Property Interests
Land and Conveyancing Law Reform Act
Definitions
“land” includes-
a) any estate or interest in or over land, whether corporeal or incorporeal,
b) mines, minerals and other substances in the substratum below the surface, whether or not owned in horizontal, vertical or other layers apart from the surface of the land,
c) land covered by water,
d) buildings or structures of any kind on land and any part of them, whether the division is made horizontally, vertically or in any other way,
e) the airspace above the surface of land or above any building or structure on land which is capable of being or was previously occupied by a building or structure and any part of such airspace, whether the division is made horizontally, vertically or in any other way,
f) any part of land …
Ownership and abolition of feudal tenure.
9.— (1) From the commencement of this Part, ownership of land comprises the estates and interests specified in this Part.
(2) In so far as it survives, feudal tenure is abolished.
(3) Subsection (2) does not affect—
(a) the position of the State under—
(i) the State Property Act 1954,
(ii) section 73 of the Act of 1965,
(b) the concept of an estate under section 10,
(c) any fee farm grant made in derogation of the Statute Quia Emptores 1290,
(d) any surviving customary right or franchise.
[SQE 1290]
(4) A fee simple remains freely alienable.
Estates and interests in land.
10.— (1) The concept of an estate in land is retained and, subject to this Act, continues with the interests specified in this Part to denote the nature and extent of land ownership.
(2) Such an estate retains its pre-existing characteristics, but without any tenurial incidents.
(3) All references in any enactment or any instrument (whether made or executed before or after the commencement of this Part) to tenure or estates or interests in land, or to the holder of any such estate or interest, shall be read accordingly.
Restrictions on legal estates and interests.
11.— (1) The only legal estates in land which may be created or disposed of are the freehold and leasehold estates specified by this section.
(2) For the purposes of subsection (1), a “freehold estate” means a fee simple in possession and includes—
(a) a determinable fee,
(b) a fee simple subject to a right of entry or of re-entry,
(c) a fee simple subject only to—
(i) a power of revocation,
(ii) an annuity or other payment of capital or income for the advancement, maintenance or other benefit of any person, or
(iii) a right of residence which is not an exclusive right over the whole land.
(3) For the purposes of subsection (1), a “leasehold estate” means, subject to sections 12 and 14, the estate which arises when a tenancy is created for any period of time or any recurring period and irrespective of whether or not the estate—
(a) takes effect in immediate possession or in future, or
(b) is subject to another legal estate or interest, or
(c) is for a term which is uncertain or liable to termination by notice, re-entry or operation of law or by virtue of a provision for cessor on redemption or for any other reason.
(4) The only legal interests in land which may be created or disposed of are—
(a) an easement,
(b) a freehold covenant,
(c) an incumbrance,
(d) a rent payable under a tenancy,
(e) a possibility of reverter,
(f) a profit à prendre, including a mining right,
(g) a public or customary right,
(h) a rentcharge,
(i) a right of entry or of re-entry attached to a legal estate,
(j) a wayleave or other right to lay cables, pipes, wires or other conduits,
(k) any other legal interest created by any statutory provision.
(5) A legal estate or legal interest under this section has, subject to this Act, the same attributes as the corresponding legal estates and interests existing at the commencement of this Part and may exist concurrently with, or subject to, any other legal estate or interest in the same land.
(6) Subject to this Act, estates and interests other than those referred to in subsections (1) to (4) take effect as equitable interests only, but this does not prevent the creation of the estates and interests referred to in those subsections as equitable interests.
(7) Nothing in this Act affects judicial recognition of equitable interests.
(8) Subject to this Act, a power of attorney, power of appointment or other power to dispose of a legal estate or interest in land operates with the same force and effect as such powers had before the commencement of this Part.
(9) All estates and interests in land, whether legal or equitable, may be disposed of.
Prohibition of fee farm grants.
12.— (1) The creation of a fee farm grant at law or in equity is prohibited.
(2) Any instrument executed after the commencement of this Part purporting to—
(a) create a fee farm grant, or
(b) grant a lease for life or lives renewable for ever or for any period which is perpetually renewable,
vests in the purported grantee or lessee a legal fee simple or, as the case may be, an equitable fee simple and any contract for such a grant entered into after such commencement operates as a contract for such a vesting.
(3) A fee simple which vests under subsection (2) is freed and discharged from any covenant or other provision relating to rent, but all other covenants or provisions continue in force so far as consistent with the nature of a fee simple.
(4) Subsection (2) does not apply to any contract or instrument giving effect to a contract entered into before the commencement of this Part.
(5) Notwithstanding section 11(2), any fee simple held under a fee farm grant existing at law at the commencement of this Part continues as a legal estate and may be disposed of.
(6) Notwithstanding section 11(4), any fee farm rent existing at law at the commencement of this Part continues as a legal interest and may be disposed of.
Abolition of the fee tail.
13.— (1) The creation of a fee tail of any kind at law or in equity is prohibited.
(2) Any instrument executed after the commencement of this Part purporting to create a fee tail in favour of any person vests in that person a legal fee simple or, as the case may be, an equitable fee simple and any contract for such a creation entered into before or after such commencement operates as a contract for such vesting.
(3) Where—
(a) immediately before the commencement of this Part, a person was entitled to a fee tail at law or in equity, or
(b) after such commencement, a person becomes entitled to such a fee tail,
a legal or, as the case may be, an equitable fee simple vests in that person on such commencement or on that person becoming so entitled provided any protectorship has ended.
(4) In subsection (3)“fee tail” includes—
(a) a base fee provided the protectorship has ended,
(b) a base fee created by failure to enrol the disentailing deed,
but does not include the estate of a tenant in tail after possibility of issue extinct.
(5) A fee simple which vests under subsection (2) or subsection (3) is—
(a) not subject to any estates or interests limited by the instrument creating the fee tail to take effect after the termination of the fee tail,
(b) subject to any estates or interests limited to take effect in defeasance of the fee tail which would be valid if limited to take effect in defeasance of a fee simple.
Prohibition of leases for lives.
14.— The grant of a lease for—
(a) a life or lives,
(b) a life or lives combined with a concurrent or reversionary term of any period,
(c) any term coming to an end on the death of a person or persons,
and any contract for such a grant made after the commencement of this Part is void both at law and in equity.
PART 3
Future Interests
Operation of future interests in land.
15.— (1) Subject to subsection (2), all future interests in land, whether vested or contingent, exist in equity only.
(2) Subsection (1) does not apply to—
(a) a possibility of reverter, or
(b) a right of entry or of re-entry attached to a legal estate.
Abolition of various rules.
16.— Subject to section 17, the following rules are abolished:
(a) the rules known as the common law contingent remainder rules;
(b) the rule known as the Rule in Purefoy v. Rogers;
(c) the rule known as the Rule in Whitby v. Mitchell (also known as the old rule against perpetuities and the rule against double possibilities);
(d) the rule against perpetuities;
(e) the rule against accumulations.
Scope of section 16.
17.—Section 16 applies to any interest in property whenever created but does not apply if, before the commencement of this Part, in reliance on such an interest being invalid by virtue of the application of any of the rules abolished by that section—
(a) the property has been distributed or otherwise dealt with, or
(b) any person has done or omitted to do any thing which renders the position of that or any other person materially altered to that person’s detriment after the commencement of this Part.
PART 4
Trusts of Land
Trusts of land.
18.— (1) Subject to this Part, where land is—
[[SLA 1882, ss. 2, 59, 60]
(a) for the time being limited by an instrument, whenever executed, to persons by way of succession without the interposition of a trust (in this Part referred to as a “strict settlement”), or
(b) held, either with or without other property, on a trust whenever it arises and of whatever kind, or
(c) vested, whether before or after the commencement of this Part, in a minor,
there is a trust of land for the purposes of this Part.
(2) For the purposes of—
(a) subsection (1)(a), a strict settlement exists where an estate or interest in reversion or remainder is not disposed of and reverts to the settlor or the testator’s successors in title, but does not exist where a person owns a fee simple in possession,
(b) subsection (1)(b), a trust includes an express, implied, resulting, constructive and bare trust and a trust for sale.
(3) Subject to this Part, a trust of land is governed by the general law of trusts.
(4) Conversion of a life estate into an equitable interest only does not affect a life owner’s liability for waste.
[LEA 1695]
(5) Where, by reason of absence from the State or otherwise, it remains uncertain for a period of at least 7 years as to whether a person upon whose life an estate or interest depends is alive, it shall continue to be presumed that the person is dead.
(6) If such presumption is applied to a person but subsequently rebutted by proof to the contrary, that person may bring an action for damages or another remedy for any loss suffered.
(7) In dealing with an action under subsection (6), the court may make such order as appears to it to be just and equitable in the circumstances of the case.
(8) Any party to a conveyance shall, unless the contrary is proved, be presumed to have attained full age at the date of the conveyance.
(9) This Part does not apply to land held directly for a charitable purpose and not by way of a remainder.
