Nagle v Shea

• Jurisdiction: Ireland
• Judgment Date: 29 April 1875
• Date: 29 April 1875
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

Before WHITESIDE, C. J., PALLES, C. B., O'BRIEN, J., FITZGERALD, B., DEASY, B., J., and DOWSE, B.

NAGLE

and

SHEA.

Lessee of Parsons v. PurcellUNK 12 Ir. L. R. 90.

Call v. DunningENR 4 East, 53.

Abbott v. PlumbENR 1 Doug. 215.

The King v. The Inhabitants of Harringworth 4 M. & Sel. 350, 353.

Darby v. OuseleyENR 1 H. & N. 1, 5.

Brown v. BrownENR 8 E. & B. 876.

Gordon and others v. SecretanENR 8 East, 548.

Henman v.LesterENR 12 C. B. (N. S.) 781.

Rearden v. Minter 5 M. & Gr. 204.

Collins v.Bayntun 1 Q. B. 117.

Weatherston v. EdgingtonENR 2 Camp. 94.

Gillet v.Abbott 7 A. & E. 783.

Scott v. ClareENR 3 Camp. 236.

Summersett v. AdamsonENR 1 Bing. 73.

Mason v. JohnstonENR 1 Esp. 89.

Smithwick v. BearyUNK 3 Ir. Jur. (O. S.) 333; 1 Ir. C. L. R. 344.

Vacher v. CocksENR 1 B. & Ad. 145, 147.

Davison and Others v.GentENR 1 H. & N. 744.

Shelly v. Wright Wils. 9.

Dillon v.CrawleyENR 12 Mod. 500.

Bulley v. BulletELR L. R. 9 Ch. App. 739, 749, 751.

The Queen v. The Inhabitants of Basingstoke 14 Q. B. 611.

Hanson v. Parker 1 Wils. 257.

Whelan v. The City of Cork Steam Packet Co.UNK Ir. R. 8 C. L. 383.

Bringloe v. GoodsonENR 5 Bing. N. C. 738.

Pearce v. HooperENR 3 Taunt. 60.

Orr v. MoriceENR 3 Br. & B. 139.

Bunett v. LynchENR 5 B. & C. 589.

Doe v. WainwrightENR 5 Ad. & E. 520.

Vacher v. CocksENR 1 B. & Ad. 145.

Bringloe v. GoodsonENR 5 Bing. N. C. 738.

Williams v. SillsENR 2 Camp. 519.

Slatterie v. PooleyENR 6 M. & W. 664.

Whyman v. GarthENR 8 Ex. 806.

Hughes v. Dyeball M. M. 346.

Johnson v. Baytup 3 A. & E. 188.

Davison v. GentENR 1 H. & N. 744.

Doe v. Palmer 16 Q. B. 747.

Henmon v. LesterENR 12 C. B. (N. S.) 776, 781.

Evidence — Recital of a will in a deed — Proof of will — Parol admission by party of contents of written instrument — Question reserved.

