Other Limited Rights
Cases
O’Connell v. Harrison.
C0-owners
[1927] IR 330
Kennedy C.J.
The plaintiff, Sir John Robert O’Connell, has taken out this originating summons as executor of Margaret Wooloughan, deceased, claiming to have it determined that he is entitled, as such executor, to a sum of £651 18s., which was lodged by him to the credit of the matter of Elizabeth Harrison, a person of unsound mind, and separate credit of the residuary bequest contained in the will of Margaret Wooloughan, pursuant to order in that matter, dated 2nd March, 1923. The summons is directed to Henry Harrison, personal representative of the said Elizabeth Harrison, who has died. The case was, by leave, listed before me, the question having arisen for determination upon the winding up of the matter of Elizabeth Harrison.
Margaret Wooloughan and Elizabeth Harrison (formerly Wooloughan) were sisters. Their father, James Wooloughan, prior to his death purchased fifteen shares in the National Bank, Ltd., which he caused to be transferred into the joint names of himself, the said Margaret Wooloughan, and the said Elizabeth Harrison (then Wooloughan).
James Wooloughan died on the 18th December, 1875, having made his will, dated the 3rd August, 1868, and a codicil, dated the 27th June, 1871, which was duly proved on the 12th May, 1876, by Margaret Wooloughan, the executrix therein named. The joint effect of the will and codicil was to give all the residue of the testator’s property to his daughters, Margaret and Elizabeth,”jointly in equal shares.”
On the 19th January, 1880, Messrs. M’Cann & Co., stockbrokers, purchased three shares in the National Bank, Ltd., for the account of Margaret Wooloughan and Elizabeth Wooloughan, and the shares were transferred to the joint names of the two sisters.
On the 15th November, 1880, a deed was made between Elizabeth Wooloughan of the one part, and Margaret Wooloughan of the other part, and executed by both sisters. The deed recited the will and codicil of James Wooloughan, and the probate, and that his residuary estate consisted of the shares and other property therein specified, including, amongst other things, fifteen shares in the National Bank. It was then recited that the sisters had agreed to carry on the testator’s business of barm brewers for their equal mutual benefit as tenants in common, and not as joint tenants, and that they should also be possessed of, and interested in, the testator’s shares and debentures equally as tenants in common, and not as joint tenants, and that Elizabeth should indemnify Margaret as executrix. The deed then contained on the part of Elizabeth Wooloughan a release and indemnity of Margaret Wooloughan as executrix in relation to the estate of James Wooloughan, deceased, followed by a declaration by both parties that they, Margaret Wooloughan and Elizabeth Wooloughan, should thenceforth “be equally seised and possessed of the said brewery concerns, and carry on the business thereof for their mutual benefit, and hold and be possessed of the said shares equally as tenants in common, and not as joint tenants.” It was assumed in argument that the fifteen shares in the National Bank mentioned in this deed were the same fifteen shares which, as already stated, were purchased by the testator in the joint names of himself and his two daughters. The deed contains no mention of the three shares in the National Bank purchased in January, 1880.
In September, 1881, shares in the National Bank were subdivided into three shares each, so that the eighteen shares standing in the joint names of Margaret Wooloughan and Elizabeth Wooloughan became now fifty-four shares, standing in the same names.
On the 22nd February, 1882, Messrs. M’Cann & Co. purchased an additional ten shares in the National Bank for the account of the two sisters, and again the transfer was taken into the two names of Margaret Wooloughan and Elizabeth Wooloughan, bringing the total holding in their names up to sixty-four shares, and they so remained until the year 1921. A slip of paper has been exhibited, upon which is a note or memorandum, alleged to be in the handwriting of Margaret Wooloughan, in these words and figures”64 National Bank, half Liz.” No evidence has been givenI am told that none can be givenas to the source of the moneys paid, or the proportions in which contributed, for either of the purchases made through Messrs. M’Cann & Co., so that the matter must rest on inference from the other facts.
In the year 1920, Elizabeth Wooloughan, who had in the meantime married, and become a widow, was (by her then name of Elizabeth Harrison) declared to be of unsound mind, and incapable of managing her property, and was taken under care of the Court. Margaret Wooloughan was appointed to be Committee of her person and property. Margaret Wooloughan brought in a statement of facts, duly verified by her affidavit, wherein she stated that the property of Elizabeth Harrison comprised (amongst other things) “32 shares of£10 each in the National Bank, Limited,” and asked to have an order made transferring them into Court to the credit of the matter.
On the 11th January, 1921, an order was made by the then Lord Chancellor confirming the report of the Registrar in Lunacy, which found that the property of the said Elizabeth Harrison consisted of (amongst other things) “32 shares of£10each in the National Bank, Ltd.” and, the income of the patient being insufficient to pay the charges for her maintenance and treatment, amounting to £120 a year, the balance over and above £85 a year was charged on the corpus of her property; and it was thereby ordered that Margaret Wooloughan “sell thirty-two shares of Ten Pounds each in the National Bank, Limited, the property of the said Elizabeth Harrison, now standing in the name of the said Margaret Wooloughan, and lodge the proceeds of such sale . . . to the credit of this matter.” Pursuant to this order, the thirty-two sharesthat is to say, one-half of the joint holding of sixty-four sharesin the National Bank, Ltd., were sold by Margaret Wooloughan, and the proceeds of the sale lodged in Court to the general credit of the matter. The sale was effected by Margaret Wooloughan in a two-fold capacitypersonally, as one of the persons in whose names the shares stood, and as Committee of the other of such persons.
Margaret Wooloughan died on the 20th August, 1922, having made a will, dated the 11th October, 1918, and two codicils, dated respectively the 29th October, 1918, and 22nd September, 1919, which will and codicils were duly proved on the 21st October, 1922, by the plaintiff, Sir John Robert O’Connell, one of the executors therein named. The effect of the dispositions made by the testatrix was that, after a number of legacies, her residuary estate was to be realised, and the income to be applied for the benefit of her sister, Elizabeth Harrison, during her life, and after her death the residue was to pass for certain charitable purposes.
On the 2nd March, 1923, an order was made by Molony C.J. in the lunacy matter, on the application of Mr. O’Shaughnessy, who had been appointed Committee in place of Margaret Wooloughan, deceased, and on hearing Sir John R. O’Connell, that Sir John R. O’Connell, as executor of Margaret Wooloughan, “be at liberty to sell thirty-two shares in the National Bank, Ltd., now standing in the joint names of the said Margaret Wooloughan and Elizabeth Harrison”that is to say, the residue of the original holding of sixty-four shares; and it was also ordered that he be at liberty to deduct from the proceeds of such sale the amount of his miscellaneous costs, as executor of Margaret Wooloughan, when taxed, and to lodge the balance of the proceeds of the sale in Court to the credit of the lunacy matter, “and separate credit of the trusts of the residuary bequest contained in the will of Margaret Wooloughan.” The shares were accordingly sold, and the net proceeds, amounting to the sum of £651 18s., lodged to the credit mentioned in the order. This is the sum in question upon the present originating summons.
Elizabeth Harrison died on the 3rd December, 1924, having made her will, dated the 1st April, 1913, which was duly proved on the 24th July, 1925, by the defendant, Henry Harrison, as one of the next-of-kin, to whom letters of administration with the said will annexed were granted. By her will, Elizabeth Harrison bequeathed all her property to her sister, Margaret Wooloughan, who, however, pre-deceased her.
The defendant, as personal representative of Elizabeth Harrison, the survivor of the two sisters, put forward a claim that the three shares in the National Bank purchased in January, 1880, and the ten shares purchased in February, 1882, were held by the sisters as joint tenants, with benefit of survivorship, on the ground that, as he suggested, they were purchased out of moneys contributed by them in equal shares. Thereupon, the plaintiff, as personal representative of Margaret Wooloughan, took out the present summons to have the question determined. The sum mentioned in the summons represents the proceeds of sale of thirty-two shares, after deducting costs, and the claim made would only affect so much of that sum as represents nine-and-a-half shares; the whole sixty-four shares having been equally divided, the thirty-two shares sold by Sir John O’Connell would include four-and-a-half of the nine shares, into which the three shares bought in January, 1880, were sub-divided, and five of the ten shares bought in February, 1882.
The first question which I have to determine is whether the shares bought by the two sisters in January, 1880, and February, 1882, were bought by them to be held jointly, with right of survivorship, or were to be held in equity upon a beneficial ownership in common, without right of survivorship. Mr. Walker, for the defendant, urged that it was to be assumed that the moneys invested in the purchase of the shares were contributed by the two sisters in equal shares, and that it was to be inferred from such equal contribution that the shares were acquired to be held in joint tenancy. He relied on the rules stated in White and Tudor’s Leading Cases, 8th edition, vol. II, at p. 978 in the notes under the cases of Lake v. Gibson (1), and Lake v.Craddock (2).
I am ready to assume, with Mr. Walker, that the purchase money was contributed by these ladies in equal shares, but that assumption does not lead to a conclusive inference of joint tenancy if there is evidence which I may properly consider showing a contrary intention. In the case of In re Jackson; Smith v. Sibthorpe (3), North J. went behind an express joint account clause in a mortgage upon which three sisters lent money derived by them as tenants in common under a brother’s will, and he drew from the circumstances of the case as proved the inference that the three mortgagees were entitled to the moneys in equity as tenants in common. That was, however, a case of money lent on a mortgage, and a curious distinction has crept into the cases between the investment of moneys equally contributed upon a joint purchase of property and the investment of such moneys upon a joint loan. I may refer in passing to the editor’s note to Jackson v. Jackson (4), to the notes in White and Tudor’s Leading Cases in Equity, vol. II. under Lake v.Gibson (1), and Lake v. Craddock (2), and to the case of Steedsv. Steeds (5).
Among the cases of joint purchase, there is a group of cases quite directly in point upon the question I have to determine. My only hesitation in mentioning them arises from the fact that they were not cited by counsel on either side in the course of the argument. I refer particularly to Edwards v. Fashion (1); Robinson v. Preston (2); and Bone v. Pollard (3), all of which have much in common with the present case on their facts, but especially Robinson v. Preston (2)always bearing in mind that, as Romilly M.R. said, in Bone v. Pollard (3), “cases of this description must be determined by their own facts”and these three cases are very helpful as to the facts which may be admitted into consideration in arriving at such determination. For while, if the only fact be a joint purchase made out of moneys equally contributed, no equity intervenes to take the property out of joint tenancy, and reduce it to a tenancy in common; yet evidence is admissible as to the surrounding circumstancesas to the conduct of the parties whether before or after the purchase, and as to statements against interest (but not as to statements of intention)and such evidence may establish the true intention of the joint purchasers to have been a purchase for a beneficial tenancy in common, and displace or rebut the inference of joint tenancy which the Court would draw from the fact of equal contribution of the purchase money standing alone: Robinsonv. Preston (2); Edwards v. Fashion (1); Aveling v. Knipe (4).See also Phipson on Evidence, 4th edition, at p. 536.
Now let us see what evidence of the character I have mentioned is presented in the present case. In the first place, we find the two ladies acquiring a business concern and certain investments under their father’s will, and, a few years later, entering into the deed of 15th November, 1880, for the purpose of affirming that the business, which they continued to carry on, and the investments were held by them beneficially as tenants in common, and not as joint tenants. This deed, at any rate, evinced a strong leaning against joint tenancy on the part of the sisters, then both unmarried, and apparently united in management of their business affairs. (See the observations of Page-Wood V.-C. upon the deed in Robinson v. Preston (2).) It is highly probable, but not directly established in evidence, that the two investments now in question were acquired with moneys arising from the properties with which the deed was concerned. Then, it is surely not without significance that the ladies purchased two further lots of shares in a company in which they already had a holding standing in their joint names, which they declared by deed to be held in common, and not in joint tenancy, and that they took the transfers of the new parcels into the same namesas it were, enlarging their existing holding. It is to be remembered that one does not look to find a declaration of a tenancy in common in the transfer instrument of shares or stock in a company.
Nothing relevant then arises after the purchase in 1882 until the year 1920, when Margaret Wooloughan brought in her statement of facts as petitioner in the lunacy matter. There we find her declaration verified on oath, that one-half of the entire holding of shares in the National Bank was the property of her sister, Elizabeth, with her request to have them transferred into Court to the credit of the matter. This is evidence bearing on the question, admissible as evidence of conduct, and also as a declaration against interest affecting property standing in her own name. (See Robinson v. Preston (1), as to a statement made in a will by one of the joint owners.)
In the next place, we have the order of the Lord Chancellor, made at the instance of Margaret Wooloughan, declaring the thirty-two shares to be the property of Elizabeth Harrison, and ordering Margaret Wooloughan to sell them, and lodge the proceeds to the credit of the matter, which she did, as I have already mentioned, in her twofold capacity, while retaining the other thirty-two shares as her owna fact not without special significance, having regard to the liability attaching to these bank shares.
There is also the slip of paper with the note by Margaret Wooloughan; but I leave it out of consideration. I will only say that it does not conflict with the conclusion at which I arrive otherwise.
From all the circumstancesfrom the business relations and attitude of mind disclosed by the deed of 15th November, 1880; from the conduct of Margaret Wooloughan in the lunacy matter, manifesting how she understood the transactions, and from her sworn statement of factsI draw the inference, and I find as a fact established to my satisfaction, that the two parcels of shares in the National Bank, even if purchased out of moneys contributed in equal amounts, and though transferred into their joint names, were held by Margaret Wooloughan and Elizabeth Harrison in equity as tenants in common.
The decision at which I have arrived as to the fact of tenancy in common disposes of the case, but I wish to add some observations on the other branch of the argumentnamely, the contention that, assuming the shares were held in joint tenancy with right of survivorship, the joint tenancy was not severed by the action of the Court in the lunacy matter.
It is the long-settled policy and practice of the Court in the administration of lunatics’ estates to preserve the character of their property as far as possible, and to avoid disturbing the succession to such property: Attorney-General v. Ailesbury (2);Lunacy Regulation (Ireland) Act, 1871, sect. 67 (which deals only with lands). But that policy and practice is always subject to the paramount obligation and duty upon the Court to provide for the maintenance and care of the patient out of his means, and to manage and administer his property in his interest, and for his benefit. There can be no question, in my opinion, of the power of the Court under its statutory jurisdiction to sever such a joint tenancy in funds as the joint tenancy alleged in the present case, and to realise the patient’s share, if the patient’s interest and benefit so require. Did the patient’s interest in the present case require that she should cease to be joint tenant with her sister of these bank shares (if such was the case)? In my opinion, imperatively so, and for two main reasons.
In the first place, Elizabeth Harrison had limited means. Her income was not sufficient to pay the annual charges of the institution in which she was being cared and maintained. An arrangement had to be made with the institution for payment of an annual sum on account, the balance to accumulate, and be charged on the corpus of her property; and, as a basis for such arrangement, it was necessary to make available as large a corpus as the circumstances allowed. The paramount claim of the patient’s care and maintenance required that her interest in the National Bank shares be realised, even if the result was to sever the joint tenancy, and defeat the right of succession.
In the second place, the shares were liable to heavy calls, from which liability it was essential that the patient’s estate should be freed.
Add to these considerations of the patient’s interest the fact that her sister, who was petitioner in the matter and Committee, was an actively concurring party in the division of the shares and the sale, and the contention put forward by the defendant here seems to me hopelessly untenable.
I am of opinion, therefore, that the sum of £651 18s., mentioned in the originating summons, is, all of it, the proper moneys of Margaret Wooloughan, deceased, and that the plaintiff is entitled to the declaration for which he prays.
Both parties will have their costs out of the fund; the plaintiff’s costs as executor’s costs.
Kennedy and Lawler v. Ryan.
[1938] IR 621
Gavan Duffy J.
I have to determine the construction of a deed, dated the 24th of August, 1934, whereby one, Thomas Gavigan, in consideration of a substantial sum of money, granted and conveyed the freehold house, No. 1 Fownes’s Street in the City of Dublin, unto George Ryan and Sheila Ryan “to hold the said premises unto and to the use of the said George Ryan and Sheila Ryan their and each of their heirs and assigns” and purported to assign unto the said George Ryan and Sheila Ryan the seven day licence (for liquor) attached to the premises “to hold the same unto the said George Ryan and Sheila Ryan absolutely.”
The difficulty arises upon the words “their and each of their heirs”; it would be unsafe to base any conclusion upon the presence of the word “assigns”: Brookman v.Smith (9); since 1883, where real estate is conveyed to husband and wife jointly, they take as joint tenants and I am pressed by Mr. Vaughan Wilson to hold that Mr. and Mrs. Ryan, who were husband and wife, took the property as join tenants in fee simple.
Mr. Ryan died on the 19th of February, 1938, leaving the defendant, Sheila Ryan, his widow, and a son and daughter, infants, surviving; his will was proved by the two plaintiffs and the defendant, who are his executors and trustees. If there was a joint tenancy in fee simple, Mrs. Ryan has the benefit of survivorship; the argument for her is that a grant to husband and wife, their and each of their heirs is a grant to the husband and wife and their heirs, so that the words “and each of” are superfluous, and, as such, to be rejected in the construction of the deed. The plaintiffs, who are devisees in trust, reply that this contention ignores the clear implication of distinctness or plurality of interest in the expression “their and each of their heirs,” by the force of which the property, or at least the inheritance, can only have been held by the grantees as tenants in common.
