Moley v Fee

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 27 April 2007
• Neutral Citation: [2007] IEHC 143
• Docket Number: No. 8665 P/2000
• Court: High Court
• Date: 27 April 2007

[2007] IEHC 143

THE HIGH COURT

No. 8665 P/2000

MOLEY v FEE

BETWEEN/

JAMES MOLEY

PLAINTIFF

AND

COLIN FEE

DEFENDANT

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S31

LAND ACT 1965 S12

STATUTE OF LIMITATIONS 1957 S2(2)(a)

HOWLIN v POWER (DUBLIN) LTD UNREP MCWILLIAM 5.5.1978

COFFEY & ANOR v BRUNEL CONSTRUCTION COMPANY LTD 1983 IR 36

SEAMUS DURACK MANUFACTURING LTD v CONSIDINE 1987 IR 677 1987 6 1623

LAND

Property

Oral agreement to sell property - Part performance - Constructive trustee - Adverse possession - Animus possidendi - Plaintiff purchasing from party to oral agreement - Whether agreement part performed - Whether plaintiff could seek specific performance - Whether claimant to possessory title required intention to possess - Whether constructive trustee could acquire possessory title against beneficiary - Whether claim statute barred - Whether plaintiff entitled to equitable relief - Whether plaintiff had clean hands - Whether subsequent transfer of interest legal - Whether necessary to specifically plead illegality of subsequent transfer - Coffey v Brunel Construction [1983] IR 36; Seamus Durack Manufacturing Ltd v Considine [1987] IR 677 applied - Statute of Frauds (Ireland) 1695 (7 Will 3, c 12) - Statute of Limitations 1957 (No 6), s 2(2)(a) - Claim dismissed (2000/8665P - Laffoy J - 27/4/2007) [2007] IEHC 143

Moley v Fee

The defendant was sued in these proceedings as personal representative of the deceased. The plaintiff claimed a declaration that he was entitled to the freehold interest in property situated at Wavecrest Drive, Blackrock, Co. Louth. He also sought a declaration that the title of the deceased was statue barred and alternatively that the deceased was a trustee for two named individuals, who it is alleged purchased the property from the deceased and subsequently sold it to the plaintiff. The plaintiff also sought an order directing the defendant to convey or transfer the freehold interest in the said property to the plaintiff. The defendant delivered a full defence and counterclaimed against the plaintiff, asserting that the deceased was the registered owner of the lands and was at all times entitled to possession of the property. The relief sought in the counterclaim was an injunction restraining the plaintiff from interfering with the defendant’s property and damages for trespass and slander of title.

Held by Laffoy J. in dismissing the plaintiff’s claim and making no order on the counterclaim: That the deceased verbally agreed to sell the disputed plot of land to the two named individuals on the terms alleged. The intention was that there would be a formal agreement, however the transaction was never completed. The onus of proving that the deceased received the purchase money was on the plaintiff and he failed to prove that. Neither of the individuals occupied or exercised acts of ownership over the disputed plot of the type that would constitute possession for the purposes of the Statute of Limitations and furthermore they did not possess the necessary animus possidendi. However, the deceased did exercise acts of ownership over the disputed plot subsequent to the oral agreement and therefore he remained the owner thereof until his death.

There was no evidence of any damage suffered by the deceased or his estate due to the actions of the plaintiff and therefore no order should be made on the counterclaim.

Reporter: L.O’S.

Miss Justice Laffoy

1 These proceedings were commenced by plenary summons which issued on 25th July, 2000 between the plaintiff and Thomas Fee (the Deceased). The Deceased died on 16th January, 2005. Probate of his will was granted to the defendant on 22nd December, 2005. Subsequently, by order of the Master dated 11th May, 2006, it was ordered that the proceedings be carried on and prosecuted between the plaintiff and the defendant. In effect, the defendant is sued as personal representative of the Deceased.

2 At the hearing of the action the plaintiff was given leave, somewhat reluctantly, to amend his statement of claim. The factual basis of the plaintiff's claim as pleaded in the amended statement of claim is as follows:

3 · The Deceased was formerly the owner of "certain lands situated at Wavecrest Drive, Blackrock, Dundalk, in the County of Louth, comprised within Folio No. 12029".

4 · In or about the month of April, 1975 the defendant agreed to sell "a part of" that property to Patrick McEneaney and a part to Gerard Cumiskey for a consideration of IR£300 each and Mr. McEneaney and Mr. Cumiskey each paid to the defendant (meaning the Deceased) the agreed consideration of IR£300.

