Special Cases
Cases
Bellew v Bellew
[1983] I.L.R.M. 128
(O’Higgins CJ, Griffin and Hederman JJ)
O’Higgins CJ
The plaintiff/appellant herein brought proceedings in the High Court against the two defendants seeking a declaration that he was tenant for life of Barmeath Castle, Dunleer, Co. Louth, and the farmlands ancillary thereto subject only to the yearly tenancy of the first-named defendant in Barmeath Castle. The first-named defendant was the plaintiff’s father. He will hereinafter be referred to as the father. He has died since the hearing of these proceedings in the High Court but his interests are fully represented by the second-named defendant. The second-named defendant is the plaintiff’s son. He will hereinafter be referred to as the grandson. The defendants filed a joint defence to the plaintiff’s claim and contended that this claim and the plaintiff’s right or title to both Barmeath Castle and the farmlands had been barred and extinguished under and by virtue of the Statute of Limitations 1957. McWilliam J, who tried the action in the High Court, dismissed the plaintiff’s claim in so far as it related to the farmlands, but granted the declaration sought in relation to Barmeath Castle, subject to the yearly tenancy of the father. Against this decision the plaintiff has brought this appeal.
The legal issue which arises on this appeal is whether, as contended for by the plaintiff/appellant, on the evidence adduced at the trial, it can be said that the occupation of the farmlands associated with Barmeath Castle by the father *130 from 1961 until 1978 was with the leave and licence of the plaintiff. In order to consider this issue it is necessary to state at some length the facts as established by the evidence at the trial.
Barmeath Castle has been in the possession of the Bellew family for some centuries. It comprises a mansion house with surrounding pleasure grounds and a farm containing some 300 acres of land. Prior to 29 October 1953 the property was owned in fee simple by the Fifth Lord Bellew who was a brother of the father and who, although married, was childless. This Lord Bellew did not reside at Barmeath Castle as his business interests kept him in London. He was, however, anxious that a member of the family would reside there and, accordingly, arranged with his brother (the father) who would succeed to the title after his death, to make the Castle his home. It was in these circumstances that the father, who later became the sixth Lord Bellew, went to reside at Barmeath Castle in 1939. The then Lord Bellew continued to be owner but gave the father a yearly tenancy of the house, retaining, however, control of the farmland. The father made the Castle his permanent home and lived there with his wife. He was joined in 1949 by his son, the plaintiff, who brought with him his wife and family, consisting of the grandson, a daughter and a younger son. The plaintiff and his family lived at Barmeath as part of the household with the father, who had considerable means, meeting the cost of schooling and other expenses. The plaintiff devoted his attention to the farm, and, with the full approval of Lord Bellew, obviously intended to make Barmeath, after the death of his parents, his permanent home. Towards this end, the then Lord Bellew, in 1953, conveyed the entire of the property to the plaintiff, subject to the existing tenancy of his brother in the Castle itself. From this on, the plaintiff worked and managed the farm but lived in the Castle with his wife and family as part of the father’s household. In 1960 the plaintiff executed a deed of settlement whereby he settled the Castle and lands in trust for himself for life with the remainder to his son, the grandson, in tail male with remainder over. This settlement was, of course, subject to the existing tenancy of the father in the Castle. Accordingly, following this settlement, the plaintiff had a life estate in Barmeath Castle and the farmland. His father continued to have a yearly tenancy of the Castle itself and the ultimate remainder in the entire estate went to the grandson, the plaintiff’s son. This represented the position and rights of the different parties at the time of the event which led ultimately to initiation of these proceedings.
It appears that since 1957 the plaintiff had a relationship with another lady. This relationship continued over a number of years and by 1961 had created a situation which was impossible both for the plaintiff’s wife and for his father who thoroughly disapproved of the plaintiff’s conduct. By this time a considerable tension had built up in the household, but, despite this, the plaintiff refused to terminate the affair. Finally, in the month of June 1961 the plaintiff, after an unpleasant altercation with his wife, left Barmeath, quite suddenly, without notice to anyone, and has never in fact returned. In so doing he left behind him his wife and family, without having made any arrangements for their maintenance and without in any way providing or preparing for their future. In sub *131 sequent negotiations between the solicitors acting for the plaintiff and the solicitors acting for the father, efforts were made to provide for the long-term management and running of the farm by the father and for provision for the plaintiff’s wife and family. The final proposal reached after many months and much correspondence was that a lease of the farm be executed in favour of the father and his wife, and subject thereto, for a conveyance of the plaintiff’s life estate to the grandson, the father agreeing to support the plaintiff’s wife and family. While these negotiations were in progress the plaintiff, through his solicitors, authorised the father to farm the lands pending the conclusion of the negotiations. However, these negotiations broke down in July 1963 and were never resumed.
Following the breakdown of these negotiations all communications between the plaintiff and those left behind in Barmeath ceased. The plaintiff went to reside in England with the lady on whose account he left his wife and family. He proceeded to make our a new life for himself and when eventually qualified to do so, commenced in the English courts divorce proceedings. Meanwhile the father continued to look after and provide for the deserted wife and family, seeing to the children’s education, at Eton for the boys, and, at boarding schools in Dublin and Paris, for the daughter. He also took over the running of the farm and continued to do so until the youngest son, the grandson, was able to assist in so doing. Eventually in December 1977 the father, who had become Lord Bellew following the death of his brother, and the plaintiff’s wife, made a lease of the lands to the grandson for a term of twenty-one years from 18 December 1977, and in August 1978, joined with the plaintiff’s second son to make a supplementary lease for the same term on the basis, apparently that this son might have acquired some interest in the lands. The execution of these leases having come to the knowledge of the plaintiff, he commenced these proceedings in November 1978 and, as already stated, claims a declaration that he had a life estate in the lands and that the defendants have no interest therein.
Before dealing with this claim and the issues raised in this appeal it is necessary to refer to one aspect of the facts to which I have made only a brief reference. This is to the authorisations given by the plaintiff to the father on two occasions to farm the lands at Barmeath. The first authorisation was contained in a letter dated 30 June 1961 written immediately after the plaintiff had left, by his then solicitors, to the father’s solicitors. It is in the following terms:
On behalf of Mr J. B. Bellew we confirm that the Honourable Brian Bellew has our client’s full authority to carry on all farming operations at Barmeath in such manner as he thinks fit and without being liable for any loss incurred in the carrying on all such operations. This authority will be valid until 30 September by which time we hope a more permanent arrangement will be arrived at.
The second authorisation was contained in another letter from the same solicitors, dated 5 December 1961 and was in the following terms:
… we write on behalf of Mr J. B. Bellew to confirm that the Honourable Brian Bellew has full authority to carry on all farming operations at Barmeath pending further negotiations, and in such manner as he thinks fit without being liable to *132 Mr J. B. Bellew for any loss incurred in the carrying on of such operations. It is understood, of course, that Mr J. B. Bellew himself will not be liable to anyone for any such loss.
As already indicated, the negotiations continued until July 1963 when they ended without any agreement being reached. The ending of the negotiations, however, did not end the father’s occupation and working of the farm lands. He continued to occupy and operate the farm as he had been doing and in fact so continued until his death.
It is apparent, from the foregoing recitation of the facts, that the initial occupation of the lands by the father was with the plaintiff’s consent or, at the very least, that such occupation was accepted and tolerated by him. There was very little he could do about it. He had walked out of Barmeath, abandoned his wife and family and left behind a large farm which had to be occupied and operated by somebody. As his original desire was, as appears from the correspondence, that in return for a tenancy of the farm his father would accept full responsibility for the support of his wife and family, it was to be expected that he would put his father into immediate occupation pending negotiations. It appears, however, that the father while willing to take a tenancy of the farm, was not prepared to enter into any binding commitment in respect of his son’s wife and family unless the existing life estate was released either to the wife or grandson, While agreement was eventually reached along these lines the plaintiff at the last moment declined to sign the deed and all negotiations ended. The result has been that the father, and later the grandson, have in fact been in exclusive occupation of these lands from June 1961 up to date and no claim of title thereto or effort to recover possession thereof was made by the plaintiff until the initiation of these proceedings in November 1978.
What then of the legal consequence of these events? As indicated, this is not a case of the wrongful or non-consentual occupation of one man’s land by another. On the contrary, this is a case in which the original occupation was with the approval and consent of the then owner. The occupation has, however, continued long beyond what was originally contemplated and has so continued to the total exclusion of the original owner. It seems to me that on the facts three possibilities must be considered. In the first place, was the occupation of the lands merely as the result of a licence from the plaintiff which conferred a privilege but no interest and which preserved the plaintiff’s rights at all times? Secondly, if the original occupation was by licence only, was it limited to the period of the negotiations and when these ended, was it supplanted by a period of adverse possession without any legal basis so as to enable the father to acquire a title under the Statute of Limitations? Finally, is the true explanation of the father’s entry into possession and occupation of the lands that he was not a mere licensee but a tenant at will having an interest as such in running the farm on his own account and for the benefit of his household which included the plaintiff’s wife and family?
In considering these three possibilities, particularly the first and last, the concern must be to ascertain the intention of the parties, in the absence of direct evidence, from the circumstances in which occupation was commenced. *133 It was formerly accepted that once a person had been in exclusive occupation of another’s land for an indefinite period he was to be regarded as a tenant at will and not a licensee (Doe v Chamberlain (1839) 5 M & W 14; Lynes v Snaith (1899) 1 QB 486). However, the tendency of more recent cases has been to move away from this facile assumption and to consider each case in relation to its own particular facts. This tendency has probably been accentuated by the operation of the Rent Acts. The headnote of Cobb v Lane [1952] 1 All ER 1199 (quoted with approval by Roskill LJ in Heslop v Burns [1974] 3 All ER 406 CA sets out, what I regard, as the present position on the authorities. It is as follows:
The fact of exclusive occupation of property for an indefinite period is no longer inconsistent with the occupier being a licensee and not a tenant at will. Whether or not a relationship of landlord and tenant had been created depends on the intention of the parties and in ascertaining that intention the court must consider the circumstances in which the person claiming to be a tenant at will went into occupation and whether the conduct of the parties shows that the occupier was intended to have an interest in the land or merely a personal privilege without any such interest. (at 408).
Having said this, I propose now to consider each of the three possibilities which I have mentioned.
The first possibility is that the entry into occupation was under a mere licence. I have referred to the two letters of authorisation but I think it is only necessary to consider the second which contained no time limit and which in effect continued the then existing situation. This letter is certainly capable of being regarded as conferring a licence only. However, regard must be had to the circumstances in which it was written. It was written by the plaintiff after he had deserted and abandoned his wife. It referred to the only source or means whereby the wife and family could be maintained, viz., the income from the farm, and it was written to the only person who could, by running that farm, maintain that income. In addition, if accepted, it imposed no benefit but rather a burden on the plaintiff’s father who would be obliged to take on extra responsibilities in ease of the plaintiff and for the benefit of the plaintiff’s dependants. Finally, it was written in contemplation of a more permanent legal arrangement, in respect of which negotiations were then under way, under which the father would have a lease of the farm. For these reasons I do not think a licence was intended or given. As I hope to show, it was the intention of the parties that the father should go into occupation as a tenant at will pending the conclusion of the negotiations which were then in being. However, if I am incorrect in this view and if the original entry into occupation was by licence, I must consider the second possibility and the question whether this licence survived the breakdown of the negotiations. The learned trial judge took the view that it did not, and that from July 1963 the father was in adverse possession of the lands. I find it difficult to say that this view cannot be justified by the evidence and I am not prepared to say that it is incorrect. My only hesitation in adopting it is that if the letter of 5 December 1961 conferred a licence ‘pending further negotiations’ when did this licence come to an end? Did it end because the negotiations actually in being were not fruitful or could it be said that it continued to exist because other and fresh negotiations were always possible?
*134
As indicated, however, I regard the third possibility as containing the true explanation as the circumstances of the father’s entry into possesssion and occupation of the farm. The plaintiff wished to relieve himself of his obligations to his wife and family. He contemplated doing so by giving a lease to his father in return for his father’s promise to look after the wife and family. Obviously he was never going to return to Barmeath as he was living with the other lady in England and contemplated divorce proceedings. Even as a short-term measure the intricacies of running a large farm with a danger of trespass, the possibility of agistment and other contracts, required that the person running such a farm would have some legal interest therein. It seems to me that such a situation indicated that a tenancy at will pending the grant of the contemplated lease must have been intended. While the inferring of tenancies at will may now be less frequent by reason of the Rent Acts and other social changes, such inference is still to be found in circumstances such as have occurred in the present case. A passage from the judgment of Scarman LJ in Heslop v Burns is apposite. He says:
In the books (and we were referred to a passage in Woodfall) one finds still the assertion that an exclusive occupation of indefinite duration can create a tenancy at will. The social changes to which I have alluded seem to show that less and less will the courts be inclined to infer a tenancy at will from an exclusive occupation of indefinite duration. It may be that the tenancy at will can now serve only one legal purpose, and that is to protect the interests of an occupier during a period of transition. If one looks to the classic cases in which tenancies at will continue to be inferred, namely the case of someone who goes into possession prior to a contract of purchase, or of someone who with the consent of the landlord, holds over after the expiry of his lease, one sees that in each there is a transitional period during which negotiotions are being conducted touching the estate or interest in the land that has be to protected, and the tenancy at will is an apt legal mechanism to protect the occupier during such a period of transition; he is there and can keep out trespassers; he is there with the consent of the landlord and can keep out the landlord as long as that consent is maintained. (at 416)
I have, therefore, come to the view that the father entered into occupation of the farm lands at Barmeath as the tenant at will of the plaintiff. The intention was that this tenancy would be replaced by a long-term lease but the breakdown of negotiations made this impossible. The father, nevertheless, continued on in occupation and now in these proceedings has pleaded the Statute of Limitations in answer to the son’s claim to assert title to the lands.
By s. 13(2) of the Statute of Limitations 1957 it is provided as follows:
(2) The following provisions shall apply to an action by a person (other than a State authority) to recover land —
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.
S. 17(1) of the Statute provides as follows:
(1)(a) A tenancy at will shall, for the purposes of this Act, be deemed to be determined *135 at the expiration of one year from the commencement thereof, unless it has previously been determined.
(b) The right of action of a person entitled to land subject to a tenancy at will shall be deemed to have accrued on the date on which the tenancy is determined.
And by s. 24 it is provided that at the expiration of the period fixed by the Act, for any person to bring an action to recover land, the title of that person to the land shall be extinguished. By reason of these provisions I am of the opinion that the plaintiff’s right to recover the lands the subject of this appeal was barred after the expiration of thirteen years from the month of June 1961 and that as from June 1974 his title to these lands was extinguished.
It is only necessary to add that certain statements, one in a letter from the father’s solicitors in 1975 and another in an affidavit sworn by him in the English divorce proceedings in 1977 were relied on as acknowledgements of the plaintiff’s title so as to prevent time running against him. I express no view as to whether these acknowledgements were such as to comply with the Statute but I regard them as irrelevant since they occurred after the period of limitation had expired and as the plaintiff’s title to these lands had been extinguished.
I would accordingly dismiss this appeal.
GRIFFIN J:
The facts have been set out in the judgments of the Chief Justice and of the learned trial judge. The question to be decided in this appeal is whether the occupation of the lands of Barmeath by the plaintiff’s father (‘the father’), between June 1961 and the institution of these proceedings on 2 November 1978, was, for a period of not less than 12 years during that period, adverse possession within the meaning of s.18 of the Statute of Limitations 1957. The plaintiff alleges that at all material times the father was in occupation with his permission and consent, and that accordingly time could not run in his favour. It was contended on behalf of the father that he was in adverse possession as and from the month of July 1963, and that he had accordingly acquired a statutory title to the plaintiff’s life estate in the lands at least 3 years before the institution of proceedings.
On the established facts, the occupation of the father can, in my opinion, be divided into two distinct periods — the one prior to, and that subsequent to July 1963. Shortly after the plaintiff deserted his wife and family in June 1961, discussions took place between his solicitors and the solicitors acting for the father and for the plaintiff’s wife, with a view to negotiating a separation agreement between the plaintiff and his wife, and other ancillary matters in connection with Barmeath. The letter of 30 June 1961 was written by the plaintiff’s solicitors in pursuance of those discussions and gave ‘full authority’ to the father to carry on the farming operations on the farm until 30 September by which time it was expected and hoped that an agreement would have been concluded. The negotiations had not concluded by that date, and continued thereafter. A similar authority ‘pending further negotiations’ was given by the letter of 5 December 1961, and on the following day the father’s solicitor acknowledged this letter and agreed that the arrangement ‘seems satisfactory for the present’. It appears to me that the reasonable interpretation of the authority given ‘pending further *136 negotiations’, in the circumstances of this case, is that the father was permitted to carry on the farming operations while the negotiations were continuing and until they were concluded, either by agreement or otherwise.
The negotiations broke down finally in July 1963 — we were informed that the real, though not the ostensible, reason for the breakdown was that the plaintiff, as one of the terms of the proposed agreement, required his wife to commence proceedings for divorce against him, but that she with the full support and approval of the father would not in anyway countenance divorce proceedings, and neither she nor the father were prepared to enter into any agreement on that basis. Any possible agreement, therefore, came to an end at that time.
The father was undoubtedly in exclusive occupation of the lands while the negotiations were going on and until they broke down in July 1963. It is therefore necessary to consider the nature of that occupation. It was formerly accepted law that where there was exclusive possession for an indefinite period a tenancy at will must be implied. That is no longer the case nor has it been for many years. In Shell-Mex v Manchester Garages Ltd, [1971] 1 WLR 612 Lord Denning tritely referred to it as being ‘old law which is now gone’. Although exclusive possession is an important consideration in determining whether the person in occupation is a licensee or a tenant, it is no longer a decisive factor, and the transaction as a whole must be looked at to ascertain the intention of the parties — see Shell-Mex v Manchester Garages Ltd (supra); Gatien Motor Co v Continental Oil [1979] IR 406. In Cobb v Lane [1952] 1 ALL ER 1199, Somervell LJ said:
The modern cases establish that, if there is evidence of the circumstances in which the person claiming to be a tenant at will, went into occupation, those circumstances must be considered in deciding what the intention of the parties was. (at 1200)
Shortly after Cobb v Lane was decided, Denning LJ said in Fachini v Bryson, [1952] 1 TLR, 1386:
In all the cases where an occupier has been held to be a licensee there has been something in the circumstances, such as a family arrangement, an act of friendship or generosity, or such like, to negative any intention to create a tenancy. (1389)
Cobb v Lane was applied in Heslop v Burns, [1974] 1 WLR 1241. In that case, Roskill LJ thought that the principle laid down in Cobb v Lane should be added to by what Denning LJ said in Fachini v Bryson, and Scarman LJ said that it seemed to him that what Denning LJ had said gives some helpful guidance as to the sort of circumstances that now have to be examined and assessed in determining whether or not a tenancy at will has been created.
The circumstances in which the father went into occupation in this case were, and were intended to be, in the nature of a family arrangement while the negotiations relating to a separation agreement between the plaintiff and his wife, and to the hoped for disposition of the plaintiff’s life estate in Barmeath, were being carried on. Applying the principles established in the cases to which I have referred, although the father was in exclusive possession of the lands until the negotiations were finally concluded (by breaking down) in July 1963, he was in my opinion in occupation as a licensee and not as a tenant at will, and time could not run in his favour while he so occupied as a licensee — see Murphy v Murphy *137 [1980] IR 183, per Kenny J at 202; Hughes v Griffin, [1969] 1 WLR 23.
However, as the arrangement under which he was in occupation of the lands finally came to an end in July 1963, so also did the licence and permission to occupy under the arrangements made between the parties and their solicitors. The father was then in his middle 70’s and, not unexpectedly for one of his generation, was somewhat outraged at all that had taken place in the previous two years. He wanted, and indeed had, no further contact whatever with the plaintiff or with anyone on his behalf. He farmed the lands at Barmeath as his own, paid all outgoings, and did not account to the plaintiff for any of the profits of the land. After July 1963 no communication whatever came to the father from the plaintiff; he did not contribute one penny to the support or maintenance of his wife or family, nor did he at anytime make any claim to the lands or seek any account of the profits of the farm.
In the foregoing circumstances, was the father in adverse possession within the meaning of s. 18 of the Act of 1957? The learned trial judge held that he was, and in my opinion he was correct in so finding. In Murphy v Murphy, (supra) Costello J in considering the question of adverse possession, applied the test ‘was the defendants’ possession inconsistent with and in denial of the (widow’s) rights as legal owner’ — the father’s possession undoubtedly satisfied that test. That case came to this Court on appeal and the decision of Costello J was upheld. In the course of his judgment, Kenny J said at p. 202:
In s. 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner; this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run (at 202)
The possession of the father was inconsistent with the title of the plaintiff; he clearly intended to exclude the plaintiff and all other persons from the lands, which he treated as his own, and he was a person in whose favour time could run. He was, in my opinion, undoubtedly in adverse possession of the lands. Accordingly, by virtue of the provisions of s. 13(2)(a), s. 14(1) and s. 24 of the Act of 1957, the plaintiff’s right of action to recover the land was barred after 12 years commencing in July 1963, and his title was, at the end of that time, extinguished.
One further matter arises in the appeal. It is alleged that in November 1975 and again in November 1977 there were acknowledgments of the title of the plaintiff by the father, and that accordingly by virtue of s. 51(1) of the Act of 1957 a fresh right of action was deemed to have accrued to the plaintiff on each of these occasions. In November 1975, the solicitors who act for the father wrote to the plaintiff in connection with wealth tax on the life tenancy in the land. The father was totally unaware of any such correspondence. In November 1977, the father made an affidavit in the son’s divorce proceedings. It is alleged that on each of these occasions there was an acknowledgment of the title of the plaintiff. Whilst I do not think that there was an ‘acknowledgment’ within the meaning of chapter III of the Act of 1957 on either occasion, it is not necessary to decide *138 this question, as the matter may be decided on a much broader ground. In the case of land, once the full limitation period of 12 years has run, no acknowledgment can operate to revive any action to recover the land. Prior to 1833, the statutes then in force barred only the remedy and not the right. S. 34 of the Real Property Limitation Act 1833, changed the law by providing that, once the full period of limitation had run, the right and title of the owner to the land was extinguished, so that not only was the remedy to recover the land barred but the title to the land was also barred. This position was continued by s. 24 of the Act of 1957. This section, as was pointed out in the judgments delivered by Walsh J and by me in Perry v Woodfarm Homes Ltd, [1975] IR 104, means what it says. No purported acknowledgment made after July 1975 could, therefore, revive the plaintiff’s right of action to recover the land.
I would accordingly dismiss this appeal.
HEDERMAN J:
I agree with the judgment of Griffin J and that the order of the High Court should be affirmed.
In re Mitchell’s Estate
[1943] IR 76
MAGUIRE C.J. :”
The question which this Court has to decide is whether there has been such an acknowledgment in writing of the debt due to John O’Leary as would prevent the statute from running.
The acknowledgment relied on is contained in the will of Patrick O’Leary. It reads as follows:””My brother John is entitled to a sum of £200 under a charge registered on the lands of Skeaf East.” It is contended that these words do not amount to an acknowledgment. In my opinion there could hardly be an acknowledgment in clearer terms. The acknowledgment is given by Patrick O’Leary. He was the person entitled either in his personal capacity or as executor of his mother Hannah O’Leary, to give an acknowledgment.
The main contention for the appellants was that the acknowledgment was insufficient because it was contained in a will. Blackburne L.C. decided over one hundred years ago in the case of Millington v. Thompson (1) that an acknowledgment could be given in a will. He based his judgment, on my reading of the case, upon the principle that the requirements of a will satisfy every end which can be attributed to the Legislature. Although that case differs in some of its facts from the present one I am satisfied that the principles on which it was decided apply in this case.
In Scott v. Synge (1), Millington v. Thompson (2) was cited and although the decision was based on another ground, Lord Ash bourne C. and FitzGibbon J. do not question the correctness of the decision while Porter M.R. said at p. 568:””Without throwing any doubt at all upon the case of Millington v. Thompson (2) I am of opinion that it differs entirely from that before us.” It is curious that there is such a dearth of authority on the point before us, but the decision in Millington v. Thompson (2) has been accepted for nearly a hundred years and, as the learned trial Judge pointed out, all leading text writers have cited it. The reasoning of the Lord Chancellor appeals to me and, in view of the fact that a liberal interpretation must be given to testamentary documents, I think he was eminently justified in the view which he took. I would find it hard, in any event, to differ from a judgment which has received such wide acceptance, but, as stated, I accept the reasoning of Blackburne L.C. and have no difficulty in applying it to the present case.
I do not feel it necessary to deal with any of the other authorities which were cited. I hold that the acknowledgment in the present case was sufficient. On the second point I hold that interest was payable. Accordingly, this appeal should be dismissed.
MURNAGHAN J. :”
I agree. The last will and testament of a man is a very important and solemn document and I believe that it is addressed to all the parties mentioned in it. Since the testator mentioned John I hold that the will was addressed to him and the acknowledgment given to him.
GEOGHEGAN J. :”
I concur on both the points involved.
O’BYRNE J. :”
I agree. The question is whether there is in this case a sufficient acknowledgment within the meaning of s. 8 of the Real Property Limitation Act, 1874. The section, so far as material, reads: “. . . unless in the meantime . . . some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent. . . .” It is only necessary to read the will to see that there is in it an acknowledgment in very clear terms. The words are, “My brother John is entitled to a sum of £200 under a charge registered on the lands of Skeaf East.”The terms are clear. The statement is contained in a document of a very formal and solemn nature. The will was duly signed and attested in the proper manner, and the testator was, admittedly, the proper person to give the acknowledgment.
In these circumstances the only question is whether the acknowledgment was given to the person to whom the debt was payable or to his agent. It has been decided, and, in my opinion, rightly decided, that the word “given” does not involve a physical delivery. The aim of the Legislature in using those words was, in my opinion, to exclude private documents”that is to say, documents which were prepared for some special purpose and not intended to be an acknowledgment of a debt. This is not a document of that nature. The will seems to have been intended to be an acknowledgment. The will was addressed to all the persons named in it and was available to all such persons, including John, and that seems to me to comply with all the requirements of the section. In my opinion the clear intendment of the section is complied with and the will contains a valid acknowledgment.
BLACK J. :”
I would like to add that the argument based on the words of Blackburne L.C. in Millington v. Thompson (1) could be carried too far. The Lord Chancellor was dealing with an argument that because a will is revocable during life it cannot be an acknowledgment given to the creditor. We do not know that the will in that case was not published before the statute had run. If it had not been, I do not think Blackburne L.C. would have held that it was made accessible to the creditor. He noted that the special provisions of the will before him “must have made it absolutely imperative on the person who had possession of the will to place it in the hands of these three persons at the testator’s death, or at all events to give them the earliest intimation of its contents.”I merely wish to guard myself against any undue interpretation of what Blackburne L.C. said.
I do not think that the section demands a physical delivery: but I would be slow to think that if a testator died, having made a will containing an acknowledgment of a debt, it could be deemed that such an acknowledgment was in any sense of the word “given” to a creditor, if the creditor did not know, and could not reasonably be expected to know, of the will or, perhaps, even that the testator was dead. Between these extreme cases there are cases like the present one in which a creditor might reasonably be expected to inform himself as to what is in a particular will upon the death of the testator. In this case I think this creditor might fairly have been expected to have taken the trouble to find out what the testator had done with his assets. I base my view upon that and think that the testamentary acknowledgment here can properly be treated as “given” within the meaning of the section. I agree, but only for the reason stated, with the judgment of Overend J., and I also agree with the other members of the Court on the question of interest.
Addiscott v. Fagan
. [1946] IR 196
Gavan Duffy J.
I confess that my first impression was that the defendant had no case, but that was before I recognised the difficulties that meet the plaintiff at every turn, and with some doubt and with some reluctance I have reached another conclusion.
The plaintiff sues to enforce two charges, first, a charge in favour of the Ulster Bank Ltd., dated 27th June, 1919, on the registered lands of Clondoogan, made by the defendant as registered owner to secure (up to £1,000) the then present and all future advances to him, and secondly, a charge on the lands of Ryebrook, dated 6th July, 1920, in favour of the same Bank, made by the defendant, a judicial tenant, to secure (up to £4,500) the moneys which on his current or any other account should for the time being be due by the defendant to the Bank. Each of the charges stipulated for repayment on demand, with interest. The earlier charge was registered on 5th July, 1919. And on 14th June, 1929, the defendant was registered as full owner, subject to equities, of the Ryebrook property.
The defence is grounded upon s. 8 of the Real Property Limitation Act, 1874, as creating a statute-bar.
The sequence of events is important. The defendant had several accounts with the Bank and his last lodgments were made to his current account No. 1 on 8th September, 1923, and to his current account No. 2 on 20th October, 1923, but he appears at all material times to have been heavily in debt to the Bank.
On 18th January, 1924, the defendant was found by the Lord Chief Justice of Ireland to be a person of unsound mind, and the matter was dismissed out of Lunacy on his recovery some seven years later by order of 27th May, 1931. Some material incidents occurred in the meantime.
On 12th March, 1925, an order in Lunacy, made on the application of the Bank, authorised the Bank to realise its two charges by sale, at this time the liability of the defendant to the Bank, covered by the two charges, exceeded, according to the Bank’s books, the total sum of £5,500 to which the combined charges extended.
The Bank did not sell; instead, it came to terms with Mrs. Georgina Fagan, whom the defendant had married some years before his catastrophe, and who is represented in this suit by the plaintiff, her executor. She died on 13th February, 1937, having left all her property, real and personal, to an adopted son and nothing to her husband.
By deed of transfer, dated 17th February, 1930, but stamped on 2nd May, 1931, the Bank assigned to Mrs. Fagan the mortgage debt and the mortgaged lands of Ryebrook, in consideration of the sum of £1,500 “this day paid by the said Georgina Fagan to the said Bank (the receipt whereof the said Bank doth hereby acknowledge)”; the deed recited the Ryebrook mortgage and stated that there was then due to the Bank on that security a sum of £4,500 for principal and £1,787 for interest, and it provided that nothing in it contained should be deemed to be a waiver or release of the Bank’s right to participate in the compensation award then outstanding in respect of the Ryebrook buildings.
I understand that Ryebrook had been the home of the Fagans since 1920; Mr. FitzGerald for the plaintiff informed me that the place had been burnt down in February, 1922, and it is evident that there was a heavy claim for malicious injury; it also appears from a later order in Lunacy that Mrs. Fagan spent, at dates unspecified, some moneys of her own on its restoration.
By instrument, dated 3rd April, 1930, but stamped on 5th May, 1931, the Bank for a consideration of ten shillings transferred the charge on Clondoogan to Mrs. Fagan; that transfer was not registered until 9th May, 1931. The Ryebrook transfer was not registered in the Land Registry.
The consideration money of £1,500, paid by Mrs. Fagan on 17th February, 1930, was probably paid to the Bank in Dublin and immediately credited against the defendant’s liability in the Bank’s books in Dublin or at its head office in Belfast; I have no direct evidence on this point, but it is proved that the branch of the Bank at Kilcock, where the defendant’s accounts were kept, did on 19th April, 1930, credit him “per Head Office” with the sum of £1,500 and £145 for costs, and it is not contested that that credit represents the money paid to the Bank by Mrs. Fagan. This entry corroborates the deed in placing the actual payment of the money early in 1930. This suit was begun on 16th September, 1942, so that the plaintiff, representing Mrs. Fagan, must show a payment or acknowledgment within twelve years of that date, to escape the statute-bar.
On 27th March, 1931, the Chief Justice sitting in Lunacy, just two months before the patient’s discharge, directed a number of payments to be made, including a sum of £850 to the Bank, and including £680 to Mrs. Fagan on her undertaking, in consideration of the payments directed by the order, to release the patient’s estate from all claims for moneys expended by her in rebuilding and repairing his house at Ryebrook. The evidence on which this order was made is not before me, but an acknowledgment under seal given by the Bank to Mrs. Fagan’s solicitors shows that the sum of £850 came from a compensation award for the destruction of buildings at Ryebrook and that the Bank received the money on 23rd April, 1931, within twelve years of the institution of this action. The Kilcock branch of the Bank credited the defendant with the money “per Head Office” as at 5th May, 1931, and a large balance then shown due by the defendant in the books of the branch was on 11th May, 1931, expressly written off.
A point arises here to which the defendant attaches great importance, and I must mention it. The plaintiff says that the two assignments by the Bank to Mrs. Fagan were escrows and, to become effective, had to await the payment which the Bank had reserved to itself out of the compensation money. Mr. Casey for the defendant first objects that the plaintiff cannot rely upon an escrow which he has not pleaded, and the fact is certainly not pleaded. I do not see any need to decide this pleading point, though it might be important on a view of the transaction that I do not accept. Then, if the deeds are held to be escrows, despite his fundamental objection as a draftsman, Mr. Casey goes on to claim that, as soon as the condition which stood in their way was performed, a common law doctrine of relation back must make them operative as from their dates and not from the date of their delivery.
As I do not propose to decide that knotty point either, I shall say only a few words on the facts affecting this issue. The direct evidence is tenuous. I find nothing whatever in the text of either transfer to suggest an escrow, but each of them has impressed on it an official rubber stamp (one of them with the word “escrow” inserted in ink) to the effect that a statutory declaration has been produced, showing that the deed was tendered for stamping “within date,”that is, within the thirty days allowed for inland instruments by s. 15 of the Stamp Act, 1891. There does not appear to have been any “adjudication.” The Inland Revenue Commissioners in England take the date of delivery as the date of execution for the purpose of s. 15, but require evidence as to the date of delivery; that was the practice both before and after the Treaty, see Alpe’s “Law of Stamp Duties,”notes to s. 15, in the edition of 1911 and the edition of 1935. I may safely assume that our Revenue Commissioners have continued the same practice. Hence I infer that a declaration from one or both of the solicitors concerned satisfied the Stamp Office that both the transfers were escrows, not delivered until April, 1931.
The deeds were presumably stamped by Mrs. Fagan. I have here some prima facie evidence that the deeds were, rightly or wrongly, thought by one or both of the parties (whose intention was important) to be escrows. That was a very understandable view to assert against the Revenue, and no penalty was exacted for the delay. Then I find attached to the Bank’s acknowledgment of its £850, which was duly proved, a letter from the Bank’s solicitors to Mrs. Fagan’s solicitors, showing all the deeds and documents in the matter of ” Ulster Bank v. Fagan ” (a suit of which I have no particulars) to have been handed to Mrs. Fagan’s solicitors on payment of the money; that letter was not formally proved, I think, but perhaps proof was hardly necessary. I do not doubt that the two deeds of transfer were among the assurances thus handed over by the Bank to Mrs. Fagan. That is evidence of the time of delivery, but I am by no means satisfied, and it has not been established, that either of these assignments was an escrow.
I have already had occasion to allude to the last of the documents that I have to notice; that is, the Bank’s formal acknowledgment (for Mrs. Fagan’s solicitors), dated 23rd April, 1931, of its receipt, from the estate of the defendant in Lunacy of the sum of £850 in full discharge of all claims against the compensation award received in respect of the destruction of the buildings on the lands of Ryebrook, coupled with the statement that it has no claims against the defendant or his wife or their estates for principal, interest, costs or otherwise; the seal of the Bank follows.
That document appears to have been called for by Mrs. Fagan’s solicitors in the Ulster Bank’s action against her, as evidence of a final settlement of the claims presumably made by the Bank in the action. But I have no scrap of evidence to show the terms of the receipt given by the Bank for the official draft for £850; the Chief Justice had ordered that payment to be made by the Accountant of the Courts of Justice out of the funds standing to the credit of the matter of the defendant, a person of unsound mind; if the Accountant required anything more than the endorsement of the draft by the Bank, I have no knowledge of any such further receipt.
The plaintiff, who must find some payment or acknowledgment within twelve years of 16th September, 1942, makes three distinct answers to the Statute of Limitations. First, he pleads the order for sale of 12th March, 1925, and claims that, so long as that order stood, that is, until the patient’s discharge on 27th May, 1931, the operation of the statute was suspended; he relies upon Harpur v. Buchanan (1)and upon Stedman v. Hart (2); the latter case turned on somewhat peculiar facts (summarised in In re Watson, Guardians of Stamford Union v. Barlett (3)) and upon the view that an action by the creditor would have been stayed by the Lord Chancellor under the English lunacy law and practice; the Irish case shows that an incumbrancer, whose claim is not yet barred at the moment when another mortgagee sues for a sale, may claim in that action, though the statute may have run in the meantime, because a mortgagee’s action with an order for a sale enures to the benefit of the other persons who have charges when he brings his action. I consider neither of those authorities apposite here.
