Unregistered Title
Cases
Estate of Oliver W. Mason v Richard Fitzgerald
Landed Estates’ Court.
23 February 1871
[1871] 5 I.L.T.R 183
Flanagan J.
Nov. 27, 1870, Feb 23, 1871
Feb 23—Flanagan, J.—The first question is whether the claim No. 6 on the schedule, being that of Arabella J. Mason or her representative to £1,000 with interest, is sufficiently proved or not. The case took a curious turn. The schedule was prepared by the solicitor of the petitioner, and returns this demand as created by an instrument of 1836, in which it is stated that Oliver Mason, the elder, and Oliver Mason, the younger, had charged the lands with £1,000 in favour of Arabella Mason. It is alleged, but must be proved, that the charge is merged and no longer exists.
I stated that the question of merger could not well be argued until a representative to Arabella Mason, who had died, was raised. Towards the end of the year 1869 Mr. Purfit became the representative of Arabella Mason. An affidavit has been made by Richard Fitzgerald to show that the claim had never been validly created, or was barred by the Statute of Limitations, a strange thing to do, considering that he was responsible for the preparation of the schedule. *183
The grandfather of the owner in 1809, his son being about to marry, executed a settlement. Having made a twenty-one years’ lease, with toties quoties covenant for renewal, he assigned it upon trust, in the event of there being younger children of the marriage, upon the death of Oliver Mason and his wife, to raise a sum of £1,000 for the benefit of the younger children of the marriage. There were only two children of the marriage, Oliver Mason and Arabella Mason, the latter of whom is returned on the schedule as No. 6.
On the 15th February, 1827, William Mason, the father of the owner, died. His wife died in 1830 On the 27th October, 1830, a bill was filed on behalf of the children to have their rights under the settlement of 1809 declared against their grandfather, Oliver Mason The cause was referied to the arbitration of the late Mr. Jackson and Mr. Bennett. The arbitration was proceeded with. In 1834 an award was made, finding that the petitioners were the only children, that Oliver and Arabella were entitled to an annuity of £200, and that Oliver was entitled to a term in the lands subject to £1,000. This award was confirmed by the Court of Chancery.
The first question is, what evidence is there of the contents of the instrument of 1809? It is not forthcoming, nor is there any copy of it, but a memorial registered apparently in 1809 has been produced and proved. It declares that the lands were assigned on trust to secure the payment of an annuity to the wife in the event of her surviving her husband, then in trust for the said William Mason, and to the several uses, &c. It is silent as to the existence of this sum of £1,000, and as to the trusts, uses, intents, and purposes, save so far as I have read them, but the next document is the award. The arbitrators appointed to decide the rights under that settlement found that the lands were subject to a charge of £1,000 for Arabella. So far there is nothing to show that the lands were vested in trustees by sale or mortgage to raise £1,000. But the next document is the deed of 1836, made between the grandfather and the owner. It would appear that Oliver Mason was tenant in tail, and therefore absolutely entitled, the property being a chattel interest.
A further instrument, the marriage settlement of 1843, under which the wife of the owner claims, recites the settlement of 1809, and that these lands were assigned upon trust amongst others for Oliver Mason when twenty one years of age: it proceeds to settle the lands subject to the £1,000 By a deed of 1845 James Shanahan, the representative of the surviving trustee of the settlement of 1809, assigned to Oliver J. Mason, subject to the trusts of that settlement. In 1854 Miss Mason died.
It is said that the effect of all these is, there being no proof of payment of interest or principal from 1854 to the present time, that the claim is barred by the Statute of Limitations. On the other hand it is said that the effect of all these instruments was to convey these lands upon trust, one of which was to raise and levy £1,000 for the benefit of Arabella Mason. If the latter allegation be well founded, the question upon the statute cannot arise, because the lands were vested upon an express trust. The effect of the assignment of 1845 was to make Oliver W. Mason a trustee in lieu of the existing trustee. The memorial of 1809 does not describe all the trusts—some it specifies, some it does not; but the award of 1834 is more full. If the case went no further than that, I should hold that this sum of £1,000 formed one of the trusts of the settlement of 1809.
This was not a fee simple estate, or one on which the Statute of Uses would operate in any way. The trusts could only have been equitable estates, and I do not know how this sum could have been raised, save through the intervention of a trust. But the deed of 1836 additionally shows that one of the trusts was to raise this sum; then the representative of the surviving trustee assigns the premises to the owner; the owner became an absolute trustee of the lands, subject to all the trusts of the settlement as much as if he had been one of the original trustees. I have no doubt that when the settlement of 1843 was prepared, the settlement of 1809 was forthcoming.
