Devoy v Hanlon

 
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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.

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 after much searching he had found it in the fold of some papers in his office (which is probably explained by the fact that Mr. Sheil had in the interval changed his office several times).

The father and son continued to live together in the holding the son having married, and having his family of five children living with him there until the month of March, in the year 1922, when he became mentally afflicted, and was confined in a mental hospital for several years, namely, up to the year 1925. It was during this time that the old man, Edward Devoy, being then about ninety years of age, died, having made his will in these terms:

"I hereby give and devise to my daughter, Bridget Hanlon, all my estate and effects. She is to rear my grand-children, namely, Mary Devoy, Edward Devoy, William Devoy, George Devoy and Bridget Devoy, till they are sixteen years of age; and if my son, Patrick Devoy, returns to the house, he is to get his support there. In all other respects, my daughter, Bridget Devoy Hanlon, is to have my estate and effects for her own use and benefit."

And the testator thereby appointed his daughter, Bridget Hanlon, the defendant, sole executrix of his will.

After the death of the old man, Bridget Hanlon, treating the will as a devise to her of the testator's holding, took up her residence there with her husband and their family, and with the testator's grandchildren named in his will, who were the children of his son, Patrick, the plaintiff.

Patrick, on recovering from his mental trouble, left the mental hospital and returned in the year 1925 to the holding, which he claimed to be his under the deed of transfer. In the meantime, however, Bridget Hanlon, on the 6th of October, 1922, had had herself registered as owner in fee-simple of the holding, subject to the rights under her father's will in favour of Patrick Devoy and his children. The suit was instituted in the Circuit Court by Patrick Devoy for the purpose of establishing his title to the holding, and claiming to have the Register rectified accordingly; or, in the alternative, that the defendant be declared to be trustee of the lands for him, and that she be directed to transfer the holding to him.

The oral evidence of the plaintiff on the hearing of his action was to the effect that he and his father, who were living together in the holding, came to an agreement by which the holding was to be transferred to the plaintiff, and the plaintiff was to pay to his father 5s. a week and 25. Pursuant to that agreement he and his father and a Mr. Dowling went into the office of Mr. Sheil, solicitor, and instructed him to prepare the document. Both the plaintiff and his father executed the deed of transfer as marksmen, neither of them being able to write. After the execution of the deed, father and son remained living in the holding as before. The plaintiff denied that it was for the purpose of obtaining the old age pension that the transfer was made, and said that they had arrived at the agreement before there was any suggestion of applying for the old age pension. The plaintiff admitted that he knew the deed was not registered up to the time when he entered the mental hospital. Evidence was given by Mr. James Joseph Dowling, a shopkeeper and farmer at Blessington, who was a witness to the execution of the deed of transfer by both the son and the father. Mr. Dowling said that he was asked several times by the plaintiff to induce the old man to transfer the holding to him. He admitted that he spoke to the old man, who agreed to make the transfer, but only after persuasion. There was money due to Dowling by the Devoys at the time, which was subsequently paid off, but Dowling appeared to be uncertain by whom, save that he said that Patrick did pay him money. In cross-examination, Mr. Dowling admitted that it took some persuasion to get the old man to sign the deed, and that he was being asked to do so for the purpose of getting the old age pension. He said that when he had previously asked him to make such a transfer the old man replied that "He would not make a Jerry Higgins of himself," referring to a case in which a father had executed a similar transfer in favour of his son. Mr. John J. Sheil, solicitor, gave evidence for the plaintiff. He suffered from the disability of having forgotten the details of the transaction, and could only help on the facts in so far as the documents assisted his memory. He remembered the two men coming into his office in Blessington, and he said he was quite clear that the deed was entered into by common agreement of the parties for the purpose of getting the old age pension. Afterwards, when he had the deed prepared, he sent it to Mr. Dowling, with instructions as to the manner in which it should be executed, in order that Mr. Dowling should get it executed by them in proper form. He said that the original agreement as to paying 5s. a week was not put into the deed of transfer as a consideration when he pointed out the effect it would have on the old age pension. It was agreed then that the transfer should be made in consideration of natural love and affection. The agreement as to the payment of the 25 was to be carried out by a promissory note for that amount, made by the plaintiff and his father in favour of Mr. Dowling, for the purpose of paying the debt due to him. Mr. Sheil's recollection of this fact was revived from a partly obliterated copy of the letter which he had sent to Mr. Dowling with the deed for execution. Mr. Sheil had been paid a sum of 1 on account of costs, for which he issued a receipt to the old man, but he had to expend 25s. on stamp duty. Some time afterwards, as appears by a copy of the letter, Mr. Sheil, finding that the deed was not being returned to him, wrote a letter, dated the 23rd September, 1922, which is addressed to Mr. Dowling in these terms:

"Devoy to Devoy.

On the 1st August I sent you the original deed of transfer for production to Mr. Purcell. As the same has not yet been registered, as it must be within three months of its date, I would ask you to get it and return it to me. You might also try to get some money off these people."

It was in response to that letter that the deed was returned to Mr. Sheil, when it in some way became mislaid in his office. He apparently lost sight of the Devoys altogether until Hanlon, the husband of the defendant, came into his office one day and asked him about the deed, which at that time Mr. Sheil could not find. Mr. Sheil stated emphatically that it was not because he had not been paid the costs that the deed was not registered, and he apparently had no satisfactory explanation of the fact that...

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