The Court in Ireland does not take charge of the affairs of a lunatic so found for the benefit of his creditors, but for the benefit of the patient; the liability of the defendant to the Bank remained, when he was taken under the care of the Court, precisely what it was before that event (Lunacy Regulation Act, 1871, s. 95); an action by the Bank to enforce its securities could not have been restrained by the Court, if the Bank had not submitted voluntarily to the jurisdiction by making its claim in Lunacy; the Bank was not compellable to claim in Lunacy; the Chief Justice must in his discretion have given the Bank liberty to realise its mortgages because he deemed that course to be just and reasonable or for the benefit of the patient. (See s. 63 of the Lunacy Regulation Act, 1871.)
Rejecting, as I do, the case made at this point by the plaintiff, I still have to determine what effect, if any, as against a statute-bar, I ought to attribute to the order for sale. The plaintiff does not advance the order as a written acknowledgment by the Chief Justice on behalf of the defendant, because, viewed in that light, if it is capable of being so viewed, it was made too early to serve the plaintiff’s case.
I doubt if the abortive order in Lunacy had any bearing on the operation of the statute-bar; the decision in Irish Land Commission v. Davies (1) though under another code, seems to furnish a fair analogy and to show that it had none.
Alternatively, the order might be taken to stop the course of the statute while the order remained effective. But the Bank closed that period of vigour finally, when it took Mrs. Fagan’s money in full discharge of all its claims, excepting only a claim, involving no sale, to get something out of the Ryebrook compensation moneys. Thereafter the order was otiose, because it was spent. The Bank, not having sold under the order, gave up all right to a sale upon assigning its interest in the lands to Mrs. Fagan for value then received more than twelve years before this suit was begun. I find nothing in the deeds and nothing in the evidence to suggest that, if the Chief Justice had refused to let the Bank share in the compensation, the Bank could on the escrow theory have avoided the assignments to Mrs. Fagan and it would, of course, never have thought of attempting to avoid them. With regard to Mrs. Fagan’s position as assignee, I apprehend that she could not, if she would, have proceeded to sell by virtue of the order giving the Bank liberty to sell; it was one thing for the Chief Justice to have yielded to the Bank’s prayer for liberty to sell; it would have been quite another for. him to sanction a sale at the instance of a creditor who was first and all the time the patient’s wife, and an ad hocapplication by her would have been necessary. Assuming that Mrs. Fagan bought out the Bank in order to protect her home and spent money on restoring the place because it was, and was to remain, her home, I see not the slightest reason to suppose that she contemplated a sale of Ryebrook. But, had she wished to sell either property in her new capacity of mortgagee, she would have assumed no light burden in setting out to justify that claim before the Chief Justice; he had, as another order shows, displaced her as committee for her husband on the ground of a conflict of interests and he would certainly have insisted on being satisfied that an order giving her liberty to sell would be just and reasonable or would be for the benefit of his patient. Accordingly, if the Bank’s order for sale, though actually inoperative, did stay the statute for a span, the stay did not extend beyond the date of the earlier of the two assignments, 17th February, 1930, when Mrs. Fagan paid her £1,500 to the Bank; that stay would not avail the plaintiff against the Statute of Limitations.
The plaintiff’s second answer to the statute relies on the Chief Justice’s order for payment of £850 to the Bank and on the payment of that money and its application by the Bank towards the defendant’s general indebtedness on its accounts. The payment must have been directed by the Court by reason of that indebtedness, since there is no suggestion of any other claim by the Bank against the defendant, whether in Lunacy or otherwise, so far as the evidence in this Court goes. And the Bank thereupon cancelled the debt in its books. The Bank had no legally enforceable claim on the compensation award that produced the money: Meares v. Collis & Hayes (1); but the money was evidently paid to the Bank with Mrs. Fagan’s assent, in pursuance of the bargain between them, and the Chief Justice, who was most meticulous in his care of the interests committed to his charge, must have been fully apprised of the arrangement and have approved of it, before he sanctioned this payment, though the actual evidence in his Court is not before me. Therefore it is reasonable to assume that, when making the order for payment, the Chief Justice knew, as the Bank and Mrs. Fagan knew, that this was the payment of the Bank’s final and only remaining claim and that the Rank had no further interest in the mortgage debts. Somuch for the position of the Court paying the money, on the uncertain assumption that the payment, directed by the Court itself, and not made by the patient’s committee, can be treated as a payment made by an agent for the defendant.
But what was the position of the Bank and Mrs. Fagan? Here I must examine the Ryebrook and Clondoogan transfers separately. The singular transaction of 17th February, 1930, in respect of Ryebrook, amounted to an assignment by the Bank of a part of its mortgaged debt, and the method adopted was unusual (Fisher’s “Law of Mortgage,” par. 190). Whatever the date of delivery of the Ryebrook deed of assignment, the clear result of the Bank’s execution of it in consideration of £1,500 then paid by Mrs. Fagan was to make the Bank, retaining the deed, a trustee for her, except as to the money to be received from the Ryebrook compensation award, which the Bank deliberately segregated and reserved for itself. And, on receiving that money it proceeded to give her the out-and-out quittance of an incumbrancer whose claims have been wholly discharged. The Bank received from the Court its own quota, its own final dividend as it were, at a moment when it had ceased for more than a year to be the true owner of the bulk of the moneys due, or to have any beneficial interest in the mortgaged land. I am impliedly invited to hold that the final payment to a beneficial owner, on his own account, of his entire claim under a mortgage, after its complete severance from other moneys secured by the mortgage, enures, as against the Statute of Limitations, to the benefit of the owner of those other moneys for whom the payee happens to have constituted himself a trustee in equity. Authority on this aspect of the case is scanty, but the refusal of Knight Bruce V.C. to recognise an acknowledgment given to a person not entitled, in Holland v. Clark (1), and the statement by James L.J. in Markwick v. Hardingham (2) that, if the estate of a mortgagor has become, by his own act or by the operation of the law, vested in some one else, it would be an absurd construction of the relevant section (3 & 4 Wm. 4, c. 27, s. 28) to consider him a mortgagor capable of receiving an acknowledgment of a title to redeem, and Lord Herschell’s emphatic endorsement in Stamford, Spalding & Boston Banking Co. v.Smith (3) of the principle that an acknowledgment, to exclude the statute of James I, must be one from which a promise to pay can be inferred, all appear to me to concur in tending to show that on principle the payment to the avail the plaintiff as assignee of the Ryebrook charge. That was not a payment of any part of Mrs. Fagan’s claim against the mortgagor; it was not a payment to an agent of hers; and I find in the payment no implied promise on behalf of the debtor to pay her the moneys to which she had previously acquired the exclusive title from the Bank, moneys which upon that acquisition had been set apart for her and treated as separate from the special windfall of £850, in which the Bank took care to retain the sole interest. Her aim, as I have already intimated, was to rid herself of the Bank, and she achieved it. It is manifest that, if I am right in viewing the payment by the Chief Justice’s order in this light, the plaintiff’s second answer to the statute must share the fate of the first, so far as the Ryebrook mortgage is concerned. The fact that Ryebrook had become registered land at the date of the transfer does not appear to me to improve the position of the plaintiff on this issue.
I have left Clondoogan for separate examination; the lands were registered in 1898 and the defendant became registered owner in June, 1919, and the bank registered its charge in July, 1919. Though the transfer of the charge does not refer to the Bank’s claim on the Ryebrook compensation moneys, there can be little doubt that the whole arrangement for the transfer of both charges was one in fact, and I so treated it in considering the position under the Bank’s order for sale, where no technical law of registration of title came into play. But the consideration as to Ryebrook is expressed to be a large sum of money, while as to Clondoogan it is expressed to be 10s. Under s. 41, sub-s. 2, of the Local Registration of Title Act, 1891, the instrument of transfer confers on the transferee no interest in the charge until she is registered as owner of it. If this transfer was an assignment for valuable consideration I think the principle of In re Strong (1), as stated by O’Byrne J. at the foot of p. 407, would apply, and I should have regard to the lady’s rights under her contract and the payment of the purchase money, treating these matters as factors distinct from the statutory effect of the registrable instrument. But, if the transfer was voluntary, a stricter rule prevails. I do not think I can use the inference, without evidence, of some verbal compact governing both transfers to find a valuable consideration contrary to the terms of the Clondoogan transfer.
I have therefore to determine whether the Clondoogan assignment is to be treated as voluntary, and to ascertain its consequence, if it is. The fact that the consideration was 10s. was elicited at the trial, but was not discussed, so that I have not had the advantage of hearing counsel upon this issue. I find that the transfer was stamped ad valoremwith a duty of 7s. covering a consideration of £1,000, the principal money, and an apportioned part of the interest outstanding (according to the Ryebrook transfer), that portion amounting to something over £300. But I treat this fiscal evidence as a neutral fact and quite inconclusive, because the document, if presented as a voluntary deed, would, unless stamped by indulgence at the same figure as an assignment for value, have required a stamp of 10s., if not £1: see Conybear v. British Briquettes Ltd. (1) and Anderson v. Inland Revenue Commissioners (2), since the more liberal provisions of the Finance Act, 1943, s. 14, were not yet in force. A Stamp Office concession cannot change the character of a voluntary assignment.
Because no preliminary agreement whatever between the Bank and Mrs. Fagan is in evidence, covering both transfers, I must on this issue (made a technical issue by the law of registration of title) take the documents separately as they stand, with the supplementary evidence as to their “delivery.”The Clondoogan transfer stands apart from the other, though, as I have inferred, the two transfers were delivered together. They were executed at different dates and stamped on different days, and the other transfer was made for value. In the Clondoogan transfer, the consideration of 10s. is a nominal consideration and the transfer is voluntary, for that is no consideration at all and, of course, no money passed: Leifchild’s Case (3); Devoy v. Hanlon (4). As I read Devoyv. Hanlon (4), though Mrs. Fagan was not quite helpless before her voluntary Clondoogan transfer was registered, she acquired no rights until the deed was delivered to her on 13th April, 1921, just after the Bank had received its £850. I do not believe that this deed was executed as an escrow, conditionally upon the Bank’s receipt of part of the compensation award for Ryebrook, and I must hold that the deed became the effective deed of the Bank as at the date of actual delivery: see Taylor v. McCalmont (5). The corollaries seem to me to be, first that, quoad Clondoogan the Bank is the only chargeant of whose existence I can take cognizance before the moment of delivery, and then that the payment of the £850 to the only chargeant must,quoad Clondoogan, be taken as part payment of the mortgage debt, assumedly vested in the Bank at the time of payment. On this reasoning the plaintiff succeeds in defeating the statute-bar quoad the charge on the lands of Clondoogan.
The third answer of the plaintiff to the Statute of Limitations involves no such subtleties and depends on plain matters of fact and the proper inferences therefrom; he claims that payment of interest by the defendant must be implied from the facts that he lived in amity with his wife for nearly six years, from 1931 until she died in 1937, and that during that time she managed his affairs and kept the sole banking account, in which all his moneys were lodged and from which all payments on his behalf were made. This picture is, I fear, a caricature of the true position, so far as I can ascertain it from the evidence. I find that after the defendant’s emancipation, his wife had the sole banking account and I infer from all the evidence that she had substantial means, while he had little or probably no money, except what he may have got from her. There is no evidence before me of any payment by her on his behalf, though I may assume that she paid the rates and income tax on Ryebrook. But a more material fact is that there is no evidence that any moneys of his went into her account or into her hands. She appears to have supported herself and her husband and their adopted son, James Fitzsimons; this young man is the real plaintiff, for whom the plaintiff, as her executor, brings this suit, for she left her adopted son the whole of her property, real and personal, to the exclusion of her husband, in a will made a year before her death. That was a singular will in view of the defendant’s penury and the “amity” prevailing between husband and wife; but, as between husband and wife, amity is a word of immense elasticity.
The adoptee was about nine years of age in 1931 and about fifteen in 1937; his slight evidence in favour of the friendly relations of Mr. and Mrs. Fagan was not unexpected, and, as it was not questioned and the defendant himself gave no evidence, I must assume that the parties lived on good terms. Young Fitzsimons says that Mrs. Fagan made all payments, while the defendant did the practical work on the farm, where they kept horses. The boy used to go to Dublin with her and she bought groceries, seeds and implements; she also bought two stallions; Mr. Fagan went to horse fairs sometimes and the witness saw him get the money for the fairs from his wife; on one or two occasions, when the defendant had sold a horse at a fair, the witness saw him give the money to Mrs. Fagan. It was proved that the lady had a local grocery account in her own name; one witness for the plaintiff said that Mr. Fagan bred horses, but he knew that Mrs. Fagan owned them. The defendant’s brothers had the farm at Clondoogan, some fourteen miles away; if they paid rent to the defendant, that was a source of income for him; but I have no evidence that they paid him any rent.
The defendant’s “affairs” seem to have consisted in working the stud farm at Ryebrook, while his wife financed it; whether it made money or not, I cannot tell; but I must conclude that the husband was dependant on his wife for his support, contributing his labour. She had bought out the Bank to save her home from a sale and had spent her own moneys on restoring that home. I detect no evidence that he was at any time in a position to pay her any mortgage interest, had she claimed it. And it seems highly probable that neither husband nor wife gave a thought to her mortgage interest, which both, I think, well knew that he could not pay.
I do not forget Mr. Fagan’s letter of 5th March, 1937, to the plaintiff, but it is equivocal; the relevant passage may refer only to a property called the Somerton Estate; and, if I construe the letter as the plaintiff does, to show that all moneys went into Mrs. Fagan’s banking account, that would not alter the fact that she, and not he, was the moneyed party on the evidence.
The presumption of payment of interest by the defendant to his wife must be based on one of two principles, to neither of which the judgments in In re Dixon (1), invoked for the plaintiff, seem to add anything of special value in this investigation; incidentally, that case was largely based on the finding that the husband there was in the position of an express trustee.
The first principle to support the plaintiff’s presumption is that the statute does not run while the hand to pay and the hand to receive are one, because the Court does not insist on an idle ceremony. But I cannot apply that principle where the husband’s is alone the hand to pay and the wife’s alone the hand to receive; and that was the position here. An alternative basis for the same presumption is that, where a husband has been maintaining his wife, mortgage interest due by him to her may be deemed to have been paid, by reason of a presumed gift of it to him by her, as it accrued due, for their joint benefit in the maintenance of the household; but this principle applies only where the debtor is the person who has maintained both spouses. The principle does not fit the facts; it is very far indeed from fitting them; and, if it did fit, the principle might prove to be much less easy of application where the wife has the money, because in the mind of the Courts the principle seems to have been closely associated with the man’s position as head of the family: In re Young (1). Compare the law on the presumption of advancement and also the liability to maintain at common law.
I hold that the plaintiff’s third answer to the Statute of Limitations fails. In the result, I shall grant the declaration of charge, sought by the plaintiff, in respect of the lands of Clondoogan, subject to the limit of £1,000 as to principal and to the six years’ statutory limit as to interest, and there will be the usual relief, consequential in a mortgagee’s suit for sale, with liberty to apply, in case the plaintiff be advised that he can obtain an order for possession or for the appointment of a receiver. And the action will be dismissed, so far as it concerns the charge on the lands of Ryebrook and relief in respect thereof.
From this decision, so far as it related to the charge on the lands of Ryebrook, the plaintiff appealed to the Supreme Court (2).
MURNAGHAN J. :
This is an appeal from an order of Mr. Justice Gavan Duffy.
The plaintiff as executor of Mrs. James Fagan sought to have a mortgage and charge declared well charged against certain lands belonging to James Fagan. The order of Mr. Justice Gavan Duffy declared a deed of charge to be well charged on the lands of Clondoogan, but did not allow the claim to have a deed of mortgage charged against other lands, and this latter matter is the subject of appeal to this Court.
The matter involved is in respect of a mortgage and charge made originally in favour of the Ulster Bank Ltd. and afterwards transferred to Mrs. Fagan by the Bank. As the case was put in the High Court a large portion of the arguments concerned a payment of £850 made to the Bank when James Fagan was under the care of the Court. Mr. Justice Gavan Duffy treated this as a payment on foot of the charge on the lands of Clondoogan, which were registered lands, the payment having been made while the Ulster Bank Ltd. were the registered owners of the charge, the transfer of this charge to Mrs. Fagan not at the time being entered on the register.
In reference to the mortgage on the lands of Ryebrook, with which this appeal is concerned, the original mortgage to the Bank was made in 1919 when the lands were held as a judicial tenancy under the Land Acts, and the transfer by the Bank was dated on a day in 1930, but the deed of transfer was not then handed over to Mrs. Fagan. The learned Judge thought that he could not treat the payment of £850 as a payment on foot of the mortgage, and he disallowed the charge on those lands.
Before this Court there was an argument that certain portions of evidence tendered were wrongly disallowed. This Court has ruled that an affidavit made by the Committee of the estate of James Fagan was admissible in evidence. It was tendered to prove that the deed transferring the charge had not been delivered to Mrs. Fagan when the sum of £850 was paid to the Bank, but when the full affidavit is read, a number of facts come out which were not in evidence before Gavan Duffy J.
It has accordingly been argued that this sum of £850 was not a payment by, or made on behalf of, James Fagan. If so, the plaintiff cannot rely on it to answer the plea of the Statute of Limitations.
The arguments on the appeal have been made on three different lines:
(1) As to whether the payment of £850 to the Bank was, or was not, a payment made by James Fagan.
(2) Proceedings had been taken in the Court of the Chief Justice by the Ulster Bank in which they had obtained an order for sale and that order was pending till 1931. The summons in the present matter was issued in 1942, and we have been asked to say that while the suit was pending in the Court of the Chief Justice the statute did not run.
(3) Mr. Fagan recovered, and the matter was dismissed out of Court. Mr. Fagan then went and lived on the lands. At this time Mrs. Fagan, by virtue of the transfer of the mortgage, was entitled to interest. She did not get any payment on foot of that interest. We were, however, asked to say that where a husband is liable to make payments to his wife and the parties are living together, the Court should assume that there has been a payment which is being appropriated to the household expenses, and that this payment is sufficient to bar the effect of the Statute of Limitations.
About 1922 the buildings at Ryebrook were destroyed by fire, and a claim for compensation was brought and £2,200 was awarded. On the 12th March, 1925 the Bank had applied to the Chief Justice and got an order that they be at liberty to realise their mortgage, the sale being retained in Court. There is a decision to the effect that a mortgagee who has not entered into possession is not entitled to compensation moneys, but the Bank could have applied to the Chief Justice to have a payment made to them. The parties’ first idea was that they could sell the right to the compensation moneys. There was a tentative agreement to sell these rights for £1,100, out of which the Bank was to receive £850 and this proposed arrangement was sanctioned by the Chief Justice. I take it that the £850, if paid, would have been paid to the Bank in part discharge of principal and interest due on their security.
This suggested arrangement, however, fell through because the award had a restoration clause which meant that the money would have to be used for the purpose of rebuilding on the lands of Ryebrook. Thereupon Mrs. Fagan proceeded to restore the buildings. The Government would not pay the compensation money until they saw the buildings restored and their officials went into the amounts expended, and, when they were satisfied, the total award was passed for payment. Mrs. Fagan, having spent a very large sum, was entitled to be reimbursed, and she applied to the Chief Justice to recognise her claim, and, the matter having been investigated, it was recognised that she ought to get £1,800. She made an arrangement that the Bank were to get £850 and she was given credit for sums due by her, and was paid the balance in cash. Though the matter is not elaborately stated in the order made by the Chief Justice, I think it to be clear that she made the claim to be repaid, and that £850, portion of the amount allowed to her, was at her request paid to the Bank, and that she got £1,000 balance. I must hold that the sum of £850 was paid by Mrs. Fagan and was not on account of principal and interest, but was part of the purchase price paid by her for having the mortgage transferred to her. The Bank were satisfied to take what they could get under the circumstances. In this view I do not have to consider the question whether the deed was handed over or not at the date of payment to the Bank, or the effect of non-delivery.
Now I deal with the second matter. Did the pendency of the suit in the Court of the Chief Justice stop the statute running? The suit was pending and the order for sale was made on the application of the Ulster Bank on the 12th March, 1925. I do not think it is necessary to discuss the Ulster Bank’s rights. I am satisfied that when they applied in the lunacy matter and asked the Chief Justice to make an order for the sale of the lands, the subject of their security, and obtained an order for sale, this order was a valid order for sale.
In 1931 the parties had new ideas. The Bank had got all they could get by transferring their mortgage to Mrs. Fagan. She did not want to sell the lands; she wanted to have them to live on them. Nobody objected to the matter being dismissed out of Court. If Mrs. Fagan had gone in and asked to have the sale carried out, she would have been given liberty to sell. It would have been her right. But it was nobody’s interest to have the sale carried out, and the question is whether, the matter having been dismissed, advantage can be taken of the fact that the suit was pending. I have grave difficulty in holding that advantage can be taken of the pendency of a suit which has been dismissed. Such a view would appear to be directly in conflict with the provisions of the statute. It is quite a different matter when parties can come in and take advantage of a pending suit.
The third matter rises from the relation of the parties. There was some evidence given, and I may make this comment, that the defendant gave no evidence, but, from the slight evidence given, certain facts are proved. The farm is a substantial one, over 150 acres, and portions of the land were let for tillage. It was stated in evidence that about fifty horses were kept on the land. Mrs. Fagan kept the purse as she alone had a bank account. When a horse was sold the money was given by James Fagan to Mrs. Fagan and she provided the money to buy horses. The proceeds of the land, however, were the property of James Fagan.
Mrs. Fagan was entitled each year to the interest on the charges. She never got it. She did not ask for it. We have been asked to say that, where husband and wife live together and carry on a common household and the husband is liable to pay interest to the wife, the law assumes that interest on that money has been paid. There is authority for this point in equity, viz., that where a wife is entitled to be paid by her trustees, and the income has been received by the husband, and the wife does not demand payment from the husband, the money is treated as having been handed over to her husband by the wife. The point is now, however, taken that that principle does not apply when the husband is himself liable to pay and the wife does not insist on the payment. It is difficult to see what is the distinction in principle.
Apart from principle, certain cases have been cited which deal with this particular point. In re Hawes, Burchell v.Hawes (1) is a case where a husband was liable to pay interest to his wife, the wife did not insist on getting paid and theCourt held that it must assume that payment had been made. I do not see any reason for departing from that principle. Mr. Justice Gavan Duffy thought that it was not applicable to this case, but we must have regard to the fact that these lands were producing the family income. If the wife had insisted on getting the interest which was due to her, there would;have been less money for the household. I must treat the position as if the husband had paid the money to the wife and that the wife had given it back. On this ground the plaintiff is entitled to have the mortgages declared well charged on both descriptions of land, as such payment to the wife prevented the operation of the Statute of Limitation.
GEOGHEGAN, O’BYRNE and BLACK JJ. concurred.
The Munster and Leinster Bank v Browne
Queen’s Bench Division.
9 November 1895
[1896] 30 I.L.T.R 18
Johnson, Holmes, Gibson JJ.
Johnson, J.
The case altogether turns on the construction of this letter. In Greene v. Humphreys, Cotton, L.J., in his judgment, says:—“An acknowledgment must be such as to lead the Court to infer a promise by the writer to pay the debt.” Bowen, L.J., says:—“First of all the acknowledgment must be clear in order to raise the implication of a promise to pay;” and Fry, L.J., says in his judgment:—“An acknowledgment is an admission by the writer that there is a debt owing by him either to the receiver of the letter or to some other person on whose behalf the letter is written.” This letter complies with these conditions. We have here an admission by the writer of a debt due by him, and an appeal to the directors to accept a smaller sum. Therefore this motion must be granted, with the costs.
Holmes and Gibson, JJ., concurred.
M’Laughlin v Foley
King’s Bench Division.
27 February 1905
[1905] 39 I.L.T.R 197
Lord O’Brien L.C.J. Boyd, Wright JJ.
Motion for an order that the verdict and judgment for the plaintiffs for the sum of £7 9s. 9d. be set aside, and that the judgment be entered *197 for the plaintiffs for the sum of £149 16s. 3d., on the ground that the Judge was wrong in point of law in holding that certain letters were not sufficient acknowledgments of the debt to take the case out of the Statute of Limitations. The action was tried before Gibson, J., without a jury, on Feb. 16, 1905. The action was for goods sold by James M’Laughlin, deceased, of whose will the plaintiffs were executors, to the defendant, a publican. The account was an old one. The defendant made many payments, but each payment was not on the general account, but for specific goods for which the deceased passed a specific receipt. At the death of the deceased a large sum appeared to be due, but the debt was primâ facie barred by the Statute of Limitations. The plaintiff’s answer to the Statute of Limitations, which applied to all the claim save £7 9s. 9d., was founded on certain letters in reply to applications for payment, which letters were written by the defendant’s sister. The defendant’s case at the trial was that all the goods were paid for, that some of the goods were sent to his sister, and that the letters were written by someone without his knowledge. Gibson, J., found that the defendants owed the sum sued for, and that the letters were written with his full knowledge and authority. The following are the material portions of the letters relied upon by the plaintiff. On May 11, 1902, the plaintiff’s solicitor wrote to the defendant asking him to settle his account. An account had been furnished for £141 14s. 3d. in the preceding October. On March 12, 1902, the defendant replies to the plaintiff:—“I received a letter from Mr Nolan, solicitor, this morning about my account with you. I hope you will stop the proceedings until I see you on Friday. As I am expecting Mr. Donovan to town to-morrow, I cannot leave home. I want to see him about the house.” The next letter in reference to the account is dated Nov. 20, 1902 :—“I received your letter and I will attend to it as soon as possible.” On April 7, 1903, he writes—“I received your letter, and I am sorry for delaying so long without going in to make an arrangement about my account … If you will kindly speak to your father to stay the proceedings for a few days until arrangement would be made here, as it would ruin me now.” On June 10, 1903, he writes—“I am sorry I could not call to-day. I was from home, but I will call in on Friday morning, please God. You know from our long dealings that I am honest, and well inclined to settle with you as soon as ever I can. I am thankful to you for your long indulgence, if you will kindly stay the proceedings, as it would ruin me at present, and I will feel for ever grateful.”
The Court held that the letters were, as a whole, sufficient to take the case out of the Statute of Limitations.
Hawkesworth and others v Ryan
King’s Bench Division.
25 November 1902
[1902] 36 I.L.T.R 238
Palles C.B., Kenny J.
The Statute of Limitations runs between tenants in common, but the letter is sufficient to take this case out of the statute. It is an unconditional offer, whereas the offer in Curzon v. Edmonds was conditional, and did not become absolute until acceptance. The relation of landlord and tenant is not found to exist, and though evidence exists from which it might have been implied, we have no power to draw inferences of fact. Similarly with the claim for use and occupation. The plaintiffs are, however, entitled to an action for an account. Even if the action under 6 Anne, c. 10, has been swept away, an analogous action will lie. The Statute Law Revision Act repealed 6 Anne, c. 10, but it has a special section to the effect that it shall not affect any principle or rule of law or equity or established jurisdiction … notwithstanding that the same may have been in any manner affirmed, recognised, or derived by, in, or from any enactment hereby repealed. Hence, we answer the first question in the affirmative, and to the second we answer that the plaintiffs are entitled to recover in an action for an account.
Kenny, J.
I concur.
Leonard v. Walsh
.[1941] IR 27
Maguire J.
This case gives rise to points of very considerable importance, particularly as to the rights of a person of unsound mind where other persons enter into or remain in occupation of his property after his removal to an institution for treatment for his affliction.
The facts are comparatively simple and are not disputed. Edward Walsh, at the time of his death, intestate, on the 5th day of October, 1917, was possessed of two holdings of land now represented by Folios No. 16293 and 15918 of the Register of County Roscommon. He left him surviving his widow and five children. The widow, Kate Walsh, remained on the farm until her death on the 21st December, 1937. Her daughter, Ellen Walsh, remained on the farm until her death on the 7th May, 1940. The daughter, Margaret Walsh, went out of occupation of these lands in August, 1917, and in 1922 she emigrated to America, where she has remained ever since and never made any claim in respect of the property. Another daughter, Sarah, left the farm in 1920, and departed to America where she became a nun. She has never returned nor made any claim. The fourth child, Kathleen, left the farm in 1923, and was married later. By an indenture dated the 7th December, 1932, Kathleen assigned all her interest in the lands to her mother, Kate Walsh. The fifth and only other member of the family was Patrick Joseph Walsh. He remained on the farm with his mother and with his sister Ellen until, on February the 17th, 1928, he was committed to Ballinasloe Mental Hospital as a patient suffering from mental disease. He has remained there ever since. Patrick was not made a ward of Court until the present year, nor was his property under the care of the Court. By order of the President of the High Court, dated the 15th day of March, 1940, he was taken under the care of the Court and Mr. James Robinson, the General Solicitor for wards of Court, was appointed Committee of his estate. On the 29th day of April, 1940, an order was made by the President giving the Committee liberty to intervene or to take such proceedings in this matter as he might be advised.
On the death of Mrs. Kate Walsh on the 21st December, 1937, her executor claimed an order for the administration of her estate in a suit brought before the Roscommon Circuit Court. In that suit, in which Thomas Leonard (the executor of Kate Walsh’s will) was plaintiff and Ellen Walsh, the daughter who had remained on the farm, was defendant, a primary order for administration was made on the 29th June, 1939. Patrick Joseph Walsh was not a party until, by order of the Circuit Court Judge, dated the 7th May, 1940, he was, by the Committee of his estate, added as a defendant.
In the meanwhile, the suit for administration of Mrs. Kate Walsh’s estate had proceeded, and on the 10th day of October, 1939, the County Registrar had made his certificate. This certificate shows a very careful and thorough investigation of the affairs of this family as they appeared in evidence before the County Registrar. He had to find, in pursuance of the enquiries directed by the primary order of the 29th June, 1939, what were the respective rights of the members of this family and their respective representatives in the lands and monies representing the estates of Mrs. Kate Walsh and of Edward Walsh, the original owner of the farms. The County Registrar found that the chattel real estate of Edward Walshthat is the two farms in question belonged as to seven-fifteenths thereof to Mrs. Kate Walsh and that the daughter Ellen and the son Patrick Joseph owned the remaining eight-fifteenths in equal shares.
On appeal to the Circuit Court Judge, the learned Judge held (in effect) that the interest of Patrick Joseph Walsh was limited to two undivided one-fifteenth shares as a tenant in common with his sister and mother.
Against that decision an appeal has been taken to this Court. Mr. Binchy contends, on behalf of Patrick Joseph Walsh, that the decision of the learned Circuit Court Judge is erroneous and that it must be held that Patrick was entitled, not merely to his original two undivided one-fifteenth shares, but also to two further undivided one-fifteenth shares, being his share of the interests of Margaret and Sarah respectively, which interests were (it is said) acquired by his mother, Mrs. Walsh, his sister, Ellen, and himself as joint tenants by virtue of the Statute of Limitations.
The question involved here is a very interesting one, concerning the effect of the Statutes of Limitations in the special circumstances of this case. When Patrick was removed to the mental home in 1928, the statutory period of twelve years had not expired in respect of the absence of Maragaret and Sarah. Margaret had then been six years out of possession and Sarah approximately eight years. Kathleen had been out of possession for about five years, but as she assigned her interest to her mother in 1932, no question arises as to her two one-fifteenth shares.
It now becomes necessary to consider what was the position when Patrick was removed to the mental home. According to the finding of the Registrar (which is not disputed) the lands were being worked jointly by Mrs. Kate
Walsh, Ellen Walsh and Patrick Walsh, and, between the date of the father’s death in 1917, and the date of Patrick’s removal to the mental home in 1928, considerable sums of money were earned, and saved, as a result of the working of the farm by these three persons. After Patrick’s departure, Mrs. Walsh and her daughter, Ellen, remained in possession, pursued the same course, and they were able to save approximately £50 per annum until the death of Mrs. Walsh in 1937. At her death a substantial sum remained, which admittedly represented the accumulated earnings of the lands.
The legal questions raised by these facts have been very fully argued before me and I have received the greatest assistance from counsel in the case. It is conceded by Mr. Leonard that Mrs. Walsh and Ellen must be taken to have entered upon Patrick’s property as bailiffs to the extent of his two undivided one-fifteenth share. The findings of the County Registrar and all the evidence appear to make this clear. These two members of the family remained in possession of this undisputed property of Patrick without rendering any account in respect of it. At any time Patrick, if he had returned from the mental home, could have called for an account from them in respect of his share of the rents and profits. This is not, however, sufficient to decide the case. At the time of Patrick’s removal to a mental home the statutory period had not yet fully run in his favour as against those who had gone out of possession. I have to decided what interest was acquired by Patrick in the events which happened.
Now, I accept the proposition in Halsbury’s Laws of England, Vol. 19, p. 157 (as to which, indeed, there in no controversy) that “A person who is in possession of land without title has, while he continues in possession, and before the statutory period has elapsed, a transmissible and inheritable interest in the property, but an interest which is liable at any moment to be defeated by the entry of the rightful owner; and if such person is succeeded in possession by one claiming through him who holds till the expiration of the statutory period, such a successor has then as good a right to the possession as if he had himself occupied for the whole period.” The authority cited for that proposition is Asher v. Whitlock (1), and there is no doubt but that it is a correct statement of the law.
Mr. Leonard argued very strongly that, the period of possession being incomplete, nothing has happened since the removal of Patrick to a mental home to complete in his favour the statutory period necessary to give him a possessory title to the shares of his sisters Margaret and Sarah, and he states that the law applicable to the Statutes of Limitations has never been stretched so far as to make them apply to such a case.
I think that this case must be decided on a consideration of the position occupied by Mrs. Walsh and her daughter, Ellen, after the removal of Patrick to the mental home. They remained in possession of what was undoubtedly his property. They never accounted to him for rents and profits. They knew, or must be presumed to have known, of Patrick’s mental condition and they did nothing to bring him under the care of the Court. He was helpless and could do nothing to protect his property. They entered into possession of his property in circumstances allowing him (had he been well enough) to call for an account at any time. I am of opinion that in so doing they became themselves bailiffs of his interests for all purposes. I apply the reasoning of Palles C.B. in Graham v. Chambers (1),which has been summarised in the phrase, “Once a bailiff always a bailiff.” Having gone into possession of Patrick’s interest in a fiduciary capacity, Mrs. Walsh and her daughter cannot seek to limit the terms of that trust to suit themselves, and to confine their trusteeship to Patrick Joseph’s interest as tenant in common only, to the exclusion of his undoubted interest as a person in possession of lands acquiring a title under the Statutes of Limitations to the interests of his sisters who were remaining out of possession. The property of a person of unsound mind requires the protection of the Court. I hold that the possession of the mother and sister Ellen (after Patrick Joseph ‘s committal as a lunatic) was the possession of Patrick Joseph for all purposes including the continuance and preservation of the title he was acquiring by virtue of the Statutes of Limitations, on the doctrine of Asher v. Whitlock (2). Remaining on in possession has the same effect as entry into possession,per Palles C.B. in Graham v. Chambers (1). The same considerations apply in the case of a lunatic as in the case of an infant: Smyth v. Byrne (3). I apply the judgments of the Court of Appeal in that case to the facts in the present case. No event happened and no event has been relied upon, as changing the fiduciary capacity in which Kate Walsh, the mother, and Ellen, the sister, of Patrick Joseph Walsh entered into possession of all the estate and interest of Patrick Joseph during his incapacity. The onus of establishing such an event and change of possession is upon the trustee, per Powell J. in Rice v. Begley (1), and that onus has not been discharged.
Margaret Walsh and Sarah Walsh had been out of possession without making any claim for more than twelve years before the death of Kate Walsh, the widow, whose estate is now being administered, and I hold that their interests had been acquired by virtue of the Statute of Limitations by Kate Walsh, Ellen Walsh and Patrick Joseph Walsh as joint tenants: Smith v. Savage (2).
I reverse the decision of the learned Circuit Court Judge. The parties have agreed that the monies, which represent the profits on, and the savings earned on the lands, follow the same destination as the lands and, by consent, I order same accordingly.
Estate of Patrick Codd and Eliza Pettitt.
27 April 1910
[1910] 44 I.L.T.R 193
[1907] 41 I.L.T.R 182
Sir S. Walker, Bart. L.C., FitzGibbon Holmes L.JJ.
