Earnshaw and Others v Hartley

JurisdictionEngland & Wales
Judgment Date31 March 1999
Judgment citation (vLex)[1999] EWCA Civ J0331-13
Date31 March 1999
CourtCourt of Appeal (Civil Division)
Docket NumberCCRTF 1999/0104/2

[1999] EWCA Civ J0331-13




(His Honour Judge Barry)

Royal Courts of Justice

Strand, London WC2


Lord Justice Nourse

Lord Justice Buxton and

Sir Christopher Staughton

CCRTF 1999/0104/2

(1) Anne Hyde Earnshaw
(2) Marion Robinson
(3) Lucy Hyde Fielden
Josephine Hyde Hartley

Mr P Creaner (instructed by Messrs Waddington & Son, Burnley, Lancashire) appeared on behalf of the Appellant Defendant.

Mr B Coulter (instructed by Messrs Ursula Bagnall & Co, Totnes, Devon) appeared on behalf of the Respondent Plaintiffs.


Wednesday, 31st March 1999


This appeal raises a question on paragraph 9 of schedule 1 to the Limitation Act 1980, which appears under the rubric "Possession of beneficiaries not adverse to others interested in settled land or land held on trust for sale."


By a conveyance made on 17th September 1948 William Hyde Hartley ("the father") acquired a freehold property consisting of a farmhouse, farm buildings and just over 14 acres of land known as Height Top Farm, Cornholme, Todmorden in West Yorkshire ("the farm"). He was married to Mary Hartley ("the mother") and they had four children: a son, also named William Hyde Hartley ("the son"), and three daughters, Ann Hyde Earnshaw, Marion Robinson and Lucy Hyde Fielden ("the daughters"). The son was born in 1938 and the daughters in 1941, 1943 and 1948 respectively.


On 8th April 1965 the father died intestate. On 25th May 1965, his estate having been sworn at £1,363 gross and £1,303 net, letters of administration were granted to the mother, she being the only person beneficially entitled to the estate. By an assent in writing made on 30th June 1965 the mother, as the personal representative of the father, assented to the vesting of the farm in herself. It is clear that at that stage she was the sole legal and beneficial owner of the farm.


After the father's death the son, who had not then married, continued to live with the mother at the farm until her death on 18th November 1983. She also died intestate, but no grant of letters of administration to her estate was obtained at that stage. The position in law was that, by virtue of section 9 of the Administration of Estates Act 1925, her real and personal estate, including the farm, vested in the President of the Family Division until administration was granted in respect thereof. It appears that the farm was the only asset or the only substantial asset of the estate. If and when administration was granted, the farm would, by virtue of section 33(1)(a) of the 1925 Act be held on trust for sale and, subject to administration, would, by virtue of sections 46(1)(ii) and 47(1)(i) of the Act, be held in trust for the son and the daughters in equal shares absolutely.


After the mother's death the son continued to live on at the farm on his own. The daughters claim that he did so with their consent express or implied. Each of them was married and was living away from home. The daughters also claim that in the five years between 1988 and 1993 the son, who went to live with a friend nearby during that period, was not in possession of the farm. However, that is not a question which arises for decision at this stage. For present purposes we must assume that the son was throughout in possession of the farm.


In the early 1990s the son became friendly with the defendant, now Josephine Hyde Hartley, who went to live with him at the farm in about July 1992. On 17th October 1995 they were married. On 9th November 1995 the son made a will in which he appointed the defendant to be the sole executrix thereof and devised and bequeathed all his estate and effects both real and personal whatsoever and wheresoever to her absolutely. On 14th November 1995 the son died.


On 27th November 1995 solicitors acting for the daughters wrote to the defendant stating that they had been retained with a view to effecting a sale of the property. The daughters maintained that they were each entitled to a quarter of the net proceeds of sale of the farm. The defendant maintained that the son and she successively had been in adverse possession of the farm since the mother's death on 18th November 1983, a period of more than twelve years, and that she, by succession and in her own right, had therefore acquired a possessory title to it. There was then a period of negotiation between the parties, but by the beginning of 1998 negotiations had broken down.


On 15th January 1998 two of the daughters, Mrs Robinson and Mrs Fielden, obtained a grant of letters of administration to the mother's estate. On 12th March 1998 the defendant obtained a grant of probate of the will of the son. By a summons issued on 11th June 1998 this action was commenced by the daughters against the defendant in the Halifax County Court. By their particulars of claim the daughters claimed various forms of relief, including a declaration as to the beneficial interests in the farm, an order for possession against the defendant, an order that the defendant should pay an occupation rent, and an order that the farm be sold. By her defence and counterclaim, the defendant alleged that by virtue of the undisturbed possession of the farm since the mother's death by the son and herself she had acquired a possessory title to it.


On 13th July 1998 the district judge gave directions for the filing of witness statements limited to the issue of adverse possession and made an order that "the trial of the preliminary issue of adverse possession be before the Circuit Judge". The trial came on before His Honour Judge Barry on 11th January 1999, when counsel for the daughters argued, by way of a preliminary point in the issue, that the defendant's claim to have acquired title to the farm by adverse possession was on any footing defeated by paragraph 9 of schedule 1 to the 1980 Act. The judge having decided that point in favour of the daughters, the defendant accepted that that was effectively an end of the proceedings.


By his order (as subsequently varied) the judge accordingly dismissed the defendant's claim for adverse possession...

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