The other question is as to the interest, and for what period payable. There is no dispute. Originally the parties sought to make it payable from a period earlier than 1854. That contention is displaced, because it is shown that Miss Mason lived with her brother, who was in the habit of clothing her, and he did that in lieu of payment of interest. I must hold that the charge is in the personal representative of Arabella Mason.
Another question has been raised—one between, the petitioner and the wife of the owner She claims to be entitled to a contingent jointure of £100 per annum under the settlement of 1843. The petitioner claims under two mortgages of 1842 and 1848, one of which does not affect the lands of Aiglemore, the other does.
The produce of the lands of Aiglemore is what the parties are litigating about. The settlement is not registered; the mortgage is. If there was not notice, the latter has priority. It is alleged that Richard Fitzgerald, the father of the petitioner, who had the mortgage, and assigned it by voluntary assignment to his son, had notice It is said that there is shown —1, direct notice to Richard Fitzgerald himself; 2, implied notice— i.e., a letter to the solicitors employed by the father, Palmer and Tuite. Upon the first of these it is probably immaterial that I should express an opinion, because he had the other notice, which I call implied notice, because the solicitors had full notice of the settlement of 1843 If necessary I should hold that the memory of Mr. Fitzgerald had proved a little treacherous The petitioner, Mr Fitzgerald, is first cousin of Oliver W. Mason and of Mrs. Mason For a long time, since the latter was a boy, he took an active part in the management of all bis affairs; he took him to reside with himself. The petitioner says he did not approve of the marriage, and did not inquire into the particulars or whether there was a settlement. That may have been so, but the letters show a familiarity between the different parties. But I decide the question of notice simply on this, that Palmer, who proved and registered the mortgage, had full and distinct notice of the settlement, and whether he communicated it to his client (he swears he did) or not, it was notice to the Rev Mr Fitzgerald.—Rorke’s Estate, 14 Ir Ch R 442. [His Lordship stated the facts of that case.] The Court held that the order made by Judge Longfield was right. In Marjoribanks v. Hovenden, 6 Ir. Eq. R. 238, Lord St Leonards decided the same question. I shall place the mortgage puisne to the settlement. I allowed the petitioner to come forward in. order to displace his priority on the schedule. I think that Mr. Mason has very little merits in the case, but that I ought to give Mrs. Mason her costs.
In re Estate of M’Donogh
Chancery Division.—Land Judges.
1 January 1879
[1879] 13 I.L.T.R 170
Flanagan J.
Flanagan, J.
This application is made on behalf of the guardiam ad litem of the minor children of John M’Donogh to discharge the absolute order for sale. The motion is made on the ground that, the lands ordered to be sold being subject to the trusts of a certain settlement at the time the conveyance was made under which the petitioners claim to have a charge upon the lands, that the owner could not give them such a charge.
The facts of the case are very simple, and are sufficiently stated in the notice. On the 23rd March, 1853, Francis M’Donogh executed a voluntary settlement by which he conveyed the lands to trustees to the use of himself for life with remainder to the use of his eldest son, the owner, for life, with remainder in tail to the successive sons and daughters of the owner, and he also charged the lands with £500 for younger children; and now the children of the second marriage claim to be entitled to the £500.
The settlement of 1853 was, in the first place, a voluntary one, and in the second, it was not registered. The lands included in that instrument were, by a subsequent voluntary settlement, conveyed to the owner in fee. This latter settlement was registered the 23rd of May, 1859, whereas the earlier one has never been registered.
I have no evidence before me whether John M’Donogh was aware of the existence of a previous settlement; but he gave the Bank of Ireland an equitable mortgage by way of deposit of the subsequent one.
The question then arose between the claims of the children under the previous settlement and those of the Bank, and, wishing to have the parties before me, I accordingly gave directions that a guardian ad litem should be appointed in order that if the children should come forward to assert their rights under the deed of 1853 they would be properly represented.
It is simply a question of priority; and I do not entertain a shadow of a doubt that, on the construction of the Registry Act, the bank have priority over the claims of the children.
Now, to take it step by step—the first thing is that the settlement of 1853 is a voluntary one.
There can be no question then that, putting notice aside, the settlement of 1855, by its registration in 1859, is prior to that of 1853, on the authority of the case decided by Lord St. Leonards—Drew v. Lord Norberry, 3 Jo & La. 303—where it was taken as an elementary rule that the 4th section of the statute of Anne applies to all conveyances, whether they are for value or not. Therefore, in my opinion, putting notice aside, the effect of the registration of the conveyance of 1855 is to give it priority over the settlement of 1853, and John M’Donogh would have all the estate of Francis vested in him without any right or title in the parties claiming under the voluntary settlement.