Trustees of land.
19.— (1) The following persons are the trustees of a trust of land—
[SLA 1882, ss. 38, 39]
(a) in the case of a strict settlement, where it—
(i) exists at the commencement of this Part, the tenant for life within the meaning of the Settled Land Act 1882 together with any trustees of the settlement for the purposes of that Act,
(ii) is purported to be created after the commencement of this Part, the persons who would fall within paragraph (b) if the instrument creating it were deemed to be an instrument creating a trust of land,
(b) in the case of a trust of land created expressly—
(i) any trustee nominated by the trust instrument, but, if there is no such person, then,
(ii) any person on whom the trust instrument confers a present or future power of sale of the land, or power of consent to or approval of the exercise of such a power of sale, but, if there is no such person, then,
(iii) any person who, under either the trust instrument or the general law of trusts, has power to appoint a trustee of the land, but, if there is no such person, then,
(iv) the settlor or, in the case of a trust created by will, the testator’s personal representative or representatives,
(c) in the case of land vested in a minor before the commencement of this Part or purporting so to vest after such commencement, the persons who would fall within paragraph (b) if the instrument vesting the land were deemed to be an instrument creating a trust of land,
(d) in the case of land the subject of an implied, resulting, constructive or bare trust, the person in whom the legal title to the land is vested.
(2) For the purposes of—
(a) subsection (1)(a)(ii) and (1)(c), the references in subsection (1)(b) to “trustee” and “trustee of the land” include a trustee of the settlement,
(b) subsection (1)(b)(iii) a power to appoint a trustee includes a power to appoint where no previous appointment has been made.
(3) Nothing in this section affects the right of any person to obtain an order of the court appointing a trustee of land or vesting land in a person as trustee.
Powers of trustees of land.
20.— (1) Subject to—
(a) the duties of a trustee, and
(b) any restrictions imposed by any statutory provision (including this Act) or the general law of trusts or by any instrument or court order relating to the land,
a trustee of land has the full power of an owner to convey or otherwise deal with it.
(2) The power of a trustee under subsection (1) includes the power to—
(a) permit a beneficiary to occupy or otherwise use the land on such terms as the trustee thinks fit,
(b) sell the land and to re-invest the proceeds, in whole or in part, in the purchase of land, whether or not situated in the State, for such occupation or use.
Overreaching for protection of purchasers.
21.— (1) Subject to subsection (3), a conveyance to a purchaser of a legal estate or legal interest in land by the person or persons specified in subsection (2) overreaches any equitable interest in the land so that it ceases to affect that estate or interest, whether or not the purchaser has notice of the equitable interest.
(2) For the purposes of subsection (1), the “person or persons specified”—
(a) shall be at least two trustees or a trust corporation where the trust land comprises—
(i) a strict settlement, or
(ii) a trust, including a trust for sale, of land held for persons by way of succession, or
(iii) land vested in or held on trust for a minor,
(b) may be a single trustee or owner of the legal estate or interest in the case of any other trust of land.
(3) Subsection (1) does not apply to—
(a) any conveyance made for fraudulent purposes of which the purchaser has actual knowledge at the date of the conveyance or to which the purchaser is a party, or
(b) any equitable interest—
(i) to which the conveyance is expressly made subject, or
(ii) protected by deposit of documents of title relating to the legal estate or legal interest, or
(iii) in the case of a trust coming within subsection (2)(b), protected by registration prior to the date of the conveyance or taking effect as a burden coming within section 72(1)(j) of the Act of 1964 (or, in the case of unregistered land, which would take effect as such a burden if the land were registered land).
(4) In subsection (3)(b)(iii), “registration” means registration in the Registry of Deeds or Land Registry, as appropriate.
(5) Where an equitable interest is overreached under this section it attaches to the proceeds arising from the conveyance and effect shall be given to it accordingly.
(6) Nothing in this section affects the operation of the Act of 1976.
Resolution of disputes.
22.— (1) Any person having an interest in a trust of land, or a person acting on behalf of such a person, may apply to the court in a summary manner for an order to resolve a dispute between the—
(a) trustees themselves, or
(b) beneficiaries themselves, or
(c) trustees and beneficiaries, or
(d) trustees or beneficiaries and other persons interested,
in relation to any matter concerning the—
(i) performance of their functions by the trustees, or
(ii) nature or extent of any beneficial or other interest in the land, or
(iii) other operation of the trust.
(2) Subject to subsection (3), in determining an application under subsection (1) the court may make whatever order and direct whatever inquiries it thinks fit in the circumstances of the case.
(3) In considering an application under subsection (1)(i) and (iii) the court shall have regard to the interests of the beneficiaries as a whole and, subject to these, to—
(a) the purposes which the trust of land is intended to achieve,
(b) the interests of any minor or other beneficiary subject to any incapacity,
(c) the interests of any secured creditor of any beneficiary,
(d) any other matter which the court considers relevant.
(4) In subsection (1), “person having an interest” includes a mortgagee or other secured creditor, a judgment mortgagee or a trustee.
(5) Nothing in this section affects the jurisdiction of the court under section 36 of the Act of 1995.
Co-Ownership
Unilateral severance of a joint tenancy.
30.— (1) From the commencement of this Part, any—
(a) conveyance, or contract for a conveyance, of land held in a joint tenancy, or
(b) acquisition of another interest in such land,
by a joint tenant without the consent referred to in subsection (2) is void both at law and in equity unless such consent is dispensed with under section 31(2)(e).
(2) In subsection (1)“consent” means the prior consent in writing of the other joint tenant or, where there are more than one other, all the other joint tenants.
(3) From the commencement of this Part, registration of a judgment mortgage against the estate or interest in land of a joint tenant does not sever the joint tenancy and if the joint tenancy remains unsevered, the judgment mortgage is extinguished upon the death of the judgment debtor.
(4) Nothing in this section affects the jurisdiction of the court to find that all the joint tenants by mutual agreement or by their conduct have severed the joint tenancy in equity.
Court orders.
31.— (1) Any person having an estate or interest in land which is co-owned whether at law or in equity may apply to the court for an order under this section.
(2) An order under this section includes—
[PA 1868][PA 1876]
(a) an order for partition of the land amongst the co-owners,
(b) an order for the taking of an account of incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances,
(c) an order for sale of the land and distribution of the proceeds of sale as the court directs,
[AJA 1707, s. 23]
(d) an order directing that accounting adjustments be made as between the co-owners,
(e) an order dispensing with consent to severance of a joint tenancy as required by section 30 where such consent is being unreasonably withheld,
(f) such other order relating to the land as appears to the court to be just and equitable in the circumstances of the case.
(3) In dealing with an application for an order under subsection (1) the court may—
(a) make an order with or without conditions or other requirements attached to it, or
(b) dismiss the application without making any order, or
(c) combine more than one order under this section.
(4) In this section—
(a) “person having an estate or interest in land” includes a mortgagee or other secured creditor, a judgment mortgagee or a trustee,
(b) “accounting adjustments” include—
(i) payment of an occupation rent by a co-owner who has enjoyed, or is continuing to enjoy, occupation of the land to the exclusion of any other co-owner,
(ii) compensation to be paid by a co-owner to any other co-owner who has incurred disproportionate expenditure in respect of the land (including its repair or improvement),
(iii) contributions by a co-owner to disproportionate payments made by any other co-owner in respect of the land (including payments in respect of charges, rates, rents, taxes and other outgoings payable in respect of it),
(iv) redistribution of rents and profits received by a co-owner disproportionate to his or her interest in the land,
(v) any other adjustment necessary to achieve fairness between the co-owners.
(5) Nothing in this section affects the jurisdiction of the court under the Act of 1976, the Act of 1995 and the Act of 1996.
(6) The equitable jurisdiction of the court to make an order for partition of land which is co-owned whether at law or in equity is abolished.
Bodies corporate.
32.— (1) A body corporate may acquire and hold any property in a joint tenancy in the same manner as if it were an individual.
[BC(JT) A 1899]
(2) Where a body corporate and an individual or two or more bodies corporate become entitled to any property in circumstances or by virtue of any instrument which would, if the body or bodies corporate had been an individual or individuals, have created a joint tenancy, they are entitled to the property as joint tenants.
(3) On the dissolution of a body corporate which is a joint tenant of any property, the property devolves on the other surviving joint tenant or joint tenants.
Cases
Lalor v. Prunty.
Hanna J. [1939] IR 618
Legal v Equitable
HANNA J.:
This case is brought by the plaintiff as personal representative of one, Michael Prunty, deceased, and also as the personal representative of Michael Prunty’s son, Michael Prunty, Junior, deceased, against Annie Prunty, who is the widow of Bernard Prunty deceased, and it arises in this way.
Michael Prunty, Senior, died on the 20th March, 1905, and at that time he was the owner of the lands in question that is, he held the tenant’s interest in the lands.