Mr. Burke for the plaintiffs relies upon a series of cases recognising the partitive force of the word “respective”to make a tenancy in common, cases in which a devise to A. and B. (being persons who could not marry) and their heirs respectively has been held to give a joint life estate to A. and B., with remainder to each of them as tenants in common after the death of the survivor. This principle has been applied to a devise to two nieces as joint tenants and their several and respective heirs and assigns for ever: Doe v. Green (1); and to a devise to trustees in trust for A., B. and C. and for their respective heirs, executors, administrators and assigns: In re Atkinson (2). A devise to two daughters and their issue or to two nieces to hold to them, their heirs and assigns for ever (without the word”respective”) produces the like result, since there are necessarily several inheritances: Cook v. Cook (3); Forrest v.Whiteway (4). The authority for this construction is to be found in s.283 of Littleton’s Tenures, in a passage to which I shall return; Littleton was dealing with an estate tail, but the principle is equally applicable to an estate in fee simple: Doe d., Littlewood v. Green (5). The cases have generally been decided upon wills, but Littleton was speaking of a deed at common law, and the principle was applied in England to a deed, of which we have scanty particulars, in Wilkinson v. Spearman (6), where the House of Lords appears reluctantly to have followed the same rule upon a grant to two daughters and the heirs of their bodies. The common law position is carefully examined
by Brady L.C. in Fleming v. Fleming (1), as to the indications necessary to create a tenancy in common; much less definite words have proved sufficient in a will or conveyence to uses. (See Bacon’s Abridgement, tit. “Joint Tenants”(F), and 2 Preston’s Abstract, 471.) But there is no doubt as to the applicability of Littleton’s principle to cases as wide apart as grants at common law and wills, and so to what I may collect under one head as the various intermediate types of assurance.
Romilly M.R., applying Littleton’s principle, in Ex parte Tanner (2), says:”If land were given to a man and woman, and the heirs of their bodies, this would be an estate in special tail, and the word ‘respective,’ if introduced before the word ‘heirs,’ would have the effect of making the man and woman joint-tenants for life: it would be the same as if the gift were to a man and woman who could not marry and the heirs of their bodies.” This obiter dictum if it be correct, may apply to sever the inheritance in fee simple in the present case, provided that the limitation here be equivalent to a limitation to the respective heirs of the husband and the wife, a question which I shall have to examine. The reasoned statement in Littleton deserves to be quoted, that statement, as reproduced in Coke upon Littleton, par. 182a, reads:
“Also there may be some joyntenants, which may have a joynt estate, and be joyntenants for terme of their lives, and yet have severall inheritances. As if lands be given to two men and to the heires of their two bodies begotten, in this case the donees have a joynt estate for terme of their two lives, and yet they have severall inheritances. . . . And the reason why they shall have severall inheritances is this, inasmuch as they cannot by any possibility have an heir between them ingendred, as a man and woman may have, &c. the law will that their estate and inheritance be such as is reasonable, according to the forme and effect of the words of the gift, and this is to the heires which the one shall beget of his body by any of his wives and to the heires which the other shall beget of his body by any of his wives, &c. so as it behoveth by necessitie of reason, that they have severall inheritances.”
Upon this passage my Lord Coke waxes eloquent on reason as the life of the law and earnestly recommends all students of law to apply their principal endeavour to attain thereunto. The doctrine of a joint tenancy for life in such a case, with a tenancy in common of the inheritance, is here expressly based on necessity, on the physical impossibility of the two men procreating a single heir. (Cp. Fearne, 9th edn., p. 35; ch. I (V; § 4, 5).) That doctrine and the specific reason for it are, therefore, singularly inept where the first takers are husband and wife. Happily, however, I am relieved of the necessity for considering whether or not to be guided by Romilly M.R. by the fact that the words which I have to construe are different from those which he puts in his supposititious case.
The expression “their and each of their heirs” is not unfamiliar in ill-drawn instruments. It may be (I know not) that in loose draftsmanship of this kind the writer uses the words elliptically and inaccurately to mean “their heirs and the heirs of each of them”; if so, that is not what he has said. The grammatical meaning of the words, as Mr. Vaughan Wilson points out, is plainly “the heirs of A. and B. and each of those heirs,” and I see no reason whatever in this particular deed for rejecting the grammatical, in favour of a conjectural meaning. The draftsman may have had in mind, in designating each of the heirs, the immediate heir-at-law, without realising that, if land descends to co-parceners, they “be but one heir to their ancestor,”but I cannot attribute any such notion to him if the word”heirs” designates, not individual persons, but a class, on the latter view, on the assumption that he had any clear notion in his mind, when he wrote down “each,” he may have been contemplating each unit in the line of legal successors, but every such unit is already necessarily implied in the word “heirs.” Now, it is, I think, beyond question that the word “heirs” in the limitation in this deed is a word of limitation, not a word of purchase; if so, the word describes the whole class of legal successors, the whole line which is to succeed, so that the Rule in Shelley’s Case must apply; the word does not designate the individual or particular person answering the description of heir at the death of the ancestor. (See Thomas’s note to Shelley’s Case, (1).) In my opinion, since the words “their and each of their heirs” are directed to a class of successors in law, the mention of “each” member of the class adds nothing (except a quite otiose emphasis) to the already complete category of “their heirs” and therefore it involves a redundancy. If that conclusion be correct, the construction of the deed will not be altered by the insertion of this pleonasm, and it makes a joint tenancy in fee simple.
The apparent ambiguity in such expressions as “to the right heirs of both” (husband and wife) and “to the right heirs of Walter Read and Mary his wife forever” was resolved in the eighteenth century in such cases as Roe v.Quartley (1), and Green v. King (2), by reference to the principle that in law husband and wife are one person. That unity of husband and wife strengthens the argument (if any corroboration be needed) for a joint tenancy in fee simple in the present case, for the Married Women’s Property Acts, while enabling a wife to take in joint tenancy with her husband: Thornley v. Thornley (3), have not abrogated existing principles of law in cases where their provisions do not apply, nor changed the wife’s legal position in respect of property, except by altering the wife’s right to property as between herself and her husband: Butler v. Butler (4); In re Jupp ; Jupp v. Buckwell (5), so that the Court should, I think, lean towards a construction which respects that unity. The purchase of the property, with the moneys of the husband, if (as I gather) they were his, in the joint names of husband and wife and a resultant joint tenancy in fee simple are, of course, entirely consistent with the presumption of advancement in favour of the wife. And, if we have inherited the traditional tendency of Courts of Equity towards tenancies in common, that consideration can have no weight as against the intrinsic force of the words that I have to construe; as Page Wood V.C. put it in Kenworthyv. Ward (6), where the Court finds slight words of intention of severance, the course is to act upon them, but, where the words are such as to create a joint tenancy, that must be taken to be the real intent of the conveyance, unless there is some distinct ground to prevent its operation. I see no such ground here. Accordingly, I hold that, upon the true construction of the conveyance of the 24th of August, 1934, the late George Ryan and his wife, the defendant Mrs. Sheila Ryan, acquired an estate in fee simple in joint tenancy. I may add that I have not required the infant heir of the late George Ryan to be made a party to this suit, because in my opinion such a proposition as that the heir takes by purchase under this deed would be quite unarguable.
Mahon v Lawlor
[2010] IESC 58
Docket Number: Record No. 016/2009, [S.C. No. 16 of 2009]
Reported In: [2011] 1 IR 311, [2010] 11 JIC 2504
Jurisdiction: Ireland
Court: Supreme Court (Ireland)
Judge: Mr Justice Finnegan
The preliminary issue came on for hearing before the High Court (Laffoy J.). The second named respondent, the moving party on the preliminary issue, contended that the registration of the judgment mortgages against the interest of Mr Lawlor, who was one of two joint tenants, did not sever the joint tenancy and that on the death of Mr Lawlor, the joint tenancy not having been severed, the second named respondent became the sole owner of the lands by right of survivorship free from the judgment mortgages. For the appellant it was contended that the registration of the judgment mortgages against the interest of Mr Lawlor effected severance so that Mr Lawlor thereupon became the owner of an undivided interest subject to the judgment mortgages and that on his death that undivided interest became part of his estate and the judgment mortgages remained as an encumbrance affecting the same.
In a judgment delivered on the 30th July 2008 the High Court (Laffoy J.) dealt in detail with severance of a joint tenancy by the registration of a judgment mortgage in relation to unregistered land. In relation to registered land she considered the Registration of Title Act 1964 and the changes thereby effected in the system of registration of title and in particular considered the effect of section 4(c) of the Succession Act 1965 and section 62, section 69 and section 71 of the Registration of Title Act 1964. The first question for decision was whether registration of a judgment mortgage on registered land in which a joint tenancy exists severs the joint tenancy. The High Court held that it did not. Further it held that the registration of the judgment mortgages against Mr Lawlor’s interest as joint tenant in the lands was subject to Mrs Lawlor’s right of survivorship so that in the events which happened, that Mr Lawlor pre-deceased her without the joint tenancy having been severed, she became entitled to be registered as full owner with absolute title freed and discharged from the judgment mortgages. From the judgment and order of the High Court the appellant appeals.
1. Does registration of a judgment mortgage against the interest of a joint tenant in registered land sever the joint tenancy.
Severance converts a joint tenancy into a tenancy in common. It occurs where a joint tenant alienates his interestinter vivos or in equity by an enforceable contract to alienate or by the subsequent acquisition of a further estate in the land. Thus if one joint tenant creates a mortgage or life interest out of his interest severance occurs: York v Stone [1709] 1 Salk. 158, Re Pollard’s Estate [1863] 32 L.J. Ch. 657 and Co. Litt. 302. The creation of a mere encumbrance such as a rent charge however does not effect severance: Co. Litt 286. A joint tenancy is also severed by partition or by homicide. See also The Law of Real Property, Megarry and Wade 4th edition pp 404-407 and Challis Real Property 3rd edition footnote at page 367.
In relation to unregistered land the Judgment Mortgage (Ireland) Act 1850 section 7 has the effect that the registration of a judgment mortgage against the share of a joint tenant involves the transfer of the judgment debtor’s interest to the judgment creditor”as if an effectual conveyance…had been made, executed and registered”. Thus registration of a judgment mortgage affidavit effects severance as it destroys one of the four unities, unity of title, and so creates a tenancy in common: McIlroy v Edgar 7 L.R. Ir. 521.
In relation to registered land it was generally considered that section 21 of the Registration of Title Act 1891 had the like effect and that registration of a judgment mortgage severed the joint tenancy: there remained some doubt about this by virtue of section 45(1) of the Act which provided for the registration of a judgment mortgage as a burden only. Section 21 provided as follows:-
2 “21(1)From and after the date of the registration of any land (including in the word ‘land’, tenements and incorporeal hereditaments) the registration of the affidavit required by the Act passed in the session of the thirteenth and fourteenth years of the reign of Her present Majesty, chapter 29, and the Acts amending the same (in this section referred to as the said Acts), for the purpose of registering a judgment as a mortgage upon the land shall be made in the prescribed manner, and with such entries as may be prescribed.
(2) Immediately upon such registration all such and the same consequences in all respects shall ensue, and all such and the same rights, powers and remedies in all respects shall be acquired and possessed by every or any person as would have ensued or been acquired and possessed by or by reason of the registration of such affidavit in the Registry of Deeds pursuant to the provisions of the said Acts, if this Act had not passed.”
The Conveyancing Act 1881 defines mortgage at section 2(vi) as follows:-
“Mortgage includes any charge on any property for securing money or monies worth; and mortgage money means money, or monies worth, secured by a mortgage; and mortgagor includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage, according to his estate, interest or right, in the mortgaged property; and mortgagee includes any person from time to time deriving title under the original mortgagee: and mortgagee in possession is, for the purposes of this Act a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property.”
The fact that “mortgage” in the Conveyancing Act 1881 includes a charge and that a judgment mortgage is a charge does not affect the well settled law that a charge on the interest of a joint tenant will not effect severance.
Thus to come within section 62 the charge must be created by the registered owner and a judgment mortgage not being created by the registered owner does not come within the section and accordingly will not operate as a mortgage pursuant to section 62(6) of the Act. A judgment mortgage is registerable under section 69(1)(i) of the Act. The effect of section 71 of the 1964 Act is that registration of a judgment mortgage affidavit creates a burden only: it does not operate as a mortgage by deed. The registered owner is not thereby divested of his interest and so unity of title is not affected and severance does not occur. The judgment creditors remedy is not as mortgagee but rather he has such rights and remedies for the enforcement of the charge as may be conferred on him by order of the Court.
Finally it is necessary to consider whether the order of the 24th November 2004 in the action taken by Dermot Coyne against Liam Lawlor could have effected severance. It is well settled that a binding contract for sale, as it divests the joint tenant of his equitable interest in his estate, will effect severance. However an order for sale of the interest of a joint tenant has not the effect of divesting a joint tenant of his interest: thus a judgment mortgage can be registered against the same: In Re Scanlon [1897] 1 I.R. 462. The joint tenant will only be divested of his interest giving rise to severance on a purchaser entering into an enforceable contract for sale pursuant to the order for sale.
Having regard to the foregoing I am satisfied that the respondents joint tenancy has not been severed.
Moore (plaintiff) v Moore and Others
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Docket Number: [2007 No. 8143
Reported In: [2010] 7 JIC 0103, [2010] 12 JIC 1006, [2011] 1 IR 623
Neutral Citation: [2010] IEHC 263, [2010] IEHC 462
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr. Justice Roderick Murphy5. Decision in relation to first and second named defendants
The first two defendants submitted that the title of the plaintiff to any estate or interest in the premises was statute barred on 5 th January, 1996, when Mr. Moore died. At that point they say that there was no question of fraud.
Section 71 of the Statute of Limitations 1957, is an express provision postponing the date of the accrual of the cause of action in cases involving fraud to the date when the fraud was, or could with reasonable diligence have been, discovered. The statute provides that where the action is either “based on” or “concealed by” the fraud of the defendant, the limitation period does not begin to run until the plaintiff either discovered the fraud or could, with reasonable diligence, have discovered it.
The classic statement on the meaning of fraud is attributed to Lord Evershed M.R. in Kitchen v Royal Air Force Association [1958] 1 W.L.R. 563, 572 – 573, which was in the context of s. 26(b) of the Limitation Act 1939, that it was by no means limited to common law fraud or deceit. In that case there was concealment from the plaintiff by the second named defendants who were acting as her solicitors of what was being proposed to the plaintiff “a necessary consequence, the concealment”.
“A necessary consequence of the concealment (as the second defendant must have realised, if they had given any thought to the matter at all) was a concealment also from the plaintiff of the real effect of their having thrown away – and I use that word deliberately – any case which she might have possessed under the Fatal Accidents Acts in May 1946. Does, however, that concealment amount to fraud? There is no finding, and no justification for any finding of dishonesty as that word is ordinarily understood. It is now clear, however, that the word ‘fraud’ in s. 26(b) of the Limitation Act 1939, is by no means limited to common law fraud or deceit. Equally it is clear, having regard to the decision in Beaman v ARTS Ltd [1949] 1 All E.R. 465, that no degree of moral turpitude is necessary to establish fraud within the section. What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define two hundred years ago, and I certainly shall not attempt to do so now, but it is, I think clear that the phrase covers conduct which having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other.”
Has there been a fraud or concealment? If so who concealed what from whom? Was there a special relationship between the defendants and the plaintiff? It is easier to answer the latter question in the affirmative: the first and second defendants as personal representatives of their father did have a special relationship with the plaintiff.
What did they aver? That there was no severance of the tenancy before the death of the other Maureen Moore? Did they conceal thereby that the plaintiff was possibly alive?
While fraud has been alleged it has to be examined in terms of two letters in 1996, from the first and second named defendants’ solicitors to Vincent Hoey and P.C. Moore seeking the address of the plaintiff. Furthermore, there was a letter to nursing homes and to whom the first and second named defendants made enquiries.
The Court agrees that the plaintiff’s cause of action was not based on the fraud of the defendants. Moreover, the cause of action was not concealed by the fraud of any such person. The plaintiff could, at any time, by using any reasonable diligence have ascertained years earlier that the said John Moore was dead.
I am satisfied from the evidence that they did attempt to ascertain the whereabouts of the plaintiff. They may have been less than thorough in identifying the Maureen Moore who died the year before their father with the plaintiff, their foster mother. Notwithstanding, there was no evidence of fraud or concealment.
The fraud alleged, which is against the first and second named defendants in relation to the procurement of the death certificate of the Maureen Moore who died on the 21 st January, 1995, is accordingly, not established.
The first and second named defendants contended that the title of the plaintiff to any estate or interest in the premises was statute barred long before they located the death certificate. There was no issue of fraud before obtaining the death certificate.