Sir S. Walker, Bart., L.C., after stating the facts, said :—The last of Cosgrove’s children by his second wife quitted this farm in 1882, and none of them have since returned to it. There is no evidence that a claim to it has ever been made by any of them. These facts are, in my opinion, sufficient to shift the onus of proof, and it therefore lies on the purchaser to show that Mrs. Maguire is still a bailiff. The youngest of Cosgrove’s children came of age in 1885, so that, unless their mother continued to occupy the farm in the capacity of bailiff for them, their title has long been barred by the Statute of Limitations. If Mr. Horner’s argument were correct, title to this farm could never be shown, save by obtaining an express renunciation of their claim from each of the children of Cosgrove’s second marriage; there is, however, no authority for saying that, unless it be expressly determined, *182 the relation of principal and agent must continue for an indefinite time. In Wall v. Stanwick, Kekewich, J., said the defendant would be accountable as bailiff “until the relation of principal and agent had been dissolved”; and in Hobbs v. Wade, North, J., held that a bailiff “must be taken to have continued in possession in the same character unless something were done to change the character of his possession.” What change could be more potent than the departure of the beneficial owners ? Coming of age would not, of itself, be enough, but going to America so long ago leaving a step-father in possession was, in my opinion, sufficient so to change the character of Mrs. Maguire’s possession as to allow the Statute of Limitations to run against those of her children who had emigrated. When this summons was brought, title was not shown, but I think that the statutory declaration which the vendor has undertaken to give will cure the defect in the title. We will accordingly allow the purchaser £10 10s. for his costs in the Court below. Each party must abide his own costs of the appeal.
FitzGibbon, L.J.
I concur. In this case the contest between the parties arose by reason of the vendor insisting on making title through Maguire only. The moment that the purchaser became aware of the way in which Maguire got the farm it was impossible for him to accept that title; Maguire’s tenancy could not be a root of title in equity. When Mrs. Maguire remained in possession of this farm after the death of her first husband, she was herself beneficially entitled to one-third of it, and, having four minor children, she was in the position of bailiff on their behalf as regards the rest of the farm. That was the condition of affairs when Maguire was accepted as tenant, but when the Cosgrove children quitted the farm they were aware of these facts, and yet they have never returned nor made any claim to the farm. As to the break in the relation between them and their mother, I say that there is evidence in fact that the children have not interfered with their step-father’s possession. I leave John Cosgrove out of account, as no fiduciary relationship ever existed between him and his step-mother. In my opinion the purchaser’s requisition is right in form, and the refusal to answer it was wrong. No account or information as to the facts was given by the vendor, and the only affidavit on his behalf is made by his solicitor. I go so far as to say that there can be no presumption that no claim was made by the Cosgrove children; the vendor is, however, in a position which enables him to answer the requisition, and he has now undertaken to do so. In cases like the present it must, of course, be shown that the relationship of bailiff determined at some definite time. In my view of this case the subsequent facts show that the relationship determined when the children left home. As to Mr. Horner’s argument, that this is not a case for specific performance, I think the Court ought, in cases of this kind, to investigate the facts as a jury, and if, after doing so, it comes to the conclusion that a judge could tell a jury, if they believed the evidence, to find for the plaintiff, the Court then ought to grant a decree for specific performance.
Holmes, L.J.
I concur. I assume that Mrs. Maguire was a bailiff for her children down to 1882, but I hold that the fact that the children went away and never made any claim to the farm put an end to that relationship.
Battelle v Pinemeadow Ltd
., unreported, High Court, Finnegan J., May 9, 2002Judgment of Mr. Justice Finnegan delivered on the 9th day of May 2002
Folio 16979 County Dublin comprised a large area at Rathfarnham, County Dublin. The lands in the Folio were developed principally as housing commencing in 1968 the development being substantially completed by 1971 although further intermittent development continued to take place thereafter. Premises 101 Fairways, Rathfarnham (“the Plaintiffs’ premises”) was demised by lease dated 2nd December 1968 L.S.D. Limited to Stephen Ashworth Barcroft. The lease is registered in the Land Registry in Folio 9139L County Dublin. By agreement for sale dated 12th October 1977 the Plaintiffs agreed to purchase the Defendant’s premises and took a transfer of the same dated the 27th April 1978 and were duly registered as owners on Folio 9139L County Dublin. The Plaintiffs’ premises front on to Fairways and is one of twelve semi-detached houses and to the rear of the rear
[*2]
gardens of these houses is a plot of land of which the Defendant is now the registered owner. This plot extends from the rear boundary wall of the houses on Fairways to the Owendower river. While the plot slopes towards the river for some distance close to the edge of the river it falls away steeply. Based on a survey carried out on behalf of the Defendant I find that the distance between the Plaintiffs’ garden wall to the top of the steep incline was as follows to the north nine metres and to the south eight metres and at turn of Plaintiffs’ rear wall five metres. I note that this survey was carried out after interference with the levels of the plot by the Defendant. No earlier survey was made available to me.
The first named Plaintiff gave evidence that he his wife and four children moved into 101 Fairways in February 1978. The area between his rear boundary and the river was overgrown and infested with rats. At his request Dublin Corporation had laid poison for the rats on several occasions but the problem persisted. He then endeavoured to find out the owner of the plot attending first at the Land Registry in November 1978 where he was unsuccessful. He then wrote to Cranford Limited his ground landlords who were in fact the registered owners of the plot. A representative of Cranford Limited called to his house and spoke with his wife. The effect of the conversation as reported to him was that Cranford Limited did not know whether or not they owned the plot but as there was no access to it if they did own it they had no further use for it and no interest in it. Immediately following on this the first named Plaintiff set about cleaning up the area to the rear of his garden and incorporating it into his garden. He cleared away the briars and fenced the area completing this in the early 1980s. He erected a two metre high fence along the northern and southern boundaries and a five foot high fence at the top of the bank along by the river. He planted hundreds of plants and shrubs and completed three walkways inside the fenced area. He laid on electricity and installed garden lighting. He laid out garden furniture. In the mid 1980s he completed a
[*3]
water feature in granite comprising a waterfall and pond. All this was completed by the mid 1980s. On the evidence of the first named Plaintiff I am satisfied that the Plaintiffs had sole and exclusive possession of the plot incorporated by them into their garden from at the latest 1st January 1985 onwards. The second named Plaintiff gave evidence as to her conversation with the representative of Cranford Limited. She said they received the keys of the premises having completed the sale in November 1997 but did not move in until February 1978. There was a problem with rats and Dublin Corporation laid poison several times. In 1978 the Plaintiffs decided to find out who owned the land. They wrote to Cranford Limited and some months later in late 1979 or early 1980 a representative of Cranford Limited called to see the land and she showed it to him. He had no map. He was unsure of the ownership of the land but said that Cranford Limited had no interest in the same as it was land locked. So far as Cranford was concerned they could do what they liked with the land.
Both Plaintiffs were asked in cross examination if they had entered onto the land pursuant to permission from Cranford Limited and in each case they said that they had. However on their evidence I am satisfied that this is not the case. Cranford Limited could not say whether or not it owned the land and simply expressed their lack of interest in the same. The effect of the conversation I am satisfied was that Cranford Limited did not know and did not care whether or not they owned the land because it was of nil value and for this reason was indifferent as to what happened to the land: while the agent signified that Cranford would have no objection to anything the Plaintiffs might do to the land in the circumstances this is not the same as the granting of permission. I am satisfied on the evidence that the Plaintiffs did not enter on the land pursuant to the permission of Cranford Limited. The foregoing is sufficient to compel me to find that by the 1st January 1997 the Plaintiffs had acquired title to the lands which they had incorporated into their garden. The title acquired is title by
[*4]
encroachment i.e. the right to possession of the premises in dispute against the fee simple owner for the unexpired portion of the term of their lease of the Plaintiffs’ premises 101 Fairways the freeholders’ entitlement to the land in reversion upon expiration of the lease remaining undisturbed.
The Defendant acquired the interest of Cranford Limited in the plot encroached upon by Transfer dated 20th April 1999. On the 31st August 1999 the Defendant entered upon these lands with machinery and demolished the Plaintiffs’ garden. Mr. Finbarr Kerrigan was the owner of a site on Butterfield Avenue which gave him access from Butterfield Avenue on to the entire strip of land to the rear of the Plaintiff’s garden and to the rear of other gardens of the houses on Fairways. In his evidence he said he walked across these lands two or three times a year. He never saw the garden as described by the Plaintiffs and indeed as exhibited in photographs and a video shown to me. However he did see the path along the top of the bank by the river laid by the Plaintiff: his evidence is that he saw this path in the late 1980s. Immediately prior to the machinery entering on the lands encroached on by the Plaintiffs he had gained access to the plot incorporated into the Plaintiffs’ garden by stepping over a fallen fence through overgrowth which he cut away.
Mr. Brian Conroy is the promoter of the Defendant and it is clear from discovered correspondence that he was clearly aware of the position in April 1988. By letter dated 7th April 1998 addressed to his solicitor he stated that he was negotiating the purchase of the entire plot adjoining the river. The letter contains the following paragraph –
“(c) Encroaching adjoining landowner.
[*5]
One of the neighbours appears to have encroached substantially into “our” riverbank site by extending their garden up to the river (this is usually very clear as the rear gardens of the estate houses are in a line except for the one who has lengthened his garden).
How is this rectified, and can it be difficult?”
In the light of this I prefer the evidence of the Plaintiffs that the plot in question was in fact enclosed and clearly incorporated into their garden. I do not accept the evidence of Mr. Kerrigan that he walked through the area in question. Had he done so it is inconceivable in the light of the evidence before me that he would not have been aware that it was enclosed and that it had been cultivated as a garden. Compelling in this regard is the fact that he is a forester and one must assume would have no difficulty distinguishing cultivated plants from ordinary wild riverbank vegetation.
In fairness to Mr. Kerrigan however his evidence is that at times when walking through the plot he walked in part at the top of the bank but where this was impassable he walked adjacent to the river bed at the bottom of the bank: having regard to the height of the bank some ten feet, it is possible that he passed by the plot encroached upon by the Plaintiffs without being aware of the cultivated nature of the same.
On the basis of the evidence I am satisfied that the Plaintiffs had the necessary animus posedendi. I am further satisfied that the disputed plot was enclosed by them not later than the 1st January 1985. Accordingly by the 1st January 1997 the Plaintiffs had acquired title by encroachment to the lands which they enclosed. I have not been given an accurate survey of
[*6]
the lands in question prior to their disturbance by the Defendants. Doing the best I can on the evidence available I have set out the dimensions of the plot encroached upon above. I direct that a map be prepared on the ordinance survey sheet bearing the dimensions which I have set out for the purposes of the same being annexed to the order declaring for the Plaintiffs’ title which I propose to make. I will hear Counsel as to the precise terms of the declaration which should be made in this case.
There remains to be determined the amount of damages to be awarded to the Plaintiffs in respect of the trespass by the Defendants upon the Plaintiffs’ lands and I propose fixing a date for a hearing of evidence in relation to the same.
McGuinness v McGuinness
, unreported, High Court, Kinlen J., March 19, 2002.
This is an appeal from the order of the Circuit Court Judge Devally made on the 30th March, 2001.
The proceedings were commenced by Equity Civil Bill Record No. 1328 and dated the 5th February, 1999. �The plaintiff is a retired bus driver. �The lands involved in this action comprised and contained in Folio 3 146L in the Register of Leaseholders, County Dublin together with adjoining lands which are situated at Nevinstown West. Cloghran, Swords, Co. Dublin.
This Court has visited the premises accompanied by a lawyer from both sides. The premises are on the main Dublin/Belfast road near the junction to Dublin Airport. As one travels from Dublin there is an entrance into the property which leads into an area covered by motor vehicles of varying sizes, breeds and physical conditions. Further north is another entrance leading into the same area and the same user. This is pitched beside the bungalow of the family dwelling of the plaintiff.
The defendant is a son of the plaintiff The plaintiff resides alone at the premises, already mentioned. He is divorced from his wife who has a 2/5th interest in the property.
The plaintiff had a part time business and hobby of dealing in second hand and antique motor vehicles on the said premises. He parked and stored vehicles in this yard or area within the catchment area of the said premises. His health has deteriorated with age. He has been unable to continue with the said part time business and hobby which was at one time and apparently now is profitable although it has also known lean years. The defendant with his brothers assisted the plaintiff in this business and hobby. At one stage there were three brothers involved including the defendant. However, the defendant then emigrated to England. Unfortunately this is a dysfunctional family. There are faults on both sides. The plaintiff ran his business with two sons who were at one time living in caravans on the site or at least one of them was. Either they fell out with their father, or he with them. There is much confusing and contradictory evidence regarding the plaintiffs desire to have the defendant return from England to take over the premises. The plaintiff had parted company with his other two sons and undoubtedly wanted the defendant to return. However he maintains that he only gave him a licence to store mechanical vehicles at the premises and that he revoked this licence subsequently and that by placing his vehicles on the property he is creating and maintaining a nuisance. The relief sought is a declaration, that the defendant is not entitled to enter on to or use the premises and seeks an injunction and damages for trespass, nuisance, loss of enjoyment, inconvenience and expense. The defence filed is a traverse. It is acknowledged that the plaintiff together with two of his sons, brothers of the defendant, carried on the business of buying and selling commercial vehicles up to or in or around 1984. He has alleged that the business was run at a considerable loss. However at the specific request that the defendant returned from England to take over the running of the business on the assurance that he would have control of the business, that he would have sole and exclusive use of the said premises and that the said premises and business would be devised to him on the death of the plaintiff. The defendant relies on the doctrine of estoppel. In the alternative there is a plea, that the defendant�s possession is adverse to the plaintiffs title. The defendant brings a counterclaim, seeking a declaration that he is entitled to full beneficial ownership of the property based on the fact that he was brought back from England on an express representation and warranty that he would have sole and exclusive right to the use of the said premises and that he acted to his detriment on foot of the aforementioned representations. The Circuit Court orders that the defendant remove all vehicles from the plaintiffs premises within one month from the 30th March, 2001. The Court refused a stay pending the appeal. A further order was required due to the failure of the defendant to appeal within time.
In fact the appeal turned on the defendant�s counterclaim and in evidence only in the claim to promissory estoppel has been pursued as well as a claim of adverse possession.
While there are many reported cases each depends on its specific facts. While this Court is quite clear as to the issues involved in the case and has carefully considered all the evidence and has visited the site with legal representatives of both parties, it must be conceded that there had been excellent submissions made by the lawyers on both sides so out of respect to these submissions the Court did carefully consider them and reserved judgment. However the important thing is that basically it is a question of fact rather than law. The facts must be ascertained and the appropriate legal principles applied to them. Many of the authorities cited do not appear to this Court to be relevant to the case before it.
The plaintiff submits that on the counterclaim the defendant must discharge the burden of proof of facts alleged. He must come to Court, and I, he must show compliance with the established principles governing estoppel. The defendant�s counterclaim was opened and presented as having involved two requests received by him while living in England in the 1980s from his father, that he would return to Ireland to take over a business with a promise that he would be given and/or that he would inherit the lands. The supporting evidence given by the defendent�s witnesses did not corroborate this. The evidence of the intermediary in these alleged messages, Ruby Corr, did not substantiate that promise having been communicated and this is in keeping with the evidence that the defendant twice refused to return whilst the evidence of his common law partner Barbara Sloane indicated that even after they returned to Ireland the two of them were still contemplating emigration to Australia. It is argued that the defendant�s evidence was a legion of inconsistency. He has pleaded his case on the basis of adverse possession and also on the plea of promissory estoppel. These are inconsistent. The defendant�s witness, Bernard McMahon gave evidence of overhearing a promise made by telephone of which the defendant himself did not give evidence. It was not mentioned by counsel in the opening of the case. The defendant presented and pleaded his case on the basis of a request by his father �to take over the running of the business �. He has admitted under cross-examination that no business existed which he could have taken over. The defendant has maintained in evidence that he has given his father at times �tens of thousands of pounds� but retracted this evidence under cross-examination. The defendant�s witness Bernard McMahon has flatly contradicted much of the defendant�s other evidence.
As regards the records of business transactions and of money transfers he produced no real evidence. He did everything in his head but his partner Barbara Sloane stated that there is some form of invoice, billing systems and books. None was discovered. The defendant was unreliable in his evidence on many aspects. For example he maintained that first that he had inherited proceedings by the Fingal/Dublin County Council against his father. However it is clear, and he admits that he was responsible for the overflowing from his business on to the public highway and particularly onto the verge of the main road with several vehicles. The County Council has brought proceedings against him for committal and attachment on a number of occasions. It is obvious from the evidence from the County Council that they regarded the defendant as being extremely troublesome and to some extent they felt intimidated by him.
The defendant maintains that he had sold up in England and come back to Ireland first intending to remain but his partner Barbara Sloane contradicted him. She says that the applications for visas to work in Australia were pursued after their return to Ireland. One witness maintained that the southern gate could not have been the main gate because it was blocked �over the years However it transpired that the obstruction there, was removed around 1975. This Court is quite satisfied that the southern gate was the main entrance. The case was opened and presented on the basis of three alleged visits by the plaintiff to the house of Ruby Corr (on the first occasion going no further than the driveway). lt is not necessary to go over the details of the contradictions merely to state that the defendant contradicts his partner Barbara Sloane, Ruby Corr contradicts Teresa McMahon and Bernard McMahon seems to contradict everyone. It was sad to observe that the family sat in various parts of the courtroom. There was an air of belligerence. Mrs. McGuinness was a grey figure sitting mainly on her own. However, she wanted the defendant to inherit her interest and since the divorce this comes roughly to 2/5th of the property. However she is not a party to these proceedings and has not sought her addition as a third party. Indeed it would not be appropriate to join her at the appeal stage. If she were to be joined at all it should have been at the initial trial. The counterclaim, which is really the kernel of the case, asserts an interest in the lands. There is no note or memorandum but this is not fatal to a claim in equity. Indeed it is alleged by the defendant that there is a note or memorandum by letter of the 7th December, 1998. It is in answer to a solicitor�s letter on behalf of the plaintiff This gave him an opportunity to state his case but he made no assertion of title, -promise or expectation. It certainly was not in accordance with the openness and frankness which equity expects. Indeed it seems to suggest a dispute of the plaintiffs ownership. The defendant was not a convincing witness nor indeed was the plaintiff. The defendant is certainly an aggressive and unimpressive witness. He has conducted and apparently continues to conduct his business on these premises contrary to orders of the Court regarding undertakings by him to desist from encroachment into the roadway. Each undertaking was given in the face of contempt preceding. According to the uncontradicted evidence of a representative of Fingal Council Planning Department the defendant�s contempt of undertakings continues. His attitude not merely to the Planning Authority but also the Revenue Authorities is far from ideal. He also sought to produce and rely on evidence based on documents emanating from a manifestly confidential meeting between the plaintiff and his lawyers. The defendant had until the opening of the appeal laid claim to the entirety of the property but now reduces the claim as to exclude the dwelling house and grass garden to the front and rear. Everything else is claimed including the sheds to the north of the property and indeed including the septic tank attached to the dwelling house which at the time of the courts inspection could not be reached because of parked vehicles. Mr. Simpson, (the engineer) showed from his photographs that whilst there were only vehicles in the southern section of the property, they were slowly but surely proceeding beyond second entrance because there were vehicles parking right up to the gable and blocking the exit. The plaintiff is an eighty three year old disabled man who has let his son use part of the yard for at least almost twenty years. The defendant has a business worth over �3 million at a rent free premises and he professes inability to find an alternative site.
To establish promissory estoppel, he must prove a material detriment in reliance on a promise of entitlement to land. However he has conceded in his evidence that his income in Ireland would have been equivalent to what he had made previously in England. Without any records available he could not remember the exact figures. He certainly did not prove any detriment and in his own evidence he came over to take over the running of the business and concedes that it was non-existent when he took it over. Detriment cannot be assumed. It must be proved as a matter of probability. The-Court can infer that there was a loss. The Court must look to the equity sustained by both sides (McMahon v. Kerry County council 1981 I.L.R.M. 419 at p.421 where Finlay P. says:
If a court applying equitable principles is truly to act as a court of conscience then it seems to me unavoidable that it should consider not only the conduct on the part of the plaintiff with particular regard to whether it is wrong or wilful but also conduct on the part of the defendant and furthermore the consequences and the justice of the consequences both from the point of view of the plaintiff and of the defendant.
On behalf of the defendant it was stressed that the plaintiff only held 60% interest and his former wife who has 40% is the mother of the defendant. She has sworn she wants the defendant to have her share. Indeed she wants to go back into the household and try� hopefully to reunite this dysfunctional family. The defendant says that on his mother�s evidence she had left her interest in the property to him in her will. He occupies the yard as her licensee or tenant at will. However cases cited deal with injunctions taken by one owner against another. The Court is satisfied having regard to all the authorities that the alleged detriment has not been proven. It must be pleaded and proved. It must be substantial although not necessarily confined to monetary considerations. It must be tested against the principle that it would be unjust or inequitable to allow the assurance to be disregarded. The defendants rely strongly on the decision of Bull v. Bull 1955 1 QB 234. In the view of this Court that decision (which at best is persuasive) is not applicable to the facts of this case. This Court is satisfied that Francis McGuinness did return to Ireland to take over a nearly non-existing business and that he has used a large portion of the lands for the purpose of this business. He has not paid any rent so far although he claims to have given his father large sums. The evidence regarding such payments is extremely unreliable. The plaintiff allegedly tried to evict his son by various letters but he took no other steps so to do. In the circumstances this Court feels that the defendant has acquired by adverse possession a portion of this property. The Court doth declare that the defendant has acquired title to the lands to the south of and adjacent to Folio 3 146L of the Register or from the southerly point of the disputed lands up to an imaginary line drawn one foot south of the northern entrance crossing the grounds to the west excluding the septic tank attached to the house by passing to the south of such roughly one foot. The Court would welcome an agreed plan to be attached to the Order of this Court. The Court doth make no order in relation to the rights and position of Ann McGuinness, former wife of the Plaintiff as she was not a party to these proceedings but notes that she has a claim to a percentage of the whole of the property. Adjourn to 19th April 2002 for agreed plan to be attached to Order of this Court.
On 19/4/2002 The Court considered various plans and accepted plan 511 8/99E by Mr. Searson, and directed it be attached to the Courts Order.
Keelgrove Properties Ltd v Shelbourne Development Ltd
, High Court, Gilligan J., July 8, 2005; [2005] I.E.H.C. 238
These proceedings were commenced by way of a plenary summons as issued on 30th May, 2003 and relate to a plot of ground which formerly was the site of No. 30 Moore Street Dublin 1. Both parties to these proceedings are property developers and it is not disputed that by an indenture of assignment made 30th July, 1997 between A. Brazil Limited of the one part and the plaintiff of the other part the property No. 30 Moore Street in the City of Dublin was assigned to the plaintiff for the unexpired residue of the term of the lease which said interest was an interest in possession.
The issue that arises in this matter is that the defendant maintains that it and its predecessors in title have for upwards of 12 years prior to the commencement of these proceedings been in undisturbed possession of the lands and premises known as No. 30 Moore Street in the City of Dublin to the exclusion of the plaintiff and have continuously over a period in excess of 12 years exercised all the rights of an owner over the lands and accordingly the plaintiffs title to the lands was by virtue of the statue of the Limitations Act, 1957 (as amended) barred and extinguished prior to the commencement of these proceedings and/or prior to the acts complained of in these proceedings and claim a declaration that it is and was at all material times the owner of the lands and has acquired title thereto by adverse possession and that the plaintiff has no estate title right or interest in the lands in question.
The background to these proceedings relates to lands at the junction of Parnell Street with Moore Street in the City of Dublin. The Sullivan family originally owned No. 59 Parnell Street which ran through to O’Rahilly Parade and was a butchers with an abattoir at the rear with access from 16 O’Rahilly Parade, No. 58 Parnell Street was run as a shoe shop and a bed and breakfast and 30A Moore Street was a shop which dealt in leather goods. No. 30 Moore Street was originally O’Connors Poultry Shop and No. 29 adjacent thereto was a pork butchers.
At some time in the 1970s Dublin Corporation intimated that they wished to widen Parnell Street and in or about 1983 agreements were entered into in respect of certain buildings at 30A Moore Street and 58 and 59 Parnell Street, which was the subject matter of compulsory purchase orders. Subsequently the houses on these sites were demolished in or around 1983. In or about 1986 No. 30 Moore Street was demolished by the Dangerous Buildings Section of Dublin Corporation. Mr. Daniel Sullivan began operating a car park on what was initially 58/59 Parnell Street and 30A Moore Street being in effect the corner between the two streets and subsequent to the demolition of No. 30 also began to use the levelled site as part of his car park. Dublin Corporation also were using sites along side No. 59 stretching back up Parnell Street for car parking purposes and Irish car parks had an arrangement with Dublin Corporation whereby they ran the car park. The ongoing situation from approximately 1986 was that Mr. Sullivan was using what was left of the sites of 58 and 59 Parnell Street and 30A and 30 Moore Street for parking approximately 14 cars and Irish Cark Parks by arrangement with Dublin Corporation had an extensive car park adjacent thereto. In or about 1985/86 a timber fence was erected by Dublin Corporation and apparently the fencing went all the way down Parnell Street and round and down Moore Street leaving an entrance to the car parking facilities at or about what had formerly being the site of No. 30A Moore Street. Subsequently when this fence was falling apart it was replaced in or about November of 1996 by Dublin Corporation. By November of 1989 Mr. Sullivan had a number of lads working in the car park for him. He was not paying any rent for the property and he paid the rates when they came due and also public liability insurance to cover everyone’s property. In essence Mr. Sullivan ran a car park on the site as referred to through until 1997 and he had the key to the gate of the car park. Mr. Sullivan sold his interest in the rear of 59 Parnell Street to Shelbourne Developments on 30th June, 1997 and handed over the key to his own solicitor to be passed over to the purchasers and after June 1997 he had no further involvement, with the area in question.
Mr. Tom Brazil though a Company A. Brazil Limited had previously purchased the interest of the former owner in No. 30 Moore Street and he was well known to Mr. Sullivan and in the late 1980s there was already considerable interest with relation to the development of the area and Mr. Sullivan wrote on 17th May, 1989 to Dublin Corporation Per Pro inter alia Mr. Tom Brazil showing the extent of Mr. Sullivan’s interest in what was left of No. 59 Parnell Street and inter alia Mr. Tom Brazil’s interest in No. 30 and indicating that if agreement could be reached with Mr. Tom Brazil and Dublin Corporation various properties could be put up as one unit for sale. As Mr. Sullivan was using the site of No. 30 for his car park arrangements at this stage he wrote to Mr. Tom Brazil that he acknowledged that he had no claim over his property at 30 Moore Street formerly known as O’Connors which acknowledgement he signed and dated 8th June, 1989.
Mr. Sullivan confirms there was a yellow hut which was operated by Irish Car Parks and each played along with the other in circumstances where he was parking approximately 14 cars and Irish Car Parks were taking the rest of the cars on the ground beyond No. 59 Parnell Street. Dublin Corporation gave Mr. Sullivan permission to pass over what had been 30A Moore Street for the purpose of utilising his car park and this was also the entrance to the ICP Car Park. Mr. Sullivan asked the owners of No. 60, Sepia, for permission, which was granted, to use their ground. He also asked Dublin Corporation for permission to utilise their property which would have included at that stage some portion of what previously had been No. 58 Parnell Street. Mr. Sullivan confirmed that he never had any claim against the owners of the property that he was using for the car park and that in particular in respect of No. 30 he says that he was never objecting or never standing in Mr. Brazil’s way and the same went with all the other properties. Mr. Sullivan accepts that he asked for and was granted Mr. Brazil’s permission to go on to his property and specifically stated “well I would not go on to another person’s property without him giving me permission”. Mr. Sullivan accepted that if Mr. Brazil wanted to sell his property he would not be standing in his way and there would be no point in him trying to block the sale because they were all friends and together they were negotiating with anyone who was interested. Mr. Sullivan agrees that whatever car parking was going on there was no question of him dispossessing Mr. Brazil no more than he was attempting to dispossess any of the adjoining owners whose lands he was using as a car park. Mr. Sullivan accepts that the purpose of his writing to Mr. Brazil to confirm that he had no claim over his property was so that they would not end up in court against each other in ten years time and he states that they would not have gone on like that in any event. Mr. Sullivan accepted that in 1989 they were all trying to put together a block of property on a smaller scale than was eventually achieved by the defendant and they were all agreeable in those days to sell. He accepts that they were trying if anyone was interested to sell as many properties together. Mr. Sullivan remembered meeting Mr. Cunningham of the plaintiff company and at the time he was attempting to put together a block of properties and he had a number of provisional deals around the block and the property Mr. Sullivan had for sale was No. 59 backing to O’Rahilly Parade and there was no question of Mr. Sullivan selling 30A as that belonged to Dublin Corporation, No. 60 which belonged to Sepia, or No. 30 that belonged to Mr. Brazil. Mr. Sullivan accepted that is the situation which continued on through until Mr. Sullivan sold his property in 1997. During the period 1989 – 1997 there were a series of meetings between the local neighbours including Mr. Sullivan and Mr. Brazil in the Royal Dublin Hotel and the Gresham Hotel and these meetings were amongst themselves as the owners of property at the junction of Parnell Street and Moore Street and were conducted with a number of agents of property developers. Mr. Sullivan accepts that Mr. Brazil was going to get whatever his land was sold for and that was the whole purpose of the various meetings and that it was to their advantage as a group to get something done on the site. Mr. Sullivan confirmed that there never any question but that Mr. Brazil was going to get whatever money was going for No. 30 and no doubt about that at all. Around 1997 Mr. Sullivan accepted that all the owners were individually negotiating and that the two potential buyers were Mr. Cunningham on behalf of the plaintiff company and Mr. Kelleher on behalf of the defendant company. Mr. Sullivan recalled Mr. Brazil coming onto the site in or about 1988/89 and putting down a serious of pegs to mark out the site of No. 30 for the purpose of marking a boundary fence and Mr. Sullivan accepts that the pegs were there for a good while until Mr. Brazil gave Mr. Sullivan permission to move them. Mr. Sullivan accepts that he never had any right or title to the ground on which No. 30 had stood and when he sold his own property in 1997 he closed the gate of the car park on the Corporation on Sepia and on Mr. Brazils so whatever happened after he went he does not know. After Mr. Sullivan left the area in 1997 a company called Kekerberry Ltd. took over the management of the car park on behalf of the defendant company and remained there until January 2003 when the defendant company began to develop the very substantial site which they had put together bounded by Parnell Street, Moore Street, and O’Rahilly Parade save for that plot of ground upon which No. 30 Moore Street had stood and which now represents what can only be described as ‘a missing front tooth’ on the Moore St side of a very substantial development. Mr. Frank Kinsella was the main operator of Kekerberry and he says he was the only one who had keys to the car park which included No. 30 Moore Street and he never saw Mr. Brazil on site nor Mr. Cunningham of the plaintiff company and there was no way of accessing the site other than through the Shelbourne entrances on Moore Street and O’Rahilly Parade. Mr. Kinsella does not dispute that on an occasion in the summer of 1997 Mr. Cunningham came along one day and asked that a trailer which had been situated on the site of No. 30 be moved and this request was acceded to. Mr. Kinsella does not dispute that Mr. Cunningham may well have walked on the site every now and again. Mr. Kinsella accepts that he was told that there was an area to be cordoned off for a short period of time just inside the gate and that this was in a similar area to where No. 30 was situate. He referred to the fact that this area was cordoned off a couple of times on behalf of the defendant company and he was told not to park cars on it and he complied with the instruction. He accepts that this probably is the “tooth area” where No. 30 had previously stood.
Mr. Kinsella’s interest in this matter on behalf of Kekeberry being the management company who operated the car park from 1997 onwards extends to approximately a six year period prior to the institution of these proceedings. Accordingly in order to assess whether or not Mr. Kinsella’s involvement in this matter plays any meaningful role the court would have to be satisfied that Mr. Sullivan had adversely possessed the site of No. 30, Moore Street from the date of his acknowledgement that he had no claim over the site on 8th June, 1989, through until the sale of his land in 1997 to the defendant when he departed the area.
Statutory Provisions
Section 13(2) of the Statute of Limitations, 1957;
“The following provisions shall apply to an action by a person (other than a State authority) to recover land –
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.”
Section 14(1) of the Statute of Limitations, 1957;
“Where the person bringing an action to recover land, or some person though whom he claims, has been in possession thereof and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”
Section 18 of the Statute of Limitations, 1957;
“(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.
(2) Where –
(a) under the foregoing provisions of this Act a right of action to recover land is deemed to accrue on a certain date, and
(b) no person is in adverse possession of the land on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”
Section 24 of the Statute of Limitations, 1957;
“Subject to section 25 of this Act and to section 52 of the Act of 1891, at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished.”
Section 50 of the Statute of Limitations, 1957:
“In this Chapter, “acknowledgement” means an acknowledgement, under section 51, 52, 53, 54, 55, 56 or 57 of this Act, made in accordance with section 58 of this Act.”
Section 51(1) of the Statute of Limitations, 1957;
“Where –
(a) there has accrued to any person (other than a mortgagee) any right of action to recover land, and
(b) the person in possession of the land acknowledges the title of the person to whom the right of action has accrued,
In the right of action shall be deemed to have accrued on and not before the date of the acknowledgement.”
Section 58 of the Statute of Limitations, 1957;
“(1) Every acknowledgement shall be in writing and signed by the person making the acknowledgment.
(2) An acknowledgement under section 51, 52, 53, 54, 55, 56 or 57 of this Act-
(a) may be made by the agent of the person by whom it is required to be made under whichever of those sections is applicable, and
(b) shall be made to the person or the agent of the person whose title, right, equity of redemption or claim (as the case maybe) is being acknowledged.”
In Murphy v. Murphy [1980] I.R. 183 Costello J. at p. 193 addresses the issue of “possession”. “The first question of fact to be determined is whether the defendant was ever “in possession” of the widow’s lands. In a passage which was quoted with approval in Treloar v. Nute, Lord O’Hagan in The Lord Advocate v. Lord Lovat said at p. 288 of the report:-
“As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct with the proprietor might reasonably be expected to follow with a due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.”
Later in his judgment at p. 195 Costello J. deals with the meaning of the words “adverse possession” wherein he states:-
“Notwithstanding that, the words ‘adverse possession’ have crept back into the statute of 1939; but there they only mean that a person is in adverse possession in whose favour time can run. Nevertheless it does seem to me that ‘adverse possession’ means to some extent at least that which it says. Time cannot run, as I see it, in favour of a licensee and therefore he has no adverse possession … The question here, therefore, is: what was the nature of the testator’s possession in and from 1951, when he conveyed the property away?”
Turning then, to the nature of the defendant’s possession, I think the test I should apply is this. Was the defendant’s possession inconsistent with and in denial of the widow’s rights as legal owner of the land? – See Moses v. Landgrove at p. 538 of the report. If it was, then the defendant would be “a person in whose favour the period of limitation could run” within the meaning of s. 18 of the Act of 1957 and his possession would be adverse. In considering a problem of this sort, the relationship between the owner of the land and the person in possession and the nature of the lands in controversy are highly relevant matters to be taken into account. If a person is in possession of lands with the consent of licence of the owner, then his possession is not adverse: see Hughes v. Griffin”.
Kenny J. in the Supreme Court judgment states at p. 202
“In s. 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus it cannot run in favour of a licensee or a person in possession as servant or caretaker or a beneficiary under a trust: Hughes v. Griffin”.
In the later case of Doyle v. O’Neill (Unreported, High Court, 13th January, 1995) O’Hanlon J. at p. 20 of his judgment deals very succinctly with adverse possession in the following terms.
“In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alert to his rights that occupation adverse to his title was taking place. This is particularly the case where the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.
In Leigh v. Jack, (1879) 5 Ex.D.264, Cockburn CJ said (p. 271):
“I do not think that any of the Defendant’s acts were done with the view of defeating the purpose of the parties to the conveyance; his acts were those of a man who did not intend to be a trespasser, or to infringe upon another’s right. The Defendant simply used the land until the time should come for carrying out the object originally contemplated by the Plaintiff)”.
Lord Denning MR, in Wallis v. Shell-Mex, stated the law as follows (at p. 103 of the report):
“Possession by itself is not enough to give a title. It must be adverse possession. The true owner must have discontinued possession or have been dispossessed and another must have taken it adversely to him. There must be something in the nature of an ouster of the true owner by the wrongful possessor.
When the true owner of land intends to use it for a particular purpose in the future, but meanwhile has no immediate use for it and so leaves it unoccupied, he does not lose his title to it simply because some other person enters on it and uses it for some temporary purpose, like stacking materials; or for even seasonal purpose, like growing vegetables. Not even if this temporary or seasonal purpose continues year after year for 12 years or more … The reason is not because the user does not amount to actual possession. The line between acts of user and acts of possession is too fine for words. The reasons behind the decisions is because it does not lie in that other person’s mouth to assert that he used the land of his own wrong as a trespasser. Rather his user is to be ascribed to the licence or permission of the true owner. By using the land, knowing that it does not belong to him, he impliedly assumes that the owner will permit it; and the owner, by not turning him off, impliedly gives permission”.
