. These latter causes of action were included by the Plaintiff in the case tried by Lardner J., but the question of issue estoppel was not raised in regard to them.
33. In a second case stated, however, a further preliminary issue was directed to be tried as to whether the Defendants were estopped from raising in their defence the legality of the arrest and detention of the Plaintiff and the question whether his constitutional right of access to a Solicitor had been denied when these matters had themselves been the subject of determinations by the Special Criminal Court. This second case stated was determined by Blayney J. and is reported at 1993: 2: IR: 448. Blayney J. quoted from the then relatively recent judgment of O’Hanlon J. in Kelly -v- Ireland (1986: ILRM: 318) at page 328 where he had said:-
“In the rare case where a clearly identifiable issue has been raised in the course of a criminal trial and has been decided against a party to those proceedings by means of a judgment explaining how the issue has been decided, I would be prepared to hold that such decision may give rise to issue estoppel in later civil proceedings in which the party is also involved. Such estoppel would arise, not only in relation to the specific issue determined (in this case, whether the statement was made freely and voluntarily) but also to findings which were fundamental to the Court’s decision on such issue”.
34. Blayney J. went on to consider whether each of the three allegations had been the subject matter of an issue determined finally by the Special Criminal Court, namely the allegation that the Plaintiff’s confession had been extracted by fear of assault and oppression, that he was falsely imprisoned and that his constitutional right to a Solicitor had been denied.
35. Blayney J. held that there was a final determination by the Special Criminal Court that the plaintiff’s statements were not made as the result of any assaults ill-treatment or improper matters employed the Guards, and accordingly the plaintiff could not raise these allegations now in his civil action; there was equally, a clear determination against the people of Ireland that his detention in the Bridewell had been unlawful and accordingly the defendants were precluded from re-litigating this issue as a defence in the civil action and that there had not been a final determination on the third issue relating to the plaintiff’s constitutional right to a Solicitor.
36. It will be seen, at once, that the approach of the Court was to apply the doctrine of issue estoppel only where there was a clearly defined issue so determined by the Court and also to segregate out a number of issues, if there were such, in the preceding litigation and to apply the doctrine only to those which were clearly determined. In regard to the issue as to the plaintiff’s constitutional right to a Solicitor, the conclusion of the Special Criminal Court that he was so deprived was based upon taking a view of ambiguous evidence which was most favourable to the then accused. In those circumstances Blayney J. held in the subsequent civil litigation that the Special Criminal Court had not purported to make a positive finding of fact and that accordingly there had not been any final determination of this issue and that it was accordingly open to the defendants to raise it again in the subsequent civil proceedings.
37. From the foregoing it will be seen that the Court’s approach to the application of the doctrine of issue estoppel is precise and strict. The issue must be identical with the issue already determined in earlier litigation and the determination, when it is an issue of fact, must be a formal determination of that issue in the same manner as it would have arisen in the second set of proceedings and not by reason, only, of the application of a principle of law which would not apply in the second set of proceedings. Thus the ruling that there had been a breach of the accused’s constitutional right to have access to a Solicitor was based not on a determination of the evidence but as a result of the application to that evidence of the principle that the view thereof most favourable to the accused should apply in the criminal proceedings. That would not apply in the case of the civil proceedings and accordingly there had been no final determination in the sense appropriate to the application of the doctrine of issue estopel.
The Court Order
38. That being the case, I now approach my consideration of the record of the Elwood/Gill proceedings with a view to ascertaining whether the issue now raised by the Plaintiffs in these proceedings (standing in the shoes, so to speak, of the Elwoods) is identical to an issue raised and finally determined (in the full sense indicated by the authorities) in those earlier proceedings.
39. A number of issues arose on these pleadings but insofar as the extent of Site No. 2 was concerned the Civil Bill claimed that the Defendant in order to induce them to enter a contract expressly or impliedly represented and warranted that:-
“(a) The boundary wall then in situ along the line marked ‘A/B’ on the map attached hereto formed part of the lands to be sold to the Plaintiffs”.
