Allen v Roughley [1955] HCA 62

Allen v Roughley [1955] HCA 62 - HCA 1955 case summary — Zoe

[63]

The inference appears to me to be plain enough that at his death the testator was possessed of the land. Whatever may have been the infirmity of his title derived through or from the Plunketts and Catherine Hyland, if it amounted to no more than a possessory right, it devolved upon his trustees under the devise to them and was subject to the trusts of his will. If Allen had been able to show that before he became trustee he had acquired a possessory title to the land by time running in his favour and barring the interests derived under the will, then doubtless his title would not have been destroyed by his acceptance of the office of trustee. But that is the very thing that he has been unable to show. He is left simply as a person in possession of the land with no proprietary right or interest. Yet his bare possession of the land at the time he became trustee and afterwards is relied upon as enough to place his beneficiaries under the necessity of proving affirmatively that the land is subject to the trusts of the will. He accepted the office of trustee under a will purporting to dispose of the land. The testator had at least an interest in the land capable of devolving on the trustees and that interest became vested in Allen and Roughley as trustees subject to the trusts of the will. A trustee who insists that an interest which otherwise would thus devolve upon the trustee and enure for the benefit of the beneficiaries is overridden by, or must give way to, his own private rights cannot throw the burden of proof upon the beneficiaries. The principles of equity hardly allow a trustee who contests the title of the trust he has accepted to property over which the trust instrument has in fact declared trusts to place the burden on the beneficiaries of establishing the title of the trust. Any claim he may' make to the enjoyment of the property, he must substantiate. It therefore appears to me that the case is not governed by the rules that would apply if Allen were a defendant in an action of ejectment brought by a stranger who depended on an alleged legal title to the land of which Allen was in possession and that he has failed to discharge the onus lying upon him. The appellants' case was, however, presented on the footing that it was governed by such rules. It was said to raise the interesting question whether a claimant in ejectment, failing proof of a documentary title to an estate of freehold or to a term of years or some other proof of seisin or of a chattel interest in the land entitling him to possession, can make a sufficient presumptive case against a defendant in possession by proving simply that at a prior date the claimant or his predecessors in title were possessed of the land for a period less than twenty years. The case was put on one side of a claimant who had been in possession but who had been

[87]

of the land for at most fifteen years at the date of his death. He relied on the following passage from Holdsworth's A History of English Law, 2nd ed. (1937), vol. 7, pp. 64, 65: "(i) The fact that a plaintiff, who relies solely on his own possession, must show a possession for twenty years - the period fixed by James I.'s statute of limitation - seems clearly to involve the consequence that possession for any less period will not do. We have seen that the necessity for showing a possession for twenty years was laid down by Holt C.J., in 1699 ; but it was apparently not till the beginning of the nineteenth century that it was clearly ruled that possession for a less period was insufficient. In 1829, in the case of Doe d. Wilkins v. Cleveland (1), it was held that 'no possession short of twenty years was sufficient to warrant the jury in presuming the fact of livery of seisin'; per Littledale J. (2), and this was approved by Parke B., in 1837 - if,' he said, ' the fact of livery of seisin is sought to be inferred from possession alone, such possession ought to have existed for twenty years.' Doe d. Lewis v. Davies (3). The reason for this rule is obvious. The defendant is in possession, and therefore presumably entitled in fee simple. Though prior possession for twenty years does raise the inference that the person so possessed had an absolute right by virtue of the statute, posses- sion for a less time can raise no inference at all. Therefore the presumption in favour of the defendant stands. As Cole says, Law and Practice in Ejectment (1857), p. 212, ' proof of mere posses- sion by the plaintiff, or of the person through whom he claims, within twenty years before action, is not generally sufficient to support an ejectment, because the defendants in such action are sued as tenants in possession ; and their possession is presumed to be lawful, in the absence of proof of title in the claimants '."". We were referred to a passage in the judgment of Jordan C.J. in N.R.M.A. Insurance Ltd. v. B. & B. Shipping & Marine Salvage Co. (4), which appears to state that a plaintiff who can prove that he has been in possession of land for any period of time prior to the possession of the defendant makes a prima facie case in ejectment that he is seised in fee. If this means that the presumption in his favour continues after he has abandoned the possession and would be available against any person who subsequently entered into possession so that any plaintiff who could prove prior possession at any time could recover the land against any subsequent possessor,

[90]

I cannot accept it. It is opposed to the passage cited from Holds- worth. It is also opposed to the opinion of Lord Macnaghten, delivering the judgment of the Privy Council in Agency Co. v. Short (1) that "the possession of the intruder, ineffectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose" (2). I do not doubt that the law is correctly set out in the passage in Holdsworth, but I do not think that it has any application to the facts of the present case. It refers, and refers only, to cases where a person in possession abandons the Jand so that a succeeding intruder does not disturb an existing possession in any one. If an existing possession is disturbed, the person in possession can sue the disturber as a trespasser. Proof that he is in possession confers on him a good title against the whole world, except those who show a better title. This is pointed out in the passage in Holdsworth which immediately follows the above passage. The learned author says (p. 65): " But it must be noted that this principle does not apply in the two following cases : (a) we have seen that if an action of ejectment is brought against a trespasser, the plaintiff is entitled to recover merely on proof of his possession and its disturbance by the defendant just as if he had brought an action of trespass". The correctness of this passage is placed beyond doubt by Doe d. Hughes v. Dyeball (3) ; Davison v. Gent (4) and by the approval by the Privy Council in Perry v. Clissold (5) of the expression of opinion to the same effect by Cockburn C.J. in Asher v. Whitlock (6). Holdsworth continues (p. 65) : "() if an action of ejectment is brought against a defendant whose possession is not adverse to that of the plaintiff (e.g. if the defendant is in possession merely as a bailiff for the plaintiff) the plaintiff, by construction of law, is and has always been in possession ; and the defendant, being estopped from disputing this fact, the plaintiff is entitled to succeed."

