Murphy v Murphy

• Jurisdiction: Ireland
• Judgment Date: 01 January 1980
• Date: 01 January 1980
• Docket Number: [1976 No. 343 Sp.]
• Court: Supreme Court

Murphy v. Murphy

Thomas Murphy

Plaintiff

and

Laurence Murphy

Defendant

[1976 No. 343 Sp.]

High Court

Supreme Court

Limitation of actions - Freehold - Adverse possession - Widow and son entitled to distinct portions of land under testator's will - Widow having right of residence on son's land - Son exercising rights of ownership on widow's land - Whether son's possession by licence of widow - Whether widow's cause of action barred - Statute of Limitations 1957 (No. 6), ss. 13, 15, 18, 24.

A testator was the owner of a freehold farm through which a road ran from east to west. By his will the testator devised his farm to trustees on trust for his wife and his two sons (the plaintiff and the defendant) for a period of ten years from the date of his death. The testator directed that during the ten-year period the farm should be managed by the defendant and that all profits therefrom should be lodged in a bank in the joint names of the wife and the defendant. The testator directed that at the end of the ten-year period the portion of his farm situate on the south side of the road should be divided in a particular manner and he devised the eastern part thereof (which included a dwelling-house) to the defendant and he devised the western part to the plaintiff. The testator directed that after the division of his farm his wife should have a right during her life to reside on whichever portion of his lands that she might choose and he bequeathed an annuity to her. The testator devised and bequeathed the residue of his property to his wife. Apart from the residuary devise, the testator's will did not contain any disposition of the testator's estate in the portion of his farm which was situate on the northern side of the road. The testator died on the 23rd June, 1936, and was survived by his widow and by the plaintiff and the defendant, all of whom continued to live in the dwelling-house on the defendant's part of the farm.

The defendant managed the farm during the ten-year period which expired on the 23rd June, 1946, and he lodged the profits in the joint account in accordance with the terms of the testator's will. The plaintiff left the farm in 1949 and in 1954 he conveyed his part of the land to the defendant, and in the same year the defendant closed the joint account, and thereafter treated the entire farm as his own property. The defendant had treated the northern portion of the farm as part of his property since the end of the ten-year period; he grazed cattle on it, he paid the rates and made improvements to it. The testator's widow left the farm in the year 1968, without having acted as owner of the northern portion of the farm, and went to live in a home for old people where she died on the 25th March, 1971, aged 91 years, having by her will devised and bequeathed all her property to the plaintiff whom she appointed to be executor thereof. In the year 1976 the plaintiff commenced an action in the High Court in which he claimed a declaration that, at the date of her death, the testator's widow was entitled in fee simple to the portion of the farm situate on the northern side of the road. The defendant claimed to have been in possession of the northern portion of the farm since 1946 and contended that the plaintiff's claim failed as more than 12 years had elapsed since a right of action had accrued to the testator's widow, through whom the plaintiff claimed.

Held by Costello J. and affirmed by the Supreme Court (O'Higgins C.J., Kenny and Parke JJ.), in dismissing the plaintiff's action, 1, that by virtue of the residuary devise contained in the testator's will his widow became entitled, on the expiration of the period of ten years in 1946, to an estate in fee simple in possession in the portion of the testator's farm which was situate on the northern side of the road.

2. That from at least the year 1954 the defendant, by reason of his acts of ownership and notwithstanding that the widow did not appear to have been aware of her rights, had been in adverse possession (within the meaning of s. 18 of the Statute of Limitations, 1957) of the widow's portion of the farm.

Hughes v. Griffin [1969] 1 W.L.R. 23 considered.

3. That, accordingly, the right of action of the widow (through whom the plaintiff claimed) had been barred and her title to her portion of the farm had been extinguished in the year 1966 at the latest by virtue of the provisions of ss. 13 and 24 of the Act of 1957.

Cases mentioned in this report:—

¹ Treloar v. Nute [1976] 1 W.L.R. 1295.

² Lord Advocate v. Lord Lovat (1880) 5 App. Cas. 273.

³ Hughes v. Griffin [1969] 1 W.L.R. 23.

⁴ Paradise Beech & Transportation Co. v. Price-Robinson [1968] 2 W.L.R 873; [1968] A.C. 1072.