He made a will on the 5th March, 1905, and probate of the will was granted on 25th August, 1906. He had two sons, Bernard the elder son and Michael the younger son. Bernard died on the 17th March, 1937, and he had become on 26th December, 1926, the registered owner of these lands in pursuance of a fiat of the Land Commission, dated 28th July, 1921, and, after his death, his widow, who was, so far as I can see, his sole next-of-kin, was registered as full owner of the lands on 4th August, 1937. That is her title.
As regards Michael, the younger son of the testator, he is now represented by the plaintiff, Lalor, under a power of attorney from Mary Cecilia Prunty, the widow of the said Michael. The plaintiff now claims possession of the lands under the will of Michael Prunty on the ground that the interest given to Bernard under that will became divested by reason of the conditions in the will, the relevant portion of which is as follows:”All the rest and residue of my property including my farm of land at Fardromin and stock and effects, I give and bequeath to my son Bernard Prunty.” There is a full stop there, and then the will goes on:”In the event of my son Bernard dying unmarried or without issue I direct the bequest and devise hereby left to Bernard shall go to my said son Michael.”
Now, so far, it is perfectly clear that there was an absolute estate given to Bernard, and the plaintiff relies on the divesting clause. It is well settled that divesting clauses must be set out clearly and unequivocally, and what I have to decide is, was that done in this case.
Bernard died without issue but had been married, so there was one of the divesting conditions fulfilled, i.e.,death without issue. The real point is whether these two conditionsdying unmarried and without issue are conjunctive or disjunctive. In other words, whether the word “or” can be construed as “and.” I think that it means that the estate is to be divested if one or other condition is fulfilled, and, while Bernard has not died unmarried, he has died without issue. I read “or” as entirely disjunctive, and if the clause were written out more fully it would be:”In the event of my son Bernard dying either unmarried or without issue.”
Accordingly I am of the opinion that on my construction of the will, the plaintiff is entitled to the farm.
The question of correct procedure now arises. The action is brought in the form of an ejectment on the title. The suggestion was made by me at Longford, that it might be necessary to amend the claim by adding a claim for a declaration that the register should be altered.
This question has caused me some consideration, and I was of opinion in Longford that the case of Drury v.Drury (1) was a sufficient authority to support the contention made by Mr. McCarthy that, as the defendant is the registered owner, the plaintiff cannot proceed by way of ejectment to recover possession, but on consideration of the fuller arguments now advanced, I have come to the conclusion that proceedings by way of ejectment are properly brought.
We have a statement from the Registrar that if a declaration of the rights of the parties is given by the Court, it will be implemented by the Registration Authorities. In his ruling of the 13th August, 1937, he says:
“Until the applicant has raised representation to Michael Prunty (Junior) and has obtained the decision of a Court in proceedings to which the personal representative of Bernard is a party, she has no locus standi to maintain her application in the Registry. Further proceedings in the application will be stayed for six months to enable the applicant to raise representation to Michael (Junior) and to obtain a decision of a Court on the construction of the will. If the decision is in her favour, the application may be proceeded with, and, subject to the result of searches in the Registry of Deeds and proof of the payment of the £100 bequeathed by the will of Michael (Senior), the note as to equities will be cancelled and the ownership registered in conformity with the decision of the Court.”
That ruling of the Registrar, pursuant to the practice of the Registry, might have been sufficient to satisfy me that proceedings in this form were adequate, but in any case Drury v. Drury (1), although never expressly overruled, is quite inconsistent with the subsequent decision of the Supreme Court in Keelan v. Garvey (2) and the recent decision of Duff v. Boushill (3). In the latter case Sullivan C.J. (at that time President of the High Court) said at p. 163:”The defendant has not, and does not claim to have, any title to the farm of which he is in possession, but his counsel contends that as the lands are registered lands the plaintiff cannot recover possession as he is not registered on the Folio as the owner. I think that contention must fail . . .” Sullivan C.J. goes on to refer to the judgments of Kennedy C.J. and Murnaghan J. in the case of Devoy v. Hanlon (4), and continues:
“That being so, the question to be determined in this case is, was the plaintiff at the date of the issue of the plenary summons entitled in equity to the possession of the farm? If he was, he can recover possession in this action, even although the legal estate was not vested in him: Antrim County Land, Building and Investment Co., Ltd., and Houston v. Stewart (1).”
Although the Chief Justice found that the plaintiff was not entitled in equity to possession at the crucial date, still this is a clear indication that proceedings by way of ejectment on the title are good.
Accordingly I am satisfied that ejectment on the title is adequate, and I find that the plaintiff is entitled to possession, and I will make an order for possession and he can take whatever steps are necessary to have his title registered.
The only question remaining is that of costs. I feel some hesitation in regard to this matter as I have sympathy with the widow who has been living on this farm for so long, and who will now see her home going to a man in America. If this had been a construction summons, both parties would have got their costs out of the estate. I shall make no order as to costs.
Duff v. Boushill.
Sullivan P. [1939] IR 163
SULLIVAN P.:
28. May
This is an action brought by the plaintiff to recover possession of a farm and dwellinghouse thereon situate at Collinstown, Cloughran, in the County of Dublin. The plaintiff claims as devisee under the will of Thomas Long, who was the registered owner in fee simple of the lands in question, being the lands comprised in Folio 885, County Dublin.
By his will, dated the 11th January, 1917, of which he appointed Nicholas Long and James Hoey executors and trustees, the said Thomas Long devised to the said trustees the farm at Collinstown upon trust for his sister Mary Long, for the term of her natural life, and after the death of the said Mary Long he charged the said farm with the payment of a sum of £200 to each of his sisters, Mrs. Lynch and Mrs. Duff; and subject thereto, and subject also to the payment of the deficiency (if any) arising in respect of the pecuniary legacies given by his will, he directed his trustees to convey and assign the farm to his nephew Patrick Duff (the plaintiff) for his absolute use and benefit. He bequeathed his live stock and farm produce to Mary Long and Patrick Duff in equal shares, and, having given several pecuniary legacies, he directed that in the event of any deficiency of his assets whereby the pecuniary legacies given by him would not be payable in full, then any such deficiency should in the first place and first priority be borne by his live stock and farm produce specifically bequeathed to Mary Long and Patrick Duff, and in the second place and second priority should be borne by and be a charge on his farm at Collinstown.
The said Thomas Long died on the 15th April, 1917, and probate of his will was granted to the executors on the 23rd June, 1917. A note of his death and of the grant of probate was registered on the Folio on the 8th September, 1921.
Mary Long, who was entitled under the will to the life estate in the farm, married Simon Boushill, the defendant, and was in possession with her husband during her life. She died on the 16th November, 1935, and since that date her husband has remained in possession, and he has refused to give up possession to the plaintiff.
Nicholas Long and James Hoey, the executors and trustees of the will, died during the lifetime of Mary Long. James Hoey predeceased Nicholas Long, and James Long and Thomas Long are the executors of the will of Nicholas Long, and are accordingly the personal representatives of Thomas Long, deceased.
The defendant has not, and does not claim to have, any title to the farm of which he is in possession, but his counsel contends that as the lands are registered lands the plaintiff cannot recover possession as he is not registered on the Folio as the owner.
I think that contention must fail. It was held by the Supreme Court in Devoy v. Hanlon (1), that the Local Registration of Title (Ir.) Act, 1891, was “framed in contemplation of rights, estates, interests, equities, and powers in or over the land being created, and having valid existence and force outside the registered title” (Kennedy C.J. at p. 255, Murnaghan J. at p. 263). That being so, the question to be determined in this case is, was the plaintiff at the date of the issue of the plenary summons entitled in equity to the possession of the farm? If he was, he can recover possession in this action, even although the legal estate was not vested in him: Antrim County Land, Building, and Investment Co., Ltd., and Houston v. Stewart (1).
I am of opinion that at the date of the issue of the plenary summons the plaintiff was not entitled in equity to possession. The evidence established that the personal estate of Thomas Long including the live stock and farm produce was insufficient to pay the pecuniary legacies in full, and his will provides that in that event the farm is charged with the amount necessary to make good the deficiency of the personal estate. In these circumstances I am of opinion that upon the death of the tenant for life and at the date of the issue of the plenary summons in this action James Long and Thomas Long as personal representatives of Thomas Long were entitled to possession of the farm to enable them to realise the charge upon it and satisfy the pecuniary legacies.
I am therefore of opinion that this action must be dismissed.
I cannot have regard to any title to possession that the plaintiff has acquired subsequent to the date of the plenary summons.
Heneghan v. Davitt and Rowley.
[1933] IR 375
High Court.
Priority
MEREDITH J. :
24. May
The main question on this appeal is whether the learned Circuit Court Judge was correct in his view that the plaintiff, who seeks specific performance of an agreement to purchase certain lands, entered into by an agreement in writing, dated the 30th December, 1931, has to bear the onus of proving that the defendant, a subsequent purchaser, whose purchase has been completed, had notice of the plaintiff’s agreement, or whether the onus is not on the defendant to prove, as one entire plea, that he is a purchaser for value without notice.
