Mohan v Roche

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 11 February 1991
• Neutral Citation: 1991 WJSC-HC 2158
• Court: High Court
• Docket Number: [1990 No. 785Sp.],No. 785 Sp./1990
• Date: 11 February 1991

1991 WJSC-HC 2158

THE HIGH COURT

No. 785 Sp./1990

MOHAN v. ROCHE

IN THE MATTER OF A CONTRACT FOR SALE OF FREEHOLD

PROPERTY NO. 5 APPIAN WAY, RANELAGH, CITY OF DUBLIN

DATED THE 3RD DAY OF OCTOBER 1990 AND MADE BETWEEN

THOMAS ROCHE (VENDOR) AND COLM MOHAN (PURCHASER)

AND IN THE MATTER OF THE VENDOR AND PURCHASER ACT 1874

BETWEEN

COLM MOHAN

PLAINTIFF

AND

THOMAS ROCHE

DEFENDANT

Citations:

SUCCESSION ACT 1965 S27(4)

ASHE V HOGAN 1920 1 IR 159

PERRY V WOODFARM HOMES LTD 1975 IR 104

LANDLORD & TENANT (GROUND RENTS) (NO 2) ACT 1978

ASSHETON V BOYNE 1964 2 WLR 913

SUCCESSION ACT 1965 S52(2)

SUCCESSION ACT 1965 S52(5)

SUCCESSION ACT 1965 S53(1)

REGISTRATION OF DEEDS ACT 1707

ADMINISTRATION OF ESTATES ACT 1925 S36(4)

STAMP DUTIES COMMISSIONER (QUEENSLAND) V LIVINGSTONE 1965 AC 694

FARRAND, DISSENT ON ASSENTS 1964 108 (P+2) SJ 698

GARNER ASSENTS TODAY CONVEYANCER V28 298

TICHBORNE V WEIR 67 LT 735

SUCCESSION ACT 1965 S53(5)

KINGS TRUSTS, IN RE 1964 2 WLR 913

Synopsis:

ADMINISTRATION

Intestacy

Real estate - Owner - Widow administratrix - Children of deceased owner - Interests of children released to widow - Death of widow - Sale by widow's executor - No vesting assent by administratrix of her widow's estate - Whether assent required to complete vendor's title - (1990/785 Sp. - Keane J. - 11/2/91) 1991 1 I.R. 560

|Mohan v. Roche|

REAL PROPERTY

Devolution

Owner - Intestacy - Administratrix - Widow of intestate - Next- of-kin - Releases - Absence of assent of widow vesting land in herself - Title of widow unaffected - (1990/785 Sp. - Keane J. - 11/2/91) - [1991] 1 I.R. 560 - [1991] 13 DULJ 159

|Mohan v. Roche|

SALE OF LAND

Title

Real property - Owner - Intestacy - Administratrix of intestate - Widow - Estate - Vesting - Assent of widow to vesting of property in herself - Whether such assent necessary - Purchase from widow's successor in title - Succession Act, 1965, ss. 52, 53 - (1990/785 Sp. - Keane J. - 11/2/91) - [1991] 1 I.R. 560

|Mohan v. Roche|

SUCCESSION

Intestacy

Land - Vesting - Administratrix of intestate owner - Widow - Next-of-kin - Rights released - Absence of assent of widow vesting land in herself - Title of widow unaffected - (1990/785 Sp - Keane J. - 11/2/91) - [1991] 1 I.R. 560 - [1991] 13 DULJ 159

|Mohan v. Roche|

1 JUDGMENT delivered the 11th day of February 1991 by Keane J.

2 The facts in this matter can be shortly stated. The plaintiff bought a house, No. 5 Appian Way, Ranelagh, Dublin, on October 3rd 1990 for £146,000. The house was held under a fee farm grant dated 1st June 1877. The special conditions as to title provided that the title was to commence with this fee farm grant and then pass to a conveyance dated the 22nd January 1959 between Daniel McMenamin of the one part and Michael Roche of the other part. The vendor was selling as the personal representative of Mary B. Roche who was the widow of Michael Roche to whom the property was conveyed by the Deed of January 22nd 1959. He died intestate on the 14th October 1967 and letters of administration of his estate were granted to his widow on the 3rd June 1968. By deed of family arrangement dated 29th December 1969 and made between the nine children of Michael Roche and his widow, the nine children "granted released and conveyed" to the widow for natural love and affection their interest in the house. The widow died on the 5th October 1989 having by her last will appointed the defendant and Patrick Roche her executors. Probate of the will was granted to the defendant on the 31st July 1990, the rights of the other executor being reserved.

