Irish Land Commission v Murphy [High Court.; Supreme Court.]
| Jurisdiction | Ireland |
| Judgment Date | 26 May 1939 |
| Date | 26 May 1939 |
| Court | Supreme Court |
High Court.
Supreme Court.
Execution - Order for possession of lands - Delivery of possession by Sheriff - Whether necessary to remove all chattels - What constitutes complete delivery of possession - Land Act, 1927 (No. 19 of 1927), s. 37, sub-s. 1.
Two Appeals from the Circuit Court which were heard together.
The Irish Land Commission issued a Civil Bill, in which James Murphy and Mary Kate Murphy, his wife, were defendants, the claim as indorsed thereon being as follows:—
"1. By order of the Court of the Irish Land Commission, dated the 8th day of March, 1932, it was ordered by the Court pursuant to s. 37 of the Land Act, 1927, that the Under Sheriff of the County of Waterford, upon delivery of the said order to him, should cause the Irish Land Commission to have possession of that part of the lands of Ahaunboy North, containing 107 acres, 1 rood, and 22 perches, statute measure, or thereabouts, and situate in the Barony of Coshmore and Coshbride, and County of Waterford, then in the possession and occupation of the said James Murphy and Mary Kate Murphy provided that, if the sum of £828 19s. 1d., being arrears of annuity and costs due to the Irish Land Commission, was paid to the Irish Land Commission within one month from the date of the service of the said order, then the said order should not be delivered to the said Under-Sheriff for execution.
2. The said defendants having failed to pay the said sum of £828 19s. 1d., the said order for possession was duly delivered to the Under-Sheriff, and same was executed on the 15th day of July, 1932, when possession of the said lands was handed over by the County Registrar for the County of Waterford to an Inspector duly appointed by the Irish Land Commission in that behalf.
3. On the 5th day of December, 1932, the Irish Land Commission was duly registered as full owner of the said lands, same being comprised in Folio No. 2688 of the Register of the County of Waterford.
4. The said defendants shortly after the execution of the said order for possession entered upon the said lands and have since been occupying certain of the outoffices on same and have been grazing the said lands and making lettings of same for grazing purposes and have otherwise trespassed upon and injured the buildings and fences on the said lands and refuse to allow the plaintiffs the clear and undisputed possession of same. The annual value of the said lands does not exceed £60.
The plaintiffs seek:—
1. A declaration that in the events that have happened the plaintiffs are the absolute owners of the said lands and entitled to the use and possession of same.
2. An injunction restraining the defendants from trespassing, or continuing to trespass, upon the said lands.
3. An enquiry as to what damages the plaintiffs have suffered by reason of the continued trespass by the said defendants upon the said lands since the date of the execution of the order for possession."
The defendants in their defence traversed the averments in the plaintiffs' Civil Bill and also pleaded that the plaintiffs were not entitled to be registered as full owner of the holding.
The defendant, James Murphy, also brought a cross Civil Bill claiming that the register be rectified by expunging the name of the plaintiffs as full owner therefrom and by the inscription of his name in substitution therefor; alternatively, he claimed a declaration that the plaintiffs held the lands as trustees for him.
The two Civil Bills were heard together by the Circuit Court Judge (Judge Sealy) who delivered judgment in both cases in favour of the Irish Land Commission.
From Judge Sealy's order the defendants appealed to the High Court.
The defendants appealed to the Supreme Court (2),pursuant to leave granted, on the ground that the Court was wrong in holding that the order for possession had been properly executed.
Sect. 37, sub-s. 1, of the Land Act, 1927, provides:—
"Where the Land Commission have at any time, whether before or after the passing of this Act, put up for sale by public auction a holding which they are entitled to cause to be sold and the holding has not been sold, the Judicial Commissioner may issue an order under this section directing the Under-Sheriff to put the Land Commission into possession of the holding, and the order shall, when delivered to the Under-Sheriff, be executed by him in like manner as a writ for delivery of possession. Upon the execution of the order by the Under-Sheriff the holding shall vest in the Land Commission without any conveyance or further order subject to the purchase annuity (if any) charged thereon and to any charge under the Public Works Acts, but discharged from all other claims or incumbrances of all persons whomsoever who are interested in the holding."
