Vaughan v Cottingham

JurisdictionIreland
Judgment Date01 January 1962
Date01 January 1962
CourtSupreme Court

Supreme Court.

Vaughan v. Cottingham
DANIEL VAUGHAN
Plaintiff
and
ANNE COTTINGHAM, Defendant (1)

Registration of land - Administratrix of deceased registered owner - Grant de bonis non to administratrix - Death of administratrix - Administratrix in possession of the land for thirteen years prior to her death - Grant of administration to deceased registered owner not taken out until five years after his death - Whether administratrix an express trustee for the next-of-kin of deceased registered owner - Title by long possession not acquired by administratrix - Claim of next-of-kin protected despite such possession - Local Registration of Title (Ireland) Act, 1891 (54 & 55 Vict., c. 66), ss. 84, 85, 86.

Case Stated under the provisions of s. 38 of the Courts of Justice Act, 1936, by Kingsmill Moore J., sitting in Galway as a Judge of the High Court on Circuit.

The Case Stated was as follows:—

"The plaintiff, Daniel Vaughan, issued an equity civil, bill claiming an order under s. 52 of the Registration of Title Act, 1891, declaring that one, Margaret Vaughan, would but for the provisions of the said Act have acquired title to the lands comprised in Folio No. 12487 of the register for the County of Galway and an order that the said Folio be rectified accordingly." [The equity civil bill and the defence thereto were annexed to and incorporated in the Case Stated.]

"The facts which I find to have been proved or admitted are as follows:—

1, John Vaughan late of Faul, Clifden, in the County of Galway was at the date of his death on the 20th May 1942 the registered full owner of the lands comprised in Folio No. 12487 of the Register of Freeholders for the County of Galway.

2, The said John Vaughan died intestate and a bachelor.

3, The said John Vaughan left the following brothers and sisters his sole next-of-kin him surviving:—Martin Vaughan, Margaret Vaughan, Mary Carroll (née Vaughan),

Nora Tinkham (née Vaughan), Bridget Laffey (née Vaughan) and the defendant.

4, All of the next-of-kin of the said John Vaughan were of full age at the date of his death.

5, Before the death of the said John Vaughan all his said next-of-kin except the said Margaret Vaughan had left the said lands and had gone to reside elsewhere and no one of them at any time subsequent to his death made any claim to or re-entered upon the said lands or any part thereof or made any claim to the whole or any part of the rents and profits therefrom until the issue of the ejectment civil bill hereinafter referred to.

6, From the death of the said John Vaughan until her own death on the 22nd day of February 1955 the said Margaret Vaughan was in sole and exclusive beneficial occupation and possession of the said lands and in sole receipt of the rents and profits issuing therefrom without payment to or acknowledgement of the title to any person claiming to be entitled in succession to the said John Vaughan, deceased.

7, On the 19th May 1947 letters of administration of the personal estate of the said John Vaughan were granted to the said Margaret Vaughan.

8, On the 28th June 1956 letters of administration of the personal estate de bonis non of the said John Vaughan were granted to the defendant.

9, By her last will dated the 22nd day of December 1954 the said Margaret Vaughan devised and bequeathed her right title and interest in the lands contained in the said Folio to the plaintiff and appointed him as her executor. Probate of the said will issued forth of the Principal Probate Registry to the plaintiff on the 25th March 1955.

10, The defendant as plaintiff issued an ejectment civil bill on the title against the present plaintiff as defendant on the 7th August 1956 claiming in her capacity as legal personal representative of the said John Vaughan the recovery of possession of the lands contained in the said Folio. The said proceedings have been adjourned by the learned Circuit Court Judge pending the determination of the issues raised in the equity civil bill served herein. The said ejectment civil bill and the defence thereto are annexed to and incorporated in this Case Stated.

11, The defendant became registered as full owner of the said lands on the 17th day of July 1956 and on the same date an inhibition was entered on the said Folio inhibiting all dealings by her except in the course of the administration of the estate of the said John Vaughan.

At the hearing the plaintiff was represented by Mr. Kevin M. Kenny, Senior Counsel, and Mr. Peter O'Malley (instructed by Mr. James B. Joyce, Solicitor). The defendant was represented by Mr. P. J. Lindsay, Senior Counsel, and Mr. Brian V. Fahy (instructed by Messrs. R. J. Connolly & Son, Solicitors).