That decision was followed by Goulding J. in Gray v. Wykeham-Martin, (Unreported, 17 January, 1977) when he said:
“Let me try to apply that principle to the facts of the present case. What do I find? A small piece, certainly not more than half an acre, on a farm of about 140 acres, useless in its existing condition, except as a shelter for stock in bad weather and as a covert for game. The use of the disputed land by the Plaintiff as a poultry run and other things she did on it in no way interfered with the present utility of the disputed land or with the possible future improvement of the farm by throwing the disputed lands into the larger adjoining fields. Thus, consistently with the reasoning in the Wallis case, as I understand it, I ought in my judgment to dismiss the action, and so I do”.
His decision and his interpretation and application of the Wallis case was later upheld by the Court of Appeal.
Slade J. said, in Powell v. McFarlane, (1979) P & C.R. 452:
“In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intentions sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him”.”
I am quite satisfied in the factual circumstances of this case that Mr. Sullivan never intended in anyway to dispossess Mr. Brazil of his rights in respect of the land upon which No. 30 Moore Street was previously situated. He asked him for his permission to use the lands following the demolition of No. 30 Moore Street in or about 1986 for the purposes of a car park as he asked other adjoining owners. In a letter of 17th May, 1989 signed by Mr. Sullivan and written per pro inter alia Mr. Tom Brazil Mr. Sullivan specifically acknowledged Mr. Brazil’s ownership of the property No. 30 Moore St. and specifically referred to that property on a map attached to his letter which identified the property as owned by Mr. Tom Brazil and further on 8th June, 1989 in a written acknowledgement addressed specifically to Mr. Tom Brazil and as signed by Mr. Sullivan on 8th June, 1989 he acknowledged that he had no claim over Mr. Brazil’s property at 30 Moore St. Mr. Sullivan’s relationship with Mr. Brazil is of considerable significance because between 1989 and 1997 when Mr. Sullivan sold what remained of No. 59 to the defendants he was attending a variety of meetings with Mr. Brazil for the purpose of the adjoining owners coming together to effect a sale and as Mr. Sullivan stated in evidence it was to their collective advantage to get something done to the site and there was never any doubt at all but that Mr. Brazil was going to get whatever money was going for No. 30. Nothing in my view could be more consistent with the fact that Mr. Sullivan was simply using the site of No. 30 with Mr. Brazil’s permission until such time as either collectively or individually the various sites were sold off and he had no intention whatsoever to adversely affect Mr. Brazil’s ownership and further as he says himself when he sold out in 1997 he closed the gate “on Mr. Brazil’s”.
In my view on the evidence adduced there is no question of Mr. Sullivan’s usage of No. 30 Moore St. having been adverse possession and nothing remotely that could come anywhere near the criteria of O’Hanlon J. as set out in Doyle v. O’Neill whereby “the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alert to his rights that occupation adverse to his title was taking place”, or the criteria as expressed by Kenny J. in Murphy v. Murphy “that the inconsistency with the title of the true owner necessarily involves an intention to exclude the true owner and all other persons from enjoyment of the estate or interest which has been acquired”.
It follows that in my view there was no adverse possession by Mr. Sullivan of the site in question from the 8th day of June, 1989 through until his departure from the area in 1997 on the sale of his interest in what was left of No. 59 Parnell Street to the defendant.
For the sake of completeness neither would I be satisfied that there was any adverse possession in respect of the site between 1997 and the date of the institution of these proceedings. Mr. Kinsella on behalf of Kekerberry Ltd. was simply a management agent, retained by the defendant to run a car park on the site and he accepts that Mr. Cunningham did come on the site on an occasion and asked for a trailer to be removed from the area of No. 30 Moore Street which request was complied with and furthermore it appears that on a number of occasions he was requested by the defendant company to cordon off the area of the site of No. 30 and quite clearly his involvement was simply to manage the car park that was being operated thereon and no sufficient evidence has been adduced on the defendant’s behalf which would satisfy me that in some way this occupation could have left no doubt in the mind of the owner of the lands that occupation adverse to his title was taking place. In any event the occupation by Kekerberry is only of some six years duration.
In these circumstances I will hear counsel’s submissions as to the form the order of the court should take.
Approved: Gilligan J.
Dunne v Iarnroid Eireann
High Court, Clarke J., September 7, 2007; [2007] I.E.H.C. 314
Neutral Citation Number [2007] IEHC 314
Judgment of Mr. Justice Clarke delivered the 7th of September, 2007.
1. Introduction
1.1 The 1840s were a time of great expansion in the building of railways in which Ireland was to the forefront. In the mid-1840s a Private Act was passed by the then Parliament of the United Kingdom of Great Britain and Ireland which was described as being “for making and maintaining a railway from the city of Dublin to the town of Cashel, with a branch to the town of Carlow”. That Act was passed in 1844 (“the 1844 Act”).
1.2 As a result, the Great Southern and Western Railway Company was established and had, under the terms of the 1844 Act, compulsory purchase powers to enable it to acquire the land necessary to construct the relevant railway. The project went ahead, the railway was constructed, and remains in use to this day. While the identity of the corporation owning the land and operating the railway has changed from time to time, it is not disputed but that the defendants (“CIE”) have succeeded to whatever interest the Great Southern and Western Railway acquired in the 1840s.
1.3 Included in the lands acquired for the purposes of the railway at that time was a portion of the track located at Clondalkin which involved a station and station house. Adjacent to the station house there is a significant triangular piece of land which was not directly part of the railway itself but which may have been used in conjunction with the railway, at least in the earlier stages of its operation. It is the ownership of that piece of land that is in dispute in these proceedings.
1.4 The principal claim maintained by the plaintiff (“Mr. Dunne”) is that he has acquired title to the land in question by adverse possession. However, it showed also be noted that Mr. Dunne did not accept that CIE had established its title to the land on paper and that question also remains in issue. While complaint is made by Mr. Dunne as to the manner in which CIE began, immediately prior to the issue of these proceedings, to occupy the disputed lands as part of works associated with a significant upgrade in the railway line, it does not seem to me that those questions have any legal relevance. Either CIE owns the land or it does not. That turns a question whether CIE has a proper title and, if so, whether Mr. Dunne has extinguished that title by adverse possession. It seems appropriate, therefore, to turn first to the title of CIE to the lands in question.
2. CIE’s title
2.1 The 1844 Act gave the Great Southern and Western Railway Company compulsory purchase powers in respect of land which was defined by reference to a map which, in the events which have happened, is now deposited in the Houses of Parliament at Westminster. Evidence was given that a recent inspection of the original of the map shows that it conforms with various plans and maps which were produced in evidence before me. It was, of course, the case that the 1844 Act did not directly transfer any lands to the railway company but simply gave to that company power to compulsorily acquire the land required. The 1844 Act also put in place mechanisms to enable such acquisition to be carried out in an effective manner.
2.2 CIE led evidence from Mr. Colin Keane, an experienced conveyancing solicitor who practises in the firm of McCann Fitzgerald. Mr. Keane was shown a series of title deeds from the latter half of the 1840s, each of which conveyed property at Neilstown, Cappagh and Ballynagigan to the railway company which, while not containing a map, specified the land being conveyed by reference to numbered portions of a map which was typically described as being “deposited with the Clerk of the Peace for the said County of Dublin”. In addition, Mr. Keane was shown a land survey done in the year 1848 on behalf of the railway company which seems to show the property actually acquired. On the basis of the deeds produced in evidence by Mr. Keane and, indeed, his own expert opinion on same, I am satisfied that they amount to prima facie evidence that all of the land shown in the 1848 survey was in fact acquired, at that time, by the railway company. Those lands included the triangular piece of land which is in dispute in these proceedings.
2.3 One issue of some small difficulty arose in relation to the original acquisition of the land which was referred to in the course of the evidence. It is clear that the triangular piece of land which is in dispute in these proceedings was not needed for the construction of the railway line itself. There are, however, two bases upon which the land might nonetheless have been acquired by the railway company at that time. Firstly, the 1844 Act places an obligation on the railway company to acquire, if requested, any portions of land cut off by the construction of the railway from other lands being acquired for the construction of the line itself. Where, therefore, the formal acquisition of a portion of lands for the construction of the line itself, left a portion of the relevant land owner’s holding on, as it were, the wrong side of the tracts, that land owner could require the railway company to purchase the lands concerned.
2.4 Secondly, the 1844 Act empowers the railway company to acquire additional lands which were needed for ancillary purposes. It may well have been the case that the lands concerned, being adjacent to Clondalkin station, were required, at that time, for the purposes of housing cattle which were about to be shipped through Clondalkin station on the railway. There was evidence that such a practice was common, at least in the 18th Century, although no direct evidence that the practice was carried out at Clondalkin.
2.5 For either, or both, of these reasons it could reasonably have been expected that the railway company might have acquired lands additional to those strictly speaking needed for the construction of the line itself.
2.6 Be that as it may, the title position deriving from the 1840s is, in my view, immeasurably strengthened by the fact that there was evidence of a significant number of lettings of the land concerned dating from the 1930s up to the 1960s. Those lettings are consistent only with CIE being the owner of the lands in question. Furthermore, there was evidence that CIE has, at all material times, been the rateable occupier of the lands concerned. While this latter point may not be of any particular relevance to the adverse possession issue which arises in these proceedings, it is also consistent with the fact of CIE being the holders of the paper title.
2.7 On the basis of all of the above evidence I am satisfied that Mr. Keane’s opinion to the effect that the documents on file proffered amount to a good paper title to the lands concerned is correct. I am, therefore, satisfied that CIE are, prima facie, the owners of the land subject to the claim for adverse possession made by Mr. Dunne. I now turn to that claim.
3. The claim in adverse possession
3.1 It will be necessary to return to the facts concerning possession in some more detail when I have identified the legal principles by reference to which those facts need to be considered. Some of the facts are in dispute. However, at a general level it is accepted that from some time in the latter part of 1977, Mr. Dunne made at least some use of the disputed lands for the purposes of grazing horses. This practice would seem to have originated from a coal and allied delivery business run by Mr. Dunne’s family in which deliveries were made in the area, originally by horse and cart. While there are disputes as to the extent of the use made by Mr. Dunne of the lands over the years and, indeed, the extent to which any such use may have been exclusive, it does appear that, at a minimum, he at least made some use of the disputed lands at all times since 1977 and that, in general terms, that use intensified in more recent years.
3.2 It will be recalled that there were a number of lettings made by CIE of the lands in question up to the 1960’s. There is no evidence of any lettings thereafter and I am satisfied that no significant use was made of the lands by CIE thereafter leaving the lands open to being used, in practice, by whoever might wish. It should also be noted that the lettings of which evidence was given seem to have been for grazing purposes.
3.3 Returning to Mr. Dunne’s use of the lands, it is again common case that at least some structures were constructed by Mr. Dunne. The extent and timing of those constructions are the subject of at least some dispute. Furthermore, whether all of the structures concerned were actually on the disputed lands is, in itself, a matter of some dispute. As indicated earlier, the lands in question adjoin Clondalkin station and the station house built beside it. That station house had a garden. Between the garden and the near corner of the triangular piece of land in dispute there was, certainly in the 1970s and 1980s, a significant growth of trees and large shrubs. The preponderance of the structures built were in or around that growth of trees. The formal boundary between the triangular piece of land and the land attached to the station house appears to have been the townland boundary, but, it has to be said, on all the evidence, it is difficult to see that there was any formal demarcation of the precise boundary on the ground. The area of trees was, for many years, quite significant in width and it does not appear that there was any formal identification of precisely where the boundary between the station house garden and the triangular field could be said to lie. This question is of some relevance as the station house was initially held under a caretaker’s agreement by a former member of the staff of CIE and, after his death, by his son, on foot of a formal tenancy agreement. The station house would undoubtedly have included its garden and, therefore, any possession adverse to the interests of the tenant would, it is common case, operate only against the interest of the tenant which has since expired. This is, therefore, a subsidiary issue to which I will have to return.
3.4 Finally it should be noted, that while the need for horses in the delivery business disappeared, Mr. Dunne continued to rear horses which he used, for among other things breeding and trotting. The precise extend of the number of horses kept at the lands at various times is, at least to some extent, also in dispute.
3.5 Against the background of that general description of the facts it is necessary to turn first to the legal principles by reference to which a claim in adverse possession must be judged. In fairness to counsel on both sides, there was no significant dispute between them as to the principles which I should apply.
4. The Law
4.1 In Tracy Enterprises Macadam Limited v. Thomas Drury [2006] IEHC 381 (Unreported, High Court, Laffoy J., 24th November, 2006) Laffoy J. conducted a recent review of the relevant authorities. The dicta of Barron J. in Seamus Durack Manufacturing Limited v. Considine [1987] I.R. 677 (which in turn derived from the judgment of Kenny J. speaking for the Supreme Court in Murphy v. Murphy [1980] I.R. 183, was noted to the following effect:-
“Adverse possession depends on the existence of animus possidendi and it is the presence or absence of this state of mind which must be determined. Where no use is being made of the land and the claimant knows that the owner intends to use it for a specific purpose in the future, this is a factor to be taken into account. The principle has relevance only insofar as that when this factor is present it is easier to hold an absence of animus possidendi.”
4.2 In addition, the practical application of the general principles was noted by Laffoy J. as being in accordance with a passage from the judgment of O’Hanlon J. in Doyle v. O’Neill (Unreported, High Court, 13th January, 1995, O’Hanlon J.) in which the following was stated:-
“In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.”
4.3 The general principles seem to me to be well summed up in a passage from the judgment of Slade L.J. in Powell v. McFarlane [1979] 38 P&CR 452 at 470 where the following is set out:-
“1. In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title of claiming through the paper owner.
2. If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (“animus possidendi”).
3. Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land cannot both be in possession of the land at the same time. The question what Acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.”
4.4 To like effect Costello J., in Murphy v. Murphy [1980] I.R. 183 at 193 quoted with approval a passage from the Lord Advocate v. Lord Lovett in which Lord O’Hagan said:-
“As to possession, it must be considered in every case with reference to the peculiar circumstances. The Acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.”
4.5 It seems to me, therefore, that the nature of the possession which must be established is one which must be objectively viewed by reference to the lands concerned and the type of use which one might reasonably expect a typical owner to put those lands to.
4.6 It has been suggested that there are two lines of authority in relation to adverse possession in this jurisdiction. One is said to derive from the judgment of Egan J. in Cork Corporation v. Lynch (Unreported, High Court, 26th July, 1985, Egan J.) in which the English case of Leigh v. Jack [1879] 5 Ex. D. 264 was followed. On that basis, the fact that a statutory body had a future intention to use lands which had been compulsorily acquired for the purposes of a public undertaking was held to defeat the possibility of adverse possession given that the statutory body concerned had no immediate use for the lands until such time as the statutory undertaking was to take place.
4.7 However, I prefer the reasoning of Barron J. in Durack Manufacturing in which he accepted that factors such as the future intended use of the property by the party with paper title might be a factor in determining whether the necessary intention was present in the party claiming adverse possession but was not otherwise a matter properly taken into account. As I understand the judgment of Barron J. it is to the effect that it might be inferred that a person, knowing that the paper title owner had no present use for the land but had a future use for it, might occupy it, not for the purposes of possessing it absolutely, but rather for the purposes of making temporary use of it until such time as the future purpose came on stream. In those circumstances the possessing party might not have a sufficient intention to dispossess the owner. In fairness, counsel for CIE agreed that, on the facts of this case, there was no evidence that CIE had, for much of the relevant period, an identified future purpose for the lands that could have allowed reliance on Cork Corporation v. Lynch in any event.
4.8 I am, therefore, satisfied that I must approach the facts of this case on the basis of there being an onus on Mr. Dunne to establish a sufficient degree of possession of the land with the requisite intent. Those matters are to be objectively considered.
4.9 Two other legal issues are of relevance. Firstly it is common case that in order for adverse possession entitlements to accrue, a continuous possession of the land for a period of twelve years must be established. In Powell v. McFarlane Slade L.J. noted, at p. 472, that “an owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.” It is, therefore, important to emphasis that minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed. The assessment of possession is not one in which the possession of the paper title owner and the person claiming adverse possession are judged on the same basis. An owner will be taken to continue in possession with even minimal acts. A dispossessor will need to establish possession akin to that which an owner making full but ordinary use of the property concerned, having regard to its characteristics, could be expected to make. It is not, therefore, a question of weighing up and balancing the extent of the possession of an owner and a person claiming adverse possession. Provided that there are any acts of possession by the owner, then adverse possession cannot run at the relevant time. This is of relevance because there are a number of actions taken by CIE which are said to amount to acts of possession. It will be necessary to assess whether those acts do amount to possession having regard to the low threshold identified in the authorities. If they do, however, those acts will prevent time running during the period at which they occurred.
4.9 On the other hand it is common case that once title is extinguished it cannot be reactivated or reinstated by means of a minimal act of possession. The real question which I need to ask, therefore, is as to whether Mr. Dunne can establish a single continuous twelve year period during the last 30 years in which he was in exclusive possession of the lands in question to such a degree as would be reasonable having regard to the standard of an owner making normal and usual use of lands of the type in question and during which twelve year period no act of possession, however slight, occurred by or on behalf of CIE. If Mr. Dunne can do that, then at the end of that twelve year period CIE’s title will have been extinguished and no subsequent act of possession on the part of CIE would be sufficient to reinstate it.
4.10 Finally it is also necessary to touch on a line of authorities relied on behalf of CIE which are, perhaps, best noted in Convey v. Regan [1952] I.R. 56 where Black J. said the following:-
“The basis of the principle seems to be that when a trespasser seeks to oust the true owner by proving acts of unauthorised and long continued user of the owner’s lands, he must show that those acts were done with animus possidendi, and he must show this unequivocally. It is not, in my view, enough that, the acts may have been done with the intention of asserting a claim to the soil, if they may equally have been done merely in the assertion of a right to an easement or a profit-à-prendre. When the acts are equivocal – when they may have been done equally with either intention – who should get the benefit of doubt, the rightful owner or the trespasser? I think it should be given to the rightful owner.”
4.11 It is also of some note that Convey was followed by the English Courts in Powell v. McFarlane. I am, therefore, satisfied that, where the extent of use of lands in respect of which adverse possession is claimed are consistent equally with establishing an easement or profit-à-prendre as with full ownership, then it is appropriate to infer the lesser rather than the greater entitlement.
4.12 Having regard to all of those principles it seems to me that the questions which I must ask on the facts of this case are as follows:-
1. Is there a continuous period of twelve years during which Mr. Dunne was in exclusive possession of the lands in question to an extent sufficient to establish an intention to possess the land itself rather than to exercise grazing rights or the like over it.
2. Is any contended for period of possession broken by an act of possession by CIE. If so time will only commence to run again when that act of possession by CIE terminates.
5. Application to the facts of this case.
5.1 It seems to me that I must look, firstly, to the alleged acts of possession on the part of CIE for if they are established, those acts define with some precision the periods during which Mr. Dunne might, in principle, be able to attempt to establish twelve years continuous possession.
5.2 The first such question concerns work carried out in renovating Clondalkin Station, which continued for a period of approximately a year and a half in 1993 to 1995. It is clear on all of the evidence that the renovation and modernisation of the station involved taking back what was, admittedly, a small portion of the land in dispute and its incorporation onto the railway platform. The work also involved the building of new fences and the like. I am satisfied from the relevant maps and photographs that it must necessarily have been the case that, at that time, at least a portion of the lands which were part of the triangular area must have been occupied and used by CIE for the purposes of the station works. Mr. Dunne accepted in evidence that workers on behalf of CIE were in the field at that time and up to 1995.
5.3 Secondly there was evidence concerning complaints made by a neighbouring land owner, Mr. Kavanagh, who was concerned with the adequacy of the fencing between his lands and the disputed lands. At times those complaints were raised by solicitors acting on behalf of Mr. Kavanagh. As a result of one of those complaints made to CIE in 2001, it is common case that CIE sent out a contractor who repaired the fences between Mr. Kavanagh’s lands and the disputed lands in or around that time.
5.4 Having regard to the very low threshold which, on the authorities, I am required to apply to acts of possession by the paper title owner, I have come to the view that both of the matters to which I have referred, amount to a sufficient act of possession on the part of CIE of the lands in question to negative adverse possession at the relevant times.
5.5 I am mindful, of course, that the acts concerned did not involve the entirety of the lands. The station works were at one end of the lands, the fencing to Mr. Kavanagh’s property on the other. However the lands were not divided in any way so that one could meaningfully state that a party was in possession of some but not all of them. Therefore, it seems to me that, though minimal, the acts of possession by CIE must be taken to relate to all of the lands at the relevant times. On that basis it seems to me clear that no adverse possession claim can be maintained in respect of any period subsequent to a time in or about 1993 for there is not a continuous twelve year period subsequent to that time during which it can be said that CIE were entirely out of possession.
5.6 Some lands or properties may, in theory, be capable of being possessed in respect of different portions of different persons. Point 3 from the passage from Powell v. McFarlane, quoted at para. 4.3 above, notes that an owner and an intruder cannot be in possession at the same time. I fully agree. But where the land or buildings concerned are capable, by their nature, of separate exclusive occupation as to different parts, then it may be that the owner can be in possession of one part and the intruder another. For this to be so the properly in question would need to be such that its natural occupation (by virtue of, for example, clear and obvious divisions, well maintained, separate access and the like) was capable of being separately considered as to the different parts. This is not the case here. There were no subdivisions of the disputed lands at any material time.
5.7 If, therefore, Mr. Dunne is to succeed, it seems to me that he must establish adverse possession sufficient to have extinguished CIE’s title prior to 1993. There is a dispute on the evidence as to the extent of Mr. Dunne’s occupation up to that time. Firstly it seems to me that, on the balance of the evidence, and having regard, in particular, to the aerial photographs produced, there was little or no construction on the land by Mr. Dunne up to 1993. I accept his evidence that he built a small structure at the top apex of the land which lasted for approximately one year before it was destroyed by fire, but it seems clear that all other structures post date 1993.
5.8 Secondly there is a dispute as to the number of animals which may have been present on the lands. While I accept Mr. Dunne’s evidence that in recent years more significant numbers of horses may have been present, I am not satisfied (having regard to all the evidence and, in particular the aerial photographs) that anything more than a small number (perhaps two or at most, on occasion, four) were present in the period up 1993. Such a number of animals being present is, in my view, at least as consistent with the exercise of grazing rights as with ownership in particular where no significant buildings have been constructed or are in use.
5.9 In addition the aerial photographs, and most particularly the earlier of them, which date from in or around the time in question, seem to show that there were a significant number of informal pathways through the lands with breaks in the boundary consistent only with the fact that the lands were used by local people as a means of gaining access across the lands from the neighbouring housing estate to the area of the station house. I accept Mr. Dunne’s evidence that he engaged from time to time in putting up some fencing but I am not satisfied that significant work was done in that regard prior to 1993. If Mr. Dunne had maintained a strict attitude to building and maintaining significant fencing, then it seems unlikely that the informal pathways to which I have referred could have been in existence. The fact that those pathways seem largely to disappear during the latter 1990s (from the evidence of the same aerial photographs) suggests that significant fencing only occurred at or around that time rather than earlier.
5.10 There was also conflicting evidence as to the extent that others, particularly local children, kept ponies and horses on the lands, at least during some of the relevant period. There were other lands adjoining the disputed lands which were, at least until more recent times, largely unoccupied but which were progressively brought into use as a scrap yard. Those lands were, on all the evidence, frequently used by local children for keeping horses. I am also satisfied that, on the balance of the evidence, some use was made by such children of the lands in dispute at least up to the late 1980’s. It is clear from the aerial photographs that the boundary between the various lands was quite porous up to that time. While Mr. Dunne may well have been the predominant user of the lands at all material times I am not satisfied that he was the exclusive user (that is to say that he had excluded the local children entirely) until the late 1990’s.
5.11 For all of those reasons I am not satisfied that the nature and type of occupation exercised by Mr. Dunne in the period up to 1993 was sufficient to establish adverse possession and it follows that his claim must fail.
5.12 Before concluding I should deal with a number of other issues which arose lest I be wrong in my overall conclusion.
6. Some other issues
6.1 I am satisfied on the evidence that Mr. Dunne built a significant series of relatively rough and ready, but effective, stabling and the like for his horses. By the mid 1990s the evidence establishes that Mr. Dunne had engaged in effective fencing works which led to the virtual elimination of informal pathways by 1997. It should, of course, be noted that some of that fencing was carried out on behalf of CIE as well. In addition Mr. Dunne would appear to have cleared, again in the later 1990’s, a significant portion of the trees between the lands in question and the station house.
6.2 I accept that Perry v. Woodfarm Homes [1975] I.R. 105 is clear authority for the proposition that adverse possession runs only against a leasehold rather than a freehold owner where the lands in question are subject to a lease or tenancy. There is some doubt as to whether the buildings concerned were constructed on the lands that were let as part of the station house. I am not satisfied that there was any identifiable boundary on the ground to establish the precise take which would have gone with the station house. The boundary was somewhere in the area of a large volume of trees which were progressively cleared, from his side, by Mr. Dunne with buildings being built, at least in some cases, on what would, on the ground, have appeared to have been his side. However it does not seem to me that the position as of twelve years prior to the commencement of these proceedings was one where building, at least on lands not clearly part of the station house plot, had reached any advanced stage. In particular the aerial photograph taken in October, 1997 shows a number of buildings, all of which are clearly on the station house side of the remaining narrow band of trees.
6.3 Finally I should note that I am not satisfied that the fact that the caretaker for CIE did, by common agreement, come onto the lands on a few occasions in each year amounts to a material factor to be taken into account. It does not seem to me that his actions were any different from those which a neighbouring owner might take in checking on children who might be playing on an open patch of land close to their home.
7. Conclusions
7.1 However, all in all, I am not satisfied that Mr. Dunne would have established, in any event, a sufficient level of possession of the lands to give rise to a conclusion that he intended to possess the lands, rather than use same purely for grazing purposes, until the latter part of the 1990s. Therefore, even if it had not been the case that I was satisfied that CIE could avail of acts of possession in the mid 1990s, and also in 2001, I would not have been satisfied that Mr. Dunne had a sufficient period during which he exercised a sufficient degree of possession to substantiate a claim in adverse possession.
7.2 Having been satisfied that CIE had, for the reasons which I indicated, established a good paper title to the property and not being satisfied that Mr. Dunne has established a claim in adverse possession, it follows that Mr. Dunne’s claim must fail.
7.3 I should note, however, that I have some significant sympathy with Mr. Dunne’s position. There is no doubt that he made some reasonable use of the land in question over a period of time when it had, effectively, been abandoned by CIE and also that he carried out works on the lands. During that time it would appear that CIE had not use for the lands and had effectively allowed same to go unused by them or anyone on their behalf, to a very large extent, from the 1960s onwards. It would, in those circumstances, seem to me to be reasonable for CIE to see if they could come to some modest accommodation with Mr. Dunne in all the circumstances of the case. I would emphasis that these latter comments do not form part of my judgment on the legal issues which arise in these proceedings. As a matter of law, Mr. Dunne’s claim has failed and that, so far as the legal entitlements of any parties are concerned, is the end of the matter. The comments amount merely to a recommendation that CIE might exercise some generosity with Mr. Dunne in all the circumstances of the case. They are not to be construed as implying any legal obligation on CIE so to do.
In Kelleher v Botany Weaving Mills Ltd
[2008] I.E.H.C. 417 (December 10, 2008)
1. This action comes before the court as an appeal from the Circuit Court and concerns the ownership of a small plot of leasehold land in the heart of the City of Dublin. The plot of land is adjacent to 33 Emerald Square in the Coombe in Dublin 8 and measures 31 feet in length and 11 feet in width. It comprises a lock up garage to the front part with an open area of 12 to 13 feet in length to the rear. There is no discernible boundary between the land at the rear of the garage and a large area of open ground attached to a factory owned by the Defendant. The dispute between the parties came about in September, 2005 when the Plaintiff, Anthony Kelleher who had purchased an assignment of the plot of land, sought to extend the garage by knocking out the rear wall so as to provide the length necessary to park his truck and trailer. He was prevented from carrying out these works by the Defendants who claimed that he was trespassing on their property. The original application to the Court was brought by the Plaintiff for injunctive relief but at the close of pleadings the case effectively became a claim for adverse possession.
2. The Defendant denies the Plaintiff’s title and claims that it has been in exclusive occupation of the lands for a period in excess of 12 years and has extinguished the title of the Plaintiff to the lands by adverse possession.
3. Where a person with good title brings an action for the recovery of land and the Statute of Limitations is pleaded as a defence, the defendant must prove that the title holder has been dispossessed or has continued his possession of the lands in question for the statutory period. This is the principle to be applied to the evidence called.
The evidence
4. Mr. Peter Lawlor a son of the late John Lawlor was born and brought up in Emerald Square next door to where his father was reared and where his grandmother lived. His grandmother’s back garden was adjacent to and overlapped to some degree the yard attached to the garage used by his father. When the garage was used the family had no reason to go into the yard at the back of the garage apart from rare occasions when repairs were carried out to the galvanised sheeting of the garage roof. This usually happened when children in the neighbourhood had climbed up on to the roof and jumped on it or tried to gain entry or if the galvanised sheets had lifted in a storm. Peter Lawlor particularly remembered that his mother died in 1998 and his father died in 2002 and between that period, he and his brother Frank, carried out repairs to the roof. In order to do this they had to first climb up onto the front portion of the roof using a ladder, carry the ladder across the roof and then lean it on the ground in the back yard which is the subject of these proceedings. He had no reason to take much notice of the yard but on each occasion when he was there, he noticed that it was in its usual bad unkempt condition. He moved out of Emerald Square in 1986 to get married but before that he used the garage every day to store his motorbike. During the period that he lived at home in Emerald Square, his mother had always paid rates on the premises. The back yard was not visible from his parents’ house or from the garage and the only way he could see it was from the roof of the garage. He believed that the window at the back of the garage had long ago been blocked up to prevent break ins. While he used the garage on a regular basis when living in Emerald Square, he had no reason to go into the back yard.
5. Frank Lawlor, brother of Peter Lawlor was also raised in Emerald Square and left when he married in 1986. He described himself as the DIY person in the family and recalled how his father was able to buy the lock up garage from a neighbour Mr. McLoughlin who suffered a stroke. As he had no further use for the garage he sold it to his father. He recalled several occasions when the roof had to be repaired because of kids jumping on the corrugated iron. On each occasion, he climbed onto the roof from the front and put down a ladder at the back where the roof was lower. His understanding was that the land behind was attached to the garage and formed part of the plot purchased from Mr. McLoughlin and that he had a right to be there. It never occurred to him to seek the permission of anyone to gain access to the roof or to place his ladder on the land behind. On the last occasions when he was on the roof he noted nothing different about the land at the back of the garage; it was neglected as it always was. He too recalled fixing the roof between the dates of his mother’s and his father’s deaths. He always carried out the repairs when notified by neighbours of its condition as his understanding was that if anybody fell through the roof that they would be liable and he saw it as his responsibility to keep the roof in repair. His impression was that there was no lawn in the yard at the back when he saw it between 1998 and 2002 and he particularly noted that when they were putting down the ladder the place was thoroughly unpleasant, being strewn with rubbish including human excrement. His recollection is that the roof was fixed on two to four occasions. He denied that landscaping had extended into this area when he last was on the roof. He identified the map attached to the assignment from Dublin Corporation to Thomas McLoughlin and the assignment from Mary McLoughlin as administratrix of the estate of Thomas McLoughlin to his father John Lawlor. The maps attached to the assignment show that land at the back of the garage is part of the plot of land originally assigned.
6. Anthony Kelleher, the assignee and Plaintiff explained that he bought the garage in September 2005 for €18,000 so that he could safely park his long truck and trailer close to where he lived in The Coombe and that his only interest in buying the property was the length of the plot on the map. He never inspected the plot at the back as he was told that it was included in the take and he relied on the map attached to the title deeds. In September 2005, he broke down the wall of the back of the garage with the intention of extending the structure to facilitate the storage of his truck and trailer but was immediately challenged by Botany Weaving. A skip was then placed by the Defendant on the plot of land to prevent him from carrying out building works and his trailer was pushed back into the garage. He has been unable to use the garage and plot for the purpose for which he purchased the property.
7. Jonathan Hackett on behalf of the Defendant gave evidence that he was a director of the company Botany Weaving Mill Ltd. that bought the lands in 1988 identified on a map handed into court. At the time of purchase, the factory was in a derelict condition, the roof had caved in and the surrounding lands were full of boulders and rubbish and constituted a dumping ground. The map of the defendant property indicates a very extensive ground area on two sides of the factory with the plot in question in the extreme south western corner. Following the purchase he restored the buildings and refurbished the grounds by having the rubble and rubbish cleared, bringing in topsoil and landscaping part of the area for parking. The entire area was laid in grass within a year of the sale in or about 1989. He had always assumed that the company owned the entire yard up to the wall at the back of Emerald Square. He had never seen the Lawlor leasehold agreement or the deed of assignment with the map attached to it and was unaware that the plot was attached to the garage. When he purchased approximately 45,000 square feet from the liquidator of Malboro Menswear, the owners of the former factory premises, he did not at any time consider the ownership of the miniscule area comprising the disputed plot. He understood that he owned everything within the boundaries of the factory and he rejected the idea that there was ever any discernable difference between the appearance of the parcel of land over which Mr. Kelleher lays claim and the area which the factory maintained. In particular, he rejected any suggestion that damp marks rising several feet on the boundary walls were left by recently removed earth and rubbish. He said that the area had been cleaned up long ago as the staff looked out on it at lunch time and had objected to its derelict state. He first became aware of the claim by Mr. Kelleher in September 2005 as prior to the attempted building works he had no idea that anyone claimed ownership to that land or that anyone had carried out any repairs to the roof. He had never seen or been made aware that any persons had been on the plot of land or had placed ladders there.
8. Photographs were produced by Mr. Hackett showing the current state of the premises with well maintained landscaping around an extensive parking area to the front of the factory grounds. The area in dispute is at the very end of an area laid in mowed rough lawn which is outside the landscaped parking area. There was evidence of some graffiti on the boundary walls with the garage. There were large areas of dark staining on the boundary wall with one of the Emerald Square houses and to a lesser extent at the bottom end of the wall at the back of the garage. There was also an area of rough mortar plastering at the foot of the boundary wall. No evidence was called as to who cleared the rubbish from the plot in dispute and when this work was carried out apart from the testimony of Jonathan Hackett that the lands were cleared and seeded in or around 1989.
Findings
9. On the evidence called, there is clearly a dispute as to when the plot of land at the back of the garage was cleared of rubble then seeded with grass and incorporated into the curtilage of the factory premises. The staining on the walls could be consistent with relatively recently removed earth. The rough mortar could be consistent with efforts to strengthen the base of the wall following removal of a bank of earth. No explanation was provided for this staining or of when the concrete was applied.
10. Maps produced in court by both parties show the area in dispute as forming the natural contours of the plot on which the garage was built and which is contiguous to the garden walls of 32 and 33 of Emerald Square. In other words, the area squares up with the Emerald Square back gardens. However, an ordinance survey urban place map of Emerald Square noted to have been surveyed in 1973 and revised in 1999, depicts the garage as a structure but does not delineate the yard or exclude it from the factory premises confirming that there was never a boundary wall between the garage and the factory.
11. On the basis of this evidence I make the following findings: on the day in September 2005 when Anthony Kelleher attempted to extend the garage at the side of 33 Emerald Square, Botany Weaving Mill Ltd was in occupation of all the land at the front of their factory including the plot in question. It is clear that the only use Mr. Kelleher’s predecessors in title ever made of the plot in question was for necessary access to maintain the garage and that this did not occur frequently the last times being on two to four occasions between 1998 and 2002. It was also clear that unless they were carrying out repairs, they had no view of the plot of land.
12. The issues which I have to decide is whether the acts of Botany Weaving in clearing the rubbish from the disputed plot and maintaining it in grass amounted to exclusive occupation, adverse to the owners of the land and if so, can adverse possession occur in circumstances where they were unaware that the lands belonged to someone else. In other words was Botany Weaving’s erroneous belief that the lands were theirs sufficient to amount to an animus possidendi or intention to possess to establish adverse possession bearing in mind that the burden is on the person claiming such title? If animus possidendi is established have they established 12 years continuous exclusive occupation such as to defeat the title of Peter and Frank Lawlor and thus the Plaintiff?
