Leases & Mortgages
Cases on Leases
Halpin v. Cremin
[1954] IR 20
Lavery J.
The plaintiff claims to be owner in fee of certain lands in the townland of Ballydonoghue, in County Kerry, and seeks a declaration of his ownership against the defendant who answers that he has been in exclusive occupation of the lands since the year, 1925, and has therefore a statutory title thereto.
The history of these lands is long and peculiar but the facts are fairly clear. I need not go into the earlier part of the story in great detail.
Under the Listowel and Ballybunion Railway Act, 1886, the Listowel and Ballybunion Railway Company, commonly called the Lartigue Railway, acquired and became owners in fee of the lands which became part of the Company’s systemif that is not too elaborate a word.
The lands adjoin the defendant’s land lying between it and the public road.
The Company, on the 16th February, 1888, executed a debenture to secure the sum of £11,000 with interest at 5% per annum in favour of the Debenture Corporation Limited, and to secure the advance assigned to the Corporation “the undertaking of the Company and all tolls and sums of money arising in respect thereof and all the estate right title and interest of the Company in and to the same.”
By a series of transfers the debenture became vested in one, Henry Ernest Crawley.
The Railway Company continued its operations till the year, 1924, when it closed down. The rails or, rather, the rail, was taken up and sold for scrap in the year, 1925, and since then the lands in questionand, no doubt, the rest of the trackwere abandoned by the Company.
It does not appear whether interest was paid on the debenture and, if so, to what date, but the entire of the principal sum remained due.
At any rate, in the expressive words of Mr. O’Mahony, in 1925 the Railway Company “vanished,” the paling between the track and the defendant’s land disappeared and since that year there were no acts of ownership by the Company.
When the Railway ceased and the track was lifted, the defendant tells me, and I accept his evidence which is, indeed uncontradicted, that he removed the paling, filled in a way which he had enjoyed across the track, made drains to clear his land of water, fenced off the track at the lateral boundaries of his lands so as to incorporate the track with his fields and grazed cattle thereon, and has ever since occupied and used the lands as his own without interruption from any person.
The defendant has therefore a complete statutory title unless it can be in some way displaced.
The plaintiff sets up a documentary title which has many peculiar features and it must be examined.
In 1928, Henry Ernest Crawley, the then owner of the debenture, instituted proceedings in the High Court naming the Listowel and Ballybunion Railway Company as defendants and an order was made by Mr. Justice Meredith on the 26th November, 1928, dispensing with service of the summons on the defendant Company “the same being no longer in existence” whatever that may mean, as I have no evidence that the Company wound upand declaring”that the plaintiff is entitled to a lien or mortgage by virtue of the debenture for the sum of £11,000 with interest thereon on the lands specified in the schedule” and ordering that in default of payment the lands should be sold under the Court.
The schedule names “all the lands and premises in the County of Kerry of the defendant Company (which according to the order was non-existent) which form portion of their undertaking or otherwise.”
It is difficult to understand the words, “or otherwise,”especially as the debenture charged only the undertaking, but this is immaterial as the lands in question clearly were part of the undertaking.
It is not surprising that the sum of £11,000 remained unpaid and the suit apparently remained derelict for many years, though there is some indication that some portions of the lands were sold for trivial sums.
At any rate, the suit was revived in 1941 in the names of Cuthbert Morley Headlam and another as executors of Henry Ernest Crawley and by order of the 30th November, 1942, the proposal of Patrick Halpin, the present plaintiff, to purchase the unsold portion of the property subject to the debenture for the sum of £8, was accepted and he was declared the purchaser of the plots of ground identified on a map, which include the plot or piece of land the subject of these proceedings. The order proceeded to declare the defendant Companynon-existent since 1928trustees of “all the legal estate and interest” in the said plots of land for the said Patrick Halpin and vested the same in him “for all the legal estate and interest therein hitherto vested in the defendant Company.”
The order proceeded to recite that the plaintiff’s debenture was a first charge on the property and undertaking of the Company and the funds arising from the realisation of the undertaking were insufficient to discharge in full the sums secured by the debenture (a masterpiece of understatement) and ordered that Patrick Halpin should pay over the purchase money of £8 to the plaintiff on account of the principal sum secured by the debenture.
This order is the basis of the plaintiff’s claim to ownership of the lands.
Mr. Roche, for the plaintiff, submits that from the execution of the debenture in 1888, the debenture holders were mortgagees of the lands and that therefore the defendant could not and did not prescribe against them and that at most under the statute he could only acquire the estate and interest of the Railway Company as mortgagors.
It may be noticed in passing that the order of the 30th November, 1942, vests in the plaintiff only the estate and interest of the defendant Company.
Mr. McMahon relied, of course, on the defendant’s uninterrupted possession and exclusive occupation of the lands for over twenty-five years and, having established this as a fact, submitted in answer to the submissions in law that the plaintiff and his predecessors in title to the debenture had only a floating charge and not a specific charge on the particular lands at least until the order of the 26th November, 1928, was made. He admitted that if a stranger is in possession while the mortgagor is paying interest on the mortgage, this payment of interest prevents the statute
from running against the mortgagee and he referred to the Real Property Limitation Act, 1837 (7 Wm. 4 & 1 Vict., c. 28), as amended by s. 9 of the Real Property Limitation Act, 1874 (37 & 38 Vict., c. 57).
As already stated, there was no evidence that the Railway Company were paying interest on the debenture. It is perhaps unlikely that in the later years of their operations at least they were doing so.
The Real Property Limitation Act, 1837, explaining the Real Property Act, 1833 (3 & 4 Wm. 4, c. 27), provided that it should be lawful for any person claiming under any mortgage of land to make an entry or bring an action or suit to recover such land at any time within twelve years (Real Property Limitation Act, 1874, s. 9) after the last payment of any part of the principal money or interest secured by such mortgage although more than twelve years may have elapsed since the time at which the right to make such entry or bring such action or suit shall have first accrued.
It has been held and is well established that this Act does not confer a new right of entry on the mortgagee where at the date of the mortgage a person is in possession adversely to the mortgagor and the statute has begun to run in his favour against the mortgagor: Thornton v. France (1).
Leaving aside the question whether interest was paid on the debenture, in my opinion the decisive consideration in this case is what is the position of a debenture holder whose charge retains the character of a floating security at the time when a person enters into possession of a particular part of the assets of the Company and commences to acquire a title by possession certainly against the Company.
The debenture in the present case was not supported by a trust deed. I have already quoted its terms.
It is clear that if a mortgage were created by the Company after 1925 when the defendant took possession both Company and debenture holder would be barred: Thornton v.France (1); Ludbrook v. Ludbrook (2); Munster and Leinster Bank v. Croker and Others (3). In Thornton v. France (1)Chitty L.J., delivering the judgment of the Court, said:”Further we think that that Act (7 Wm. 4 & 1 Vict., c. 28) does not confer a new right of entry on the mortgagee where, at the time of making the mortgage, a man is in possession holding adversely to the mortgagor, and the statute 3 & 4 Wm. 4 has already begun to run in his favour against the mortgagor.”
It has now to be considered what is the position where a floating security having been created a person enters into possession before the holder of the security has done anything to change its character into a fixed security on specific assets and the statute runs out in his favour without question against the company which has created the security.
The nature of a floating security as stated in Coote on Mortgages (9th ed., 1927, at p. 505) is that it leaves the company free to dispose of its property by sale or otherwise in the ordinary course of its business. The company may mortgage or sell part or even the whole of its propertyif not ultra viresand may issue debentures: Governments Stock and Other Securities Investment Co. v. Manila Railway Co. (1); In re Borax Company (2).
A debenture constituting a floating security over the undertaking and assets of a company does not specifically affect any particular assets until some event occurs or some act on the part of the mortgagee is done which causes the security to crystallise into a fixed security: Evans v. Rival Granite Quarries Ltd. (3).
In the words of Buckley L.J.a great authority on this branch of lawthe “holder [of a debenture] cannot affirm that the assets are specifically mortgaged to him.”
The charge becomes specific on the appointment of a receiver or on a winding up.
In the present case it is clear that nothing was done to make the charge specific till, at earliest, the issue of the summons on the 12th November, 1928, on which the order of the 26th November, 1928, was made. At that date the defendant was in possession.
In my opinion, the basis of the decision in Thornton v.France (4) applies and in the words of Chitty L.J. in that case I can see no reason for giving so extensive a construction to the Act of 1837 which was passed to remove a doubta construction which would tend in a large measure to undo the principal Act.
I therefore hold that the defendant has acquired a title by possession good against not only the Railway Company but against the plaintiff as the purchaser from the holder of the debenture;
The civil bill will therefore be dismissed and the order of the Circuit Court will be affirmed.
Trappe v Halpin
High Court.
19 January 1928
[1928] 62 I.L.T.R 15
Judge Wakely.