We were not referred to any authority on this question. I have been able, however, to find a decision of Farwell J. in In re Nisbet and Potts’ Contract (1), which is an express authority on the point. At p. 402 the learned Judge says:”But the plea of purchaser for value without notice is a single plea, to be proved by the person pleading it; it is not to be regarded as a plea of purchaser for value, to be met by a reply of notice.” Farwell J. then refers to the case of Attorney-General v. Biphosphated Guano Co. (2),in which the Court of Appeal (James, Baggallay, and Thesiger L.JJ.) had said:”The defence of a purchase without notice is one which ought to be specifically alleged as well as proved by those who rely upon it.”
On the facts of this case it is clear that the defence of the defendant Rowley could not prevail unless the position were that he should be given the benefit of a scintilla of a doubt that he merely understood from the information which he had obtained that negotiations were on foot for a purchase by the plaintiff and that he was entitled to believe, and did believe, that no binding agreement had been concluded. But it is the purchaser who must satisfy us that he had no notice, and, so far from doing this, the reasonable inference to my mind is that he regarded himself as having a sort of right of pre-emption, and that he set himself to prevent the completion of a purchase in accordance with an agreement for the sale of the premises to the plaintiff for the sum of £350. It is only reasonable to infer that the defendant Rowley was in fact acting on actual notice of the prior agreement when, on receiving the information he did receive, he asked no further questions and immediately got in touch with the Land Commission. Accordingly, also, the case is not one in which the question of constructive notice, in the strict sense, arises. It is a case in which the defendant, who is a purchaser for value, has failed, in an action for specific performance, to prove that he is a purchaser for value without notice. The plaintiff is, therefore, entitled to specific performance.
In the completion of this contract of which specific performance is to be granted it is clear to my mind that the defendant Rowley stands in the shoes of the defendants, the Davitts, who sold to him. I have not found direct authority on this point, but Aldborough (Earl of) v. Trye (1)is of assistance.
O’BYRNE J.:
The question for determination on this appeal is whether the Circuit Judge was right in holding that the respondent Rowley was a purchaser for value without notice, and that accordingly the appellant was not entitled, as against him, to a decree for specific performance.
On the 30th December, 1931, the appellant entered into an agreement in writing for the purchase of the lands in question from the then owners, John and Patrick Davitt, for the sum of £350, and he thereupon paid over to the auctioneers, through whom the sale was negotiated, the sum of £70 by way of deposit and the sum of £17 10s. auctioneers’ fees. While this agreement was in full force and awaiting completion, the Davitts entered into an arrangement for the sale of the same lands to Rowley for the sum of £360 and this arrangement was carried into effect by a deed of conveyance bearing date the 1st day of April, 1932. Shortly afterwards the appellant instituted proceedings for specific performance of the agreement of the 30th December, 1931, and named, as defendants, the Davitts and Rowley. The Davitts did not appear, and Rowley pleaded that he was a purchaser for value without notice of the prior agreement. The Circuit Judge gave judgment for damages as against the Davitts but upheld Rowley’s plea. From this decision the plaintiff has appealed.
Various legal considerations and principles apply in the determination of the question whether a purchaser of lands had notice of a prior agreement or incumbrance affecting the lands, but nevertheless the question remains substantially a question of fact, and, accordingly, I would be very slow to interfere with the decision of the trial Judge if I were satisfied that, in the determination of the question submitted to him, he applied the correct legal principles.
In the present case I am satisfied, from the judgment of the learned Judge, that he misdirected himself in point of law, and dealt with the case in a manner contrary to well established principles of law. In the course of his judgment he says:”I may have a good deal of suspicion about the Rowleys and their evidence, but Irather feel the burden of proof is on the plaintiff, who must satisfy me beyond all reasonable doubt that the true inference to draw from all the facts is that they had notice.” It is clear from this that the learned Judge considered that the onus of proving that Rowley was not a purchaser for value without notice rested upon the appellant and dealt with the case upon this basis. Apart from this, and even if he were right as to where the onus of proof lay, he seems to me to have placed a very heavy burden upon the appellant when he required him to prove this matterbeyond all reasonable doubt.
In the case of Att orney-General v. Bisphosphated, Guano Co. (1), Thesiger L.J. says at p. 337:”The defence of a purchase without notice is one which ought to be specifically alleged as well as proved by those who rely upon it,” and in the case of Nisbet and Potts’ Contract (2), Farwell J. says at p. 402:”The plea of purchaser for value without notice is a single plea, to be proved by the person pleading it; it is not to be regarded as a plea of purchaser for value, to be met by a reply of notice.” In my opinion these are correct statements of the law, and accordingly the trial Judge should have dealt with the case upon the basis that the onus of proof rested upon Rowley and not upon the appellant.
There is one other matter to which I desire to refer before considering the evidence in the case. In order to defeat a plea of purchaser for value without notice, it is not, in my opinion, necessary that the purchaser should have actual notice. If he has sufficient notice or knowledge to put him upon enquiry, and if he deliberately refrains from making such enquiry, he is thereupon deemed to have constructive notice of such facts as would have come to his knowledge if he had made proper enquiry; and such constructive notice is, in my opinion, sufficient to defeat the plea. Bearing these facts in mind, I approach the evidence in this case.
As already stated, the agreement for the sale of the land to the appellant was entered into on the 30th day of December, 1931. On the 31st day of December, 1931, Rowley and his wife called at the office of Mr. Patrick O’Connor, solicitor, who was acting on behalf of the appellant, and had an interview with his assistant, Miss Frances Kelly. The accounts of that interview as given by Miss Kelly on the one hand, and by Mr. and Mrs. Rowley on the other hand, do not agree; and, in so far as they disagreed, the trial Judge accepted the evidence ofMiss Kelly and rejected that of Mr. and Mrs. Rowley. Accordingly, I accept the evidence of Miss Kelly, particularly as it was fortified by a note of the interview taken down by Miss Kelly at the time. It will be noted that this interview took place the very day after the appellant entered into his agreement.
I take the following extracts from the evidence of Miss Kelly:
Q. 40. “What occurred there when you met Rowley?””Himself and Mrs. Rowley calledMrs. Rowley stated they wanted to see Mr. O’Connor to take instructions. She said that John Heneghan of Carrowbeg was intending to buy a holding of land from the Davitts for £350, that this land was adjoining hers and was a co-holding, and she was willing to give the same price, and she wished Mr. O’Connor to write to the Land Commission to sell her the land.”
Q. 41. His Lordship:”Did she say that John Heneghan was going to buy it or had bought it for £350?” “She said it was being sold to a man called John Heneghan.”
Q. 42. His Lordship:”You took her instructions?””Yes.”
Q. 43. His Lordship:”And then you saw Mr. O’Connor?” “Yes.”
Cross-examined by Mr. Conroy:
Q. 44. “Mrs. Rowley seems to think that what she said was that John Heneghan had made a bid. Are you reading from your instructions now that she said a man named Heneghan was buying, or that it was being sold to a man called Heneghan?” “My own recollection is that it was being sold.”
Q. 45. “What does your note say?” “The note says ‘being sold.'”
Q. 46. Mr. Conroy:”Had you any other conversation?””No, except when I came back from Mr. O’Connor and told her that he couldn’t act for her as he was acting for John Heneghan, the purchaser.”
Mr. and Mrs. Rowley both gave evidence, and the gist of that evidence is that they knew at the time that Heneghan had made a bid for the place but they deny any knowledge of his having entered into an agreement for purchase. It appears that after they left Mr. O’Connor’s office they wrote, the same day, to the Land Commission and afterwards to the Davitts. They both deny that Miss Kelly made use of the expression that Mr. O’Connor was acting for the purchaser. Mrs. Rowley was asked in cross-examination:
Q. 117. “Did you think, if you got the consent of the Land Commission before Heneghan got it, that you would get it, even if he had already bought the place?” and her answer was:”I didn’t know he had bought it. I knew he had bid for it. That is all.”
Q. 119. “If you didn’t know that Heneghan had bought the land, why were you so quiet about it; did you tell anybody you were writing to the Land Commission?””I didn’t know.”
I extract the following from the evidence of James Rowley:
Q. 136. “When did you pay the purchase money?””The 23rd of March, I think.”
Q. 137. “Did you know that Heneghan had agreed to buy that land?” “I heard common talk that he was buying it.”
Q. 138. “Did you think he had bought it?” “No, sir.”
Q. 139. “Were you not told in Mr. O’Connor’s office why Mr. O’Connor would not act for you?” “No.”
Q. 142. “The typist told you, and you heard her say here to-day that she told you why Mr. O’Connor wouldn’t act for you?” “No, she didn’t.”
After dealing at length with the evidence regarding the foregoing conversation the learned Judge says:”I come to the conclusion with some hesitation, that that in itself cannot be held to saddle the Rowleys with notice of a prior agreement.” This, of course, proceeds upon the basis that the onus of proving actual notice rested upon the appellant.
