Gleeson v Feehan

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: FINLAY C.J.,McCarthy J.,O'FLAHERTY J.,EGAN J.
• Judgment Date: 01 January 1993
• Neutral Citation: 1991 WJSC-SC 2010
• Docket Number: [S.C. No. 171 of 89]
• Date: 01 January 1993

1991 WJSC-SC 2010

THE SUPREME COURT

Finlay C.J.

Hederman J.

McCarthy J.

O'Flaherty J.

Egan J.

171/89

GLEESON v. FEEHAN

BETWEEN

FRANCIS P. GLEESON

Plaintiff

and

DONAL G. FEEHAN

Defendant

AND

FRANCIS P. GLEESON

Plaintiff

and

EITHNE O'MEARA

Defendant

Citations:

STATUTE OF LIMITATIONS 1957 S45

SUCCESSION ACT 1965 S126

COURTS OF JUSTICE ACT 1936 S38(3)

STATUTE OF LIMITATIONS 1957 S13(2)(a)

STATUTE OF LIMITATIONS 1957 S13(2)(b)

DROHAN V DROHAN 1984 IR 311

DIPLOCK V WINTLE 1948 CH 465

SUCCESSION ACT 1965 S111

MINISTRY OF HEALTH V SIMPSON 1951 AC 251

LIMITATION ACT 1939 (UK) S20

STATUTE OF LIMITATIONS 1957 S46

STATUTE OF LIMITATIONS 1957 S71

CIVIL LIABILITY ACT 1961 S8

CIVIL LIABILITY ACT 1961 S9

BRADY, SUCCESSION LAW IN IRELAND PARA 10.23.2

BINNS V NICHOLAS 1866 2 EQ 256

JOHNSON, IN RE SLY V BLAKE 1885 29 CH D 964

MCLOUGHLIN V DENNY 1906 1 CH 265

WADELL V HANLON 1905 IR 416

MURPHY V MURPHY 1980 IR 183

VAUGHAN V COTTINGHAM 1961 IR 184

STATUTE OF LIMITATIONS 1957 S13(2)

STATUTE OF LIMITATIONS 1957 S45(1)

STATUTE OF LIMITATIONS 1957 S13

Synopsis:

ADMINISTRATION

Intestacy

Real estate - Recovery - Ejectment - Personal representative - Title - Registered land - Grant of administration many years after death of deceased - Relevant limitation period - (171/89 - Supreme Court - 20/6/91) - [1993] 2 I.R. 113 - [1991] ILRM 783

|Gleeson v. Feehan|

EJECTMENT

Personal representative

Title - Lands - Registered owner - Death - Letters of administration - Grant obtained by plaintiff administrator years after death of owner - Defendant in possession of lands - Relevant limitation period - (171/89 - Supreme Court - 20/6/91)1993 2 IR 113

|Gleeson v. Feehan|

LIMITATION OF ACTIONS

Land

Recovery - Action - Institution - Time limit - Relevant statutory period - Registered land - Death of registered owner intestate - Substantial period before letters of administration granted to plaintiff - Plaintiff ejecting defendant on title - Statute of Limitations, 1957, ss. 13, 23, 24, 45 - (171/89 - Supreme Court - 20/6/91) - [1993] 2 I.R. 113 - [1991] ILRM 783 - [1991] 13 DULJ 165

|Gleeson v. Feehan|

|Gleeson v. O'Meara|

REAL PROPERTY

Title

Personal representative - Registered land - Owner - Death - Letters of administration - Grant obtained by plaintiff administrator years after death of owner - Defendant in possession of lands - Ejectment by administrator - Relevant limitation period - (171/89 - Supreme Court - 20/6/91) - [1993] 2 I.R. 113

|Gleeson v. Feehan|

1 JUDGMENT delivered on the 20th day of June 1991by FINLAY C.J. [HEDERMAN CONC.]

2 This is a case stated by Barren J. on the hearing of an appeal from the Circuit Court of the South Eastern Circuit, which raises an issue as to the interpretationof the Statute of Limitations 1957 and, in particular, as to the interpretation of Section 45 thereof, as inserted by Section 126 of the Succession Act 1965.

3 A preliminary issue concerning the barring of the Plaintiff's claim in proceedings for ejectment on the title had been tried by Sheridan CCJ., who decided that the Plaintiff's claim was statute barred. That decision was appealed by the Plaintiff and it was upon that appeal that this case was stated pursuant to Section 38(3) of the Courts of Justice Act 1936.

4 The facts material to the decision as set out in the case stated may be summarised as follows.

5 1. The Plaintiff is the personal representative of James Dwyer, deceased, who is the registered owner of Folios 11057 and 3371 of the Register for the County of Tipperary. He is also the personal representative of Edmund Dwyer, deceased, who is the registered owner of Folio 28973 of the Register for the County of Tipperary.