The registration by the bank is quite immaterial, but they did register their equitable mortgage as a matter of fact, and are besides purchasers for valuable consideration; and, as claiming as such purchasers under a registered instrument, they have priority over all claiming under the conveyance of 1853.
Mr. Leech’s argument is that John M’Donogh, having notice, and his conscience being affected by that notice, his mortgage to the bank only operated to the extent that it would operate if the bank had notice. The effect of that notice, notwithstanding the force of the Registry Acts, was that John M’Donogh took the estate subject to the trusts of the settlement of 1853, and the bank were entitled to get only the interest John M’Donogh had.
The bank were entitled to all the interest John M’Donogh could have, from the fact that there was no evidence of notice; but even if there were notice, how could that affect the bank?
I shall assume, for the sake of argument, that John M’Donogh had notice of the deed of 1853—how does that affect the bank? That notice only affected his conscience, but it did not bind the estate; and I never heard that it could have the effect of binding the estate.
It was pressed very much by Mr. Leech that this case was ruled by the case of Newman v. Rusham, 17 Q. B. 723, but it has nothing to do with this case. It was argued here that in that case it was held that a party claiming under a prior voluntary conveyance had a better title than a purchaser for value from a subsequent voluntary grantee. It was not that exactly: it was the case of a purchaser from the devisee of one who had made a voluntary conveyance in his lifetime endeavouring to avoid the voluntary conveyance under the stat. 27 Eliz., c. 4, and it was held that the case was not within the statute.
Suppose the question had arisen under the Registry Acts. Can it be supposed that if there be one voluntary deed not registered and another one registered, and the 5th sec. of the Registration Act coming in and saying that the unregistered deed shall be deemed fraudulent and void against the registered one, that a purchaser from the grantee under the registered deed will not be entitled as against the grantee of the unregistered deed?
Mr. Leech stated that Flood’s Estate, ubi sup., was not law. I do not express an opinion as to whether it is or is not law, but this case has no analogy to it.
The order which I shall make is, that I will refuse the application of Mr. Leech’s client, but without costs.
Estate of John Stanley and Others,
Owners v Charles Stanley and James Crooks Bell
Landed Estates’ Court.
10 March 1871
[1871] 5 I.L.T.R 82
Lynch J.
Feb. 13; March 10, 1871
March 10.—Lynch, J.—It appears that at the time of the execution of the mortgage to Mr Meredith Armstrong the judgment No. 9 on the schedule which had been obtained in 1848 had not been re registered pursuant to the statute, and was only registered as a mortgage in 1862, and it is admitted that unless saved from the operation of the act it does not affect the lands as against the mortgage. But then it is alleged that the mortgagee had notice of this judgment, and cannot, therefore, insist on this legal bar to its recovery. As to notice, in addition to the affidavits filed, Mr. Noble, who was present on the occasion of carrying out the mortgage contract, was examined. He deposed that he attended on behalf of Mr Armstrong, as his friend, and that Mr. Barker, who acted as the attorney of Mr. Armstrong, was also present, and he stated that this judgment was then stated to be due, and in consequence of the outstanding charges appearing, other (the Pavilion) lands were added as a further security. Therefore, I think, as far as the question of notice is concerned that the mortgagee is affected with direct notice of the existence of the judgment, and the fact that the mortgagee owed the amount of it, but he had not notice of any infirmity in the title of the judgment creditor. The discussion was as to the amount of the security offered, and upon the statement of this and other charges the demand for further security was made. It is contended here on behalf of the judgment creditor that notice of this judgment being proved, the case falls within the well-known rules of Courts of Equity, originating mainly in the Registry Statutes, which make notice equivalent to registration as regards all persons affected by it, inasmuch as thereby the mischiefs guarded against by the statutes do not then arise. These rules have often been complained of as causing great confusion, and much injustice, and the current of modern decisions tends rather to limit than to extend the principle of them. In favour of the extension of the rule that notice should bind the conscience of the party seeking the advantage of the statutes two classes of cases have been made. 1. That in which the avoidance of the conveyance is enacted to prevent the mischief arising from ignorance produced by the nonobservance of the statute. 2. That in which the avoidance is created on grounds of public policy, but this latter leaves scope for arbitrary selection, and it is hard to fix precisely where the distinction arises in cases where the avoidance is in favour of a particular class In this case on its facts a distinction has been sought to be made between it and Beere v. Head. It is said that here the mortgagee had distinct notice not only that the judgment existed, but that the sum secured was due. But according to the doctrines of notice in Courts of Equity it seems to me that the notice was larger, and of a more binding character in Beere v. Head than in this case. There there was not only notice of the judgment but of provision existing as to its payment, and that it stood a charge provided for out of the property. In this case the notice to the creditor only arose out of the general statement of the liabilities on the property; and the amount so stated included this judgment, and the creditor’s only act thereupon was that in measuring the security he allowed this with the others as prior charges in his calculation. How did this act fairly bind him not to object to the legal validity of the charge when sought to be enforced against him? Supposing no such judgment at all had been entered, would he be bound by any equity in the matter? Is the mortgagee here to be bound as a guarantor of the statements made to him? In my opinion the notice here is of a weaker kind altogether than the notice in Beere v. Head, and, therefore, I am bound to follow Beere v. Head, which in principle plainly rules this case. I must, therefore, allow this mortgage to stand as a charge prior to the judgment
Estate of Dooley, Owner and Petitioner
Landed Estates Court.