⁵ Culley v. Doe d. Taylerson (1840) 11 Ad. & E. 1008.

⁶ Moses v. Lovegrove [1952] 2 Q.B. 533.

⁷ Perry v. Woodfarm Homes Ltd. [1975] I.R. 104.

⁸ In re Loughlin [1942] I.R. 15.

⁹ Maher v. Harte Barry [1960] I.R. 174.

¹⁰ Murland v. Despard [1956] I.R. 170.

¹¹ Hayward v. Chaloner [1968] 1 Q.B. 107.

¹² Wallis's Holiday Camp v. Shell-Mex [1975] Q.B. 94.

Special Summons

On the 5th October, 1976, the plaintiff issued a summons in which he claimed, as executor of the will of Agnes Murphy and on his own behalf, a declaration that the estate of Agnes Murphy, deceased, was entitled to all the lands of Laurence Murphy (Senior), deceased, lying to the north of the main road from Loughrea to Gort. By her will dated the 29th August, 1960, Agnes Murphy devised and bequeathed all her property, both real and personal, to the plaintiff and appointed him to be executor of her will. Agnes Murphy died on the 25th March, 1971, and on the 29th January, 1975, probate of her will was granted forth of the probate office of the High Court to the plaintiff. The lands in dispute were part of the lands which had been conveyed to Laurence Murphy (Senior) by a conveyance dated the 29th March, 1920.

By his will dated the 30th May, 1936, Laurence Murphy (Senior) appointed Patrick Frawley and John O'Brien to be executors and trustees thereof and, having made the dispositions described in the judgment of Costello J., infra, devised and bequeathed the residue of his property, real and personal, to his wife Agnes Murphy. Laurence Murphy (Senior) died on the 23rd June, 1936, and on the 16th April, 1941, letters of administration (cum testamento annexo) of the personal estate of Laurence Murphy (Senior) were granted forth of the principal probate registry of the High Court to the defendant-the executors and the residuary legatee named in the will of Laurence Murphy (Senior) having renounced their rights.

Section 13, sub-s. 2 (a), of the Statute of Limitations, 1957, provides:—

"(2) The following provisions shall apply to an action by a person (other than a State authority) to recover land —

• (a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person."

Section 15, sub-s. 1, of the Act of 1957 provides:—

"(1) Subject as hereinafter in this section provided, the right of action to recover any land shall, in a case where —

• (a) the estate or interest claimed was an estate or interest in reversion or remainder or any future estate or interest, and

• (b) no person has taken possession of the land by virtue of the estate or interest claimed, be deemed to have accrued on the date on which the estate or interest fell into possession by the determination of the preceding estate or interest."

Section 18, sub-ss. 1 and 2, of the Act of 1957 states:—

"(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.

(2) Where—

• (a) under the foregoing provisions of this Act a right of action to recover land is deemed to accrue on a certain date, and

• (b) no person is in adverse possession of the land on that date,

the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land."

Section 24 of the Act of 1957 provides:— "Subject to section 25 of this Act and to section 49 of the Registration of Title Act, 1964, at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished."

The plaintiff and the defendant filed affidavits. The defendant served on the plaintiff a notice requiring him to attend at the hearing of the action for cross-examination. Both the plaintiff and the defendant gave evidence on oath at the trial of the action, and were cross-examined. The plaintiff's action was tried by Costello J. on the 8th June, 1977, when judgment was reserved.

The plaintiff appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard on the 12th and 13th February, 1979.

Cur. adv. vult.

Costello J.

Laurence Murphy (the testator) died on the 23rd June, 1936, possessed, inter alia, of a farm and lands at Millmount, Gortnamackan, Loughrea in the county of Galway. His title to the lands was derived from a conveyance of the 29th March, 1920, in which the lands are described as "the lands of Gortnamackan containing 153 acres 1 rood and 11 perches statute measure or thereabouts situate in the barony of Dunkellin and county of Galway more particularly described in the map endorsed hereon."

As the physical features of the testator's lands are relevant to the issues which I have to determine, I should now describe them. The Loughrea-Kilchreest road divides the land in two equal portions, but ready access to each part under the road can be obtained through the arches of a bridge over which the road runs. The land to the north of the road...