Vol,. IX.] COMMON LAW SERIES. 389 (EXCHEQUER CHAMBER) (1). Exch. Cham. 1875. NAGLE v. SHEA. April 28, 29. Evidence-Recital of a will in a deed-Proof of will-Parol admission by party of contents of written instrument-Question reserved. In ,ejectment, the Plaintiff claimed under a deed executed by C., since deÂceased, by which-reciting that C. was entitled in fee to the premises under the will of S., her deceased husband-the whole estate in the premises was conÂveyed to the Plaintiff ; at the trial, the Plaintiff, at the instance of the DefenÂdant, produced a will of S., by which C. took an estate in the premises for her own life only ; and evidence was given on the part of the Defendant that C. had, previously to the execution of the deed, admitted the document produced to be the will of S., but the persons named as the attesting witnesses to the will were not called by the Defendant, nor was any evidence given of the handÂwriting of the alleged testator ; the Plaintiff's counsel called for a direction, but did not ask the Judge to leave any question to the jury, and the Judge directed a verdict for the Defendant, reserving liberty for the Plaintiff to move to change the verdict if the Court should be of opinion that he ought not to have allowed the alleged will to be given in evidence :-Held-affirming the decision of the Common Pleas-(Fazomuum, B., and WHITESIDE, C. J diss.), (1) that the will was properly received in evidence ; (2) that there was no misdirection ; (3) that, according to the reservation, it was not open to the Plaintiff's counsel to contend that it ought to have been left to the jury to say-whether the will produced at the trial was identical with that which had been admitted by C. APPEAL by the Plaintiff against an order of the Court of ComÂmon Pleas discharging a conditional order to set aside, on the ground of misdirection, a verdict which had been directed for the Defendant. See the case reported, I. R. 8 C. L. 224, where the facts are fully stated. Hemphill, Q. C., and Crean, for the Plaintiff, in support of the appeal, cited the following cases in addition to those cited (1) Before WnnEsinE, C. J., PAL- B., DEASY, B., BARRY, J., mid LES, C. B., O'BRIEN, J., FITZGERALD, DOWSE, B. 390' THE IRISH REPORTS. [I. R. Exch. Cham. below :-Lessee of Parsons v. Purcell (1) ; Call v. Dunning (2) ; 1875. Abbott v. Plumb (3) ; The King v. The Inhabitants of Ifarring NAGLE worth (4); Darby v. Ouseley (5) ; Brown v. Brown (6) ; Gordon and others v. Secretan (7) ; Denman v. Lester (8) ; Bearden v. Min- SHEA. ter (9) ; Collins v. Bayntun (10) ; Weatherston v. _Edgington (11) ; Gillet v. Abbott (12) ; Scott v. Clare (13) ; Summersett v. AdamÂson (14) ; Mason v. Johnston (15) ; Smithwick v. Beary (16) ; Vacher v. Cocks (17) ; Davison and others v. Gent (18). Ryan, Q. C., and with him Lover, contra, cited Shelly v. Wright (19); Dillon v. Crawley (20) ; Bulky v. Bulky (21) ; The Queen v. The Inhabitants of Basingstoke (22) ; Hanson v. Parker (23). Best on Evidence, 647 ; Gilbert on Evidence, 87 ; Whelan v. The City of Cork Steam Packet Co. (24). Barrington on the Statutes (3rd Ed.) 175 ; s. 29, C. L. P. A. 1856, were also mentioned. The Court reserved judgment. FITZGERALD, B. :- As I have, I believe, the misfortune to be singular in the view which I take of this case, I am anxious not to be misunderstood. It was an action of ejectment brought to recover possession of a house, out-house, and yard, in the County of Tipperary, and was tried at the Assizes for that county in the Summer of 1873. The action was commenced in the month of June, 1872, and the Plaintiff's title to possession was alleged to have accrued on the 1st of May, 1872. The Plaintiff proved possession of the (1) 12 Ir. L. R. 90. (14) 1 Bing. 73. (2) 4 East, 53. (15) 1 Esp. 89. (3) 1 Doug. 215. (16) 3 Ir. Jur. (0. S.) 333; 1 Ir. C. (4) 4 M. & Sal. 350, 353. L. R. 344. (5) 1 H. & N. 1, 5. (17) 1 B. & Ad. 145, 147. (6) 8 E. & B. 876. (18) 1 H. & N. 744. (7) 8 East, 548. (19) Wils. 9. (8) 12 C. B. (N. S.) 781. (20) 12 Mod. 500. (9) 5 M. & Gr. 204. (21) L. R. 9 Ch. App. '139, '149, '151. (10) 1 Q. B. 117. (22) 14 Q. B. 611. (11) 2 Camp. 94. (23) 1 Wils. 257. (12) 7 A. & E. 783. (24) Ir. R. 8 C. L. 383. (13) 3 Camp. 236. VOL. IX.] COMMON LAW SERIES. 391 subject of ejectment in one Thomas Shea, who died more than Exch. Cham. sixty Tears before the trial. After his death, another Thomas Shea, who had married one of his daughters named Catherine, went with his wife into possession. Catherine was not the heir-atÂlaw of her father, nor was any will of the father or any conveyance by him proved. Thomas Shea, the husband, died in possession in the year 1846 or 1847, leaving Catherine his wife surviving, and also several sons and daughters ; one of the daughters was named Joanna, and one of the sons named Henry is the Defendant in the action, but he is not the heir-at-law of Thomas Shea the husband. Catherine continued after her husband's death in the possession of the subject of the ejectment till the year 1859, when her daughter Joanna married the Plaintiff Nagle, and on the occasion of that marriage, and previous to it, a deed of settlement comprising the subject of ejectment was executed by Catherine. I do not at this moment state the provisions of this settlement, beÂcause among many other loose assertions made in the course of the argument before us, it was alleged that this settlement, though given in evidence by the Plaintiff, was no essential part of his case at all. After the settlement and marriage, Catherine continued to reside on the premises with her daughter Joanna and the Plaintiff, till her death, which took place, according to the statement of the case and the certificate of the Plaintiff's counsel, in February, 1871, but, according to the report of the Judge who tried the case, in February, 1872. Joanna and the Defendant survived her, but Joanna was not her heir-at-law ; and upon the very day of CatheÂrine's death, and after the death, the Defendant took possession of the subject of ejectment, and continued in such possession till the action was brought. The action then was brought to disturb a possession of the Defendant which had continued from the very day of the death of Catherine for more than fifteen months if the date of 1871 be correct, and for more than three months if the date of 1872 be correct, and brought by a Plaintiff who-if the settlement be excluded-showed no right of possession derived from Catherine, whom he had shown to have been in possession for more than twenty years. I cannot, I acknowledge, understand how in this state of things the Plaintiff could be said-for tb's was one of the suggestions-to have had, without any aid from the 392 THE IRISH REPORTS. [I. R. Exch. Chain. settlement, a title founded on the Statute of Limitations, or how 18'15. the mere fact of his being in the house on the day of Catherine's NAGLE death, and for some portion of that day after her death, could be SHEA. called his possession. However, the Plaintiff at the trial relied on no such case, and so far I cannot but think he acted wisely. By the settlement of 1859, Catherine Shea, reciting herself to be entitled in fee under a will of her husband, dated in July, 1846, conveyed all her estate and interest in the subject of ejectment to the Plaintiff. The effect of this, of course, was to make the, possession, which had been proved for more than twenty years after the death of Thomas Shea the husband, a possession till 1859 in Catherine, and from thence till her death in the Plaintiff deriving from her. The first contention of the Defendant at the trial was-that the Plaintiff having shown possession in Thomas Shea the elder, and no derivation of his right to Thomas Shea the husband, or Catherine, must be taken to have shown title out of himself and in the heir-at-law of Thomas Shea the elder. The Judge who tried the case thought the possession of more than twenty years in Catherine, and in the Plaintiff deriving from her, was an answer to this objection, and there is no controversy about it now, but it...