This action is brought by William Trappe against John Halpin to recover a very small piece of land in this town. The way the matter arises is this:—At some period of time when Mrs. Margaret Conmee got possession of these premises under a feefarm grant—it is a town question, and no Land Act question, of course, arises at all. These premises adjoin premises of which Mr. Halpin was tenant and afterwards apparently bought out, and this little piece of land goes right up and adjoins into his land, and when Mrs. Conmee bought there was a tenant there, Miss McCarthy, a yearly tenant, and, to make a long story short, she was ejected by a decree given by me in 1926 at the suit of Mrs. Conmee, and this decree would cover this piece of land, and Mr. Halpin, of course, was not a party to it and it was not binding on him. In Miss McCarthy’s tenancy—namely, in 1912—Mr. Halpin says he asked Mrs. Conmee would she let him have this piece of land and she said “yes,” and that he then put a small piece of paling around it, and it has been there since, and the place has been used for putting up clothes to dry and that he has had it surrounded by some other fence, and it is in his land since. Mrs. Conmee says she never did tell him that, and that she hardly knew Mr. Halpin to speak to, beyond he might say “good morning.” But I think she must forget, and I am satisfied that Mr. Halpin did ask her might he have this piece of land, and that she gave him permission, and that he did then fence it in, and there is no doubt it had been fenced in by him and used by him therefore for more than 12 years under the Real Property Limitation Act. Mrs. Conmee’s explanation of that is that she did not know what might have occurred between the tenant and Mr. Halpin, and she did not interfere, and it is not a thing that has been done in a stealing or hidden way. The paling was put there, and it helps to satisfy me and corroborates the evidence *15 of John Halpin that he got this land from Mrs. Conmee by word of mouth in 1912, and he then erected this paling, and in my opinion I do not think she intended him to have a licence to use this piece of land, and, of course, if it was it would be a licence coupled with an interest in the land, and if having done this it could be taken away, though it may be necessary to call on him to remove it, having revoked the licence, before an action could be taken. I am satisfied that she did intend to give him this piece of land, and though he could not enforce the contract—he bought no land—and, of course, the rent has been paid by Miss McCarthy to Mrs. Conmee until she was put out, and by Mrs. Conmee to whoever is the receiver of the head rent. He has this piece of land over 12 years—since 1912—and with the knowledge of Mrs. Conmee when she allowed him to fence it, and he has been there ever since and has never paid a halfpenny rent or rates for it. I am satisfied. I thought very carefully over it, and it has given me a lot of thought, and I have gone to all the authorities and I found a case decided in 1902. Suppose that I let land, and during the currency of that lease that a person comes into possession and holds it and uses it for twelve years and pays no rent or anything, then at the expiration of the lease—it will be found in volume 19 in Halsbury; I forget the name of it, a case decided in 1892—and then the landlord can bring an ejectment because he could not take it until the expiration—until the lease had expired. I am satisfied that this was done by Mrs. Conmee, she acquiesced in it, and there was a person in occupation of it, and she did not use it. It was small, but, of course, little bits in towns are more valuable than in the country. Once I am satisfied that the defendant did it with the knowledge and acquiescence of Mrs. Conmee— and there is any amount of law in it and it would be a case well worth taking to appeal—I dismiss the civil bill without prejudice.
Finlay (for the appellant).—The defendant was a bare licensee. The licence given to him was parol, and accordingly revocable at any time: Wood v. Leadbitter, 13 M. & W. 838. A tenancy-at-will should not be inferred because (1) a yearly tenancy in respect of the portion in dispute already existed between Mrs. Conmee and Miss McCarthy; (2) the uses of the plot made by the defendant were capable of being the subject-matter of easements: Drewell v. Towler, 3 B. & Ad. 735; Attorney-General of Southern Nigeria v. John Holt & Co., [1915] A. C. 599, at p. 617. If the Court were satisfied that the defendant was a licensee, the character of his occupation was established, and accordingly the Statute of Limitations could not run against Mrs. Conmee or her successors in title.
Hogan (for the respondent).—A tenancy-at-will was created between Mrs. Conmee and the defendant, who took exclusive possession of the plot in question and fenced it in. The statute commenced to run against Mrs. Conmee after the lapse of one year from the creation of the tenancy-at-will.
Sullivan, P., said that this was a peculiar case. His Lordship was satisfied that Judge Wakely, although the property was of very little value, gave full consideration to the question whether the occupation of this plot of ground was under a licence which, not being coupled with an interest, could have been revoked at will, or whether it was a tenancy-at-will. The defendant said it was given to him by Mrs. Conmee, and the way this argument was met was by calling Mrs. Conmee, who said that she did not so give it. The defendant did swear to facts which might go to show that he was more than a mere licensee. He fenced off the plot and got it mapped into his own adjoining holding.
If the plaintiff were to succeed, Mrs. Conmee’s evidence should have been that she merely allowed him to use the plot for the purposes of hanging out clothes and for an ashpit, but that the ownership remained in her. His Lordship thought that the learned Circuit Judge was entitled to hold that the defendant became a tenant-at-will, and accordingly, in the circumstances, subsequently acquired a title under the Statute of Limitations.
O’Byrne, J., agreed. The Circuit Judge evidently believed the evidence given by the defendant and did not believe that Mrs. Conmee’s evidence was accurate. His Lordship was not prepared to differ from the decision of the Circuit Judge. It was the only finding which was reasonably consistent with the facts in the case. The defendant, in 1921, asked Mrs. Conmee whether he might have the plot, and he said that she gave him the premises. He said he asked her if he could wire it in, and, in fact, he did wire it in. His Lordship came to the conclusion that the permission to fence the plot was given. The defendant had been using this plot exclusively ever since, and these facts suggest that in the first instance the defendant got possession so far as Mrs. Conmee could give it. It seemed to his Lordship that the defendant was created a tenant-at-will, and that there was a tenancy between Mrs. Conmee’s successors and the defendant, and he was of opinion that the Statute of Limitations operated, and so the defendant acquired a title before this action was brought.
McAuliffe v. Irish Sailors and Soldiers Land Trust.
Flahive v. Same.
[1959] IR 79
Dixon J.
The substantial claim of each of the plaintiffs in these actions is to have acquired a title, as against the Irish Sailors and Soldiers Land Trust, by continued possession free of rent and without acknowledgement of title, in respect of the cottage which each of them respectively occupies. There are also claims as to the power of the defendants, the Irish Sailors and Soldiers Land Trust (whom I shall refer to as “the Land Trust”), to sell the cottages to ex-service men who served in the War of 1914 to 1918 or, in some cases, to widows of such ex-service men, either in the manner in which the Land Trust proposes to do so or at all. There are other, subsidiary claims, to be noted later. If, in fact, each of the plaintiffs has become the owner of the cottage occupied by him or her, the question whether the Land Trust has or has not power to sell such cottage becomes academic.
The cottages are two of those provided for the accommodation of men who served in the British naval, military or air forces in the first World War by the Land Trust under the powers and provisions contained in s. 3 of the Irish Free State (Consequential Provisions) Act, 1922, and in the Land Trust Powers Act, 1923; and they are situated in the settlement or garden city of such cottages erected at Killester, Co. Dublin. The plaintiff, Daniel McAuliffe, as such an ex-service man, was, on or about the 28th February, 1928, provided by the Land Trust with the cottage known as 41 Middle Third, Killester, and he has since been in occupation thereof with his family. The other plaintiff, Mary Flahive, is the widow of John Flahive, also an ex-service man, who, as such, was provided by the Land Trust, on or about the 31st October, 1930, with the cottage known as 27A, The Demesne, Killester. He died on the 28th September, 1936, and Mary Flahive has remained in occupation since then together with, at different times and for varying periods, members of their family and other persons.
Daniel McAuliffe, one of the plaintiffs, and John Flahive, the late husband of the other plaintiff, each signed a tenancy agreement with the Land Trust, on the occasion of being let into possession, which provided for the payment of rent and other matters. Since, however, the decision of the Supreme Court in Leggett and Others v. Irish Sailors and Soldiers Land Trust and Attorney-General (1), in July, 1933, that the ex-service men who were plaintiffs in that case were not bound to pay any rent in respect of the several cottages and plots occupied by them respectively, no rent has been paid in respect of either of the cottages in question in the present actions or, apparently, in respect of any of the cottages provided by the Land Trust in the portion of this country then known as the Irish Free State.
The Land Trust was set up by s. 3 of the Irish Free State (Consequential Provisions) Act, 1922, as an incorporated body “for the purpose of providing in Ireland cottages, with or without plots or gardens, for the accommodation of men who served in any of His Majesty’s naval, military, or air forces in the late war, and for other purposes incidental thereto.” For these purposes, the Land Trust was given all the powers which had been conferred on the Local Government Board for Ireland by s. 4 of the Irish Land (Provision for Sailors and Soldiers) Act, 1919, including power to carry out the schemes made under that section by that Board prior to the passing of the Act, and such powers of management, sale, disposal and otherwise as might be conferred on them by regulations made by the Treasury. In the context and circumstances of that enactment”the Treasury” meant the British Treasury.
Sub-sect. 4 of s. 3 of the Act of 1922 provided:”There shall be paid to the Trust out of moneys provided by Parliament, at such times and in such instalments as the Treasury may direct, a sum not exceeding one million five hundred thousand pounds, and the sum so received and all other receipts of the Trust shall be applied by the Trust to the purposes for which the Trust is created.”Here again, in the context and circumstances, “Parliament”meant the British Parliament. More than half the sum mentioned was in fact provided and used for the erection of cottages in the Twenty-Six Counties.
This Act of 1922 became law on the 5th December, 1922, the day before the coming into operation of the Constitution of the Irish Free State, and its provisions in relation to the Land Trust were supplemented by our own statute, the Land Trust Powers Act, 1923, in a manner consistent with the new situation. By sect. 1 of this last-mentioned Act, the Land Trust was given power to acquire and hold land in Saorstat Eireann and such other powers as might be necessary to enable the Land Trust to carry out in Saorstat Eireann the purposes of s. 3 of the Act of 1922, but nothing in the section was to be taken as empowering the Land Trust to acquire land compulsorily in Saorstat Eireann . Land could, however, be acquired otherwise than by agreement through the Minister for Local Government, under sub-s. 2, if he thought fit to do so.
The nature of the Land Trust and its relationship with the ex-servicemen were considered by the Supreme Court in Leggett’s Case (1), already referred to, and again, in 1936, in Casey and Others v. Irish Sailors and Soldiers Land Trust (2), in the former case on appeal from Johnston J. and in the latter from Meredith J. The decision in the former case was that the land acquired by the Land Trust was held in trust for the provision of accommodation for ex-service men but that the only question that the plaintiffs thereinthe action not having been brought by or through the Attorney-Generalwere entitled to raise was their liability to pay rent. On this question, it was held that the Land Trust had no power to charge rents.
In Casey’s Case (1), a number of actions were brought to test other features of the relationship, arising either out of the decision in Leggett’s Case (2) or independently of it. These actions were decided on the basis of the view taken and expressed by the Supreme Court that the true view of the Act of 1922 was that the Land Trust is a public eleemosynary corporation and that the selected men have no estate in the land equitable or otherwise but are put into occupation at the will of the Land Trust.