23 June 1874
[1874] 8 I.L.T.R 141
Flanagan J.
June 23, 1874.
Voluntary deed—Effect of marriage of person taking interest under a voluntary deed—Ex post facto consideration—Registry Acts.
D. in 1840, by a voluntary deed, duly registered, charged certain sums of money on land in favour of his three daughters. M. subsequently married one of them, being aware of the charge in her favour, and understanding it was to be paid, and a settlement, unregistered, granting said charge to M. on trust, was executed in 1848, on the marriage. D. in 1871, by a registered lease, demised the lands to his son at a gross undervalue.
Held,
(1) That the marriage imported valuable consideration into the voluntary deed of 1840, and that the lessee was not a purchaser for value so as to entitle him to defeat the prior voluntary deed.
(2) That, assuming the lessee under the registered lease of 1871 to have been a purchaser for value, he was not entitled to priority, as the purchaser for value under the unregistered settlement of 1848 was entitled to fall back on the registered deed of 1840. In re Flood’s Estate, 13 Ir. Ch. R. 315, followed.
Charge and discharge. The petition was filed for the sale of certain leasehold lands, for the residue of the respective terms for which the same were held. Thomas Dooley, the father of the petitioner, Jonathan Edwin Dooley, had previously been owner of the premises, and being such owner, he, by a voluntary deed, bearing date the 24th December, 1840, assigned the premises, for the residue of the respective terms, to two trustees, upon trust to permit the said Thomas Dooley to hold the same during his life, and after his decease to raise by sale or mortgage the sum of £2,800, with interest at 6 per cent., for his three daughters, in the following shares, viz., for Charlotte Anne Dooley, £1,000; for Emily Georgina Dooley, £1,000; and for Sophia Mary Dooley, £800. That deed was registered on the 15th May, 1841. Charlotte Anne Dooley died in 1859, having by her will, dated the 2nd November in that year, bequeathed one moiety of the said sum of £1,000 to the petitioner, and the other moiety thereof to her brother, Edwin Arthur Dooley, and her sister, Emily Georgina Dooley; and she appointed the petitioner sole executor of her will. Emily Georgina Dooley was married in 1848 to John Mason, one of the chargeants. On the 29th April, 1871, Thomas Dooley granted a lease of the premises to his son, at a rent of £2 12s. 8d. an acre, and shortly afterwards, in the same year, Thomas Dooley died, having by his will, dated the 25th May, 1866, appointed the petitioner his sole executor, of which will probate was granted to the petitioner. The absolute order for sale was made, and the consolidated final notice to tenants was filed in May, 1874. An objection thereto was filed by John H. S. Mason, John Mason, and Emily Georgina Mason, otherwise Dooley, incumbrancers on the lands: and subsequently, on the 18th May, 1874, a charge was filed by the objectors. The charge stated, in substance, that the chargeants objected to the lease of the 29th April, 1871, from Thomas Dooley to Jonathan Edwin Dooley, the owner, being set out in the rental, and to the lands therein mentioned being sold subject to said lease, and charged that the lands should be stated to be in the occupation of the owner. The reasons assigned were that, by the deed of December, 1840, Thomas Dooley granted the lands in this matter to the trustees upon trust amongst others to raise thereout the sum of £1,000 for Emily Georgina Mason, otherwise Dooley; that, by the settlement made on the marriage of John Mason with the said Emily Georgina Dooley, the said charge of £1,000 was granted to John H. S. Mason, upon the trusts therein mentioned; that the deed of 1840 reserved to the said Thomas Dooley a power to lease the lands at the best rent that could be had for the same, but that the lease of the 29th April, 1871, was made at a gross undervalue, and that the rent thereby reserved was not the best rent, and that, if said lease should be declared valid and binding on said lands, the charge of £1,000 would not be paid in full. The chargeants, also, stated that John Mason married Miss Dooley on the faith of the charge of £1,000 being paid to him, and charged that the marriage of 1848 should be declared a sufficient consideration for the voluntary deed of December, 1840. To this charge Jonathan Edwin Dooley, the owner, on the 22nd May, filed a discharge, and stated therein that he did not know that the sum of £1,000 was promised to John Mason at the time of the treaty of marriage with his sister, and that he was ignorant of the alleged settlement of 1848; that the lease of April, 1871 was made to him at a fair letting value by his father, and for valuable consideration, and was therefore a valid execution of the leasing power in the deed of December, 1840, and that the lease of April, 1871, was registered and ought not, therefore, to be affected by the previous unregistered settlement, of which he averred that he had no notice.