It is clear from the judgment of the learned Judge that he regarded the Rowleys and their evidence with grave suspicion, and that he rejected some of their evidence at any rate such portions of it as conflicted with the evidence of Miss Kelly. He dismissed the action as against Rowley but without costs. The reason for refusing him his costs I give in the Judge’s own words:”The reason I do that is because I think, if the Rowleys had made the inquiries they should have made, they could very easily have ascertained what the true state of affairs was about this contract.”
In all these circumstances should the plea of purchaser for value without notice be allowed to prevail? The actions and the evidence of the Rowleys seem to me, as they seemed to the trial Judge, to be open to grave suspicion. In so far as that evidence conflicted with the evidence of Miss Kelly, the trial Judge rejected it. He obviously did not regard them as trustworthy witnesses on whose evidence implicit reliance could be placed. Having regard to his view as to the evidence of these witnesses I am driven to the conclusion that, if he had considered that the onus of proving the plea of purchaser for value without notice rested upon Rowley, he would have held that the latter had not discharged the onus. Taking the evidence as a whole and considering it with the assistance of the trial Judge’s estimate as to the trust to be imposed on the evidence of the various material witnesses, I am of opinion that the onus of proof was not discharged.
I am, therefore, of opinion that this appeal should be allowed and an order for specific performance granted.
Hunt v Luck
Notice & Priority
[1902] 1 Ch 428
Farwell J:
‘This doctrine of constructive notice, imputing as it does knowledge which the person affected does not actually possess, is one which the courts of late years have been unwilling to extend. I am not referring to cases where a man wilfully shuts his eyes so as to avoid notice but to cases like the present, where honest men are to be affected by knowledge which every one admits they did not in fact possess. So far as regards the merits of the case, even assuming both parties to the action to be equally innocent, the man who has been swindled by too great confidence in his own agent has surely less claim to the assistance of a court of equity than a purchaser for value who gets the legal estate, and pays his money without notice. Granted that the vendor has every reason to believe his agent an honest man, still, if he is mistaken and trusts a rogue, he, rather than the purchaser for value without notice who is misled by his having so trusted, ought to bear the burden.
… Constructive notice is the knowledge which the Courts impute to a person upon a presumption so strong of the existence of the knowledge that it cannot be allowed to be rebutted, either from his knowing something which ought to have put him to further inquiry or from his wilfully abstaining from inquiry, to avoid notice. How can I hold that the mortgagees here wilfully neglected to make some inquiry which is usual in cases of mortgages or sales of real estate in order to avoid acquiring some knowledge which they would thereby have obtained?’
‘If a purchaser or a mortgagee has notice that the vendor or mortgagor is not in possession of the property, he must make inquiries of the person in possession – of the tenant who is in possession – and find out from him what his rights are, and, if he does not choose to do that, then whatever title he acquires as purchaser or mortgagee will be subject to the title or right of the tenant in possession.’
Midland Bank Ltd v Farmpride Hatcheries Ltd
(1981) 260 EG 493 Court of Appeal (Oliver, Shaw and Buckley LLJ)
Shaw LJ:
[he had] ‘set up a smoke-screen designed to hide even the possible existence of some interest in himself which would derogate from the interest of the company ostensibly conferred by the mortgage … Mr W is estopped from setting up any facts which would go to show that he held an interest which overrides or stands in priority to their interest as mortgagees from the company.’
Oliver L J:
‘He does not thereby make any representation that his principal has an indefeasible title to the property offered as security. As to that the purchaser or mortgagee must satisfy himself by making the usual enquiries before he completes. But in negotiating on his principill’ s behalf he does, in my judgement, at least represent that he has his principal’s authority to offer the property free from any undisclosed adverse interest of his own. I would therefore be prepared to hold that the purchaser or mortgagee dealing with such an agent can reasonably assume that if the agent with whom he is dealing has himself an interest adverse to the title which he offers on his principal’s behalf, he will disclose it. It was reasonable for (the bank) not to make enquiry about an adverse interest if the negotiating agent which that agent’s own reticence entitled him to assume did not exist and (the Bank) did not, therefore, have constructive notice of it.’
Parker v British Airways Board
Relativity of Ownership
[1982) Q.B. 1004; [1982) 1 All ER 834
Court of Appeal
DONALDSON L.J. delivered the first judgment. On November 15, 1978, the plaintiff, Alan George Parker, had a date with fate-and perhaps with legal immortality. He found himself in the international executive lounge at terminal one, Heathrow Airport. And that was not all that he found. He also found a gold bracelet lying on the floor.
We know very little about the plaintiff, and it would be nice to know more. He was lawfully in the lounge and, as events showed, he was an honest man. Clearly he had not forgotten the schoolboy maxim “Finders keepers.” But, equally clearly, he was well aware of the adult qualification “unless the true owner claims the article.” He had had to clear customs and security to reach the lounge. He was almost certainly an outgoing passenger because the defendants, British Airways Board, as lessees of the lounge from the British Airports Authority and its occupiers, limit its use to passengers who hold first class tickets or boarding passes or who are members of their Executive Club. which is a passengers’ “club.” Perhaps the plaintiff’s flight had just been called and he was pressed for time. Perhaps the only officials in sight were employees of the defendants. Whatever the reason, he gave the bracelet to an anonymous official of the defendants instead of to the police. He also gave the official a note of his name and address and asked for the bracelet to be returned to him if it was not claimed by the owner. The official handed the bracelet to the lost property department of the defendants.
Neither the plaintiff nor the defendants lay any claim to the bracelet either as owner of it or as one who derives title from that owner. The plaintiff’s claim is founded upon the ancient common law rule that the act of finding a chattel which has been lost and taking control of it gives the finder rights with respect to that chattel. The defendants’ claim has a different basis. They cannot and do not claim to have found the bracelet when it was handed to them by the plaintiff. At that stage it was no longer lost and they received and accepted the bracelet from the plaintiff on terms that it would be returned to him if the owner could not be found. They must and do claim on the basis that they had rights in relation to the bracelet immediately before the plaintiff found it and that these rights are superior to the plaintiff’s. The defendants’ claim is based upon the proposition that at common law an occupier of land has such rights over all lost chattels which are on that land, whether or not the occupier knows of their existence.
The common law right asserted by the plaintiff has been recognised for centuries. In its simplest form it was asserted by the chimney sweep’s boy who, in 1722. found a jewel and offered it to a jeweller for sale. The jeweller refused either to pay a price acceptable to the boy or to return it and the boy sued the jeweller for its value: Armory v. Delamirie (1722) 1 Stra. 505. Pratt C.J. ruled:
“That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.”
In the case the jeweller clearly had no rights in relation to the jewel immediately before the boy found it and any rights which he acquired when he received it from the boy stemmed from the boy himself. The jeweller could only have succeeded if the fact of finding and taking control of the jewel conferred no rights upon the boy. The court would then have been faced with two claimants, neither of which had any legal right, but one had de facto possession. The rule as stated by Pratt C.J. must be right as a general proposition, for otherwise lost property would be subject to a free-for-all in which the physically weakest would go to the wall.
Pratt C.J.’s ruling is, however, only a general proposition which requires definition. Thus one who “finds” a lost chattel in the sense of becoming aware of its presence, but who does no more, is not a “finder” for this purpose and does not, as such, acquire any rights.
Some qualification has also to be made in the case of the trespassing finder. The person vis a vis whom he is a trespasser has a better title. The fundamental
basis of this is clearly public policy. Wrongdoers should not benefit from their wrongdoing. This requirement would be met if the trespassing finder acquired no rights. That would, however, produce the free-for-all situation to which I have already referred, in that anyone could take the article from the trespassing finder. Accordingly, the common law has been obliged to give rights to someone else, the owner ex hypothesi being unknown. The obvious candidate is the occupier of the property upon which the finder was trespassing.
Curiously enough, it is difficult to find any case in which the rule is stated in this simple form. It is … reflected in the judgment of Lord Goddard C.J. in Hibbert v. McKiernan [1948] 2 K.B. 142, 149. That was a criminal case concerning the theft of “lost” golf balls on the private land of a club. The only issue was whether for the purposes of the criminal law property in the golf balls could be laid in someone other than the alleged thief. The indictment
named the members of the club, who were occupiers of the land, as having property in the balls, and it is clear that at the time when the balls were taken the members were very clearly asserting such a right, even to the extent of mounting a police patrol to warn off trespassers seeking to harvest lost balls.
In the interests of clearing the ground and identifying the problem, let me now turn to another situation in respeot of which the law is reasonably clear. This is that of chattels which are attached to realty (land or buildings) when they are found. If the finder is not a wrongdoer, he may have some rights, but the occupier of the land or building .will have a better title. The rationale of this rule is probably either that the chattel is to be treated as an integral part of the realty as against all but the true·owner and so incapable of being lost or that the “finder” has to do something to the realty in order to get at or detach the chattel and, if he is not thereby to become a trespasser, will have to justify his actions by reference to some form of licence from the occupier. In all likely circumstances that licence will give the occupier a superior right to that of the finder.
