O'Regan v White

• Jurisdiction: Ireland
• Judgment Date: 11 February 1919
• Date: 11 February 1919
• Docket Number: (1917. No. 9970).
• Court: Court of Appeal (Ireland)

O'Regan v. White

MARGARET O'REGAN

and

ROBERT WHITE and HANORA WHITE (1)

(1917. No. 9970).

K. B. Div.

Appeal.

Landlord and tenant - Judicial tenancy - Sub-division under verbal agreement - No consent by landlord - Possession - Part performance - Enforceable contract - Land Law (Ireland) Act, 1881, sect. 5, sub-s. 3 - Purchase of Land (Ireland) Act, 1885, sect. 8 - Purchase by tenant - Real Property Limitation Act, 1833 (3 & 4 Wm. 4, c. 27), sect. 3.

In December, 1902, A, the occupier of a holding held under a judicial tenancy, by a verbal agreement, to which neither then nor subsequently was the landlord's consent obtained, gave B, one of the defendants, a plot of ground forming part of the holding for the entire of A's estate and interest therein. In April, 1903, B entered into possession of the plot, built a shop together with out-offices upon it, and remained in continuous possession without paying any rent, down to the commencement of the action in December, 1917. In 1906 A entered into an agreement with his landlord to purchase the holding under the Land Purchase (Ireland) Acts; and on February 25th, 1915, the holding was by fiat of the Land Commission vested in A's successor in title. In December, 1917, the plaintiff, as successor of A, issued a writ against the defendants for recovery of possession of the premises. The jury found that the plaintiff's predecessor had promised to give the plot of ground absolutely to the defendants. Upon the finding of the jury judgment was at the trial entered for the defendants.

Held, by the King's Bench Division (Gibson, Dodd, and Moore JJ.), that subdivision being illegal under sect. 5, sub-s. 3, of the Land Law (Ireland) Act, 1881, there was no enforceable contract, and that the defendants had not acquired a title under the statute of Limitations.

Held, by the Court of Appeal, reversing the King's Bench Division (Sir James H. Campbell C. dissenting), that the contract was lawful, and was, in its nature, capable of being specifically enforced against the plaintiffs.

Held (affirming the King's Bench Division), that no title to the fee had been acquired by the defendants under the Statute of Limitations, as they had not been twelve years in possession when the fee simple was vested.

The plaintiff's claim was, as administratrix of Timothy O'Regan, deceased, to recover possession of a house and shop and a plot of ground attached thereto at Ballyfoliah, barony of west division of East Carbery, County of Cork. The statement of

claim set out that Peter O'Regan held a farm containing 53 acres at Ballyfoliah as a judicial tenant; that in the year 1906 he made a letting to the defendant, Rober White, of a disused creamery and a house known as "the shop" on the holding from March 1st, 1906, as a yearly tenancy at the annual rent of £4; that on March 1st, 1906, Peter O'Regan entered into an agreement with his landlord to purchase the holding under the Land Purchase (Ireland) Acts. On the occasion of the marriage of his son, Timothy O'Regan, to the plaintiff, Peter O'Regan by deed dated October 16th, 1909, assigned to Timothy O'Regan his estate and interest in the holding and the benefit of the purchase agreement, reserving unto himself and his wife during their joint lives and the life of the survivor of them the aforesaid creamery and shop. Timothy O'Regan forthwith entered into possession of the holding, and by fiat of the Irish Land Commission, dated February 25th, 1915, the holding, including the creamery and shop, was duly vested in him in fee simple, and he was thereupon registered as the owner thereof in fee simple pursuant to the Local Registration of Title (Ireland) Act, 1891. Timothy O'Regan died intestate on February 16th, 1916, Peter O'Regan died on April 16th, 1916, and Mary O'Regan, his widow, died on May 1st, 1916. On April 12th, 1916, letters of administration to the estate of Timothy O'Regan were granted to Margaret O'Regan, the plaintiff. In October, 1902, the defendant, Robert White, married the defendant Hanora O'Regan, daughter of Peter O'Regan. Some years ago, the defendants entered into possession of a small plot of ground about one quarter of an acre in area adjoining the disused creamery and shop, and forming part of Peter O'Regan's holding. On July 18th, 1916, and August 28th, 1916, notice of the terms of the aforementioned deed of assignment was given to the defendants, and the plaintiff demanded possession of the creamery, shop, and plot. The defendants refused to give up possession; notice to quit was then served, and on October 17th, 1917, the defendants handed over possession of the creamery to the plaintiff, but refused to give up possession of the shop and plot.

