C (M) v S (B)

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 17 June 2008
• Neutral Citation: [2008] JILL-HC 061701
• Judgment citation (vLex): [2008] 6 JIC 1705
• Court: High Court
• Date: 17 June 2008

[2008] JILL-HC 061701

THE HIGH COURT

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

[No. 79 C A./2007]

[Circuit Appeal No. 7013/02]

C (M) v S (B)

IN THE MATTER OF THE PARTITION ACTS 1868-1876 AND

IN THE MATTER OF THE PREMISES SITUATE AT 39 LC DUBLIN 15

BETWEEN

M.C.

APPLICANT

AND

B.S.

RESPONDENT

PARTITION ACT 1876

O'D v O'D UNREP MURPHY 18.11.1983 1984/8/2595

F (F) v F (C) 1987 ILRM 1 1986/6/550

NICHOLLS BRITTON 1290-1292 BK 3

LITTLETON THE NEW TENURES

FOSTER LAW OF JOINT OWNERSHIP & PARTITION OF REAL ESTATE 1878 89

FOSTER LAW OF JOINT OWNERSHIP & PARTITION OF REAL ESTATE 1878 103-109

HOLDSWORTH HISTORY OF ENGLISH LAW 3ED 1922-3 VOL 15

CONWAY CO-OWNERSHIP OF LAND 2000 27-28 PARA 3.20

O'NEILL KIELY PRINCIPLES OF EQUITY AS APPLIED IN IRELAND 1936 7

DELANY EQUITY AND THE LAW OF TRUSTS IN IRELAND 4ED 2007 4-12

STATUTE LAW REVISION (PRE-UNION IRISH STATUTES) ACT 1962 SCHED

SUPREME COURT OF JUDICATURE (IRELAND) ACT 1877 S36(5)

COURTS OF JUSTICE ACT 1924 S17

CONSTITUTION SAORSTAT EIREANN 1922 ART 73

CONSTITUTION ART 50.1

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S8

STATUTE LAW REVISION (PRE-UNION IRISH STATUTES) ACT 1962 S2(1)

REGISTRATION OF TITLE ACT 1964 S91

HAYE'S ESTATE, RE 1920 1 IR 207

SOAR v FOSTER 1858 4 K&J 152

DUNBAR v DUNBAR 1909 2 CH 639

STACK v DOWDEN 2007 2 WLR 831

FAMILY HOME PROTECTION ACT 1976

W v W 1981 ILRM 202

F (R) v F (M) 1995 2 ILRM 572

O'CONNELL v HARRISON 1927 IR 330

GISSING v GISSING 1971 AC 886

MCGILL v S (L) 1979 IR 283

N (E) v N (R) 1992 2 IR 116 1992 ILRM 127

JONES v MAYNARD 1951 1 CH 572

PARTITION ACT 1868 S3

PARTITION ACT 1868 S5

EVANS v EVANS 1883 31 WR 495

PARTITION ACT 1868 S4

PITT & ORS v JONES & ORS 1880 5 AC 651

RICHARDSON v FEARY 1888 39 CH D 45

SWAN v SWAN 1820 8 PRICE 518

SINCLAIR v JAMES 1894 3 CH 554

MCC v MCC 1986 ILRM 1

C v C 1976 IR 254

POWER v CONROY 1980 ILRM 31

KELLY v CAHILL 2001 1 IR 56 2001 2 ILRM 205

CONTAINERCARE (IRELAND) LTD v W & ANOR 1982 IR 143

D'ALTROY'S WILL TRUSTS; CRANE & ANOR v LOWMAN & ANOR 1968 1 WLR 120

THORNLEY v THORNLEY 1893 2 CH 229

MASON v MASON (ORSE PENNINGTON) 1944 NI 134

GILLETTE v HOLT 2001 1 CH 210

C (J) v C (JH) UNREP KEANE 4.8.1982 1982/14/2814

FIRST NATIONAL BUILDING SOCIETY v RING 1992 1 IR 375

DUNCAN & SCULLY MARRIAGE BREAKDOWN IN IRELAND 1990 264-267

OSBORNE & BABINGTON JURISDICTION & PRACTICE OF COUNTY COURTS IN IRELAND 2ED 1910

1 Mr. Justice Herbert on the 17th day of June, 2008.

2 The first issue requiring to be addressed in this appeal is a jurisdictional one. In the amended Equity Civil Bill, issued on the 17 ^th December, 2004, the applicant/appellant claims an Order pursuant to the provisions of the Partition Acts 1868 and 1876, providing for the sale, in lieu of partition, of the lands and premises in the title hereof, together with an Order permitting the applicant to purchase the same and the contents therein by paying the defendant/respondent such portion of the equity of redemption as this Court should determine.

3 The court was referred to the decision in O'D. v. O'D. (Unreported, High Court, Murphy J., 18 ^th November, 1983) and, to the decision in F.F v. C.F. [1987] 1 I.L.R.M. l, per Barr J.

4 In my judgment, this Court undoubtedly has jurisdiction to grant the relief claimed in these proceedings.

5 The common law writ, " de participatione facienda" entitled co-parceners at common law or by the custom of gavelkind, to compel a division of the land (Vide: E.J. Foster, " The Law of Joint Ownership and Partition of Real Estate" 1878), - (Stevens and Sons). It is referred to by the author of Britton (1290-1292) Bk. 3 CAP 7 (Vide F.M. Nichols, (1983) Reprint). It is also considered by Sir Thomas Littleton, a judge of the Court of Common Pleas in the Reign Edward IV in his famous work "The New Tenures" considered it have been written between 1450 and 1460, (Vide W.S. Holdsworth, "History of English Law", Vol. 8 (3 ^rd Ed. Rewritten)).