[97]

and after he returned he was living on Hyland's land from time to time. He lived more at the homestead than on this land, but presumably that was because as a bachelor he found it more con- venient to be looked after by his sister than to have to look after himself. Two applications were made to bring the land under the Real Property Act 1900. William made the first application, it would seem, about 1921 and requested that the certificate of title should issue to the defendant as his nominee. This application was withdrawn on 11th February 1924. The notice of withdrawal is in evidence and was signed by William as applicant and the defendant as nominee. The joinder by the defendant in this application not as the applicant but as the nominee of William is quite inconsistent with his present case. It points strongly to a desire on the part of William to transfer his life estate to. the defendant. But William could not do this nor let the defendant into possession of the land so that the defendant, by remaining in possession for twenty years, could defeat the title of any of the persons, other than William, claiming under the will of the testator. The defendant, by remaining in possession for twenty years, could get a good possessory title under the Act against the whole world, except those persons, because s. 34 of the Real Property Limitation Act proyides that at the determination of the period limited by the Act to any person for making an entry, the right and title of such person shall be extinguished. But the defendant would be estopped from setting up any title adverse to the will and any title the defendant derived from such possession would be subject to the trusts of the will. Under those trusts, on William's death, the trustees held the land on trust for sale and to distribute the proceeds of sale among the beneficiaries. Time would not run under s. 3 of the Act against the trustees under this trust until they became entitled to the possession of the land on the death of William in

[102]

There can be no doubt that a person who is in possession of land without a good documentary title has, whilst he continues in possession, a devisable interest in the property (Asher v. Whit- lock (1) ; Calder v. Alexander (2); Perry v. Clissold (3) ; Wheeler v. Baldwin (4)). The testator was, therefore, entitled to devise the land in dispute to his trustees on the trusts of the will. One of these trusts was a trust, on William's death, to sell the land and divide the proceeds among the beneficiaries. For this purpose the trustees required to have the legal estate and the possession of the land on William's death. As the legal life tenant William was entitled to possession during his lifetime, but on his death the trustees became entitled to possession. The testator was in posses- sion of the land at his death and his executors and trustees succeeded to that possession. The fact that the testator by his will had created trusts for life and in remainder of the land tends strongly against any inference other than the inference that William entered into possession as life tenant under the will and the defendant was in occupation by William's permission. The testator, at the date of his death, had been in possession of the land for fifteen years. It therefore only required possession for a further five years by those claiming under the testator for the estate of the testator to acquire a good possessory title to the land, that being a title which leaves the person in possession with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him. Such a title gained by the operation of the statute is a good title both at law and in equity, and will be forced by the court on a reluctant purchaser: Tichborne v. Weir (5); Re Atkinson and Horsell's Contract (6); Taylor v. Twinberrow (7). In these circumstances the suggestion that a positive inference should be drawn that the possession of the land was deliberately abandoned at or soon after the testator's death by William and the trustees,

[122]

Roper C.J. in Eq. treated the case as one in which the defendant Allen could not succeed either as to Martin's land or as to Plunkett's land unless he established that, before he became a trustee of the estate of Henry Cusbert in 1937, he had acquired a legal title to the land in question. The only way in which it could be suggested that he had acquired a legal title was by possession. The relevant statute in this regard is the Real Property Limitation Act 1833 (Imp.) which became part of the law of New South Wales by virtue of Act 8 Wm. IV. No. 3 (N.S.W.). The English Act of 1874 has not been adopted in New South Wales. The provisions of the Act of 1833, so far as material, are as follows. Section 2 provides that no person shall make an entry or distress or bring an action to recover any land but within twenty years next after the time at which the right to make such entry or distress or bring such action shall have first accrued to himself or to some person through whom he claims. By s. 3 it is provided that when the estate or interest claimed shall have been an estate or interest in reversion or remainder or other future estate or interest and no person shall have obtained the possession or receipt of the profits of such land in respect of 'such estate or interest, then such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession. Section 7 provides 'that, where the possession is that of a tenant at will, the right to make an entry or bring an action shall be deemed to accrue at latest at the expiration of one year from the commencement of the tenancy : see Lightwood, The Time Limit on Actions (1909), p. 97. Section 25 provides that when any land is vested in a trustee upon any express trust the right of the cestui que trust or any person claiming through him to bring a suit against the trustee or any person claiming through him to recover such land shall be deemed to have first accrued at and not before the time when such land shall have been conveyed to a purchaser for value. Section 34 provides that at the deter- mination of the period limited by the Act to any person for making an entry or distress or bringing an action the right and title of such person to the land shall be extinguished.

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Judgment (218 paragraphs)