Mulcahy v. Curramore Pty. Ltd.

2 NSWLR 464

---

(Judgment by: Bowen C.J. in Eq.)

Mulcahy
v Curramore Pty. Ltd.

Court:

Judges: Hardie, Hope and Bowen JJ.A.
Moffitt P.
Hope J.A.

Bowen C.J. in Eq.

Subject References:
Real Property
Limitation of action
Old system land
Possessory title
Continuous actual adverse possession for statutory period by two parties in succession, second not claiming title through first
Documentary title of true owner extinguished
Contract between second adverse possessor and third party to sell former's rights under possessory title
Rights of third party against successor in title to former true owner.

Case References:
Allen v. Roughley - (1955) 94 C.L.R. 98
Asher v. Whitlock - (1865) L.R. 1 Q.B. 1
Birchal v. Birch, Crisp & Co. - [1913] 2 Ch. 375
Fairweather v. St. Marylebone Property Co. Ltd. - [1963] A.C. 510
Harmer v. Armstrong - [1934] 1 Ch. 65
Kirby v. Cowderoy - [1912] A.C. 599
Lord Advocate v. Lord Lovat - (1880) 5 App. Cas. 273
Mulcahy v. Curramore Pty. Ltd. - [1973] 1 N.S.W.L.R. 737
Neeta (Epping) Pty. Ltd. v. Phillips - (1974) 48 A.L.J.R. 204
Nicholas v. Andrew - (1920) 20 S.R. (N.S.W.) 178; 37 W.N. 36
Perry v. Clissold - [1907] A.C. 73; (1907) 4 C.L.R. 374
Riley and the Real Property Act, Re - (1964) 82 W.N. (Pt. 1) (N.S.W.) 373
Salter v. Clarke - (1904) 4 S.R. (N.S.W.) 280; 21 W.N. 71
Solling v. Broughton - (1891) 12 L.R. (N.S.W.) 189; 10 W.N. 99; affirmed; [1893] A.C.556; (1893) 14 L.R. (N.S.W.) 412
Trustees, Executors, and Agency Co. Ltd. v. Short - (1888) 13 App. Cas. 793.
Wallis's Cayton Bay Holiday Camp Ltd. v. Shell-Mex & B.P. Ltd. - [1974] 3 W.L.R. 387
Willis v. Earl Howe - [1893] 2 Ch. 545

Hearing date: June 19, 20, 1974; Nov. 12, 25 1974;
Judgment date: 9 December 1974

New South Wales

---

Judgment by:
Bowen C.J. in Eq.

This is an appeal against a decision of Helsham J. in a suit regarding the ownership of land brought by John Patrick Mulcahy, the plaintiff, who claims to have a possessory title, against Curramore Pty. Ltd., the defendant, which claims to have the documentary title: see Mulcahy v. Curramore Pty. Ltd ^[F12a] . His Honour made a declaration that the plaintiff was entitled in equity to an estate in fee simple in the land, and a declaration that the plaintiff was entitled to a right of carriage-way over a strip running across the land, such right being appurtenant to adjoining land in respect of which the plaintiff held the documentary title. His Honour also made orders restraining the defendant from proceeding with an application to bring the land in dispute under the Real Property Act, 1900, and requiring it to remove a fence obstructing the right of carriage-way.

The land in dispute is triangular in shape and has an area of 1 acre 3 roods and 24 perches. It is part of the land known as portion 8 situated in the Parish of Kembla, County of Cumberland, and has as one of its boundaries O'Brien's Road, Mount Nebo. It lies between a rectangular or oblong block of land having an area of 33 acres 3 roods 311/4 perches which is part of portion 98 of the same parish. The north-eastern corner of the larger rectangular block intersects the western boundary of O'Brien's Road. Commencing at the point of intersection the triangular block of land extends southwards lying between the larger rectangular block and O'Brien's Road.

The titles to both blocks are under the old system. In the proceedings it has not seriously been contested that the documentary title to the freehold of the larger rectangular block is in the plaintiff, and that the documentary title to the freehold of the smaller triangular block is in the defendant, unless the latter has been extinguished by adverse possession.

At the time the suit commenced the defendant was in possession of the triangular block, and had made application to bring the title to it under the Real Property Act. The plaintiff by his originating summons sought a de-claration that he was the owner in fee simple by reason of adverse possession; and, alternatively, a declaration that he was entitled to a right of carriage-waytwelve feet wide over the land from O'Brien's Road to the larger rectangular block. He sought appropriate injunctions.