6 The Statute 31, Henry VIII Cap. 1 [1539] which applied only to England, Wales or the Marches of the same, extended the benefit of this writ to joint tenants and tenants in common "of any estate or estates of inheritance". The Statute 32 Henry VIII Cap. 33 [1540] which had a similar territorial application, gave to joint tenants and tenants in common for a term for life, or year or years and to joint tenants or tenants in common where some one of them held for life or years with another who held an estate in inheritance or freehold, a right to seek partition by Writ of Partition before the Court of Chancery upon their Case or Cases.

7 Similar legislation was enacted in Ireland by the Statute 33 Henry VIII Cap. 10 [1542]. This statute provided, in the first section, that all joint tenants and tenants in common who held an estate in inheritance "within this land of Ireland", were compelled by virtue of the Act to make partition,

"By writte de participatione facienda, in that case to bee devised in the King our soveraign lord's court of chancerie of this land, in like manner and forme as coparcioners by the common lawes of this land have been and are compelled to do, and the same writte to be pursued at the common law".

8 In the third section of this Statute, it was provided mat in the case of joint tenants or tenants in common for life, year or years, or where one has an estate of inheritance and the others for life or years, partition should be compellable from thenceforth by writ of partition, "to bee pursued out of the King's court of chauncerie upon his or their case or cases".

9 The Irish Statute 9 William III [1697] Cap. XII, was a procedural Act only, "for the more easy obtaining partition of lands in co-parcenary, joint tenancy and tenancy in common", upon writs of partition. The Statute 3 and 4 William IV Cap, 27 [1833], "an Act for the limitation of actions and suits relating to real property and for simplifying the remedies for trying the rights thereto", by s. 36 provided that no writ of partition should be brought after the 31 ^st December, 1834. By s. 44 of that Act, the legislative provision was stated to apply to Ireland.

10 In Foster, (opus cited) p. 89, it is stated that prior to this date the Court of Chancery had assumed jurisdiction over partition, "the Common Law jurisdiction having, however, been rendered practically obsolete by the concurrent jurisdiction which had sprung up in Equity was finally abolished by Act 3 and 4, William IV Cap. 27 S. 36". The history of this 'usurpation' is discussed by Foster (opus cited) at Chap. 10, pp. 103 to 109; by Holdsworth (opus cited) Vol. 15, and by an extant author, H. Conway, " Co-Ownership of Land", 1 ^st Ed. November, 2000, Butterworths Cap. 3, para. 3.20, p. 27 and 28. I am satisfied from a consideration of the references cited, in these works, that the opinion of each of these learned authors and the expert opinion of Dr. H. Conway is correct and that this represented the state of the domestic law of Ireland, as regards partition, immediately prior to 1868.

11 In, " The Principles of Equity as Applied in Ireland", (1936), (The Fodela Press, Dublin), T. O'Neill Kiely states as follows at p. 7:-

"The reports of the Court of Chancery in Ireland do not extend back much further than the year 1800. But from that date, a comparison of the English and the Irish reports shows that the system of Equity was the same in broad principle in both countries as was natural having regard to the history of the matter and to the fact that the Irish Chancellors were men who had, as a rule, been outstanding advocates at the English Bar in their day. To conclude, the main difference between Equity as administered in England and Ireland at the present day is due not to the origin of the two systems but to different statutory provisions applying to the respective countries. Subject of course to this: Irish Courts sometimes arrived at a conclusion different from that of their English prototypes."

12 Reference may also be had to H. Delany " Equity and the Law of Trusts in Ireland", (4 ^th Ed. - 2007, - Thomson, Round Hall), Cap. 1 pp. 4-12 inclusive.

13 Significantly in this context the Statute 31 and 32 Victoria c. 40 [1868] "an Act to amend the law relating to Partition", in s. 2 provides that "in this Act 'the Court' means the Court of Chancery in Ireland and the Landed Estates Court in Ireland". The provisions of this Act were manifestly directed to the Court of Chancery only and, extended the powers of that court in dealing with partition suits. The Partition Act, 39 and 40 Victoria c. 17, [1876] is merely a procedural Act relating to the Act of 1868. In my judgment the provisions of these Acts and the equity jurisdiction which they extended, was not in any way affected by the repeal of 33 Henry VIE Cap. 10 [1542], by s. 1 and the Schedule of the Statute Law Revision (Pre Union Irish Statutes) Act 1962,

14 By s. 36(5) of the Supreme Court of Judicature (Ireland) Act 1877, (40 and 41 Victoria c. 57), jurisdiction in respect of the partition or sale of real estate, including chattles real was assigned to the chancery division of the High Court of Justice. This jurisdiction was transferred to the High Court of Justice of Saorstat Éireann by s. 17 of the Courts of Justice Act, 1924 and Article 73 of the Constitution of Saorstat Éireann 1922. It was not argued before me that this law is inconsistent with any of the provisions of the 1937 Constitution of Ireland and, in my judgment it was carried over and continued in full force and effect by virtue of Article 50, s. 1 of the 1937 Constitution and, is vested in the High Court by virtue of s. 2 of the Courts (Establishment and Constitution) Act 1961 and by s. 8 of the Courts (Supplemental) Provisions Act 1961.

15 Insofar as the...