40. The line marked “A/B” represented the northernmost boundary of Site 2 as determined by the masonry stone wall. At paragraph 11 of the Civil Bill it is recited that the Plaintiffs had knocked part of this masonry stone wall in order to replace it with a concrete block wall and that the Defendant had wrongfully knocked a portion of this concrete block wall and thereafter erected poles some 4 meters inside the claimed boundary. The line of these poles was depicted on the map attached to the Civil Bill some metres south of the northern most boundary of the site along a line C/D. In his defence and counterclaim to those proceedings, the Defendant (at paragraph 2) denied that he agreed to sell the area shown on the Civil Bill map which was incorrect and further denied that he made the alleged representations and warranties, he denied that the masonry stone wall was unstable and claimed that it belonged to himself and he further denied that he was wrong in making his claim that the area of land contained between the letters A/B and C/D on the Civil Bill map was his own property. In his counterclaim he pleaded that he sold the Plaintiffs the area outlined in red in the Land Registry map (being the same as the transfer map) and sought reliefs, including damages, for trespass.
41. It is abundantly clear from the pleadings that the issue between the parties in the Elwood/Gill litigation insofar as it related to the extent of Site 2 as transferred from the Defendant to the Plaintiffs in that litigation, related solely to the question whether the site extended to the north as far as the masonry stone wall as contended by the Plaintiffs or fell short of that line by some 4 meters as contended by the Defendant.
42. This view of the pleadings, if it needed to be supported, derives conclusive support, in my view, from the Order of the Circuit Court made by Judge Cyril Kelly (as he then was) on the 8th March 1993 which at paragraph 1 provides as follows:-
“1. A declaration that the area sold to the Plaintiff includes the area in dispute before the Court being an area measuring 0.023 hectares”.
The area “in dispute before the Court” was the 4 metre strip behind the northern boundary of Site 2. There was no dispute as to the extent of Site 2 westwards and in particular as to whether it stopped short at the temporary wooden fence observed by Padraic Rhatigan in the company of Ronan Gill when they were identifying the extent of Site 3 prior to entering a contract for that site.
43. The matter was appealed by the Defendant and the High Court made an Order on the 9th March 1994 effectively dismissing the appeal. As already indicated, there are two versions of the High Court Order one of which does not and the other of which does include the sentence in the following version of paragraph 1 thereof which appears in italics.
1. A declaration that the Plaintiff is solely and beneficially entitled to the plot of ground bounded on the north by the masonry wall but having an area of 0.369 hectares and the Land Registry map be amended to incorporate those measurements.
44. As already indicated, the pleadings show that the issue on this aspect of the case was whether or not the Elwoods were entitled to the 4 metre piece of land to the north. That was the area in dispute, so identified in the Order in the Circuit Court. The same issue went on appeal to the High Court. The issue was determined in favour of the Plaintiffs and against the Defendant/Appellant. Paragraph 1 of the Court Order is clearly dealing with the same issue as was dealt with in paragraph 1 of the Circuit Court Order. The reference to the masonry stone wall as being the northern boundary of the site refers back to the northern boundary wall which had been referred to in the pleadings thereby indicating the northern extent of Site 2.
45. Even if no difficulties were to arise on the interpretation of this Order as now contended for by Counsel for the Defendant (and such difficulties do arise as will be seen shortly hereafter) it seems abundantly clear that the precise issue which was determined in the Elwood/Gill proceedings was whether the Elwoods were entitled to “the area in dispute before the Court” (to cite the Circuit Court Order) which was the same area in dispute before the High Court, namely the 4 metre strip immediately inside the northern masonry wall. There is absolutely no evidence or suggestion that other issues relating to the extent of Site 2 were determined by the High Court on appeal. Specifically, the question of who owned the 12 foot strip was not alluded to at any point in those proceedings and on any rational interpretation of the record, it is clear that neither the Circuit Court nor the High Court was concerned with this 12 foot strip at all.
46. If, contrary to the foregoing, it is now to be contended that the meaning and effect of paragraph 1 of the High Court Order is that the Defendant in those proceedings was entitled to the 12 foot strip (when no such claim was made by him in those proceedings) or that the Plaintiffs in those proceedings were held not to be entitled to the 12 foot strip (when no issue in relation to such entitlement or otherwise arose on the pleadings) then particular difficulties arise.
47. The area cited in the High Court Order is the area of the plot actually occupied by the Elwoods at the time of those proceedings. As is clear from the foregoing, this included the other 12 foot strip taken, so to speak, from Site 1.
48. The Defendant’s contention in this case involves the submission, that the determination of the High Court went further than determining the area of Site 2 and the location of the northern boundary but in addition identified the site as having its eastern boundary 12 feet inside the area of Site 1 as registered in the Land Registry.