Authority for this view of the law is to be found in South Staffordshire
Water Co. v. Sharman [1896] 2 O.B. 44 where the defendant was employed by the occupier of land to remove mud from the bottom of a pond. He found two gold rings embedded in the mud. The plaintiff occupier was held to be entitled to the rings. Dicta of Lord Russell of Killowen C.J., with whom Wills J. agreed, not only support the law as I have stated it, but go further and may support the defendants’ contention that an occupier of a building has a claim to articles found in that building as opposed to being found attached to or forming part of it …
I must now return to the respective claims of the plaintiff and the defendants. Mr. Brown, for the plaintiff, relies heavily upon the decision of Patteson J. and Wightman J., sitting in bane in Bridges v. Hawkesworth (1851) 21 L.J.Q.B. 75; 15 Jur. 1079 … The ratio of this decision seems to me to be solely that the unknown presence of the notes on the premises occupied by Mr. Hawkesworth could not without more, give him any rights or impose any duty upon him in relation to the notes.
Mr. Desch. for the defendants, submits that Bridges v. Hawkesworth, 15 Jur.
1079, can be distinguished and he referred us to the judgment of Lord Russell of Killowen C.J., with which Wills J. agreed, in South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44. Sharman’s case itself is readily distinguishable, either upon the ground that the rings were in the mud and thus part of the realty or upon the ground that the finders were employed by the plaintiff to remove the mud and had a clear right to direct how the mud and anything in it should be disposed of, or upon both grounds. However, Lord Russell of Killowen C.J. in distinguishing Bridges v. Hawkesworth expressed views which, in Mr. Desch’s submission, point to the defendants having a superior claim to that of the plaintiff on the facts of the instant case. Lord Russell of Killowen C.J. said, at pp. 46-47: “The principle on which this case must be decided, and the distinction which must be drawn between this case and that of Bridges v. Hawkesworth, is to be found in a passage in Pollock and Wright, Possession in the Common Law, p. 41: ‘The possession of land carries with it in general, by our law, possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor is not aware of the thing’s existence … It is free to anyone who requires a specific intention as part of a de facto possession to treat this as a positive rule of law. But it
seems preferable to say that the legal possession rests on a real de facto possession, constituted by the occupier’s general power and intent to exclude unauthorised interference.’ That is the ground on which I prefer to base my judgment…. Bridges v. Hawkesworth stands by itself, and on special grounds; and on those grounds it seems to me that the decision in that case was right. Someone had accidentally dropped a bundle of banknotes in a public shop. The shopkeeper did not know they had been dropped, and did not in any sense exercise control over them. The
shop was open to the public, and they were invited to come there It is
somewhat strange that there is no more direct authority on the question; but the general principle seems to me to be that where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo.”
I would accept Lord Russell of Killowen C.J.’s statement of the general principle in South Staffordshire Water Co. v. Sharman [1896] 2 O.B. 44, 46-47, provided that the occupier’s intention to exercise control over anything which might be on the premises was manifest. But it is impossible to go further
and to hold that the mere right of an occupier to exercise such control is sufficient to give him rights in relation to lost property on his premises without overruling Bridges v. Hawkesworth, 21 L.J.O.B. 75 …
The plaintiff was not a trespasser in the executive lounge and, in taking the bracelet into his care and control, he was acting with obvious honesty. Prima facie, therefore, he had a full finder’s rights and obligations. He in fact discharged those obligations by handing the bracelet to an official of the defendants’ although he could equally have done so by handing the bracelet to the police or in other ways such as informing the police of the find and himself caring for the bracelet. The plaintiff’s prima facie entitlement to a finder’s rights was not displaced in favour of an employer or principal. There is no evidence that he was in the executive lounge in the course of any employment or agency and, if he was, the finding of the bracelet was quite clearly collateral thereto. The position would have been otherwise in the case of most or perhaps all the defendants’ employees.
The defendants, for their part, cannot assert any title to the bracelet based upon the rights of an occupier over chattels attached to a building. The bracelet was lying loose on the floor. Their claim must, on my view of the law, be based upon a manifest intention to exercise control over the lounge and all things which might be in it. The evidence is that they claimed the right to decide who should and who should not be permitted to enter and use the lounge, but their control was in general exercised upon the basis of classes or categories of user and the availability of the lounge in the light of the need to clean and maintain it. I do not doubt that they also claimed the right to exclude individual undesirables, £uch as drunks, and specific types of chattels such as guns and bombs. But this control has no real relevance to a manifest intention to assert custody and control over lost articles. There was no evidence that they searched for such ·articles regularly or at all.
Evidence was given of staff instructions which govern the action to be taken by employees of the defendants if they found lost articles or lost chattels were handed to them. But these instructions were not published to users of the lounge and in any event I think that they were intended to do no more than instruct the staff on how they were to act in the course of their employment.
It was suggested in argument that in some circumstances the intention of the occupier to assert control over articles lost on his premises speaks for itself. I think that this is right. If a bank manager saw fit to show me round a vault containing safe deposits and I found a gold bracelet on the floor, I should have no doubt that the bank had a better title than I, and the reason is the manifest intention to exercise a very high degree of control. At the other extreme is the park to which the public has unrestricted access during daylight hours. During those hours there is no manifest intention to exercise any such control. In between these extremes are the forecourts of petrol filling stations, unfenced front gardens of private houses, the public parts of shops and supermarkets as part of an almost infinite variety of land, premises and circumstances.
This lounge is in the middle band and in my judgment, on the evidence available, there was no sufficient manifestation of any intention to exercise control over lost property before it was found such as would give the defendants a right superior to that of the plaintiff or indeed any right over the bracelet. As the true owner has never come forward, it is a case of “finders keepers.”
I would therefore dismiss the appeal.
EVELEIGH L.J. It is accepted on both sides that for the defendants to succeed it must be shown that they had possession of the bracelet at the time when the plaintiff found it and took it into his possession. Whatever the difficulties which surround the concept of possession in English law, the two elements of control and animus possidendi must co-exist. Each of these elements varies greatly in the circumstances of each case. We are concerned to consider them in relation to a bracelet, obviously lost by its owner, found on the floor of the executive lounge at London Airport. Against all but the true owner a person in possession has the right to possess. It should follow therefore that an innocent handler of property who intends to take it for the purpose of discovering the owner and returning it to him should not be in danger of infringing any right in a third party. This makes it essential that the elements of possession should be apparent I respectfully agree with Donaldson L.J.
when he says that he would accept Lord Russell of Killowen C.J.’s statement of the general principle, provided that the occupier’s intention to exercise control over anything which might be on the premises was manifest.
Indeed, I regard Lord Russell of Killowen C.J. as saying that it is necessary for the occupier to prove that his intention was obvious. A person permitted upon the property of another must respect the lawful claims of the occupier as the terms upon which he is allowed to enter, but it is only right that those claims or terms should be made clear. What is necessary to do this must depend on the circumstances. Take the householder. He has the key to the front door. People do not enter at will. They come by very special invitation. They are not members of a large public group, even a restricted group of the public, as users of the executive lounge may be. I would be inclined to say that the occupier of a house will almost invariably possess any lost article on the premises. He may not have taken any positive steps to demonstrate his animus possidendi, but so firm is his control that the animus can be seen to attach to it. It is rather like the strong room of a bank, where I think it would be difficult indeed to suggest that a bracelet lying on the floor was not in the possession of the bank. The firmer the control, the less will be the need to demonstrate independently the animus possidendi.
The absence of both elements in Bridges v. Hawkesworth, 21 L.J.O.B. 75, was emphasised by Lord Russell of Killowen C.J. in South Staffordshire Water Co. v. Sharman [1896] 2 O.B. 44, 47, when he said:
“The shopkeeper did not know they had been dropped, and did not in any sense exercise control over them. The shop was open to the public, and they were invited to come there.”
… In the present case I have come to the conclusion that there is nothing so special in the place and no other evidence to indicate that the defendants, on whom is the burden of proof, in any way demonstrated that they possessed the intention to exercise exclusive control over lost property or that the permission to enter as a member of the travelling public, albeit having purchased the special privilege of the executive lounge, was upon the terms that the commonly understood maxim “finders keepers” would not apply.
I therefore would dismiss this appeal.
