Philip Witham and William R P. K. Bett v Robert Notley

• Jurisdiction: Ireland
• Judge: K. B. Div.,Appeal.
• Judgment Date: 24 June 1912
• Court: King's Bench Division (Ireland)
• Date: 24 June 1912

Philip Witham and William R. P. K. Bett

and

Robert Notley. Same

and

William Sloane (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1913.

Estate tail — Barring of — Common recovery — Tenant to the præcipe — Seisin of — Disseisin of tenant for life — Proof of disseisin.

Held, by the Court of Appeal (affirming the decision of the King's Bench Division), that the defendants were entitled to question the validity of the recovery, and that, in the absence of proof of disseisin of D. and her children, the plaintiffs were not entitled to recover rent.

This was a case stated by the Right Hon. Mr. Justice Kenny as follows:—

1. Appeals in these cases were heard by me at the Leitrim Assizes in March, 1910.

2. Fetherstonhaugh, K.C., and Hynes, were for the plaintiffs, the appellants. Price for the defendant in each case.

3. It was agreed that the cases should be heard together, as the points involved were identical save as to the amount of rent. The plaintiffs' case was very fully opened. It consisted of a somewhat complicated statement of title commencing in 1823, and the main point involved was as to the validity of a recovery suffered by one Francis Nesbitt in Easter Term, 1831. Price, for the defendants, contended at some length that the recovery was bad for the purpose of effectuating what was claimed for it, inasmuch as there was no proper tenant to the præcipe. His suggestion was that people named Doyle, who took life estates under a codicil to the will of Matthew Nesbitt, the common predecessor in title, were then in possession of the freehold, and that in order that the recovery should be effective, Thomas Egan, the tenant to the præcipe, should have had a freehold in possession.

4. The argument, contra, for plaintiffs was, that even if Egan was not a good tenant to the præcipe, the judgment was a matter of record that could only be reversed on a writ of error; that a scire facias should have been issued against the terre tenant; that no third parties could contest the Nesbitt title; and that as no proceedings had been taken to set aside the recovery, the Statute of Limitations was a bar to any title that might be set up against parties claiming through the Nesbitts.

5. The several deeds, will, deaths, intestacies, heirships, bills in Chancery, and Court orders that were alleged by the plaintiffs to constitute their title were all admitted, and are to be deemed to be incorporated with this case.

6. No witnesses were examined, and it was suggested that as there were nice points of real property law involved in the cases, and as the decision would govern others, it would be desirable to have an adjournment to Dublin, where authorities would be accessible. I accordingly adjourned the appeals. Various efforts were since made to have them heard, but for one reason or another more adjournments took place, and eventually on an intimation from me that if on argument I found a very serious question of law was involved I would certainly state a case for the King's Bench Division, the parties prepared a “case” which in substance is as follows, and I find accordingly.

7. The actions were for recovery of rent—in the one case for four years' arrears, amounting to £37 up to the 25th March, 1909, and in the other case for arrears amounting to £67 18s. up to the same date.

8. Both cases were dismissed on the merits by the County Court Judge.

9. By his will, dated the 14th of October, 1812, Matthew Nesbitt devised the lands in question to his son, Francis Nesbitt, for life, with remainders to his heirs male lawfully begotten with remainders over.

10. By a codicil to that will, dated the 30th November, 1821, the testator devised the said lands to Anne Doyle and to her five children, Anne, Susan, Alexander, John and Matthew, share and share alike, during the lives or the life of the survivor, or longest liver of them (1).

11. The testator died in 1823, and his said will and codicil were duly proved on the 3rd March, 1823 (2).

12. It is alleged that the devisee under the will, Francis Nesbitt, went into possession of the lands on his father's death; but there is no evidence whatever that he did do so, save what (if any) may be gathered from the documents in the case, and such possession is denied. Similar observations apply to the

circumstances existing at the date of the deed leading to the recovery, and of the recovery itself.

13. In 1838 Henry Nesbitt and Anne Nesbitt, otherwise the said Anne Doyle, his wife, and her said five children (the devisees under Matthew Nesbitt's codicil) filed a bill in the Court of Chancery seeking for a declaration of their title to the aforesaid lands. This bill was dismissed by consent by order of the Court, dated the 27th June, 1838, the defendant paying the plaintiff's costs.

