Owens v McGarry

• Jurisdiction: Ireland
• Judgment Date: 26 February 1948
• Date: 26 February 1948
• Court: Supreme Court

Supreme Court.

Owens v. McGarry.

ANNE OWENS and (by order to proceed) ANNIE CULLY

Plaintiff

and

MICHAEL McGARRY AND OTHERS, Defendants (1)

Land Registry - Administratrix of deceased unregistered owner - Whether express trustee for next-of-kin - Lands unregistered at death of owner - First registration in name of administratrix - Registration subject to equities - Prescription - Whether next-of-kin ousted by possession of administratrix - Local Registration of Title (Ir.) Act, 1891 (54 & 55 Vict., c. 66), s. 86.

Case Stated.

This was a Case Stated by Dixon J. for determination by the Supreme Court of two questions of law arising on the hearing of an appeal from the Mayo Circuit Court.

The facts were as follows:—The original plaintiff herein, Anne Owens, obtained a decree in the Circuit Court against the first-named defendant in the year 1932 and registered it in 1933 as a judgment mortgage on his interest in the lands in folios Nos. 10696 and 10697 of the register of freeholders for County Mayo. She then instituted proceedings to raise the amount of such judgment mortgage, naming the first-named defendant herein, Michael McGarry, as defendant. The usual primary order was made in those proceedings, declaring the mortgage debt well charged and directing sale in default of payment. Subsequently it appeared that certain brothers and sisters of Michael McGarry claimed an interest in the lands and the plaintiff was, by an order of the Circuit Court made in 1937, given liberty to bring the present proceedings, which were instituted in the year 1937 by an equity civil bill claiming an inquiry as to who were the persons entitled to the said lands, and in what shares, and claiming an order for sale. The defendants in this suit were the said Michael McGarry and four of his sisters.

As a result of the inquiries directed in these proceedings, it appeared that Thomas McGarry, Senior (the father of the defendants) died intestate on the 9th April, 1901, being then

entitled, as tenant, to the lands now the subject-matter of folio 10696 of the register of freeholders, Co. Mayo. He was survived by his widow, Margaret McGarry, and eleven lawful children. The said Margaret McGarry on the 7th May, 1902, obtained letters of administration of his personal estate. In the year 1903, she purchased, out of the assets of her late husband, the lands now the subject-matter of folio 10697. On the 19th December, 1918, both of these holdings were vested in the said Margaret McGarry by fiat of the Irish Land Commission under the Irish Land Purchase Acts and she was, on the 6th December, 1919, registered as full owner in fee simple of both holdings, subject to equities. By an indenture dated the 24th February, 1928, the said Margaret McGarry and two of the said eleven children of Thomas McGarry, Senior, granted the said lands to the defendant, Michael McGarry, subject to a life interest reserved to Margaret McGarry and to a charge for £200 to be paid to one of the daughters of Thomas McGarry, Senior. Margaret McGarry died in 1929. The eight children of Thomas McGarry, Senior, who...