Richey, Q.C. (with him Meredith ), for the chargeants.— The lands should be sold discharged of the lease of April, 1871. There are two questions—1st. Is the lease of 1871 a deed for valuable consideration, which would override the deed of December, 1840? 2nd. If it is not, then is it a good execution of the power of leasing contained in the deed of December, 1840? The provision made by a voluntary deed, and afterwards acted upon, as in this case by the marriage and the settlement, operates retrospectively upon the original deed and makes it a contract for value: Guardian Assurance Company v. Lord Avonmore, Ir. Rep. 6 Eq. 391; May, Fraud Conv. 300, 302. This case is stronger than the Guardian Assurance Company v. Lord Avonmore, for here there is not only the marriage to make the prior deed a contract for value, but there is also the marriage settlement. The deed of 1840 was known to John Mason, and he was aware of its contents and the gifts which it conferred. On the other hand, it is contended that the lease was registered and obtained bonâ fide and for value, and that the settlement was not registered. But the contest here is not between the settlement and the lease, but between the deed of 1840 and the lease. Now, the deed of 1840 is registered, and by means of the settlement and the marriage it became a deed for valuable consideration. The only way that Jonathan Dooley could claim to establish this lease is under the leasing power of the deed of 1840. But the power contained in that deed provides that the best rent shall be reserved, which has not been done here. The average head-rent is £5 5s. 10d. per acre (exclusive of the house, garden, &c.), so that the rent, being £2 12s. 8d., is just one-half of the head-rent. This includes all the lands, except the house, garden, avenue, &c., which, on account of their ruinous condition, are unsaleable.
Fitzgibbon, Q.C. (with him Kaye ), contra.—The owner has a right to priority over the voluntary deed of 1840. *141 It has been stated that by the marriage settlement, an ex post facto consideration was created by the deed; but that cannot affect a purchaser who had no notice. If it could it would open a door to great fraud. Suppose a voluntary deed were registered, and the deed making it a valuable contract were not registered, a person could thus be bound by something not on the registry. In Lord Avonmore’s case there was no registration. This is a case of purchase for value without notice, and the lease was registered. Takers under voluntary settlements, to which ex post facto considerations attach, are not purchasers: May, Fraud. Conv. 206. The deed of 1840 can only be dealt with as a contract for value if the rights of third parties are not interfered with.