In the course of delivering the judgment of the Supreme Court in Casey’s Case (3), Murnaghan J. went on to say (at p. 219):”The technical legal position of the selected ex-service man is that of tenant at will or tenant by sufferance of the Trust which is charged with the duty of administering the trust of its lands for the benefit of all ex-service men.” The decision of Meredith J. was affirmed in these cases, and, in his judgment, he had said in Casey’s Case (4), at p. 323:”Now, in my opinion, a qualified ex-service man simply let into possession of a particular cottage by the Trust in performance of their duty to use the cottages, when provided, for the accommodation of qualified ex-service men, becomes no more than a tenant at will.”
In reliance on this statement of the position, the plaintiff, Daniel McAuliffe, claims that he has been in possession without payment of rent since the 29th July, 1933 (the date of the decision in Leggett’s Case (2)), or acknowledgement of title, and that, accordingly, the tenancy at will terminated more than twelve years prior to the institution of the proceedings and that, by reason of his continuous occupation, he has acquired a freehold title. The claim of the plaintiff, Mary Flahive, in this respect, is not quite similar, as she relies on her occupation since the 28th September, 1936, the date of her husband’s death, to the exclusion, as she alleges, of the Land Trust and all other persons. Prior to his death, rent had already ceased to be paid, and, apart from the fact that she remained in occupation after his death without any effort by the Land Trust to dispossess her, there is uncertainty as to what, if anything, occurred at the time. So far as she was or might be held to be a tenant at will, the argument on her behalf would be similar to that in the case of the other plaintiff.
One of the peculiar features about these cases is that the plaintiffs rely on their periods of occupation as the basis for a positive claim to have acquired a title to the cottages and not merely, as is more usual, for the purpose of-negativing a claim for possession against them. There has not been any claim or attempt to dispossess them. The Land Trust are the legal owners of the freehold but they are only trustees, as decided in Leggett’s Case (1), for the ex-service men. The trust is not exhausted or fully carried out, as regards any particular cottage, when an ex-service man is put into possession of that cottage. This was made clear in sub-s. 5 of s. 4 of the Irish Land (Provision for Sailors and Soldiers) Act, 1919, as to cottages provided under that Act. It reads: “Any cottage, plot or garden provided under this section which ceases to be required for the accommodation of any such man as aforesaid may be let or otherwise disposed of in such manner as the Board may, with the approval of the Treasury, determine.”The Board there referred to was the Local Government Board whose powers were transferred to the Land Trust under the Act of 1922. This sub-section strongly suggests that, if one of the provided cottages became unoccupied for any reason, it should be given to another ex-service man not already provided for; and this is what happened in the case of one of the plaintiffs in Casey’s Case (2). There are still, apparently, a considerable number of qualified ex-service men seeking accommodation which is not presently available and it is only after there are no more claimants to be provided for that the sub-section quoted was to come into operation. It was also recognised by the Supreme Court in Casey’s Case (2) that there will be an ultimate resulting trust in respect of cottages no longer required for the purposes of the Trust but the question as to what that resulting trust would be could not be, and was not, decided in that case.
If the claim of the plaintiffs were to succeed to the full extent, it would involve barring the interest of the ex-service men unprovided for and also any interests under the resulting trust; but none of these interests is directly represented in these actions.
The claim is obviously unmeritorious; but most claims to have acquired a possessory title are, and it has to be considered from the point of view whether it is well founded in law. The claim is based on the provisions of s. 7 of the Real Property Limitation Act, 1833, relating to tenancies at will. This provides that “when any person shall be in
possession or in receipt of the profits of any land, or in receipt of any rent, as tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress or bring an action to recover such land or rent shall be deemed to have first accrued either at the determination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have determined: Provided always, that no mortgagor or cestuique trust shall be deemed to be a tenant at will, within the meaning of this clause, to his mortgagee or trustee.”
The case made under this section is that the tenancy at will commenced in the case of each plaintiff more than thirteen years before the actions were brought and that, accordingly, more than twelve years had expired in each case from the time at which the right of the Land Trust to recover possession should be deemed to have accrued, and that the proviso does not help the Land Trust because, it is said, the ex-service men let into possession of cottages are not cestuis que trustent within the meaning of the proviso. This latter proposition is based substantially on some expressions of Murnaghan J. delivering the judgment of the Supreme Court in Casey’s Case (1). He there said, in a passage immediately following that already quoted:”The Trust will no doubt control the property in a reasonable manner and there is nothing to prevent the Trust from permitting a selected ex-service man to continue in occupation so long as he remains a proper object of the Trust. In the growth of equitable doctrines as administered by the Court of Chancery where estates were held at law by trustees for the benefit of individuals, these persons came to be recognised as owning equitable estates and were called cestuis que trustent; but the objects of a public eleemosynary trust have no equitable estate whatsoever and can only, by analogy, if at all, be called cestuis que trustent. Such trusts often last in perpetuity and the individuals who from time to time benefit by the trust have no estate, equitable or otherwise.”
In that case, the Supreme Court was dealing with a claim that a selected ex-service man when put into occupation of a cottage thereby acquired an estate for his life, the more extreme claim that he owned the cottage absolutely having been abandoned as untenable: see judgment of Murnaghan J., at p. 218; and the expressions quoted were used in reference to such a claim. The question whether the possession or occupation of such an ex-service man was of such a character as to be capable of founding a claim to a possessory title was not in issue or decided there. The references by Murnaghan J. to the Land Trust permitting an ex-service man to continue in occupation so long as he remained a proper object of the trust and to trusts of that type often lasting in perpetuity are some indication that the Supreme Court did not contemplate the possibility of such a claim arising. The case is certainly not an authority for the proposition that an ex-service man cannot be acestui que trust within the meaning of s. 7 of the Act of 1833.
In St. Mary Magdalen, Oxford v. Attorney-General (1),the House of Lords took the view that s. 25 of the same Limitation Act of 1833, in its reference to trustees, included in its scope charitable trusts. Lord Cranworth L.C., at p. 208, said:”These sections apply in terms to all trusts. Charities are trusts, a favoured sort of trust, no doubt; but still a charity is a trust, and nothing more.” Similarly, it could be said that s. 7 applies in terms to all trustees; and the position of the Land Trust as trustees could hardly have been more clearly established than in the two decisions of the Supreme Court already referred to. If, merely because the objects of the trust have no equitable or other estate in the lands, the trustees lose the benefit and protection of the proviso, then, in this respect at least, a charity is less favoured than any other kind of trust.
The case just cited has a strong analogy with the present cases, inasmuch as the individual objects of the charity therethe poor of two named parisheswould have had no equitable estate or interest in the lands which were given for their benefit. Nevertheless, it was held that they were the real plaintiffs in the suit, although it had been nominally brought by the Attorney-General on information to cancel a lease that the trustees had made of the lands; and it was also held that they (the poor of the two parishes) were in the position of a cestui que trust. The effect of this decision was to bring the case within the terms of s. 25 of the Act of 1833, which dealt, inter alia, with “the right of a cestui que trust” to recover land subject to the trust. A further analogy, but, on account of the possibility of the existence of a beneficial interest, a less close one, is afforded by the case of Edwards v. Warden (2), which dealt with a fund established by the covenanted civil servants of the East India Company for granting pensions and annuities to members, their widows and children. It was held that the trustees of the fund were not mere trustees for the association, but “trustees” properly so called, and that the members of the fund were the beneficiaries. Lord Chelmsford, at p. 297, posed and answered a question which could be posed and answered in a similar way in the present cases:”The whole property of the Fund . . . is vested in the committee of managers as trustees. Trustees for whom? Clearly for those who are the objects of the Fund. The cestuis que trustent are not, as the Lords Justices say, the association, but every person who has acquired a right to have a certain portion of the Fund appropriated to him or her by the trustees.”
In the present case, there is a trust established by the Act of 1922 and which has been held by the Supreme Court to be a public eleemosynary trust; there are trusteesthe Land Trust; there is property subject to the trustthe cottages; and there are persons who are in possession of the trust property as objects of the trust. If, as I hold, a trust of that nature is within the terms of s. 7, it seems to me that the conditions of the proviso are fulfilled and that such persons are precluded by the proviso from acquiring a title adverse to that of the trustees by whose will they continue in possession. This view accords with that taken by Wilde C.J., as to the intention of the proviso, in delivering the judgment of the Court of Common Pleas in Garrardv. Tuck (1), at p. 253, where he said:”. . . the exception seems to be introduced in order to prevent the necessity of any active steps being taken by a trustee to preserve his estate from being destroyed, as in the case of an ordinary tenancy at will, by mere lapse of time.” It would be a fantastic and intolerable position if the objects of a public trust could not safely be left undisturbed for extended periods in occupation of property intended for their use and benefit but of which it was never intended that they should have or acquire any ownership.
The matter can be looked at from a slightly different angle. Sect. 7 in terms applies to all trusts. It was held in Warren v. Murray (2), to apply to an implied trust; and, as has been seen, there is no good ground for supposing that it was not intended to extend to charitable trusts. The proviso deals, inter alia, with persons who are tenants at will to trustees of trust property and these persons are referred to as cestuis que trustent, that is, the criterion seems to be occupation as a tenant at will by reason of the existence of a fiduciary relationship rather than by reason of the existence or non-existence of a beneficial interest on the part of the occupant. This suggests that “cestui que trust” is used in the proviso in a wide and general sense. The term was also used by Kennedy C.J. in his judgment in Leggett’s Case (1) as applying to the ex-service men who were objects of the trust. If it were otherwise, the anomaly would arise that, while persons in possession under a private trust cannot prescribe against their trustees in respect of property in which they have an equitable estate, the objects of a public trust could prescribe in respect of property in which they have no estate at all.
