Keelan v Garvey

JurisdictionIreland
CourtSupreme Court (Irish Free State)
Judgment Date01 January 1925
Docket Number(1923. No. 496).
Date01 January 1925

Supreme Court.

(1923. No. 496).
Keelan v. Garvey.
KEELAN
and
GARVEY (1)

Statute of Limitations - Husband and wife - Husband in possession of lands as tenant - Husband going away and wife remaining in possession - Wife claiming title to lands as against her husband - Character of wife's occupation - Real Property Limitation Act, 1833 (3 & 4 Wm. 4, c. 27), sect. 7 - Wife's title erroneously registered - Rectification of register - Local Registration of Title (Ireland) Act,1891 (54 & 55 Vict. c. 66), sect. 34.

Appeal by Peter Keelan, the plaintiff, from an order made by Molony L.C.J., sitting for the Master of the Rolls on May 13th, 1924, by which he declared that the appellant's wife had acquired a title under the Statute of Limitations to a farm of land at Corduff, County Monaghan (1).

The facts are briefly summarised in the head-note and are fully stated in the judgment of Kennedy C.J.

Plaintiff's father died in 1896, having by his will bequeathed his small farm to plaintiff, subject to the use of two apartments and a small piece of ground, with other privileges, to his wife (plaintiff's mother), and also subject to the use, by another son, of certain workshops, with two other apartments. In February, 1897, plaintiff married, and he and his wife resided on the farm, where plaintiff's mother and brother also continued to reside. Soon after the marriage quarrels took place between plaintiff and his wife, whereupon, in November, 1897, he left the farm, and did not return until 1923, after the death of his wife. His wife continued to reside at, and manage the farm until her death. Plaintiff's mother left the farm in February, 1902, but until her death in 1914 she had the use of the small piece of ground, and received annual supplies of potatoes, &c., from the farm, as directed by her husband's will. In 1908 or 1909 plaintiff's brother left the farm.

On November 1st, 1906, plaintiff's wife signed an agreement for the purchase of the holding under the provisions of the Irish Land Act, 1903. On May 13th, 1909, the holding was vested in her by fiat of the Land Commission, and on November 26th, of the same year, she was registered in the Land Registry as owner in fee-simple, "subject to equities." On November 16th, 1919, the note on the register in regard to equities was, on her application, cancelled. In her affidavit in support of that application she stated that the plaintiff left the country in 1897; that he had not since been heard of, and was believed to be dead, and that since his departure she had been in sole and undisturbed possession of the lands. With the exception of two letters, written within a week after his departure, his wife had during all the years received no communication from the plaintiff. In one of these letters he asked her to sell crops, and pay some debts he owed, and in the other letter he stated he was going abroad (though he did not do so). The wife died on April 16th, 1923, and by her will devised and bequeathed the farm to her brother. Plaintiff claimed to be beneficially entitled to the farm, and sought a declaration that his wife's executor held the farm as a trustee for him.

Held, that the plaintiff never ceased to be in possession of the farm, that his wife never entered into possession adversely to him; that she was provided with a residence and with support on his farm in fulfilment of his marital obligations; and that the Statute of Limitations never ran against him, and, accordingly, that his wife's executor was a trustee of the legal estate for him.

Held also, that a mistake had been made in registering the title of his wife to the farm "free from equities," and that the register must be rectified accordingly.

Decision of Molony L.C.J. [1924] 1 I.R. 107, reversed.

Jack v. Walsh, 4 Ir.L.R. 254, distinguished.

Kennedy C.J. :—

This action is concerned with a small holding of land, part of the lands of Corduff, containing 22 acres 1 rood and 10 perches statute measure, in the Barony of Farney, and County of Monaghan, now registered in Folio 4489 of the Register, County Monaghan, subject to a land purchase annuity of £6 16s. 6d., payable to the Irish Land Commission under the Irish Land Act, 1903. The land purchase advance was £210, and the Poor Law Valuation is £10 10s.

The holding, which was situate on what was called the Shirley Estate, was formerly held by one Patrick Keelan, father of the plaintiff, under a present tenancy, upon which a judicial rent of £10 a year was fixed by Order in the year 1888.

Patrick Keelan died on the 22nd day of June, 1896, having made a will dated the 15th June, 1896, which was duly proved on the 13th November, 1896, by Bernard M'Kitterick and Patrick Hand, the executors therein named.

By his said will Patrick Keelan gave and bequeathed the said holding, or farm of land, to his son, Peter Keelan, the plaintiff, but the will went on to provide that his (testator's) wife, Catherine Keelan (whom I will hereafter refer to as Catherine Keelan, senior), should have "full possession of the sleeping apartment" then occupied by her "with the apartment immediately over it during her day." He further provided that his son, Patrick Keelan, was "to have the use of the work shops, with the two apartments under it as long as he chooses."The will also contained the following provision:—" My son, Peter Keelan, is to allow to his mother, Catherine Keelan, before-mentioned, three hundred weight of oaten meal per year, or, in lieu thereof, two pounds sterling per year, all the produce of half a rood of potatoes per year, and the use of an acre of ground, or thereabouts, situated on the side of the road farthest from the house, all during her day, and all free of any expense on her part."

On the 13th February, 1897, the plaintiff married Catherine Ward (whom I will hereafter refer to as Catherine Keelan, junior), and she went to live with him on the holding where also Catherine Keelan, senior, and the plaintiff's brother, Patrick, continued to reside. Catherine Keelan, junior, does not appear to have brought any fortune to her husband, and no settlement was made on the marriage.

Soon after the marriage quarrels took place between the parties, whereupon, in the month of November, 1897, the plaintiff left the farm, and did not return until the year 1923, upon the death of his wife.

From November, 1897, when the plaintiff left, there continued to live on the holding the plaintiff's wife, Catherine Keelan, junior, his mother, Catherine Keelan, senior, and his brother Patrick, until the respective dates which I will mention later.

In the month of February, 1902, Catherine Keelan, senior, left the holding, and went to reside with a married daughter in the same neighbourhood, and so continued until her death in the month of May, 1914. All during that period, up to her death, she received the oatmeal and potatoes provided for her by her husband's will, and she had the use of the acre of land according to the will, and kept some live stock upon it.

In the year 1908 or 1909, the plaintiff's brother, Patrick, left the holding, and does not appear to have returned there at any time.

On the 1st November, 1906, Catherine Keelan, junior, signed an agreement for the purchase of the holding under the provisions of the Irish Land Act, 1903. In that agreement, which is in the usual form, Catherine Keelan, junior, is described as "tenant in occupation of the said holding." The agreement does not contain any reference to any other person as having any interest in the holding, nor is Catherine Keelan described as a married woman.

On the 13th May, 1909, the holding was vested in Catherine Keelan, junior, by fiat of the Irish Land Commission, and on the 26th November, of the same year, she was registered in the Land Registry as owner in fee-simple of the holding "subject to the rights or equities (if any) arising from the interest vested" in her by the said fiat "being deemed to be a graft on her previous interest in the land or arising in any other manner from the...

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