Gleeson v Feehan

JurisdictionIreland
JudgeKeane J.
Judgment Date01 January 1997
Neutral Citation1997 WJSC-SC 1056
CourtSupreme Court
Docket Number14/96
Date01 January 1997
GLEESON v. FEEHAN

BETWEEN

FRANCIS P. GLEESON
Plaintiff/Respondent

AND

DONAL G. FEEHAN
Defendant/Appellant

AND

FRANCIS P. GLEESON
Plaintiff/Respondent

AND

FRANCIS PURCELL
Defendant/Appellant

1997 WJSC-SC 1056

Blayney, J.

Barrington, J.

Keane, J.

14/96

THE SUPREME COURT

Synopsis:

REAL PROPERTY

Intestacy - adverse possession - whether title acquired by several next of kin by way of adverse possession of lands of de ceased person was title to which they would have become beneficially entitled on due administration - whether such title acquired by way of adverse possession against other next of kin acquired as joint tenants - whether such next of kin in shared occupation with non next of kin in adverse possession against personal representatives or in adverse possession against next of kin not in occupation - whether such title acquired as joint tenants or tenants in common. - Held: Title acquired not that to which next of kin would have become beneficially entitled on due administration - such title acquired as joint tenants - next of kin in shared occupation with non next of kin in adverse possession as joint tenants against personal representatives - (Supreme Court: Blayney J., Barrington J., Keane J. - 21/11/1996) [1997] 1 ILRM 522

|Gleeson v. Feehan|

Citations:

CONVEYANCING ACT 1882 S3

SUCCESSION ACT 1965 S10(3)

ADMINISTRATION OF ESTATES ACT 1959 S7(1)

MARTIN V KEARNEY 36 ILTR 177

COYLE V MCFADDEN 35 ILTR 95

GILSENAN V TEVLIN 36 ILTR 35

COOPER V COOPER 1874 7 HL 53

SUDELEY V AG 1897 AC 11

DOCTOR BARNARDOS HOMES V SPECIAL INCOME TAX COMMISSIONERS 1921 2 AC 1

VANNECK V BENHAM 1917 1 CH 60

CUNLIFFE-OWEN, IN RE 1953 1 CH 545

CUFF KNOX DECEASED, IN RE 1963 IR 263

COMMISSIONER OF STAMP DUTIES (QUEENSLAND) V LIVINGSTON 1965 AC 694

MORTESHED V MORTESHED 1902 36 ILTR 142

CHRISTIE, IN RE 1917 1 IR 17

SMITH V SAVAGE 1906 1 IR 469

MAHER V MAHER 1987 ILRM 582

KAVANAGH V BEST 1971 NI 89

ADMINISTRATION OF ESTATES ACT 1955 S2(3) (NI)

LOCAL REGISTRATION OF TITLE (IRL) ACT 1891 PART IV

LOCAL REGISTRATION OF TITLE (IRL) ACT 1891 S84(1)

LOCAL REGISTRATION OF TITLE (IRL) ACT 1891 S86(1)

PROBATE & LETTERS OF ADMINISTRATION (IRL) ACT 1859 S15

ADMINISTRATION OF ESTATES ACT 1959 S13

SUCCESSION ACT 1965 S13

LAND TRANSFER ACT 1897

MIN OF NATIONAL REVENUE V FITZGERALD 1949 SCR 453

SNELL ON EQUITY 29ED 41–42

UNDERHILL & HAYTON ON THE LAW OF TRUSTS & TRUSTEES 15ED 13–14

PETTIT ON EQUITY & THE LAW OF TRUSTS 7ED 35–36

MEAGHER GUMMOW & LEHANE ON EQUITY: DOCTRINES & REMEDIES 3ED PARA 404 – 412

MOLONEY V AIB 1986 IR 67

MOHAN V ROCHE 1991 IR 560

LOCAL REGISTRATION OF TITLE (IRL) ACT 1891 S52

REGISTRATION OF TITLE ACT 1964 S49

PERRY V WOODFARM HOMES LTD 1975 IR 104

STATUTE OF LIMITATION 1957 S24

GLEESON V FEEHAN 1993 2 IR 113

STATUTE OF LIMITATIONS 1957 S45

SUCCESSION ACT 1965 S126

STATUTE OF LIMITATIONS 1957 S13(2)(a)

SUCCESSION ACT 1965 S125

2

" 1. The Plaintiff is the personal representative of James Dwyer, registered owner of the lands described in Folios 11057 and 3371 of the Register of Freeholders County Tipperary, and of Edmond (otherwise Edward) Dwyer, the registered owner of the lands described in Folio 28973 of the same Register.

2

2. The Plaintiff is acting under a Power of Attorney from the next of kin of the registered owners, who reside in the United States of America.

3

3. The Defendants are in actual possession of the lands described in the said Folios by virtue of the sale for value of the same to them by one James Dwyer (referred to herein so as to distinguish him from the aforesaid registered owner as Jimmy Dwyer). The aforesaid Jimmy Dwyer is the illegitimate offspring of a sister of Edmond Dwyer deceased aforesaid.

