Dooley v Hough

• Jurisdiction: Ireland
• Judgment Date: 12 April 1931
• Date: 12 April 1931
• Court: Supreme Court (Irish Free State)

Supreme Court.

Dooley v. Hough

In the MATTER of the LOCAL REGISTRATION OF TITLE (IRELAND) ACT, 1891, and of PATRICK DOOLEY, a Registered Owner of Land, and of PHILIP HOUGH, a Registered Owner of Land (1)

Land Registry - Rectification - Land Commission - Jurisdiction - Amendment of purchase agreement - Local Registration of Title (Ireland) Act, 1891 (54 & 55 Vict. c. 66), sect. 34, sub-sects. 1 and 2 - Land Law (Ireland) Act, 1896 (59 & 60 Vict. c. 47), sect. 32, sub-sect. 3 - Land Act, 1923 (No. 42 of 1923), sect. 58, sub-sect. 6 - Land Act, 1927 (No. 19 of1927), sect. 49.

Appeal by Patrick Dooley, the registered owner of the lands on Folio 11164, County of Tipperary, from an order of Wylie J., dated October 22nd, 1929.

The order appealed from had been made upon the application of Philip Hough, Junior, the registered owner of the lands on Folio 11228, County of Tipperary. He applied for an order correcting an error in the registration of the ownership of part of the lands comprised in Folio 11164 of the register of the County of Tipperary, and directing that the following amendment or correction be made, viz., that the fiat of the Irish Land Commission vesting portion of the said lands, numbered 12 E. on the sale map of the said lands, in Patrick Dooley be amended by altering or changing the name of Patrick Dooley into that of Philip Hough, Junior; and, on such amendment being made, that the said Folio 11164 be rectified as to ownership by similarly changing the name of Patrick Dooley into that of said Philip Hough, Junior; and that thereupon all consequential amendments be made in the Land Registry map, as to number of £olio, boundaries, and amount of Land Commission annuity, or otherwise howsoever arising in connection with such rectification.

The application was supported by affidavits of Philip Hough, Junior, Philip Hough, Senior, and Christopher Morris. Philip

Hough, Junior, stated in his affidavit that originally the two holdings were one holding in the occupation of two sisters, but subsequently were divided; that the portion in dispute originally formed part of the holding of John Dooley, predecessor in title to Patrick Dooley; that there had been no fences between the two holdings, and his father and Patrick Dooley had made use of the disputed portion jointly and had cut turf thereon; that about 60 years ago, when the bog thereon got cut out, John Dooley refused to fence his own portion and surrendered it to the then agent; that thereupon the said agent gave this portion to deponent's father, who thereafter paid an additional rent and remained in sole and exclusive use and occupation of the portion; that he had been assessed and had been paying rates therefor, and his father before him, ever since its being surrendered; that his father transferred the holding to him on the occasion of his marriage; that he had lived on, and known, the holding intimately for over 30 years; that while John Dooley was alive no claim was ever made by him to the portion of the lands in dispute; that he and his father remained in undisputed possession without any adverse claim, and exercised ownership over same for over 40 years; and that some three years ago Patrick Dooley came down to the disputed portion of land to put a fence round it, but that he (deponent) objected to this being done. Philip Hough, Senior, in his affidavit, stated that he knew the lands in dispute for over 70 years; that the holdings originally formed one portion in the occupation of Thomas Dooley, who divided the holding between his two daughters; that one of the daughters married a man named Hoctor, and had the portion of the holding which his father subsequently purchased, the remaining portion subsequently becoming the holding of John Dooley, nephew of Mary Dooley, the other daughter; that he succeeded to his father, and that he never saw either Mary Dooley or John Dooley exercise ownership over, or make any claim to, the portion in dispute. He confirmed the statements in the affidavit of Philip Hough, Junior, as to the absence of fences, the joint user of the portion in dispute, the cutting of turf, the surrender by John Dooley, the new letting at an additional rent, his undisputed possession and ownership, and his rating as occupier and payment of rates. Christopher Morris, in his affidavit, stated that about twenty years ago his uncle, an adjoining owner, sent him to John Dooley about the making up of the bounds of the portion of the lands in dispute, and that John Dooley told him he would have nothing to do with it, he did not own either the bounds or the portion of land, he had assigned it to the agent, and the latter had given it to Philip Hough, Senior; and that from that time the Houghs and himself made up the bounds when and as often as the same became necessary.

