Nyland v Brennan

• Jurisdiction: Ireland
• Judge: Pringle J.
• Judgment Date: 19 December 1970
• Neutral Citation: 1965 WJSC-HC 5791
• Docket Number: 1970/1548P.
• Court: High Court
• Date: 19 December 1970

1965 WJSC-HC 5791

1970/1548P.

NYLAND v. BRENNAN

NYLAND

v.

BRENNAN

Pringle J.

1 The Plaintiff seeks an Order for Specific Performance of an Agreement in writing dated the 25th day of June 1963 under which Catherine McGarvey agreed to sell to John Nyland for the sum of £3000 the dwellinghouse and premises known as Number 77 Morehampton Road, Dublin held under an Indenture of Lease dated the 10th day of May 1900 for the residue of a term of 166 years at the yearly rent of £6. 13. 4 and subject to the tenancy of the said John Nyland under an Indenture of Lease Sated the 13th day of April 1960 for a term of 21 years subject to the yearly rent of £273. This subtenancy comprised the shop part of the premises on the groundfloor. The sale was also subject to the weekly verbal tenancy of Joseph Smith in the loft over the stores at the rere at the weekly rent of 9/-, in respect of which a Notice to Quit had been served on the tenant.

2 The Agreement provided that the sale was to be completed on "the completion day" as defined in The Third Schedule. I shall refer later to those Clauses in the Third Schedule which contained the Special Conditions under which the premises were sold. At this stage it is sufficient to say that the sale was not to be closed until after Catherine McGarvey's death and that she was to be entitled to the rents and profits during her life. There was also a provision that the Deposit of £200 provided for in the Agreement was to be placed on deposit receipt in the Joint names of the Solicitors for the Vendor and The Purchaser and that the interest thereon was to be for the benefit of The Purchaser This last provision was not in fact observed as the deposit, which had been paid by cheque to The Vendor on or about 2nd November 1962 was, apparently with The Purchaser's Consent, lodged to The Vendors Account in the Morehampton Road Post Office.

3 The Purchaser John Nyland died on 8th January 1968 aged about 60 and the Plaintiff is his widow and personal representative. The Vendor Catherine McGarvey died aged 82 on the 2nd October 1968 and the Defendant, who was her second cousin, is her personal representative, having been appointed one of her Executors by her will dated the 3rd January 1968.

4 It appears that Catherine McGarvey lived with her two sisters in the upstairs part of the premises and the three sisters carried on business in the shop on the ground floor until the year 1948, when they decided to retire from business and in that year they made a Lease of the shop to John Nyland,(whom they had known for some years and with whom I am satisfied they were very friendly), for a term of ten years at a yearly rent and a fine of £375. This Lease expired in 1958 and a new Lease was made to John Nyland on 13th April 1960 for a term of 21 years fro, 1st June 1958 at the yearly rent of £273. I am satisfied on the Plaintiff's evidence and that of Mr. McPhillips that, before this new Lease was made, there were discussions between the three Misses McGarvey and their then Solicitor Mr. Cosgrave and John Nyland and his Solicitor Mr. McPhillips as to Mr. Nyland purchasing the premises for the sum of £2000, provided the McGarveys were allowed to remain in the premises during their lives. However this proposal came to nothing as Mr. Nyland was not at that time in a financial position to purchase. I am quite satisfied that the McGarvey sisters and Mr. Nyland remained on very friendly terras and Mr. Nyland allowed them to purchase their groceries in the shop at wholesale prices and whatever they owed was deducted from Mr. Nyland's rent.

5 Catherine McGarvey's two sisters died (the last of them on 10th October 1962) and Catherine McGarvey went into the Padua Nursing Home shortly after the death of her last sister, suffering from tiredness and depression. She remained in this Nursing Home until the month of February 1963 when aha was transferred to St. Joseph's Nursing Home where she remained until March of that year when she went back to the Padua for about two months, after which she went to live with the Defendant in ???query???Ramlen??? Park until she died in 1968. While she was in the Padua Nursing Home the first time it appears that Mr. Nyland visited her regularly and discussions took place again as to Mr. Nyland purchasing the premises and eventually it was agreed between them that he would purchase for the sum of Three Thousand Pounds, but that the sale would not be closed until after her death. I am satisfied on the evidence of Mrs. Edna Flansgan, who was at that time a Solicitor employed in the firm of ???query???Terences??? Doyle & Company and who dealt with Miss McGarvays affairs, that discussions had been going on between the parties and their Solicitors for some time before Miss McGarvey went into the Nursing Home and that she was anxious to sell to Mr. Nyland, provided she was allowed to remain in the premises during her life. There was in fact another prospective purchaser, a Mr. Galvin, who might have been willing to pay more than Mr. Nyland, but Miss McGarvey told Mrs. Flanagan that she did not want to sell to him, but to Mr. Nyland. While Miss McGarvey was in the Nursing Home Mr. Nyland gave her a cheque for £200 and she signed a receipt for sane in the following form "Padua Nursing Home 2nd Nov 1962. "Received the sun of £200 deposit on the premises of "77 Morehampton Road Donnybrook. Balance £2,800 payable "on demand as requested; Signed Catherine McGarvey" This receipt appears to be entirely in Miss McGarvey's handwriting. On 21st January 1963 Miss McGarvey instructed Mrs. Flanagan that she wished to sell the premises to Mr. Nyland for the sun of £3000, the sale to be completed after her death. This was confirmed by a letter from Mrs. Flanagan to Miss McGarvey dated 23rd January 1963, find Mrs. Flanagan then prepared a draft contract which was settled by Counsel end this approved of by Mr. McPhillips on Mr. Nyland's behalf. Mrs. Flanagan thinks that she left the draft contract with her...