The learned trial judge held that the plaintiff had established a title by adverse possession, and made the declarations and ordered the injunctions which I have mentioned.

On this appeal the defendant (appellant) sought to set aside the whole of his Honour's decision. It asked for an order dismissing the suit with costs. Little argument was directed to challenging his Honour's decision regard ing the right of carriage-way. I am not persuaded his decision should in that respect be disturbed. However, if the plaintiff is entitled by adverse possession to the triangular block in dispute, the question of the right of carriage-way over it as appurtenant to the rectangular block is academic.

The triangular block was the subject of a conveyance dated 8th November, 1932, to one Harnan, also known as Arnold. Harnan (or Arnold) died on 17th April, 1967. On 10th April, 1968, the executors of his will purported to convey the land, together with other land, to the defendant. Harnan (or Arnold) up to the time of his death in 1967 had not for many years been in physical possession of the land in dispute, nor does it appear that his executors entered into possession prior to the conveyance of 10th April, 1968.

The large rectangular block was the subject of a conveyance dated 6th March, 1935, to one Whyte. Whyte, by conveyance dated 8th October, 1935, transferred it to one Gilroy. Gilroy, by conveyance dated 20th May, 1948, transferred it to one Hurley. Hurley, by contract for sale dated 20th April, 1970, agreed to transfer both the rectangular block, to which he held docu- mentary title, and also his right, title and interest in the triangular piece of land to the plaintiff. By conveyance dated 10th May, 1971, pursuant to that contract, Hurley transferred the rectangular block to the plaintiff. He ex- ecuted no conveyance of the triangular block. It seems that, after the contract for sale of 22nd April, 1970, and before the date of the conveyance of 10th May, 1971, the defendant entered into possession of the triangular block.

The precise date of this entry does not appear to be established. As far back as 1935, during the ownership of the rectangular block by Whyte, the triangular block of land was fenced in with the rectangular block. In a careful and lengthy judgment the learned trial judge discussed the details of occupation and use of the triangular block of land over the inter- vening years. I do not propose to recapitulate his detailed findings, except in so far as it may become necessary in discussing particular issues. His Honour broadly summarized his findings as follows ^[F13] :

"I find that the disputed land was fenced into the oblong strip when Whyte bought and later conveyed the oblong strip to Gilroy in 1935, who was thereafter in possession of the disputed land in a way adequate to amount to adverse possession up to the time he conveyed the oblong strip to Hurley in 1948, who was in possession of the land in a way adequate to constitute adverse possession up to 1964, there being no break in continuity in fact between the adverse possession of Gilroy and Hurley. Hurley then sold the oblong strip and his right title and interest in the disputed land (I will come back to the description of it) to the plaintiff in 1970, and conveyed the oblong strip tothe plaintiff in 1971. There was, therefore, a period of more than twenty years' adverse possession by Gilroy and Hurley, the one following the other, a period of about seven years when there was no adverse possession, followed by a re-taking of possession by the documentary owner, if I may describe it as such, who has been in possession for about two years."

The question whether a title has been acquired by adverse possession depends upon the application of the Real Property Limitation Act, 1833 (Imp.), the provisions of which were adopted and applied to New South Wales by the Real Estate (Limitation of Actions) Act, 1837.

The relevant provisions of the Act of 1833 may be summarized as follows: Section 2 provides that no person shall make an entry or distress or bring 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 claimed. Section 16 provides that, in the case of persons under disability by reason of infancy, lunacy, coverture or absence beyond the seas, they or their representatives are to be allowed up to ten years from the termination of their disability or death, thus extending the period. Section 17 provides the ultimate limit of forty years, after which no action may be brought. Section 34 provides that, at the determination 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.

Possession which will cause time to run under the Act is possession which is open, not secret; peaceful, not by force; and adverse, not by consent of the true owner. Lord Shaw of Dunfermline, giving the opinion of the Privy Council in Kirby v. Cowderoy ^[F14] , discussed the nature and incidents of adverse possession. Adopting earlier judicial observations, he said ^[F15] :

"Possession 'must be considered in every case with reference to the peculiar circumstances ... the character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests; all these things, greatly varying as they must under various conditions, are to be taken into account in determining the sufficiency of a possession'."