Flanagan, J.—This case comes before me on an objection to the consolidated notice to tenants. On that notice Jonathan E. Dooley was returned as entitled to a lease of a holding, from his father, for thirty-five years. To this notice an objection has been filed by John Mason, the point of which is that the lease was made at a gross undervalue, and that if it be allowed to stand, the funds would not be enough to pay the charges. The petition was filed by J. E. Dooley to raise the charges of £1,000 each, which were put on by the father, Thomas Dooley, by a deed of December, 1840. Thomas Dooley, by the deed of December, 1840, assigned to trustees all the lands ordered to be sold in this matter upon trust for himself for life, and then to raise portions for each of his daughters; and the deed contained a power of leasing the lands at the best rent. It is not necessary to trace these to each daughter; the owner is entitled beneficially to some part, and as a trustee to another part. In 1848 John Mason married one daughter, for whom £1,000 was provided, and a settlement was executed upon the marriage. It appears that J. E. Dooley lived with his father and managed his property, and this being so, in 1871 Thomas Dooley granted to his son the lease which is now objected to; and the objection is that the lease was made at a gross undervalue, and that it brought in a less sum than the head-rent payable out of the lands. J. E. Dooley says that the deed of December, 1840, is a voluntary deed, and that he is a purchaser for value, under a registered lease, and therefore that he is entitled as against parties claiming under a prior unregistered deed. As to the evidence concerning the value, I have no hesitation in holding that the lands were leased at a gross undervalue, and that the rent of £70 a-year was a totally inadequate letting value of the lands. It appears from the map that J. E. Dooley got all the interest in the land, except a very inconsiderable portion, and except also a small plot on which some cottages are built, and also the court-house and constabulary barrack, and the piece of ground on which they are built. The property is held under five different leases under the Corporation of Dublin, and the rent reserved to the Corporation is double the amount of the rent paid by J. E. Dooley. The rent reserved to the Corporation is £5 an acre, and it is manifest to me that (on the valuation of Messrs. Brassington and Gale) the rent now paid is not the best rent obtainable. Assuming this to be so, the question arises, Is this a bonâ fide purchase for value, so as to enable the purchaser to defeat a prior unregistered deed? I am of opinion that it is not; and I do not think that a party getting a lease at one-half the value of the lands is a purchaser for value within that class of cases which enable such purchaser to defeat a prior voluntary deed. In my opinion the lease is as voluntary as the prior deed, and is in fact a settlement by the father upon the son. Looking at the lease in that way, it cannot be said that J. E. Dooley was a purchaser for value. Now the settlement of 1848 was made upon the marriage, and imported a valuable consideration to the deed of 1840; though it could not, of course, defeat intermediate purchasers between 1840 and 1848. That principle was established in O’Donovan v. Rogers, 7 Ir. Ch. 1. Assuming J. E. Dooley to have been a purchaser for value under the deed of 1871, the further question arises under the Registry Acts—there being, 1st, a voluntary deed of 1840, registered; 2nd, a settlement of 1848, unregistered; and 3rd, a lease of 1871, registered—whether the lease of 1871, registered before the settlement of 1848 but after the deed of 1840, obtains priority thereby? The case of In re Flood’s Estate, 13 Ir. Ch. Rep. 315, is identical with the present one, and governs it. In that case, Mr. Edward Flood, by a deed of the 16th January, 1853, conveyed the inheritance in remainder expectant on his own decease (subject to a charge for his children, raisable at his death) to Edward Flood, junior. That deed was registered two days afterwards. Prior to this date (on the 18th October, 1852) Mr. Edward Flood demised part of the lands to William Roe, for three lives or thirty-one years, at the rent of £110. That lease was not registered until the 25th of May, 1854, and it appeared that Edward Flood, junior, had notice of that lease at the time of the execution of the lease of 1853. Then, by a deed of November, 1857, Edward Flood, junior, mortgaged his reversion to Allen and Thomas Leech, who had not notice of the lease. It was decided by Judge Hargreave that, whether the deed of January, 1853, was a voluntary deed or a deed for value, the mortgagees were entitled to priority over the lease of 1852, and that their title was not affected by the intermediate registration of the lease. If that case is sound law—and it is not for me to question it—that is an a fortiori case to this, because in that case the deed for value was prior to the voluntary deed, whereas here the lease for value was executed long after the voluntary deed. Therefore, even treating the lease as a deed for value, the purchaser for value under the settlement of 1848 can fall back on the registered deed of 1840. Whether, then, it is a question of purchase for value, or of registration, I hold that the lease must be postponed to the deed of 1840. I therefore direct that the lands shall be sold discharged of the lease; nor will that injure Mr. J. E. Dooley, as he is interested beneficially in the lands himself. Each party is entitled to his costs, but Mr. Mason to have the priority.
Murphy -v- Registry of Deeds & Anor
[2011] IEHC 320 (09 August 2011)
Court: High Court
Composition of Court:
Judgment by: Kearns J.
Status of Judgment: Approved
Neutral Citation Number: [2011] IEHC 320
THE HIGH COURT
2011 380 JR
BETWEEN
UNA MARIAN MURPHY (ACTING IN HER CAPACITY AS ATTORNEY TO MR. DESMOND PETER MURPHY)
APPLICANT
AND
REGISTRY OF DEEDS AND PROPERTY REGISTRATION AUTHORITY
RESPONDENTS
AND
BY ORDER, PATRICK EMEK
NOTICE PARTY
JUDGMENT of Kearns P. delivered the 9th day of August, 2011
This is an application for judicial review in which the applicant seeks an order of certiorari to review and/or rectify alleged omissions or errors made by the Registry of Deeds and Property Registration Authority whereby the property interest in 14, Grattan Street, Dublin 2 was first registered then later vested in the Notice Party. The order is sought on the grounds that the heirs of all beneficiaries named in the Will of a Mr. Patrick Murphy who died in 1944 are entitled to a 1/6th share in the assets of his estate; more specifically, the order is sought on the grounds that Mr. Desmond Peter Murphy, who now resides in Australia, is the last surviving beneficiary named in the Will of Mr. Patrick Murphy, and as such is said to be entitled to a 1/6th share of the estate, which at present consists solely of the premises at 14, Grattan Street, Dublin 2. The applicant is a daughter of Desmond Peter Murphy.