5 · As a result of the agreement (which in a reply dated 13th July, 2001 to notice for particulars was stated to be a verbal agreement) and in consideration of the payment of IR£300 each, the Deceased permitted Mr. McEneaney and Mr. Cumiskey to enter upon and take possession of the lands and carry out work of site improvement. Subsequently, Mr. Cumiskey placed a mobile home on his portion "of the said site". Mr. McEneaney and Mr. Cumiskey have each enjoyed ownership and possession of their respective portions "of the said site" and have exercised such rights to the exclusion of all others without any objection from the Deceased.

6 · In or about the month of September, 1999 Mr. McEneaney and Mr. Cumiskey agreed to sell their respective portions of the said property to the plaintiff and the plaintiff has paid the agreed consideration.

7 · The Deceased by his solicitor alleged that the plaintiff had trespassed on the land and threatened to take action against him.

8 The basis in law of the plaintiff's claim as pleaded is that by reason of the payment of the full consideration by Mr. McEneaney and Mr. Cumiskey to the Deceased, as alleged, each of them was entitled to the freehold interest in his respective portion of the property. By entry into possession of the property and continuing in sole and exclusive occupation by Mr. McEneaney and Mr. Cumiskey, any right or title of the Deceased has been statute barred. Mr. McEneaney and Mr. Cumiskey having paid the full purchase price for the property, the Deceased was a trustee of the property for Mr. McEneaney and Mr. Cumiskey. The plaintiff, having purchased the interest of Mr. McEneaney and Mr. Cumiskey, is entitled to the property.

9 The first relief which the plaintiff claims is a declaration that he is entitled to the freehold interest "in all the property situated at Wavecrest Drive, Blackrock, Dundalk in the County of Louth". Additionally, he seeks declarations that the title of the Deceased is statute barred and, alternatively, that the Deceased was a trustee for Mr. McEneaney and Mr. Cumiskey. The plaintiff also seeks an order directing the defendant to convey or transfer the freehold interest "in the said property" to the plaintiff. If necessary, the plaintiff also seeks an order appointing a trustee for the purposes of conveying the property to Mr. McEneaney and Mr. Cumiskey and/or the plaintiff. An order is sought in the amended statement of claim which was not sought in the original statement of claim: an order for the rectification of the register "in respect of a portion of Folio 12029 County Louth, the subject of the proceedings herein".

10 In recording the plaintiff's claim as pleaded, I have highlighted what I consider to be vagueness and uncertainty as to the property the subject of the proceedings. While this was not an issue during the hearing of the proceedings, it is an issue for the court in the light of the evidence. However, I will return to that aspect of the matter later.

11 In his defence, the defendant has traversed all of the allegations made by the plaintiff in relation to the dealings between the Deceased and Mr. McEneaney and Mr. Cumiskey. In particular the defendant has denied that Mr. McEneaney and Mr. Cumiskey entered into and continued in sole and exclusive occupation of the property and it is further denied that Mr. McEneaney and Mr. Cumiskey paid the purchase price to the Deceased. Alternatively, the defendant asserted that, if there was an agreement between the Deceased and Mr. McEneaney and Mr. Cumiskey, it is unenforceable for failure to comply with the Statute of Frauds (Ireland) 1695. Alternatively, the entitlements of Mr. McEneaney and Mr. Cumiskey under the alleged agreement are statute barred. The defendant has also alleged that Mr. McEneaney and Mr. Cumiskey were guilty of laches.

12 The defendant has also counterclaimed against the plaintiff, asserting that the Deceased was the registered owner of lands comprised in Folio 12029 and that the Deceased was at all times entitled to possession of the property. There followed an allegation of trespass and of slander of title by the institution and maintenance of these proceedings. The relief sought in the counterclaim is an injunction restraining the plaintiff from interfering with the defendant's property and damages for,inter alia, trespass and slander of title.

13 In his reply and defence to counterclaim the plaintiff joined issue with the defendant on the defence. Specifically, he asserted that the Deceased had by his solicitor in open correspondence acknowledged that he had sold "the said property" to the plaintiff's predecessors in title, Mr. McEneaney and Mr. Cumiskey. It would appear that the defendant did not seek to identify the "open correspondence" by seeking particulars.

14 In relation to the events between 1975 and 1977, the court heard the evidence of Mr. McEneaney and Mr. Cumiskey, who were called by the plaintiff, Mr. Cumiskey having appeared in answer to a subpoena. Two of the Deceased's children, the defendant and Gillian McBride, were called by the defendant in relation to those events. At the time, the defendant was a small boy and Mrs....