These considerations are sufficient to dispose of the claim to a possessory title, so far at least as the plaintiff, Daniel McAuliffe, is concerned. There is no question that he is, and has always been, an object of the trust and in possession as such. In the case of the other plaintiff, Mrs. Flahive, who is the widow of an object of the trust, different considerations may apply. On her behalf, it was contended that she is not, and never was, an object of the trust, which was in terms limited to providing accommodation for men who served in the specified forces. It was further argued that the addition, in s. 3, sub-s. 1, of the Act of 1922, of the words, “and for other purposes incidental thereto,”could only mean purposes incidental to the main object of providing accommodation for the persons indicated and could not extend the class of such persons. This question relates to the scope and administration of the trust as a whole and it is very doubtful if it can legitimately be raised in an action constituted as the present one is. If, however, it is proper and necessary to decide it in this action, I am not satisfied that the terms of the sub-section just referred to must be construed so strictly as to exclude the widow of a selected ex-service man, who died while he was in occupation of a cottage, from being regarded as a proper object of the trust for the purpose of allowing her to continue in occupation. It is clear that, in the first instance and as the primary object, the accommodation has to be provided for an ex-serviceman, but the sub-section is framed in general terms and does not, in my view, preclude the possibility of widows, or perhaps surviving dependants, being regarded as secondary objects of the trust. If that is so, the occupation of the widow would be as a cestui que trust within the meaning of the proviso to s. 7 of the Limitation Act, 1833.
If a widow is not such an object, it could be held that it was a breach of trust on the part of the Land Trust to continue her in occupation except temporarily pending the re-adjustment necessitated by her husband’s death.
It is true that the Land Trust were given, as already noted,”such powers of management, sale, disposal and otherwise”as might be conferred on them by regulations made by the British Treasury; and regulations so made in 1929 purported to confer power to continue widows in possession. Clause 1 of these regulations (Stat. R. & Or., 1929, No. 52) provided:”The widow of a deceased tenant may, if the Trust think fit, be permitted to retain possession of the cottage held by her deceased husband on terms similar to those under which it was held by the deceased tenant.” The powers, however, that can be conferred by such regulations are limited by the introductory words, “for the purposes aforesaid,” in sub-s. 3 of s. 3, which relate back to the purposes of sub-s. 1 of the section, that is, the accommodation of ex-service men and other purposes incidental thereto. In other words, the regulations cannot extend the objects and purposes of the trust to something not within the reasonable interpretation of sub-s. 1.
In my view Mrs. Flahive is a proper object of the trust, as being within what I regard was the wide intendment of providing accommodation for ex-service men and as also being within the scope of “other purposes incidental thereto.” It would not be easy to define or classify what might be legitimately regarded as a purpose incidental to the provision of accommodation for ex-service men; but the cottages were to be provided both for the purposes of such accommodation and for those other purposes. Whether a wide or narrow view were taken of the scope of those other purposes, it seems to me that the continuance in possession of the widow of a selected ex-service man could reasonably be regarded as such an incidental purpose.
Taking that view, it is unnecessary to consider a number of other contentions advanced by the Land Trust in answer to the proposition that the plaintiffs had acquired a possessory title; but they may be mentioned briefly. They were that s. 7 of the Limitation Act only applied to tenancies at will arising from contract, express or implied, and not to a tenancy at will created involuntarily by statute; that the statutory tenancy at will was expressly subject to the provisions of the Labourers (Ireland) Acts and, thus, equivalent to cottier tenancies requiring a notice to quit to determine them; that the character of the occupation of the plaintiffs was rather that of guests or licensees in whose favour time did not run as decided in Peakin v. Peakin (1), by the former Irish Exchequer Division; and that, alternatively, if they were tenants at will, the periodical visits of inspection by agents of the Land Trust and other indications of control were sufficient to determine the tenancy at will and to prevent time running in favour of the tenant at will, as held by Barton J. in Woodhouse v. Hooney (1) following Doe v. Groves (2). In connection with these last two contentions it would have been necessary to consider whether either Peakin v. Peakin (3) or Woodhouse v. Hooney (1)was inconsistent with the decision of the English Queen’s Bench Division in Lynes v. Snaith (4), and, if so, which line of authority should be followed. In connection with the first two contentions, another portion of the judgment of Murnaghan J. in Casey’s Case (5), at p. 220, would have been very relevant. This portion was to this effect:”Now, although these agreements are in fact void as matters of contract, the ex-service man in occupation of a cottage as a statutory tenant-at-will will nevertheless have the benefit of and be subject to all the provisions of the Labourers (Ireland) Acts, which can be shown to be incorporated in relation to the statutory tenancy.”
In relation to the plaintiff, Mrs. Flahive, there were also the points that a letter written by her on 22nd July, 1942, to the Land Trust, may have constituted a sufficient acknowledgement in writing of the title of the Land Trust; and that she may have been estopped by conduct from denying that she was a proper object of the trust.
I have considered and decided the question of the alleged acquisition of a possessory title as a substantive matter and independently of a procedural point of some difficulty. These actions are not framed as applications under s. 52 of the Local Registration of Title (Ireland) Act, 1891, although the title of the Land Trust as to the particular cottages is registered under the provisions of that Act, and part of the claim made in each action is for rectification of the appropriate register. Sect. 52 permits an application to be made to the Court in the prescribed manner by a person claiming to have obtained a title by mere possession to registered land; and this appears to be an exclusive remedy in the case of registered land if the register is to be affected. The plaintiffs, however, contended, on this point, that there is now no prescribed manner nor any designated Court for the application and that procedure by plenary summons, as in the present actions, is permissible, and they relied on the recent decision of the Supreme Court in In re Jacks (6). The latter case, however, was only concerned with an application to be made to the Court under a new jurisdiction conferred by the Local Registration of Title Act, 1942, and it did not decide that applications provided for in the Act of 1891 have not continued to be governed, as to procedure, by the Rules made under that Act in 1910. It is true that, in 1937, the Local Registration of Title Rules Committee, set up under the Courts of Justice Act, 1936, purported to repeal those rules in their entirety, but in the new code of rules they made no provision for Court applications. This omission is stated to have been due to that Committee taking the view that Court matters were not within their terms of reference; and the majority of the Supreme Court in In re Jacks (1)agreed with this view of the Committee’s jurisdiction. If, however, that Committee was not empowered to deal with curial matters, it hardly had power to repeal so much of the existing code of 1910 as dealt with such matters; and the validity of this purported repeal was not recognised by the Supreme Court either as a whole or by a majority in In re Jacks (1). The point was not necessary to the decision in that case and, as I read the judgments, was not decided by the Court. In my view, therefore, it is open to argument that there is still a prescribed manner in which applications under s. 52 should be made, and the present actions do not conform to the prescribed procedure.
The next question it is necessary to consider arises by reason of a scheme initiated by the Land Trust with the approval of the British Treasury for the sale to qualified ex-service men and (in certain cases) to their widows of cottages and plots provided under the trust. The circular or notice in which the scheme was announced to the persons interested was not specific on the point, but apparently the intention was primarily to sell to actual occupants and not to disturb an existing occupant, who did not wish to buy, merely for the purpose of selling to some other qualified person. There was not, as I read it, any element of threat or compulsion about the circular, and it was left to each occupant to decide whether he would avail of the scheme or not. The purchase price in each case is determined by the Land Trust, but the practice appears to be to fix prices below the market value and, thus, advantageous to the ex-service men and widows who buy.
It is another of the peculiarities of this case that both of the plaintiffs have voluntarily agreed to avail of the scheme, and have signed applications to purchase their respective cottages. The plaintiff, Daniel McAuliffe, did so before his action was brought, while the plaintiff, Mrs. Flahive, did so two days after the institution of her action. Each application was accepted by the Land Trust and neither of the plaintiffs has availed of the provision allowing of withdrawal from the transaction within two months of such acceptance. There would appear, therefore, to be a binding contract to purchase in each case, and this consideration gives rise to another procedural obstacle in the path of the plaintiffs. Where an intending purchaser seeks to question the title of the vendor to convey the interest contracted for, there is a convenient and simple method of determining the matter by summons under the Vendor and Purchaser Act, 1874; and the more elaborate and expensive procedure by declaratory action is not justified. The present actions, however, are not, as I conceive it, simple disputes between genuine purchasers and their vendors, but attempts to question the validity of the scheme as a whole and the jurisdiction and powers of the Land Trust. Viewed in this latter aspect, the actions are not, in my view, competent on the principle, clearly recognised and applied in Leggett’s Case (1) and in Casey’s Case (2), that individual objects of a public trust cannot question the scope or administration of the trust. That can only be done in a proceeding in which all the necessary interests are represented, which would necessitate, in the present case, the Attorney General of this country and, probably, also the Attorney-General of Great Britain. Again, on the evidence and from the nature of the case, this cannot be represented to be a quia timet action, which it was essential to bring by reason of some vital interest of the plaintiffs being threatened if the scheme promulgated by the Land Trust is allowed to be carried out. On the evidence, there is no threat involved in the scheme to the occupation of their cottages by the plaintiffs. The intention is not to sell all the cottages but only a sufficient number to those willing to purchase to provide a fund for urgent repairs to cottages not sold and, if there is a surplus, for the provision of further accommodation for qualified ex-service men. It appears that, since the payment of rents stopped after the decision in Leggett’s Case (1), the Land Trust have had steadily diminishing resources with which to pay for repairs and other expenses of administration in this country and that no supplementary aid in this respect can be expected from the original source of the capital fund. So far as the proposed application of the moneys arising from the sales is concerned, this would seem to be within the original scope and object of the trust; but these, again, are matters of administration which the plaintiffs are not, by themselves, entitled to investigate. Even if it were probable that the Land Trust intended to dispossess an ex-service man for the purpose of selling the cottage occupied by him to another ex-service man, this would still not entitle the plaintiffs to question the power of sale. To do so, they would have to have a sufficient interest in the premises or right to remain in occupation, and, in view of the decision in Casey’s Case (1), it is clear that they have no such interest or right. They merely continue in occupation at the will of the Land Trust and may be dispossessed at any time for any reason or for no reason. If a reason for dispossession is not necessary, the validity of the actual reason, if there is one, becomes immaterial. The matter becomes one of motive in respect of which there is no legal redress.
In their capacity of prospective purchasers, the plaintiffs are, of course, vitally concerned with the question whether the Land Trust have power to sell to them; and this is a matter which would have to be determined if the appropriate procedure to raise the question had been adopted. The existence of this special procedure, provided as a matter of convenience for the determination of questions between vendors and purchasers, does not in my view, prevent the matter being raised in plenary proceedings although it would have a bearing on the subject of costs. Accordingly, I think it is permissible to consider the point, in the present proceedings, and I propose to do so.