The plaintiff had left and remained out of upwards of twelve years from the premises and, accordingly, s. 21 of the Statute of Limitations 1957, applies.
The plaintiff says that her dispossession of the property was caused by the conduct of the deceased. She was acknowledged as a deserted wife.
Moreover, the plaintiff submits that the first and second named defendants are estopped by their conduct in relation to the averments in the Inland Revenue Affidavit, that the joint tenancy was not severed until the death of the other Maureen Moore.
However, the defendants say that the plaintiff is a stranger to the estoppel in the declaration. It is not a statement of fact communicated to the representee which determined a change of position by the plaintiff.
There was no acknowledgment by the deceased of the plaintiff’s rights in or over the house such as to apply s. 55 of the Statute.
Adverse possession by spouses would appear to be in a different category from adverse possession by others, including squatters. Keelan v Garvey [1925] 1 I.R. 1 is authority for the rule a person cannot be in adverse possession to his or her spouse, even where there has been desertion.
In that case, the plaintiff had inherited lands from his father in 1896, and had married in 1897. Following quarrels with his wife, left the farm later that year and did not return until 1923 after the death of his wife. His wife had continued to reside at and manage the farm until her death. She had an agreement for the purchase of the holding under the provisions of the Irish Land Act 1903. In 1909 the holding was vested in her by fiat of the Land Commission and she was registered in the Land Registry as owner and fee simple, subject to equities which were later, on her application, cancelled.
His wife had, by her will, devised and bequeathed the farm to her brother. The plaintiff claimed to be beneficially entitled to the farm.
The Supreme Court (Kennedy C.J., O’Connor and FitzGibbon J.J.) held that the plaintiff never ceased to be in possession of the farm, that his wife never entered into possession adversely to him; that she was provided with the residence and with support on his farm in fulfilment of his marital obligations; and that the Statute of Limitations never ran against him. Accordingly his wife’s executor was the trustee of the legal estate for him. It was held that the register should be rectified accordingly.
In that case, Mrs. Keelan was not a joint tenant. Her only entitlement was to right of residence. Before she died she was in occupation as spouse and not as a joint tenant.
Keelan v. Garvey was considered almost twenty years later in Re. Daily [1944] N.I.1 and both cases are commented on by Lyall, “Land Law in Ireland” 3 rd Ed. 2010.
The owner of registered lands lived on the lands with his wife and two children until 1928, when, owing to disagreements with his wife, he left with her approval and lived elsewhere without making any claim or without any acknowledgment of right.
The Court of Appeal held that but for the provision of the Local Registration of Title (Ireland) Act 1891, the right of the registered owner would be statute barred.
In the present case the plaintiff was joint tenant. Her husband could not have been in adverse possession to her legal entitlement.
Moreover, the first and second defendants are estopped from denying that the joint tenancy had severed. While there was no evidence of fraud or concealment there was clearly a mistake as to the identity of the Maureen Moore who died the year before their father. The court is satisfied that within a year after the plaintiff became aware of her husband’s death, when she was so informed by his brother in 2006, she commenced proceedings.
It is then necessary, absent fraud or concealment, to examine the effects of the first and second named defendants’ mistake.
“Section 72 of the Statute of Limitations 1957 states as follows:”
2 72(1) Where, in the case of any action for which a period of limitation is fixed by this Act, the action is for relief from the consequences of mistake, the period of limitation shall not begin to run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it.
(2) Nothing in subsection (1) of this section shall enable any action to be brought to recover, or enforce any charge against, or set aside any transaction affecting, any property which has been purchased for valuable consideration, subsequently to the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake was made.
Wylie (Fourth Edition) at 23.25 comments on s. 72 of the Statute of Limitations as follows:
“…the general rule is that mistake does not stop time running ( Re Jones’s Estate [1914] 1 I.R. 188) and squatter’s rights are often acquired by such means, e.g., where neighbouring landowners make a mistake as to where the boundary lies between their adjoining lands. However, where the action in question is for relief from the consequences of mistake, time does not run until the plaintiff discovers the mistake, or could have done so with reasonable diligence. (Statute of Limitations 1957, s 72(1)). In the case of land, relief for mistake usually involves an application for equitable relief, i.e., rescission or rectification, and as such is not subject to the statute of limitations anyway. Like all equitable relief, on the other hand, it is subject to the doctrine of laches.”
Brady & Kerr at pages 196 – 198:
“Time does not begin to run until the plaintiff has discovered his mistake or could have discovered it with reasonable diligence. The language of s. 72(1) is narrower in scope than that in s. 71(1) and it is the fact of a mistake and not its concealment which gives rise to the equitable relief. Caselaw suggests that the mistake must be an essential ingredient to the cause of action.”
While Brady and Kerr refer to the plaintiff’s mistake, nothing in the provision would suggest that it is restricted to a mistake on the part of the plaintiff.
In Phillips-Higgins v Harper ( [1954] 1 QB 411) it was held that the equivalent English provision is limited to cases where mistake forms part of the cause of action, but does not extend to cases where the plaintiff was mistaken as to, or ignorant of, his rights (Canny, Limitation of Actions at 10-23). The mistake of the first and second defendants was the receipt and use of a death certificate of a different person by the name of Maureen Moore in or around 2001/2002. The joint tenancy was not severed by the time the other Maureen Moore died on 21 st January 1995, it was still not severed by the time Mr Moore died in 1996.
Would s. 72 of the Statute of Limitations have applied in these circumstances? Brady and Kerr in “The Limitations of Action” (2 nd Ed. 1994) state that the mistake must be an essential ingredient to the cause of action. As a result of the receipt and use of the incorrect death certificate, the Folio was changed and the property sold after the Grant of Letters of Administration was obtained. This prevented the plaintiff asserting her rights (s. 72(2) also supports this), because of the right of the third defendant and that of her bank.
A consequence of the first and second defendants’ mistake was that the plaintiff was not located and contacted on her late husband’s death. The first and second named defendants acknowledge in the Inland Revenue Affidavit (sworn on the 12 th March 2001) that the plaintiff was his spouse. However in pleadings they refer to her “alleged widowhood” and state that they do not admit that she was his widow and that they require proof of same. If those defendants had not made the mistake in relation to the death certificate, and had located the plaintiff, she would have been able to attempt to assert her rights at that stage.
The court is satisfied that the joint tenancy was not severed by the time Mr Moore died, twelve years have not passed from the date of his death because time has ceased to run on the 11 th year with the issuing of the summons.
There were two consequences of the mistake: the Folio was amended, and the plaintiff was not told about her estranged husband’s death. The plaintiff would have been the party to take out the grant of letters of administration, or alternatively to renounce her right to do so. There is no indication in the papers before the court as to what the personal representatives (the first and second defendants) swore in the Oath of Administration Intestate, which is the document setting out the correct history of entitlement of the applicant to extract the Grant.
If the plaintiff was not statute barred, the defendants’ mistake resulted in the plaintiff not getting the property which was the subject of the joint tenancy on survivorship, because severance had not occurred. However, if she was statute barred, the joint tenancy was severed and it was solely Mr Moore’s, the property would go into his estate and she should become entitled to her legal share of his estate under the Succession Act 1965, as he died intestate. Therefore the defendants’ mistake resulted in the plaintiff not being able to take out the grant of letters of administration and she did not get her legal share of her late husband’s estate (the property having gone back into his estate by reason of her having become statute barred and the joint tenancy being severed). For this reason it would seem that there might be an entitlement to damages and costs.
Personal representatives are not only obliged to perform their duties but to perform them diligently or at least prudently. The duty of diligence that a personal representative owes to creditors and beneficiaries commences from the date of the grant, and continues while gathering in and preserving the assets and when administering and distributing the estate among the persons entitled. (See Keating on Probate at 17 -01)
6. The Position of the Third Named Defendant
Even if the first and second named defendants were estopped from raising the Statute of Limitations against the plaintiff, no estoppel arises against the third named defendant who is entitled to rely upon the Statute.
Moreover the register is conclusive evidence of title. If the plaintiff sustained loss as result of fraud then the plaintiff may be entitled to compensation under the provisions of s. 120 of the Registration of Title 1964.
The plaintiff is not entitled to any order under s. 31 of the Registration of Title Act 1964, rectifying the register in circumstances where the third named defendant was a bona fide purchaser for value without notice of the alleged fraud
Moreover, the present registered charge holder, Ulster Bank Ireland Limited, is also a bona fide purchaser for value without notice of the alleged fraud.
The court is satisfied that estoppel cannot apply, particularly in relation to the third named defendant, but also in relation to the first and second named defendants as the plaintiff is a stranger to the estoppel in that no communication was made to her.
In relation to the third named defendant the registration of title is, pursuant to s. 31(1) of the Registration of Title Act conclusive evidence of the title of the owner to the land as appearing on the register. This is further strengthened by the provisions of s. 55, which deems the instrument of transfer to operate as a conveyance by deed within the meaning of the Conveyancing Acts.
Moreover, the repudiation of a contract is impossible where third parties have intervened and acquired rights thereunder for value. As a bona fide purchaser for value, the third named defendant had charged the property to Ulster Bank Limited, who is not a party. The charge held by the bank cannot be rescinded or removed.
The court refuses the plaintiff’s claim as against the third named defendant.
The court will hear the parties regarding the issue of damages resulting from the mistake which deprived the plaintiff of her interest.
A. D. M. Mersey Plc v Bergin
[2020] IEHC 3
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr. Justice AllenThe arguments
14
Intriguingly, Mr. Buttanshaw, having so framed the issue, submits that it makes no difference whether they can or cannot sever their joint tenancy. If the severance of a joint tenancy after registration of a judgment mortgage against the interest of one of the joint tenants is not wholly ineffective against the judgment mortgagee, he argues, it is effective to confer on the judgment mortgagee security over the interest of each of the tenants in common after severance.
15
The argument is based on three propositions. The first is that as joint tenants James Bergin and his father each owned the entire of the lands rather than either a defined or identifiable portion, or a defined fraction. Reference is made to the definition of a joint tenancy in Megarry & Wade The Law of Real Property (9th Edition) at para. 12-002 and 12-003: –
“A gift of lands to two or more persons in joint tenancy is such a gift as imparts to them, with respect to all other persons than themselves, the properties of one single owner. Although as between themselves joint tenants have separate rights as against everyone else they are in the position of a single owner. The intimate nature of joint tenancy is shown by its two principal features, the right of survivorship and the ‘four unities’… .
It is often said therefore that each joint tenant holds nothing and yet holds the whole together with the other.”
16
I accept the short passage relied on as a correct statement of the law. As to the submission on behalf of the plaintiff, I think that it is more correct to say that, as against the world, the two joint tenants both, rather than each, own the entire of the lands.
17
The second proposition is that after an effective severance of a joint tenancy, as between the two joint tenants, each co-owner owns an equal undivided moiety of the property. That is correct. “In other words”, it is said, “following severance each joint tenant no longer owns the whole of the common property but only a defined fraction thereof”. With respect, I do not believe that the suggested alternative formulation is truly an alternative formulation, or that it is correct. It is certainly correct to say that each of the two tenants in common, are as between themselves, entitled to an undivided moiety but together they both own the whole.
18
As Prof. Wylie explains in the 5th edition of his work on Irish Land Law at para. 8.03: –
“In the case of both a joint tenancy and a tenancy in common, the land held by the persons concerned is held by them concurrently, so that as far as third parties are concerned the co-owners of the land must be treated a single unit for the purpose of certain transactions in respect of the land.”
19
Mr. Buttanshaw’s third proposition is that since it is the case that a co-owner owns the whole of the property before severance and only half after, it necessarily follows that the act of severance is an alienation by each to the other of an equal undivided moiety. It is here, in my view, that the argument breaks down: or, perhaps, fails to come together. The first proposition looks at a co-ownership from the point of view of everyone else, but the second from the point of view of the co-owners. As is clear from the short passage cited from Megarry & Wade, joint tenants, between themselves have separate rights so that the effect of severance is to convert the joint tenancy into a tenancy in common, specifically by destroying the right of survivorship.
20
It seems to me that the third proposition on which the plaintiff’s argument is based fails to recognise the difference between those two points of view. Moreover, the proposition that severance involves alienation to the other joint tenant fails to take account of the fact that until 2009 a joint tenancy could be severed unilaterally by the acquisition by one of the joint tenants of a further interest in the property or by the alienation by the joint tenant of his interest to a third party, or of the fact that a joint tenancy is severed by the simultaneous death of the joint tenants, or by the bankruptcy of one of the joint tenants. While the effect of severance is that each of the co-owners will have a different interest in the land (as against the world as well as inter se), it does not follow that each or either has obtained anything at all, still less his entire interest in the land, from the other. After as well as before the severance, the co-owners will hold their interest from the original grant.
21
It is submitted on behalf of the plaintiff that the registration of a judgment mortgage “captures the whole of the property which is held on a joint tenancy”. I cannot agree. All that it can capture is the judgment debtor’s interest in the property. It is well and long settled that a judgment mortgage is a process of execution. See for example Re Strong [1940] IR 382.
22
Prior to the operative date of the Land and Conveyancing Law Reform Act, 2009, a judgment mortgage against unregistered land, because it took effect as a mortgage, severed a joint tenancy but a judgment mortgage against registered land, because it operated as a charge, did not. This had the effect that a judgment mortgage registered against the interest of a joint tenant in registered land was extinguished on the death of the judgment debtor: Mahon v. Lawlor [2011] 1 I.R. 311. And that a judgment mortgagee of registered land did not have a sufficient interest in the land to give him locus standi to maintain an action for partition: Irwin v. Deasy [2011] 2 I.R. 752.
23
It made no sense that the rights of judgment mortgagees and joint tenants, or surviving joint tenants, should depend upon the accident as to whether the title to the property was registered or unregistered, and the two were brought into alignment by the Act of 2009, since when a judgment mortgage will operate as a charge against both unregistered and registered land, and a judgment mortgagee (although he is not) is treated as a “person having an estate or interest in land” so as to be amongst those who may apply for an order under section 31.
24
Section 30 of the Act of 2009 substantially restricts the circumstances in which a joint tenancy can be severed. Section 30 provides: –
“30 – (1) From the commencement of this Part, any –
(a) conveyance, or contract for a conveyance, of land held in a joint tenancy, or
(b) acquisition of another interest in such land,
by a joint tenant without the consent referred to in subsection (2) is void both at law and in equity unless such consent is dispensed with under section 31(2)(e).
(2) In subsection (1) ‘consent’ means the prior consent in writing of the other joint tenant or, where there are more than one other, all the other joint tenants.
(3) From the commencement of this Part, registration of a judgment mortgage against the estate or interest in land of a joint tenant does not sever the joint tenancy and if the joint tenancy remains unsevered, the judgment mortgage is extinguished upon the death of the judgment debtor.
(4) Nothing in this section affects the jurisdiction of the court to find that all the joint tenants by mutual agreement or by their conduct have severed the joint tenancy in equity.”
25
Prof. Wylie at paras 8.29 and 8.30 traces the legislative history of s. 30 of the Act of 2009 which explains the uneasy concept of unilateral severance by one joint tenant with the prior written consent of all the other joint tenants, save where the joint tenant wishing to sever has applied for and obtained an order dispensing with the consent that has been unreasonably withheld. Significantly, for present purposes, the scheme of the legislation appears to me to be to limit the exercise of what theretofore had been a right, rather than to abrogate the right altogether. The unilateral severance does not strictly speaking require the co-operation of the other joint tenants but merely their consent. The other joint tenants must nowadays agree to it, but the severance is still effected by the act of the one.
26
I pause here to deal with one element of the argument made by Mr. Kennedy on behalf of the estate of Mr. Kieran Bergin, which is that the Oireachtas could not have intended that if the non-debtor dies before the debtor, that the debtor will become entitled to the whole of the property by survivorship and that consequently the judgment mortgage will attach to the whole of the property and not just his undivided share. It is submitted that if the legislation envisaged a creditor receiving what is said to be a a windfall of this nature, it would have expressly provided for this. The immediate policy behind s. 30(3) may very well have been to align the position of a surviving non-debtor joint tenant of unregistered land with that of a surviving non-debtor joint tenant of registered land but it seems to me that that alignment necessarily aligned the position of surviving debtor joint tenants. On the death of the non-debtor joint tenant the debtor takes the entire interest in the land by survivorship, and the judgment mortgage is not extinguished. Logically, the judgment mortgage remains in force against the enlarged interest of the judgment mortgagee. In consequence, as Mr. Buttanshaw submits, if nothing is done after a judgment mortgage has been registered against the interest of one of the joint tenants, the judgment mortgagee may come to have security over the entire of the lands, or no security at all, depending on which of the joint tenants dies first. It was against that eventuality that the plaintiff might come to have security against the whole of the lands that Mr. Kieran Bergin sought to make provision by the deed he executed on 8th May, 2013.