4

4. James Dwyer died intestate on the 27th day of November 1937, leaving his widow and six children, including Edmond, and Josephine who was Jimmy Dwyer's natural mother. All the children are now deceased. Only Edmond remained of the children of James Dwyer but Jimmy Dwyer also remained at home with him.

5

5. Edmond Dwyer died on the 22nd of October 1971 intestate and leaving neither spouse nor issue and, after his death, Jimmy Dwyer remained on the lands and eventually sold the lands described in Folio 28973 to the Defendant Donal Feehan in 1978 for £5,000.00, and the lands in the remaining Folios ( 11057 and 3371) to Patrick Purcell, father of the Defendant Francis Purcell, under an agreement entered into in 1975, which said agreement was completed by Deed dated the 3rd day of March 1978. The Deed purporting to convey the aforesaid Jimmy Dwyer's interest in the property to Donal Feehan was dated the 3rd day of March 1981, but the purchase monies had been paid on or before the 11th of January 1978.

6

6. The registration of Edmond Dwyer as full owner of the lands described in Folio 28937 aforesaid was effected on the 16th day of June 1953 in pursuance of the Fiat of the Land Commission dated the 16th day of June 1953.

7

7. From the date of the death of James Dwyer deceased, it is agreed that the aforesaid Edmond Dwyer and the aforesaid Jimmy Dwyer have been in possession and occupation of the property up to the transfer of the properties to the Defendants who thereafter went into occupation and have been in occupation since that time. The other children of James Dwyer deceased left the property, either before James Dwyer's death or shortly after it.

8

8. Under Power of Attorney from the next of kin of Edmond Dwyer dated the 15th day of December 1980, the Plaintiff obtained Letters of Administration Intestate in the estate of the said Edmond Dwyer on the 14th day of January 1983, and Letters of Administration Intestate in the estate of James Dwyer on the 8th day of February 1983. The instant proceedings were commenced by the Plaintiff as administrator of those estates on the 1st day of March 1983, by way of Ejectment Civil Bill on the Title, endorsed as appears thereon.

9

9. The Defences of the Defendants filed on the 16th day of June 1983 objected that the Plaintiff's claim was statute barred. This objection was tried as a preliminary issue, and ultimately it was held by the Supreme Court that the Plaintiff's claim was not so barred.

10

10. The proceedings were in due course remitted to the Circuit Court and, following a trial of the case, the learned Circuit Court Judge granted the Plaintiff a Decree for possession. From that Decree the Defendants have appealed to the High Court.

2

2 B 1. On the hearing before me it was conceded by the Plaintiff that the registration of Edmond Dwyer as full owner of the lands described in Folio 28973 was effected by Fiat of the Land Commission as a graft on his interest in the lands described in Folios 11057 and 3371 and, being subject to the equities affecting the latter lands, conferred on Edmond Dwyer no better or greater title than that then enjoyed by him in those latter lands.

2

2. The Defendants conceded that they were not claiming the protection afforded to Purchasers by Section 3 of the Conveyancing Act 1882, and that the title conferred on them by Jimmy Dwyer was no better or greater than that enjoyed by Jimmy Dwyer in 1978.

3

3. It was conceded by both parties that Jimmy Dwyer, being illegitimate, could at no stage have inherited a distributive share in any of the estates.

4

4. In the circumstances, the only issue of law to be determined was whether in January 1978 Jimmy Dwyer was entitled to be registered as owner of the said lands to the exclusion of the next of kin of Edmond Dwyer."

The questions posed by the Case Stated are as follows:

a "1(a) Where, prior to the Succession Act, 1965, several next of kin in actual occupation of lands of a deceased person acquired title to those lands by adverse possession against the personal representative was the title so acquired the title to which they would have been beneficially entitled on due administration?

(b) Where such next of kin acquired title by adverse possession against other next of kin not in occupation, was such title acquired as joint tenants?

2

Where such next of kin in actual occupation sharen such occupation with persons other than next of kin, was the possession of such other persons adverse possession against (a) the personal representative or (b) next of kin not in occupation?

3

If the answer to 2(a) or 2(b) is yes, was such title acquired jointly with the next of kin in occupation as (a) joint tenants or (b) tenants in common?"

The central issue is clearly identified in the Case Stated. It is accepted that, had Jimmy Dwyer been in sole possession of the lands for the period of twelve years prior to January 1978, he would clearly have been entitled to be registered as owner of the lands to the exclusion of the next of kin of Edmond Dwyer. There is no suggestion in the facts as found in the Case Stated that his occupation of the lands was any different in character from that of Edmond Dwyer: although he was not a member of the "family" in the strictly legal sense, he was neither a stranger in blood nor some one in the position of a caretaker staying on in occupation with the licence of the true owners.

However, if the submissions advanced on behalf of the Plaintiff are correct, it would seem that Jimmy failed to acquire a possessory title solely because another member of the family - again using the expression broadly - was also in possession during the relevant period. It seems an unjust and anomalous conclusion but one, of course, that would have to be upheld, if that is indeed the state of the law.

The submissions on behalf of both parties can be briefly summarised. On behalf of the Defendants, it is submitted that, on the death of James Dwyer, the registered owner, in 1937, the lands became vested in the President of the High Court pending the extraction of a Grant of Letters of Administration. The next-of-kin, it was said, acquired...

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