6 2. James Dwyer died intestate on the 27th November 1937, leaving him surviving a widow and six children, inclunding the said Edmund Dwyer. Edmund Dwyer died on the 22nd October 1971, intestate. At the time of his death, Edmund Dwyer was the only member of the family to be in possession of the land on the said three folios, other than a child of an unmarried sister named Jimmy Dwyer.

7 After the death of Edmund Dwyer, Jimmy Dwyer remained on the said lands. The said Jimmy Dwyer in 1978 agreed to sell the lands registered on Folio 28973 to the Defendant Donal Feehan. The purchase money was paid in respect of that transaction on or before the 11th January 1978, and a deed of transfer was executed on the 3rd March 1981. In 1975 Jimmy Dwyer agreed to transfer the lands registered on Folios Nos. 11057 and 3371 to the predecessor in title of the Defendant Eithne O'Meara, one Patrick Purcell, and this transaction was completed by a deed of transfer dated the 3rd March 1978.Donal Feehan and Patrick Purcell entered into occupation of the respective holdings agreed to be purchased by them in the year 1978. Those holdings have since that time been in the possession and occupation of Donal Feehan and of Patrick Purcell and his successor in title, the Defendant Eithne O'Meara.

8 The Plaintiff, under power of attorney dated the 15th December 1980, obtained a grant of administration, intestate, to the estate of James Dwyer on the 8th February 1983, and to the estate of Edward Dwyer on the 14th January 1983. He then instituted proceedings by ejectment civil bill on the title against the Defendants on the 1st March 1983.

9 The Defendants in their defence pleaded that the Plaintiff's claim was barred by virtue of the provisions of Section 45 of the Statute of Limitations 1957, as enacted by Section 126 of the Succession Act 1965. Upon these facts, having recited the contending submissions of law made before him, the learned HighCourt Judge stated the following question of law for the determination of the Supreme Court:

"Whether Section 45 of the Statute of Limitations 1957 as amended by Section 126 of the Succession Act 1965bars the claim of the Plaintiff to the property in his aforesaidcapacity."

The issue on the appeal

10 The issue on this appeal became a net issue, namely, whether an action by a personal representative of a deceased owner of land seeking recovery of the land in succession to the owner is a claim for the purpose of the limitation of actions within the provisions of Section 45 of the Statute of Limitations 1957, as inserted by Section 126 of the Succession Act 1965, in which case it is not disputed that the cause of action would have accrued on the facts arising in these two cases, at the latest, on the death of Edmund Dwyer in 1971, and would have been barred by 1977, or whether the claim falls within, for the purpose of the limitation ofactions, Section 13(2)(a) and (b) of the Act of 1957, in which case only eleven and a half years would have elapsed from the accrual of the cause of action at the time of the institution of proceedings and they would not be statute barred.

The relevant statutory provisions

Section 45 of the Act of 1957, as inserted by the Succession Act 1965

11 45. (1) Subject to Section 71, no action in respect of any claim to the estate of a deceased person or to any share or interest in such estate, whether under a will, on intestacy or under section 111 of the Succession Act, 1965, shall be brought after the expiration of six years from the date when the right to receive the share or interest accrued.

12 (2) No action to recover arrears of interest in respect of any legacy or damages in respect of such arrears shall be brought after the expiration of three years from the date on which the interest becamedue."

Section 13 (2) (a) and (b) of the Act of 1957

"13. (2) The following provisions shall apply toan action by a person (other than a State authority) to recover land-"

(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to thatperson;

(b) if the right of action first accrued to a State authority, the action may be brought at any time before the expiration of the period during which the action could have been brought by a State authority, or of twelve years from the date on which the right of action accrued to some person other than a State authority, whichever period firstexpires."

13 The Statute of Limitations 1957 originally contained a Section 45 in terms very similar to those of Section 45, as inserted by the 1965 Act, save that it was confined to the personal estate of a deceased person and that the period of limitation was twelve years.

14 The issue as to which of the two Sections arising for consideration in this case covers this type of action, did not therefore become a real issue until the coming into effect of the Act of 1965.

Submissions on the appeal

15 On behalf of the Defendants, reliance was placed upon the history of the successive statutory provisions with regard to limitation of actions, which apparently are applicable to this case; and on what was alleged to be a major anomaly and injustice which would arise from a construction of the law applicable to the facts of this case, which brought into operation a twelve-year time limit. This anomaly and injustice was asserted to be that the legal situation clearly was that the next-of-kin of the deceased James and Edward Dwyer were barred in their claims against the personal representative six years after the deaths of the two registered owners, and although the personal representative had a discretion which could permit himto admit their claims, he was not bound to do so. It was on this basis stated that it would be unjust and open in other cases to abuse, artificially to revive, by the obtaining of a grant of administration, a claim in respect of these lands which the next-of-kin could notassert.

16 It was further submitted that the decision of McMahon J. in Drohanv. Drohan 1984 IR on this point was obiter and should not be...