27
Section 30, sub-s. 3, expressly contemplates that a joint tenancy may be severed after the registration of a joint mortgage and before the death of judgment debtor. Clearly this could be the effect of an order under s. 31 or s. 117, including an order under s. 31(2)(e) dispensing with the consent of one or more joint tenants, where such consent has been unreasonably withheld: but the issue raised in this case is whether the joint tenancy may be severed by what has been referred to in argument as the “innocent” joint tenant but what the old cases call the “companion” joint tenant, with the consent of the judgment debtor.
28
It is acknowledged on behalf of the plaintiff that during the life of the judgment debtor the companion joint tenant as well as the judgment mortgagee may apply to court for an order under section 31. Unless and until such an order is sought and obtained, it is submitted, all are to be taken as rolling the survivorship dice.
29
In this case, the game might have commenced on 16th July, 2010 when the plaintiff recovered an enforceable judgment and its right of action accrued. The potential players were the judgment debtor, who could not win; an octogenarian retired farmer and shopkeeper of limited resources whose son was in serious financial difficulties; and a public limited company which had twelve years to cast the dice which might roll for many years before finally coming to rest. Mr. Kieran Bergin did not want to play. Neither did the plaintiff, for it applied to the court on 15th July, 2015 for an order for sale of the lands. If Mr. Bergin, whose interest in the land was potentially at stake, had been named as a defendant and had been before the court on 20th June, 2016 when the well charging order was made, the plaintiff’s claim for an order for sale and division of the proceeds could have been dealt with.
30
In principle, the registration of the judgment mortgage was a process of execution against the interest of Mr. James Bergin in the lands and did not affect the interest of Mr. Kieran Bergin. The effect of s. 30(3) was that Mr. Kieran Bergin’s share was on the hazard unless and until the joint tenancy was severed, but if the plaintiff is correct, the only means by which it could have been severed was a court order for the sale of the lands and division of the proceeds.
31
It seems to me that s. 30(4) clearly contemplates severance otherwise than by an order for sale: specifically by the unilateral act of one of the joint tenants, subject to the prior consent in writing of the other or others, unless dispensed with by court order. Moreover, s. 30(4) is specifically directed to cases in which a judgment mortgage has been registered against the interest of one of the joint tenants, but not the others. The only consent requires is that of the other co-owners, and not the judgment mortgagee. In my opinion, the proposition that the only means by which Mr. Kieran Bergin could have avoided the risk that Mr. James Bergin would become entitled to his share was to obtain an order for sale and division is inconsistent with the express power in s. 31(1)(e) to make an order dispensing with consent to severance without making an order for sale. It does not make sense to me to contemplate that the availability to an innocent or companion joint tenant of the option to sever would depend upon the unreasonable withholding of consent by the judgment mortgagor.
32
In support of his third proposition, Mr. Buttanshaw relies on Lord Abergavenny’s case (1604) Pasch. 5 Jacobi, which was referred to by Finnegan J. in his judgment in Mahon v. Lawlor [2011] 1 I.R. 311. That was a case in which one of two joint tenants, against whom judgment had been obtained, released to her companion before execution. On the later death of the debtor, the survivor was found not to take discharged of execution because she had taken by the release and not by survivorship, which had been taken away by the release.
33
It is submitted that the effect of the decision in Lord Abergavenny’s case is that a judgment debtor joint tenant cannot by his own act put the interest he or she held in the land beyond the reach of the judgment creditor. I agree. I do not, however, accept that the effect of the deed of 8th May, 2013 was a release by Mr. Jim Bergin of an equal undivided moiety of the interest which he held. Nor do I accept that the object or effect of that deed was to put the interest which Mr. Jim Bergin had in the lands beyond the reach of his creditors. Rather the common intention of the owners was to put the interest of Mr. Kieran Bergin beyond the reach of the plaintiff. I can see nothing whatsoever wrong with that.
34
The deed of 8th May, 2013 was in form a transfer from Kieran Bergin and James Bergin, as joint tenants, to themselves as tenants in common but the declared purpose of the instrument was to effect a severance of their joint tenancy and the instrument has been referred to in the defendants’ written submissions and in argument as a deed of severance. The substance of the transaction was not that either divested himself of anything, or transferred anything to the other, but that the joint tenancy was converted to a tenancy in common. Before and after the transaction, the interest of Mr. James Bergin was subject to the judgment mortgage in favour of the plaintiff, but the interest of Mr. Kieran Bergin was not. Nothing passed from Mr. James Bergin to Mr. Kieran Bergin to which the judgment mortgage might have been attached.
35
The submissions on behalf of the defendants are more straightforward and focus on the effect of the deed of 8th May, 2013 in equity.
36
As a matter if law, it is said, a judgment mortgage is a process of execution. Reference is made to Containercare v. Wycherley [1982] I.R. 143 and Goodbody Pensioneer Trustees v. Hevac [2019] IEHC 114. That is well established.
37
The judgment mortgage attaches to the interest of the judgment debtor at the time of registration. It does not attach to future or contingent interests. Reference is made to Re: Rae’s Estate (1877) L.R. Ir. 174, Tempany v. Hynes [1976] I.R. 101, and Goodbody Pensioneer Trustees v. Hevac [2019] IEHC 114. I accept the submission as a correct statement of law, but I disagree with the premise of the submission which is that the right or prospect of survivorship of a joint tenant is a future or contingent interest in land. Rather, as I understand the law, the possibility of survivorship is an incident of the joint tenancy.
38
Mr. Dermot Cahill, for Mr. James Bergin, and Mr. Kennedy. for the interests of Mr. Kieran Bergin, submit that it is clearly established that joint tenants may agree to hold as tenants in common and that effect will be given to such a contract. So it is.
39
Section 30(4) of the Act of 2009 expressly preserves the long established jurisdiction of the court to find that all the joint tenants by mutual agreement or by their conduct have severed the joint tenancy in equity.
40
Wylie at para 8.42 notes that:-
“… Apart from [severance by a contract to alienate] there is no reason why the joint tenants should not enter into a contract that thenceforward they should hold as tenants in common, and equity will give effect to such a contract. Indeed, the joint tenants may not even formalise their agreement to that extent. There is ample authority in Ireland to the effect that equity will infer such an agreement from the joint tenants’ conduct, eg, where they seem to have treated their interests in the property as severed over a substantial period of time. This equitable jurisdiction to find that a severance based on mutual agreement or conduct of all the joint tenants was expressly saved by s. 30(4) of the Land and Conveyancing Law Reform Act, 2009.” [The emphasis is that of Prof. Wylie]
41
Mr. Cahill, leaving nothing to chance, went back to the authorities relied on by Wylie, in particular Williams v. Hensman (1861) 1 J & H 546, 70 E.R. 862, in which Page-Wood V-C is reported as saying:-
“A joint tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his share may create a severance as to that share. The right of each joint-tenant is a right of survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund – losing, of course, at the same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.”
42
In this case, it is said, Mr. Kieran Bergin and Mr. James Bergin agreed to hold as tenants in common and executed a deed accordingly. So they did. That being so, it seems to me that any issue as to the effect of the deed in law evaporates and the issue becomes whether there was any impediment to Mr. James Bergin consenting to the severance in equity.
43
It is accepted by Mr. Buttanshaw that the effect of the registration of the judgment mortgage was to charge the interest of Mr. James Bergin, only, in the land. The interest of Mr. Kieran Bergin in the lands was unaffected, as were his rights attached to that interest: one of which was the right, circumscribed as it was, to unilaterally sever the joint tenancy, another of which was to apply to the court for an order under s. 31, and yet another of which was to agree a severance. If Mr. Kieran Bergin, at the age he was, wanted to sever the joint tenancy with a view to his interest in the lands passing to his grandchildren rather than his son’s creditors, that, it seems to me, was perfectly reasonable. If Mr. James Bergin has withheld his consent, his father might have applied to court for an order dispensing with that consent and I cannot think of any reason why such an order, if required, would not have been made. If the judgment mortgagee of Mr. James Bergin’s interest would have been entitled to be heard on any such application (and I do not say that it would) I cannot think that the plaintiff would have been heard to say that it wanted to lock down Mr. Kieran Bergin’s interest in an unwilling game of survivorship roulette. The difficulty in this case, however, would have been that Mr. Kieran Bergin could not have invoked his right to apply for an order dispensing with consent because it was forthcoming. If Mr. Kieran Bergin had applied to court for an order for the sale of the lands and division of the proceeds, that would have matched precisely what the plaintiff wanted.
44
In my view, there was no impediment in law or in equity to the Messrs. Bergin agreeing that thenceforth they would own the lands as tenants in common rather than as joint tenants. This, as a matter of law, changed the nature of Mr. James Bergin’s interest in the lands, but he did not divest himself of anything or pass anything to Mr. Kieran Bergin.
45
I find that Mr. Kieran Bergin and Mr. James Bergin by the deed they executed on 8th May, 2013 severed their joint tenancy by mutual agreement.
46
It will have been noted that there was a long delay in registering the transfer. Mr. David Doyle, solicitor, who acted for Mr. Kieran Bergin at the time of execution of the deed has confirmed that it was executed on the date for which it is dated and that the reason for the delay in registration was that he was not in funds for the necessary outlays. Whatever the actuarial prospects of survivorship may have been, the effect of the deed was to crystallise the rights of the plaintiff as well as Mr. Kieran Bergin. Counsel are agreed that the fact that the deed was executed before, but registered after, the well charging order was made makes no difference. The issue is whether there was any impediment to the severing of the joint tenancy by agreement at any time between the registration of the judgment mortgage and the death of whichever of the co-owners who might first die or the making of an order for sale under section 31. In my view there was not.
Conclusions
47
There will be an order pursuant to O. 15, r. 13 of the Rules of the Superior Courts joining Eimear Bergin and Ciaran Bergin, as legal personal representatives of Kieran Bergin, as defendants.
48
The judgment mortgage registered by the plaintiff on 9th September, 2010 against the interest of the first defendant in the lands in Folio 7642, County Kilkenny, did not affect the interest of Mr. Kieran Bergin, who was at that time a joint tenant.
49
The judgment mortgage did not attach to the lands, but only to the judgment mortgagor’s interest in the lands: which was an undivided share as joint tenant with his father.
50
The judgment mortgage did not sever the joint tenancy but neither did it affect the right of Mr. Kieran Bergin to sever the joint tenancy, or the right of Mr. James Bergin to consent to such severance or to agree to severance. Nor, since it took effect as a charge, did the judgment mortgage affect Mr. James Bergin’s ability to deal with his interest.
51
The deed of 8th May, 2013 was effective to sever the joint tenancy.
52
The effect of severing a joint tenancy, in law and in equity, is not to convey or transfer the interest, or any part of the interest, of either co-owner to the other but to convert the undivided share of each joint tenant into an undivided moiety in the lands.
53
The right, or prospect, or possibility, of survivorship is not a future or contingent interest in land but an incident of joint tenancy.
54
Before severance, the plaintiff’s judgment mortgage was attached to the undivided share of Mr. James Bergin. After severance, it was attached to his undivided moiety and it is to be satisfied out of that interest.
Folio 7642, County Kilkenny, correctly shows each of Mr. Kieran Bergin and Mr. James Bergin as the owners as tenants in common of one undivided half share, and that the interest of James Bergin is subject to a judgment mortgage in favour of the plaintiff.
Cullen v. Cullen
Estoppel Licence
[1962 IR 269
Kenny J.
John Cullen, began his career in business as a shop assistant in Enniscorthy. He prospered and established his own shopkeeping business in which he sold boots, shoes and groceries: he also bought a farm near Enniscorthy. He was married in November, 1928, when he was forty-seven and his wife was twenty-three. There were five children of the marriage, Sean, who was born on the 2nd September, 1929, Martin, Liam, Patrick and Joseph. Joseph has never been in good health and has been away from home for a number of years. After the marriage, Mrs. Cullen helped her husband in the business at Enniscorthy by keeping the books and helping in the shop.
The plaintiff’s business continued to prosper and in April, 1944, he purchased for £6,890 premises at Adamstown to which an intoxicating liquor licence was attached. The premises purchased consisted of a bar, a grocery shop, a store, living accommodation and about 60 acres of land. The family moved from Enniscorthy to Adamstown and have lived there since 1944. The plaintiff retained his business in Enniscorthy which was conducted by a manageress.
In 1945, the eldest son, Sean, left school and went to work in the business: in 1946, the second son, Martin, left school and he too went to work in the business. In 1946, Sean won a prize of £6,250 in a sweepstake but did not receive the money until he was 21 years of age.
From the time that the family moved to Adamstown there were quarrels between them: although it was not a happy household there were not any serious disputes until 1949. I am satisfied that relations between the plaintiff on the one side and Mrs. Cullen and the children on the other got progressively worse from 1945, that there had been numbers of quarrels before 1949 and that from the time that Sean and Martin began to work in the business their father was suspicious of them. In 1949, when Sean was nearly twenty, he came home from a dance at three o’clock in the morning and was told by the plaintiff to go away and not to come back. He remained away for two or three weeks and returned when his mother told him that the plaintiff wanted him to come back.
In 1951 the plaintiff went to Dublin for a serious operation and remained there for about six months. He left his wife to run the business (which had an annual turnover of about £10,000) but left £20 in cash only for the financing of the business. The plaintiff was the only person with authority to draw cheques on the bank account used in connection with the business, and when Mrs. Cullen wanted to pay some debts due to suppliers she sent the cheques to the plaintiff in Dublin for signature: the plaintiff sent her a reply that the accounts were to be paid out of the cash takings of the business or by money order. This happened at a time when the customers of the business were likely to be seeking credit.
Mrs. Cullen got a loan of £700 from a friend and opened a bank account in her own name and, when her husband returned in the spring of 1952, this loan was repaid.
When the plaintiff returned, the disputes and quarrels began again. In May, 1952, there was a quarrel between the plaintiff and Sean as a result of which Sean left and went to Dublin where he remained for three weeks. He returned at his mother’s request. About this time the plaintiff began to accuse his wife and children of robbing him and made this accusation to a number of customers who were in the shop. Martin Cullen asked a Mr. Lawton who was the accountant of the business to see his father and an interview took place between them in June, 1952. Martin was worried about these charges as his father was in charge of the cash in the business and he thought that his father would try to show a loss in the business so that the view that he was being robbed would be confirmed. When the accounts were completed at the end of 1952, they showed a substantial drop in profits. When the accounts had been received by the plaintiff a further discussion between the plaintiff and Mr. Lawton took place and the plaintiff subsequently told Martin that there would have to be a big change in the running of the business as so much money had gone astray. Unfortunately none of the accounts of the business for any period prior to June, 1959, were given in evidence, and although I indicated at the end of the evidence that I thought that they would be of assistance counsel for the defendants objected strenuously to any of them being handed in.
Patrick had left school in the summer of 1953 and wanted to go to a university: his father was strongly opposed to this as he wished him to go into the business. Sean had got his sweepstake prize and he offered to pay Patrick’s university fees and to provide him with money to enable him to stay in Dublin. Patrick went to University College, Dublin, in the autumn of 1953 and returned to Adamstown for the Christmas vacation about the 20th December, 1953. On the morning of the 25th December, 1953, the plaintiff told Sean and Patrick that they were to leave because they had disobeyed him; the disobedience was that Patrick had gone to University College, Dublin, and Sean had provided the money for him to do this. Mrs. Cullen made some reference to the day and thereupon the plaintiff ordered all the family to go. Some two weeks afterwards the plaintiff sent a message to them that he would like them to return and all except Sean returned. Sean went to Dublin for some time and subsequently bought a grocery and bar business and a farm some five or six miles from Adamstown. He has continued to deal with the shop at Adamstown. For some time before Sean left, relations between his father and him were extremely bad; they did not have meals together and hardly ever spoke to each other.
In June, 1954, Martin left Adamstown because of some quarrel with the plaintiff and stayed in Dublin until August when he was asked by Mr. Lawton to return and a Father Scallan brought him a message that his father wished him to return. There was a meeting between the plaintiff and Martin at which a new arrangement for the running of the business was worked out. Martin was to be the manager of the business, was to make his own arrangements for the employment of a staff and the ordering of goods and was to have complete control of it except that the plaintiff was to sign the cheques. This arrangement came into force in January, 1955, and worked reasonably well for some time. A new bank account was opened to which the plaintiff lodged £500 and the business seems to have prospered. However, in 1956, the plaintiff began to refuse to sign cheques and, as many of the goods supplied to the shops came from suppliers who insisted on cash on delivery, the running of the business became difficult. Father Kehoe, the local curate, intervened successfully on a number of occasions and persuaded the plaintiff to sign cheques. In 1957 the plaintiff had a number of quarrels with customers in the shop; these were not serious but they showed that the plaintiff wanted to assume the management and to end the arrangement under which Martin was managing the business. Discussions took place between the plaintiff and Martin and it was agreed that Martin’s management would end in January, 1958, and that the plaintiff would pay him £3,500 as a reward for the way in which he had managed the business: this sum was, I think, intended to be a share of the profits which had been made by Martin. Martin bought a farm, called “Coolnagreina,” near Adamstown, for £2,050 with the money which the plaintiff had given him but he continued to live in the premises at Adamstown. The plaintiff did not approve of the purchase of the farm and Martin had been singularly tactless in not consulting him about the purchase. Despite this the relations between them from January, 1958, until March, 1959, seem to have been reasonably good.