3 The objections and requisitions raised by the purchaser's solicitors included one in a standard form (No. 18.1.):

"Furnish a written assent registered in the Registry of Deeds by the personal representative of any person on the title who died after 31st May 1959."

4 The reply to this requisition was "vendor is selling as personal representative".

5 The purchaser's solicitor assumed that an assent in writing by Mary B. Roche to the vesting of the property to those beneficially entitled (including herself) would be furnished at or prior to completion. It transpired, however, that no such assent had ever been executed and, accordingly, the purchaser's solicitor declined to close the sale unless and until what was claimed to be the resultant defect in the title was cured by the extraction of a grant de bonis non to the estate of Michael Roche, the execution of an assent and its registration in the Registry of Deeds. The vendor's solicitors claimed that these steps were unnecessary on three principal grounds:

6 (1) No such assent was required since the entire beneficial interest in the property was vested in Mary B. Roche by the execution of the deed of family arrangement of 29th December 1969;

7 (2) In so far as any such assent was required, the deed in question constituted an implied assent in writing signed by Mary B. Roche which met the relevant statutory requirements as to such assents;

8 (3) Mary B. Roche had in any event been in undisturbed possession or receipt of the rents of the house from the 29th December 1969 onwards and hence had acquired a possessory title to the house at the date of her death.

9 Both parties being unwilling to withdraw from their respective positions, this vendor and purchaser summons was issued on behalf of the purchaser requesting the court to resolve the dispute.

10 The purchaser's solicitor was first asked for a copy of the assent in a letter of 30th October 1990. At that stage, the time for raising rejoinders had expired and under condition 17 of the general conditions of sale any reply to the requisition which had not been answered by the purchaser was to be considered as satisfactory. However, Mr. Brady S.C. for the vendor, properly in my view, did not press any argument on this aspect of the case: the purchaser's solicitor was equally entitled to insist on a strict reading of the reply actually furnished to the requisition and to assume that a copy of the assent would be furnished before or at completion.

11 Mr. Farrell S.C. on behalf of the purchaser submitted that, since the relevant sections of the Succession Act 1965provided that an assent in writing signed by the personal representative was a necessary pre-condition under the relevant sections of the Succession Act 1965to the vesting of any estate or interest in unregistered land which was the property of the deceased, it followed that the purchaser was entitled, in the absence of such an assent, to insist on this defect in the title being cured. He said that this could be done relatively simply either by extracting a grant de bonis non or by the court making an order under s 27(4) of the 1965 Act appointing a person to be administrator. In either case, the necessary assent could then be signed by the administrator and registered in the Registry of Deeds as required by the relevant sections. He submitted that, since the only purpose of the deed of family arrangement was to transfer the beneficial interest of the children to the widow, the fact that it was signed by her could not possibly make it an assent for the purpose of the 1965 Act. As to the vendor's claim that he was in a position to convey a possessory title, Mr. Farrell submitted that a purchaser, in the absence of an express stipulation to that effect in the contract, could not be required to accept such a title. (He referred to Ashe v Hogan (1920) 1 IR 159). He also drew attention to certain convenants in the fee farm grant, the breach of which entitle the fee farm grantor to re-enter. Pointing out that the Supreme Court in Perry v Woodfarm Homes Limited ( (1975) IR 104) had rejected the view that there was a "parliamentary conveyance" of the lessee's interest to a squatter at the end of the limitation period, he said that it followed that the purchaser would be unable to acquire the estate of the fee farm grantor compulsorily under the Landlord and Tenant (Ground Rents) (No. 2) Act 1978and that hence the convenants would remain in force. In the result, the fee farm grant might be forfeited because of the breach by the grantee of the convenants to keep the house in repair and to use it solely as a private dwellinghouse. Mr. Farrell acknowledged that the latter was a somewhat remote contingency, but might well be raised by lending institutions, creating unnecessary difficulties for the purchaser. He also urged that such institutions were, in any event, more ready to make advances on the security of properties where a documentary title rather than a possessory title was offered.

12 Mr. Brady S.C. on behalf of the vendor submitted, first, that the execution of an assent by a personal representative was not necessary in circumstances such as the present where she would merely be assenting to the vesting of the interest in herself. He pointed to the words of the relevant section, i.e. that an assent not in writing should not be effectual "to pass any estate or interest in land" and submitted that they had no relevance where no estate or interest was passing, since the relevant interest was already vested in the personal representative. He properly drew attention to an English decision, Re King's Trusts: Assheton v Boyne, ( (1964) 2 WLR 913...