14. Francis Nesbitt, the devisee under the will, was a defendant in that suit. He had previously, in Easter Term, 1831, purported to suffer a common recovery, the deed appointing the tenant to the præcipe being dated the 9th May, 1831, and made between the said Francis Nesbitt of the first part, Thomas Blake of the second part, and Thomas Egan of the third part. The deed was enrolled on the 22nd June, 1831.

15. The Doyles, or some of them, were in possession of the lands from at least the year 1855. On the 9th June, 1855, they executed a disentailing deed, and on the 9th July, 1855, they mortgaged the lands to one Thomas Croker, and in 1864 and 1865 they sued for and recovered rent from tenants in occupation who were predecessors in title of the defendants. Rent receipts dated the 3rd January, 1864, and 17th March, 1865, given by Alexander Doyle or Nesbitt, are admitted.

16. The said Francis Nesbitt died intestate on the 9th June, 1854. He left an only son, Francis W. H. Nesbitt.

17. The said Anne Doyle and her son Alexander Doyle died in the year 1859.

18. The said Thomas Croker, the mortgagee in the mortgage from the Doyles of the 9th July, 1855, having taken proceedings in the Landed Estates Court to realize his said mortgage, an absolute order for sale of the fee-simple of the lands in question was made on the 29th July, 1863, but on the application of the said Francis W. H. Nesbitt, claiming to be interested in remainder, an order was made by Judge Dobbs and affirmed on appeal on the 15th March, 1866, restricting the sale to the life interests of the children of the said Anne Doyle then living.

19. The life interests of those children were by Landed Estates Court deed of the 30th May, 1867, conveyed to the Earl of Leitrim, and he remained in possession or receipt of the rents up to the cesser of the estates so conveyed.

20. Matthew Doyle, the survivor of the children of the said Anne Doyle, died in March, 1905, whereupon the estates, limited by the aforesaid codicil to the will of Matthew Nesbitt to Anne Doyle and her children, determined, notwithstanding which Lord Leitrim brought an action for rent that accrued after such determination, but was defeated.

21. The said Francis W. H. Nesbitt died in the year 1879, and the plaintiffs by divers assignments from him and other acts are now, if the said common recovery is effectual, the owners of the estate in remainder to which he became entitled in possession on the death of the said Matthew Doyle in 1905.

22. The parties have now agreed that the only questions for decision are those hereinafter set forth.

The questions for the Court are:—

1. Whether the recovery suffered in 1831 was effectual to bar the entail.

2. Whether the defendants in the present proceeding are entitled to question the validity of the said recovery.

3. Whether the right to question the validity of the recovery is not statute-barred.

In the event of the Court deciding that the recovery suffered in 1831 was effectual to bar the entail, or that the defendants are not entitled to question the validity of the said recovery, or in the event of their being so entitled that their right to question the validity of said recovery is statute-barred, the dismisses are to be reversed and decrees given for the amounts respectively sued for, with costs below and of the appeals.

If the Court decides that the said recovery did not bar the entail, and that the defendants are entitled to question the validity of the said recovery, and that their right to do so is not statute-barred, the dismisses are to be affirmed with costs below and of appeal.

Dated this 20th November, 1911.

W. Kenny.

In order that a common recovery should have been effective to bar an estate tail, the tenant to the præcipe must have been seised of the lands for an estate of freehold, either by right or by wrong. The presumption of law is that seisin follows the title, and the Court will not presume disseisin of a tenant for life for the purpose of upholding a recovery purporting to have been suffered by a tenant in tail in remainder.

M. N. by his will devised certain lands to D. and her minor children for their lives with remainder to F. N. in tail, with remainders over. Shortly after M. N.'s death in 1823, F. N. conveyed the lands to E. for the purpose of making him a tenant to the præcipe, and then suffered a common recovery with double vouchers with E. as tenant to the præcipe. A bill in Chancery was subsequently filed by D. and her children against F. N., alleging that he was in possession of the said lands for them, and had not sufficiently accounted for the rents and profits, and in the alternative alleging that he had wrongfully disseised them, and praying for an account, which bill was afterwards dismissed by consent, the plaintiffs' costs being paid by the defendant. In an action for rent brought against the occupying tenants of the lands by the

plaintiffs, who, under the will of F. N. and subsequent conveyances, claimed the fee-simple in remainder after the death in 1905 of...