Moore (plaintiff) v Moore and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Roderick Murphy
Judgment Date10 Dec 2010
Neutral Citation[2010] IEHC 263,[2010] IEHC 462
Docket Number[2007 No. 8143

[2010] IEHC 462

THE HIGH COURT

[8143 P/2007]
Moore & Sarsfield v Moore & Chetty

BETWEEN

MAUREEN MOORE AND, BY ORDER OF THE COURT, PEGGY SARSFIELD REPRESENTATIVE OF MAUREEN MOORE
PLAINTIFF

AND

JOHN MOORE, MARIA MOORE AND NADINE CHETTY
DEFENDANTS

STATUTE OF LIMITATIONS 1957 S21

STATUTE OF LIMITATIONS 1957 S24

SUCCESSION ACT 1965 S126

REGISTRATION OF TITLE ACT 1964 S31

REGISTRATION OF TITLE ACT 1964 S55

STATUTE OF LIMITATIONS 1957 S21

REAL PROPERTY LIMITATION ACT 1833 S12

TRACEY ENTERPRISES MACADAM LTD v DRURY UNREP LAFFOY 24.11.2006 2006/56/11884 2006 IEHC 381

DUNNE v IARNROD EIREANN & CORAS IOMPAIR EIREANN UNREP CLARKE 7.9.2007 2007/16/3349 2007 IEHC 314

STATUTE OF LIMITATIONS 1957 S71

KITCHEN v ROYAL AIR FORCE ASSOCIATION & ORS 1958 1 WLR 563 1958 2 AER 241

LIMITATION ACT 1939 S26B (UK)

KEELAN v GARVEY 1925 1 IR 1

IRISH LAND ACT 1903

DAILY, IN RE 1944 NI 1

LYALL LAND LAW IN IRELAND 3ED

LOCAL REGISTRATION OF TITLE (IRELAND) ACT 1891

STATUTE OF LIMITATIONS 1957 S7

WYLIE IRISH LAND LAW 4ED PARA 23.25

BRADY & KERR LIMITATIONS OF ACTION 2ED 196-198

PHILLIPS-HIGGINS v HARPER 1954 1 QB 411

CANNY LIMITATION OF ACTIONS 2010 PARA 10-23

STATUTE OF LIMITATIONS 1957 S72(2)

KEATING ON PROBATE 3ED 2007 17-01

REGISTRATION OF TITLE ACT 1964 S120

REGISTRATION OF TITLE ACT 1964 S31

REGISTRATION OF TITLE ACT 1964 S31(1)

PRACTICE AND PROCEDURE

Limitation of actions

Mistake - Fraud - Estoppel - Joint tenancy - Severance - Keelan v Garvey [1925] 1 IR 1 and In re Michael Daily [1944] NI 1 applied - Statute of Limitations 1957 (No 6), ss 21, 24, 55, 71, 72 and 74 - Civil Liability Act 1961 (No 41), s 21(1) - Registration of Title Act 1964 (No 16), ss 31, 55 and 120 - Succession Act 1965 (No 27), s 126 (2007/8143P - Murphy J - 10/12/2010) [2010] IEHC 462

Moore v Moore

PROBATE

Administration of estates

Succession - Widow - Personal representatives - Extent of duty - Keelan v Garvey [1925] 1 IR 1 and In re Michael Daily [1944] NI 1 applied - Succession Act 1965 (No 27), s 126 (2007/8143P - Murphy J - 10/12/2010) [2010] IEHC 462

Moore v Moore

REAL PROPERTY

Adverse possession

Spouses - Registration of title - Joint tenancy -Constructive desertion - Severance - Statute of Limitations 1957 (No 6), ss 21, 24, 55, 71, 72 and 74 - Civil Liability Act 1961 (No 41), s 21(1) - Registration of Title Act 1964 (No 16), ss 31, 55 and 120 - Succession Act 1965 (No 27), s 126 (2007/8143P - Murphy J - 10/12/2010) [2010] IEHC 462

Moore v Moore

1

JUDGMENT of Mr. Justice Roderick Murphy delivered the 10th day of December, 2010

1. Background
2

The plaintiff was born on the 29 th February, 1939, and died on the 16 th October, 2010, after the hearing of this action. Her family were from Drogheda.

3

On the 14 th May, 1960, the plaintiff married Eamon Russell and the parties resided for some time in the United Kingdom. The first and second named defendants believed that a decree of divorce was granted on the 22 nd July, 1968 in England. The plaintiff maintains that the marriage was dissolved on the 23 rd October, 1968 and that some years later on the 19 th June, 1981, a church nullity was granted.

4

In any event the plaintiff had, in the meantime, returned to Ireland and commenced employment around 1970 with John Gabriel Moore, who was then a widower with two children. The plaintiff married Mr. Moore in 1971, when those children were aged four and two respectively.