Section 31(1) of the Registration of Title Act, 1964 provides, inter alia, that:-
“The register shall be conclusive evidence of the title of the owner of the land as appearing on the register …. “.
49. Can it seriously be contended that the true interpretation of the High Court Order is to declare the Elwoods entitled to part of the site registered in the name of James Egan? And this without any attendance or representation on the part of James Egan?
50. It may be said in response to this, however, that the Order may not be conclusive as between the Plaintiffs and James Egan as registered owner of Site 1. If it is so conclusive, then the meaning of the Order as now contended for by the Defendant is that James Egan has, by virtue of that Order, been deprived of a 12 foot strip along the western boundary of his registered title without being consulted or represented in the case leading to that Order. Alternatively, if that is not the case, then the meaning of the Order is that the Elwoods in that case must be deprived of that 12 foot strip. If that is the conclusion (and it must be either one or the other) then the site belonging to the Elwoods would not amount to 0.369 hectares (which, on the evidence before me, is the area of the site actually occupied by the Elwoods at the time of the Elwood/Gill proceedings and the area as declared by the Order itself).
51. Thus, the interpretation of the Order contended for by the Defendant involves either the most blatant and fundamental breach of the rules of natural justice, not to mention a complete overriding and ignoring of the provisions of Section 31(1) of the Registration of Title Act, on the one hand, or on the other an interpretation which is self-contradictory because the plot of ground referred to, as contended for by the Defendants in these proceedings, could not have the stated area of 0.369 hectares because this includes a 12 foot strip conclusively registered in the name of James Egan.
52. Faced with these difficulties, in my view the true interpretation of paragraph 1 of the High Court Order is that the Plaintiffs in those proceedings were entitled to a plot of ground bounded on the north by the masonry wall and having an area of 0.369 hectares. That declaration was sufficient to determine the only relevant issue established by the pleadings. There is no explanation as to how that determination was reached but clearly it is not necessary to the determination of that issue that there be a conclusion to the effect either that the Plaintiffs in those proceedings did not own the 12 foot strip or that the Defendant did.
53. With regard to the version of the High Court Order which includes the words “… the Land Registry map be amended to incorporate those measurements” , I have had evidence in the present proceedings from Frank Carroll, an official of the Land Registry, that they would not prepare a map from this particular measurement but would require a map to be furnished with dimensions. Indeed it is clear to a non-expert intelligent observer, that one could not prepare a map of Site 2 exclusively from the information contained in paragraph 1 of the Order of the High Court. Nor, indeed, does the Order require this to be done. It merely requires that the Land Registry map should be amended to incorporate those measurements. As I interpret the High Court Order, it simply requires that the Land Registry map of the plot of ground to which the Plaintiffs in those proceedings are entitled and which is bounded by the masonry wall to the north should incorporate a statement to the effect that the area thereof is 0.369 hectares.
54. Faced with the insuperable obstacles to which I have referred already, I do not think that the intention of this Order was to identify all four boundaries of the plot referred to in paragraph 1. It plainly does not do so; it is not necessary that such an interpretation be imposed on the Order for the determination of the only relevant issue arising in that case, and the attempt by the Defendant to place such a burden of interpretation on the High Court Order in the present case has led either to the self-contradiction of the Order on the one hand or on the other, to an entirely unacceptable and unnecessary violation of the principles of natural justice not to mention a head-on confrontation with the provisions of Section 31(1) of the Registration of Title Act, 1964.
55. Whilst on the foregoing view, therefore, the Court did not declare either of the parties in the Elwood/Gill litigation to be entitled to the 12 foot strip, it seems to me that it is open to the Plaintiffs in the present proceedings at the very least to contend for the probability that the Elwoods (now the Currans) are in fact entitled to the possession of the 12 foot strip, that the Court Order in the Elwood/Gill proceedings has nothing to say to that position, and that they, the Plaintiffs, are in possession thereof with the authority and with the consent of the owners of that strip. As between the Plaintiffs and the Defendant in these proceedings, it seems to me that the Defendant, as counter-claimant, has failed to discharge the onus of proof on him that on the balance of probability he is entitled to possession of the 12 foot strip. Accordingly, on this issue I refuse the Defendant the relief which he seeks in the counterclaim in relation to the 12 foot strip.