Nally v Nally and Others

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1953
• Date: 01 January 1953

Nally v. Nally and Others.

ELLEN NALLY

Plaintiff

and

JOHN NALLY, BRIDGET LOFTUS, MARY DOWNEY and KATE PRENDERGAST

Defendants.

Evidence - Admissibility - Lost deed - Original deed not stamped - Secondary evidence - Stamped copy admissible to prove contents of original deed.

Appeal from the Circuit Court.

Michael Nally, the registered owner of the lands the subject-matter of Folio No. 11291, Register of Freeholders, County of Mayo, died on the 9th March, 1920, leaving him surviving, his widow, Catherine Nally, and six lawful children his only next-of-kin, namely, Robert Nally, Margaret Atkinson and the four defendants. Letters of administration to the estate of Michael Nally were granted to the said Robert Nally, on the 12th July, 1920. By an indenture, dated the 6th March, 1926, the said Catherine Nally, Margaret Atkinson, and each of the defendants assigned and transferred to the said Robert Nally all their respective estates and interests in the said lands and in the estate and effects of the said Michael Nally in consideration of the payment by the said Robert Nally of the sum of £700 to the defendant, John Nally, and of a charge in favour of the said Catherine Nally of a right to reside in the dwelling-house situate on the said lands and to be supported, clothed, and maintained therein. The said indenture was, after its execution, sent to the proper office of the Revenue Commissioners by the solicitor for the parties thereto for the purpose of having the appropriate revenue stamp impressed thereon. As a result of certain questions which were raised by the Revenue Commissioners and to which no replies were obtained, the indenture was retained unstamped in the stamping office and was subsequently lost or destroyed. There was, however, in existence a true copy of the indenture, which had been prepared by the solicitor who had prepared the original. This solicitor was in a position to prove the execution of the original by all the parties and the accuracy of the copy. The said Robert Nally died intestate and without issue on the 11th May, 1942, and the plaintiff, who was his widow and personal representative, instituted proceedings, by way of equity civil bill, against the defendants, seeking 1, a declaration establishing the execution and validity of the said deed, and 2, an order, pursuant to s. 21 of the Registration of Title Act, 1942, directing that she be registered as full owner of the said lands, either in her personal capacity or...