The law
13 The parties furnished the court with a quantity of recent law on the issue of adverse possession being Durack Manufacturing v. Considine 27/05/1987 Unreported Barron J., Gleeson v. Feehan 2000 IEHR 118 29 May 2000 Finnegan P., Tracey Enterprises Macadam Ltd. V. Drury Unreported 24 November 2006 Laffoy J., Dunne v. Iarnrod Eireann IEHC 7/9/2007 Clarke J.
14. The law in relation to possessory title and the extinguishment of paper title by the operation of the provisions of the Statute of Limitations, 1957 has been extensively explored in two of the cases furnished. The pertinent sections of the Statute of Limitations Act 1957 to this type of action are sections 13(2), 18(1) and 24:
S.13(2) which provides that no action to recover land shall be brought by any person, other than a State authority, after the expiration of twelve years from the date on which the right of action accrued to that person.
Section 18(1) which deals with when the right of action to recover land accrues and provides that no right of action to recover land shall be deemed to accrue unless the land is in the adverse possession of some person in whose favour the period of limitation can run.
Section 24 which provides that at the expiration of the period fixed for a person to bring an action to recover land, the title of that person to the land shall be extinguished.
15. Laffoy J. examined all relevant judgments on these provisions in Tracey Enterprises Ltd Macadam v. Drury and I adopt her analysis in quoting from her examination of the existing law.
16. “The meaning of “adverse possession” in s. 18 of the Act of 1957 was explained by the Supreme Court in Murphy v. Murphy [1980] I.R. 183 in the following passage at p. 202 of the judgment of Kenny J.:
“Before the year 1833 the common law had engrafted the doctrine of non-adverse possession on to the earlier Statute of Limitations so that the title of the true owner was not endangered until there was possession clearly inconsistent with recognition of his title, i.e., adverse possession, and so there had to be an ouster. The doctrine of non-adverse possession was abolished by the Real Property Limitation Act, 1833, in which the words ‘adverse possession’ were not used …. The use of the words ‘adverse possession’ in the Act of 1957 does not revive the doctrine of non-adverse possession which existed before 1833. In section 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus it cannot run in favour of a licensee or a person in possession as a servant or caretaker or a beneficiary under a trust …”
Later in his judgment Kenny J. referred to the decisions of the English Court of Appeal in Wallis’s Holiday Camp v. Shell-Mex [1975] Q.B. 94 and Treloar v. Nute [1976] 1 W.L.R. 1295, commenting that in each of those cases the question was whether the person in possession of lands had been in adverse possession. He then observed that this is ultimately a question of fact.
In Seamus Durack Manufacturing Limited v. Considine [1987] I.R. 677 Barron J., having referred to the judgment of Kenny J. in Murphy v. Murphy, stated that each case must be decided on its own facts and continued (at p. 683):
“Adverse possession depends on the existence of animus possidendi and it is the presence or absence of this state of mind which must be determined. Where no use is being made of the land and the claimant knows that the owner intends to use it for a specific purpose in the future, this is a factor to be taken into account. The principle has relevance only insofar as that when this factor is present it is easier to hold an absence of animus possidendi.”
n relation to the type of acts of use and enjoyment which will amount to possession, the following passage from the judgment of Lord O’Hagan in The Lord Advocate v. Lord Lovat (1880) 5 App. Cas. 273 at p. 288 has been cited frequently by this Court with approval in recent years (for example, by Costello J. at first instance in Murphy v. Murphy, at p. 193, and by Gilligan J. in Keelgrove Properties Limited v. Shelbourne Development Limited in his unreported judgment delivered on 8th July, 2005):
“As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.”
The practical application of the principle stated in that quotation may be observed in Doyle v. O’Neill (the High Court, Unreported, 13th January, 1995) in which O’Hanlon J. stated:
“In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.”
17. It is quite clear from this analysis of the authorities going back over 120 years that in every case where adverse possession is in issue, the fact of possession requires an examination of the nature of the land and the nature of the occupation before possessory title can be established. Application of the same legal principles can lead to differing outcomes as occurred for example, in Doyle v. O’Neill 13.01.95 and in Griffin v. Bleithin [1999] 2 ILRM 182 where similar types of occupation brought differing results depending on their own special facts.
18. The authorities relating to adverse possession were again examined and applied by Clarke J in Dunne v. Iarnrod Eireann IEHC 7/9/2007 where he found that the general principles were best summed up in a passage from the judgment of Slade L.J. in Powell v McFarlane [1979] 38 P&CR 452 at 470 where the following is set out:-
“1. In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title of claiming through the paper owner.
2. If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (“animus possidendi”).
3. Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land cannot both be in possession of the land at the same time. The question what Acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.”
19. Clarke J in Dunne v. Iarnrod Eireann concluded that the authorities indicate that “the nature of the possession which must be established is one which must be objectively viewed by reference to the lands concerned and the type of use which one might reasonably expect a typical owner to put those lands to” and that the correct approach should be on the basis that the onus is on the person asserting possessory title “to establish a sufficient degree of possession of the land with the requisite intent”.
20. He accepted the following as a correct statement of the law the dictum of Slade LJ in Power v. McFarlane at p472 that “an owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.”
21. The recent decision in Gleeson v. Feehan (29 May 2001 unreported) Finnegan P. confirms that quite minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not dispossessed.
22. Coming then to the facts of this case where the managing director of the Defendant company was firmly of the belief that his company was the paper title owner of the plot in question and whether this misplaced belief affected animus possidendi. There is a paucity of Irish law on relevant law regarding such mistaken belief and the proposition that a person can be in adverse possession while believing that that he is the owner. In Williams and Anor. V. Usherwood Court of Appeal 1983. Cumming-Bruce LJ stated that:
“Enclosure has always been regarded as strong evidence supporting animus possidendi, and the fact that the adverse possessor’s belief of ownership is founded on a mistaken premise does not help the paper owner.”
Halsbury’s Laws of England quotes this decision as an authority that adverse possession can occur even though the possessor was the legal owner. However, an examination of the details of Williams v. Usherwood exposes facts quite different to those in this current case and raises doubt as to the validity of the proposition. In that case both the original owners who were neighbours and their successors in title acted on the mistaken belief that one neighbour owned all of what in their title deeds was a shared driveway to their respective houses in a residential estate. Each party erroneously believed that the adjoining property owner merely enjoyed a right of access over the driveway to maintain and repair their residence, gutters, eaves and drains. The first neighbour had built a garage on the shared driveway, caused it to be expensively paved, had parked two or three family cars there for upwards of forty years and most important, had enclosed the driveway. The issue of the mistaken belief paled into insignificance when viewed against these acts and the abandonment by the other parties of any use of the once shared entrance. It is interesting that the law lords of the Appeal Chamber relied on the dictum of Lord O’Hagan in the decision of Lord Advocate v. Lord Lovat in deciding on the special facts of the case in favour of the neighbour who had enclosed the driveway and in refusing relief to the Plaintiff who had relied on the Defendant’s erroneous belief. I do not believe therefore that Williams v. Usherwood is any authority for the principle that animus possidendi can coexist with a belief in ownership. Logically, if a person in occupation believes that he is rightfully there, he cannot have the intent to dispossess.
Conclusion
23. On the basis of these authorities and applying the principles to the facts of this case, I am not persuaded that the use of the disputed plot by the defendant company when viewed objectively, constituted adverse possession or possession which was inconsistent with the title of the true owner. The clearing and tidying up which was carried out by the Defendant Company was without doubt for its own visual benefit in providing continuity to the lawned area and to abate and minimise the dumping nuisance to their own land. I do not accept that the works were carried out to defeat the title of the true owners any more than the mowing and maintaining of common areas or roadside verges is carried out with intent to acquire title. In my view the grassing and tidying was not of such a nature as could leave “no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place.” Doyle v. O’Neill
24. On the particular facts of this case, the tiny plot of land had never been marked off from the rest of the factory premises. There was no wall or other boundary to demarcate the plot from the other open ground. Thus, when the derelict factory premises were purchased in 1988 with grounds described as a “dump”, that state also extended to the plot. The plot itself had not been used other than to provide necessary access for repairs to the garage. The nature of the particular urban area with its risks of vandalism and theft meant that the garage was built with minimal access. It was however possible to develop the plot by extending the garage without encroaching onto the defendant lands as the walls of any extended structure would form a new boundary. I have therefore asked myself if the acts relied on by the defendant as acts of exclusive possession, were in all the circumstances inconsistent with the enjoyment of the land by the plaintiff’s predecessors in title. If the area had been cleared of urban detritus, flattened and sown in grass during the period 1998 and 2002, would the Lawlor brothers standing on the plot while repairing the roof necessarily conclude that the improved state of the plot indicated that some person was in adverse occupation of their plot? I am not convinced that they would. In any event, I am not satisfied that the Defendant has established continuous exclusive occupation for a period in excess of 12 years as during that time the Plaintiff’s predecessors continued with their normal sporadic use of the plot to service the repairs to the garage.
25. I will make an order that the Plaintiff is the lawful owner of the plot at the rear of the garage at 33 Emerald Square in the terms of the Plaintiff’s Civil Bill. The Plaintiff is entitled to his costs.
Mahon v O’Reilly
[2010]IEHC 103
JUDGMENT of Ms. Justice Dunne delivered on the 26th day of March, 2010.
These proceedings come before the court by way of Circuit Appeal by the plaintiff herein, who failed before the Circuit Court to establish a claim by way of adverse possession to certain property at the rear of his premises. The plaintiff is the owner of premises at 19A Bangor Drive, Crumlin, Dublin 12 and the defendants reside at Bangor Drive, Crumlin, Dublin 12. The plaintiff in the Endorsement of Claim on the Civil Bill complained that the defendants have encroached and trespassed upon his property since the month of January 2002, and have placed a clothesline upon the property and a trailer and have refused to vacate the plaintiff’s property. The defendants have claimed that they are the legal and beneficial owners of the premises at No. 19 Bangor Drive and that their premises include an area which is to the rear of the premises owned by the plaintiff at 19A.
In order to understand the issues between the parties it would be helpful to describe the layout of the two premises. 19A is a shop premises with a forecourt at the front and alongside the left hand side of the premises runs a laneway. On the right hand side of the shop is the premises No. 19 Bangor Drive. It is a dwelling house and is the home of the defendants. If one looks at the two properties together and in particular if one looks at the footprint of the two properties one could describe them as occupying an area that is wedge shaped with the wider end of the wedge to the front and with the narrower end of the property to the rear.
There is no dispute whatsoever that the defendants have a paper title to the entire of the premises. For ease of reference I propose to refer to the portion of the property in dispute as the “shop yard”.
Two booklets of title were handed in to court relating to the premises at 19A and No. 19 Bangor Drive respectively. Each property shares a common route of title. The original title is derived from a lease of the 30th September, 1935 for 900 years. Ultimately there was an assignment of that lease in 1975 and it appears that a sublease was created on the 17th April, 1979, in respect of that part of the premises which comprises 19A Bangor Drive. The sublease was between Stephen O’Driscoll of the one part and Sean Dowd and Daniel Farrell in respect of “All That and Those the shop premises situate at and known as 19A Bangor Drive, Crumlin in the City of Dublin. The defendants acquired their interest in the property under an indenture of lease dated the 25th July, 1979, between Stephen O’Driscoll of the one part and the defendants and one Isabella V. Owens of the other part. As mentioned before there is no dispute between the parties that the defendants acquired a paper title to the property at issue in these proceedings. There was no reference to the sublease in the assignment to them. A number of other transactions took place over the years in respect of the premises known as 19A Bangor Drive. The defendants continue to reside in the premises at No. 19 Bangor Drive.
The plaintiff in these proceedings gave evidence that he purchased No. 19A in 1998 from Stephen Perry. There was a forecourt, the shop premises and from the shop premises there was a door at the rear which exited into the shop yard. The yard was narrow up close to the shop and widened out at the back. There were two means of access to the shop yard – one through the shop and the second through the laneway to the left hand side of the premises. On the right hand side of the shop yard was a brick wall of approximately 6ft. in height dividing 19 and 19A. That wall started at the rear of the shop and went all the way down the site. It was constructed of 4in. blocks. In the yard there was an outside toilet. The door between the shop and the yard was a wooden door like a hall door. There were two bolts on the inside of the door. Access from the laneway to the yard was by means of an up and over garage door. It could not be opened from the lane but only from the yard. He described how the yard was used by him. He stored a trailer and other bits and pieces there. He described how he was present on the premises every day. His business is a heating and plumbing business and from time to time he would store old boilers and pipes in the yard. He kept his trailer up at the wider end of the yard. Between 1998 and 2002 there only be his employee and himself in the yard. Now he has no access whatsoever to the yard.
Having been in the premises for some time he received an enforcement notice from the local authority requiring him to remove the wall dividing 19 and 19A as it was unsafe. He did so some time around Christmas 2001 and when he returned to work after Christmas the area at the rear of the shop where the door was, was blocked up. In addition the gates to the yard were also blocked.
In cross-examination, he confirmed that he took possession of the premises in 1998 and was asked whether he had any conversation with Mr. O’Reilly at that stage. He was also asked about letters which were said to have been written to him by Mr. O‘Reilly on an annual basis from the time that the plaintiff took possession of the premises in which Mr. O’Reilly asserted his ownership of the yard. The plaintiff denied receipt of any of those letters. The plaintiff was asked about whether a portion of the wall had fallen down and he responded to the effect that some three to four blocks had fallen down but ultimately he confirmed that in fact a more significant portion of the wall had fallen down and it was necessary then to take down the remainder the wall on foot of the order of the local authority. He also confirmed that in addition to the up and over garage door he had described, there was a small door in the wall as well. Asked was there access through that smaller door he indicated that it had been bolted from the inside and that he never used it. He denied that the defendants freely used the shop yard for the purpose of parking bicycles there or leaving a small trailer in the yard. He also denied that there had been a clothesline in the yard prior to January 2002, when he was excluded from the yard or that the defendants had stored anthracite in the lower part of the yard. He disagreed that he had not enjoyed exclusive possession of the yard.
Vincent Glavin, an auctioneer in Crumlin gave evidence describing the yard. He confirmed that there were double doors going on to the laneway and that he was involved in a sale of the property at 19A at one stage and understood that he was selling the shop and the yard.
Christine Gaynor then gave evidence. Her son had had an interest in the property at 19A at one stage. He was running a business in the premises and she was present in the premises almost every day over a seven or eight year period. Her son had obtained a Deed of Assignment of the lease on the 21st of December, 1987 and remained in the premises until approximately 1994 when the property was transferred to Stephen Perry. She was aware that the property had been sub divided by Stephen O’Driscoll in 1979. She also described the structures built in the yard and confirmed that there were a number of ways to access the yard, namely through the shop, the double door and the little door in the wall with access via the lane. She stated that the little door was never used. There were two bolts on that door on the inside of the door. The double door could only be opened from the inside. She said that the yard was used for storage. She added that no one else used the yard. She was asked whether her son had received any letters from the O’Reilly’s and said that her son did not get any such letters. She was not aware of any visit by her son and Mr. O’Driscoll to the O’Reilly’s. She was adamant that there was no clothesline in the yard and that the yard was not used by anyone else.
Stephen Perry gave evidence that he acquired the interest of No. 19A Bangor Drive. He obtained his assignment from Mr. Gaynor the witness’s son. He sold on the premises in 1988 to the plaintiff in these proceedings. When he went into occupation of the premises he also had access to the shop yard. Again he described the means of access. He said that the small door to the left of the yard was never opened. He said that there was a toilet in the yard and then there was a double door which was constructed out of wood. He too confirmed that the doors leading from the yard onto the lane were bolted from the inside. He was the only person who had access to the yard. He said that he had little use for the yard.
In cross examination he denied the receipt of any letters which were supposed to have been sent to him.
Mr. Perry confirmed that he did have some discussions with Mr. O’Reilly, but he denied asking for a lease of the yard from Mr. O’Reilly. He denied that there were items such as a clothesline or bicycles or coal stored in the yard by the O’Reilly’s. He stated that the O’Reilly’s were never on the premises.
Mr. Anthony Gallagher gave evidence. He is an architect and he gave evidence in relation to certain maps that had been prepared. He also gave evidence into an approximate costing of restoring the shop yard having regard to the work that has been done to the yard by the O’Reilly’s since January 2002.
Edward O’Reilly, the first named defendant, then gave evidence. It appears that the O’Reilly’s moved into the premises in May 1979, although the indenture of assignment is dated the 25th July, 1979. Nothing turns on that point. He acquired the premises from Stephen O’Driscoll having first commenced negotiations with Mr. O’Driscoll in late October, 1978. At the time that he was in negotiation for the purchase of the premises, he visited the premises at No. 19 Bangor Drive on a number of occasions. There was nothing in the yard and there was no wall between 19A and No. 19 at the time. He moved into the premises late at night on the 4th May, 1979 and discovered the following morning that 90% of what he described as his back garden had been covered by a shed. The shed was visible in one of a number of photographs which had been handed into court during the course of the hearing. Mr. O’Reilly explained that he had a row with Mr. O’Driscoll in relation to this state of affairs and that he got no satisfaction from Mr. O’Driscoll. He went to a solicitor but he explained that he did not have money to go to court. He did apparently receive some advice in relation to the writing of a letter and it is as a result of that advice that he wrote letters to the various occupiers in possession of No. 19A, in the following terms:-
“We are the owners of the garden at the rear of the house and shop, 19 and 19A Bangor Drive, Crumlin, Dublin 12. We purchased it together with the house, from Stephen O’Driscoll and hold title to it by Deed of Assignment dated 25th July, 1979.”
The purpose of the letters was to inform the occupants of 19A Bangor Drive that the defendants were the owners of the rear of the premises.
The shed that covered the rear of the premises was removed on foot of an enforcement order from the local authority some time in the early ’80s. The roof and timbers were removed. However the wall between 19 and 19A that had supported the roof and timbers was left as it was. Mr. O’Reilly described in evidence that he and his wife and family made use of the shop yard by erecting a clothesline in it. There was also a small trailer stored there, it was used for the purpose of storing anthracite in a bin which was located in that area and from time to time deliveries of oil were made to No. 19 Bangor Drive by means of a pipe brought in over the shop yard.
Subsequently towards the end of 2001 a section of the wall fell down into the rear of No. 19 Bangor Drive. The plaintiff took the remainder of the wall down and after the wall had been taken down, Mr. O’Reilly said that he and his son removed the remains of the wall. He then extended a shed at the rear of his property and the shop yard and sealed off the door from the rear of the shop into the shop yard. He described how the premises has been used since the wall came down. In cross examination, Mr. O’Reilly described having to gain access to the part of the premises in dispute by going out of the rear of his premises and around into the laneway. It was stated by him that it was possible to go in through the small door which was rotten and he denied that there were any bolts on the door. He stated that he never saw anyone in the shop yard and that there was never anybody there. Prior to the plaintiff becoming entitled to possession of the premises at 19A his predecessors in title never objected to the use of the premises by Mr. O’Reilly. Letters were sent to them, just as letters were sent to the original owner of the whole of the property and subsequent owners of 19A. He denied ever seeing either Mr. Gaynor or his mother Mrs. Gaynor in the premises. He gave evidence that he told Mr. Perry who purchased the property in 1994 and who was there until 1998 that there was a problem with their use of the yard. According to Mr. O’Reilly, Mr. Perry just left and did nothing else in relation to the matter. Subsequently when the wall came down he erected new doors on the premises. He was never excluded from the premises.
Mrs. Theresa O’Reilly then gave evidence. Her evidence was similar to that of her husband. She confirmed that the roof was taken off the shed in 1983. It was only at that stage that the O’Reilly’s put in a washing line. She said that she used the washing line on an almost daily basis and that nobody bothered her in doing so. Asked how it was possible to gain access to the site she said that the doors onto the laneway from the site were rotten. She explained that her children used to play in the area of the yard and they stored their bikes there.
In cross examination she confirmed that she and her husband were annoyed at not having the use of the yard area. As a result of the way in which the premises had been divided by Mr. O’Driscoll, there was little space to the rear of their own property. Asked about other people using the shop yard, she indicated that she did not see Mr. Gaynor or Mr. Perry when they were in occupation. She said that she was in and out of the premises all the time and never saw anyone there. She described the yard area as being a place that was wide open because the doors were rotten.
Aidan O’Reilly, the son of the defendants also gave evidence. He described moving into the premises and how there was a shed erected over the area of the back garden when they moved into the premises. He said that he was the person who put the washing line up in 1982 and no one stopped him. He described storing his bicycle in the rear of the shop yard. He said that he was on the premises every day. He was also aware of the letters being sent by his father and went on to say that it was he who posted the letters. In the period around Christmas 2001 or early 2002, some 20ft or so of the wall came down in one piece and approximately two thirds of the wall remained. It was taken down subsequently by the plaintiff. He said that no one had ever complained about the use of the yard by the O’Reilly family. He stated that the small door opening on to lane from the shop yard was never bolted. Finally he claimed that the WC which was in the back yard was disconnected in 1982. The structure which had contained that WC was removed after the wall came down in 2002.
Legal submissions
As I mentioned at the outset, there is no dispute between the parties that the defendants have a paper title to the entire of the yard to the rear of 19A. It is the plaintiff’s case that between 1979 and 2002 the yard to the rear of the shop was included in the premises of No. 19A. The evidence given on behalf of the plaintiff is that the occupiers of 19A always had exclusive use and possession of the yard. It is clear from the evidence that there was a wall dividing the shop yard to the rear of 19A from rear of No. 19. Although it had been suggested in the course of the evidence that Mr. Perry had sought to purchase an interest in the shop yard area from the O’Reilly’s area from the O’Reilly’s, Mr. Perry denied this.
In the course of the helpful written submissions furnished by the plaintiff, reference is made to the decision of the High Court in the case of Tracy Enterprises McAdam Limited v. Drury [2006] IEHC 381, which examined the jurisprudence in relation to the relevant provisions of the Statute of Limitations 1957. I propose to quote one passage from that judgment at p. 18 thereof where it was stated:-
“The meaning of ‘adverse possession’ in s. 18 of the Act of 1957 was explained by the Supreme Court in Murphy v. Murphy [1980] I.R. 183 in the following passage at p. 202 of the judgment of Kenny J.:
‘Before the year 1833 the common law had engrafted the doctrine of non-adverse possession on to the earlier Statute of Limitations so that the title of the true owner was not endangered until there was possession clearly inconsistent with recognition of his title, i.e., adverse possession, and so there had to be an ouster. The doctrine of non-adverse possession was abolished by the Real Property Limitation Act 1833, in which the words ‘adverse possession’ were not used . … The use of the words ‘adverse possession’ in the Act of 1957 does not revive the doctrine of non-adverse possession which existed before 1833. In s. 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus it cannot run in favour of a licensee or a person in possession as a servant or caretaker or a beneficiary under a trust . . .’”
This was further commented on by Laffoy J. in that judgment in a further reference at p. 20 of her judgment:-
“The practical application of the principle . . . may be observed in Doyle v. O’Neill (Unreported, High Court, 13th January, 1995) in which O’Hanlon J. stated:
‘In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.’”
It seems to me that at the heart of this case is the fundamental question as to whether the use of the shop yard by the plaintiff and his predecessors in title constituted possession and if so, was it adverse possession in the sense of being possession inconsistent with the title of the true owner.
Nothing in the evidence of the defendants suggests that they enjoyed any use of the shop yard between 1979 and 1982. The evidence on behalf of the defendants is to the effect that a clothesline was erected in the shop yard in 1982 in respect of which they had continuous access and use. It goes without saying that when one talks of occupation adverse to the defendants’ title, one is talking of exclusive occupation by the plaintiff and his predecessors in title. In other words, if it is plainly the case that the defendants were using the premises throughout the period at issue from 1982 onwards then the plaintiff and his predecessors in title could not have had exclusive use of the premises and in those circumstances, the plaintiff could not have obtained a title to the shop yard by means of adverse possession.
There is a conflict of evidence as to the issue of exclusive use. Mrs. Gaynor, Mr. Perry and the plaintiff have all given evidence that the defendants did not have access to the shop yard. They have described the doors giving access to the premises as having been bolted. Those bolts could only be opened from the inside of the yard. It has never been suggested by the defendants that they gained access other than through the doors opening onto the laneway. Mrs. Gaynor was, as mentioned, present during the time that her son was in occupation of the shop premises. She described how she was regularly at the premises. Mr. Gaynor went into occupation of the premises pursuant to a Deed of Assignment dated the 21st December, 1987. Mr. Perry has described how he went into occupation of the premises following a Deed of Assignment dated the 19th October, 1994. The plaintiff went into occupation of the premises pursuant to a Deed of Assignment dated the 22nd May, 1998. Mrs. Gaynor and Mr. Perry in the course of their evidence denied any use of the shop yard by the defendants. They denied the existence of a clothesline in the yard and in truth it is difficult to understand how that could be missed if, as Mrs. O’Reilly stated, she was in and out of the yard on a daily basis for the purpose of using a clothesline.
There is no doubt that following the removal of the wall over the period around Christmas 2001, the O’Reillys had access to the yard from their own property and further there is no doubt that they used that access to block up the rear access to the yard from the shop premises and they used that access to change the doors leading on to the laneway so that in January 2002, when the plaintiff returned to the property, he was excluded from the shop yard. I cannot understand why, if the defendants always had access to the premises as they have claimed in evidence and always made use of their access to the premises in the manner they described, they waited until the wall came down to exclude the plaintiff. According to Mr. O’Reilly and indeed all of the defendants, the defendants always asserted their right to their ownership of the yard and did so by using the yard, but also by writing letters on an annual basis to the occupiers of 19A. It is very difficult to understand, given the strength of feeling, why the O’Reillys did not exclude the occupiers of the shop premises from the yard when they always had access to the yard as is claimed. This seems to me to be very strange, to say the least.
As I have said before, the evidence of Mrs. Gaynor and Mr. Perry contradicts the evidence of the defendants. Given the situation that I have described and in particular, the fact that it was only when the wall between 19 and 19A Bangor Drive came down that the O’Reillys took steps to exclude the plaintiff, I find it very difficult to accept the evidence of the defendants that they were at all times from 1982 up to 2001 exercising any rights of access to the shop yard. I prefer the evidence of Mrs. Gaynor, Mr. Perry and the plaintiff to the effect that the O’Reillys never made use of the yard during their occupation of the shop premises.
I can understand that the O’Reillys felt a sense of grievance when they became aware of the fact that the original conveyance of the property to them contained a map which showed their entitlement to the shop yard. However, from the date that they moved into the premises until 2002, it is clear from the evidence that the owners and occupiers of 19A Bangor Drive were the ones who had exclusive use of the shop yard. I have little doubt that the O’Reilly’s complained to Mr. O’Driscoll about the erection of the shed in the yard in 1979 and that they got little satisfaction from them. I find it difficult to understand how, if the position was as contended for by the defendants, they would have taken no steps whatsoever to attempt to recover possession of the shop yard by legal proceedings. I know that in evidence Mr. O’Reilly said that this was not possible in 1979 because of a lack of funds. That does not explain inaction throughout the period since then.
Mr. O’Reilly described writing letters on a regular basis to the occupiers of No. 19A. There is a dispute as to the receipt of those letters. Even if those letters had been received by the occupiers for the time being of the premises, those letters are not of themselves sufficient to prevent the statute of limitations from running against the O’Reillys.
Finally, I should add that it is interesting to note that the Enforcement Notices referred to in the course of the evidence relating to the removal of the shed in 1982 and the removal of the wall in 2001/2 were sent to the occupier of 19A. This is consistent with the evidence that the owner of 19A at the relevant time was viewed as the occupier of the shop yard by the local authority.
In all the circumstances of this case I have come to the conclusion that although the defendants clearly have a paper title to the premises comprised in the shop yard at the rear of 19A Bangor Drive, the plaintiff through his occupation and the occupation of his predecessors in title has obtained a title to the shop yard by adverse possession. I will hear the parties further as to the consequences of this decision.
Dundalk Udc v Conway
[1987] IEHC 3
Blayney J.
This Circuit Appeal concerns a small plot of ground, 2 roods and 28 perches in area, which is situate at Maxwells Row, Dundalk, Co. Louth. The plot is bordered on the north by the Castletown River, on the east by the bridge on the main road leading northwards out of Dundalk, on the south by Maxwells Row, and on the west by a holding of land of approximately 10 acres (which I will refer to as Mrs Conway’s land) which is registered on Folio 7210 of the Register County Louth of which the registered owner is Elizabeth Conway, the Defendant’s mother.
The plot of ground in question, which I shall call the disputed plot, was demised to the Plaintiff for the term of 999 years from the 1st day of November 1912 by a lease dated the 20th March 1913. In 1938 the Plaintiff bought out the fee-simple interest in the plot. At the time of the making of the lease, the plot of ground was principally fore-shore and the lease contained a covenant of the part of the lessee to construct a sea-wall to protect disputed plot from the incursion of the river. It appears from the ordnance survey map of 1938 that this sea-wall was built.
The Plaintiff’s claim is for damages and an injunction to restrain trespass on the disputed plot. The Defendant does not deny entry on the plot but contests the Plaintiff’s title. It was pleaded in the defence that the Defendant’s mother had acquired title by possession to the disputed plot and that the Defendant’s entry had been with her consent, but in the course of the argument this contention was abandoned, as it seemed to me that it had to be, as Mrs Conway’s title could not be established. She had only acquired the adjoining lands in 1976 and even if any of her predecessors in title had acquired title by possession to the disputed plot, such title had not been conveyed to her.
The case then made by the Defendant, which ultimately was the case upon which the Defendant principally relied, was that the Plaintiff’s title had been extinguished by virtue of adverse possession between 1930 and 1960 by Patrick Walsh, a former owner of Mrs Conway’s lands. In the alternative it was submitted that the Plaintiff was seeking the equitable remedy of injunction and that in the particular circumstances of the case such remedy should not be granted.
As the Plaintiff has a clear paper title to the disputed plot, the starting point in this case seems to me to be the general principle enunciated by Ormrod LJ in his judgment inWallis’s Cayton Bay Holiday Camp Limited .v. Shell-Mex and BP Limited 1974 3 All E.R.575 at 589 d:-
“The General principle appears to be that, until the contrary is proved, possession in law follows the right to possess: Kynoch Ltd. .v. Rowlands 1912 1 Ch 527 at 534. Lord Lindley MR in Littledale .v. Liverpool College 1900 1 Ch 19 at page 21 put it in these words:-“
“In order to acquire by the Statute of Limitations a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it.””
It seems to me, accordingly, that in deciding whether the Plaintiff’s title has been extinguished, the question that has to be considered is whether it has been established on the evidence that the Plaintiff either discontinued possession of the disputed plot or was dispossessed of it by Patrick Walsh for the duration of the statutory period.
I start with the question of discontinuing possession. InLeigh .v. Jack 5 L.R. Exchequer 264 Cotton L.J. said in his judgment at page 274:-
“In deciding whether there has been a discontinuance of possession the nature of the property must be looked at. I am of opinion that there can be no discontinuance by absence of use and enjoyment where the land is not capable of use and enjoyment.”
I consider that the disputed plot, over the years during which it is alleged that the Plaintiff lost its title, was not capable of use and enjoyment. It was in effect a small plot of wasteland dropping fairly sharply to the river. The value of the plot the Plaintiff is that it adjoins the bridge which carries the road over the river and it may be required in the event of repairs to the bridge becoming necessary. But as for actual use and enjoyment on a regular basis, I am satisfied that it was not capable of any.
Furthermore, I am satisfied on the evidence that it was never the intention of the Plaintiff to discontinue possession. The evidence shows that the fee-simple interest was bought out in 1938; a sewer was made through the disputed plot from Maxwells Row; a new manhole was built on this sewer about 1956; ornamental trees were planted in the early 1960s; temporary permission to cross part of the plot was given to Patrick and John Daly in 1972; and in 1978, Kieran Fitzgerald, the Assistant Town Engineer, in the company of the Defendant, marked out the boundary between the disputed plot and Mrs Conway’s land. In the light of this evidence I am satisfied that it could not be said that the Plaintiff at any time intended to discontinue possession or did in fact discontinue possession.
As to whether the Plaintiff was dispossessed, the following passage from the judgment of Lord Bramwell inLeigh v. Jack was cited with approval by Ross J. in In Re. Duffy’s Estate 1897 I I.R. 307 at 315:-
“Acts of user are not enough to take the soil out of the Plaintiff, and vest it in the Defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil, for the purposes for which he intended to use it.”
InWallis’s Cayton Bay Holiday Camp Limited .v. Shell-Mex and BP Limited 1974 3 All E.R. 575 Lord Denning M.R. said at page 580:-
“Possession by itself is not enough to give a title. It must be adverse possession. The true owner must have discontinued possession or have been dispossessed and another must have taken it adversely to him. There must be something in the nature of an ouster of the true owner by the wrongful possessor.”…..”When the true owner of land intends to use it for a particular purpose in the future, but meanwhile has no immediate use for it, and so leaves it unoccupied, he does not lose his title to it simply because some other person enters on it and uses it for some temporary purpose, like stacking materials; or for some seasonal purpose, like growing vegetables. Not even if this temporary or seasonal purpose continues year after year for 12 years, or more.”
And in the same case Stamp L.J. said at page 585:-
“Reading the judgments in Leigh v. Jack and Williams Brothers Direct Supply Store Ltd v. Raftery 1957 3 All E.R. 593, I conclude that they establish that in order to determine whether the acts of user do or do not amount to dispossession of the owner, the character of the land, the nature of the acts done on it and the intention of the squatter fall to be considered. Where the land is waste land and the true owner cannot and does not for the time being use for the purpose for which he acquired it, one may more readily conclude that the acts done on the waste land do not amount to dispossession of the owner.”
Finally, inConvey .v. Regan 1952 I.R. page 56, Black J. said in his judgment at page 59:-
“The main consideration operating in my mind is the principle that the party relying on acts of user over a long period to establish title against the owner must show that the acts were done with animus possidendi.”
It is necessary now to apply these principles of law to the facts on which the Defendant relies to establish that the Plaintiff was dispossessed for the statutory period and its title thereby extinguished. The main evidence on which the Defendant relied was that over the statutory period cattle belonging to Patrick Walsh, who at the time was the owner of Mrs Conway’s land, had had access at all times to the disputed plot and could graze on it at will. In addition there was evidence that between 1950 and 1960 a man called Niall O’Brien had been permitted by Patrick Walsh to bring a caravan onto the disputed plot and that he was also given permission to graze horses on Mrs Conway’s land and the disputed plot. Finally there was evidence that the Valuation Office had included Mrs Conway’s land and the disputed plot in a single unit for valuation purposes and that Patrick Walsh had been the rated occupier of this unit.
Is this evidence sufficient to establish that the Plaintiff had been dispossessed” In my opinion it is not. In the first place, there was not, and could not be, any evidence of what Patrick Walsh’s intention was in allowing his cattle to graze on the disputed plot. For his possession to have been such as would have amounted to dispossession of the true owner, it would have been necessary, as pointed out by Black J. in Convey .v. Regan, that he had the animus possidendi. But there is no evidence that he had. If anything, the evidence is the other way. If Patrick Walsh had been grazing the disputed plot with the intention of excluding the Plaintiff from it, and so acquiring a title, one would have expected that when Mrs Conway’s land came to be sold to the Doyles, the disputed plot would also have been included in the sale. But quite clearly it was not. The only conclusion one can draw from this is that Patrick Walsh did not consider that he had acquired title to the disputed plot and it would seem to follow that he could never have had any intention of acquiring title. Such use as he made of the disputed plot could not accordingly have been made with the necessary animus possidendi.
Apart from this, Patrick Walsh’s user was not in any way inconsistent with the purpose for which the Plaintiff required the plot. All that the Plaintiff required it for was to run a sewer through it and to have it available in case repairs should be required to the bridge. Grazing cattle on it did not in any way interfere with this purpose. I am of the opinion, accordingly, that Patrick Walsh did not acquire a possessory title to the disputed plot. It follows that the Plaintiff’s title has not been extinguished.
Even if I had taken the view that the Plaintiff’s title had been extinguished, that would not necessarily have entitled the Defendant to have the action dismissed. Trespass to land is a tort to possession of land. It does not necessarily depend on title. So if the Plaintiff’s title had been extinguished, the question would have been as between the Plaintiff and the Defendant which was entitled to the possession of the disputed plot. And it seems to me that the question would have been answered in favour of the Plaintiff. I think there is no doubt that the Plaintiff had possession of the disputed plot at the time that the Defendant’s mother bought the adjoining land in 1976. They planted ornamental trees on it in the early 1960s and had given the Dalys permission to cross part of it in 1972. And as soon as a dispute arose between the Plaintiff and the Defendant, the Plaintiff very clearly affirmed its right to possession through Mr. Fitzgerald when he marked out the boundary between the two holdings in July 1978. So even if the Plaintiff had lost its paper title to the disputed plot, I consider that their possession of it could not have been disturbed by the Defendant whose sole claim rested on an allegation of title which could not be proved.