The plaintiff took over the management of the business in January, 1958: Mrs. Cullen still worked on the books and did a certain amount of ordering. The plaintiff managed the business without any serious incident until the beginning of 1959 when he refused to order flour or meal and left the business without these for some weeks: he also told a firm who were regular suppliers of the business that goods which they brought to the premises for delivery were to be taken away. In March, 1959, he dismissed an assistant and about this time Mrs. Cullen asked a Dr. Gilroy to see her husband. She complained to him that her husband was interfering in the running of the business, that he was insulting customers and that he was preventing the wholesalers from supplying goods. The plaintiff had not been seen by Dr. Gilroy before this and one of the mysteries of this case is why Mrs. Cullen asked Dr. Gilroy to see her husband and did not consult Dr. Murphy, his regular medical attendant. Dr. Gilroy saw the plaintiff on the 26th March, 1959. In the course of the interview the plaintiff said that he was going to run his business himself and that his wife and family were robbing him. Dr. Gilroy’s attempts to persuade the plaintiff to see a psychiatrist or to accept treatment failed. Throughout the interview the plaintiff emphasised that he was not interfering with anybody and, as proof of this, told Dr. Gilroy that he prayed for everybody and that he had composed a prayer which he recited to Dr. Gilroy.
In April Dr. Gilroy was again requested by Mrs. Cullen to see her husband. She had told him that Dr. Murphy was the plaintiff’s regular medical attendant and Dr. Gilroy spoke to Dr. Murphy. Dr. Gilroy saw the plaintiff on the 9th April and the interview was similar to that of the 26th March; the plaintiff showed considerable hostility to his family and was not prepared to submit himself to treatment. Some time after this the plaintiff was, at Dr. Gilroy’s suggestion, seen by a Dr. Condon, who specialises in mental illnesses. Dr. Condon wished to see the plaintiff a second time and saw him with Dr. Gilroy at the end of April. Dr. Condon suggested that a temporary private patient reception order under s. 185 of the Mental Treatment Act, 1945, should be made and, according to Dr. Gilroy, said that the plaintiff should be given a sedative and removed from Adamstown. Dr. Gilroy’s view was that the plaintiff was suffering from a paranoid illness. It is necessary to emphasise that the doctors who gave evidence drew a distinction between a paranoid illness and the condition known as paranoia. Their evidence was that a paranoid illness is a social illness in which the patient believes that people are ill-disposed towards him: it involves delusions and false judgments and is frequently characterised by suspicions held by the patient that his family are trying to ruin him. In this illness the reasoning powers are intact but impaired on some subjects. In paranoia, on the other hand, the patient has a number of systematised delusions which are unshakable: the paranoic is rational on all matters except on those on which he has the inflexible delusions. It is a form of insanity and is incurable.
In the first week in June, Dr. Gilroy asked Dr. Vincent Crotty, the resident medical superintendent of the Mental Hospital in Waterford, to see the plaintiff. Dr. Crotty first interviewed Mrs. Cullen who told him that she believed that her husband was mentally ill, that he believed people were plotting against him and were plotting to take his property from him. Dr. Crotty saw the plaintiff on the 5th and 6th June. On the first occasion Dr. Gilroy was present and, I think, signed the certificate certifying that the plaintiff was suffering from mental illness and required not more than six months’ treatment. Dr. Crotty thought that the plaintiff had an emotional disturbance sufficient to be called a mental illness; the plaintiff repeated to him the accusations against his family and Dr. Crotty was struck by the fact that he seemed to have no human feeling for them. The doctor thought it advisable that Mrs. Cullen should have somebody in the house with her when the plaintiff was there as he thought that there was a risk that the plaintiff would become violent. Dr. Crotty was also of opinion that the plaintiff required treatment and telephoned to Waterford to arrange for the attendance at Adamstown on the next day of two Brothers of the Order of St. John of God who were to remove the plaintiff. Dr. Crotty saw the plaintiff again the next day and the interview followed the same course as that of the 5th June except that Father Kehoe came to the interview at the plaintiff’s request. Father Kehoe was strongly opposed to the removal of the plaintiff to a mental hospital and said that the cause of the plaintiff’s trouble was not his mental attitude but the attitude of his wife and children to him and that that would still be there when the plaintiff came back after treatment. Father Kehoe gave evidence that Dr. Crotty said that the plaintiff was a paranoic: Dr. Crotty denied most strenuously that he said this and I think that Father Kehoe is confusing this interview with some other meeting. Dr. Crotty then signed either the medical certificate or the order and gave it to the Brothers. Neither the medical certificate nor the order was proved, but I infer that the certificate given by Dr. Gilroy was given under s. 184 of the Act of 1945 and that the order under that section was made by Dr. Crotty. The order cannot have been made under s. 185 as that requires a certificate of two registered medical practitioners and the consideration of it by the person in charge of the institution. The order made authorised the removal of the plaintiff from Adamstown and his detention for six months from the date of the order.
The plaintiff was determined that he would not be removed to a mental institution. He escaped from Adamstown and persuaded a relative to drive him to Dublin. He took some books and ledgers relating to the business with him so that he would be able to send out accounts, a step which shows that his business faculties were not impaired in any way. The plaintiff gave a dramatic account of the attempt by the two Brothers to give him an injection and says that he then went for Father Kehoe and brought him back. I find it difficult to accept this highly coloured version of what happened and I find it more difficult to understand how the plaintiff escaped. Apparently all the arrangements had been made to bring him to Waterford when the certificate or order had been signed by Dr. Crotty and another of the mysteries in this case is how the plaintiff escaped from Adamstown and why he was not taken into custody.
I regret that the certificate and order made were not proved as s. 186 of the Act of 1945 seems to authorise the arrest of the person to whom the order relates within a period of seven days from the time the order was made, but all the confused and tortuous negotiations which followed were carried on because the plaintiff and his adviser, Father Kavanagh, believed that the order which had been made authorised his arrest long after the seven-day period had expired.
Dr. Crotty’s final view of the plaintiff was that he was suffering from some kind of mental illness, but he could not come to any definite conclusion what it was. He thought that the plaintiff’s mental illness was caused either by some special external stress which was responsible for his behaviour or that he was suffering from a paranoid illness. I accept the whole of the evidence given by Dr. Crotty. I am satisfied that on the 5th and 6th of June the plaintiff behaved in the way which Dr. Crotty described. Having heard all the evidence, I am convinced that the plaintiff’s condition in the year 1959 was caused by his reaction to considerable mental stress and that this stress arose from the conflict between his determination to assert and show his authority on all possible occasions and the attitude of Mrs. Cullen and Patrick to this. The plaintiff was convinced that his family should always give way to him and, when they did not do this, he took refuge in suspicions and fantasies.
As the plaintiff did not return to Adamstown again, except for a short visit in January, 1960, and as he did not meet the members of his family again (except for a short meeting with Patrick) I think that I should now state my conclusions on the events up to June, 1959. I am satisfied that the plaintiff had and has very strong inflexible opinions about his authority as a husband and father and that he has equally strong views about the obligation of the members of his family to obeythis authority; he has probably had these views since he was married but they became more vocal and more intense from 1949 and I am satisfied that the plaintiff never understood the opposition which these views would provoke in the members of his family who lived and worked with him. These views made it certain that there would be trouble with his children when they reached the age of eighteen or nineteen. The plaintiff is entitled to have these views; they were commonly held 80 or 90 years ago if we accept the evidence given by the literature of that period, but they were not common in 1959; and though it may be said that they are the views which should prevail, they are not now generally acted on: any attempt to enforce them is almost certain to lead to distressing domestic conflicts. The best evidence of the plaintiff’s views on these matters is provided by a number of sentences from his evidence. In the course of it he said:”Boys should obey their father and Missus should obey her husband,” at a time when he was speaking about young men of twenty-three and twenty-four; “Let him (Patrick) recognise his boss”; and in answer to the question as to whether he had put Sean out in 1952, his reply was, “Yes, I had authority to do it. It was well done for.” Moreover, throughout his evidence there were references to who was to be the boss and the illuminating remark by him that he “ruled his family fairly.” While many think that other parents should apply these maxims to their children, most of us know that any attempt to apply them to our own is likely to produce conflict. The plaintiff, however, was determined that he would apply them to his family and, from the time that Sean was seventeen, the inevitable quarrels started.
From 1952 until June, 1959, Mrs. Cullen and Sean, Martin and Patrick tried to deal with the problem presented by the plaintiff’s views by ignoring the plaintiff’s orders and by doing their best to avoid quarrels. The situation was one calling for considerable tact and, on Mrs. Cullen’s part at least, considerable diplomacy, and she did not possess either of these qualities. She committed a serious error of judgment in always siding with her children against the plaintiff and all of them were foolish in presenting a united front to their father whenever any quarrel or dispute arose. I accept the candid evidence of Sean Cullen on this aspect of the case. In the course of it he said that in what led up to the disputes the plaintiff was not always wrong but that in the actual disputes when they came, he was always wrong because no one could reason with him. This attitude to the plaintiff by the members of his family aggravated an already difficult situation; it induced the plaintiff to try to assert his authority and, above all things, to give public demonstrations of it, and as his remarkable views about his authority were ignored he believed that his family were against him. From that it was an easy step to the belief that he was being robbed by them”an idea which he repeated in the witness box. The questioned authority is always the one most violently asserted. I think that Martin’s success in running the business did not endear him to the plaintiff, and when Martin left, Mrs. Cullen thought in a vague way that the business was going down because of the plaintiff’s management. Throughout 1957, 1958 and the early months of 1959, the plaintiff became more and more convinced of the rightness of his views about his authority and, when they were not accepted, about the necessity of demonstrating it in public and of securing its acknowledgment by his wife and children: when it was not acknowledged, the ideas of persecution, maltreatment and being robbed grew stronger. The plaintiff withdrew more and more into his own world of fantasy; he attempted to assert his position by quarrelling with the customers, by ordering them out, by refusing to accept goods brought to the premises on the ground that he had not ordered them and, in every way he could, showing that he was the owner of the business.
I am satisfied that Sean, Martin and Patrick did not steal anything from the plaintiff. It may be that in early years they took some pocket money from the cash in the shop but they were being paid very little and the cash arrangements in businesses in country areas are very different from those which prevail in cities or towns. I cannot help thinking that Joseph’s illness had far more to do with this domestic tragedy than any of the witnesses were prepared to allow.
The plaintiff gave evidence and, having heard his evidence, I am perfectly satisfied that he is now sane and that he still has considerable business capacity. I think that he is now capable of managing the business at Adamstown, though the management will be somewhat erratic and stormy; but as he still has these views about the necessity for the acknowledgment of his authority, there is a risk that his condition of June, 1959, may revive if he returns to Adamstown when his wife is there.
During the case it was hinted on a number of occasions that the certificate of the 6th June, 1959, was the result of a conspiracy between Mrs. Cullen, Martin, Patrick and the doctors and that all of them knew that the plaintiff was sane at all times. I am satisfied that Mrs. Cullen was responsible for the request to the doctors to come to examine her husband and that though her sons may have known that she was going to do this, they did not attempt to influence the doctors in any way. I reject entirely the suggestion that there was any conspiracy between the doctors and Mrs. Cullen and the suggestion that the doctors knew that the plaintiff did not require treatment and that he was sane. I am satisfied that in June, 1959, the question of the plaintiff’s authority was preying so much on his mind that he was suffering from a high degree of nervous tension which caused a temporary mental illness and that it disappeared when he had left the source of the stress which was his family. He still has the views, but it was the resistance to the views which produced the behaviour of June, 1959. Considerable support for this view is to be found in the fact that the plaintiff’s relations with his sons who did not live at Adamstown became good when they left: thus his relations with Sean in connection with the running of the farm were good and his relations with Martin seem to be good until he got the idea that Martin was responsible in part at least for bringing the doctors to examine him.
In 1959 Mrs. Cullen wanted the business run by Patrick, Martin and herself as she did not consider the plaintiff fit to run it. She had complained to the doctors that her husband was interfering in the business; as the business was his, this shows that she thought he should be out of it. She did not seem to me to be a domineering woman. In the course of her evidence she said on a number of occasions that she wanted the plaintiff treated because she thought the business was going down. At the end of the case I suggested to counsel for the defendants that the production of the accounts of the business up to the 6th June would be helpful on this issue. I understand that the plaintiff has not got these accounts, but, when the matter was mentioned some time after the evidence had concluded, counsel for the defendants refused to produce the accounts or to allow me to inspect them if they were handed in. The grounds given in support of this attitude were not convincing. Mr. Liston made it clear that the plaintiff would welcome the accounts being handed in. I cannot make any finding on the question whether the business at Adamstown was going down in 1958 and in 1959 in the absence of these accounts but the refusal to allow them to be produced suggests to me that the accounts do not show the suggested reduction in business.
It is now necessary to take up the story of the events after the 6th June. The plaintiff came to Dublin where he met Father Kavanagh, a member of the Vincentian Order, who has been a lifelong friend of his. Father Kavanagh had him medically examined and was told that the plaintiff was sane. Father Kavanagh thought quite rightly that the main thing was to ensure the plaintiff’s liberty by getting the order for his arrest withdrawn and that everything possible should be done to achieve this. On the 11th June a discussion took place in Dublin between Mr. Lawton (who I infer had been summoned to Dublin by Father Kavanagh), Father Kavanagh and the plaintiff, and, as a result, Mr. Lawton was authorised to tell Mrs. Cullen that the plaintiff was prepared to make over to her the place at Adamstown. Unfortunately Mr. Lawton was not told that he was to make it clear to Mrs. Cullen that the condition attached to this was that Mrs. Cullen, Martin and Patrick were to acknowledge in writing that the plaintiff was sane and were to take all necessary steps to have the order authorising his arrest withdrawn. Mr. Lawton returned to Enniscorthy on the 11th June and shortly afterwards went to see Mrs. Cullen. He told her that he came with a message from Father Kavanagh and that her husband was transferring his property at Adamstown and the money due in connection with the business to her but that she was not to touch the cattle on the land. He also told her that she should try to get the business going and when she said that she had no capital, he advised her to go to the Provincial Bank, to open an account and to lodge £400 from her own monies and to use the account to run the business. Mrs. Cullen subsequently lodged £403 to a bank account in her name and this account was used to run the business. There was also a discussion about a portable house which Mrs. Cullen had won in a competition organised by the “Sunday Press.” I shall deal with this in a later part of this judgment. On the 17th June Father Kavanagh went to Enniscorthy to see Dr. Murphy, who was the plaintiff’s regular doctor, and was apparently told that the plaintiff could still be arrested on the order which had been made. Ho came back to Dublin and told the plaintiff that he should get legal advice. The legal advice was that the plaintiff would have to insist on a written withdrawal of the allegations of mental instability and to this the plaintiff added the proviso that his authority as owner of Adamstown had to be recognised. As the negotiations were about the transfer of Adamstown to Mrs. Cullen, it is difficult to understand why the plaintiff introduced the recognition of his authority as a condition of the transfer, but it provides another illustration that what mattered to the plaintiff was the acknowledgment of his authority. Father Kavanagh again saw Mr. Lawton in August and told him what Mr. Cullen required and this was passed on to Mrs. Cullen.
Since the 6th June Mrs. Cullen has been conducting the business at Adamstown and Martin and Patrick have been working for her. Patrick has been living in the premises all the time and Martin lived there until his marriage in August, 1960.
On the 14th September, 1959, the plaintiff’s solicitor wrote to Martin Cullen, requiring him to leave the house at Adamstown and to give up any connection with the management of the farm and business. A similar letter was sent to Patrick and a letter was sent to Mrs. Cullen, requiring her to cease interfering with the business and telling her that her grownup sons would not in any event be allowed to stay on in the house. Father Kavanagh carried on some further unsuccessful negotiations in an attempt to settle the differences. Mr. Lawton died in November, 1959. On the 18th June, 1960, the plaintiff commenced proceedings against Patrick and Martin, claiming an injunction to restrain them from interfering in the business and from trespassing on the property at Adamstown. An application by the plaintiff for an interlocutory injunction was refused by Mr. Justice Haugh on the 4th April, 1960.
Whatever be the position of children under 21 years of age who live in their father’s house, those over 21 are licensees of their father when they are on property (including the family home) belonging to him. If the site of the bungalow is left out of consideration for the moment, the defendants were licensees of the plaintiff when they were on the premises at Adamstown and they had not any proprietary interest in them. As the licence which they had to enter and reside there was revoked by the letters of the 14th September, the grounds upon which it was sought to justify their continued presence on the premises have now to be examined. The first ground is that pleaded in para. 6 of the defence, which reads:”
“As a further defence to the matters alleged in paragraphs 4 and 5 of the statement of claim the defendants say that in or about the month of August 1954 the plaintiff agreed with the second-named defendant, Martin Cullen, to hand over to him as from the 1st day of January 1955 the management of the said business at Adamstown save that the plaintiff would retain the sole right to sign cheques on the bank account relating to the said business. The second-named defendant accordingly managed the said business and with the approval of the plaintiff employed the first-named defendant therein and the defendants say that it was in pursuance of the said agreement that the defendants resided in the said dwelling-house and managed or worked in the said business. The said agreement was terminated by the plaintiff in or about the month of January 1958 when the plaintiff resumed the management of the said business but the plaintiff continued to employ the first-named defendant in the said business and permitted both the said defendants to reside in the said dwelling-house.”