Webb v Ireland
[1988] I.R. 353, I.L.R.M. 565
Supreme Court
FINLAY CJ:
(Henchy and Griffin JJ concurring) delivered his judgment on 16 December 1987 saying … The Derrynaflan Hoard consists of a chalice, silver paten, silver and bronze paten stand, gilt bronze strainer and a bronze basin. It has been
We have been consulted by Mr Michael T. S. Webb with reference to certain articles which he and his son, Mr Michael Webb, Junior, found on the 17th February 1980. These articles appear to be a chalice, tray and screener and it is possible that they may constitute treasure trove. Our client has been advised that these articles should with the minimum possible delay and handling be delivered to the care and custody of experts who have the facilities for examination and preserving same. We have accordingly advised our client that he should deliver these articles to your care for the present and pending determination of the legal ownership or status thereof; and also of course subject to any rights to payment or reward which our client and his son have.
Yours faithfully
O’BRIEN & BINCHY
The articles were received by Dr. Breandan Riordain, the Director of the National Museum, who immediately recognised their general value and importance and it was established at the trial that Dr. Rfordain told Mr
Webb that he thought that the articles making up the hoard were treasure trove but that with regard to that aspect of the matter he would have to be guided by the Attorney General’s advice. He also told Mr Webb that he (Mr Webb) would be honourably treated …
The solicitors for the plaintiffs on 9 October 1980 wrote the Dr. 6 Riordain
reminding him of the undertaking that the plaintiffs would be honourably treated with regard to the finding of the hoard and asking that this promise would be implemented … the Chief State Solicitor wrote to the solicitors for the plaintiffs pointing out that his instructions were that the hoard was the property of the State and that the Government was prepared to make an award of £10,000 to the plaintiffs … These proceedings were then instituted by plenary summons on 11 March 1982.
In March 1980 a solicitor acting on behalf of the owners of the land, Messrs.
O’Brien and O’Leary, had written making a claim to an award. Considerable correspondence took place between the State and these owners and eventually both agreed to accept a sum of £25,000 each, and in consideration of that payment to convey to the Minister for Education all rights, property or interest that they may have in the objects now known as the Derrynaflan Hoard. Mr O’Brien and Mr O’Leary executed a document on 7 July 1981 acknowledging the payment of the sum of £25,000 and transferring to the Minister for Education all their rights and interests in accordance with the agreement …
The first issue which falls to be determined on this appeal, from a logical
point of view, is the question as to whether, assuming that the hoard was received by the National Museum as agent for the State in the capacity of a bailee, there must be an implied term in that bailment that the plaintiffs as bailors had a good title to the goods … I have considered that decision and I have come to the conclusion that on the facts of this case there cannot be implied into the arrangements between the plaintiffs and the defendant, surrounding the deposit of the hoard with the Museum, any term establishing a title in the plaintiffs to the hoard. The terms under which the hoard was deposited are clearly set out in the letter written by the solicitors for the plaintiffs which was brought to the director of the Museum at the same time as the articles were. The reference in that letter, which I have already quoted in full, to deliver these articles to your care for the present and pending determination of the legal ownership is, in my opinion, wholly inconsistent with implying into any bailment arising from that delivery an acknowledgment or admission of the plaintiffs’ title to the goods. Whilst, therefore, I would accept as a general proposition of law that bailment involves an implied term as to the title of the bailor of the goods, it can only do so to the extent and in the instances where such an implied term is not by the express terms of the bailment excluded. I am satisfied that this case is one in which such an implied term is by the express terms of the letter excluded from the bailment …
The defendants assert a title to the goods derived through the landowners, Messrs. O’Brien and O’Leary, on two separate grounds. Firstly, they allege that the landowner had a title to any chattel found in the land against any finder of it, under any circumstances. Secondly, they allege that the plaintiffs, having found the chattels and obtained possession of them by an act of trespass as found by the learned trial judge, namely, the digging in the land, and/or being guilty, as it is alleged, of an offence under s. 14 of the National Monuments Act 1930, cannot derive any lawful title to the goods thus acquired.
The decision of Chitty J. in E/wes v The Brigg Gas Company (1886) 33 Ch. D 562, is a clear and unequivocal authority for the proposition that the owner of
a fee simple interest in land is entitled to any chattel which may be in the land as against the finder of that chattel, even where the finder is excavating the land with the licence of the owner. I have carefully considered the judgment in that case and I find it a very persuasive precedent …
… I am satisfied that the true legal position is that there must be distinguished, with regard to the question of control, things which are on land and things which are attached to or under it. This distinction makes consistent the decision in Bridges v Hawkesworth (1851)21 LJ OB 75, and the decision in Parker v The British Airways Board (1982]1 All ER 834 which dealt with objects on land and with an absence of control over them with the decisions in the
cases to which I have referred, dealing with objects attached to or under the land. The extent to which, where objects are attached to or under the land, an absence of control may deprive the owner against a finder is probably limited to cases such as Hanna v Peel [1945] KB 509, where the owner of a house had never entered into possession of it though the title had developed upon him. There is no evidence in this case of anything approaching that type of absence of control on the part of the landowners. From a consideration
of all these cases, although it is clearly obiter to the facts contained in it, I would find the general propositions set out by Dolandson LJ in Parker v British Airways to be a careful and, in my opinion, correct assertion of the relevant principles applicable. Two of the propositions he there states are relevant to the issues arising in this case, the first being that an occupier of land has rights superior to those of a finder over chattels in or attached to that land, and the
second being that the finder of a chattel acquires very limited rights over it if he takes it into his care and control in the course of trespassing.
I, therefore, conclude that on the facts of this case the owners of the lands, Messrs O’Brien and O’Leary had a right to possession of these chattels, superior to the plaintiffs who were finders of them, and that by the agreements made between the State and those two landowners these rights have become vested in the State.
That conclusion would obviate the necessity to reach a conclusion as to whether the plaintiffs, by reason of the fact that their finding of these objects constituted a trespass by the digging in the soil would, in any event, lose any right to possession they might have … With regard to the question of trespass, however, the position would appear to be as follows. The learned trial judge found that the act of digging was an act of trespass, and even though the plaintiffs may have entered with the implied licence of the owners, as was found by him, this would lead to the legal conclusion that they then became, upon commencing to dig, trespassers ab initio.
As such, the general principle of public policy seems clearly to be that they should not, because of that trespass, acquire any rights of ownership to the land or things found in it …
The principle which I have shortly outlined, that the law leans against the acquisition by a person of property rights by trespass, save in cases of prescription, is based on the requirement of the common good that the ownership and right to possession of land shall be protected from an unlawful invasion of it. There does not appear to me to be any grounds in logic or justice for a rule of law that a person who by a trespass of little extent obtains possession of a very valuable chattel would be exempt from this provision of the law, whereas a person committing a larger or more extensive trespass, and possibly deriving a much smaller profit would be penalised by it.
I would, therefore, conclude that even if the right of ownership of the hoard as between the owners of the land and the finders were different from what I have stated it to be, that the fact that these plaintiffs are finders by an act of trespass would disentitle them to any rights in the objects found, certainly as between them and the owners of the land …
Having regard to this view, it was not for the purpose of the main claim made by the plaintiffs in this action, namely, for the return of the hoard, necessary to determine the issue as to whether and to what extent the right or prerogative of treasure trove is part of the law of Ireland.
The plaintiffs, however, in the alternative, have claimed that in the event of their submission that the right of treasure trove was not part of the law of Ireland failing that, a constituent part of that right was the entitlement of the finder of treasure trove to a reward; that they the plaintiffs as finders of so much of the hoard as constituted treasure trove were entitled to such a reward and that on the facts of the case and, in particular, on the statements made on behalf of the State by the Director of the National Museum, that they had a legitimate expectation to a reasonable reward, enforceable in the courts. To deal with this claim it is necessary, in the first instance, to determine whether the right or prerogative of treasure trove is part of our law. The defendants have submitted that it is part of the law on two quite separate grounds.
Firstly, it is contended that the prerogative of treasure trove was a royalty or franchise within the territory of the Irish Free State and that as such it was expressly vested in the Irish Free State by the provision of Article II of the Constitution of the Irish Free State (the .1922 Constitution). That being so, it is argued, the provisions of Article 49.1 of the Constitution vest that prerogative in the People and the provisions of Article 49.2 provide that it shall be exercised by or on the authority of the Government.
The second and quite alternative ground on which it is alleged the prerogative of treasure trove has survived into the law of Ireland is an assertion that as part of the wider and more general right of bona vacantia it is an inherent and necessary attribute of a sovereign State and that since this State is by virtue of Article 5 of the Constitution declared to be a sovereign State that it must follow that it is entitled to the prerogative of treasures trove.
To examine these two contentions it is, in my view, necessary, as shortly as possible to consider the nature and to some extent the history of what is known in law as the prerogative of treasure trove.
Treasure trove as we know it, is a creature of the common law. It is part of the more general right of bona vacantia which is the common law of England belonged to the Crown. The general purpose of the vesting of the property in bona vacantia in the Crown is usually stated to have been to prevent the strife and contention to which title by occupancy might otherwise give rise in relation to goods, land or rights to which no one can make a lawful claim.With regard to that prerogative of treasure trove, however, it would seem clear that, historically, it also had the major purpose of being a source of revenue for the Royal Mint.