The alternative submission advanced on behalf of the Defendant was that the principal relief which the Plaintiff was seeking was equitable, namely, an injunction, but that on the facts of the case the Plaintiff was not entitled to equitable relief and that the appropriate remedy was to give the Plaintiff compensation for the value of the disputed plot. This submission was based on the decision of the Chief Justice, then President of the High Court, in the case ofMcMahon and Mcmahon .v. The County Council of the County of Kerry 1981 I.L.R.M. page 419.In my opinion the facts of that case are so clearly different from those in the present case that the decision in the case is of no assistance. Furthermore, the Chief Justice emphasized in his judgment that the conclusion at which he had arrived resulted from the special facts of the case. He said in his judgment at page 423:-
“All these factors and considerations drive me to the conclusion that it would truly be unconscionable and unjust that the plaintiffs should recover possession of this land with these two houses built upon it. To avoid, however, the classic fault of creating bad law by the consideration of a hard case I would emphasise that it is only the combination of factors which I have outlined which are many and possibly in their combination unique which forces me to the conclusion that equity should restrain the sole operation of the plaintiffs” legal right to recover possession of these lands.”
I think it is clear that the Chief Justice was not formulating any general equitable principle. He decided on the very special facts of the case that it would be inequitable that the Plaintiffs should be permitted, in exercise of their legal rights of ownership, to recover possession of a plot of ground on which the Defendant County Council, without being aware of the Plaintiffs’ title, had erected two dwellinghouses.
In the McMahon case the Plaintiffs were seeking to exercise a legal right, the right to recover possession of a plot of land to which they had a legal title. That is not the position here. I am satisfied that the Plaintiff has lawful possession of the disputed plot. What is sought is the equitable relief of injunction to restrain the Defendant from interfering with that possession. The basis of the Defendant’s claim is that he expended money in reclaiming part of the disputed plot by dumping filling material on it. But as early as the 5th July 1978 the Assistant Town Engineer, Mr. Kieran Fitzgerald, in the presence of the Defendant, marked out the boundary between the disputed plot and the adjoining land which the Defendant’s mother had bought. Anything that the Defendant did after this he did in the full knowledge of the Plaintiff’s claim to ownership of the disputed plot. Accordingly any dumping he did subsequently on the disputed plot could not give him any right in equity to have the Plaintiff restrained from preventing his further trespassing on it.
The learned Circuit Court Judge, in addition to giving the Plaintiff a declaration of their title and an injunction restraining the Defendant from trespassing on the disputed plot, also gave the Plaintiff a decree for £1,000 damages for trespass. In my opinion there was no evidence justifying damages of that amount. The only loss proved was the cost of rebuilding a portion of the wall at Maxwells Row which had been broken down by the Defendant. The cost of this was £112.71 and that is the only sum which the Plaintiff is entitled to recover as damages.
The Defendant counterclaims for damages in respect of the cost of the fill put by him on the disputed plot but on the facts as I have found them this counterclaim cannot succeed.
I affirm the Order of the learned Circuit Court Judge except insofar as the damages for trespass are concerned which I reduce from £1,000 to £112.71.
Mulhern v Brady
[2001] IEHC 23
Ms. Justice Carroll
This is an application by James Mulhern the registered owner of Folio 3726, County Longford to be registered as full owner of the lands in Folio 2070F, County Longford claiming possessory title against John Brady the registered owner. The application was refused by the Registrar of Title on the 13th of July, 1999 and comes to the High Court on appeal under Section 19(1) of the Registration of Title Act,1964.
The lands in Folio 2070F comprise 0.786 acres and were carved out of lands comprised in Folio 3726 which originally comprised 135 acres 20 perches. It is a site which was sold by the previous registered owner, Dan Kieran Farrell. It is surrounded on three sides by the lands in Folio 3726 and on the fourth side by the public road. Mr. Farrell sold the site to Mr. Brady in 1979 and the new Folio 2070F was opened on 28th February, 1980. Mr. Farrell also sold two other sites out of Folio 3726 on which houses were built. These were Folio 2491F opened in February, 1981 containing 0690 acres and Folio 2492F containing 1.265 acres opened in June, 1981.
In or about 1982 Mr. Farrell exchanged the remaining lands in Folio 3726 (with other lands) with Mr. Mulhern the Applicant for other lands owned by Mr. Mulhern. The exchange document is dated 7th February, 1984 and Mr. Mulhern was registered as owner of Folio 3726 on 12th April, 1985. Mr. Mulhern said he went into possession of the lands exchanged in 1982. He claims he also went into possession of the lands in Folio 2070F at the same time. In his Affidavit sworn on 9th June, 2000 he said the lands in Folio 2070F were surrounded by the lands in Folio 3726 and he said there were no fences dividing the same. This is not so.
It is clear from the maps and photographs produced by Mr. Peter Flanagan, engineer (witness for Mr. Mulhern), that the plot of land in Folio 2070F has clearly defined old boundaries (ditch and hedge) with a number of gaps. One long gap of 24 feet on the west side has a post and wire fence. There is a cattle pen on Mr. Mulhern’s land adjoining the north-west corner. A gate was erected by Mr. Mulhern from the pen into the disputed lands in the weeks proceeding the hearing. This replaced a fence. There are four ten foot gaps and the rest of the gaps are smaller and broken through by animals. The gap in the north-east corner near the road adjacent to the gate from Mr. Mulhern’s lands to the public road did have wire across it six or seven years previously according to Mr. Victor Kiernan, the auctioneer acting for Mr. Brady. There are now two to three strands of wire there. There was also evidence of a v-shaped lay-by on the road at the north-east boundary between the lands in Folio 2070F and Folio 3726. From this v-shaped lay-by it was possible to gain entrance to the disputed lands in former years. Mr. Brady said he could enter the site in 1984 by that route. Mr. Victor Kiernan said it was possible to park a car there up to a few months ago. Mr. Flanagan (recalled) said there is now no entrance from the road but at sometime in the past perhaps there was.
There is a conflict of evidence about the fencing. Mr. Mulhern said that he fenced the plot. He put wire along the road and put wire up on the 24 foot gap. Mr. Dan Kieran Farrell (called by Mr. Mulhern) said he never saw any fence erected and the condition of the boundary was the same three weeks previously as it ever was for the last 45 years. His father had put in the wire. He saw no timber or wire fence. The gaps were there as long as he remembered. Mr. Brady said he fenced the 24 foot gap by post and wire fencing. When he bought it he fenced it to make it safe from trespass. I accept that Mr. Brady did fencing when he bought the land. However he does not say that he did any fencing in the years since 1979–1980. It is possible that animals breaking in knocked down this fencing. If Mr. Mulhern put up fencing between the lands in Folio 2070F and the lands in Folio 3726 he was merely fencing his own lands. The matter does not turn on fencing.
Mr. Mulhern claims that he had exclusive use and possession of the disputed plot either by using it himself or by receiving rent for it. He said he went into possession of the plot in late 1982 at the same time as he took possession of the exchanged lands, because there were entrances to it. He allowed Mr. Farrell to graze the after grass. In 1983-1984 he rented the whole farm to Henry Moorehead. In 1986 he rented the lands back to Dan Kieran Farrell for one year and then for twenty years from the 1st of March, 1987 to the 1st of March, 2007 at £5,000 per annum. Mr. Farrell’s cattle were seized in 1992. Mr. Mulhern said that he and Dan Farrell got hay off the plot in 1993. At the end of 1993and 1994 he said he made an eleven month letting to Gerard Costello although Dan Farrell also paid him rent. He said Mr. Farrell put cattle back with Gerard Costello up to 1996. Mr. Farrell denied that he ever shared with Mr. Costello. After 1996 Mr. Mulhern said the lands were rented out to various people.
Asked if he knew about the site which was sold to Mr. Brady he said George Maloney, Solicitor, who acted for both for him and Mr. Farrell at the time of the exchange, mentioned that three sites were sold off the entire farm. Asked if he had an interest to establish what parts were held by him he said not really; he left it up to his Solicitor. He could not recall Mr. Farrell saying he had sold the plot in question. When it was put to him that Mr. Brady spoke to Mr. Moorehead about cattle trespass he could not recall anything about Mr. Moorehead.
He said the first time he was aware of another owner was when a planning permission notice was displayed in 1997/98. Prior to that he had no knowledge. He did not see any “for sale” sign on the site over a period of months. He was not aware planning permission was granted in 1986 and he was not aware of a sale to Mr. Conway in 1998.
When asked about the 133 acres mentioned in the 20 year lease he said he calculated it from the outline on the Folio map. He did not include any land outside the outline. Mr. Farrell got a lease back of the land he had exchanged.
Mr. Dan Kieran Farrell said he sold the site for £3,000 in 1979. He said the lease back to him did not include the lands in Folio 2070F. He visited the farm everyday when he had cattle on it and from time to time he saw cattle on the disputed land. He let his cattle break in through the gaps. He was not claiming entitlement to the land.
A neighbour, Edward Dervan, who has lands on the opposite side of the road said he saw horses, cattle and sheep on the disputed lands from time to time. They got in and out of the field through the gaps. He also said he saw a sign for sale.
Mr. John Brady, the Respondent and registered owner, lives about four miles away from the site. He said he came four or five times a year and went on site. On one occasion in the mid-eighties he saw cattle on the land. He told Mr. Moorehead he was trespassing. Mr. Moorehead apologised and removed the cattle.
He bought the site to build a house but did not build because he inherited another house. He got planning permission in 1980 and again in 1986 when it was advertised in the newspaper. He said he put a notice on the site. He sold the site to a Mr. Conway in 1998 who got planning permission in that year, but the sale fell through. He then sold recently to another purchaser, Mr. Donohoe. The plot was too small for renting. He was not aware of any machinery being brought onto the land. He only saw cattle there once with Mr. Moorehead and he never saw Mr. Mulhern before seeing him in Court.
Mr. Victor Kiernan, an auctioneer acting for Mr. Brady was familiar with the site and visited it ten or twelve times. He never saw cattle there. He put a “For Sale” sign up (2 feet x 2 feet) which could be seen for thirty yards. This was six or seven years ago when Mr. Brady wanted to sell. He said it was up for six months to a year.
In my opinion based on that evidence, there was no abandonment by Mr. Brady. He visited the plot four or five times a year and only once saw cattle trespass which he dealt with. He advertised for planning permission in 1986 in local newspapers and his auctioneer erected a For Sale sign for six months to a year. Mr. Mulhern’s version is that he exchanged the lands with Mr. Farrell which did not include the plot in Folio 2070F but he thought it did because he did not bother to find out what plots were sold out of the farm. I find it hard to believe a farmer would not bother to find out exactly what land he was getting. When he rented to Mr. Moorehead, Mr. Moorehead must have been under the impression that the plot in question was part of the lands rented but he removed his cattle when Mr. Brady told him he was trespassing.
When Mr. Mulhern leased the farm back to Mr. Farrell for £5,000 per annum for twenty years he only leased back what he got in exchange. Mr. Farrell knew that the plot in question had already been sold by him to Mr. Brady and was under no illusion that it formed part of the 133 acres comprised in the lease. No rent was paid in respect of the plot to Mr. Mulhern. Mr. Farrell allowed his cattle to trespass on Mr. Brady’s land from time to time knowing it to be Mr. Brady’s land and without any intention of ousting him.
Mr. Mulhern falls in his claim as he cannot establish twelve years continuous occupation and possession to the exclusion of the registered owner. There was no open assertion of title as evidence of intent to extinguish the title of the registered owner. He relied on the acts of his tenants, Mr. Moorehead and Mr. Farrell, between 1983 and 1996. But Mr. Moorehead removed his cattle when asked by Mr. Brady and Mr. Farrell who allowed his cattle to trespass from time to time had noanimus possidendi. User of the land after Mr. Mulhern vacated it as immaterial. The law on adverse possession has been very succinctly summarised by O’Hanlon J. in Doyle -v- O’Neill & Anor (Unreported) 13th January, 1995.
“In order to defeat the title of the original land owner I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a land owner alert to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.”
He said at page 20:-
In this case I am quite satisfied that Mr. Mulhern has not established twelve years adverse possession and occupation to the exclusion of the registered owner. Accordingly, he fails in his application.
The State (Philpott) v Registrar of Titles
[1986] ILRM 499,
Gannon J.
This is an application to make absolute notwithstanding cause shown a Conditional Order of Certiorari granted on the 6th of May, 1985 directed to the Registrar of Titles in the Land Registry. The prosecutor was on the 28th July, 1983 registered full owner with possessory title of 4.505 hectares in the townland of Glenaknockane, Barony of Duhallow, Co. Cork in folio 29970F of the Register of Freeholders Co. Cork. On the 19th of February, 1985, the respondent, the Registrar of Titles, entered on the said folio an inhibition against all dealings with these lands without the approval of the respondent. Prior thereto the prosecutor had entered into a contract on the 23rd of November, 1984 for the sale with other lands of the lands on this folio. The sale had not been closed on the 7th of December, 1984 which was the closing date prescribed in the contract and completion was still pending on the 19th of February, 1985. The prosecutor had had no notice of the intended entry of the inhibition on the folio, the entry whereof is in purported exercise of a power conferred on the respondent pursuant to section 121 of the Registration of Title Act 1964. The first notification the prosecutor received of the exercise of this power by the respondent was a letter dated the 25th of February, 1985 from the Examiner of Titles in the Land Registry with which was enclosed a letter dated the 28th of September, 1984. Although not expressed to be from the Registrar the letter appears to have been sent in compliance with subsection (3) of section 121 of the 1964 Act. The letter is addressed to the solicitors for the prosecutor with a heading referring to the folio and lands of the prosecutor and is signed by the Examiner of Titles. It states as follows:-
“Dear Sirs,”
We had correspondence from Messrs. David J. O’Meara & Sons of Bank Place, Mallow, Co. Cork on behalf of Mr. Bartholomew Leahy of Knock, Lyre, Banteer and John Scanlon and John Sheehan of Glenaknockane, Lyre, Banteer claiming rights. We enclose herewith a copy of our reply of the 28th September, 1984.
It has been decided to enter an inhibition under section 121 of the Registration of Title Act 1964in the event of there being an error and claim under this section. The inhibition reads “all dealings are inhibited except with the approval of the Registrar of Titles”.
A copy of this letter has been sent to the registered owner, Christopher Philpott.”
The enclosure with that letter was a letter from the Examiner of Titles to Messrs. David J. O’Meara & Sons, Solicitors, Bank Place, Mallow, Co. Cork with a reference to folio 29970E County Cork, registered owner Christopher Philpott of Glouncome, Lyre, Banteer, Co. Cork your clients Bartholomew Leahy of Knock, Lyre, Banteer and John Scanlon and John Sheehan of Glenaknockane, Lyre. It said:-
“Dear Sirs,”
Your letter of the 17th September, 1984 addressed to Richard Sherlock of this office has been passed to me.
On the basis of the effect of registration with a possessory title as set out in section 38 (1) of the Registration of Title Act 1964the registration of Christopher Philpott is in order.
Any person aggrieved by the decision may appeal to the Court under section 19 (1) of the said Act. Alternatively, an application may be made to convert the title under section 50 (1) of the said Registration of Title Act and rule 38 (3) of the Land Registration Rules 1972. If the applicants application is based on possession form 5 of the said rules should be considered, in a similar manner to an application for first registration based on possession.
You should also see sections 97 and 98 of the Registration of Title Act 1964. Your clients may have rights which can be protected under these sections.
Your clients rights may also be protected under paragraphs (h), (j) or (p) of subsection 1 of section 72 of the said Act.”
It is signed by the Examiner of Titles.
On receipt of notification of the entry of the inhibition the prosecutor’s solicitors enquired from the Examiner of Titles if the purchasers from the prosecutor could be registered as owner on completion of the sale. The reply from the Examiner of Titles is dated the 27th of March, 1985 and is as follows:-
“Dear Sirs,”
We are in receipt of your letter of the 28th February 1985 which has only recently reached the writer.
The inhibition may not be removed until the matters arising on the title and the registration are rectified and the registration of Patrick and Particia Barry may not be completed.
The registration of Christopher Philpott with a possessory title was made on foot of the affidavit dated the 11th May, 1981 of Christopher Philpott and your letter of reply of the 1st June, 1983. It is now possible that the registered owner is not entitled to the fee simple. An application to convert the title to absolute should be made by the registered owner. All parties will then be notified and their rights clarified if possible.”
It is signed by the Examiner of Titles.
The grounds upon which the Conditional Order of Certiorari was granted on the 6th of May, 1985 are set out in the following four paragraphs in the Order namely:-
2 “1. That the decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles failed to adhere to the procedure laid down by the said section in and about his decision to enter the same.
2. That the decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles failed to adhere to the procedure laid down by the land registration rules for the entry of such inhibitions.
3. That the said decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles, prior to the time when he entered the said inhibition on the register, failed to inform the prosecutor either of the fact that he proposed to enter such an inhibition or the grounds for such entry or to afford to the prosecutor an opportunity to make representations or otherwise to be heard by him in relation to the entry of the said inhibition.
4. That the Registrar failed to exercise his power to enter inhibitions on the register pursuant to section 121 of the Registration of Titles Act 1964in accordance with the requirements of constitutional and natural justice.”
The prosecutor accordingly challenges the determination of the Registrar to place an inhibition on the folio on the grounds that the Registrar did not conform to the requirements of section 121 of the 1964 Act, nor comply with the requirements of the land registration rules for the entry of an inhibition; and further that by failing to give to the prosecutor previous notice and a hearing on the matters upon which the determination was made there was a denial of justice which invalidates the entry on the folio. The respondent shows cause by affidavit which, unfortunately, does not depose to anything that he as Registrar of Titles did or did not do. In his affidavit showing cause the Registrar deposes that the Examiner of Title “in the course of investigating the title sought to be registered on behalf of the prosecutor” was not satisfied about certain matters pertinent to the registration of title. The affidavit discloses that in correspondence between the Examiner of Titles and other parties in September, 1984 unspecified matters were ascertained which indicated that an error may have been made in effecting the registration of the prosecutor’s title. The registration of the prosecutor’s title had been effected in July, 1983. It is evident from the affidavits filed on behalf of both parties that when examining the evidence in support of the application by the prosecutor for registration the Examiner of Titles had no communication with the parties referred to in his letter of the 28th of September, 1984. The affidavits also show that after registration had been completed the Examiner of Titles when replying to enquiries of the parties referred to in his letter of the 28th of September, 1984 did not have any communication with the prosecutor, the then registered owner, with reference to whose registration the enquires apparently were being made.
Section 121 of the Registration of Title Act 1964under which the registrar, the respondent, acted is as follows:-
2 “121 (1) Whenever it appears to the Registrar that an error which may be capable of rectification has been made in registration, the Registrar may enter in the register such inhibition against dealings with the land or the burden affected by such error as he thinks proper for the purpose of protecting the Central Fund against claims for compensation in respect of losses occasioned by registrations made after such error is discovered and before it is rectified.
(2) An inhibition entered in the register under this section shall not affect any registration actually pending in the central office when such inhibition is entered nor prevent the completion of such registration.
(3) Whenever the Registrar enters an inhibition under this section, he shall send notice of such inhibition and of the error because of which it was entered to all persons who appear from the register to be affected by such error and to such other persons (if any) as may be prescribed.”
By Section 3 (1) of the 1964 Act “prescribed” means prescribed by general rules. Section 120 of the 1964 Act provides for the payment of compensation in respect of losses occasioned
(a) by rectification of an error originating in the Land Registry and rectified pursuant to section 32 (1) of the Act,
(b) by an error originating in the Land Registry which was not rectified under that subsection,
(c) by an error of entry in or omission from the register procured by forgery or fraud,
(d) by an error in an official search and
(e) by an error in the Land Registry Office copies of documents.
This section is of importance in cases of first registration founded upon claims based solely upon long continuous adverse possession. Such appears to be the basis for the registration of the prosecutor on Folio 29970F County Cork. The other section of the Act which provides expressly for the entry of an inhibition on the folio is section 98. For the purposes of comparison and guidance on the intendment of the Act it would be advisable to quote that section also which is as follows:
2 “98 (1) The court or, subject to an appeal to the court, the Registrar, on the application of any person interested in any registered land or charge, may, after directing such inquiries (if any) to be made and notices to be given and hearing such persons as the court or Registrar thinks expedient, make an order or, in the case of an application to the Registrar, an entry, inhibiting for a time, or until the occurrence of an event to be named in the order or entry, or except with the consent of or after notice to some specified person, or generally until further order or entry, any dealing with any registered land or registered charge.
(2) The Registrar, on the application of the person who has “obtained an order of the court under the provisions of this section, shall make an entry of the order on the register in the prescribed manner.
(3) The court or Registrar may annex to any such order or entry any terms or conditions they think fit, and may discharge any such order or cancel any such entry, and generally may exercise such powers as the justice of the case requires; but nothing herein contained shall empower the Registrar to discharge an order made by the court.
a (4) (a) Nothing in this section shall authorise any restrictions to be imposed on the powers of a tenant for life, or a person having the powers of a tenant for life, under the Settled Land Acts.
(b) Any entry made under this section may be withdrawn or modified at the instance of all the persons for the time being appearing by the register to be interested therein.”
These are the statutory provisions upon which the prosecutor relies in support of ground 1 of the Conditional Order. In support of ground 2 the prosecutor relies on rules 137 to 145 of the Land Registration Rules of 1972. Other than these rules, which clearly prescribe for the implementation of the provisions of section 98 of the 1964 Act, there are no other rules specifically referable to section 121 of that Act. Although the express purpose of the use of the power conferred by section 121 is to enable the Registrar to protect the common fund its effect is to maintain a position of no change by preventing any effective dealings with the registered land or with ownership of any interest in it until the inhibition has been removed. The section places no obligation upon the Registrar to correct the error nor does it make any provision for the removal of the inhibition.
In a well constructed and carefully prepared argument Mr. McCarthy for the prosecutor submitted that the exercise by the Registrar of the power conferred by section 121 of the 1964 Act requires a determination by the Registrar made upon consideration of facts or matters relative to the administration of the registration of ownership of land. It is a power for the exercise of which the rules or regulations make no express provision and consequently leave the determination in the sole discretion of the Registrar. The rights of the registered owner to transmit his interest or to create a charge upon it are prohibited and are so affected by reason not of the facts or matters considered by the Registrar but by virtue of his determination upon such facts and matters and his consequent exercise of the power conferred by section 121. In support of his contention that the function and power invested in the Registrar by section 121 is in the nature of a judicial act and one which must be exercised in a judicial manner Mr. McCarthy cited the statement of Palles C.B. in Reg. (Wexford County Council) .v. Local Government Board 1902 2 I.R. 249 quoted by O’Byrne J. in the State (Crowley) .v. Irish Land Commission 1951 I.R. 250 at 265. The quotation from the Chief Barron is as follows:
“I have no hesitation in saying that I have always considered, and still consider, the principle of law to be as stated by the Chief Justice”
(here he refers to the observations of May C.J. in Reg.-v- Corporation of Dublin 2 L.R.I. 371 at 376)
“assuming that there is nothing in the statute constituting the particular tribunal or investing it with the particular power which indicates a contrary intention. I have always thought that to erect a tribunal into a “Court” or “jurisdiction” , so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or affect rights. By this I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact. It is otherwise of a ministerial power. If the existence of such a power depend upon a contingency, although it may be necessary for the officer to determine whether the contingency has happened, in order to know whether he shall exercise the power, his determination does not bind. The happening of the contingency may be questioned in an action brought to try the legality of the act done under the alleged exercise of the power. But where the determination binds, although it is based on an erroneous view of the facts or law, then the power authorising it is judicial.”
It was argued that the power, being a personal one exercisable at his discretion by the Registrar, imposes the onus to conform strictly with the statutory requirements permitting a determination to be made. Mr. McCarthy contended that the exercise of the power in a judicial manner requires personal enquiry by the Registrar – the only person on whom the power is conferred – to ascertain facts from which the inference may be drawn that an error giving rise to a claim for compensation has been made in the Land Registry which is capable of rectification. He submitted that such enquiries would in justice require communication with the registered owner, and if the rights to be affected relate to the registration of the registered owner, justice requires that the registered owner be given an opportunity of defending his right as, and to be, the registered owner. In support of his contentions Mr. McCarthy cited the observations of Walsh J. in East Donegal Co-Operative -v- Attorney General 1970 I.R. 317 at 343:-
“All the powers granted to the Minister by section 3 which are prefaced or followed by the words “at his discretion” or “as he shall think proper” or “if he so thinks fit” are powers which may be exercised only within the boundaries of the stated objects of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will. Therefore, he is required to consider every case upon its own merits, to hear what the applicant or the licensee (as the case may be) has to say, and to give the latter an opportunity to deal with whatever case may be thought to exist against the granting of a licensee or for the refusal of a licence or for the attaching of conditions, or for the amendment or revocation of conditions which have already attached, as the case may be.”
Mr. McCarthy contended that the stated objects of the 1964 Act most pertinent to this instant application are expressed in sections 121, 120, and 98 and in the rules made under the Act, in particular rules 137 to 145 inclusive. He submitted that justice required that the Registrar should disclose to the registered owner the existence of facts or information from which an error in the registration can be identified, the nature of the error, whether or not it is capable of rectification pursuant to the provisions of section 32 (1) of the 1964 Act or otherwise so coming within the scope of section 120 (1) as to necessitate the protection of the common fund from a claim for compensation. Mr. McCarthy argued that there is nothing in section 121 which relieves the Registrar from the obligation of giving to the registered owner before entering an inhibition under that section the sort of notice and information required before entry of an inhibition under section 98. By subsection (3) of section 121 the Registrar is required to give such notice and information after the entry of the inhibition. Mr. McCarthy submits that if the power conferred by section 121 is to provide for a circumstance of some urgency, such as a threatened or pending claim for compensation, the information to be furnished under subsection (3) should state the facts creating such circumstance. The rules and forms prescribed by the Act specify the terms in which an inhibition may be expressed, but the inhibition entered by the Registrar does not conform to these. It would seem from the prescribed rules and forms, Mr. McCarthy maintains, that an inhibition is intended to be of only temporary effect. But, he pointed out, the inhibition under section 121 seems to be permanent in its effect unless and until the registered owner or some person to whom the Registrar has given notice takes some step either for the removal of the inhibition or for rectification of the register.
For the respondent showing cause Mr. Clarke submitted that section 121 confers a power on the Registrar to protect the common fund from claims for compensation due to error occurring in the registration of ownership or other interests in the land. Because of the nature and purpose of the power conferred its effect is of an interim nature only, to preserve the status quo and to prevent the acquisition of rights by unregistered persons, pending rectification of an error. He compared section 121 with section 98 showing the distinctive characteristic of section 121 to be its holding operation and peremptory nature with subsequent notice putting contending parties in a position to agree or take steps for rectification of the error. He argued that it was within the power of the Registrar to remove the inhibition if the person whose claim or representations gave rise to the entry failed to proceed. He referred to rule 142 of the 1972 rules which provides for application to the Registrar on notice for the modification or discharge of an inhibition. This rule he submitted applies to inhibitions entered pursuant to section 121 as well as to those entered on the application of persons other than the Registrar. He argued that no injustice is done by a necessarily peremptory but temporary restraint on the rights affected where provision is made for subsequent immediate enquiry and is subject to a right of appeal under section 19 of the Act.
On the matter of the residual right of appeal to correct a determination found to be not in accordance with the principles of justice Mr. McCarthy referred to comments of McGarry J. in Leary -v- Nation Union of Vehicle Builders 1971 1 Ch 34 cited with approval by Pringle J. in Ingle -v- O’Brien 109 I.L.T.R. 7 at page 11. He also quoted from the judgment of O’Higgins C.J. in the State (Abenglen Properties Limited) -v- Dublin Corporation 1982 I.L.R.M. 590 at 597 where he says:-
“The question immediately arises, as to the effect on the exercise of the court’s discretion, of the existence of a right of appeal or an alternative remedy. It is well established that the existence of such ought not to prevent the court from acting. It seems to me to be a question of justice. The court ought to take into account all the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of jurisdiction involved, the existence of such ought not to be a ground of refusing relief. Other than these, there may be cases where the decision exhibits an error of law and a perfectly simple appeal can rectify the complaint, or where under administrative legislation, adequate appeal machinery particularly suitable for dealing with errors in the application of the code in question exists. In such cases, while retaining always the power to quash, the court should be slow to do so, unless satisfied that, for some particular reason, the appeal or alternative remedy is not adequate.”
Mr. McCarthy pointed out that in the absence of sufficient information in either the notice of entry of the inhibition, namely the letter of the 25th February, 1985, nor in the affidavit showing cause as to the facts or circumstances giving rise to the entry of the inhibition the prosecutor, the registered owner, does not know the nature of the case required to be made by him nor of the case he might expect to meet in the event of an appeal by him under section 19 of the 1964 Act. In reply to the contention that the inhibition is a mere holding operation of a temporary but urgent nature he submitted that the only matters properly within that description, namely matters pending in the central registration office, are in fact excluded by subsection (2) of section 121 from the effects of an inhibition under that section. He contended that the entry on the folio gives no indication that the inhibition is intended to have only temporary effect.
Having given careful consideration to the legal principles enunciated and to the arguments submitted I am satisfied that the application of the prosecutor is well founded. The establishment of the register to evidence ownership of land and of rights over land of which the ownership is registered necessarily involves serious consequences from registration of cautionary notices or inhibitions affecting registered land. The determination to enter an inhibition is entrusted only to the Registrar, and must be exercised by him in a judicial manner. Section 121 of the 1964 Act which gives him a discretion in the exercise of this power sufficiently indicates the purpose and circumstance for its exercise. In my opinion every exercise of this power should be capable of being identified as protecting the common fund from a real probability of a claim for compensation, and should relate to an identifiable error made in the Land Registry of a nature for which compensation could be payable in accordance with section 120 of the Act. The use of the power conferred in section 121, while available to anticipate an urgent situation, is not confined to such circumstances. The section does not require that the inhibition should be limited as to the time of its duration or its purpose. Nevertheless, conformity with the other like provisions of that nature in the statute requires that its limitations (if any) of time and purpose should be disclosed by the entry. It is understandable that in the circumstances of some urgency for the protection of the common fund it would be imprudent or impractible to give, prior to making the entry of the inhibition, the notice and opportunity for hearing indicated in subsection (3) of section 121. But because of the grave nature of the interference with rights over land and the evidence thereof empowered by section 121 I am of opinion that, unless the urgency of the circumstances otherwise require, justice requires that notice should be given to the person whose rights may be affected of the intention to enter such an inhibition and an opportunity given to show cause why it should not be entered. By so doing the primary object of the section, namely the protection of the common fund from claims for compensation, could be achieved without injustice to any party. Whether a contrary effect might result is something which the Registrar would have to assess in every case as it arises and upon its own facts. On the evidence before this court there is nothing to show that the purpose of section 121 is being achieved, namely that there is any risk of any claim for compensation of a nature indicated in section 120 which is being prevented or avoided. There is no evidence to suggest an urgency which made it necessary to proceed without communication to the registered owner, nor of circumstances suggesting that to do so might in any way defeat the purpose of section 121. There is also an absence of sufficient evidence to show that the Registrar gave his personal attention to the factors supporting a proper determination under this section or that the determination was in fact made by him. I accept the arguments advanced on behalf of the prosecutor as supported in evidence and sound in law. In my opinion all four grounds on which the Conditional Order was made have been established and cause shown must be disallowed.
Murphy v. Murphy
O’Higgins C.J.
The facts relevant to the issues which arise on this appeal are fully set out in the judgment of the trial judge, Mr. Justice Costello, and in the judgment of Mr. Justice Kenny; therefore, it is unnecessary for me to refer to them in any detail. It suffices to say that the effect of the will of the late Laurence Murphy, who died on the 23rd June, 1936, was to divide his farm of 153 acres into three parts at the end of the ten-year trust period mentioned in his will. This farm lay north and south of the Loughrea-Kilchreest road in the county of Galway. The portion north of the road contained 40 acres and the portion south of the road contained 113 acres. His widow became entitled as residuary legatee to the 40 acres which were north of the road, while the portion south of the road was divided between his two sons, the plaintiff and the defendant. The widow was given in addition a right of residence and support on whichever portion of the sons’ divisions she should choose at the end of the trust period. The ten-year trust provided for the working of the farm as a unit by the defendant as manager under the direction of the trustees of the testator’s will, and for the lodging (in a bank account in the joint names of the widow and the defendant) of all profits derived from the working of the farm.
The terms of the will were carried out and for the period of the trust the lands were managed and farmed as one unit by the defendant; the joint bank account was duly kept and the profits of the farm were lodged in it. After the expiration of the trust period, the plaintiff assigned his division of the lands to the defendant by a transfer which became effective in 1954. In that year also the joint account came to an end and since then, and up to the commencement of this action, the defendant has farmed all the lands as the apparent owner. From the death of the testator the widow continued to reside in the family home which was on the defendant’s portion of the testator’s lands. She was provided for and maintained thereon by the defendant until the year 1968 when she went to a Home where she died on the 25th March, 1971, at the advanced age of 91.
By her will the widow appointed the plaintiff to be executor and sole residuary devisee and legatee. As such, the plaintiff claims that the portion of the lands devised by the testator which is on the north of the Loughrea-Kilchreest road is now the plaintiff’s property, and he seeks to recover that portion from the defendant. The defendant claims that he has acquired title to these lands and that the plaintiff’s claim thereto is barred by the Statute of Limitations, 1957. In the High Court Mr. Justice Costello decided this issue in favour of the defendant, and the plaintiff has brought this appeal against that decision.
Section 13, sub-s. 2 (a), of the Act of 1957 provides2 that no action for the recovery of land may be brought by any person (other than a State authority)”after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.” The plaintiff claims through his mother, the testator’s widow, who became entitled to this portion of the lands under the terms of the will at the expiration of the trust period which occurred in 1946. At that time the testator’s widow was residing in the old family home with the defendant. The lands continued to be farmed as one unit with the plaintiff also there, until he left in 1949 to go to England. The plaintiff sold and transferred his share to the defendant in 1954. In that year also the joint account, which had been continued after the expiration of the trust period, was closed and from then on the defendant ran the farm himself on his own account.
[Having referred to s. 18, sub-s. 1, of the Act of 1957. the Chief Justice continued] The question which arises is when, on the facts found by the trial judge, did the widow’s right of action to recover these lands accrue” Her title commenced in 1946 but at that time, and until 1954, the joint account continued. The trial judge regarded this period from 1946 to 1954 as being equivocal by reason of the continued existence of the joint account. He took 1954 as the starting point and concluded that from then on all equivocation in relation to the defendant’s possession ceased and the limitation period commenced to run. Section 18 of the Act of 1957 defines adverse possession as being possession by some person in whose favour the period of limitation can run. The period would not run in favour of a person in possession as a licensee or as an agent or as a trustee; nor would it run if there were disability or fraud. None of these circumstances exist in this case. Here the trial judge found as a fact that from 1954 onwards the defendant’s possession was adverse within the meaning of the Act of 1957 because he was a person who was in possession and in whose favour the limitation period could run.
It is possible that the widow never knew of her rights to the 40 acres under the testator’s will and assumed that the entire farm had been divided amongst her sons. In my view, this circumstance is immaterial in the absence of any question of fraud. The possession by the defendant was possession by him on his own behalf. In my view, the fact that the widow continued to live on the farm and continued to be supported thereon did not alter the character of the defendant’s possession in any way. On the facts found by the trial judge, the defendant farmed the entire lands as the apparent owner from the year 1954 onwards. He looked after his mother in the house and on the lands but this did not alter the character of his possession in any way. In my view, therefore, the defendant has clearly established a right to these lands pursuant to the Act of 1957 and, for these reasons, I would dismiss this appeal.
Kenny J.
On 29th March, 1920, Laurence Murphy (the testator) bought the freehold interest in the lands of Gortnamackan in the county of Galway containing 153 acres. The Loughrea-Kilchreest road divides these lands into two portions: the road runs on a bridge which is above the level of the lands but access at ground level from one part of them to the other is obtained through two arches of the bridge. The lands to the north of the road are liable to heavy flooding and are suitable only for the grazing of cattle. The dwelling-house on the lands known as Millmount is on the south side of the road. The land to the south of the road contains 113 acres and the land to the north of it contains 40 acres. When the testator made his will on the 30th May, 1936, there was a cottage known as “Garvin’s” with a small garden attached to it on the north side and very near to the road. Opposite Garvin’s garden and on the south side of the road there were two pillars. In a field south of the road there was a herd’s house and at the most southern portion of the lands there was a field which was owned by an adjoining occupier and known as “Martin Ford’s tillage field.”