The letters of the 14th September, 1959, written by the plaintiff’s solicitor to both the defendants required them to leave the premises and were a termination of any contract of employment which existed between the plaintiff and the defendant, Patrick Cullen. The matters pleaded in para. 6 of the defence do not afford a justification of the defendants’ presence on the premises.
A further justification is that pleaded in para. 7, which is in these terms:””The defendants further say that in or about the month of June 1959 the plaintiff voluntarily left the said dwelling-house and went to reside in Dublin and subsequently in Enniscorthy and shortly after his departure informed or caused to be informed the said Sarah M. Cullen that he was making over and transferring to her his said property at Adamstown aforesaid absolutely and that she should open a new account in the Provincial Bank of Ireland, Enniscorthy Branch, in her own name for the purpose of the said business. The said Sarah M. Cullen accordingly opened such account and put to the credit thereof the sum of £400 out of her own money and applied the same for the purpose of carrying on the said business and thereafter carried on and still carries on the said business on the footing that she was legally or in equity entitled to the said property and has employed and still employs the defendants as assistants in the said business and authorised and permitted and still authorises and permits them to reside in the said premises in connection with their employment and the plaintiff was not on the 14th day of September 1959 and has not since been and is not now entitled to terminate and has not lawfully terminated the employment of the defendants or of either of them as such assistants or assistant or the right of the defendants or of either of them to reside on the said premises in connection with such employment.”
Mrs. Cullen is not a party to this action. At the end of the argument I suggested that she should be added as a party so that the claim pleaded in para. 7 could be dealt with. The plaintiff and the defendants declined to make any application to add Mrs. Cullen as a party but despite this I think that I must deal with this claim. I wish, however, to place on record that Mrs. Cullen was in Court throughout the hearing of the case and that she gave evidence for the defendants.
The plaintiff authorised Father Kavanagh to tell Mr. Lawton that he was going to transfer to Mrs. Cullen the place at Adamstown and every blade of grass on it and everything except the cattle on the lands and Mr. Lawton told her of this.
It seems to me that this was a statement of intention by the plaintiff of what he proposed to do. He offered to do this because he wanted to retain his liberty and to avoid arrest under the order made under the Mental Treatment Act, 1945. Mr. Matheson has relied on the decision in Dillwyn v. Llewelyn (1) as an authority for the proposition that the Court should now compel the plaintiff to transfer the lands and premises at Adamstown to Mrs. Cullen. The case is an authority for the proposition that a person claiming under a voluntary agreement will not be assisted by a Court of equity but that the subsequent acts of the donor may give the donee a ground of claim which he did not acquire from the original gift. In that case a father had told his son (the plaintiff) that he should live near him and had offered him a farm in order that the plaintiff might build a house: there was a written memo in which the father confirmed that it was his wish that his widow should give the lands to his son so that he would have a house. The plaintiff expended a large sum of money in building a house on the lands. Lord Westbury held that the making of the promise to give the lands coupled with the knowledge that the plaintiff had spent a considerable sum of money in building the house on the lands gave the plaintiff an equity to call on those claiming through the father to complete the gift. In this case, however, the only act relied on by Mrs. Cullen to create the equity is the putting of £403 into the business on Mr. Lawton’s suggestion; she has, however, been in receipt of the profits of the business since the 6th June, 1959, and these are considerably more than the sum which she paid in. Moreover, the balance sheet of the business as at the 31st December, 1960, shows a sum of £680 16s. 2d. to the credit of the bank account (I assume that this is the bank account in her name) and she could at any time since January, 1960, have repaid out of the profits of the business the monies advanced by her. The equity referred to by Lord Westbury is a discretionary one and when I consider the circumstances in which the plaintiff made the statement that he was about to transfer the property at Adamstown to his wife and that he made it because he believed that it was the only way by which he could remain free, I have no doubt whatever that it would be grossly inequitable to regard Mrs. Cullen as being entitled to a transfer of the property at Adamstown or as having acquired any proprietary interest, legal or equitable, in the property as a result of what was said. The use by Mrs. Cullen of her own monies for the running of the business, particularly when she could have repaid this advance at any time, does not, in my opinion, create any claim in conscience or in equity which the Court should enforce or give any ground for disregarding the general principle that equity will not aid an imperfect gift. As Mrs. Cullen has no proprietary interest in the property the defendants cannot shelter behind her permission to them or her employment of them in the business. A further ground relied on was that the plaintiff made no provision for Mrs. Cullen when he left, that she had to run the business to provide maintenance for herself and that she was accordingly entitled to employ the defendants and to license them to reside in the premises. In the circumstances I think that she was entitled to conduct the business when the plaintiff left, but she had no authority to employ either of the defendants in the business or to license them to reside in the premises after the letters of the 14th September.
A further justification pleaded in para. 8 is that the plaintiff made an oral contract with Patrick Cullen in 1954 under which Patrick Cullen agreed to reside in the dwelling-house at Adamstown and to work in the business and that the contract has not been terminated by the plaintiff. There was no evidence to support this and I decline to infer such a contract.
There was no evidence that the defendants had ever excluded the plaintiff from the Adamstown premises or that they had refused to allow him to take part in the management of the business. I think that Patrick (who did not give evidence) ignored his father’s orders in 1958 and 1959 and that he placed orders with suppliers without consulting him even though he had been told that he was not to do this. The defendants, however, are trespassers on the plaintiff’s property at Adamstown and their continued presence on the property is a continuing trespass. The plaintiff asks for an injunction to restrain them from trespassing and the question whether such an injunction should issue has been the subject of my most anxious consideration; the delay in giving judgment has been due to this aspect of the case. A claim for an injunction by a father against his two adult sons to prevent them coming to what was”and what the father wants to be” the family home is certainly novel; there is no reported case in Ireland on the matter and, as far as I have been able to trace, the problem has not been considered by any of the Courts in the United States of America or in Canada. There are two decided cases on the matter in England.
When Mr. Liston was opening the case he said that the plaintiff wanted an injunction because he wished to return to his property at Adamstown without the fear of being certified under the Mental Treatment Act and because the plaintiff felt that this could not happen if his two sons were not excluded from the property. The defendants’ presence on, or absence from, the property at Adamstown does not seem to me to have anything to do with the likelihood of the plaintiff being certified for temporary treatment under the Mental Treatment Act, 1945. Sect. 185 of that Act empowers the wife or a relative of the person to make an application for a temporary reception order and if a certificate is signed by two registered medical practitioners, certifying that the person to whom the certificate relates is suffering from mental illness and requires suitable treatment, the order for temporary reception may be made. This argument does not seem to me to justify the grant of an injunction.
The plaintiff’s strongest ground for an injunction is that he is the owner of the property at Adamstown, that he wants his two sons excluded from the property because he wants to run the business and because, as he put it in his evidence,”the children are a trouble to me and I do not want them.”Moreover, it is highly probable that the plaintiff’s nervous tension and nervous condition of June, 1959, will revive if his sons are in Adamstown when he returns. He is not prepared to return as long as they are there and the refusal of an injunction will be a denial of his right of property in the premises at Adamstown.
Against the grant of an injunction it has been urged 1, that it would be inequitable to give an injunction because both the defendants have acted on the plaintiff’s promise that he would make over the property at Adamstown to his wife; 2, that he who seeks equity must do equity and that the plaintiff, seeking the equitable relief of an injunction, must carry out his own promises; 3, that as the plaintiff is not seeking an injunction against his wife (which he could not get in any event), there should not be an injunction against the defendants; 4, that the plaintiff is quite free to return and run his business without interference by the defendants; 5, that the result of an injunction would be to cut off the defendants from social relations with their mother so that they could not visit her; 6, that Mrs. Cullen says that she is not prepared to live alone with her husband and that she wants somebody to stay in the house; 7, that if the plaintiff became ill the defendants could not take the risk of going to visit him or make any effort at reconciliation; 8, that neither of the defendants has ever claimed to be entitled to take part in the running of the business; and 9, that the grant of an injunction in this case would be contrary to the provisions of the Constitution dealing with the family.
There was no discussion about the general principles on which the Court decides whether an injunction should be granted or not except for a reference to the two cases in which the suitability of an injunction as a method of preventing a son from entering his parents’ home was discussed. The Court has to consider the balance of convenience, but this weighing becomes difficult when the refusal of an injunction amounts to a denial of the plaintiff’s right to decide who shall be on his property and the grant of an injunction is the intrusion by the Court into family and domestic relations which should be governed by affection, respect and the sense of moral obligation which all of us have and not by Court orders.
The Directors of the Imperial Gas Light and Coke Co. v.Broadbent (1) was a case in which the plaintiff sought an injunction to restrain a nuisance created by the manufacture of gas near his grounds. The Vice Chancellor granted an injunction and his order was affirmed by the Lord Chancellor, Lord Cranworth. The defendants appealed to the House of Lords and the Lord Chancellor, Lord Campbell, in the course of his opinion said (at p. 610):””It is argued that it is highly inexpedient in this case to grant an injunction. Why, this is the very case for an injunction, because it is a case in which an action cannot sufficiently indemnify the party who is injured. How can he prove to a jury the exact quantity of pecuniary loss that he may have sustained? He may be able to show the value of the flowers and trees that have been destroyed, but how can he show the irreparable injury done to his trade by his customers leaving him, whom he may find it most difficult or impossible to get back.
“Then we are told that an action is to be brought, I know not how often, I suppose an annual action, that actions are to be multiplied indefinitely. I cannot but think that this would be a denial of justice to a person who has proved the injury he has sustained, especially when the party of whom he complains still obstinately persists in doing what produces effects so injurious to him”; and in the same case Lord Kingsdown said (at p. 612):””The rule I take to be clearly this: if a plaintiff applies for an injunction to restrain a violation of a common law right, if either the existence of the right or the fact of its violation be disputed, he must establish that right at law; but when he has established his right at law, I apprehend that unless there be something special in the ease, he is entitled as of course to an injunction to prevent the recurrence of that violation.”
The Chancery Amendment Act, 1858 (21 & 22 Vict., c. 27), better known as “Lord Cairns’s Act,” had not been passed at the time when the Imperial Gas Light and Coke Co. Case (1) was commenced and was not referred to in the argument in that case. Sect. 2 of Lord Cairns’s Act (which is in force in Ireland: see Solomon v. Red Bank Restaurant, Ltd. (2) and Leeds Industrial Co-operative Society, Ltd. v. Slack (3) provided:””In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act . . . it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction,” and s. 28 of the Supreme Court of Judicature (Ireland) Act, 1877, provided (so far as material):””And whereas it is expedient to take occasion of the union of the several Courts whose jurisdiction is hereby transferred to the said High Court of Justice to amend and declare the law to be hereafter administered in Ireland as to the matters next hereinafter mentioned: Be it enacted as follows:
. . . . . . .
“(8) . . . and if an injunction is asked, either before, or at, or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted, if the Court shall think fit, whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or by either of the parties are legal or equitable.”
The effect of Lord Cairns’s Act was explained by Lindley L.J. in Shelfer v. City of London Electric Lighting Co. (4).He said:””The jurisdiction to give damages instead of an injunction is in words given in all cases . . . but in exercising the jurisdiction thus given attention ought to be paid to well settled principles; and ever since Lord Cairns’s Act was passed the Court of Chancery has repudiated the notion that the Legislature intended to turn that Court into a tribunal for legalising wrongful acts; or in other words, the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict. Neither has the circumstance that the wrongdoer is in some sense a public benefactor . . . ever been considered a sufficient, reason for
refusing to protect by injunction an individual whose rights are being persistently infringed . . . Lord Cairns’s Act was not passed in order to supersede legislation for public purposes, but to enable the Court of Chancery to administer justice between litigants more effectually than it could before the Act . . .
Without denying the jurisdiction to award damages instead of an injunction, even in cases of continuing actionable nuisances, such jurisdiction ought not to be exercised in such cases except under very exceptional circumstances. I will not attempt to specify them, or to lay down rules for the exercise of judicial discretion. It is sufficient to refer, by way of example, to trivial and occasional nuisances: cases in which a plaintiff has shown that he only wants money; vexatious and oppressive cases; and cases where the plaintiff has so conducted himself as to render it unjust to give him more than pecuniary relief. In all such cases as these, and in all others where an action for damages is really an adequate remedy”as where the acts complained of are already finished ”an injunction can be properly refused. There are no circumstances here which, according to recognised principles, justify the refusal of an injunction . . .”
In Colls v. Home and Colonial Stores, Ltd. (1) Lord Macnaghten said, at p. 192:””Then, with regard to giving damages in addition to or substitution for an injunction” that, no doubt, is a delicate matter. It is a matter for the discretion of the Court, and the discretion is a judicial discretion. It has been said that an injunction ought to be granted when substantial damages would be given at law. I have some difficulty in following out this rule . . . But the recovery of damages, whatever the amount may be, indicates a violation of right, and in former times, unless there were something special in the case, would have entitled the plaintiff as of course to an injunction in equity. I rather doubt whether the amount of the damages which may be supposed to be recoverable at law affords a satisfactory test. In some cases, of course, an injunction is necessary”if, for instance, the injury cannot fairly be compensated by money”if the defendant has acted in a high-handed manner”if he has endeavoured to steal a march upon the plaintiff or to evade the jurisdiction of the Court. In all these cases an injunction is necessary, in order to do justice to the plaintiff and as a warning to others.” In the same case Lord Lindley said, at p. 212:””The general rule that where a legal right is continuously infringed an injunction to protect it ought to be granted is subject to qualification, as was carefully explained by Sir George Jessel in Aynsley v. Glover (1); and more recently by the Court of Appeal in Shelfer v. City of London Electric Lighting Co. (2).”
The decision of Buckley J. in Behrens v. Richards (3) is authority for the proposition that a successful plaintiff in an action for trespass is not entitled as of course to an injunction. Waterhouse v. Waterhouse (4) is a decision of the same Judge. It was an uncontested application for judgment by a father claiming an injunction to restrain his son, aged 35, from entering his father’s house. Buckley J. refused to grant an injunction and in the course of his judgment said:””An injunction to restrain a trespass is not a matter of course. If a man intrudes into another man’s house, or if a man having paid for a seat in the pit of a theatre insists on forcing himself into the stalls, the proper remedy is one much more simple than an application to this Court for an injunction. This plaintiff may, for aught I know, be entitled to such a remedy elsewhere if he has a case for it. But an injunction is a formidable weapon, to be used only when justified by such a state of facts as upon precedents and principles well established in this Court justify its application. Under circumstances, an injunction to restrain a defendant”even though the defendant be the plaintiff’s son”from entering on premises would be right. But the facts alleged in this case are far from justifying an order that a son shall not enter his father’s house. The duty of a father towards his son does not come to an end when, by reason of the latter having attained his majority or having reached a riper age, he may be properly called upon to provide for himself. Even when a child is an infant the parents’ duty to provide maintenance and education is of imperfect obligation, and whether in a Court of law or of equity its direct enforcement may be difficult or impossible. But the duty arising from the relation of parent and child, whether directly enforceable or not, is a duty of which the parent can in no circumstances divest himself. The duty is not limited to providing maintenance during infancy or any other time. It is a duty so to conduct himself in all respects towards his child as is right in him, he being his father. For many purposes this Court deals with questions as between parent and child in manner different from that which would be applied between strangers in blood. The Court as between father and son regards not merely obligations which are legally enforceable, but obligations which arise from the relations between the parties”obligations which are not legal, but may be called moral. There may be cases in which a son by misconduct may have rendered it very difficult for his father to determine how properly to discharge his parental duty. But the duty remains. The son also has his duties, and the father is not only entitled, but ought to use every legitimate means to ensure that his son shall perform them. No misconduct of the son, however, can abrogate the duty of the father. There might be a case in which the father might be entitled (say for the proper discharge of his duty to others) to forbid his son even to enter his house. But except in very grave circumstances this Court would never make an order with the intent and result of severing the connection which ought to exist between parent and child. There are no facts alleged here upon which I should consider it right in this case, even if it could be right in any case, to make an order the result of which would be that, if the son came to see his father, the latter might apply to the Court to commit the son to prison for breach of an injunction. To use every legitimate means to induce or even to drive a man to conduct himself as a good son and a good citizen is, of course, right. But this is not a result which can be achieved by injunctions of this Court. The forces to be employed are those of education, example, influence, and guidance from childhood and throughout life. These are matters in respect of which a father always owes the duty of a father to his sons. Apart from other considerations, it would be strange if a Court of justice were to intervene with an order cutting the son off from his father.”