It applied only to valuable chattels which it could be established were concealed for the purpose of protecting them and with the intention of subsequently recovering them by the person who hid them and which were made of the precious metals of silver or gold, a combination of them or an alloy containing a substantial ingredient of either or both of them. The right of the Crown to the possession and ownership of such treasure trove was subject always to the obligation to restore it or its value to the ‘true owner’ if he could be found.
It would appear obvious that the confining according to the common law of the right of treasure trove to gold and silver objects or objects substantially made of either or both of these metals was directly associated with the purpose of enriching the Royal Mint, and it is stated in most of the textbooks concerning this topic that in early days treasure trove when recovered by the Crown was frequently melted down into coin …
By the 19th Century it is quite clear that the prerogative treasure trove in England and in Ireland continued to be exercised on behalf of the Crown by the Government of Great Britain and Ireland but for a purpose wholly different from that which had been its historical origin. Its purpose now clearly was the retention by the State, for the common good, of antiquarian objects, interest and value, which formed part of the heritage of the people …
In general terms, it would appear that at common law the payment of a reward to the finder of treasure trove was an act of grace and the finding and giving up of treasure trove to the State or its agent was not considered to confer on the finder any right enforceable at law to the payment of any particular reward or of a reward at all …
I agree with the view reached by the learned trial judge in this case that on the authority of Byrne v Ireland no royal prerogative in existence prior to the enactment of the Constitution of 1922 was by virtue of the provisions of that Constitution vested in the Irish Free State As is also set out in the decision in
Byrne v Ireland it must follow from this conclusion that the royal prerogatives were not prerogatives exercisable in Saorstat Eireann immediately before 11 December 1936 and were therefore not captured by Article 49.1 of the Constitution.
With regard to the second submission made by the defendants concerning the question of the prerogative of treasure trove, I have come to the following conclusions.
Article 5 of the Constitution declares that ‘Ireland is a Sovereign, Independent, Democratic State’.
Article 10.1 of the Constitution provides as follows:
All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body.
Article 10.3 provides as follows:
Provision may be made by law for the management of the property which belongs to the State by virtue of this Article and for the control of the alienation, whether temporary or permanent, of that property.
I am satisfied that the phrase ‘all royalties’ contained in Article 10.1 of the Constitution, construed in the light of Article 5, must be widely construed and must include one of the definitions of royalty to be found in the Shorter Oxford English Dictionary, namely, the sovereignty or sovereign rule of a State.
It would, I think, now be universally accepted, certainly by the People of Ireland, and by the people of most modern States, that one of the most important national assets belonging to the people is their heritage and knowledge of its true origins and the buildings and objects which constitute keys to their ancient history. If this be so, then it would appear to me to follow
that a necessary ingredient of sovereignty in a modern State and certainly in this State, having regard to the terms M the Constitution, with an emphasis on its historical origins and a constant concern for the common good is and
should be an ownership by the State of objects which constitute antiquities of importance which are discovered and which have no known owner. It would appear to me to be inconsistent with the framework of the society sought to be protected by the Constitution that such objects should become the exclusive property of those who by chance may find them.
The existence of such a general ingredient of the sovereignty of the State, does, however, seem to me to lead to the conclusion that the much more limited right of the prerogative of treasure trove known to the common law should be upheld not as a right derived from the Crown but rather as an inherent attribute of the sovereignty of the State which was recognised and declared by Article 11 of the 1922 Constitution.
For the purpose of determining the issues in this case, therefore, I would conclude that there does exist in the State a right or prerogative of treasure trove, the characteristics of which are the characteristics of the prerogative of treasure trove at common law which I have already outlined in this judgment as they stood in 1922.
As I have already indicated, it would appear that the characteristics of the right to prerogative of treasure trove at common law included the practice of rewarding a diligent and honest finder who revealed his find and yielded the object of it to the Crown. This practice is, however, apparently established as one of grace only and not conferring a legal right enforceable by the courts.
The plaintiffs’ alternative claim for the enforcement by this Court of a right of reward in respect of so much of the hoard as constituted treasure trove is based on an assertion that a combination of the practices both of the British Treasury prior to 1922 and of the State through the agency of the National Museum since that time and the particular conversations and conduct of the officials of the National Museum acting as agents for the State after the finding of this hoard gave to the plaintiffs a ‘legitimate expectation’ of the making to them of a substantial reward by the State which they are entitled to enforce in the courts …
It would appear that the doctrine of ‘legitimate expectation’ sometimes described as ‘reasonable expectation’, has not in those terms been the subject matter of any decision of our courts. However, the doctrine connoted by such expressions is but an aspect of the well-recognised equitable concept of promissory estoppel (which has been frequently applied in our courts), whereby a promise or representation as to intention may in certain circumstances be held binding on the representor or promisor …
When the parties to a transaction proceed on the basis that an underlying assumption – either of fact or of law- and whether due to misrepresentation or mistakes makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.
Applying the law as there stated, which seems to me to accord with fundamental equitable principles, I am satisfied that the unqualified assurance given to the first-named plaintiff by the Director of the National Museum that he (Mr Webb) would be honourably treated was an integral part of the transaction under which the hoard was deposited in the Museum and accepted on behalf of the State, and that the State cannot now go back on the assurance. It must be given effect to in the form of a monetary award of an amount which is reasonable in the light of all the relevant circumstances …
It is not necessary for the resolution of this case to choose between those two submissions. In my opinion the plaintiffs’ claim for compensation rests solidly on the fact that the assurance given to Mr Webb that he would be honourably treated (which should be held to mean that he would be reasonably rewarded) was an integral part of the transaction whereby he deposited the hoard in the National Museum. It would be inequitable and unjust if the State were to be allowed to repudiate that assurance and give only a meagre and disproportionate award. For the State to avoid giving the plaintiffs a reasonable reward would not be to treat them honourably …
Whilst I have already decided that the fact that the finding of them arose from an act of trespass, namely, the digging in the land to enter which they had an implied licence would, apart from other considerations, defeat any right they had to the possession of the objects as between them and the owners of the land, I do not consider that the extent and the nature of the trespass in this case, having regard in particular to the subsequent conduct of the plaintiffs with regard to the hoard, could or should, as a matter of public policy, disentitle them to a reasonable reward …
I would allow his appeal by setting aside the order appealed against and substituting for it an order …
McCARTHY J:
The Right Itself
… In Armory v Delamarie 1 Strange 505, a chimney-sweeper’s boy found a jewel (presumably in a chimney) and brought it to the defendant who was a goldsmith to know what it was; the goldsmith gave it to his apprentice who, under pretence of weighing it, took out the stones, and called to the goldsmith to let him know it came to three halfpence, where upon the goldsmith offered the boy the money; he refused to take it and insisted on having it back whereupon he got the socket without the stones. Pratt CJ ruled:
1. That the finder of a jewel, though he does not by such finding acquire an absolute property of ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover …
In Parker v British Airways Board [1982] Q.B. 1004; [1982] 1 All ER 834,
Donaldson L.J. cited Armory’s case at 837 stating that the rule as stated by Pratt CJ must be right as a general proposition and proceed to qualify it, particularly in the case of the trespassin.g finder. He said:
“The person vis-a-vis whom he· is a trespasser has a better title. The fundamental basis of this is clearly, public policy. Wrongdoers should not benefit from their wrong-doing. Jhis requirement would be met if the trespassing finder acquired no rights. That would, however, produce the free-for-all situation to which I have already referred, in that anyone could take the article from the trespassing finder. Accordingly, the common law has been obliged to give rights to someone else, the owner ex hypothesi being unknown. The obvious candidate is the occupier of the property on which the finder was trespassing. Curiously enough, it is difficult to find any case in which the rule is stated in this simple form, but I have no doubt that this is the law.”
Public policy is an unruly horse; it is a form of judicial policy making, in this instance to be used to establish a right in someone who was unaware of the subject matter of that right until it was brought to his attention by the person who is to be denied that right … I do not find it necessary to express any concluded view [but] I do not accept that the defendants have established a right consequent on the transaction of 7 July 1981 …
Reward
Whilst it may be contended that the plaintiffs were merely complying with law when they brought the Hoard to the attention of the National Museum, in my view, for the reasons that are set out in the judgment of the Chief Justice, they were entitled to rely on a legitimate expectation that the State would make to them a substantial reward and that they are entitled to enforce this in the courts. In this area of the case, indeed, I believe that public policy plays a significant role. Whatever criticism may be made of the plaintiffs in the use of metal detectors or for the fact that they dug below the surface in order to retrieve the Hoard, their subsequent conduct and attitude has been entirely praiseworthy; I would wish that I could say the same of those responsible for the assessing of the offer of £10,000 made to the plaintiffs, when the owners of the land ignorant of the existence of the treasure until found by the plaintiff and who had done nothing whatever save own the land, were each paid the sum of £25,000 from the same source.
I would allow this appeal accordingly and concur in the order proposed.