The Gazette 1976

GAZETTE

UNE

1976

RECENT IRISH CASES

EQUITY

Lands held in sole name of husband,

but bought from a joint account, are

deemed to belong to husband and

wife equally.

The plaintiff and defendant were

married for 11 years. They were

married and divorced in America,

and, though originally from County

Cavan, are still living there. The

plaintiff wife claims to be entitled

to half of a farm of land m County

Cavan which was purchased in de-

fendant husband's sole name, with

money from a joint account. Thf

parties were married in 1961, and

both worked hard, and lived to-

gether in mutual harmony, pooling

their resources in a joint account.

In 1964, they decided to purchase

a small farm near their farm in Co.

Cavan. The money was provided

from the joint account, and sent by

the defendant to his father, who

arranged that the farm should be

transferred into the sole name of

the defendant. The defendant's

father subsequently received all the

rents and profits of the farm, al-

though he gave the parties some

money on their occasional visits to

Ireland. Towards the end of 1968,

the defendant was addicted to strong

drink and in January, 1969, the

plaintiff wife, had the joint account

transferred into a savings account

in her own name. Some time sub-

sequently, the plaintiff came on a

visit to Ireland and discovered that

the lands were in her husband's sole

name. She endeavoured unsuccess-

fully to have the lands transferred

into their joint names. When they

arranged to separate it was agreed

that the plaintiff would pay the de

fendant $1,000 which she did in

two payments in November, 1969.

By June, 1972, there was still $3,862

in the savings account which the

plaintiff retained. The plaintiff

obtained a divorce in Illinois in

May, 1972, and the defendant did

not contest the proceedings; at this

time the Court declared that the

plaintiff wife was entitled to an un-

divided half of the lands in Cavan.

The plaintiff agreed that her earn-

ings during the period of the joint

account were about two-thirds of

those of the defandant. The defend-

ant, at first, contended in Cavan

that the whole case was governed by

American law, and that the plaintiff

should have produced evidence of

American law. However, this point

was abandoned when legal argument

was adjourned to Dublin.

The cases cited appear to establish

the following principles : -

1. Where two people provide the

purchase price for property which is

conveyed to one of them only,

prima

facie

the person, into whose name

it is conveyed will hold the property

on trust in shares proportionate to

their contributions to the purchase

price.

2. This presumption may be re-

butted by evidence of a contrary

intention.

3. As between husband and wife,

a Court must take into consideration

the nature of the mutual relationship

between them. This does not how-

ever mean that, in the case of prop-

erty in the sole name of a spouse,

a Court is entitled to presume an

agreement, without evidence to sup-

port it.

4. Where there is a Joint Account

between husband and wife, into

which they put all their resources,

it should be assumed, unless there

is compelling evidence to the con-

trary, that the account was intended

as a joint account, with equal rights

over it to each of the parties.

In this case, as the land was

purchased with money drawn from

the joint account, and was made by

agreement between the parties, it

was held that the account had be-

come the joint property of the hus-

band and wife equally. Accordingly

they must both be held to have con-

tributed to the purchase in equal

shares. The defendant husband's

counterclaim for his chare of the

money left in the deposit account

is rejected, as the plaintiff continued

to contribute to the defendant, while

he was out of employment after the

separation. Declaration made accord-

ingly.

Ann Galligan v. Matthew Galligan

— Circuit Judge McWilliam —

Gavan Circuit Court — 1972 —

unreported.

VENDOR AND PURCHASER

In this specific sale of licensed

premises, time was deemed of the

essence of the contract The pur-

chaser delayed completion deliber-

ately, in conscious default of Ids

obligations. Consequently his applic-

ation for specific performance will

be refused. Appeal from Cork Circuit

Court dismissed.

On 5th April, 1974, the plaintiff

signed a contract with defendants

for the purchase of the freehold,

Seaview Hotel, near Kinsale, with

licence attached for £34,500. The

contract provided for a deposit of

£8,675, but only £5,000 was actually

paid. Negotiations for this contract

had taken place for the previous

two months. No specific date for

closing was fixed. When the defend-

ant's solicitors first sent the draft

contract, they erroneously described

the premises as leasehold, but sent

a fresh contract subsequently; here

a closing date of 22nd April, was

inserted, and a clause provided that

time was to be of the essence of the

contract. On 20 May, 1974, solicitors

for the plaintiff purchaser wrote,

revealing a number of debentures

against the vendor company. Eventu-

ally on 26th July, the solicitors for

the defendant vendors wrote stating

that his clients were dissatisfied with

the delay, insisted on making time

of the essence of the contract, and

called upon the plaintiff to com-

plete within two weeks. The plain-

tiff was on vacation, and could not

be contacted until 2nd August. On

6th August, the defendant vendors

repeated that no further extension

could be granted, and threatened to

cancel the contract. On 6th August,

the plaintiff purchaser went to his

bank to arrange a bridging loan,

which was granted on 8th August.

On 9th August, two letters were

sent:- (1) The solicitors for the

vendor wrote by post to the pur-

chasers stating that, as the sale had

not been completed his client was

withdrawing from the sale; (2) the

solicitors for the purchasers wrote

to the vendor sending requisitions

and a draft conveyance, and stating

that the purchaser was willing to

complete immediately; this letter was

delivered the same afternoon. On

12th August, solicitors for purchasers

offered to close that afternoon, pro-

vided vendors held the conveyance

until it was sold. On same date,

solicitors for the vendors pointed out

that the deadline stipulated had ex-

pired; a further letter by vendor's

solicitor of 13th August rejected the

terms offered by defendant's solic-

itors on the 12th. At the end of

August, the vendors brought pro-

ceedings for specific performance of

the contract. The vendor however

did not give evidence in Court, but

his solicitor did.

The following issues of law are

involved : -

1. Is the contract for sale, being

the sale of a licensed premises, to

be deemed a contract in which time

for completion is of the essence ?

Normally in the sale of a public

house as a going concern, time is

of the essence of the contract,

whether expressed to be so or not.