In Stevens v. Stevens (1) Coleridge J. granted an injunction to a mother to restrain her son from breaking and entering her dwelling-house but, in doing so, he emphasised that the circumstances of the case were very grave.
In Solomon v. Red Bank Restaurant, Ltd. (2) Johnston J. considered all the authorities on Lord Cairns’s Act and remarked that the tendency of the more recent cases suggested a note of encouragement in favour of damages rather than an injunction.
After much consideration I have come to the conclusion that this is not a case in which an injunction should be granted against the defendants. I realise that I am denying the plaintiff one of the incidents of his fundamental right of property but I refuse the injunction because 1, it would make a reconciliation between the plaintiff and his sons impossible and would prevent them visiting him in an effort to restore more normal relations;
2, It would make it impossible for the defendants to visit their mother who is obliged to live with the plaintiff and would mean that she would have to leave her home in order to see them.
3, The defendants have never attempted to exclude the plaintiff by active steps from the control and management of his business.
4, The defendants have stated in Court through their counsel that they do not intend to prevent the plaintiff returning to the premises and that they do not intend to interfere with him in the conduct and management of the business.
5, Relations between fathers and their sons should not be governed by the heavy artillery of Court orders, injunctions or the threat of committal to prison, but by respect, affection, honour and the feeling of moral obligation.
6, There is a risk that the plaintiff’s hostility to his wife may revive when he returns to Adamstown and somebody should be in the house to protect her.
7, The plaintiff is in control of the business at Enniscorthy and receives the grazing rents out of Adamstown.
Although an injunction is refused, the plaintiff is entitled to damages against the defendants for their continued acts of trespass. There was no evidence that the defendants received any of the profits of the business and I dismiss the claim for an account against them. I will award £50, damages, against the first-named defendant and £50, damages, against the second-named defendant for trespass.
I come now to deal with the ownership of the site on which the house, won by Mrs. Cullen in the competition in the”Sunday Press,” had been erected. However unfortunate the Cullens may have been in their domestic relations, they have been singularly fortunate in competitions; Sean had won a substantial prize in the Hospitals Sweepstake and in March or April, 1959, Mrs. Cullen had won a fully furnished portable house. She gave this house to Martin and the plaintiff knew this in April, 1959. Martin intended to erect the house on his lands at Coolnagreine and, when representatives from the”Sunday Press” visited Adamstown in April, 1959, a site on his farm at Coolnagreine was selected. Shortly after this, Martin began to prepare the site for the house and did some work on the foundations. He had offered the house to his father before the 6th June, 1959, as he thought that his father did not approve of the position selected for it, but the offer was not accepted. When the plaintiff left Adamstown on the 6th June, Mrs. Cullen decided that she would like to have the house erected on the farm at Adamstown and, when she was speaking to Mr. Lawton, she told him this and sought her husband’s permission for it. Mr. Lawton said that he did not see why the permission was necessary as the property at Adamstown would be transferred to her; she persisted and Mr. Lawton undertook that he would write to Father Kavanagh and would telephone to her when he got a reply. A few days afterwards Mr. Lawton wrote to Father Kavanagh who discussed the matter with the plaintiff. The plaintiff told him that it was not necessary to discuss the matter because he was making over the place at Adamstown to Mrs. Cullen and that she could put the house where she liked. This discussion took place on the 13th or 14th June. Father Kavanagh gave this information to Mr. Lawton who then telephoned Mrs. Cullen and told her that she could go ahead with “the project as mentioned” and put the house up wherever she liked. Mrs. Cullen sent a message to Martin that he was not to go on with the preparation of the site on his farm and was to put up the house on the lands at Adamstown. He then stopped the preparation of the site on his own lands and began to work on a site for the house at Adamstown. He employed a man to work with him and spent about £200 in installing a water supply and building the foundations. The house arrived at the end of July and was assembled and erected in August. Some time after it was erected Martin heard that his father objected to its being placed at Adamstown and in August, 1960, Martin, who was about to get married, wrote to his father asking him to attend the wedding, and added:””I am hoping that you will give me the site the bungalow is on and your blessing.”
I am satisfied that Martin would have erected the house on his own lands if the plaintiff had not given Mrs. Cullen permission to put up the house at Adamstown and that he erected the house on the lands at Adamstown because he relied on the permission given. I am convinced that the plaintiff knew at all times that Mrs. Cullen had given the house to Martin and that the house was being erected for Martin to live in. It would cost £700 at least to take it down now and to lay foundations for it elsewhere; the cost of the decoration of the house which would be made necessary by its removal would be all additional £100. It has been submitted on the authority of Ramsden v. Dyson (1) that Martin Cullen has acquired a right to compel the plaintiff to transfer to him the site on which the house now stands. That case decides that if a stranger begins to build on land which he thinks is his and the real owner, seeing the mistake, abstains from correcting it and leaves him to continue, equity will not afterwards allow the real owner to assert his title to the land; but that if a stranger builds on land knowing it to be the property of another, equity will not prevent the real owner from claiming the lands afterwards. In this case, however, Martin knew that the land belonged to the plaintiff and his letter written in August, 1960, supports this view. In my opinion the argument based on Ramsden v. Dyson (1) is incorrect.
I am of opinion, however, that the plaintiff is estopped by his conduct in giving consent to the erection of the house at Adamstown when he knew that the house had been given to Martin and that the plaintiff cannot now assert any title to the site on which the house has been erected. There was a representation by him that he consented to this and that representation was acted on by Martin who spent £200 at least in erecting the house and gave a considerable amount of his time to this work. It seems to me that the principle stated by Denning J. in Central London Property Trust, Ltd. v. High Trees House, Ltd. (2) and affirmed by the same Judge when he was a Lord Justice of Appeal in Lyle-Meller v. Lewis & Co. (Westminster), Ltd. (3) applies to this aspect of the case and that the plaintiff cannot withdraw the permission which he gave for the erection of the house on the lands at Adamstown and cannot now assert a title to the site on which the house stands or to the house. While the estoppel created by the plaintiff’s conduct prevents him asserting a title to the site, it does not give Martin a right to require the plaintiff to transfer the site to him: if I had jurisdiction to make such an order I would do so, but I do not think I have. However, neither the plaintiff nor any person claiming through him can now successfully assert a title to the lands on which the house is built by any proceedings and, at the end of the twelve-year period from the date when the erection of the bungalow commenced, Martin will be able to bring a successful application under s. 52 of the Registration of Title Act, 1891, for his registration as owner. If this case goes further, I hope that it will be held that I was wrong in deciding that I had no power to order the plaintiff to transfer the site to Martin. There is a claim in the pleadings that Martin has acquired a lien on the lands but this was not argued. I must accordingly dismiss the counterclaim.
There will be judgment on the plaintiff’s claim for £50, damages, against Patrick Cullen and for £50, damages, against Martin Cullen, both up to this date.
I have considered the question of costs. The plaintiff claimed an injunction and has failed on that part of his claim. Much of the time which the hearing of the action took was caused by the case made by the defendants that the plaintiff was obliged to transfer the premises and lands at Adamstown to Mrs. Cullen. That case and the counterclaim have failed. I will award the plaintiff one half of the costs of the action and I will award the defendants the costs of the motion for the interlocutory injunction: the two sets of costs will be set off against each other and the balance due will be certified by the Taxing Master. There will be no costs of the counterclaim. I will give a certificate that it was reasonable to commence these proceedings in the High Court owing to the important nature of the action.
Bracken v Byrne & Byrne
Right of Residence
Clarke J., March 11, 2005; [2005] I.E.H.C. 80On the 24th July, 1967 William Bracken, on the basis of a then intended marriage between his daughter Catherine Mary Bracken and Timothy Byrne, executed a deed of settlement (“the deed of settlement”) whereby he transferred all of the properties described in Folio 2242 of the register County Wicklow to Catherine Mary Bracken and Timothy Byrne so that after their marriage they would become joint tenants in fee simple of the property subject to certain rights.
Insofar as material to this case the rights specified are those at item 2 in the deed of settlement which conferred the right upon “Joan Bracken and Mary Bracken (daughters of the said William Bracken and Mary Bracken) to reside and to be supported and maintained in the said dwelling house at any time they or either of them during their respective lives shall choose to reside there whilst unmarried”.
The plaintiff is the Joan Bracken mentioned in that clause in whose favour a right of residence and maintenance and support was conferred by the deed of settlement. The defendant is the Catherine Mary Bracken to whom, in conjunction with her soon to be husband Timothy Byrne, the property was vested. Mary Bracken, who is also mentioned in the clause conferring rights, has long since married and no right continues to subsist in her favour.
For much of the intervening period Joan Bracken lived and worked in different guises in Dublin but did from time to time visit the family home. That home was itself replaced by a more substantial dwelling which remains in the ownership of the first named defendant. Timothy Byrne, unfortunately, died on 21st February, 2000. In addition the second named defendant, Michael Byrne, who is a son of Timothy Byrne and the first named defendant has benefited by the transfer to him of part of the lands which were previously comprised in Folio 2242 County Wicklow subject to the rights of maintenance and support in favour of the plaintiff.
In those circumstances the house, in respect of which the right of residence exists, remains in the ownership of the first named defendant while the lands out of which the right of maintenance and support is to be met are now, in substance, owned by the second named defendant.
In order to understand fully the issues between the parties it is necessary to describe in some detail events in the latter part of the 1990s and the early years of this decade. In circumstances which are not particularly germane to these proceedings the plaintiff suffered significant financial reversals in the mid to late 1990s which culminated in her finding herself in a position where, contrary to her previous life experience, she had no significant employment, no interest of ownership in any residential property and only a relatively small sum of cash in capital (being the net proceeds that were left after the disposal of a restaurant business which had not been a success and the premises in which the business was conducted having been the subject of a fire in circumstances where it was underinsured).
In all those circumstances it was suggested to the plaintiff by the first named defendant (in conjunction with her husband) that she should come to reside in the family home. It seems clear that neither party had, at that time, got in the forefront of their minds the fact that the plaintiff might have a legal entitlement so to do. However the plaintiff did, in fact, go back to reside in the family home and appears for some reasonable period of time to have lived there as a member of the family and to have enjoyed support and maintenance in practice even if same was not consciously being provided in fulfilment of the obligations under the deed of settlement.
It is again common case between the parties that during 1999 a suggestion was made to the plaintiff by the first named defendant and her husband that the plaintiff would be provided with a site on a separate plot of ground which was also in the ownership of Timothy Byrne. In general terms it seems that such an arrangement was perceived to be advantageous to all concerned in that the site was nearer to Dublin where much of the plaintiff’s interests were still centered. She had also gained employment which by that time again required her to travel to Dublin.
What is, however, in serious controversy between the parties is the basis on which such a site was to be provided. The plaintiff gave clear evidence that the contemplated arrangement was that she would be given the site fully to the extent that it would be placed into her name. She accepted that it would have been for her to secure the building of a house on the site. She had retained the capital sum previously referred to and it was envisaged that that sum, perhaps topped up by a relatively moderate mortgage, would be sufficient to build a house.
The first named defendant has equally strongly maintained that the arrangement was to the effect that the plaintiff would be given only a limited interest in the property. I will return to this conflict of evidence later in the course of this judgment.
It is again common case that on foot of whatever arrangements may have been in place the plaintiff sought and ultimately secured planning permission from Wicklow County Council in respect of the building of a dwelling house. It is also common case that contact was made, on the recommendation of the first named defendant, with a builder who provided a quote for the construction of the dwelling house concerned.
Unfortunately just as the planning process was coming towards a close Timothy (who was more normally called Theo) Byrne died some few months after notification of intention to grant planning permission had been given and very soon after the final notification of the grant of planning permission had occurred.
Soon after that disputes arose between the plaintiff and the first named defendant as to whether she was to receive a limited interest in the site or was to obtain it entirely in her own name. There can be little doubt that those disputes led to a significant worsening of relations between the parties. As a result the plaintiff investigated her legal entitlements and ultimately received advice on the provisions of the deed of settlement.
In those circumstances these proceedings were brought which seek either the payment of a sum of money to represent the value of the rights of residence maintenance and support which necessarily involves a claim as against the first named defendant in relation to the right of residence and as against the second named defendant in respect of the right of maintenance and support. All such claims relate to a loss both to date and into the future.
In the alternative to the claim in respect of a right of residence (but not in respect of the claim in relation to a right of maintenance and support) the plaintiff contends that she is entitled to enforce the agreement which she alleges was in place in relation to the site.
Rights of residence and maintenance – the law
Section 81 of the Registration of Title Act, 1964 provides:-
“A right of residence in or on registered land, whether a general right of residence on the land or an exclusive right of residence in or on part of the land, shall be deemed to be personal to the person beneficially entitled thereto and to be right in the nature of a lien for monies worth in or over the land and shall not operate to create any equitable interest in the land”.
The only occasion when that section has the been the subject of judicial consideration arose in Johnson and Anor v. Horace [1993] ILRM 594 where Lavan J. had to consider the effect of the section in the circumstances of that case.
It should be noted that at p. 598 of the judgment Lavan J. indicated that neither the case law nor the statute clarifies whether or not the beneficiary of the right or the owner of the property can insist on the right being converted into monies worth. In dealing with that issue the court went on to state the following:-
“I have no doubt but that there are circumstances in which a court could enter by agreement with the parties into a valuation of their respective interests. There are also circumstances where a court might compel such a valuation in the general interest of the administration of justice or under its equitable jurisdiction”.
On the facts of the case before him Lavan J. was satisfied that there was duress on the part of the defendant owner and no abandonment of the right of residence on the part of the plaintiff. Much of the remainder of the case was concerned with how the rights could be valued and whether, on the facts of that case, it was appropriate to direct that the rights no longer be enforced and be, in substance, converted into money.
It is important to note that Lavan J. went on to hold that “the defendant has not the means nor the intention to make proper provision for the plaintiff’s right of residence”. In those circumstances the plaintiff was awarded injunctive relief which in substance allowed her to become able to enjoy the right of residence and also was awarded damages in respect of interference with the right up to the date of trial.
It is clear therefore, that the reason why Lavan J. was not persuaded to convert the plaintiff’s entitlement to money was that it was impractical on the facts of that case so to do. The case is therefore not authority for the proposition that a court could not covert the right of residence to money in an appropriate case.
However that begs the question as to what would be such an appropriate case. Neither counsel in the case before me argued that there was an entitlement, as of right, on the part of either the owner of the property or the beneficiary of the right to have the right converted into money.
In a case where the owner of such rights is effectively excluded from the enjoyment of those rights by the owner of the property there may be circumstances where the appropriate form of redress which the court should grant would be to value the rights and direct that the beneficiary be paid for those rights rather than to grant injunctive relief. Clearly the ability of the defendant to pay the sums thus awarded would be an important factor in the exercise of the court’s discretion as to whether the remedy should be by way of injunctive relief to restore the enjoyment of rights on the one hand or the payment of the sum of money in lieu on the other hand. However in many such cases it may well be that the breakdown in relations between the parties is not for as clear-cut a set of reasons as enabled Lavan J. in Johnson to take the view which he did on the facts of that case. The circumstances which may lead to such a breakdown can lie at any point upon a spectrum from one where the entire blame may rest upon the beneficiary of the right on the one hand to a case where the entire blame may rest upon the owner of the property on the other hand. Indeed it is, perhaps, important to note, that in the absence of very voluminous evidence indeed it might, in many cases, be difficult for the court to determine, with any precision, the precise apportionment of blame in relation to what will, often, be a breakdown in relations between parties stemming from a whole variety of reasons.
In the light of such general observations it is necessary to address the question as to the proper approach of the court in circumstances such as this.
Prima facie the starting point must be that the entitlement of the beneficiary of a right is to have that right enforced. Therefore the starting point should be that the owner should be entitled to appropriate injunctive relief to ensure that they can enjoy the right.
However there may be circumstances where that is not practical or reasonable. Obviously the parties are free to agree the terms upon which rights can be extinguished. Furthermore, as Lavan J. pointed out in Johnson the court can enter by the agreement of the parties into a valuation of their respective interests. More difficult questions arise where one party asserts that the rights should be exercised but the other suggests that the rights be converted into money. In principle the party seeking the cash conversion could be either the beneficiary of the rights or the owner of the property. In this case it is the beneficiary who seeks to have her entitlements paid off in money. The first named defendants says that there has been no prevention of the exercise of the rights concerned and that no entitlement to money therefore arises. It seems to me that one of the questions which the court needs to address is as to whether it has been demonstrated that it is not reasonable, in all the circumstances of the case, to require the beneficiary to be satisfied with the enjoyment of the rights to which she is entitled, enforced, if necessary, by appropriate injunction.
In most cases the practical enjoyment of a right of residence and a right of maintenance and support will require the owner of those rights to be involved in, at least to some extent, a quasi family situation. To require such a situation to continue in circumstances where there has been a sufficient degree of breakdown in the relationship between the parties so as to render it unreasonable to require the parties concerned to live in those circumstances must lead the court to a situation where it has to consider alternative remedies.