As already seen, the Land Trust was set up to provide accommodation for ex-service men by way of cottages, with or without plots or gardens; and for this purpose they were given the powers which had been conferred on the Local Government Board by s. 4 of the Act of 1919 and also such powers of management, sale, disposal and otherwise as might be conferred on them by regulations made by the Treasury. The powers conferred in 1919 on the Local Government Board related to making and carrying out schemes for the provision of cottages; but it would seem to follow from the decision in Leggett’s Case (2) that this did not necessarily import all the powers of the local authority under the Labourers (Ireland) Acts, and no provision of any of these Acts that might be relevant in the present context was referred to in the argument. The jurisdiction given to the British Treasury by the section was, however, exercised by regulations made in 1923 (Stat. R. & Or., 1923, No. 1606) which contained a provision as to sale of the cottages. This provision (clause 13) read:”The Trustees may with the approval of the Treasury make Schemes enabling the tenants to purchase the freehold or leasehold of the houses occupied by them and the proceeds of such sales shall be paid into the Capital Account.”These regulations were superseded by regulations made in 1925 which contained, in clause 13, an identical provision. This provision was, in turn, revoked by regulations made in 1952 (Stat. R. & Or., 1952, No. 1918) which provided that the Land Trust might, in their discretion, dispose, on such terms as they might think fit and whether by way of sale of the freehold or grant of a long term of years or otherwise, of any cottage. Such disposition is limited by the regulations to any ex-service man who is one of the men for whose benefit the trust was established, if he either occupies or satisfies the Land Trust that he intends to occupy the cottage, or, in certain defined circumstances, to the widow of an ex-service man. In the case of a widow, it is necessary that they were residing in the cottage at the time of the death of the ex-service man and that she remained in occupation since then.
These regulations of 1952 were made in purported exercise of the powers conferred on the Treasury by sub-ss. 3 and 5 of s. 3 of the Act of 1922 and of all other powers enabling them in that behalf; but they were made after, and were evidently intended to implement, the British statute passed in 1952 and entitled the Irish Sailors and Soldiers Land Trust Act, 1952. The long title of the Act is “An Act to extend the powers of the Irish Sailors and Soldiers Land Trust to sell cottages provided for the purposes of the Trust”;and s. 1 confers power on the Land Trust, subject to and in accordance with Treasury regulations, to sell any cottage provided for the purposes of the trust. The section defines the persons to whom cottages may be sold in substantially the same terms as already referred to in connection with the regulations. Sub-sect. 2 of the section provides that “the powers conferred by this Act shall be in addition to any powers of sale which are or may be conferred on the Trust by sub-section 5 of section 4 of the Irish Land (Provision for Sailors and Soldiers) Act, 1919, (which relates to land no longer required for the accommodation of ex-service men), or by Treasury regulations.”; and, by sub-s. 3, “Treasury regulations”mean regulations made by the Treasury under s. 3 of the Act of 1922.
It was contended on behalf of the plaintiffs that this statute had, and could have, no effect or force here, by reason of the land in question being situate here and by reason of s. 1 of our own Land Trust Powers Act, 1923, having defined and limited the powers of the Land Trust so that these could only be altered by an enactment of the Oireachtas.
The Land Trust was incorporated, as we have seen, by s. 3 of the Irish Free State (Consequential Provisions) Act, 1922, passed the day before the coming into operation of the Constitution of the Irish Free State. The Land Trust thereby became a corporation incorporated in Great Britain. Whether they also thereby became incorporated in this country is a difficult question; but the argument proceeded on the basis that, for the purposes of Irish law, the Land Trust was to be regarded as a foreign corporation. The Act of 1923 seems to have been framed on the same assumption, since the power conferred by it on the Land Trust to acquire and hold land here was clearly intended to take the place of the licence that might be necessary in the case of a foreign corporation if the principle of mortmain applied here. In addition, the Land Trust was given by that Act such other powers as might be necessary to enable them to carry out in Saorstat Eireann the purposes of s. 3 of the Act of 1922. I do not read this latter provision, or sub-s. 1 of s. 1 of the Act of 1923 as a whole, as a definitive or limiting provision, as to the powers of the Land Trust, but merely as an enabling and precautionary measure to ensure so far as possible that there would be no legal impediment to the exercise here by the Trust of all proper powers. The only express limitation on the powers of the Land Trust was in connection with the compulsory acquisition of land. Apart from that, it was not intended, in my view, nor was the section effective, to preclude the Land Trust from having or acquiring powers not specified in the section. The British statute of 1952 did not purport to deal directly with land situate here but merely conferred a power, which apparently it was considered the corporation had not got, on a corporation incorporated in Great Britain to deal with its property situate out of Great Britain.
The matter may be looked at in another way, and this is to enquire what it is exactly that it is suggested precludes the Land Trust from carrying out the proposed scheme of sale. Prima facie, a corporation which has power to acquire and hold land would have implied power to dispose of the land and would not need an express power. In the last analysis, then, the suggested impediment must be either a particular or a general one. The particular impediment would be if either of the plaintiffs had such an interest in the cottage in question as would be paramount to or inconsistent with any power of sale on the part of the Land Trust. They have failed to establish the interest which they alleged in the present cases, and it is clear from Casey’s Case (1) that they have no interest of any beneficial character otherwise. Leggett’s Case (2) merely decided that, while in occupation, they could not be charged rent. It did not decide that they were entitled to remain in occupation, and the result of Casey’s Case (1) and my present decision is that they are not so entitled. Turning to the general impediment, the only one that could, I think, be suggested is that the cottages, when provided, were dedicated to the purposes of the trust and no individual cottage could be diverted from those purposes. This, in effect, would mean that the sale of a cottage would be a breach of trust. If, as is the case, neither of the plaintiffs has a particular interest in the particular cottage, this becomes a question of the general terms and administration of the Trust; but it would be a legitimate objection on the part of a purchaser that the vendor was a trustee selling in breach of trust. I cannot find anything in the relevant statutes that so dedicates any particular cottage that it must always be retained as a cottage available for the accommodation of ex-service men. Put more generally, I see no reason why the Land Trust should not have power, as the legal owners, to sell any cottage provided for the purposes of the Trust. The money received on the sale of the cottage should, of course, be applied to the purposes of the Trust on the basis that the sale merely involves the conversion of one species of Trust property into another species of Trust property. It is not competent for the plaintiffs, either as intending purchasers or as individual objects of the Trust, to investigate the application or intended application of the purchase money or the adequacy in amount of the purchase money. It is sufficient for them that a power of sale exists.
Leggett’s Case (2) decided that the objects of the Trust seemed to be better attained by giving free accommodation to a selected number of deserving ex-service men rather than by charging rents many would have found it difficult to pay. This decision is not necessarily inconsistent with the existence of a power on the part of the Land Trust to make a free gift of a cottage to an object of the Trust; although, of course, it is clear from the decisions that an object of the Trust has and would have no right to require such a gift. If that power exists, it would be even more clearly within the terms of the Trust that, instead of a gift, a sale should be made to the object. In the latter case, the loss of prospective benefit to any ex-service man still hoping for accommodation would be diminished.
It is possible I think, therefore, consistently with the decision in Leggett’s Case (1), to take the view that the provision of accommodation for ex-service men can legitimately be accomplished by way of the sale of a cottage to an ex-service man, at least where the sale is at a figure below the market value, as well as by the provision of cottages for free, but discretionary, occupation. It is worth recalling in this connection, that the holdings of agricultural land which were enabled to be provided for ex-service men under the Act of 1919 were not free gifts. The scheme of s. 1 of that Act was to put the ex-service man in the same position as the tenant of a holding under the Land Purchase Acts, so that he was enabled to purchase the holding at a favourable price and on favourable terms as to repayment.
Again, I think there is much force in the argument advanced on behalf of the Land Trust that the power of sale which they seek to exercise is within the scope of those”powers of management, sale, disposal and otherwise”which it was provided by sub-s. 3 of s. 3 of the Act of 1922 might be conferred on them by Treasury regulations; and that those powers, so far as the reference to sale or disposal is concerned, were not merely confined to the event contemplated in sub-s. 5 of s. 4 of the Act of 1919, viz., any cottage, plot, or garden ceasing to be required for the accommodation of an ex-service man.
For these reasons, I am of opinion that the Land Trust has the power to carry out sales of the type contemplated in the scheme circulated in 1952. A subsidiary question was raised by the pleadings as to the power of the Land Trust, if they were empowered to sell, to carry out a sale by way of lease or sub-lease. This matter was not pressed very strongly at the hearing; and I see no reason why the Land Trust should be held disentitled to carry out a sale in any manner that would be proper in the case of any other legal owner selling his property.
The only other matter that remains for decision is the declaration claimed by the plaintiff, Daniel McAuliffe, that the Land Trust are bound to repair and maintain his premises under the terms of the Trust imposed on them. It will be noted that this matter is not putand, since the decision in Leggett’s Case (1), it could not be puton any contractual basis but as a matter of a duty imposed on the Land Trust as trustees under the relevant statutes. The facts appear to be that, until rent ceased to be paid in 1933, the Land Trust carried out whatever repairs were considered necessary to the premises. Since then, the Land Trust did no repairs, while Mr. McAuliffe did some; and, in response to requests by him that they should do specified repairs, he was informed that the Land Trust were not in a position to do them. He does not appear to have been required by the Land Trust to do any repairs.
The question of the responsibility for repairs was touched on by Mr. Justice Murnaghan in delivering the judgment of the Supreme Court in Casey’s Case (1). He there said (at p. 220):”We have not now to pronounce upon the question as to which party is liable to do repairs, but during the argument it seemed to result that the obligation to do repairs was imposed upon the Trust, either under the Act of 1922 as the provision of accommodation, or under incorporated provisions of the Labourers (Ireland) Acts, just as under these latter Acts the obligation to do repairs seems to have been placed upon the rural district councils. It can scarcely be said that the Trust would have done its duty by building a cottage and, if a storm tore away the roof, refusing to make good the damage.”