When the testator made his will, he resided in Millmount House with his wife Agnes, his daughter Annette and his two sons (the plaintiff and the defendant). By his will the testator left the lands to his trustees to hold them upon trust for his wife, the plaintiff and the defendant for a term of ten years from the date of his death; he directed that the defendant was to act as manager of the lands and that all profits derived from them should be lodged in the National Bank at Loughrea in the joint names of his wife and the defendant. He directed that at the end of the period of ten years, legacies were to be paid to his wife and his daughter out of the moneys lodged. He directed that at the end of the period of ten years his lands were to be divided by drawing a line from the two pillars opposite Garvin’s garden “to proceed straight towards the herd’s house up to the corner of Martin Ford’s tillage field” and he left that part of the lands on the eastern side of the dividing line with the dwelling-house and premises thereon to his trustees upon trust for the defendant absolutely. The lands on the western side of the line were left to trustees upon trust for the plaintiff absolutely.
The will continued: “I direct that from and after the said division and from and after the vesting of the said respective portions of my said farm and lands in my said sons my said wife shall have the right during her life to reside upon whichever portion of the said lands she chooses and to be supported clothed maintained and fed thereon and thereout and that in addition she shall be paid during her life by my said son Laurence Murphy a sum of ten pounds each year and a similar sum by my said son Thomas Murphy . . .”
The testator left all the residue of his property real or personal to his wife. He died on the 23rd June, 1936, and on the 16th April, 1941, letters of administration with the will annexed were granted to the defendant. The title to the lands at Gortnamackan was never registered under the Local Registration of Title (Ireland) Act, 1891, or under the Registration of Title Act, 1964.
All the lands north and south of the road were farmed by the plaintiff and the defendant until 1951 when the plaintiff agreed to sell to the defendant the lands given to the plaintiff by the testator’s will; the plaintiff then left and went to England. This agreement was carried out by a conveyance made on the 9th March, 1954, by which the plaintiff conveyed to the defendant all the lands left to the plaintiff by the testator’s will. In 1954 the bank account referred to in the will was closed and the legacies left to the testator’s widow and to his daughter were paid. The testator’s widow and daughter continued to live in Millmount and were supported and maintained by the defendant who paid the widow the sum referred to in the will. In 1968 the widow left the lands and went into a home for old people and the daughter remained in the dwelling-house. The testator’s widow died on the 25th March, 1971, and by her will she left everything she had to the plaintiff.
I am convinced that under the testator’s will the lands north of the road became the property of the testator’s widow under the residuary clause in his will; but I am equally certain that she never knew this and assumed that from the year 1954 the defendant was the owner of the 153 acres, subject to her right to reside in the house and to be maintained out of the lands south of the road. From the year 1954 the defendant farmed the entire holding and spent money on draining the lands north of the road. The defendant assumed that all the lands north and south of the road belonged to him.
In 1976 the plaintiff brought these proceedings for a declaration that he was the owner of the lands north of the road under the bequest to him made in the widow’s will. The defendant claimed that he had acquired a title to them under the Statute of Limitations, 1957. The trial judge, Mr. Justice Costello, held that the widow’s right to the lands north of the road had become barred under that statute. I agree with his conclusion. Section 13, sub-s. 2(a), and s. 18, sub-s. 1, are the relevant provisions3 of that statute.
The ignorance of the testator’s widow and of the defendant that the lands north of the road belonged to her does not prevent the Act of 1957 applying and does not prevent the defendant being in adverse possession of these lands. In Wylie’s Irish Land Law at p. 857 it is stated: “It is also established that the adverse possession may take place without either party being aware of it.” The widow was not maintained out of the land on the north of the road because, although the whole farm was worked as one unit, her right to maintenance and to the annual sum came out of the lands left by the testator to the plaintiff and the defendant; the only claim the widow had to the lands north of the road was as residuary legatee.
The question is whether the defendant had adverse possession of the lands north of the road from 1954 when the joint account was closed. Before the year 1833 the common law had engrafted the doctrine of non-adverse possession on to the earlier Statute of Limitations so that the title of the true owner was not endangered until there was possession clearly inconsistent with recognition of his title, i.e., adverse possession, and so there had to be an ouster. This doctrine of non-adverse possession was abolished by the Real Property Limitation Act, 1833, in which the words “adverse possession” were not used (Lord Upjohn in Paradise Beach & Transportation Co. Ltd. v. Price-Robinson 4 ). The use of the words “adverse possession” in the Act of 1957 does not revive the doctrine of non-adverse possession which existed before 1833. In s. 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus, it cannot run in favour of a licensee or a person in possession as servant or caretaker or a beneficiary under a trust: Hughes v. Griffin .3
In the instant case the defendant’s possession from the year 1954 was inconsistent with the widow’s title to the lands north of the road. She never made a claim to be the owner of them because she did not know that she had one. The fact that she lived in Millmount until 1968 and that all the lands were farmed as one unit was not an assertion by her of any claim to the lands north of the road. There is no evidence that she ever went on these lands or made any use of them. This view is strongly supported by a recital in the deed of mortgage of the 14th December, 1954, by which the defendant charged all the 153 acres in favour of the National Bank. The widow joined to postpone her rights under the will to the claim of the bank. In that deed the defendant is called the mortgagor and in the deed, which is signed by the widow and the daughter, there is the recital: “and whereas the mortgagor is now seised and possessed of the lands in the schedule hereto.” The schedule described the entire holding of 153 acres.
I have considered the decisions of the English Court of Appeal in Wallis’s Holiday Camp v. Shell-Mex 12 and Treloar v. Nute .1 In each of those cases the question was whether the person in possession of lands had been in adverse possession. This is ultimately a question of fact: in this case I have no doubt that the defendant was in adverse possession since the year 1954. Therefore, the plaintiff’s claim to the lands on the north of the road is barred by the Statute of Limitations. Accordingly, his action fails and should be dismissed.
Parke J.
I agree with the judgment delivered by Mr. Justice Kenny.
O’Hagan v Grogan
[2013] 1 ILRM 394,[2012] IESC 8
Supreme Court (Ireland)
Macken J, Mr Justice Finnegan
The Arguments of the Parties
The First Question
1. Is the plaintiff a state authority for the purposes of the Statute of Limitations 1957″
There is disagreement between the parties as to the meaning, scope and ambit of the language used in s.2(1) of the Statute of Limitations, 1957. The plaintiff’s argument is that s.2(1) does not simply limit “State authority” to those parties expressly set out in paragraphs (a) – (e). Rather, the definition is said to encompass other relevant persons, at least as concerns the Attorney General. For the purposes of this argument, the plaintiff invokes s.6(1) of the Ministers’ and Secretaries’ Act, 1924 set out above. On the basis of the wording of that section, and the 9 th Schedule to that Act, which specificaly refers to the branches and officers of the Chief State Solicitor’s department, including the Chief State Solicitor, since it is under the direct control and administration of the Attorney General, is, by virtue of the above provision, and for the purposes of s.2(1) of the Statute, an authority ‘being’ the Attorney General, and thus “a State authority” within s.2(1).
The defendant, on the other hand, argues that those included within the definition of a “State authority” in s.2(1) are only those expressly listed parties there mentioned. Since neither the plaintiff nor his predecessor, as Chief State Solicitor, is within the definition, neither can be a “State authority” for the purposes of s.2(1). On the argument arising under s.6(1) of the Act of 1924, while the defendant accepts that the administration and control of, inter alia, the powers, duties and functions of branches and officers of, inter alia, the Chief State Solicitor’s department, vested in the Attorney General, this did not, however, make the Chief State Solicitor’s department a “State authority”, but merely vested those functions and control in the Attorney General. Further, the defendant argues that on the documents before the Circuit Court, it was clear that the Attorney General at the time, had renounced his right to raise representation, and consented to the then Chief State Solicitor taking out the grant.
The defendant argues further, however, that the issue of his title to the premises by adverse possession has, in any event, been put beyond dispute by the decision of this Court in Gleeson v. Feehan (No. 2) [1997] 1 ILRM 522, which I deal with in greater detail below, but in the course of which it was stated that the title of the defendant in that case, was “adverse to the President of the High Court”, in circumstances where the defendant had occupied the premises for more than 12 years from the relevant date. It follows, the defendant here submits, that on the facts of this Case Stated, the time to be calculated to establish his adverse possession of the premises is 12 years, in accordance with S.13(2) of the Statute of Limitations, and not the 30 year period provided for under s.13(1), in favour of a State authority. Therefore, since he took possession of the premises in 1982, 17 years before the Grant of Letters of Administration, no title then vested in the plaintiff’s predecessor in July, 2000, as that title to the premises had beer extinguished by reason of the defendant’s adverse possession of them. Whereas the defendant does not base his claim to the application of a 12 year limitation period as against the President of the High Court on any express provisions of legislation, implicit in his argument in reliance on the Gleeson, supra, case, is that 12 years is the correct period in law to be applied.
The Second Question
Having regard to sections 23 and 24 of the Statute of Limitations 1957, is the relevant limitation period in this case prescribed by s. 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof”
Under this heading, the plaintiff also submits that, since these proceedings are “an action for the recovery of land”, as expressly referred to in s. 13(1) of the Statute of Limitations, brought by the administrator of the estate of a deceased person, s.23 of the Act also applies to it. It follows, therefore, that even if Chief State Solicitor is not, himself, a “State authority” within the meaning, or for the purposes, of s.2(1) of the Statute, the plaintiff, as administrator of the estate, is nevertheless entitled to succeed against the defendant. The time that had elapsed between the death of Mrs. Dolan in 1981 and the date of the grant of Letters of Administration in July, 2000 is irrelevant, counsel for the plaintiff argues, as his action for the recovery of land must be treated “as if there had been no interval of time” between the two events. On this argument, the effect of s.23 is to permit the plaintiff to sue for and recover the premises from the defendant, once Letter of Administration were extracted, as occurred here.
The defendant, on the other hand, while accepting that s.23 permits relation back, contends that this provision applies solely to actions brought by an administrator in respect of tortious claims, which, the defendant contends, cannot be applicable to the facts as found in the Case Stated. To support this argument, the defendant relies on an extract from Spierin in A Commentary on The Succession Act 1965 and Related Legislation, paragraph [82], which will be considered below.
As to the provisions of s.24 of the Statute, while this also appears to be fairly straightforward on its face, each party again cites different case law to discern its meaning. The plaintiff invokes the interpretation found in Perry v. Woodfarm Limited [1975] IR 104 at p. 119, in which it was stated:
“In the case of land, the effect of the Statute is to destroy the title of the person dispossessed to the estate from which he has been dispossessed, but it does not destroy the estate itself.”
The plaintiff argues that the meaning of this statement is simply to clarify that no estate in the land is extinguished, and that what is affected is only the title of the party who, but for the dispossession, would be entitled to the premises. The plaintiff also submits that, in any event, in view of the combination of s.23 and s.13(1 of the Statute, a thirty year period exists during which the plaintiff can bring a claim, which taken alone, is sufficient in the context of the facts in the present Case Stated, to defeat the defendant’s claim to be in possession “adverse to the President of the High Court”. As a result, s.24 can have no limiting effect on the plaintiff’s claim against the defendant.
The defendant, on the other hand, contends that Perry v. Woodfarm Homes Limited, supra., as followed in Gleeson v. Feehan (No. 2) [1997] 1 ILRM 522 supports his argument that he acquired title by adverse possession as against the President of the High Court and, as a result, the plaintiff’s title was extinguished 12 years after the date of death of Mrs. Dolan, and nothing, including a later purported grant of Letters of Administration, could revive it. The defendant invokes the following extract from the judgment of Keane, J. in Gleeson v. Feehan (No. 2), supra:
“As s.24 of the Statute of Limitation 1957 extinguished the title of the President of the High Court to the land and his right to bring an action to recover the land, no estate or interest could thereafter be vested by anyone in the next-of-kin, regardless of whether the next-of-kin were in or out of possession. The grant of letters of administration to the estate of James Dwyer could not revive the title to the land which had been extinguished by s.24.”
The Third Question
Is the answer to (b) affected by s.65 of the Succession Act, 1965″
For purposes of clarity, the defendant’s position is set out first. He relies on this provision, together with s.3(1) of the Statute of Limitations 1957, to support his argument as to the appropriate limitation period. He submits that these two provisions, taken together, dictate that any proceedings instituted by the State in respect of the intestate estate of a deceased person, must be dealt with as if the grant of Letters of Administration had been made to a “person”, in which case a 12 year – rather than a 30 year – limitation period applies. The defendant also submits that since there is no express provision to the contrary in the Act of 1965, the plaintiff must be treated as a private individual for the purposes of that Act, and all limitation periods contained in it. To support this argument, counsel looks to earlier English legislation, commencing with s.30 of the Administration of Estates Act 1925 itself, which will be discussed further below, as well as to the commentary on that section found in Williams. Mortimer and Sunnucks on “Executors, Administrators and Probate” which is in the following terms:
“Where the Crown or its nominee claims land in the course of administration of a deceased person’s estate, the position is governed by section 30 of the Administration of Estates Act 1925. The limitation period applicable to an action by the nominee of the Crown, who had obtained a grant of letters of administration, to recover land forming part of an intestate’s estate is 12 years, for the effect of the Administration of Estates Act 1925 is to put the nominee in the same position as the subject for limitation purposes.”
The defendant also relies on s.14(1) of the Statute of Limitations, 1957 contending that, under that provision, since Mrs. Dolan was the last person in occupation of the premises, the right of action against a person dispossessing her by adverse possession, accrued on her date of death.
The plaintiff presents two arguments on s.65 of the Act of 1965 and its application to this case. First, counsel submits that, in adopting the Act of 1965, the Oireachtas made a deliberate decision to exclude the issue of limitation periods from the reach of s.65. In support of this point, the plaintiff cites the equivalent of s.65 in the earlier English Act of 1884, above cited. The Act of 1884 only governed personal estate. It was only subsequently amended by the s. 30 of the Administration of Estates Act of 1925 to include real estate, and, at that time, the limitations invoked by the defendant. Secondly, it is said, that the Oireachtas had all of the prior language available to it from corresponding English legislation, in order to decide whether or not it wished to displace the provisions of the Statute of Limitations when enacting s.65 of the Act of 1965, but it chose not to do so. Thirdly, counsel submits that the term “the same rules of law” in s.65 of the Act of 1965 does not, in any event, include a statutory provision or enactment such as the Statute of Limitations, but is instead limited to judge-made rules or case law only. The plaintiff cites T v. L (Unreported, High Court, 23 rd November 2001) [at p. 15] in support of this argument, and also invokes the distinction made between a “rule of law” and an “enactment” or “statutory provision” in the following statutory provisions in contending that his interpretation is to be preferred, because it is correct in law. The examples include s.12(1) of the Succession Act, 1965 itself which states: “All enactments… and rules of law …”; s.45(1) of Courts and Courts Officers Act, 1995 which states: “any enactment or rule of law…”; s.2 of European Convention on Human Rights Act 2003, which speaks of “statutory provision or rule of law”. As to s.3(1) of the Statute of Limitations, invoked by the defendant, the plaintiff submits that this is of no application, as there is an express provision, namely in s. 13(1) of the same Statute, which applies to proceedings by a State authority, including the plaintiff.
Conclusion: Preliminary
Although a significant amount of legislation and some case law was opened to the Court on the hearing of this appeal, and the interaction of some of that legislation is complex, I am of the view that it is necessary first, to clarify in simple terms, or as simply as possible, the legal position obtaining in the administration of an intestate estate, in particular of the type in issue here, and the status of several of the players, including that of the Attorney General, the Chief State Solicitor, and the President of the High Court, as well as an Administrator of an intestate estate. It is also necessary to say something about the rules of court applicable to proceedings of this nature.
The Role of an Administrator
I start with an administrator, and the general position in the case of administration of an intestate estate with no time limit issues arising. In such circumstances, there may be next of kin or none, and the deceased may have died wholly or only partly intestate. In either event, the grant of Letters of Administration is made with a view to the proper administration of the intestate estate. Under the provisions of s.100 of the Act of 1965 the whole of the intestate estate vests in the personal representative, who nevertheless does not hold the estate on his own behalf, but (under s.10(3)) as a trustee for the persons in law who are entitled to it, and he must act accordingly. Those persons have an immediate beneficial equitable interest in the estate by way of trust, which is, nevertheless, subject to rights of the administrator, who has certain powers, including, for example, those for the purposes of disposition. The power to deal with the property of an intestate dates only from the date of grant, however, (as opposed to the position of an executor of a person who dies testate where the property vests on death).
An administrator, acting in accordance with the provisions of the Act of 1965, is charged with collecting in all assets, paying all relevant debts, and on completion of the administration, vesting the assets in the beneficiaries entitled on intestacy. This is not to say, however, that although the administrator must act as aforesaid, he cannot himself take property by adverse possession. He can, as is provided for in Part V of the Act of 1965. That is not, however, an issue in the present case. Such an event is most likely to arise where a next of kin within a family raises representation, and either takes possession, or is already in possession, of property within the estate, and retains it for a limitation period of, say, 12 years, as against other next of kin, even siblings, not in possession, who would otherwise have been entitled, on final administration, to that part of the estate, a situation which arose in Gleeson v. Feehan (No. 2), supra., although in that case there was also a non-next of kin (“a stranger”) in possession, adverse to the parties otherwise entitled. During the course of administration, if a party, such as a next of kin or a stranger (but most often a next of kin), in possession seeks to assert adverse possession in land the subject of administration, the administrator may sue for possession, or defend a claim to title by adverse possession, acting at all times in the interest of the eventual beneficiaries.
Rules of Court Relating to Administration Proceedings
In the normal course of events, and absent administration, where parties are in dispute in relation to the ownership of land, a defendant who raises a defence of adverse possession, may do so against a plaintiff claiming title to the land – the most usual situation – or against a third party. If a defendant contends he has acquired adverse possession as against a third party not already a party to the proceedings, he must also counterclaim naming the third party as the person against whom he sets up his claim, so that such third party has an opportunity to be heard. In the case of an administration, of course, several other non-possessing next of kin (as ultimate beneficiaries) may well be parties against whom a defendant sets up a claim to adverse possession. In the case of an intestate estate, as here, the administrator when bringing proceedings or defending an adverse possession claim, is deemed to act in the interest of all those ultimate beneficiaries otherwise entitled to the property but for the adverse possession claimed. Because of this, and to avoid unnecessary depletion of the estate, those parties do not have a right to be joined as parties separate to the administrator. This is both straightforward and sensible and should not create complexity, whatever the eventual outcome of any such proceedings, since it is undesirable that a myriad of persons having the same interests being protected by the administrator should be joined separately in proceedings. It is only where, in special circumstances, on an application to court, a separate party might be joined in such proceedings. Order 15, Rule 8 of the Rules of the Superior Courts provides accordingly. Analogous provisions apply in the Circuit Court.
As is clear from Gleeson v. Feehan (No. 2), supra., and other cases, when an administrator sues or defends proceedings concerning adverse possession of land, the limitation period affecting the administrator depends entirely on whose interest he represents, that is, on the identity of those who, but for such a claim, would be entitled to the land or premises. In that case all of the parties involved were persons who were next of kin, and a stranger – all subject to a 12 year limitation period under the Statute of Limitations. As will be seen later, no other limitation period was considered in that case.
Once administration is completed, the administrator must ensure the property vests in the ultimate beneficiary, that is, in the present case and absent the defendant’s claim, in the State, or its nominee, likely to be the Minister for Finance, pursuant to legislation in that regard.
The Position of The President of the High Court
The position of the President of the High Court was also part of the argument before this Court, once the defendant pleaded in his defence adverse possession “against the President of the High Court”, after a period of 12 years from 1982. That reflects an extract from the decision of this Court in Gleeson v. Feehan, supra. Before considering that case, it is however important to consider the President’s role and status. As mentioned, under the provisions of s.13(1) of the Act of 1965 the estate of, inter alia, a person such as Mrs. Dolan dying intestate, vests in the President of the High Court as a corporation sole, between the date of death and until Letters of Administration are granted. The President, however, is not entitled, nor would his estate be entitled, to deal with or dispose of the estate, in his own right, or at all. He has no beneficial interest in the estate, and s. 13(1) imposes on him no powers, no duties and no obligations. It is precisely to avoid such an estate being left, in effect, in limbo, that s.13(1) vests the estate in him, pro tem. It, in a sense, “hovers” in the person of the President of the High Court for the time being, by means of a legal fiction, until something else happens. In the case of intestacy, the first necessary condition, the estate vests in him automatically on death. It remains so until the second condition occurs, that is, the grant of administration and the appointment of the personal representative, on which event he is divested of the estate, also automatically. The mechanism adopted in the Act of 1965, which mirrors previous legislation, is a mere “mechanism of convenience”, as it is described in the case law, and to ensure that an estate has a temporary home pending the grant of administration. It becomes clear, however, on a consideration of the case law, not considered in Gleeson v. Feehan, supra., and discussed below, that there is no beneficial or other estate vested in the President, against which a claim to adverse possession can be made. At most he has, on a temporary basis, a bare estate in the property in question. In these proceedings, not surprisingly, he was not joined as a party, was not represented, and no order was sought against him.
I am fortified in my view that the President of the High Court does not hold any interest in the property which vests in him temporarily, sufficient to permit a third party to secure rights by means of adverse possession, by a consideration of his role in the devolution of the property upon administration Apart from the fact that, as mentioned below, Letters of Administration are not granted to the Attorney General (or the Chief State Solicitor) by or on behalf of the President of the High Court, which would be the logical position, if the intestate estate vests in him in any real sense, when such property is eventually to vest in the beneficiary at the end of the administration, the President of the High Court plays no role in that either. He does not even assent to the vesting of such bare estate as is vested in him temporarily under the Act of 1965. His interest is not mentioned as a party to any devolution of the property in any of the learned academic writings, such as in Wylie on Conveyancing, nor is his English equivalent mentioned in Halsbury, nor in any other writing I have been able to research. Nor have I been able to trace any case law in which the President of the High Court, nor indeed the Ordinary in whom such estates temporarily vested prior to the modern legislation, in which any court has held that those parties had such an interest in an estate, which could support an adverse possession claim. In the case of the Ordinary, at least, he held the estate as Trustee, whereas, according to the case law to which I refer below, the President of the High Court does not hold it even in that capacity.
The Position of the Attorney General and the Chief State Solicitor
The Attorney General is the legal representative of the State in all legal proceedings. The State does not, in general, act in its own name, independently of its Ministers or others officers, although it may, of course, do so. It acts through Ministers, including the Minister for Finance. The Attorney General falls into a different category to Ministers of state and those other parties mentioned expressly in s.2(1) of the Statute of Limitations. The Attorney General may hold property, qua Attorney General, although I do not know in what circumstances this occurs, but undoubtedly is also entitled to deal with the State’s own property and in property to which it may become entitled, such as on an intestacy, by virtue of the unique position of the Attorney General as such legal representative. No limitation is placed on the scope of the Attorney General’s role as a “State authority” in s.2(1), and he/she may act in more than one capacity, although always for an on behalf of the State, or on behalf of a Minister of State. The State itself is not separately represented in the list, although it must be accepted as a given, and, in the course of argument was accepted by counsel for the defendant, that it would be entitled to raise representation to the estate of Mrs. Dolan. But if it did so decide, it would act through the Attorney General, or the Chief State Solicitor. In circumstances where the State is the ultimate intestate successor to an intestate estate, as here, the Attorney General may act as a “State authority”, and, as such, clearly is within the ambit of s.2(1) of the Statute.
For the purposes of extracting a grant of Letters of Administration of an intestate estate, the application is not made by or on behalf of the President of the High Court, in whom the estate formally vests. According to the terms of the Grant of Letters of Administration in the present case, which appears to be in a standard format, the grant was made to the named party, Laurence A. Farrell “for and on behalf of the State”, and correctly I believe, was not made on behalf of the President of the High Court. When an Attorney General secures Letters of Administration, he does not – any more than any other administrator – do so, qua beneficial owner, but as personal representative of the estate, acting in the interests of the party entitled as beneficial owner, that is in the present case, the State, as ultimate beneficial successor.
There does not, however, appear to me to be any reason why Letters of Administration cannot, with the consent of the party otherwise entitled, issue to another appropriate party, such as the Chief State Solicitor, as indeed occurred in the cast of Gleeson v. Feehan (No. 2), supra., In this application, apart from querying the devolution of the grant from the originally nominated Chief State Solicitor to the present plaintiff, in truth no objection was raised to a Chief State Solicitor being granted Letters of Administration. S.65(1) and s.65(3) of the Act of 1965 expressly recognises that the Chief State Solicitor is an appropriate person to be granted Letters of Administration, on behalf of the State. The objection which is raised is that he could not have done so, qua “State authority”.
Decision on The Three Questions
The First Question
S.2(1) of the Statute of Limitations, 1957 is clearly intended by its terms to protect what might be called “state property”, that is, the type of property that formerly vested in the Crown. In providing that, as concerns the parties included in s.2(1), the limitation period is, at 30 years, significantly longer that in the case of a private person, the Oireachtas clearly intended that in respect of such property – of whatever nature, and from wheresoever emanating, once the State owns or is beneficially, or otherwise entitled in law to the same – a longer limitation period is to have effect.
Under the provisions of s.2(1) of the Statute of Limitations, it is submitted by the defendant that since the Chief State Solicitor is not a party mentioned in that section, he cannot be a “State authority”. I am satisfied that the defendant’s argument on this point is the correct one, and that the plaintiff is not, himself, a “State authority” within the section. Other parties listed, including the Attorney General, may also hold State assets, including lands, or represent the State in relation to them, and the State will protect such property, inter alia, from being adversely acquired. In the case of s.2(1), several of the Ministers included in the first group there cited, may, or do, have land vested in them, as opposed to it being vested in the State, simpliciter. Simple examples include military barracks, airports and the foreshore which may be vested in the Minister for Defence: roadways in the Minister for Local Government: harbours and ancient monuments in the Commissioners for Public Works. Lands were, and may still have been until recently, vested in the Land Commission, and as concerns the Revenue Commissioners, real property may also vest in them, for example, on the recovery of assets procured through the proceeds of crime or on execution of revenue debts. It is readily understandable why all of the parties listed in s.2( 1) fall within the category of “State authority” for the purposes of real property, of whatsoever kind or type.
I also accept the defendant’s argument that, even if the plaintiff, or any predecessor to him, is – pursuant to the provisions of the Act of 1924 – under the control of the Attorney General, he is not himself, a “State authority” within s.2(1). I am satisfied that, notwithstanding the close relationship between the Attorney General, as a State authority, and the Chief State Solicitor, there is no basis for concluding that the latter is a “State authority” for the purposes of s.2(1) of the Statute of Limitations. The terms of s.6(1) of the Ministers and Secretaries Act 1924 are not sufficiently broad or inclusive to support the plaintiff’s claim in that regard. That subsection deals with two situations: (a) the “vesting in” the Attorney General of, inter alia, the “powers … duties … and functions…” formerly vested in the Attorney General for Ireland, and (b) the “administration and control” of the “powers, duties and functions …” of the branches and officers of the public service (including the Chief State Solicitor as per the Ninth Schedule). But the powers, duties and functions remain those of the Chief State Solicitor. That phraseology does not support the plaintiff’s contention that a Chief State Solicitor is a “State authority” for the purposes of s.2(1) of the Statute of Limitations, or as “being” the Attorney General for the purposes of s.2(1). This is clear from the wording of the section itself which is expressly limited to those parties who fall within it. Moreover, since the list of parties in that subsection very clearly represents parties likely to hold property, and include the legal representative of the State in the persona of the Attorney General, there seems no need to have any other party included in the category, since this would simply add a layer of legal persons acting in the same cause and for the same end, and in respect of the same beneficiary. I am satisfied, therefore, that the plaintiff is incorrect in his assertion that he is a “State authority”, such as to enable him, in that capacity, to claim a 30-year limitation period in respect of the premises.
The purpose of the argument as to whether of not the plaintiff is a “State authority” is in order to apply the appropriate limitation period. I am not satisfied that merely because he is not a State authority, within s.2(1) of the Statute of Limitations that, nevertheless, determines the limitation period. The answer to question one, therefore, is that the plaintiff is not a “State authority” within s.2(1) of the State of Limitations. However, that response does not determine whether, in the circumstances of this case, a 30 year limitation period applies. It is therefore necessary to examine that issue in greater detail.
I deal first with the question of the defendant’s claim to be a person in “adverse possession” of the premises since 1982, as against the President of the High Court, and his contention that title to the estate was extinguished, pursuant to s.24 of the Statute, at the very least well prior to the date of the grant of Letters of Administration in July, 2000. He argues that such a result is clear from the judgment of this Court in Gleeson v. Feehan (No. 2), supra. This argument, however, does not seem to me to flow logically from the facts leading to the decision in that judgment, notwithstanding the language used. All the parties in that case were individuals and therefore the limitation period in issue was 12 years. Indeed, there had been an earlier decision on the same estate, Gleeson v. Feehan (No. 1) [1993] 2 I.R. 113, in which a dispute arose as to whether a limitation period of 6 years as opposed to 12 years applied. It is clear, therefore, that many different limitation periods exist. The primary issue in the second case, concerned, first, whether or not, as against other family members (otherwise next of kin) not in possession of the land, but claiming to be entitled to a share in it, a next of kin in possession was entitled to succeed against them. A second important issue concerned possession by a next of kin together with a stranger in possession, and their rights as against other next of kin. These issues are clear from the questions posed in the Case Stated itself, which were in the following terms:
2 “1(a) Where, prior to the Succession Act, 1965, several next-of-kin in actual occupation of lands of a deceased person acquired title to those lands by adverse possession against the personal representative, was the title so acquired the title to which they would have been beneficially entitled on due administration”
(b) Where such next-of-kin acquired title by adverse possession against other next-of-kin not in occupation, was such title acquired as joint tenants”
2. Where such next-of-kin in actual occupation shared such occupation with persons other than next-of-kin, was the possession of such other persons adverse possession against (a) the personal representative or (b) next-of-kin not in occupation”
3. If the answer to 1 (a) or 1 (b) is yes, was such title acquired jointly with the next-of-kin in occupation as (a) joint tenants or (b) tenants in common””
(emphasis added)
It is true, as counsel for the defendant notes, that Keane, J. (as he then was) in a unanimous decision of this Court, and in the course of a lengthy judgment, mentioned the President of the High Court. What he actually stated was as follows:
“As s.24 of the Statute of Limitations 1957 extinguished the title of the President of the High Court to the lands and his right to bring an action to recover the land…”
(emphasis added)
However, although that statement was made, it was not, it seems to me, the ratio of the decision, and nor was it, strictly speaking, necessary for the determination of the questions raised. The questions did not even mention the President of the High Court. Nor, according to the judgment, was any issue argued as to the status or role of the President of the High Court under the Succession Act, 1965, or under earlier legislation. No order was sought against the President of the High Court. Nor was any issue raised as to whether, as against the President of the High Court – in a claim based on the State’s ultimate entitlement to an estate – as here – a different period of limitation might apply. The judgment gives no reasons for the implicit assumption that a 12 year limitation period applies to property vesting in the President of the High Court under s.13(1) of the Act of 1965. Moreover, the plaintiff in Gleeson, supra., was the personal representative of the next of kin, and, as such, argued, not on his own behalf, but as representing the interests of those next of kin who would otherwise have been entitled to the estate on intestacy (analogous to the position of the State in this Case Stated), and against whom adverse possession was claimed. It seems clear reading the judgment that there was no argument at all leading to the statement made, and now relied on in this Case Stated, and the very detailed arguments made in the case on the actual issues arising from the questions, take up almost the entire of the judgment. If it was intended to determine that adverse possession was procured as against the President of the High Court, then, with respect. I consider this not to be a correct statement of the law, as contended for by the defendant. For the reasons explained above, as to his status, and having regard to the case next mentioned, I consider that the mention of adverse possession as against the President of the High Court in Gleeson v. Feehan (No. 2), supra, can only properly be understood in the shorthand sense that, once title adverse to the interest of the relevant next of kin who would have been entitled to the property upon administration, absent rights acquired by the non next of kin stranger, in that case, the role of the President of the High Court, and his interest in the property, ended at that date.
The role of the President of the High Court under s. 13(1) of the Act of 1965 was, however, directly in issue in the decision of the High Court in Gladys Flack and another v The President of the High Court (Unreported, The High Court, 29 th November 1983) in which Costello, J (as he then was), dealt with an application to strike him out of proceedings commenced by the plaintiffs, on the basis that he had been wrongly joined. The circumstances were as follows. There had been in existence a partnership, never formalised, created by five brothers, and all of whom had died, some testate and others intestate. The last of the two brothers died intestate in 1982, and a row broke out between the members of the several families of the deceased brother partners, in respect of which two sets of High Court proceedings had been commenced. These were commenced by the executors of one of the 1982 deceased for the taking of an account and for an order for sale of the partnership assets. No representation had, however, been raised to the estate of the other brother to die (intestate) and the executors joined the President of the High Court as a party on the basis of s.13(1) of the Succession Act, 1965, on the basis that the property vested in him, in the absence of an administrator. As was pointed out in that case, the plaintiff, as in the case of the defendant in this Case Stated, had sought no order against the President.
The learned High Court judge granted the order striking out the proceedings as against the President of the High Court. Before doing so, however, he analysed the legal position of such an administration pre-1965, and of the status of the President, tracing the matter back to the Probate Act (Ireland) 1857 which abolished the jurisdiction of the then diocesan courts in Ireland in testamentary and intestate business and established a new court “the Court of Probate”. He explained the rationale of his judgment as follows:
“I do not think that it was proper so to join the President. To explain this conclusion I think I can best begin by referring to the pre-1965 position. The Probate Act (Ireland) 1857 abolished the jurisdiction in testamentary and intestate business of the diocesan courts in Ireland and established a new court, ‘the Court of Probate’. By section 15 of the Court of Probate (Ireland) Act 1859 it was provided that:-“
‘From and after the decease of any person dying intestate, and until letters of administration shall be granted in respect of his estate and effects, the personal estate and effects of such deceased person shall vest in the judge of the Court of Probate for the time being, in the same manner and to the same extent as heretofore they vested in the Ordinary.’
By virtue of the provisions of the Judicature Acts and later the Courts of Justice Acts, the personal estate of persons dying intestate until letters of administration were granted vested firstly in the Judge of the Probate and Matrimonial Division, and later in the President of the High Court.
Section 15 of the 1859 Act was repeated by the Administration of Estates Act 1959 but the vesting of the personal estates of persons dying intestate in the President remained the same for section 13 of that Act provided:
‘Where a person dies intestate, his real and personal estate, until administration is granted in respect thereof shall vest in the President of the High Court in the same manner and to the same extent as formerly in the case of personal estate it vested in the Ordinary.’
Section 13 of the 1959 Act was repealed by the Succession Act 1965 but was re-enacted with only slight modification by section 13 to which I have already referred.
I think it is worthy of note that neither under the 1859 Act nor under the 1959 Act was the President of the High Court ever joined as a defendant in proceedings arising from the vesting provision to which I have referred. The reason was perfectly clear. In vesting personalty and later both realty and personalty in the President, the legislature did not make him a trustee of the estate which vested in him and he had no duty to perform and no obligation inrespect of the estate. As was pointed out in relation to the vesting provisions of section 9 of the Administration of Estates Act 1925 in England (which are similar to those I am considering) these vesting provisions are ‘a mere matter of necessary convenience and protection’ (see re Deans 1954 1 A.E.R. 496 at 498). The President’s position under the 1965 Act is exactly the same.”
(emphasis added)
This judgment, although unreported, has been cited in two other decisions of the High Court, although in related contexts. Moreover, the decision in re: Deans, supra. has been adopted as correct in recent decisions of the English Court of Appeal, seee Earnshaw v Hartley [1999] EWCA Civ 1141.
I consider that had the above case law been brought to the attention of and considered by the Supreme Court in Gleeson v. Feehan (No. 2), supra., it is unlikely the learned Supreme Court judge would have made the statement found in the judgment as to the role of the President. The defendant’s defence, and the limitation period applicable to his claim to adverse possession as against the President of the High Court must be considered in light of the above case law, and of the true legal position arising in an administration of the type at issue here, which gave rise to the questions posed in the present Case Stated.
