Devoy v Hanlon

• Jurisdiction: Ireland
• Judgment Date: 14 March 1929
• Date: 14 March 1929
• Court: Supreme Court (Irish Free State)

Supreme Court.

Devoy v. Hanlon.

PATRICK DEVOY

Plaintiff

and

BRIDGET HANLON,Defendant (1)

Local Registration of Title - Transfer for a voluntary consideration from registered owner - Transfer not registered - Effect of transfer - Whether equitable rights can be created in registered land out outside the register - Conclusiveness of the register - Incomplete gift - Deed not delivered - Local Registration of Title (Ir.) Act, 1891 (54 & 55 Vict. c. 66),sects. 30, 34, 35, 36, 39, 41, 44.

Appeal from a decision of the Special Commissioners (Mr. Commissioner Overend K.C. and Mr. Commissioner Shannon K.C.) appointed pursuant to the Circuit Court Appeals Act, 1927, to hear appeals from the Circuit Court (2).

The Commissioners had reversed an order made by the Circuit Court Judge for the Eastern Circuit (Judge Doyle) upon the hearing of the plaintiff's Equity Civil Bill. The claim in the Civil Bill was as follows:—"1. By deed, dated in the year 1912, Edward Devoy, father of the plaintiff, transferred to the plaintiff his holding at Butterhill, being the lands the subject of Folio 2488 of the Land Registry, County Wicklow, of which he was the registered owner, in consideration of the covenants therein on the part of the plaintiff, including a covenant to pay the Sum of £25 to James J. Dowling, being a debt due by the said Edward Devoy, which sum the plaintiff duly paid. 2. The said deed was retained by John J. Shiel, solicitor, by whom it was prepared, and the transfer was never registered in the Land Registry; the said John J. Shiel states that he is now unable to find the said deed. 3. The defendant, Bridget Hanlon, is now in possession of the said holding, claiming to be entitled thereto under a will of the said Edward Devoy, now deceased, the late registered owner, dated 4th day of July, 1922, and proved the 13th day of September, 1922. 4. The plaintiff claims a declaration that he is entitled by virtue of the said deed to be registered as owner of the lands the subject of the said folio; and that the register may be rectified accordingly; or, in the alternative, that the defendant may be declared to be a trustee for the plaintiff of the said lands, and may be directed to transfer the same to the plaintiff."

The Circuit Court Judge declared the plaintiff entitled to be registered as owner of the said lands, and ordered that the Register be rectified accordingly. The judgment of the Circuit Court Judge will be found summarised in the judgment of the Chief Justice. The defendant appealed from the judgment of the Circuit Court Judge upon the grounds:— 1, That the finding in the said judgment that the said will of Edward Devoy was an actual fraud on the assignment to the plaintiff, or a fraudulent dealing with the lands comprised in Folio 2488 of the Register, County Wicklow, was wrong in law and without and against the weight of evidence; 2, that if, or so far as, the said judgment finds that the defendant was guilty of a fraud, or accessory to a fraud, the same was against evidence and the weight of evidence; 3, that the said order was made without and in excess of jurisdiction; 4, that any rights of the plaintiff were barred by laches, or, alternatively, by statute.

The Special Commissioners, as already stated, reversed the decision of the Circuit Court Judge, but they certified that their decision involved a question of law and fact of such importance as to be the subject of an appeal to the Supreme Court, and the plaintiff appealed to the Supreme Court accordingly (1).

The grounds of the plaintiff's appeal to the Supreme Court were as follows:—1, That the Commissioners were wrong in law

in finding that the transfer from Edward Devoy to the plaintiff of the said lands was a voluntary transfer, and that such finding was wrong in fact and was against evidence and the weight of evidence; 2, that the Commissioners misdirected themselves in fact in finding that the defendant did not have actual knowledge of such transfer before she registered her title as owner of said lands; 3, that the Commissioners misdirected themselves in fact and were wrong in law in finding that the devise of the said lands by Edward Devoy, deceased, and the registration of her title to such lands by the defendant were not fraudulent; 4, that the Commissioners were wrong in law in adjudging that, in the events which had happened, the plaintiff was not entitled to the relief claimed.

The further facts are fully stated in the judgment of the Chief Justice.

