Guerin v Heffernan

• Jurisdiction: Ireland
• Judgment Date: 12 December 1925
• Date: 12 December 1925
• Docket Number: (1923. No. 452.)
• Court: Supreme Court (Irish Free State)

Supreme Court

(1923. No. 452.)

Guerin v. Heffernan.

JOHN GUERIN

Plaintiff

WILLIAM HEFFERNAN, Defendant (1)

Vendor and purchaser - Specific performance - Delay - Representation by vendor as to giving peaceable possession - Default of vendor - Repudiation of contract - Acquiescence.

Appeal by the plaintiff from an order of Pim J., dated July 15th, 1924, dismissing an action brought by the plaintiff against the defendant for specific performance of an agreement, dated March 18th, 1922, for the purchase by the defendant from the plaintiff of freehold registered lands at Clashdrumsmith, County Tipperary, containing 39 acres 1 rood 6 perches.

On March 18th, 1922, the lands were put up for sale at a public auction by Messrs. Nicholas Maher & Sons, Auctioneers. The Conditions of Sale provided that the purchaser should,

immediately after the sale, pay one-fourth of the purchase-money and complete the sale on or before April 8th, 1922; that the vendor should, within four days from the date of sale, deliver to the purchaser, or his solicitor, an abstract of title consisting of a copy of a deed of family settlement of July 4th, 1904, and a copy of the land certificate. By the deed of family settlement (to which the plaintiff and his sisters, Lizzie Guerin, Kate Guerin, and Ellen Guerin, were parties) the lands in question were assigned to the plaintiff by the said Lizzie Guerin, subject to a charge of £300 in favour of the said Kate Guerin, and an annuity of £6 in favour of the said Ellen Guerin The said Lizzie Guerin retained other lands adjoining those assigned to the plaintiff.

Prior to the sale (on March 14th, 1922), an agreement was entered into between the plaintiff and his said sisters, whereby these sisters consented to the sale of the lands, freed from all charges, upon the payment of £300 to Kate Guerin; £90 with interest to Lizzie Guerin; and £300 in full for all arrears of annuity due, or to accrue due, to Ellen Guerin. It was further agreed that, on the sale, a right-of-way should be reserved over the holding to the lands of Lizzie Guerin. The sisters agreed and undertook "to sign any document or do any act or thing necessary for the completion of the purchased title to the premises, free from incumbrances, as soon as the conditions hereinbefore appearing in their favour (as set out above) have been fulfilled."

The Conditions of Sale contained a condition dealing with the reservation of a right-of-way over the holding to the lands of Lizzie Guerin, which is set out in full in the judgment of the Chief Justice.

At the auction, on March 18th, 1922, the reserve price was not reached. On the same day, shortly after the auction, the defendant signed the memorandum at the foot of the said Conditions of Sale, agreeing to buy the lands at the sum of £3,350. He made a deposit on foot of the contract amounting to the sum of £837 10s., which comprised two promissory notes, one for £800 and the other for £27 10s., and a cash payment of £10. The auctioneer also signed the contract, confirming the sale on behalf of the vendor. According to the Conditions of Sale the purchaser was to leave a draft of the assurance of the property to him at the office of Mr. Nicholas E. Maher, the vendor's solicitor, for approval, not less than six days before April 8th, 1922, the day appointed for the closing of the sale.

On March 22nd, 1922, the defendant wrote to the plaintiff's solicitor saying: "In regard to John Guerin's farm, I have withdrawn from the purchase of it. I do not wish to be interfering in family affairs. His sisters threatened me several times since, and they wish that anybody would have it besides me, so I am not going to have hand, act, or part in it."

On April 19th Mr. John Dwyer, the solicitor then acting for the defendant, wrote to the plaintiff's solicitor as follows:"My client called on me some days ago and informed me that owing to a threatening notice (which, he said, he had showed to you) he could not complete. This was in addition to several verbal threats."

The two promissory notes signed by the defendant in respect of the deposit were kept by the auctioneer at his residence. During his absence, on April 30th, his residence was raided by armed men, who took away the notes. A document purporting to be signed by the Officer Commanding the 2nd Battalion, East Limerick Brigade, Irish Republican Army, addressed to the auctioneer, was handed to his servant. This document, having stated that the men had done everything possible to meet the auctioneer, and failed, went on to say: "Perhaps you can explain away how we were unable to meet you. Anyhow, the case we have to attempt to settle is urgent, and because of this urgency, and of the impossibilty of an interview with you, we were forced to enter your office and take therefrom two deposits of Clashdrumsmith sale, one valued £800, the other £27 10s. There is yet a sum of £10 outstanding, which can be arranged later." On May 2nd the Officer Commanding the 2nd Battalion informed the auctioneer by letter that he was not responsible for the raid.

On June 13th, 1923, the plaintiff issued the writ claiming specific performance, or, alternatively, damages for noncompletion of the agreement. In his statement of claim the plaintiff pleaded that he had been always ready and willing to perform the contract on his part and to do all necessary acts and deeds for the purpose of transferring to and vesting the lands in the defendant. This was traversed by the defendant, who further pleaded that he had entered into the contract "under the belief (which said belief was induced by the representations and assurances of the plaintiff) that he, the defendant, would be allowed to enter peaceably upon the said lands and enjoy the same without claims, molestations, or threats by members of the plaintiff's family, or other persons. But immediately after, and upon several occasions since the making of the said contract, the defendant has been subjected to violence and threats by the sisters of the plaintiff and other persons, who, amongst other threats and acts of violence, have threatened to take the defendant's life should he attempt to enter upon the said lands." The defendant submitted that, in the circumstances, the enforcement of the contract would be inequitable, and would impose undue hardship upon him. He counterclaimed for rescission of the contract and the return of his deposit of £10. In his reply the plaintiff denied that he made the representations or assurances alleged by the defendant, and stated that the person or persons, if any, who subjected the defendant to violence or threats, had no right, title, or claim to the lands.

At the trial of the action the defendant deposed that, prior to the signing of the agreement, representations had been made to him by the plaintiff and his agents that he would be allowed to enter peaceably upon the lands. The plaintiff, however, failed to remove cattle belonging to his (plaintiff's) sisters from the lands, and his sisters on several occasions showed their hostility to the defendant by attacking and abusing him. That in view of the purchase of the plaintiff's holding, the defendant decided to sell two holdings of which he was the owner...