This passage is clearly obiter, the question not having been raised in that case, as appears from the pleadings set out in the report of the hearing in the High Court (2). The matter is, however, covered, in my view, by the decision in Leggett’s Case (3) as to the incompetency of individual objects of the Trust to raise questions as to the general terms of the Trust, the duties of the trustees, or the administration of the Trust, in the absence of properly representative parties or in inappropriate proceedings. In the absence of any contractual relationship in this respectand none is allegedthe plaintiff, Daniel McAuliffe, is not, in my view, entitled to the declaration sought.
These actions must be dismissed.
Cases Long Lease
Perry v. Woodfarm Homes Ltd.
1975 IR 104
Walsh J.
The history of the facts which preceded the action instituted in the present case is so fully and adequately set out in the judgment of the learned President of the High Court, against which the present appeal is taken, that I need not refer to them.
The Statute of Limitations, 1957, provides34 at s. 13, sub-s. 2, that a person, other than a State authority, cannot bring an action to recover land after the expiration of 12 years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person. Section 24 of the Act of 1957 provides that, subject to s. 25 of that Act (which applies to equitable estates in land and to land held in trust) and to s. 49 of the Registration of Title Act, 1964, at the expiration of the period fixed by the Statute of 1957 for any person to bring an action to recover land the title of that person to the land shall be extinguished. The Irish Life Assurance Co. Ltd. which had a leasehold interest in the land which is the subject matter of these proceedings failed to bring any action to recover possession of the same over a period of 12 years during which the plaintiff was in possession of that land to which he had then no title. The 12 years had expired by the 1st December, 1967. On the 5th October, 1970, Irish Life purported to assign their interest in the leasehold premises to the defendants. The defendants subsequently acquired the freehold interest and the registration of their title to the freehold interest was not completed until the 17th December, 1970.
The defendants claim that, upon the acquisition by them of the fee simple interest, the leasehold interest which had originally been vested in Irish Life merged in the freehold and was extinguished. The vital question in the present case is whether or not Irish Life had any leasehold interest at the date of their purported assignment to the defendants because, if Irish Life had no leasehold interest at that date, there could be no question of a merger in the freehold simply because the defendants had subsequently acquired the fee simple.
In support of this claim the defendants relied in the High Court, and in this Court, upon the majority decision of the House of Lords in St. Marylebone Property Co. Ltd. v. Fairweather .35 In that case the owners of the freehold took what purported to be a surrender from a person claiming to be the holder of a leasehold interest in the lands in question. Prior to the purported surrender the lessee had been out of possession for more than 12 years and the land was in the possession of a squatter. In that case the House of Lords, sitting as a court of four members, decided by a majority that the surrender had determined the leasehold interest and that the owner in fee was entitled to recover possession because the effect of the surrender had been to extinguish the squatter’s rights. The effect of the majority judgment in that case was that the passage of time in the corresponding provision of the English Limitation Act only destroyed the lessee’s title to recover possession from the squatter and did not affect the lessee’s title in relation to anybody else, and that the leasehold interest remained vested in him. The dissenting judge in the Fairweather Case35was Lord Morris of Borth-y-Gest who took the view that the surrender was ineffective because the lessee had nothing to surrender and, therefore, there could not be any question of the leasehold interest being extinguished so as to give the owner of the fee simple an immediate right to possession.
This view commended itself to the learned President of the High Court.
In my view, the defendants, in relying upon the majority decision of the House of Lords in support of their submissions, are asking the Court to hold that s. 24 of the Statute of 1957 does not mean what it says. That section says quite clearly that after the expiration of the period fixed “the title of that person to the land shall be extinguished.” The interpretation sought to be put upon this is that it simply reads that the right of the person to recover possession of the land shall not be enforceable but that his title to the land itself remains unaffected. That is to equate it with the position which existed formerly in respect of actions for the recovery of chattels which actions, after the expiration of six years under the Common Law Procedure Act, could not be enforced although the title to the goods still remained in the original owner. However, the Statute of 1957 has now provided at s. 12 that the title of the person to the chattel shall be extinguished. There can be no ambiguity about that and it is clearly designed to bring chattels into line with the law relating to land.
In the case of land, the effect of the Statute is to destroy the title of the person dispossessed to the estate from which he has been dispossessed, but it does not destroy the estate itself. The creation of a leasehold estate constitutes in effect an encumbrance upon the freehold the effect of which, so long as the leasehold estate survives, is to prevent the freeholder from entering into possession of the land in question save in accordance with the terms of the lease. The fact that the title of the lessee to the lease is destroyed leaves unimpaired the existence of the lease and, therefore, it leaves unimpaired the encumbrance upon the freehold which prevents the freeholder from repossessing the lands during the continuance of the lease. In my view, a person who has lost all his title to a leasehold estate is not in a position to deal effectively with that estate and, therefore, he has nothing to surrender and nothing to assign. A person who takes a purported assignment or a purported surrender of a leasehold estate cannot be in any stronger position or have any better title than the person making the purported assignment or surrender. Therefore, I am satisfied that the effect of the Statute of 1957 is that Irish Life had no estate or interest to assign to the defendants and, therefore, the question of a merger could not arise when the defendants subsequently acquired the freehold estate.
It is correct to say that the position of the freeholder cannot be prejudiced by the dispossession of the leaseholder by the squatter, and that means that the freeholder is entitled to the benefit of any covenants and is entitled to enforce them against the land. The squatter cannot be disturbed from his possession by the landlord for the duration of the term of the lease but, on the other hand, while the lease did not pass to him by assignment, the squatter may be indirectly forced to carry out the covenants to preserve his possession from ejectment by forfeiture for non-observance of the covenants. The contractual relationship between the lessee and the owner in fee simple remains and the lessee remains liable upon such covenants which may be enforced against him personally by the lessor, if the lessor so chooses. However, in so far as re-entry for breach of covenant may be affected, if that takes place the squatter may be dispossessed, but it will be because of the breach of covenant and not because of any right on the part of the dispossessed lessee to deal with the property. The owner of the fee cannot sue the squatter on foot of the covenants or for the payment of the rent reserved by the lease because there is no privity between them. But because of the threat of re-entry hanging over the squatter in the event of failure to pay rent or to observe the covenants, the lessor is effectively in no worse position than he would have been with the original lessee. In fact he may find himself in a stronger position in so far as he can hold the original lessee to the terms while at the same time he is in a position to enforce indirectly all the covenants against the squatter by the threat of re-entry, if the lease provides for re-entry in the event of failure to observe the covenants.
Furthermore, the lessor is not in danger of having his own title extinguished by the possession of the squatter because the time would only begin to run as from the date or event at which the lessor would be entitled to call for possession. In the case of a continuing leasehold estate that position would not arise until the end of the term demised. I do not find any difficulty in appreciating the distinction between a lessee losing his title to the leasehold property on the one hand and the continuous existence of the lease itself as against the owner in fee on the other.
I think it is well established, and the authorities referring to this point are mentioned by Mr. Justice Griffin in the judgment he is about to deliver, that the effect of the Statute of Limitations, in so far as unregistered land is concerned, is that there is not a statutory conveyance or assignment of the estate to the squatter. The position would, however, appear to be different so far as registered land is concerned. Section 49 of the Registration of Title Act, 1964, provides36 that, subject to the provisions of that section, the Statute of 1957 shall apply to registered land as it applies to unregistered land. The section then goes on to provide at sub-s. 2 that where any person claims to have acquired a title by possession to registered land he may apply to the registrar to be registered as owner of the land and the registrar, if satisfied that the applicant has acquired the title, may cause the applicant to be registered as owner of the land with an absolute, good leasehold, possessory or qualified title (as the case may require) but without prejudice to any right not extinguished by such possession. It also provides that upon such registration the title of the person whose right of action to recover the land has expired should be extinguished. This would appear to permit a squatter to have himself registered in the Land Registry as the owner of a leasehold, being registered land, where the squatter has dispossessed the registered owner of the leasehold.
For the reasons I have given I am of opinion that the judgment of the learned President of the High Court was correct and that the injunction which he granted should be confirmed and that this appeal should be dismissed.
Henchy J.
The small plot of ground in question in this case lies at the back of the plaintiff’s house. He never got any paper title to it but he has been in exclusive possession of it since about 1955, without paying any rent or giving an acknowledgment of title to anybody. The paper title to it was a lease of the 27th November, 1947, by which the plot (as part of a larger area) was leased for 999 years. By an assignment dated the 5th October, 1970, the defendants acquired that leasehold interest but, as far as the plot was concerned, the assignment was no use to them for it is agreed that the plaintiff had acquired, as against them, a title by adverse possession. However, the defendants took a conveyance of the fee simple on the 5th November, 1970, and the defendants say that, as a result, the leasehold interest has merged in the fee simple, that the title acquired by the plaintiff was valid only against the leasehold interest, and that now that the leasehold has been wiped out by the merger they, as owners of the fee simple, are entitled to possession.
The defendants have signified their intention of taking over the plot for building purposes, so the plaintiff has begun these proceedings to stop them doing so. He applied in the High Court for an interlocutory injunction to restrain them and, the parties agreeing to have that application treated as the hearing of the action, Mr. Justice O’Keeffe granted the plaintiff a perpetual injunction restraining the defendants from using the plot. It is from that order that the defendants appeal to this Court.
It is a net question of law: who is entitled to possession” To answer that, it is first necessary to see what right the plaintiff had acquired at the end of the twelve-year period of limitation. Section 24 of the Statute of Limitations, 1957, says that “at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished.” Since the lessee was the person entitled to bring an action to recover the plot in question, it was the lessee’s title that was extinguished. The Statute of 1957, like its predecessors, is silent as to what was acquired by the plaintiff.
Whatever may be the legal result when the intention of the dispossessor was merely to oust and replace a tenant or lessee, or when it can be said that by estoppel the dispossessor has acquired an interest in the land identical with that formerly owned by the dispossessed person, I think the authorities both in Ireland and England make it clear that in a case such as this, where the adverse possession has been unqualified, there is no question of the Statute of Limitations having the effect of a parliamentary conveyance of the leasehold interest to the plaintiff: see O’Connor v. Foley 37and the judgments, in the Court of Appeal and in the House of Lords, in St. Marylebone Property Co. Ltd. v. Fairweather .38
I consider that, immediately before the defendants took a conveyance of the fee simple, the position between the plaintiff and the defendants was that the plaintiff had acquired an unqualified right against the defendants as lessees to remain in possession, and that the defendants’ title was totally extinguished. As between the defendants and the owners of the fee simple, nothing had changed. The lease, with all its rights and duties, was unaffected except that the lessees were irrevocably barred from recovering the plot from the plaintiff. The paramount title remained in the owners of the fee simple, whose right to recover possession would not accrue to them until the lease came to an end, either by effluxion of the term demised by the lease or by the exercise of the proviso for re-entry contained in it. Therefore, so long as the lease existed, neither the lessor nor the lessee could oust the plaintiff from possession of the plot.