A further question which the court needs to consider is as to the extent to which it may be possible to apportion responsibility for the situation which has led to it being unreasonable to require the continuance of the arrangements in practice. Clearly a case where that responsibility rested wholly or substantially on the beneficiary of the right would give rise to a situation in which the owner of the property could not reasonably be expected to allow for the continuance of the exercise of the right. However in those circumstances it may well be that the beneficiary would have placed him or herself in a position where they might be said to have forfeited any entitlement either to the actual exercise of the rights to have a payment in money to the value of the rights. On the other hand where the reasons whereby it had become unreasonable to expect the continuance of the exercise of the rights stemmed wholly or substantially from the actions of the owner of the property there can be little doubt that it would be an appropriate to consider the exercise of the court’s jurisdiction to award to the beneficiary of the rights a sum measured as the value of the rights in lieu of their continued exercise together with an appropriate sum in damages to compensate for any loss to the date of hearing.
The difficulty arises in cases where it may not be possible to establish that either party is wholly or substantially at fault. That raises the question as to how far it is necessary for the beneficiary of the rights to go in establishing responsibility for the state of affairs on the part of the owner of the property in order to be able to invoke the jurisdiction of the court for the award of such money. Intermediate cases where both parties must bear some of the responsibility will, therefore, give rise to the greatest difficulty.
Having regard to the fact that the primary entitlement of the beneficiary of the right is to exercise of the right conferred upon them, it seems to me that the appropriate test must be that in addition to satisfying the court that it has become unreasonable in all the circumstances of the case to require the beneficiary to be content with the exercise of the right, it is also necessary for the beneficiary to satisfy the court that the balance of the responsibility for that situation lies upon the owner of the right. It is not, however, necessary for the beneficiary to establish that they are entirely free from responsibility.
Application to the facts of this case
Both sides gave conflicting evidence as to the circumstances which pertained in the house both before and most particularly after the death of Theo Byrne. While the plaintiff made certain minor complaints as to the situation prior to that unfortunate event it does not seem to me that any of the matters complained of could go any distance towards a meeting the test which I have identified above as being one where it is necessary to show that by virtue of circumstances which were predominately the responsibility of the owner it had become unreasonable to expect a continuance of the practical exercise of the right by the beneficiary.
That matters became considerably more fraught after the death of Theo Byrne is undoubtedly clear on either account. On the basis of all of the evidence I am satisfied that what led to a breakdown in relations between the plaintiff and the first named defendant was the dispute which emerged over the nature of the interest which the plaintiff was to be given in the site. Until that dispute arose any issues between the parties were of little significance. Thereafter relations became strained and, as is the wont in such situations, matters which might not have given rise to any great acrimony between the parties started to become major issues. The plaintiffs principal complaint is really that she was not treated, in a number of important respects, in a manner which was consistent with her having an entitlement to reside in the house rather than being there with the permission of the first named defendant. Some of the matters complained of may not have being of great importance and would not have been likely to have given rise to any serious acrimony were it not for the unhappy differences that emerged from the dispute over the site. It seems to me, therefore, that an analysis of that dispute is essential to understanding much of the acrimony that ensued.
On that issue the plaintiff’s case is simple. She was to get the site put into her name.
I have to confess that I found it considerably more difficult to understand the first named defendants case. In answer to counsel for the plaintiff in the course of cross examination she said the following at Q. 203 (day 2):-
“Of course the house would be in her name, naturally, but the site would never be in her name. Joan was getting planning permission so obviously the house was going to be in Joan’s name but the site would never be in her name.”
It should be noted that the context of the question which elicited that answer was an invitation to the first named defendant to explain why the plaintiff would be required to spend her own money on building the house if it was not to be put into her name.
I find it impossible to accept that the arrangement was as described by the first named defendant. I have taken into account that she (the first named defendant) is not someone familiar with property or business and that such matters were almost certainly exclusively dealt with by her husband. However she was involved in the making of the arrangements in relation to the site and it seems to me that her recollection as to what those arrangements could not be correct. In the circumstances, and having had the opportunity to observe both parties and consider the totality of their evidence in that regard, I have come to the view, on the balance of probabilities that the account of the plaintiff as to what those arrangements were is more likely to be correct and I therefore find as a fact that the arrangements entered into between the first named defendant and her husband on the one hand and the plaintiff on the other hand was to the effect that a site would be placed into the name of the plaintiff. While it was not specifically referred to I am satisfied that it was implicit in that agreement that, as a result, the plaintiff would no longer have to exercise her right of residence.
In the light of that finding it seems to me that much of the acrimony that followed stemmed from the legitimate concerns of the plaintiff that her sister was going back on the arrangement that had been freely entered into. While it would be wrong to absolve the plaintiff from any blame in relation to the worsening of relations and while many of the instances described in the evidence are relatively minor in themselves I have nonetheless come to the view that they need to be viewed against the background of the fact that relations had seriously deteriorated by reason of the first named defendant backing out on the agreement previously reached.
I have therefore come to the view that the situation had, within a relatively short time after the death of the late Theo Byrne and certainly by the late summer of 2000 reached a stage where it was no longer reasonable to expect the plaintiff to exercise the right of residence. For the reasons set out above I have also come to the view that while responsibility for that situation rested upon both the plaintiff and the first named defendant the preponderance of that responsibility rests on the first named defendant. I am therefore satisfied with the tests which I have identified above for establishing an entitlement to the have the rights converted into money have been met by the plaintiff.
Before leaving the liability issues under this heading I should add that I have given some consideration to the fact that s. 81 of the Registration of Title Act, 1964 relates only to rights of residence and not to rights of maintenance and support. However on the facts of this case it does not seem to me to be practical to require the exercise of a right of maintenance and support without also requiring the exercise of the right of residence. That might not always be the case. However on the facts of this case it seems to me that the same result must follow in respect of the rights of maintenance and support as apply to the right of residence.
For reasons which will be clear in the course of analysing the financial value of those rights there does not seem to me to be any basis on the facts of this case for taking the view adopted by Lavan J. in Johnson to the effect that that the conversion of the rights to money would be impractical. It seems to me, therefore, that it is necessary to assess the value of those rights and direct that the plaintiff be paid that value together with a suitable sum to compensate her for her exclusion from the enjoyment of those rights to date.
The agreement in respect of the site
The final liability issue concerns the plaintiff’s alternative claim to the effect that she is entitled to have that agreement enforced as against the first named defendant in her capacity as the personal representative of Theo Byrne the registered owner of the site in respect of which the agreement existed. While I am satisfied, for the reasons indicated above, that the arrangements between the parties did involve an agreement to transfer such a site I am not satisfied that that agreement is legally enforceable.
There is no consideration so as to give rise to a contract.
There is, in any event, no note or memorandum so as to satisfy the statute of frauds. Counsel for the plaintiff places reliance on McCarron v. McCarron (unreported Supreme Court judgment of Murphy J. 13th February, 1997). Part of the case advanced by the plaintiff in that case was based on the doctrine of proprietary estoppel. In considering that aspect of the case Murphy J. cited with approval Plimmer v. Wellington Corporation 1884 9 App Cas 699 where it was stated:-
“Where an owner of land has invited or expressly encouraged another to expend money on part of his land on the faith of an assurance or promise that that part of the land will be made over to the person so expending his money the Court of Equity will prima facie require the owner by appropriate conveyance to fulfil his obligation and when, for example, for reasons of title, no such conveyance can effectively be made, or a Court of Equity may declare that the person who has expended the money is entitled to an equitable charge or lien for the amount so expended”.
Murphy J. went on to note that he saw no reason why the doctrine should be confined to the expenditure of money or the erection of premises on the lands of another. He noted that it might well be argued that where a plaintiff suffers a severe a loss or detriment by providing his own labours or services in relation to the lands of another he might equally qualify for recognition in equity.
However the only detriment suffered here was the making of a planning application and some brief discussions with a builder. I am not satisfied that any sufficient detriment was incurred such as would require a Court of Equity in reliance on the doctrine of proprietary estoppel to require a conveyance of the lands.
The plaintiff’s relief is, therefore, confined to payment in respect of the right of residence and the right of maintenance and support.
Quantum
While expert evidence was called by both sides in respect of the valuation of the right of residence and, indeed, the evidence of the plaintiff based such valuation on two alternative approaches, by the close of the evidence the plaintiff accepted that the valuation placed upon such right of residence by the defendants’ valuer was correct. It seems to me, therefore, that there is no dispute but that the value, as of today, of the right of residence is €145,000. It should be noted in that context that the house itself is worth upwards of €340,000 while the farm (including its milk quota) appears to be worth not too far short of €1 million. There was uncontested evidence that the appropriate multiplier for a person of the plaintiff’s age and gender by reference to which the right of maintenance and support should be valued was 861 times the relevant weekly payment. The plaintiff gave evidence that she was currently sharing a house in Dublin and that her grocery and utility bills came to something between €100 and €120 per week. However it does not seem to me that in practice the weekly value of the right of maintenance comes to quite that sum. Firstly even when the plaintiff enjoyed the right of support without any hindrance or difficulty she did not exercise it at all times. Secondly some regard has to be had to the fact that a right of support and maintenance derives from the profitability of the lands out of which the right of support and maintenance is to be met. I had the uncontested evidence of the second named defendant to the effect that his earnings from the relevant farm (that is to say the farm over which the right of maintenance and support lies) permitted drawings of approximately €300 per week. In all the circumstances it seems to be appropriate to place a current value on the right of maintenance and support at €70 per week thus giving a capital value into the future of €60,270.
While the precise time at which it became unreasonable to require the plaintiff to directly exercise her rights cannot be established with absolute precision I believe it is appropriate to regard that time as having arisen in the latter part of 2000 and thus to calculate her losses to date on the basis of 225 weeks.
There was little real evidence as to the weekly value of the right of residence. While the plaintiff gave evidence that she currently had the use of two rooms with the use of a kitchen and bathroom in Dublin (being a share of a house) in respect of which she had to contribute €500 per month together with expenses, it is difficult to see that there would be any comparability between that sum and the value of a right of residence in a rural area. Doing the best I can it seems to me that I should award a sum of €15,000 for the loss of the right of residence to date. On the basis of the above period of 225 weeks and a cost of maintenance and support of €70 the loss of that right to date comes out at €15,750.
The total sum to be awarded is therefore:-
Future value of the right of residence €145,000
Future value of the right of maintenance and support €60,270
Value of right of residence to date €15,000
Value of maintenance and support to date €15,750
Total €236,020
I would therefore propose awarding the plaintiff that sum and making no order in respect of any of the other reliefs sought. The sums awarded in respect of loss of the right of residence (i.e. €160,000) are as against the first named defendant. The sums awarded in respect of loss of the right of maintenance and support (i.e. €76,020) are as against the second named defendant.
Approved: Clarke J.
Cases Life Tenants & Waste
Doherty v Allman
(1877) 3 App Cas 709
Lord O’Hagan:
‘ waste with which a Court of Equity ought to interfere should be not ameliorating waste, nor trivial
waste. It must be waste of an injurious character- it must be waste of not only an injurious character, but of a substantially injurious character and if either the waste be really ameliorating waste – that is a proceeding which results in benefit and not in injury – the Court … ought not to interfere to prevent it …
Waste, to be of any sort of effect with a view to an injunction, must be a waste resulting in substantial damage.’
Honywood v Honywood
(1874) LR 18 Eq 306 Chancery (Jessel MR)
Jessel MR:
‘The question of what timber is depends first on general law, that is the law of England; and secondly, on the special custom of a locality. By the general rule of England, oak, ash and elm are timber, provided they are of the age of 20 years and upwards, provided also they are not so old as not to have a reasonable quantity of usable wood in them, sufficient to make a good post. Timber, that is the kind of tree which may be called timber, may be varied by local customs. There is … the custom of the country and it varies
in two ways. First of all, you may have trees called timber by the custom of the county – beech in some counties, hornbeam in others and even whitethom and blackthorn and many other trees are considered timber in peculiar localities – in addition to the ordinary timber trees. Then again, in certain localities, arising probably from the nature of the soil, the trees of even 20 years old are not necessarily timber, but may go to 24 years, or even to a later period, I suppose, if necessary: and in other places, the test of when a tree becomes timber is not its age, but its girth.’
Mancetter Developments Ltd v Garmanson Ltd
[1986] 2 WLR 871 Court of Appeal
Dillon LJ:
‘”Waste” is defined in Woodfall, Law of Landlord and Tenant, as being “a spoil or destruction to houses, gardens, trees or other corporeal hereditaments, to the injury of the reversion … “It is divided into two main categories, voluntary waste and permissive waste. Permissive waste, which is not in question here, is a matter of suffering buildings to fall into disrepair by neglect. Voluntary waste, which is in question, is said in Woodfall to be actual or comrnissive, as by pulling down houses or altering their structure. Waste is a somewhat archaic subject, now seldom mentioned; actions in respect of disrepair are now usually brought on the covenant.
… The law of fixtures is of very ancient origin. Originally the routine was simply that anything affixed to the land became part of the land and passed with the land, quicquid plantatur solo, solo cedit. The development of a tenant’s right to remove tenant’s or trade fixtures was a mitigation of that rule; it came about not by any change in the concept of what is a fixture, but by a qualification of the tenant’s obligation not to remove fixtures once they had been affixed to the land.’
Whatever the united view of the courts, however, the position that developed was, as put in Amos and Ferard on the Law of Fixtures (3rd edition 1883), ppl23-124, that:
“it appears to have been generally understood in practice that, as well where trading as where ornamental fixtures are taken down, the tenant is liable to repair the injury the premises may sustain by the act of removal ”
The extent of the liability is expressed in Foley v Addenbrooke (1844) 13 M & W 174 … as being that the tenant must leave the premises in such a state as would be most useful and beneficial to the lessors or those who might next take the premises and must not leave the premises in such a state as not to be conveniently applicable to the same purpose. I would interpret this as a requirement of the law that if a tenant’s fixtures are removed, the premises must be made good to the extent of being left in a reasonable condition.
The right of a tenant to remove tenant’s or trade fixtures arose by the common law independently of contract, though the right might be confirmed or excluded by contract. So equally … the obligation on the tenant to make good the damage, if tenant’s fixtures were removed, arose at common law irrespective of contract, although there might also in a particular case be a relevant contract.
The liability to make good the damage, or to repair the injury the premises may sustain by the act of removal of tenant’s fixtures, must, insofar as it is a liability at common law and not under a contract, be the liability of the person who removes the fixtures, and not of the person, if different, who originally installed the fixtures and left them there. The analysis of the liability at common law is … that the liability to make good the damage is a condition of the tenant’s right to remove tenant’s fixtures: therefore removal of the fixtures without making good the damage, being in excess of the tenant’s right ofremoval, is waste, actionable in tort, just as much as removal by the tenant of a landlord’s fixture which the tenant has no right to remove is waste. The act of the tenant, or in the present case Garmanson, in removing the tenant’s fixtures without making good was commissive rather that permissive …
… It seems to me, however, contrary to common sense and contrary to my understanding of the concept of voluntary waste, as something that applies even in the absence of any contract, or repairing covenant, that a tenant who for his own convenience installs tenant’s fixtures, and who has, in order to so, to make holes in the walls of his landlord’s building which are filled by those fixtures while they remain installed, should be allowed to remove the fixtures without filling the holes. So long as the fixtures remain installed, the building is wind and weather proof and there is no damage to the reversion. One affixed, the fixtures become part of the freehold. If they are removed, albeit legitimately, and the holes are not filled, the reversion then suffers damage. To make good the damage by filling in the holes (which involves, in part, replacing sheets of cladding and lining with holes in them) is part of the condition attached by law to Garmanson’s right to remove the fixture.’
KerrLJ:
‘ … in the present case there was a voluntary act, the removal of the machinery and the extractor fans. Admittedly there was a right to remove them, although they had been affixed to the realty, but if their removal caused the fabric of the premises to cease to be wind and water tight due to the exposure of the holes, as was the case, then the act of removal also had the effect of causing the building to become damaged when it could not be considered to have been relevantly damaged before. I therefore see no escape from the conclusion that a direction to carry out the removal without reinstating the holes was an act for which a claim in the tort of waste must lie. Accordingly I would dismiss the appeal.’
Turner v Wright
(1860) 2 De GF & J 234 Chancery (Campbell LC)
Campbell LC:
‘Equitable waste is that which a prudent man would not do in the management of his own property. This court may interfere where a man unconscientiously exercises a legal right to the prejudice of another – and an act may in some sense be regarded as unconscientious if it be contrary to the dictates of prudence and reason, although the actor, from his peculiar frame of mind, does the act without any malicious motive. The prevention of acts amounting to equitable waste may well be considered as in furtherance of the intention of the testator, who, no doubt, wished that the property should come to the devisee over in the condition in which he, the testator, left it at his death; the first taker having had the reasonable enjoyment of it, and having managed it as a man of ordinary prudence would manage such property were it absolutely his own.’