In opening the case Mr. O'Malley stated the above facts as being facts agreed by both sides and said the only issue to be decided was as to whether or not the said Margaret Vaughan had acquired title to the said lands prior to her death. He submitted that on the facts it was quite clear that she would have acquired title to the lands if she had not on the 19th May 1947 raised representation to John Vaughan but that following the decision in In re Loughlin(3)it might be argued that she, by raising representation, had constituted herself an express trustee of the lands for the benefit of the next-of-kin of the said John Vaughan so as to prevent her from acquiring a good title to the said lands by virtue of the provisions of the Real Property Limitation Acts, 1833 to 1874. I indicated that I considered myself bound by the decision referred to and Mr. O'Malley then asked that I should refer the question that arose by way of case stated for the determination of the Supreme Court. Mr. Lindsay submitted that if there should be a case stated the plaintiff should be put on terms of paying for it. I was of the opinion that the questions arising in this case are of sufficient importance to justify their being referred to the Supreme Court for its determination and I was not prepared to make any order in regard to the costs of the Case Stated which I have reserved to abide the decision of the Supreme Court. In stating this Case I have had particular regard to the statement of Mr. Justice O'Byrne in the case of Owens v.McGarry(4) to the effect that he desired expressly to reserve the question as to the nature of the trust created by s. 86 of the Act in cases to which that section applied.

The questions for the determination of the Supreme Court are:—

1, Whether the said Margaret Vaughan by raising representation to the said John Vaughan did thereby constitute herself an express trustee of the said lands for the benefit of the next-of-kin of the said John Vaughan?

2, Whether the effect of the raising of representation to the said registered owner by the said Margaret Vaughan was to prevent her from acquiring thereafter title to the said lands by virtue of the Real Property Limitation Acts, 1833 to 1873?

3, Whether I am entitled on the facts hereinbefore set forth to hold that the said Margaret Vaughan would have prior to her death acquired title by possession to the said lands but for the provisions of the Registration of Title Act, 1891?

4, Whether I am entitled to make an order declaring that the said Margaret Vaughan had acquired such title by possession and ordering the Register to be rectified in such manner as I may think just?"

The Case Stated was dated the 30th July, 1957, and was signed by the said Judge.

Where a personal representative obtained letters of administration of the personal estate of an intestate within 5 years of his death and continued in possession of his registered lands, it was

Held by the Supreme Court 1, that such personal representative did not become an express trustee of such lands for the next-of-kin of the deceased; and

2, That the limitation of 20 years prescribed by s. 13 of the Act of 1860 2applied to a claim by the next-of-kin in respect of such registered lands.

Cur. adv. vult.

Lavery J. :—

This matter comes before the Court on a consultative case under the provisions of s. 38 of the Courts of Justice Act, 1936, stated by Mr. Justice Kingsmill Moore when sitting as a Judge of the High Court on Circuit in Galway in July, 1957.

The plaintiff, Daniel Vaughan, had issued an equity civil bill claiming an order under s. 52 of the Local Registration of Title (Ireland) Act, 1891, to which I shall hereafter refer as the Act of 1891.

The plaintiff sought an order that one, Margaret Vaughan, would, but for the provisions of the Act of 1891, have acquired title to the lands comprised in Folio No. 12487, County of Galway, and an order that the register be rectified by deleting the name of the defendant as full owner and deleting the inhibition appearing on the Folio and registering the plaintiff as full owner.

Shorn of technicalities the question at issue is whether Margaret Vaughan acquired the fee simple interest in the lands by possession and receipt of the rents and profits of the lands for a period of twelve years and upwards without acknowledgment of the right of any other person. The plaintiff is the devisee of the lands under her will and if she had acquired a title, his title is valid and should be registered.

The facts and dates must now be set out as they appear in the Case Stated.

1, John Vaughan was the registered owner of the lands in the Folio—subject to the note as to the equities—the effect of which is well understood and does not affect the matter in issue.

2, John Vaughan died a bachelor and intestate on the 20th May, 1942.

3, His next-of-kin were a brother and five sisters. One sister was Margaret who was in occupation of the farm with her brother at the time of his death and continued in possession after his death and remained in sole receipt of the rents and profits without acknowledgment of title to any other person until her death on the 22nd February, 1955. Another sister was the defendant, Anne Cottingham (née Vau...

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