BACKGROUND FACTS
The facts leading to this dispute arise out of the terms of a Will pertaining to the estate of the late Mr. Patrick Murphy, who died on the 19th October, 1944. The relevant terms of the Will indicate that Mr. Murphy sought to bequeath his interest in his estate to his Trustees upon trust for his six children in equal shares; a dispute now arises between the named beneficiaries and their successors-in-title as to their current entitlements to the estate’s sole remaining asset, the premises at 14, Grattan Street, Dublin 2 (hereinafter “the Premises”). The submissions of the parties indicate that the deceased held a leasehold interest in the property limited to a term of years under a 1926 sub-lease.
On the 15th September, 1975, an assignment by deed of the premises was made to Mr. Patrick Emek, the notice party, registering him as owner of this leasehold property. Mr. Emek is the son of Miss Norah Murphy, one of the six named beneficiaries in Mr. Patrick Murphy’s will. The assignment to him was registered by him in the Registry of Deeds in 1976 and bears the Book number 1975-I25-17. Mr. Patrick Emek then later used his assignment to purchase a vesting certificate under the Landlord and Tenant (Ground Rent) (No2) Act, 1978. The Property Registration Authority issued the vesting certificate, No. 1217-86, to Mr. Patrick Emek on 27th August, 1986. Accordingly, Mr. Emek now holds title to the Premises in fee simple.
The applicant takes issue with the legality and validity of both of these transactions, and asserts that they contain defects amounting to fraud. By order of Peart J. dated the 23rd May, 2011, the applicant was granted leave to apply for judicial review.
THE APPLICANT’S SUBMISSIONS
The applicant, purporting to act on behalf of her father Mr. Desmond Peter Murphy, contends that assignment of the property to Mr. Emek was improper, and was effected without due care, as was the granting of the vesting certificate by the Property Registration Authority. She contends that both of the aforesaid transactions were executed without the knowledge or consent of Mr. Patrick Murphy’s beneficiaries, who had lawful interest in the property under the terms of his will. Thus, she submits that this court should set aside the assignment made in 1975 and the issuance of vesting certificate in 1986, and order that the Property Registration Authority and Registry of Deeds investigate the matter further to ascertain whether the abnormalities she has purportedly uncovered amount to fraud.
In support of her submissions, the applicant has presented voluminous documentation resulting from her own extensive research and inquiries into the background circumstances which she believes may be relevant to her call for an “Inquiry” by the Court into this entire matter. However, that material does not require to be addressed in this ruling for the reasons hereinafter set out.
THE RESPONDENT’S SUBMISSIONS
The respondents have in turn sought relief from the Court. Counsel for the respondent submits that the leave be set aside and the application dismissed as being frivolous and/or vexatious and/or doomed to fail on the basis that they do not disclose a cause of action and are an abuse of process.
In seeking such an order, counsel for the respondent contended that the facts as set out in the relevant affidavits fail to disclose any cause of action against the respondents. Counsel points out that the deceased’s interest in the Premises was limited to those of a lessee under a 1926 Sub-Lease. It is argued that the registration of assignment in 1975 and issuance of vesting certificate in 1986 do not affect this leasehold interest, as they pertain to an intermediate leasehold interest and to the freehold interest, respectively; thus, neither transaction complained of actually affects the rights and interests of the beneficiaries under his Will, and concern separate property interests in the Premises.
Counsel further submitted that, even if a stateable claim had been put forth, the application must inevitably fail on the basis of delay. Order 84 Rule 21 of the Rules of this court provide in pertinent part that:
“(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made.”
Thus, the applicant had six months from the registration of assignment and six months from the issuance of vesting certificate to seek to quash these respective actions of the respondents, assuming the dispute is justiciable, by means of judicial review. Counsel contended that the relevant time limits have been grossly and inordinately exceeded in this case with no justifiable explanation, and that the claim would inevitably fail on this ground alone if it proceeded to a substantive hearing.