5

The plaintiff and Mr. Moore ultimately lived in 100 Mount Tallant Ave., Harold's Cross, which was purchased with the aid of a mortgage from the Educational Building Society ("EBS"), in the joint names of the plaintiff and Mr. Moore. The EBS loan was for £4,800 and, it would appear, that the premises were bought for a sum of some £6,000. Title thereto is registered in Folio 30984L of the Register of Leaseholders where the parties were registered as co-owners on the 20 th February, 1978.

6

Unhappy differences arose between the parties and on the 2 nd July, 1982, the plaintiff says that, due to the violence of Mr. Moore, she was forced to leave the premises. At no stage did she receive any maintenance. She applied for and was granted a Deserted Wife's Allowance of which she was in receipt until 1988, when she moved to Antwerp. The plaintiff continued to reside in Antwerp until 2002. She suffered two severe illnesses from cancer and ultimately returned to Drogheda where she resided with her mother at 5 Laburnum Square, North Road, Drogheda, from 2002 until the date of her death on 16 th October, 2010.

7

Mr. Moore continued residing at 100 Mount Tallant Ave, until the date of his death on the 5 th January, 1996. He died intestate and was described as a widower on his death certificate. The first and second named defendants were then aged approximately 29 and 27 years respectively. The Grant of Letters of administration issued to the first and second named defendants on the 24 th May, 2002, over six years after their father's death. Meanwhile, the Inland Revenue affidavit sworn by the first and second named defendants on the 12 th March, 2001, described Mr. Moore as a widower. The net value of his estate was given at £56,841. The value of the Mount Tallant premises was given as £60,000 subject to a loan in favour of the EBS of £4,313. The only other asset was monies in National Irish Bank of £2,400.

8

By letter dated the 25 th November, 1983, four months after leaving 100 Mount Tallant Avenue and over twelve years before Mr. Moore's death, the plaintiff's solicitor wrote to Mr. Moore in connection with her interest in the property. That letter stated that their client was then anxious to realise her share in the property and sought suggestions as to how this might be achieved. No reply was received to that letter.

9

Following the death of Mr. Moore, the defendants, and in particular the first named defendant continued to reside in and occupy the premises.

10

The first named defendant gave evidence of having made enquiries about the whereabouts of the plaintiff. Those enquiries included writing a letter to the plaintiff's original family home in Drogheda. Subsequently a death certificate of a Maureen Moore, aged 57 years, who died on the 21 st January, 1995, was obtained.

11

In May 2001, the first and second named defendants made an application to the Land Registry in respect of the lands comprised in the relevant Folio in order to have the entries thereon reflect what they said was the fact that the deceased was the sole owner of the property on the date of his death on the 5 th January, 1996. The affidavit was sworn by the first and second named defendant and contained the following averment:

"We say that the said Maureen Moore died on the 21 st January, 1995, thus severing the joint tenancy. We beg to refer to the death certificate of the said Maureen Moore upon which we have signed our name prior to the swearing thereof."

12

Five months after the grant of letters of administration was issued, the first and second named defendants agreed to sell 100 Mount Tallant Avenue. Pursuant to a contract for sale by transfer for value dated the 23 rd October, 2002, the premises were transferred to the third named defendant and she became the registered owner on that date.

2. Pleadings
13

The plaintiff's summons issued on the 22 nd November, 2007, in which she sought a declaration that upon the death of the said John Moore, deceased, she was entitled to register it as full owner of the premises and also sought a declaration that the first and second named defendants wrongfully converted the title deeds to the property to their own use and benefit by the purported sale of the property; that good title did not pass to the third named defendant; that the first and second named defendants were unjustly enriched by the purported sale of the property and held the proceeds of the property in trust for the plaintiff.

14

An amended defence of the first and second named defendants was delivered on the 13 th January, 2010.

15

In that defence the defendants say that if the plaintiff is the lawful widow of the deceased, which was not admitted, the defendants contend that in or about the summer of 1981, that she left and abandoned the premises and discontinued possession thereof and continued to be out of occupation and possession for upwards of twelve years or thereafter. The deceased was in sole and exclusive beneficial occupation and possession for upwards of twelve years with no acknowledgement made by him in respect of the plaintiff's title to the premises. By virtue of the Statute of Limitations 1957, and in particular ss. 21 and 24 thereof, the plaintiff's title was extinguished. The defendants further denied that at the time of the death of the deceased, the plaintiff was joint owner of the premises. Any claim that the plaintiff may have had to the estate of the deceased was statute barred prior to the institution of the proceedings herein under s. 126 of the Succession Act 1965.

16

The amended defence further pleaded that if on the death of the deceased on the 5 th January, 1996, the plaintiff had any estate or interest in the premises, that the purchase with the aid of a loan from the EBS secured a charge on the premises. Following the departure of the plaintiff from the premises in 1982, the deceased continued to repay monies and so acquired an additional equitable estate or interest. The first and second named defendants, in paying and discharging the balance to the EBS are entitled to credit without prejudice to their denial that the plaintiff had no estate or interest. Moreover, the first named defendant and his family were in occupation of the premises and carried out works and improvements and is entitled to any sum out of the estate of the deceased in respect thereof.

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