What change, then, in the plaintiff’s right to possession has been effected now that the lease has disappeared on its merger in the fee simple” The only possibilities would appear to be these:&LDASH;
1. The plaintiff is now entitled to the leasehold interest or an interest equivalent to the leasehold interest.
This is the solution for which counsel for the plaintiff contends but, as I have already indicated, it is not legally possible. In the last century, on the authority of cases such as Rankin v. McMurtry 39, it was thought that the effect of the Statute of Limitations was to execute, as it were, a parliamentary conveyance to the dispossessor of the dispossessed’s interest in the land. However, in England since Tichborne v. Weir 40 and in Ireland since O’Connor v. Foley 41, it has been generally accepted that the effect of the Statute of Limitations is merely negative and divestitive. Those cases, where the operation of the statute was held to vest in the dispossessor the leasehold or tenancy interest of the dispossessed person, or its equivalent, are cases where that result arose, not from the operation of the statute, but from the conduct of the parties. For example, of the four judges who decided in Rankin v. McMurtry 42 that the dispossessor had acquired the leasehold interest of the dispossessed leaseholder, two held that this arose by estoppel. I know of no case in Ireland or England where it was held that a person had acquired by adverse possession the lease or tenancy or its equivalent, unless he showed, by at least paying the rent, that he wished to stand in the shoes of the ousted tenant or leaseholder. Even if it could be held in this case that the plaintiff had acquired the leasehold estate, that estate has now disappeared on its merger in the fee simple. Therefore, I reject the submission that the plaintiff, who has never paid rent for the plot, is entitled to the leasehold estate or its equivalent.
2. The plaintiff is now entitled to the fee simple in the plot.
In effect, that is what Mr. Justice O’Keeffe held, because he granted a perpetual43 injunction restraining the defendants, who have the paper title to the freehold, from entering on the plot. That is tantamount to saying that, although the defendants are the registered owners of the folio which includes the plot, they are forever barred from making any use of it. I am unable to find any basis for concluding that the ouster of the leaseholder by the operation of the Statute of Limitations could also result in the extinction of the title of the owners of the fee simple. By making the lease of the 27th November, 1947, for the term of 999 years, the owners of the fee simple put the plot out of their reach for the duration of the lease. In the events that have happened, the soonest the Statute of Limitations could have started to run against the owners of the fee simple would have been when the lease merged in the fee simple. I am unable, therefore, to see how the title of the owner of the fee simple could be said to be extinguished or that it could be said to be vested in the plaintiff. Even counsel for the plaintiff does not so contend.
3. The defendants are entitled to the fee simple in the plot subject to the right of the plaintiff to retain possession of it until the expiration of the period of the lease, i.e., 999 years from 1947.
This possibility rests on the theory that at common law, on the surrender of a lease to the freeholder or on the merger of the lease in the freehold, an underlessee continues to be protected from eviction. This is undoubtedly true of underleases but, as Lord Denning pointed out at pp: 546-7 of the report in St. Marylebone Property Co. Ltd. v. Fairweather 44.this is because on the merger of the lease in the freehold or on its surrender to the freeholder the lessee is not allowed to derogate from his grant so as to prejudice the underlessee. This principle, however, has no application to a squatter. If it had, it would mean that in the present case the position of the plaintiff as squatter would be vastly improved as a result of the merger; and the position of the freeholder, against whom the plaintiff never prescribed, would be vastly worse. Since the lease was wholly extinguished on the merger, the defendants as freeholders could not recover rent or sue on the covenants or enforce the proviso for re-entry, whereas the plaintiff and his successors could enjoy the plot rent-free for the unbroken residue of the term of the 999 year lease, free from the risk (which they ran before the merger) that they could be ousted if events entitled the freeholders to enforce the proviso for re-entry. It seems to me to be inequitable and contrary to first principles that, as a result of the merger of the leasehold in the fee simple, the rights of the freeholders should be reduced and those of the squatter who had displaced the lessee should be enlarged. I am satisfied that nothing has happened that would vest in the plaintiff as squatter an unqualified right to retain possession of the plot until the expiration of 999 years from the commencement of the lease in 1947.
4. The defendants have become entitled since the merger of the lease in the freehold to a right to recover possession of the plot.
This seems to be the only remaining possibility, and I believe it to be the correct one. If, before the merger, the freeholders had become entitled to determine the lease under the proviso for re-entry, I fail to see how in those circumstances the plaintiff could have resisted a claim by the freeholders to recover possession of the plot. Now that the lease has been determined by its merger in the freehold (a result which the President of the High Court doubted but which has been conceded in this Court) it is not, in my judgment, possible to maintain that the legal result is any less than if the lease had been determined under the proviso for re-entry. As to the conclusion that the squatter’s right to possession is wiped out by such an eventuality, I would respectfully adopt what Lord Denning said at p. 548 of the report in St. Marylebone Property Co. Ltd. v. Fairweather 44: “. . . I must say that I see no difference between a surrender or merger or a forfeiture. On each of those events the lease is determined and the freeholder is entitled to evict the squatter, even though the squatter has been on the land during the lease for more than 12 years: and on the determination of the lease, time then begins to run against the freeholder.”
In my opinion, therefore, it follows that a right to possession of the plot accrued to the defendants when the leasehold merged in the freehold in 1970. Accordingly, I would allow the appeal, discharge the injunction and dismiss the plaintiff’s claim.
Griffin J.
It is conceded by the defendants that, by reason of 12 years adverse possession against the Irish Life Assurance Company, the plaintiff has acquired a statutory title in respect of that part of the land of which he has been in possession. It is also conceded that the interim injunction was properly granted because the defendants were not at that time registered as full owners of the land now comprised in folio 18621 of the register of freeholders for the county of Dublin.
Shortly stated, the point at issue in this appeal is whether the plaintiff can restrain the defendants from entering upon the plot of land in dispute or whether Irish Life, as lessees under a long lease whose own title had been extinguished by 12 years adverse possession by the plaintiff, could validly assign to the defendants; and whether the defendants, as assignees of the lessee’s interest in the lease, by acquiring the fee simple in the land, could enable the lease to be determined by merger and the plaintiff, as squatter, to be dispossessed.
Prior to the passing of the Real Property Limitation Act, 1833, the statutes then in force barred only the remedy and not the right. Section 34 of the Act of 1833 effected a radical change by providing that at the determination of the period limited by the Act to any person for making an entry or bringing any action, the right and title of such person to the land was extinguished: the period was then 20 years. By s. 1 of the Real Property Limitation Act, 1874, the period for a person to make an entry or to bring an action to recover land was limited to 12 years next after the time at which the right to make such entry or bring such action first accrued to him or to some person through whom he claimed. The Act45now in force is the Statute of Limitations, 1957. Under s. 13, sub-s. 2(a), of the Statute of 1957 no action to recover land shall be brought after the expiration of 12 years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person. Section 15, sub-s. 1, of the Statute of 1957 provides that where the estate or interest claimed was an estate or interest in reversion or remainder or any future estate or interest and no person has taken possession of the land by virtue of the estate or interest claimed, the right of action to recover any land shall be deemed to have accrued on the date on which the estate or interest fell into possession by the determination of the preceding estate or interest. By s. 24 of the Statute of 1957 it is provided that, subject to s. 49 of the Registration of Title Act, 1964, the title of a person to land shall be extinguished at the expiration of the period fixed by the Statute of 1957 for that person to bring an action to recover the land.
The argument made on behalf of the defendants may be summarised as follows. The freehold interest to which the defendants became entitled on registration was an estate or interest in reversion or remainder or, alternatively, a future estate or interest within the meaning of s. 15, sub-s. 1, of the Statute of 1957 and, therefore, their right of action only accrued on the determination of the preceding estate or interest which was the lease dated the 27th November, 1947. The defendants said that, as they had acquired by assignment the leasehold interest on the 5th October, 1970, it followed that upon the registration of the defendants as full owners of the land a merger took place as the term and the immediate reversion were then vested in them at the same time; they relied on the majority decision of the House of Lords in St. Marylebone Property Co. Ltd. v. Fairweather 46as authority for this proposition.
On the other hand the plantiff contends that the object of all statutes of limitation is to prevent claims which, though originally valid, must be considered as extinguished where ancient possession is to be clothed with the right and “to quiet the possessors of land in the estates which they had long enjoyed.” The plaintiff also contends that the effect of s. 13, sub-s. 2, and s. 24 of the Statute of 1957 is to destroy the title of the leaseholder and he relies on a series of Irish cases, starting with Rankin v. McMurtry 47,which he submits are inconsistent with Fairweather’s Case46 and with Tichborne v. Weir 48 and he says that the Irish cases should accordingly be followed. The plaintiff also submits that, even if these Irish cases are not followed. the dissenting judgment of Lord Morris of Borth-y-Gest inFairweather’s Case46 is correct and that there was nothing to surrender or merge in the fee simple and that, accordingly, no merger took place in the present case.
In the (English) Limitation Act, 1939, there are provisions similar to the relevant portions of our Statute of 1957 to which I have referred.
Prior to 1892, it was fairly widely accepted in both England and Ireland that the effect of s. 34 of the Real Property Limitation Act, 1833, for all practical purposes, was to convey the estate of the ousted person to the squatter. In Doe d. Jukes v. Sumner 49 Parke B. at p. 42 of the report said:”The effect of the Act is to make a parliamentary conveyance of the land to the person in possession after that period of twenty years has elapsed.” Lord St. Leonards in Incorporated Society v. Richards 50 and again in Scott v. Nixon 51, referred to the statute as executing a conveyance or operating as a statutory transfer.
