Re Maguire and McClelland's Contract

• Jurisdiction: Ireland
• Judgment Date: 10 June 1907
• Date: 10 June 1907
• Court: King's Bench Division (Ireland)

In Re Maguire and M'Clelland's Contract (1).

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1907.

Possession — Guardian — Bailiff for infants — Marriage — Change of possession — Evidence of — Statute of Limitations.

Held, on the hearing of a vendor and purchaser's summons, that although the widow of P. C. and subsequently T. M. entered into possession of the farm, as to two-thirds thereof, as bailiffs for the minor children, their position as such was changed by the departure of the children without making any claims to their shares; that the Statute of Limitations began to run against each child who left the farm on his or her attaining twenty-one years of age; and that, on proof that no claim had ever been made by, or acknowledgment given to, any of the children, a good title would be shown.

This was an appeal from an order of His Honor the Master of the Rolls, dated 19th April, 1907, whereby, on the hearing of a summons under the Vendor and Purchaser Act, 1870, it was declared that the objections of the purchaser to the title had not been sufficiently answered, and that a good title to the lands sold had not been shown.

The following statement of the facts relating to the title is taken from the affidavits read on the hearing of the appeal:—

From the year 1855 to the year 1864 one Patrick Cosgrove was in possession of a farm of land situate in the barony of

Magherastephana and county of Fermanagh, which he held under a yearly tenancy, on the estate of the Earl of Erne, on which estate the Ulster Custom existed. The said Patrick Cosgrove died intestate in the year 1864, leaving him surviving his widow, Sarah Cosgrove, and five children, namely, John (his son by a former marriage), and four children of his marriage with the said Sarah Cosgrove—James, Hugh, Henry, and Catherine—all the said children of the second marriage being minors at the date of their father's death. On the death of Patrick Cosgrove in 1864 his widow remained in occupation of the farm with her minor children (John Cosgrove, who was then of age, having emigrated to America prior to his father's death), and, in the year 1866, the widow married one Thomas Maguire, with whom she remained in occupation of the farm until the death of Thomas Maguire in 1901.

James Cosgrove emigrated to America in 1872, Hugh in 1876, and Henry in 1882; and Catherine Cosgrove entered a convent in 1882. None of the said children had ever returned to the farm, or asserted a claim to a share in their father's assets, and no administration to the father's estate was ever taken out.

Thomas Maguire, who was accepted as tenant of the farm in 1869 (when his name was inserted as tenant in the rental of the Erne estate), by his will, dated the 11th September, 1901, bequeathed the farm to his wife, the said Sarah Cosgrove, for her life, and after her death to his son, John Thomas Maguire, to whom probate of the will was duly granted as executor. Sarah Cosgrove remained in possession of the farm to the 28th March, 1902, when, by an indenture of that date, she assigned the farm to her son John Thomas Maguire, freed and discharged from her life estate therein.

John Thomas Maguire put up the farm for sale by public auction on the 25th January, 1907, when the present respondent, Samuel M'Clelland, was declared the purchaser at the price of £530, and a memorandum confirming the sale was duly signed by the vendor and purchaser.

The conditions of sale provided, inter alia, that the title to the farm should commence with a letter from the agent of the property, certifying that Thomas Maguire was tenant in 1886, and the abstract of title furnished to the purchaser commenced with the tenancy of Thomas Maguire, as provided for, and set out his will and probate thereof, and the assignment of the 28th March, 1902, to the vendor, as above mentioned. In answer to certain requisitions made on behalf of the purchaser, it appeared that no administration was ever taken out to the estate of Patrick Cosgrove, and that no assignment had ever been made to Thomas Maguire: whereupon the following further requisition was made on behalf of the purchaser:— “Assuming that Patrick Cosgrove died intestate, his widow remained in possession upon his death under the title acquired by his intestacy on behalf of herself and the minor, John Cosgrove, the son of Patrick, and in 1886 Thomas Maguire and his wife were trustees for John as to two-thirds of the farm. John Cosgrove must, therefore, join in the assignment to the purchaser.” To this the answer was given— “John Cosgrove is now aged about sixty-three years of age, and is resident in U. S. A., and has not been in this country since. Vendor's solicitor fails to see that he has any claim, and refuses to ask him to sign the assignment.” The following further requisition was then made on behalf of the purchaser:— “The purchaser has now ascertained that at the date of Patrick Cosgrove's death he also left four minor children, who continued to reside with their mother on this farm. The interests of these children must be also accounted for, as their mother became a trustee for them. The purchaser insists that John must join in the assignment.” To this the answer was— “Vendor refuses to comply with this requisition. Vendor's father was in possession for over twenty years, and the four minors are out of possession over twenty-five years, so their claim, if any, is statute-barred. Purchaser's solicitor will note that Thomas Maguire was accepted by the landlord as tenant prior to 1870.” On receipt of this answer the purchaser's solicitor wrote, refusing to accept the title unless the interests of the children of Patrick Cosgrove were accounted for, and requiring a return of the purchaser's deposit, whereupon the present summons was instituted by the vendor.

The following judgment was delivered on the 19th April, 1907, by His Honor the Master of the Rolls (1):—

I cannot hold that a purchaser is bound to purchase a serious lawsuit, or a series of lawsuits. On the admitted facts of the case a most serious question arises as to the vendor's title. No purchaser would be safe on the facts disclosed in accepting an assignment from John T. Maguire, and completing the agreement for sale and purchase under the Act of 1903, referred to in the conditions of sale. Whether the purchaser bought from the landlord or not, he would be in the position of a possible defendant in an action, or series of actions; for, if the holding vested in him under the Land Purchase Acts, the interests of the children of the original tenant, Patrick Cosgrove, if they are in existence, would be grafted upon the fee-simple acquired...