Pursuant to an order made by the Judicial Commissioner on the 8th day of March, 1932, under the above sub-section, directing the Under-Sheriff to put the Irish Land Commission into possession of the holding of the defendant J. Murphy, the Sheriff's officer, accompanied by an Inspector of the Irish Land Commission, entered the defendant's lands on the 15th July and walked the bounds of his farm and through his fields. The cattle were removed by the Sheriff's officer from the lands to the public road, but a car which was in the barn on the lands and which did not belong to either the defendant or his wife, who was the other defendant, was not removed. The furniture of the house was removed only to the yard outside on ground within the holding. The doors of the house were fastened, the key of the house and a sod of grass were given to the Inspector, the defendants were put out on the road or left the premises, and the Sheriff's officer handed over possession of the holding to the Inspector. On the 5th day of December the Land Commission were registered under the Local Registration of Title Act, 1891, as full owners. On the day of the eviction, shortly after the departure of the Sheriff's officer and the Land Commission Inspector, the defendants went back into the possession of the barn where they lived for some time, and ultimately they returned to the house and resumed possession of the holding. The Land Commission issued a Civil Bill claiming a declaration that they were the absolute owners of the lands and entitled to possession and an injunction restraining the defendants from trespassing on the lands. The defendants contended that the order of the 8th March, 1932, had not been properly executed inasmuch as the chattels in the house were only left outside the house and were not removed to the public road, and the defendant, J. Murphy, also brought a cross action claiming that the register be rectified by the substitution of his name for that of the plaintiffs in relation to the holding. The Circuit Court Judge held that the order for possession had been executed, as it was not necessary to remove all the chattels on the lands, and he gave judgment for the Land Commission. On appeal by the defendants to the High Court, the decision of the circuit Court Judge was affirmed. The defendants appealed to the Supreme Court.
Held by the Supreme Court, affirming the High Court, that the Under-Sheriff had "put the Land Commission in possession of the holding"within the meaning of s. 37 of the Land Act, 1927. and that thereupon the holding had vested in the Land Commission, and accordingly the appeal must be dismissed.
Per Sullivan C.J.: The fact that the defendants' furniture was not put
out on the road but only in the yard outside the house did not prevent the Sheriff from giving clear and full possession to the plaintiffs.Per Murnaghan J.: The long established practice shows that the chattels should in general be removed outside of the house as a definite proof of taking up possession—there may be exceptional cases where this is not necessary—but there is no reason why the chattels must be removed on to the public road.
Per Meredith J.: It is not an absolute rule that it is necessary to remove all the chattels from a house in order to deliver up possession. It is only when circumstances are relied on by a defendant as showing that simple acts that ordinarily would imply a delivery of possession did not have that implication that it becomes necessary to consider such circumstances.
Cur. adv. vult.
| Johnston J.: — |
I have considered very carefully the questions arising in this appeal, and having had the privilege of reading the judgment which is about to be delivered by my brother Gavan Duffy I have come to the conclusion that it is unnecessary for me to say anything further.
I agree with his conclusions and for the reasons that he will state.
Gavan Duffy J. :—
The Irish Land Commission, in the first of these actions, claims a declaration that it is absolute owner of the lands of Ahaunboy North in the County of Waterford, by virtue of an order for possession, made on the 8th of March, 1932, against the defendants, James Murphy and Mary Kate Murphy, his wife, by the Court of the Irish Land Commission under s. 37 of the Land Act, 1927 (No. 19 of 1927), and by virtue of the execution of that order by the Under-Sheriff on the 15th of July, 1932; the lands are registered lands, and the Irish Land Commission was registered as full owner on the 5th of December, 1932. The plaintiffs further claim an injunction against the defendants to restrain them from trespassing upon the lands, which they have re-occupied.
In the second action the said James Murphy asks that the register be rectified by expunging the name of the Irish Land Commission as full owner and substituting his own, on the ground that the Under-Sheriff never duly executed the said order for possession.
The learned Circuit Court Judge decided both actions in favour of the Irish Land Commission.
There was a...
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