These dicta received the approval of the Queen’s Bench Division in Rankin v. McMurtry 52 where Johnson J., in dealing with s. 34 of the Real Property Limitation Act, 1833, said at p. 297 of the report:”The title of a former owner of a leasehold is absolutely barred; he cannot thereafter dispossess the wrong-doer, who can set up the statute against him, but not against the landlord, whose rights are not affected; he can dispose of it by will, whether fee-simple, freehold, or chattel; if he dies intestate, if chattel, it forms part of his assets for administration: Re Williams53; and, on the principle decided in Scott v. Nixon 51, he can sell and convey inter vivos,and the title will be forced on an unwilling purchaser.” Holmes J., having stated that he was somewhat unhappy about the expression “a parliamentary conveyance”, said at p. 301 of the report:”But whatever be the mode of transfer, I am of opinion that the estate and interest, the right to which is extinguished, so far as the original owner is concerned, became vested in the person whose possession has caused such extinction. The opposite conclusion would seriously affect leasehold tenancies in this country.” Counsel for the plaintiff submits that this case was correctly decided but that it is of no real significance in the present case whether there is a transfer or not.
In Tichborne v. Weir 54, a decision of the Court of Appeal in England upon which the defendants rely, the dispute had not arisen until after the expiration of the term limited by the lease, and the question which arose for decision was whether the person who had been in possession adverse to the lessee for a number of years was liable on the covenants in the lease after the expiration of the term and after he had gone out of possession. It was held that he was not so liable and the court refused to accept the notion of a parliamentary conveyance as being good law. At p. 737 of the report Bowen L.J. said that the effect of the Act of 1833 was not only to bar the remedy but also to extinguish the title of the person out of possession, and that in that sense the person in possession held by virtue of the Act and not by a fiction of a transfer of title. Tichborne v. Weir 55 has since been accepted as good law in England and as burying there, once for all, the notion of a parliamentary transfer or conveyance.
The question was considered by the Irish Court of Appeal in O’Connorv. Foley 56 and FitzGibbon L.J. expressed the view that the dicta of Lord St. Leonards and of Lord Wensleydale when applied to the fee were practically correct. At p. 26 of the report Fitzgibbon L.J. said:”But they have since been quoted in several Irish cases, and applied literally to limited estates, and in particular to tenancies, and I am not prepared to uphold dicta in which they so appear against the decision of the Court of Appeal in Tichborne v. Weir 55 that, though a right is extinguished, and a right is given, there is not a transfer of a right, by possession for the statutory period.” At p. 39 Holmes L.J. said:”I have said on a former occasion that the reference to a conveyance is not happily conceived. I prefer to hold that. although there is not a direct transfer to the wrong-doer who has been in possession, yet the title gained by such possession is limited by rights yet remaining unextinguished, and is commensurate with the interest which the rightful owners lost by the operation of the statute, and has the same legal character. This opinion has been universally held in Ireland”and he cited Rankin v. McMurtry 57; Mulcaire v. Lane-Joynt 58; MacCormack v. Courtney 59; and In re Hayden .60 This statement of Holmes L.J. was accepted as “the more correct view” by Dixon J. in Bank of Ireland v. Domvile .61 Later, in In re Ryan, Maher v. Harte Barry 62Dixon J. said:”It is not so much a question of interests having been acquired as of rights having been lost. I do not wish to answer the question in a way which would suggest that the Limitation Act effected a transfer of property.”
In Fairweather’s Case63, where the ousted lessee purported to surrender to the freeholder, the majority decision of the court (Lord Morris of Borth-y-Gest dissenting) was that an owner in fee simple who held land subject to a term of years had an estate or interest in reversion or remainder and that, accordingly, his right of action against a squatter was deemed to have accrued at the date when the preceding estate or interest (represented by the term) determined in such manner that his estate or interest fell into possession: and the court held that the effect of the extinguishment sections of the Limitation Act was that, when a squatter dispossessed a lessee for the statutory period, it was the lessee’s title as against the squatter that was finally destroyed and not the lessee’s right or title as against the freeholderand, accordingly, that the lessee was in a position to surrender to the lessor, that the lease was “determined” by the surrender made in 1959 by the ousted lessee, and that the freeholder thereupon became entitled to possession of the demised property.
I am unable to accept that, in providing that at the expiration of the period fixed by the Statute of Limitations, 1957, for any person to bring an action to recover land the title of that person to the land shall be extinguished, the legislature intended that such extinguishment should take place only as against the squatter and not as against the freeholder. If the majority decision in Fairweather’s Case64 is to be followed here, it would have a very far reaching effect. Until comparatively recent years, raising representation in the case of small farms was quite rare, the occupiers preferring to rely on the Statute of Limitations, and there must be very few agricultural holdings in this country in which at some time in the past 140 years a tenancy was not “acquired” under the statute. Again, leases for 999 years (such as the lease of 1947) are now quite common and the effect of this decision is that by collusion between the lessee and the freeholder. the successors in title of a squatter on leasehold land can be ejected however long the lessee has been out of possessionbe it 12 years, 120 years or 900 years. It seems to me that such a result would entirely defeat the object of the Statute of Limitations.
Having regard to the opinion hereinafter expressed as to the ability of an ousted lessee to surrender or effect a merger, it is not necessary for the purpose of this case to decide what right, if any, has been gained by the squatter by reason of the title of the lessee having been extinguished. Nevertheless, it seems to me that, though there is no statutory transfer or conveyance to the squatter, what the plaintiff (as squatter) has gained is the right to possession of the premises in dispute as against the defendants (as fee-simple owners) for the unexpired portion of the term of the lease, subject to the risk and the possibility of a forfeiture. During the currency of the term limited by a lease, the lessor has no right to possession of the demised property unless the lessee has incurred a forfeiture for breach of one or more of the covenants in the lease. If a squatter goes into possession, his possession, though adverse to the lessee, is not adverse to the lessor. Until the squatter has been in possession for a period of 12 years, the lessee can recover possession of the premises from him; but once the squatter has been in such possession for 12 years the title of the lessee is extinguished and the lessee, who has lost the right to possession, can no longer eject the squatter. In my view, the squatter has the right to possession not only as against the lessee and any stranger but also as against the lessor for the unexpired portion of the term, subject to the risk of a forfeiture; and this is what the squatter has gained. The ousted lessee continues to be contractually liable to the lessor upon the covenants in the lease. In the present case, at the time when the purported assignment by Irish Life was made, there had been no forfeiture and the plaintiff was accordingly entitled to remain in possession as against the lessor.
The real question for decision is whether the lessee and the freeholder, by a merger or a surrender, can give to the freeholder the right to possession so as to defeat the squatter. The defendants rely on the majority decision in Fairweather’s Case65 and in particular on the judgment of Lord Denning who came to the clear conclusion that a surrender operated as a determination of the term; at p. 548 of the report he said that he saw no difference between a surrender, a merger or forfeiture, and that on each of these events the lease would be determined and the freeholder entitled to evict the squatter, even though the squatter has been on the land during the currency of the lease for more than 12 years; and that on the determination of the lease time began to run against the freeholder. The defendants contend that the same considerations apply in the present case.
Whilst the opinion of Lord Denning is deserving of the highest respect, I find it extremely difficult to see how an ousted lessee who has no right to possession could give to the lessors, by a purported surrender or assignment, a right to possession; or how such lessee, as a person whose title has been declared by the statute to be extinguished, has anything to surrender or assign which could affect the possession of the squatter. This was the view of Lord Morris of Borth-y-Gest in Fairweather’s Case65; in his dissenting judgment he said at p. 550 of the report:”When a lessor grants a lease to a lessee for a term of years the lessee is given a right to possession during the term. The lessee will have a right to possession for the period of the term which will be effective as against his lessor and as against everyone else. If thereafter the lessee wishes during the term to place the lessor in the position of having a right to possession as against everyone he does not do this by abandoning any such right to possession as against the lessor as might be thought to exist: he must also be in a position to cede to the lessor rights to possession as against everyone elsewhich was one part of what he had obtained from the lessor. If, however. he has lost all his rights to possession how can he reinvest his lessor with any of them” Unless he is in a position to transfer those rights to his lessor the lessor must wait until he acquires such rights in some other way. If it can be said in a case where a squatter has during a lease remained in possession for the statutory period that the lessee has merely lost his right to possession vis-Ã -vis the squatter, how can he give his lessor a right to possession against such squatter””
If a lessee made an underlease and subsequently surrendered the lease to the freeholder, the freeholder could not eject the underlessee during the term of the underlease. This proposition was not contested in Fairweather’s Case66, nor was it contested in the present case. The defendants sought to draw a distinction between an underlease and a trespasser, and they relied on the following passage in Coke upon Littleton (Vol. II, s. 338b) which reads:”. . . having regard to the parties to the surrender, the estate is absolutely drowned . . . But having regard to strangers, who were not parties or privies thereunto, lest by a voluntary surrender they may receive prejudice touching any right or interest they had before the surrender, the estate surrendred hath in consideration of law a continuance.” The defendants rely upon that passage as protecting an underlessee from eviction during the term of his underlease but not as protecting a trespasser this being the view taken by Lord Denning. I can see no reason why Coke’s statement should be confined to an underlease and should not also apply in the case of a person who has been in adverse possession for the necessary period prescribed by statute. As Lord Morris of Borth-y-Gest put it at p. 552 in Fairweather’s Case66, if a lessee who has lawfully assigned or sub-let cannot by a surrender affect the rights of assignees or underlessees, it is difficult to see why a surrender should endow a lessor with a right against an adverse possessor which was not possessed by the lessee.
In the High Court, the learned President was not prepared to accept the majority decision of the House of Lords in Fairweather’s Case66 and preferred the reasoning of Lord Morris of Borth-y-Gest. In my opinion, the decision of the learned President was correct. In my judgment, Irish Life, who had lost the right to possession, could not assign to the defendants the right to possession; nor could the defendants, by taking a transfer of the freehold, give themselves any better right to possession than they had before the transfer was effected. I fail to see how a lessee or a purported assignee of a lease, by surrendering the lease, or by purchasing the freehold, can confer a right which he himself has not got. In my judgment, therefore, this appeal fails and should be dismissed.