Doyle v Foley and Others

JurisdictionIreland
Judgment Date13 May 1901
Date13 May 1901
CourtKing's Bench Division (Ireland)
Doyle
and
Foley and Others (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THERE FROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1903.

Executor de son tort — Statute of Limitations — Chattels real — Next-of-kin — Administrator.

A person who has gone into possession of chattels real of a deceased, as executor de son tort, and remained in possession for twelve years, may, in the absence of circumstances raising an inference of an express trust, rely on the Statute of Limitations in answer to an action for the recovery of the lands brought by a person taking out administration to the deceased.

Case Stated by the Lord Chief Baron on the hearing of a civil bill appeal.

The appeal was from a decree for possession pronounced by the County Court Judge of Kerry, on the 9th November, 1900, in an action of ejectment on the title for the recovery of certain lands of which one John Doyle was tenant prior to and at the time of his death. John Doyle died on the 6th April, 1887, leaving a widow, Margaret Doyle, but no children. His next-of-kin at the time of his death were his brother Patrick Doyle, and several nephews and nieces, children of a deceased brother and sister. The next-of-kin living when the ejectment was brought consisted of nephews and nieces of deceased. Margaret Doyle entered into possession of the said lands on the death of John Doyle, as executrix de son tort of the said John Doyle, as was found by the Lord Chief Baron, and continued in such possession until her death, which occurred on the 11th January, 1900. In the year 1887 Margaret Doyle married the defendant Daniel Shea, who thenceforward resided upon the lands with his wife until her death. In the year 1888 Margaret Shea purchased the lands under the Land Purchase Acts. On the death of his wife Daniel Shea entered into possession of the lands. The other defendants in the civil bill were persons claiming under the will of Margaret Shea.

Administration to John Doyle, deceased, was on the 12th February, 1900, granted to the plaintiff, a niece of the deceased, who brought the present proceedings.

In answer to the defendants' plea of the Statute of Limitations, the plaintiff relied inter alia on a document signed by Margaret Shea in the year 1894, as being an acknowledgment sufficient to take the case out of the statute, but this point was abandoned on the argument in the King's Bench Division.

The Lord Chief Baron stated that, in consequence of the purchase by Margaret Shea, he would if necessary have amended the civil bill into an equity civil bill. He also stated that it was to be taken that any inferences of fact which might arise in the case were drawn by him in favour of the plaintiff.

The question submitted by the Lord Chief Baron for the Court was, whether there was evidence on which he could hold that the plaintiff was entitled to a decree for possession.

A. M. Sullivan, for the defendant:—

The plaintiff's claim is barred by the Statute of Limitations. Even a rightful executor is not an express trustee so as to take the case out of the statute, and, a fortiori, an executor de son tort is not such.

Sandford, for the plaintiff:—

An executor is in the position of a trustee, and the statute does not run in his favour. The same applies to an executor de son tort, who has all the liabilities of a rightful executor.

[The following cases and statute were cited:—Rankin v. M'Murthy (1); MacCormack v. Courtenay (2); Quinton v. Frith (3); Mulkearn v. Dorian (4); Molony v. Molony (5); Hoey v. Hoey (6); Burnside v. Burnside (7); Dwyer v. Whittelegge (8); Davise v. Williams (9); In re M'Clure and Garrett's Contract (10); Webster v. Webster (1);

In re Rowe (2); In re Davis (3); In re Lacy (4); Tench v. Glennon (5); 51 & 52 Vict. c. 59, s. 8.]

Cur. adv. vult.

A. M. Sullivan, for the defendant:—

Sandford, for the plaintiff:—

Lord O'Brien L.C.J.:—

I am glad that this question was reserved by the Lord Chief Baron, because there was a general impression at the Bar during my time that an executor appointed by will was an express trustee, and could not therefore take the benefit of the Statute of Limitations, and that an executor de son tort stood in the same position in this respect. Our decision in the present case will rectify that impression.

The net point, so appropriately raised, is whether or not a person who enters upon a chattel interest as an executor de son tort and remains in...

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