Buggy v.Maher

CourtSupreme Court (Irish Free State)
Judgment Date01 January 1927
Date01 January 1927
Docket Number(1924. No. 6756.)

Supreme Court.

J. C.

(1924. No. 6756.)
Buggy v. Maher.

Husband and wife - Marriage before 1883 - Wife's chattel real - Husband paying rent and getting fair rent fixed - Purchase by husband under Land Purchase Acts - Husband's title registered under the Local Registration of Title (Ir.) Act, 1891, subject to equities - Husband predeceasing wife - Whether chattel real vested in wife by survivorship - Graft - Purchase of Land (Ir.) Act, 1885 (48 & 49 Vict. c. 73),sect. 8 - Land Law (Ir.) Act, 1887 (50 & 51 Vict. c. 33), sect. 14,sub-sect. 3 - Local Registration of Title (Ir.) Act, 1891 (54 & 55Vict. c. 66), sect. 73, sub-sect. 2, sect. 84, sub-sect. 1, sect. 86, sub-sect.1 - Petition to the King for special leave to appeal - Leave refused.

New Trial Motion.

By an order made by O'Shaughnessy J., dated March 19th, 1925, the plaintiff was granted possession of part of the lands of Knockelly, together with the dwelling-house known as "The Cottage," and all the buildings thereon, situate in the Barony of Middlethird and County of Tipperary. The defendants now applied for an order that the findings of the Judge on the trial of the action and the judgment directed to be entered for the plaintiff might be set aside, and judgment entered for them, on the ground that the verdict was against the evidence and the weight of evidence, and that there was no evidence to support the findings and verdict, and on the ground of misdirection and non-direction of the Judge; or, in the alternative, that a new trial be had between the parties.

James Kenrick married Catherine Maher, the sister of the defendants, on October 27th, 1881. John Maher, the father of Catherine Maher, was tenant from year to year of the farm at Knockelly, the subject of these proceedings, and he and all his family resided there until the marriage of Catherine to James Kenrick. Immediately after the marriage the Maher family left the farm and took up their residence in Fethard. The farm was the marriage portion of Catherine Maher, but there was a conflict of evidence as to whether the farm was transferred before the marriage by her father to her or to her husband. Shortly after the marriage (in 1882) the name of her husband, James Kenrick, was entered as tenant in the landlord's books. In 1895 he got a fair rent fixed under the Land Act of 1881. In April, 1908, he purchased the holding under the Land Purchase Act of 1903, and it was vested in him by fiat of the Irish Land Commission, dated April 16th, 1908. He was registered under the Local Registration of Title (Ir.) Act, 1891, as owner in fee-simple, subject to equities. He lived on the farm with his wife until his death on November 14th, 1920. By his will, dated August 9th, 1915, he devised the farm, with a considerable quantity of stock, to the plaintiff, Nora Mary Buggy, who was his niece, and who had lived with him until her marriage to William Buggy in 1908. The will was proved in solemn form by William Buggy, who was one of the executors, the other having renounced. The widow, Catherine Kenrick, however, remained in possession, and was joined there by her brothers, the defendants. A considerable amount of stock, which the plaintiff valued at over £2,000, was seized by the defendants and sold for their own benefit. The widow, Catherine Kenrick, died on the 7th November, 1921, and since that date the defendants had remained in occupation of the farm. It was not proved that Catherine died intestate, although it was so alleged by the defendants. No administration was taken out to her by any of the defendants, who defied the attempts made by the personal representative of James Kenrick to administer his estate. William Buggy had instituted proceedings against the defendants for the recovery of possession of the farm, and had obtained judgment for possession in default of appearance, and a writ of possession had been issued on February 3rd, 1922, on foot of the judgment, and transmitted to the Sheriff for execution, but in consequence of the then state of the country it was found impossible to execute it during the lifetime of William Buggy. After his death the plaintiff took out a grant de bonis non, with the will annexed, as residuary legatee of James Kenrick, and applied for liberty to renew the writ of possession. Defendants appeared on the motion and made the case that the writ in the action at the suit of William Buggy had never been served upon them. As it appeared that the plaintiff had then issued the writ in the present action, it was ordered that no rule should be made upon the application for leave to issue execution, and that plaintiff should be allowed to amend her writ by adding to the indorsement thereon an averment that she sued as personal representative of James Kenrick, deceased, and also in her personal capacity, and that the action should be tried by a Judge without a jury and without further pleadings. The action was tried by O'Shaughnessy J., who gave judgment for possession. He found as a fact that James Kenrick became tenant of the farm in 1881, and that his wife, Catherine, was never at any time tenant.

The defendants petitioned His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council under Art. 66 of the Constitution of the Irish Free State (1).

The marriage portion of a woman, married in 1881, was a certain farm which was held by her father under a tenancy from year to year. There was a conflict of evidence as to whether her father transferred the farm before the marriage to her or to her husband. After the marriage the husband's name was entered as tenant in the landlord's books and he paid the rent until 1895, when a fair rent was fixed under the Land Act of 1881. The husband's name remained in the landlord's books until 1908, when he purchased the holding under the Land Act, 1903. He was registered under the Local Registration of Title (Ir.) Act, 1891, as owner in fee-simple, subject to equities. He predeceased his wife. She remained in possession of the farm, and was joined by her brothers, the defendants, who seized the stock and assets of the husband and prevented his personal representative administering his estate. Subsequently the wife died, it was not proved whether intestate or not, and no administration was taken out to her. After her death the defendants continued in possession of the farm. The husband, by his will, had devised the farm to the plaintiff, and she, suing as devisee and his personal representative, sought to recover possession of the farm. O'Shaughnessy J. made an order for possession. Defendants applied to have the judgment set aside, and that judgment be entered for them, contending that the farm was transferred to the wife before her marriage; that, as her chattel real which had not been alienated by her husband, during his lifetime, it vested in her by survivorship, that it did not pass under her husband's will, and that the plaintiff was not entitled to claim possession.

Held by the Supreme Court, that the judgment of O'Shaughnessy J. must be affirmed:

Per Kennedy C.J. and FitzGibbon J.—Because the purchase by the husband of the fee-simple of the holding was absolutely inconsistent with the continuance of a present tenancy, and he had power to destroy the tenancy for the purpose of acquiring the fee, and there was no fiduciary or quasi-fiduciary relation between him and his wife...

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