Counsel for the respondent also asserts that matters dealing with the property entitlements of various beneficiaries are not matters which attract the remedy of certiorari and are not appropriately matters for court intervention by judicial review. In particular, it is argued that this is essentially a private dispute with no points of public law at issue. The complaint brought by the applicant concerns the respective rights and entitlement to the residue of the term of years created by the 1926 Sub-Lease and/or the subsequent administration of the late Mr. Patrick Murphy’s estate; as set forth above, neither of the challenged transactions are adjudicative mechanisms amenable to judicial review, nor does either transaction affect the sub-leasehold interest held by the estate of the deceased and merely involve a private dispute as to superior title between the parties.
Counsel for the respondent also applies for this court to set aside leave to apply for judicial review. In support of this application, counsel refers to the judgment of Finlay C.J. in G. v. Director of Public Prosecutions [1994] 1 I.R. 374, setting forth the factors that an applicant for judicial review must satisfy on a prima facie basis in his or her submissions and affidavits:
“(a) that he has a sufficient interest in the matter to which the application relates to comply with Order 84 rule 20 (4);
(b) that the facts averred in the Affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review;
(c) that on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks;
(d) that the application has been made promptly and in any event within the tree months or six months time limits provided for in Order 84, rule 21 of the Rules of the Superior Courts, or that the Court is satisfied that there is a good reason for extending the time limit.”
Counsel for the respondents submitted that the applicant fails each of these tests.
DECISION
At the outset I must state my clear view that the applicant lacks locus standi to bring this application. She purports to act on behalf of her father who lives in Australia. No reason has been offered as to why he cannot himself prosecute any supposed claim he may have arising from his late father’s will. The applicant has failed to produce a power of attorney or other documentation from her father which would indicate his support for the bringing of this application. For all the Court knows, he might be totally opposed to the course of action embarked upon by his daughter or be quite unaware of it. The application must fail on that ground alone.
The complaints of the applicant herein relate to the entitlements of the beneficiaries named in the will of Patrick Murphy who died on 19th October, 1944. It would appear that the sole interest of Patrick Murphy in the premises the subject matter of the 1975 assignment (i.e., 14, Grattan Street) was to the residue of a term of years created by an Indenture of Lease made on 14th August, 1926. The 1975 Assignment did not relate to that leasehold interest.
The effect of registration of the 1975 Assignment does not adjudicate on any dispute between the parties to the said Assignment, either inter se or with any other person, as to any right or entitlement to the premises in question. The claim of the applicant (if any) does not therefore lie within the scope of judicial review. The act of the Registry of Deeds in registering the said Indenture is not amenable to such a remedy, nor can this court direct or undertake “an Inquiry” as sought by the applicant. Furthermore, the applicant conceded in court that the fact of the registration of the assignment had been known for many years going back to 1976, a fact which firmly precludes resort to a judicial review remedy in the light of the requirements of Order 84 of the Rules of the Superior Courts.
On 25th August 1986 the Land Registry issued a vesting certificate to the Notice Party pursuant to s.22 of the Landlord and Tenant (Ground Rents) Acts (No.2) 1978. This application was made with the consent of the owner of the fee simple pursuant to the provisions of Part III of the Act of 1978. The Notice Party made this application in his capacity as the person entitled to the residue of the term of years created by a lease of 1863, and the Registrar of Titles, being satisfied that the application to him pursuant to s. 20 of the Act of 1978 had been duly made, issued the Vesting Certificate. His only function was to ensure that the application had been made in prescribed form and was accompanied by the consent of the owner in fee simple. He was so satisfied and was thus entitled to issue the certificate which did not affect the entitlement of any person to the residue of the term of years created by the sub-lease of 1926.
As in the case of the registration of 1975 assignment, I do not believe the action of the Registrar of Titles in 1986 in issuing the vesting certificate is a matter amenable to judicial review. This court does not have jurisdiction to direct “an Inquiry” as sought by the applicant. Even if it had, no question of a remedy by way of judicial review could arise after the enormous delay since the time of issue of the Vesting Certificate.
The applicant does not appear to understand that the complaints she is endeavouring to make, ostensibly on her father’s behalf, relate to a private dispute between her father and the Notice Party, and possibly other family members, as to their respective rights and entitlements to the residue of a term of years created by the lease of 1926 and in the administration of the estate of Patrick Murphy deceased. The applicant -or, more accurately, her father – can assert an interest under the 1926 lease by proceedings other than judicial review proceedings brought in a court of competent jurisdiction. Similarly the applicant may seek in other proceedings to set aside the assignment of 1975 and the vesting certificate of 1986, albeit that any such proceedings may well be now met by a plea that they are statute barred.
For all of these reasons I refuse the relief sough herein by the applicant and will grant the reliefs sought by the respondents herein