E. D. was registered in 1910 under the Local Registration of Title (Ir.) Act, 1891, as owner in fee-simple of a certain farm, subject to equities and to a Land Purchase annuity. As he was a very old man, it was suggested to him that he should transfer the farm to his son (the plaintiff), and that he himself should apply for an old age pension. After some persuasion, he executed the transfer in 1912, the deed being for a voluntary consideration, and purporting to be "signed, sealed, and delivered," as stated in the attestation clause. After execution the deed was returned to E. D.'s solicitor, and, having been duly stamped, was sent by him to a friend of E. D. to be shown to the officer who dealt with claims under the Old Age Pensions Act. What became of the deed subsequently could not be ascertained, but it was ultimately found by E. D.'s solicitor in 1925 in the fold of some papers. The deed was never registered. E. D. and the plaintiff continued to reside at the farm until 1922, when the plaintiff became mentally affected, and was sent to a mental hospital. E. D. died in 1922, and, by his will, left the farm to his daughter (the defendant), and appointed her sole executrix. She thereupon had herself registered as owner in fee-simple, subject to the burdens created by E. D.'s will and the burdens already appearing on the register.

In 1925 the plaintiff, having recovered, returned to the farm, which he immediately claimed under the transfer to him, and instituted proceedings to establish his title, claiming to have the register rectified, or, in the alternative, to have the defendant declared a trustee of the lands for him, and that she be directed to transfer the lands to him.

Held by the Supreme Court (FitzGibbon J. and Murnaghan J.; Kennedy C.J. dissenting) that, assuming that E. D could have conferred a beneficial right on the plaintiff by an unregistered instrument, he had not in fact done so, as the gift was incomplete, since the evidence was not sufficient to prove that the deed of transfer was ever delivered by E. D. with the intent of making it an effective deed, and accordingly the plaintiff's claim was unsustainable.

Semble: The Local Registration of Title (Ir.) Act, 1891, provides for the recognition of rights, including estates, which do not appear on the register. Such rights are valid against the registered owner creating them, against a voluntary transferee from the registered owner, and against everyone claiming through a voluntary transferee where the person so claiming has not given valuable consideration.

Dicta in Pim v. Coyle, [1907] 1 I.R. 330, disapproved.

Cur. adv. vult.

Kennedy C.J. :—

This case comes before the Court on an appeal by the plaintiff from an order and judgment of the Special Commissioners appointed to hear Circuit Court appeals (Mr. Commissioner Overend and Mr. Commissioner Shannon) on the hearing of an appeal by the defendant from an order of the Circuit Court made by the late Circuit Court Judge Doyle at Wicklow, whose judgment and decree were reversed by the Commissioners.

The plaintiff in the action is the son, and the defendant the daughter, of one, Edward Devoy, now deceased. The plaintiff, by his civil bill, sought a declaration that he was, by virtue of a certain deed of transfer made in the year 1912, but never registered, entitled to be registered as owner of the lands comprised in the Folio No. 2488 of the Land Registry, County Wicklow, being the farm of his late father. The defendant, on the other hand, is entered on the folio as full owner, and claimed to be entitled to the farm under the will of the said Edward Devoy, deceased. The facts are, shortly, as follows.

The holding in question is a substantial farm of 52 acres, at Blessington, in the County Wicklow, bought out under the Irish Land Acts, 1903 and 1909, and registered, subject to equities, on the 29th September, 1910. Edward Devoy, the father of the two parties to the suit, was registered as owner in fee-simple, subject to equities and to the Land Purchase annuity. Edward Devoy continued to be entered on the folio as the registered owner of the holding until his death, which occurred on the 5th of July, 1922.

The plaintiff, Patrick Devoy, had lived with his father on the holding. The defendant had married, and left the place to take up residence with her husband, Patrick Hanlon. In the year 1912 Edward Devoy, being then advanced in years, yielded to a suggestion that he should execute a transfer of the farm to his son, Patrick, and that he himself should claim the old age pension. Accordingly, after, as it appears, some pressure, the old man and his son came into the office of Mr. John J. Sheil, solicitor, and instructed him to prepare a transfer, which Mr. Sheil did, in the form commonly used for the purpose of simple transfer. This deed, under which the plaintiff claims in the present action, was in fact never registered in the Registry of Title. It was a transfer purporting to be made in consideration of natural love and affection, and of a nominal sum of 5s.

It was dated the 5th June, 1912, executed by both Patrick Devoy and Edward Devoy in the presence of two witnesses, and it was presented for stamping on the 2nd July, 1912, and adjudged duly stamped on a stamp of £1 5s. The deed was not forth coming when the plaintiff commenced the suit, and did not turn up until the hearing, when it was produced by Mr. Sheil, solicitor, who stated that...