In the present case, the only parties whose interest are in issue are the defendant, who claims squatters’ rights, and the State, represented by the plaintiff. This is clear from the grant. Looking at the Grant of Letters of Administration, it provides as follows:
“Be it known, that on the 21 st day of July 2000 Letters of Administration of all the estate which devolves to and vests in the personal representative of Alice Dolan late of 6 Enniskerry Road Phibsboro Dublin deceased… were granted by the Court to Laurence A. Farrell of Osmond House Little Ship Street Dublin Chief State Solicitor for and on behalf of the State the Attorney General of Ireland Michael McDowell having duly renounced his right and consented hereto the said Laurence A. Farrell.” (emphasis added)
From the language of this document it is clear that the Attorney General was the person entitled, on behalf of the State, to raise representation to the estate. He in turn delegated a task assigned to him to another person who acts on behalf of the State. From the numerous tasks assigned to the Attorney General in the Ministers’ and Secretaries’ Act 1924, such as the right to raise representation, delegation would appear necessary and unexceptional for such duties to be executed effectively and efficiently. Secondly, and perhaps of more importance, it seems to me that the Attorney General’s role, in so far as the Letters of Administration are concerned, is an administrative one, although one having legal consequences. He is the legal officer who acts for and on behalf of the State in a myriad of events and circumstances. He is therefore the person entitled to make application for letters of administration for and on behalf of the State. As such, he may delegate that role to any other authorised person. In Gleeson v. Feehan (No. 2), supra., the personal representative had been granted Letters of Administration pursuant to a power of attorney. In this case, the Attorney General consented in writing to Lawrence A. Farrell being appointed, as nominee of the State. The Chief State Solicitor, pro tem, appears clearly to be a person who may act for and on behalf of the State, on the instructions of the Attorney General, in applying for Letters of Administration, and has done so in the present case. The Act of 1965 recognises this possibility in s.65(1) and s.65(3). The application for the grant of Letters of Administration to the Chief State Solicitor, pro tem, thereafter, and devolving to his successor, the plaintiff, is also in accordance with the Act of 1965, is perfectly proper.
It would, in my view, be wholly inconsistent to have a procedure whereby the Attorney General renounces his right to raise representation on behalf of the State, and appoints another individual under his control to act on behalf of the State, as administrator, if by doing so the State’s rights under s.2(1) were eliminated. I can find nothing in the legislation, or in any case law, that suggests this as a result only of such a renunciation and appointment of the Chief State Solicitor, as administrator. That does not alter my earlier view that the Chief State Solicitor is not a “State authority”. The Attorney General’s “renouncement” in the grant is not a renouncement by him of the State’s entitlement in the estate under s.73 of the Act of 1995, or of any rights under s.2(1) of the Statute, but merely of the right to extract Letters of Administration.
The Second Question
Having regard to sections 23 and 24 of the Statute of Limitations, 1957, is the relevant limitation period in this case prescribed by s.13(1) of the Statute of Limitations, 1957 or by section 13(2) thereof”
An issue also arose under what is known in some jurisdictions, and in some authorities, as the doctrine of “relation back”. By this is meant that once letters of administration issue, the right of the administrator to protect the interests of the estate, relates back to the date of death of the deceased owner, as if no time had elapsed in the period between death and administration. Section 23 of the Statute, which provides for this, is set out earlier in the judgment. The doctrine was available at common law, but has now been incorporated into s.23.
The plaintiff’s interpretation of s.23 appears to me to be extremely and unjustifiably extensive, and is so broad as to render the limitations period moot. If s.23 was read so as to be applicable in the manner contended for by the plaintiff, then any period of time, be it eighteen years (at issue in this case) or one hundred years (which could be at issue in the future), could pass, without this intervening period affecting the administrator’s claim to land, once Letters of Administration eventually issue.
The defendant, on the other hand, relies on an extract from Spierin, referred to earlier in the exposé of his argument earlier in this judgment. On that basis, it is contended that the doctrine is only to be invoked in respect of claims of a tortuous nature for damage to the estate. I do not agree that this is so. The extract relied on in the written submissions is not quite complete, and the full extract is in the following terms:
“To overcome the inconvenience of the postponement of vesting in an administrator, the doctrine became established that the grant of administration when made would, for certain purposes, relate back to the time of the death of the deceased. The reason for this was to provide a remedy for wrongs done against the estate. Thus an administrator may, after the grant of administration, bring an action in respect of tortious injuries to the estate in the interval between death and grant, or bring an action for breaches of covenant during the interval by a lessee of the deceased’s land. See also the Statute of Limitations 1957, s.23, in relation to actions by an administrator to recover the land.” (emphasis added)
While the defendant’s argument as to the limitation on the meaning of s.23 is based on the above extract, I am not satisfied that this proposition can be correct. There is no limiting language within the provision which supports the defendant’s contention that the author suggests, in turn, that s.23 applies only to tortious claims arising in the intervening period. On a reading of the extract, it is not what the author suggests is the scope of the section.
From the above exchanges, two things emerge. First there is no suggestion in the text relied upon that the relation back can only occur in the limited manner which the defendant contends for. Use of the phrase “wrongs done against the estate” cannot, in law, mean only claims of a tortious nature. I can see no basis for suggesting that a claim of adverse possession is not a wrong done against the estate. The use of the doctrine of relation back in the case of tortious claims is but an example of the circumstances in which it may apply. Secondly, it is of note that the author, while making specific reference to s.23 of the Statute does not suggest that it provides any limitation of the type the defendant invokes, on the application of the rule. The text of the section itself permits, on the application of the rule in actions for the recovery of land, itself broader than the defendant’s contention., when the relation back may apply to such “a claim”, and is no narrower.
The question arises therefore, as to the scope of the section, and if any limits are imposed on the relation back. No express limitation is found in Spierin, and indeed no limit is suggested either in Halsbury, where, dealing with the equivalent section (s.26 Limitation Act 1980), the doctrine is explained in the following terms:
“In order to prevent injury being done to a deceased person’s estate without remedy, the courts have adopted the doctrine that on the grant being made the administrator’s title relates back to the time of death. This doctrine has been consistently applied in aid of the administrator seeking to recover against a person who has dealt wrongfully with the deceased’s … real estate. It cannot be applied however to disturb the interests of the other persons validly acquired in the interval, or to give the administrator title to something which has ceased to exist in the interval, or to bind the administrator to an agreement made before the grant irrespective of its benefit to the estate.”
Halsbury also clarifies that the doctrine of relation back applies for the purposes of the statutory provisions limiting the time for bringing proceedings to recover land since the administrator is “deemed to claim” as if there had been no interval of time between the death and the grant of administration. This is in the same terms as s.23 of the Statute of Limitations, and equally applies only to the recovery of land. A similar approach is taken in the Australian writings, where somewhat similar, but not identical legislation in all States, is found.
It is clear from the above statement that if an interest has been validly acquired in the interval, or title has ceased to exist in the meantime, the doctrine cannot assist the administrator. When an administrator has been appointed, his title to the real estate relates back to the intestate’s death; see Re Pryse, 1904, P. 301, 306. All this concerns the application of the doctrine in the case law. S.23 of the Statute provides a statutory basis for the application of the doctrine of relation back, and is on its face, in broad and clear terms.
I am satisfied, however, that the section must be read so as to avoid the consequences of the approach contended for by the plaintiff. The best expression of the true meaning of the section is found in Jourdan on Adverse Possession 2002 [London], in which, in dealing with the English equivalent, he states:
“Under the general law, the estate of a deceased person vests in an executor at the moment of death. But an administrator’s title only vests on the grant of letters of administration, although for certain purposes it is treated as relating back to the death. Apart from the Limitation Act, 1980, s.26, time for bringing an action does not begin to run against the administrator until letters of administration are granted. The effect of s.26 is that time for recovering land runs against a deceased person’s estate, regardless of whether an executor or an administrator is appointed.” (emphasis added)
I am satisfied that this is a correct statement of the effect of the section. It means that, if in the interval between the death of an intestate and the appointment of an administrator, a party has procured a lawful interest in lands the subject of the administration, that interest may be sufficient to bar its recovery by the administrator, when appointed, acting in the interests of those who, but for such event, would have been entitled to the lands. In the result, time commenced to run against the estate for the purposes of adverse possession from either the date of death of Mrs. Dolan, or the date of possession by the defendant. In either event, in this case, well more than 12 years passed before July, 2000. It does not follow, however, in the present case, that by reason of this interpretation of s.23 of the Statute of Limitations, the claim of the defendant to adverse possession is thereby determined. That issue at all times depends on the appropriate limitation period.
Before dealing with the effect of s. 13 of the Act on the issues arising, however, I should also dispose of the arguments under s. 24. That section appears to me, however, to be little more than a passage that spells out the consequences flowing from the expiry of the applicable limitation period – whatever that period may be. The estate itself in the land is not extinguished, but title to that estate may well be, if a party has successfully established that he has adversely possessed the property for the relevant period. I am not persuaded that s.24 has any substantive impact on, or is at all determinative of, which limitation period applies in the present case.
I now return to the real issue in this case, that arising under s.13 of the Statute of Limitations, which I find is not limited by the possible application of s.23. The role of the Chief State Solicitor’s is very material to the right in State authorities having the benefit of a 30 year limitation period under the provisions of s.2(1) of the Statute of Limitations. When the Attorney General renounces the right to seek Letters of Administration on behalf of the State (in whom the longer limitation period vests), and instead transfers that right to the Chief Solicitor, as already mentioned, I am satisfied he is entitled so to do, having regard both to the provisions of s.6 of the Act of 1924 and also to the provisions of s.65 of the Succession Act 1965. The consequence is that the relevant limitation period is not disturbed at all, and the Chief State Solicitor, as personal representative, cannot, by so acting, affect a limitation period which is determined by reference to the interests of persons otherwise entitled to the estate, in this case, the State, as intestate successor. As in the case of any other administrator, when the Chief State Solicitor is granted Letters of Administration on behalf of the State, he takes no beneficial interest in the estate in his own right, but can only act as and how required by law, as a trustee for the benefit of the ultimate beneficiaries. That position is no different to the position of an administrator who acts for personal beneficiaries.
Although in the Case State, and in argument, much emphasis was laid on the claim by the plaintiff to be a “State authority” within s.2(1) of the Statute of Limitations, and I have rejected that plea, I have also found that Letters of Administration were correctly granted to the former Chief State Solicitor, and the plaintiff as his lawful successor, has, as personal representative both the right and indeed the obligation in law, both to bring proceedings in respect of the recovery of the premises, and to defend the claim to adverse possession, representing the beneficiary, that is, the State, and including claiming the appropriate limitation period on its behalf. If on the other hand, he were an administrator acting for an on behalf of an individual, the period would be the shorter period of 12 years applicable to the beneficiary, namely, a person with s.13(2) and the period would be 12 years. This approach is unexceptional. I know of no case in which an administrator is entitled to alter or reduce the statutory period of limitation applicable to the beneficiary otherwise entitled, or is subject to a lesser period than that to which a beneficiary is entitled.
There is another reason why I do not think the position is determined by his presence or absence as a named State authority in s.2(1) is because, if for any reason, he was not entitled to raise representation to the estate of Mrs. Dolan, because he is not a State authority, then it would be perfectly possible for the grant to be set aside on consent. If that occurred, it would be a simple matter for the Attorney General to reapply for Letters of Administration to be granted to him again on behalf of the State, and commence fresh proceedings before the expiry of the 30 year limitation period. There might be costs implications in such an approach of course, but as to the substantive position, the consequences of the plaintiff not being expressly mentioned in s.2(1) as a State authority is immaterial to the applicable limitation period. Moreover, as mentioned earlier in this judgment, if a defendant pleads he has acquired adverse possession as against a person not already a party to the proceedings, such as in the present case against the President of the High Court, he cannot do so, as against that third party, by mere defence. He must instead counterclaim, naming the third party as the person against whom he sets up his claim, so that such third party has an opportunity to be heard. The third party against whom he has asserted adverse possession is the President of the High Court, against whom however no relief has been sought, and against whom no counterclaim was lodged. It seems to me unsatisfactory that the appropriate party(ies) have not been joined, while at the same time the defendant seeks to suggest that the ultimate beneficiary, the State, is a person on whose behalf the administrator is not entitled to invoke the State’s a 30 year limitation period. Had the appropriate parties been joined against whom the adverse possession assertion is made, then the position would have been quite different, and the President would have been removed from the proceedings, on the above case law, with the administration continuing on behalf of the State, with the State’s limitation period being applied.
In this Case Stated, the nub of the defence is, in reality, confined to whether or not the defendant had already acquired adverse possession of the property in July, 2000, as against the President of the High Court, long before Letters of Administration were granted. I now propose to treat that issue. I have already held that the vesting of the estate, pro tem, in the President of the High Court does not, and could not deprive the administrator of the limitation period vesting in the State. For the reasons I have already mentioned, the President only holds, pro tem, a bare estate in the property, but no sufficient interest against which adverse possession could be claimed, and the President has neither powers nor obligations in that regard, as is clear from the case law. The defendant has of course been clever in not joining the State or even the President of the High Court in the proceedings, as to do so would have entitled those parties to be heard, and to raise their interests and limitation period. He has relied instead on the statement in Gleeson v. Feehan (No. 2), supra. As to the State’s interest, it does not have to be joined in order for the personal representative to resist the adverse possession claim on the basis of the limitation period found in s. 13(1), for the reasons given.
I am satisfied that the correct period of limitation applicable in the present case is that provided for in s.13(1) of the Statute of Limitations.
The Third Question
I mentioned in the preliminary part of my conclusions, before dealing with the three particular questions, that much emphasis was placed on the meaning to be attached to the provisions of s.65, the Succession Act of 1965 and on its predecessors, both Irish and English in support of the respective contentions of the parties.
I find it is possible to rule on the third question without difficulty. As to the s.65 of the Act, having regard to the provisions of the section itself, and to the legislative history of its predecessors, as set out above, I am satisfied that the plaintiff’s argument is the correct one in law. The earlier legislation in the United Kingdom, even though it refers, at least prior to 1921, only to the personal estate (limitation periods in respect of Crown land were always different), together with later amendments were clearly before the Irish legislature when adopting the provisions of the Act of 1965, which dealt with both realty and personalty, and the deliberate omission of any reference to enactments as opposed to rule of law it would have said so. The Administration of Estates Act, 1925 s.30(1), cited above, specifically includes, as concerns personal estate, the following:
“… except as otherwise provided by this Act, the rules of law and equity, (including the rules of limitation under the Statutes of Limitation or otherwise) …”
In passing, although not specifically mentioned in the course of the appeal to this Court, I should mention that S.30(2) which applied in like or similar manner to proceedings commenced by the Crown, was itself, as is clear from the above extracts, also amended by a later Act. For the reaons set out in my later conclusions, these provisions of English legislation must also be seen in light of their history.
On this issue, I am persuaded by the argument of the plaintiff. Contrary to the defendant’s contention in relying on English legislation, the language referring to “time limits” or similar limitation rules, that exists within legislation that preceded the Act of 1965 demonstrates that, when adopting s.65 of the Act of 1965, the Oireachtas made a decision not to have the provisions of s.2(1) of the Statute of Limitations pre- empted by the adopting language in s.65 so as to have that effect, buy amendment or otherwise. Further, there is a plethora of case law supporting the plaintiffs argument that the term “rules of law” is limited to judge-made rules. Since the Statute of Limitations is a legislative enactment, this further solidifies the argument that s.65 provision should have no bearing on the correct limitation period applicable. Finally, section s.3(1) of the Statute of Limitations should similarly have no effect. This is because, as the plaintiff argues, there is an express provision (13(1)) which directly applies to the facts of this case: therefore, on its own language s.3(1) cannot be relied upon.
The provisions of s.65 do not affect the position.
I mention in passing that no question has been posed in the Case Stated on the issue of estoppel, although it was addressed by the parties in some detail. I make no comment on this aspect of the submissions of either party.
I would answer the questions posed as follows:
(1) The plaintiff not a State authority within s.2(1) of the Statute of Limitations.
(2) The relevant limitation period on the facts established in this case, is that provided for in s.13(1) of the Statute of Limitations.
(3) No.
Judgment of Mr Justice Finnegan delivered on the 16th day of February 2012
This matter comes before the court by way of a Case Stated from the Circuit Court pursuant to the Courts of Justice Act 1947 section 16. The questions raised on the Case Stated concern the appropriate limitation period within which, in the facts and circumstances hereinafter detailed, an action must be brought by a personal representative to recover lands forming part of the estate of a deceased in respect of whom the State is the ultimate intestate successor.
Facts agreed or found
The facts agreed or found by the learned trial judge are set out in the Case Stated as follows.
2 “1. The late Alice Dolan was the owner of a house at 36 Botanic Road, Dublin, which Dublin Corporation wished to acquire for the purposes of road widening. The Corporation made a deal with Mrs Dolan to acquire this property in exchange for a house at No. 6 Enniskerry Road, which the Corporation purchased with the intent that it would be conveyed directly to Mrs Dolan. An assignment dated 15 th December 1978 between the vendors of No. 6 Enniskerry Road, the Corporation of the second part and the purchaser Alice Dolan of the third part was prepared. The assignment was executed by the vendors and by the Corporation but not by Mrs Dolan. The document has been stamped.
2. Mrs Dolan was allowed into occupation of No. 6 Enniskerry Road. The Corporation carried out the road works involving 36 Botanic Road which are long since complete.
3. Mrs Dolan died intestate on the 22 nd October 1981. The defendant learned of Mrs Dolan’s death, and the apparent absence of next-of-kin, in the course of his auctioneering business, and broke into the premises through the back door in February 1982. The late Alice Dolan, nee Alice Williams, had shared the house at 36 Botanic Road with her sister Mary Williams who predeceased her. Her husband had died in 1969.
4. A citation was issued on the 21 st January 1998 and letters of administration were extracted on the 21 st July 2000 by the plaintiff’s predecessor as Chief State Solicitor, Laurence A. Farrell, for and on behalf of the State, the Attorney General, Michael McDowell, (note: in fact David M. Byrne) having duly renounced his right and consented thereto.
5. These proceedings were issued on the 14 th May 2002 and served on the 24 th May 2002. The plaintiff brings the proceedings in his capacity as Chief State Solicitor and as successor to Laurence A. Farrell, who was appointed as personal representative of the estate of Alice Dolan, for inter alia an injunction directing the defendant to vacate the dwelling house and lands and to forthwith deliver up possession of the same to the plaintiff.”
Documents
From the documents annexed to the Case Stated it appears that Alice Dolan (hereinafter “the deceased”) by virtue of an assignment dated the 15 th December 1978 became entitled to the leasehold interest under an indenture of lease dated 18 th March 1902 in the premises 6 Enniskerry Road in the City of Dublin for a term of two hundred and forty five years from the 25 th March 2002. The deceased died on the 22 nd October 1981 intestate leaving no known next-of-kin her surviving. On the 26 th September 1997 David M. Byrne the Attorney General executed a consent in the following terms:-
“And I hereby consent that Letters of Administration in the estate of the said deceased be granted to Michael A. Buckley, Dublin Castle, in the City of Dublin, Chief State Solicitor, as nominee and on behalf of the State. And I hereby appoint the said Chief State Solicitor to file or cause this consent to be filed for me in the Principal Registry of the said Court.”
Michael A. Buckley duly set about obtaining a Grant of Letters of Administration Intestate. For that purpose he completed the Oath for Administration which contained the following averment:-
“That by an instrument in writing dated the 26 th day of September 1997 on which marked ‘A’ I have signed my name, Mr David Byrne, Attorney General of Ireland, duly renounced on behalf of the State all rights to Letters of Administration of the estate and effects of the said deceased and consented that same should be granted to me.”
It is to be noted that this not an accurate recital of the terms of the consent of 26th September 1997 which merely consented to the application for Letters of Administration “as nominee and on behalf of the State”.
On the 21 st July 2000 Letters of Administration Intestate were granted to Laurence A. Farrell in the following terms:
“Be it known, that on the 21 st day of July 2000 Letters of Administration of all the estate which devolves to and vests in the personal representative of Alice Dolan late of 6 Enniskerry Road, Phibsboro, Dublin, barrister deceased who died on or about the 22 nd day of October 1981 at James Connolly Memorial Hospital, Blanchardstown, Dublin, intestate, a widow and a citation to the next-of-kin (if any) and all persons interested and their non-appearance thereto having been deemed and taken as and for a renunciation of their rights were granted by the court to Laurence A. Farrell of Osmond House, Little Ship Street, Dublin, Chief State Solicitor, for and on behalf of the State the Attorney General of Ireland Michael McDowell having duly renounced his right and consented hereto the said Laurence A. Farrell having been first sworn faithfully to administer the same.”
No issue arises by reason of the succession from Laurence A. Farrell to Michael A. Buckley and to Desmond Grogan as Chief State Solicitor (see Succession Act 1965 section 65(3) post). Again no issue arises in relation to the succession of Michael McDowell to David M. Byrne as Attorney General.
Questions of law for determination by the Supreme Court
The questions of law for determination raised by the Case Stated are as follows:-
(a) Is the plaintiff a State authority for the purposes of the Statute of Limitations 1957″
(b) Having regard to sections 23 and 24 of the Statute of Limitations 1957 is the relevant limitation period in this case prescribed by section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof.
(c) Is the answer (b) affected by section 65 of the Succession Act 1965″
The statutory provisions
The relevant statutory provisions are as follows.
Statute of Limitations 1957
Section 2. “State authority” means any authority being:
(a) a Minister of State, or
(b) the Commissioners of Public Works in Ireland, or
(c) the Irish Land Commission, or
(d) the Revenue Commissioners, or
(e) the Attorney General.
Section 3.(1). Save as in this Act otherwise expressly provided and without prejudice to section 7 of this Act, this Act shall apply to proceedings by or against a State authority in like manner as if that State authority were a private individual.
Section 13. (1)(a). Subject to paragraphs (b) and (c) of this subsection no action shall be brought by a State authority to recover any land after the expiration of thirty years from the date on which the right of action accrued to a State authority or, if it first accrued to some person through whom a State authority claims, to that person.
(2) The following provision shall apply to an action by a person (other than a State authority) to recover land –
2 (a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;
3 (b) if the right of action first accrued to a State authority the action may be brought at any time before the expiration of the period during which the action could have been brought by a State authority, or of twelve years from the date on which the right of action accrued to some person other than a State authority whichever period first expires.
Section 14. (2) Where –
(a) any person brings an action to recover any land of a deceased person, whether under a will or on intestacy, and
(b) the deceased person –
(i) was on the date of his death in possession of the land or, in the case of a rentcharge created by will or taking effect upon his death, in possession of the land charged, and,
(ii) was the last person entitled to the land to be in possession thereof
the right of action shall be deemed to have accrued on the date of his death.
Section 18. (1) No right of action to recover land shall be deemed to accrue unless the land is in possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.
Section 23. For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person shall be deemed to claim as if there had been no interval of time between the date of the death of the deceased and the grant of letters of administration.
Section 24. Subject to subsection 25 of this Act and to section 52 of the Act of 1891 at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the lands shall be extinguished.
The Succession Act 1965.
Section 73. (1) In default of any person taking the estate of an intestate, whether under this Part or otherwise, the State shall take the estate as ultimate intestate successor.
Succession Act 1965
Section 65. (1) Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the Solicitor for the Attorney General or any other person), any legal proceedings by or against the administrator for the recovery of the estate or any share thereof shall be of the same character and be instituted and carried on in the same manner, and be subject to the same rules of law and equity in all respects, as if the grant had been made to the administrator as a person beneficially entitled to a share of the estate, (underlining added)
(2) Proceedings on behalf of or against the State in respect of the estate of a deceased person or any share thereof or any claim thereon shall not be instituted except subject to the same rules of law and equity in and subject to which proceedings for the like purposes might be instituted by or against a private individual.
(3) Where the Chief State Solicitor for the time being is administrator of an estate for the use or benefit of the State, he shall cease to be administrator on ceasing to hold office and his successor in office shall become administrator in his place without further grant.
Intestates Estates Act 1884
Section 2.
Where the administration of the personal estate of any deceased person is granted to a nominee of Her Majesty (whether the Treasury Solicitor, or a person nominated by the Treasury Solicitor, or any other person), any action or other proceeding by or against such nominee for the recovery of the personal estate of such deceased person, or any share thereof, shall be of the same character, and be brought, instituted and carried on in the same manner, and be subject to the same rules of law and equity ( including the rules of limitation under the Statutes of Limitation or otherwise), in all respects as if the administration had been granted to such nominee as one of the next-of-kin of such deceased person, (underlining added)
Section 3.
After the passing of this Act an information or other proceeding on the part of Her Majesty shall not be filed or instituted, and a petition of right shall not be presented, in respect of the personal estate of any deceased person or any part or share thereof, or any claim thereon, except within the same time and subject to the same rules of law and equity in and subject to which an action for the like purpose might be brought by or against a subject, (underlining added)
Administration of Estates Act 1925 (U.K.)
This Act in section 30 repealed and restated sections 2 and 3 of the Intestates Estates Act 1884 and extended the provisions to real property. Subsection (1) restated section 2 and subsection (2) restated section 3 of the 1884 Act.
Limitation Act 1939 (UK)
Section 34 of the Act amended subsection (2) of the Administration of Estates Act 1925 by deleting the words “within the same time and”. However subsection (1) still provided for actions by and against an administrator who is a nominee of the Crown that the ordinary limitation should apply.
Submissions of the Plaintiff
The plaintiff submits that the relevant limitation period is that prescribed by section 13(1) of the 1957 Act the Chief State Solicitor being a State authority within the definition in section 2(1) of the Act. The definition does not simply define State authority as those set out at paragraphs (a) to (e) but extends to “any authority being” one of those Authorities. The Ministers and Secretaries Act 1924 section 6(1) and the ninth part of the schedule to that Act provide for the vesting in the Attorney General of the administration and control of the business, powers, authorities, duties and functions of the branches and officers of the Public Services specified in the section and in the ninth part of the schedule: included in the ninth part of the schedule is the Chief State Solicitor’s Department. It is submitted that the Chief State Solicitor’s office, being under the administration and control of the Attorney General, it is for the purpose of the Statute of Limitations an authority “being” the Attorney General and so a State authority. Section 3(1) of the Act provides that the provisions of the Act shall apply to proceedings by or against a State authority in the like manner as if the State authority were a private individual unless it is otherwise expressly provided in the Act. Section 13(1)(a) of the Act expressly provides for a thirty year limitation period in respect of an action brought by a State authority to recover any land.
Insofar as the defendant relies on the Succession Act 1965 there are material differences between section 65 of the Act and the corresponding provisions in the Intestates Estates Act 1884 and the English Administration of Estates Act 1925 section 30 as amended by the Limitation Act 1939. The 1884 Act expressly refers to limitation periods in sections 2 and 3. The restated section 3 contained in section 30(2) of the Administration of Estates Act 1925 had the words “within the same time and” deleted by the Limitation Act 1939 section 34. The Succession Act 1965 section 65 subsection (1), corresponding to section 2 of the 1884 Act and subsection (2) corresponding to section 3 of the 1884 Act make no mention of Statutes of Limitation or time limits.
In referring to “rules of law and equity” in section 65(1) the reference includes statutory enactments and so includes the Statute of Limitations 1957.
Submissions of the Defendant
The definition of “State authority” is clear and there is no basis upon which the court should extend the same and in particular to interpret the phrase “the Attorney General” as including the Chief State Solicitor. As the plaintiff is not a State authority section 3(1) of the 1957 Act applies. The Statute of Limitations applies to proceedings by or against a State authority in like manner as if the State authority were a private individual unless it is otherwise expressly provided. As the Chief State solicitor is not a State authority section 13(1)(a) of the Statute of Limitations has no application. The relevant limitation period is that in section 13(2)(a), twelve years.
The effect of the Succession Act 1965 section 65(1) and (2) is to place a State nominee in the same position in relation to limitation periods as a private individual: accordingly the relevant limitation period is twelve years. Reliance is placed on the United Kingdom Administration of Estates Act 1925 section 30 and the Limitation Act 1939 section 34 and on the passage in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate at paragraph 64.06 which states as follows:-
“If the Crown or its nominee claims land in the course of administration of a deceased person’s estate, the position is governed by section 30 of the Administration of Estates Act 1925. The limitation period applicable to an action by the nominee of the Crown, who has obtained a grant of letters of administration, to recover land forming part of an intestate’s estate is twelve years, for the effect of the Administration of Estates Act 1925 is to put the nominee in the same position as the subject for limitation purposes.”
Section 65(1) of the Succession Act 1965 has the same effect in relation to the State as the United Kingdom legislation. The phrase “same rules of law and equity” in section 65(1) and (2) of the Succession act 1965 should be interpreted as including the statutory provisions as to the limitation of actions and in particular the provisions of the Statute of Limitations section 13(1)(a).
Discussion
(a) Is the Chief State Solicitor a State Authority”
The definition of State authority in section 2 of the Statute of Limitations 1957 is clear. There is within the definition or within the Act as a whole nothing to suggest that the Attorney General for the purposes of the Act includes the Chief State Solicitor. However, the plaintiff calls in aid the Ministers and Secretaries Act 1924 which provides as follows:-
2 “6(1) There shall be vested in the Attorney General of Soarstat Eireann (who shall be styled in Irish Priomh-Aturnae Shaorstait Éireann and shall be appointed by the Governor General on the nomination of the Executive Council) the business, powers, authorities, duties and functions formerly vested in or exercised by the Attorney General for Ireland, the Solicitor General for Ireland, the Attorney General for Southern Ireland, the Solicitor General for Southern Ireland, the Law Adviser to the Lord Lieutenant of Ireland and any or all of them respectively, and the administration and control of the business, powers, authorities, duties and functions of the branches and officers of the public services specified in the Ninth Part of the Schedule to this Act and also the administration and business generally of public services in connection with the representation of the Government of Saorstat Éireann and of the public in all legal proceedings for the enforcement of law, the punishment of offenders and the assertion or protection of public rights and all powers, duties and functions connected with the same respectively together with the duty of advising the executive council and the several ministers in matters of law and of legal opinion.”
The Ninth Part of the Schedule lists the particular services assigned to the Attorney General as follows:-
Chief Crown Solicitor for Ireland
Chief State Solicitor’s Department and all local State solicitors
Treasury Solicitor for Ireland
Parliamentary Draftsman
Charities
Estates of illegitimate deceased persons.
I am not satisfied that the vesting in the Attorney General of the administration and control of the Chief State Solicitor’s Department by section 6(1) of the 1924 Act has the effect of expanding the definition contained in section 2 of the 1957 Act. The definition is clear and concise. The fact that the Attorney General has conferred upon him administrative powers in relation to the offices mentioned in the ninth schedule does not, I am satisfied, justify an extension of the meaning of State authority in the 1957 Act to include the Chief State Solicitor or other officers mentioned in the ninth schedule to the 1924 Act.
A similar drafting approach to that in the 1957 Act was adopted in the State Property Act 1954 where State authority is defined even more narrowly:-
“State authority” means any authority being –
(a) a Minister of State or
(b) the Commissioners (i.e. the Commissioners of Public Works in Ireland).
This contrasts sharply with the approach with the legislature took in the Succession Act 1965 section 65 dealing with actions by or against the State in relation to the Administration of Estates:-
“Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the solicitor for the Attorney General or any other person)…”
In defining State authority in the 1957 Act there are no general words, “such as any other person”. Had it been the legislative intention that Attorney General be broadly interpreted I would expect in the 1957 Act an approach similar to that adopted in the Succession Act 1965.
Historically, where the Crown by reason of the failure of all next-of-kin became entitled to the estate of a deceased, the practice was for representation to be raised by a nominee of the Crown, normally the Treasury Solicitor. To facilitate this practice, by the Treasury Solicitor Act 1876, the Treasury Solicitor was constituted a corporation sole. The Act continues to apply in Ireland. The wording of the consent of the Attorney General and of the Letters of Administration Intestate issued in this case reflect that procedure – the grant is made to the Chief State Solicitor as nominee for and on behalf of the State. It is quite clear that the person entitled to bring or defend proceedings on behalf of the estate is the Chief State Solicitor to whom representation has been granted. This will remain the position until an assent is executed to a Minister of State pursuant to the provisions of the State Property Act 1954. The Minister of State being a State authority could then maintain proceedings. As the Chief State Solicitor can be called upon at any time to execute an assent in favour of a State authority (normally the Minister for Finance) it does not appear to be necessary to construe Attorney General widely to enable the State’s interest to be protected where representation issues on behalf of the State to the Chief State Solicitor. For this reason also I would not extend the definition of State authority.
I am satisfied that the Chief State Solicitor is not a State authority within section 2 of the Statute of Limitations 1957.
(b) Is the relevant limitation period that provided for in section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof”
As the plaintiff is not a State authority within the meaning of the Act of 1957, section 13(1)(a) of the Act does not apply. The relevant limitation period is that in section 13(2)(a).
(c) Is the answer (b) affected by section 65 of the Succession Act 1965″
As section 13(2)(a) is the relevant provision of the Statute of Limitations this question is moot: however, I propose dealing with the same briefly. The defendant’s submission is that, in the event that section 13(1)(a) applies, then the Succession Act 1965 section 65(1) has the effect of applying the ordinary period of limitation which would apply had the administrator been a person beneficially entitled to a share in the estate, that is twelve years. Section 65(1) applies to this action: it provides that such action shall be subject to “the same rules of law and equity in all respects as if the grant had been made to the administrator as a person beneficially entitled to a share in the estate,” Had it been the legislature’s intention in enacting section 65(1) to apply not just rules of law and equity but enactments it would have done so in express terms. Thus the Succession Act 1965 in section 12(1) commences as follows:-
“All enactments (including this Act) and rules of law…”
The Succession Act itself distinguishes between rules of law and enactments. I am satisfied that it is not the effect of section 65(1) to apply statutory limitation periods.
The legislative history of section 65 is relevant. The Intestates Estate Act 1884 section 2 applied where administration was granted to a nominee of the Crown, The effect of the section was to apply the ordinary rules of limitation to any action coming within the section whether by or against the nominee of the Crown. Likewise section 3, in relation to actions by or against the Crown coming within that section, applied the ordinary rules of limitation. Section 3 related to informations and other proceedings and petitions of right claiming in an estate and is not relevant to the present case. The result was that thenceforth the rules of limitation could be relied upon by or against the Crown. See In re Mason [1929] 1 Ch. 1, In Re Blake [1932] 1 Ch. 54. In the United Kingdom prior to the enactment of the Irish Statute of Limitations 1957 there were two statutory amendments to the 1884 Act sections 2 and 3. The Administration of Estates Act 1925 section 30 repealed sections 2 and 3 and re-enacted the same in section 30(1) and (2) extending them to real property. The Limitation Act 1939 amended section 30(2) (corresponding with section 3 of the 1884) by deleting the words “within the same time and”: thus at the enactment of the Succession Act 1965 the position in the United Kingdom was that in actions coming within section 30(1) of the 1925 Act (corresponding with section 2 of the 1884 Act) the same limitation period applied to an action by or against a Crown nominee as if the administrator was a next-of-kin. Section 30(2) of the 1925 Act no longer provided for a limitation period. The Succession Act 1965 repealed sections 2 and 3 of the 1884 Act and in substance re-enacted the same in section 65 (1) and (2) but without in any way prescribing in express terms in either subsection for a limitation period. Having regard to the legislative history I am satisfied that it was the intention of the legislature in enacting section 65 of the Succession Act 1965 to repeal and re-enact in an amended form sections 2 and 3 of the 1884 Act by no longer applying a limitation period: the effect of this is that the limitation periods provided for in the Statute of Limitations 1957 section 13(1) and (2) are unaffected by section 65 of the Succession Act 1965.
It follows from this that had the appropriate limitation period in this case been that prescribed by section 13(1)(a) of the Statute of Limitations that limitation period would be unaffected by the provisions of section 65(1) of the Succession Act 1965. However as the appropriate limitation period is that prescribed by section 13(2)(a) of the 1957 Act section 65(1) has no application. Section 65(2) does not provide for a limitation period so that the relevant period where that section applies is that provided for by section 13(2)(a), twelve years.
Conclusion
I would answer the questions of law for determination raised by the Case Stated as follows:-
(a) Is the plaintiff a State authority for the purposes of the Statute of Limitations 1957″
Answer: No.
(b) Having regard to sections 23 and 24 of the Statute of Limitations 1957 is the relevant limitation period in this case prescribed by section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof” Answer: the relevant limitation period in this case is prescribed by section 13(2) of the Statute of Limitations 1957.
(c) Is the answer (b) affected by section 65 of the Succession Act 1965″