Patrick Dooley filed an affidavit in reply, in which he stated that he helped his uncle, John Dooley, in the working of his holding for 35 years, until the uncle died in 1924, when he succeeded; that the portion in dispute was used for cattle of his uncle, of himself, and also of the Houghs, but he never heard any claim advanced by the Houghs to the ownership of the land until they fenced it off in 1927; that he had no recollection of turf being cut; that he challenged the alleged surrender to the agent, who was dead over 20 years, and the alleged re-letting; that he was the rated occupier of the portion in dispute, according to certificates of valuation which he exhibited; that the fencing which he had carried out was between his own and an adjoining holding, and the Houghs were not concerned in the matter; and that for the past 35 years his uncle and he himself had been using the portion in dispute in just as effective a beneficial sense as any other portion of his holding.

Wylie J. held he had power under the Land Act, 1923, to make the order sought, even though a party to the case was injured thereby; and he ordered that the register be amended on condition that the applicant paid £15 compensation, together with £5 5s. costs.

Patrick Dooley, in his notice of appeal from this order, relied on the grounds that the Judge so ordered without evidence, and against the weight of evidence; that the inferences drawn from the evidence were incorrect; that the Judge misdirected himself as to the nature and effect of the evidence, and misdirected himself in law in deciding that there had been either such fraud, mistake, or error within the meaning of sect. 34, sub-sects. 1 and 2, of the Local Registration of Title (Ireland) Act, 1891, as would entitle him to order rectification; that, alternatively, if the Judge was correct in so directing rectification, the sum awarded as compensation was inadequate, and the Judge had no evidence before him on which to assess the proper sum. He asked for an order discharging the said order, and in lieu thereof an order refusing the application of Philip Hough, Junior; or, alternatively, for an order varying the said order by directing that the matter be referred to Wylie J., or to the Judge of the Circuit Court, for the purpose of having assessed upon proper evidence the amount which should be paid as compensation.

The power of amendment or correction, conferred by sect. 34, sub-sect. 2, of the Local Registration of Title (Ireland) Act, 1891, does not, except upon consent or admission of the parties concerned, extend to errors other than those of the registering authority or the Land Commission. There is no jurisdiction, under the sub-section, first, to decide a disputed question of fact, and then to say that the result of the decision is to disclose error in the register, or vesting order, or fiat, as the case may be.

There is no authority for amending, in the absence of the vendor, an agreement for sale under the Land Purchase Acts in order that a consequential amendment may be made in another agreement and upon the register of each.

This principle is unaffected by the extended power of correction and rectification conferred by sect. 58, sub-sect. 6, of the Land Act, 1923 (No. 42 of 1923), as amended by sect. 49 of the Land Act, 1927 (No. 19 of 1927).

So held by the Supreme Court (Kennedy C.J. and FitzGibbon J.; Murnaghan J. dissenting), reversing Wylie J.

Cur. adv. vult.

Kennedy C.J. :—

I have had the advantage of reading the judgment about to be delivered by Mr. Justice FitzGibbon. I concur in it, and have nothing to add.

FitzGibbon J. :—

It is to be regretted that a dispute about property of such an infinitesimal value should have been made the subject of litigation at all, and still more that the parties should not have acquiesced in the effort of Wylie J. to put an end to further controversy, but they are determined to try out their legal rights to the end, cost what it may, and it is our duty to decide the appeal according to the strict letter of the law.

By notice of motion, dated August 12th, 1929, entitled,"Land Registry, Saorstát Éireann éireann, Folio No. 11164, County Tipperary, Lands Drumnamahane (Parts), Registered Owner Patrick Dooley, and Folio No. 11228, County Tipperary, Lands Drumnamahane (Parts), Registered Owner Philip Hough (Junior)," Philip Hough, Junior, applied to Mr. Justice Wylie for an order correcting an error in the registration of the ownership of part of the lands comprised in Folio No. 11164, and directing that the following amendment or correction be made, viz.:—That the Fiat of the...