The defendants denied that the letting of 1906 included the shop and plot, or that they held them under any tenancy. They pleaded that Robert White got no fortune with his wife; that in 1902 Peter O'Regan proposed to him that he should give up his position as manager of the Donoughmore Creamery, come to live with Peter O'Regan at Ballyfoliah, and act as manager of the creamery there, "the said Peter O'Regan offering as part of said proposal to give him by way of gift for the entire of his own estate and interest therein in lieu of marriage fortune a plot of ground parcel of the said Peter O'Regan's holding . . . whereon to build a shop and out-offices and establish a business." The defendant, Robert White, accepted that proposal, entered into possession of the plot of ground, and on the faith of the gift of the plot laid out considerable sums of money in building a shop and out-offices and establishing a successful business in the shop and premises. The defendants relied upon these circumstances as an equitable defence to the plaintiff's claim for recovery of the plot and shop. As an alternative defence they said that for upwards of twelve years before the commencement of the action—the writ was issued on December 6th, 1917—they were in continuous possession of the plot of ground and hop as beneficial owners thereof, and not under any contract of tenancy. Neither during said period nor at any time did they ever pay rent in respect of the plot or house. The defendants also pleaded that the plaintiff's right, if any, was barred by the Real Property Limitation Act, 1874, and his right and title to the plot and house extinguished by virtue of that Act and 3 & 4 Wm. 4, c. 27.

In reply, the plaintiff pleaded that the landlord's consent in writing was not given as required by sect. 5, sub-s. 3, of the Land Law (Ireland) Act, 1881, to the agreement of gift relied upon by the defendants.

The action was tried before Gordon J. and a common jury of the City of Cork on March 26th, 1918. From the judge's report it appeared that the plaintiff obtained a decree in the County Court in April, 1917, for the recovery of "a dwelling-house, out-offices, and shop, with the plot of ground attached and the appurtenances," and that upon appeal Pim J., at the Summer Assizes, 1917, varied the decree by striking out the words "shop with the plot of ground attached and the appurtenances." Peter O'Regan had, in his lifetime, brought a process in the County Court for trespass against the Whites, and obtained a decree which, on appeal, was reversed and changed into a dismiss without prejudice. Margaret O'Regan, the plaintiff, swore that at her marriage negotiation Peter O'Regan stated that White had the creamery and shop for his (Peter's) and his wife's life at £4 a year.

Robert White, the defendant, stated that in 1902 "old Peter said if I got liberty from my employers and came back to manage the creamery, I could build a shop, and he would go half in it, and I could have it for my life and my wife's. I was to be the owner, to have it for my property, and never to be disturbed out of it." There was no agreement in writing. Mrs. White's evidence was to the effect that her father sent for them, and said he would put up the shop for them, "he to pay and we to pay, and we were to own it." They had been in possession since the shop was finished, before April, 1903.

The questions put by the learned Judge to the jury and the answers thereto were as follows:—1. In the year 1902 did Peter O'Regan promise defendant, Robert White, that if he come back and managed the creamery he would give him the plot of ground absolutely, and assist him in building a shop upon it? Answer, "Yes." 2. Did defendant in 1902 return and manage Peter O'Regan's creamery? Answer, "Yes." 3. Did Peter O'Regan put defendant into possession of the plot. Answer, "Yes."4. Did defendant enter into possession of the plot, and on the faith of the said promise expend money in building the shop and reclaiming the plot? Answer, "Yes." 5. Have the defendants been in continuous possession and occupation of the plot since 1903? Answer, "Yes." 6. Did the letting by Peter O'Regan in 1906 include the shop and plot of ground or either of them, and if so, which? Answer, "No."

Upon these findings the learned Judge gave judgment for the defendants, with costs.

The plaintiff moved in the King's Bench Division that the judgment for the defendants be set aside, and that judgment be entered for her.

The defendants appealed (1).

Gibson J. :—

Having heard this case, we are all agreed about it. In England it could have had only one result; the defendant would have an equitable estate, which would be an answer to an ejectment. But the property was a holding coming within the Irish Land Acts, under the provisions of which it is impossible to sub-let or subdivide without the landlord's consent. In the present case the subdivision was not followed by any consent on the part of the landlord. When the estate was being sold, the lands were represented as being in possession of the purchasing tenant. The subdivision was illegal. But the defendant was lawfully in occupation. He was a tenant-at-will. His possession was not trespassory but lawful; it...