Hurley v Hurley

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 16 November 1908
• Court: Court of Appeal (Ireland)
• Docket Number: (1907. No. 589.)
• Date: 16 November 1908

Hurley

and

Hurley (1).

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

The HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1910.

Merger — Wife's chattels real — Marriage prior to 1883 — Purchase by husband of reversion in fee.

The mere purchase by a husband of the reversion in fee of chattels real, the property of his wife, their marriage having taken place before 1883, does not per se cause a merger.

Decision of Barton, J., affirmed.

Appeal by the defendant, heir-at-law of Daniel Hurley, deceased, from the decision of Barton, J., [1908] 1 I. R. 393, where the facts are stated.

Ignatius J. O'Brien, K.C., and A. M. Sullivan, for the appellant.

Ronan, K.C., Conner, K.C., and Norwood, for the respondent, Anne Hurley.

The arguments of counsel were in substance the same as those reported in the Court of Barton, J.

Ignatius J. O'Brien, K.C., and A. M. Sullivan, for the appellant.

Ronan, K.C., Conner, K.C., and Norwood, for the respondent, Anne Hurley.

The Lord Chancellor:—

In this case we have had a learned discussion upon a conflict of title between the heir-at-law of a deceased husband and the widow of that husband, to two terms of years which had belonged to the wife when she married, the reversion on which was bought by the husband in the Landed Estates Court on 25th February, 1898.

The widow survived, and claims the terms of years as hers by survivorship. The heir-at-law, on the other hand, says that the husband, by his own act, purchased, and thereby merged the terms; though it would have been otherwise if he had acquired the reversion by act of law only.

It is somewhat refreshing to find that the venerable authorities and dicta which have been cited from the blackletter reports are irreconcilably in conflict, and as regards text-writers we have on the one side the high authority of Preston, Conv., vol. 3, pp. 273–303, which we find copied into some respected text-writers, and on the other the equally valuable opinion of Lord St. Leonards in his work on Vendors and Purchasers p 619, for what he vouches as the opinion, though not the decision, of the Court of Exchequer in Jones v. Davies (1), affirmed in the Exchequer Chamber (2). It is not easy to appreciate the distinction in principle between the act of the party and the act of law, such as marriage or descent, where the husband accepts the status and benefits. There was only one case cited as a direct authority on the very question before the Court: Carter v. Lowe (3), which appears to me a somewhat complicated case.

We are I think driven, as Mr. Justice Barton considered he was, to decide the question on principle. The law as to the right of a husband to his wife's chattels real is settled from the earliest times. He can alienate or dispose of them during his life by an act inter vivos; and if he survives his wife, they become his absolutely. On the other hand, if the wife survives, without the husband having alienated or disposed of them, she takes them absolutely as survivor. This disposition by him would equally take place if he took a new lease, because this involves a surrender of the old, and this is equal to an assignment. This revival of property in the wife on his death, when she survives, is only defeasible by his disposition of the term during his life.

In the view I take of this case, there has not arisen that incompatibility of the subsistence of two estates, which might have arisen if the husband had conveyed to him, in possession, the fee-simple of the lands as comprised in the leases. This would raise acutely the question discussed by Mr. Preston, and would only leave for discussion the question, whether his having the term in autre droit would make a difference. I am disposed to think that, applying the equitable rules to the doctrine of merger, which even in a Court of law now we are bound to apply, the estates would not coalesce to the prejudice of the wife, not being vested in the husband in the same right, unless it could be held that the conveyance to him involved a disposition or surrender of the wife's term. This inference would not be necessary; for his deed, and the transaction of itself, would not show an intention to defeat the wife's right. It would be like the case where a husband has mortgaged his wife's chattels real, which has been held not to defeat the right of the wife to redeem: Clarke v. Burgh (1). But further in the present case the merger is founded on the deed of 1898, which conveys to him the reversion subject to the chattel terms. Unless the wife's term is dealt with, the former rights, including hers by survivorship, continue; and how can we infer an intention to dispose of, or deal with the terms, of which

he was possessed in right of his wife, when the deed purports to preserve them? He could after the deed of 1898, as before, assign or dispose of the terms; but, as he died without doing so, I think the wife's right remains.

I am quite satisfied with the judgment of Mr. Justice Barton, and the reasons on which he has founded it.

Fitz Gibbon, L.J., concurred.

Holmes, L.J.:—

A lady entitled to the lessee's interest in certain premises under two leases for the respective terms of 300 years married in 1873 without any settlement; and her husband during the coverture purchased, in the Land Judge's Court, the fee-simple estate in the premises, which were conveyed to him by the Land Judge, subject to the two leases.

The wife, who survived her husband, claims in this action the interest under the leases; and her right depends upon whether the purchase by her husband of the reversion in fee did, or did not, operate as a merger of the terms of years. There is no evidence of intention, or of any matter from which intention might be inferred; and if there was merger, it can only have arisen, as the case is presented to us, from the conveyance by the Land Judge. Although the question under consideration has been discussed by Judges and writers on the law of real property for two or three centuries, no conclusion has been hitherto arrived at; and the views of great lawyers are so conflicting as to justify the author of Platt on Leases in not attempting to reconcile them, being as he said convinced that nothing short of a modern judicial decision can reduce this confusion to order.

Mr. Sullivan, in his argument, relied on cases in which it was held that where an executor, possessed of a term of years, purchased the reversion in fee, there was a merger of the leasehold interest, and he contended that this is a much stronger decision than what is asked for by the appellant. It would certainly be so if the executor had no beneficial interest in the term. But I think it clear that in these cases there had been no bequest of the term, and that, therefore, by the old law, it was the property of the executor. This is shown by the fact that, even in such a case, the Courts of Equity would not allow merger to prejudice the testator's creditors

I asked Mr. Sullivan to refer us to any actual decision of the matter now in controversy, and the only one he could mention was Carter v. Lowe (1), but I find that the facts therein were materially different. The wife had a term of years, and the husband after marriage obtained another lease. He had the same right to surrender the premises demised to his wife as to assign them; and the acceptance of a new lease implied such a surrender. Therefore, it was a case where the husband, being himself a lessee, acquired the fee. In these circumstances, I am not disposed to weigh the opinions of Dyer and Manwood as against Hobart and Holt. I know that Mr. Preston, who seems to have been an enthusiastic champion of merger, preferred the former; and that Lord St. Leonards, in his last edition of the Law of Vendors and Purchasers, appears to lean towards the latter.

I shall try to...