Fencing may be useful evidence of occupation to the exclusion of others: absence of fencing does not necessarily prove lack of possession. It depends upon the circumstances. In Kirby v. Cowderoy ^[F16] a possessory title was upheld notwithstanding the land was unfenced, the possessor having paid rates and visited the land from time to time. Use of the land by planting crops or running livestock upon it or occupation by residence upon the land may be useful evidence of adverse possession: absence of use or breaks in residence do not necessarily prove lack of possession. The possessor, acting as would a true owner, may consider it more appropriate to behave in some other way. He may, as might a true owner, pay rates and taxes on the property; lease it to others; allow agistment of cattle upon it; build upon it; or visit it occasionally for his own purposes: see Kirby v. Cowderoy ^[F17] ;Lord Advocate v. Lord Lovat ^[F18] ; Nicholas v. Andrew ^[F19] ; Re Riley and the Real Property Act ^[F20] .

The effect of s. 34 is to extinguish the title of the true owner completely, not merely to render his right of re-entry unenforceable: Allen v. Roughley ^[F21] ; cf. Fairweather v. St. Marylebone Property Co. Ltd. ^[F22] . To cause s. 34 to have this effect the adverse possession must be continuous for the period of twenty years, or any extended period which may be required by the operation of other provisions of the Act. If a person, A, is in adverse posses- sion for a period of less than twenty years, say, ten years, and then abandons the property, he leaves no cloud on the true owner's title, which is then restored to its pristine force, and another person, B, who later enters into adverse possession of the property, cannot add the period of A's possession to his own so as to extinguish the title of the true owner when the period of twenty years from A's first entry into possession is reached: Trustees Ex- ecutors and Agency Co. Ltd. v. Short ^[F23] ; Allen v. Roughley ^[F24] ; cf. Solling v. Broughton ^[F25] .

When a person enters into adverse possession, and so long as he continues in possession before the expiry of the statutory period, he has title to the land in the nature of a fee simple, good against all the world except the true owner, and his title may be conveyed or devised to, or devolve upon, another person: Asher v. Whitlock ^[F26] ; Perry v. Clissold ^[F27] ; Wheeler v. Baldwin ^[F28] ; Allen v. Roughley ^[F29] . Where there has been a series of persons in adverse possession by virtue of successive transmissions of the inchoate possessory title for a total period of twenty years or any extended period required by the Act, s. 34 will operate to extinguish the true owner's title.

At that point of time the last successor being then in possession will acquire a title in fee simple to the land good against all the world including the true owner: Allen v. Roughley ^[F29] ; see generally Lightwood, The Time Limit on Actions (1909) p. 118; Voumard, The Sale of Land, 2nd ed., p. 431. Where there is a series of trespassers, not deriving title from each other, who have been in adverse possession for a continuous period of twenty years or any extended period required by the Act, s. 34 will operate to extinguish the true owner's title: Willis v. Earl Howe ^[F30] ; Allen v. Roughley ^[F31] Salter v. Clarke ^[F32] . It is emphasized that possession by successive tres- passers must be continuous to have this effect. An abandonment by one adverse possessor followed by a break in time when the land is not in posses- sion of some person adversely to the true owner will, as we have seen, restore the true owner's title to its pristine force.

Upon the extinguishment of the true owner's title by successive tres passers, say A, B, C, D and E, who have been in adverse possession continu- ously for the necessary period, the question arises as to the person in whom the title in fee simple exists at that time. The better view appears to be that it exists in the first of the successive trespassers, A: see Allen v. Roughley ^[F33] ; and see generally Halsbury's Laws of England, 3rd ed., vol. 24, p. 255; Lightwood, op. cit., at pp. 125-126. E, the final trespasser, who is in possession at the time when the true owner's title is extinguished, would, by virtue of his possession, have a title in fee simple good against all the world except A, B, C and D.

The last statement needs qualification. If A brought proceedings to eject E, and E could prove that A had abandoned possession, then, in my view, E could successfully resist A. On the same ground he might be able to resist B, C and D. Accordingly, if the departure of A, B, C and D in each case took place in circumstances constituting an abandonment by each of them, E would indeed have a title in fee simple good against all the world: see Allen v. Roughley ^[F34] ; and see generally Voumard, op. cit., at pp. 431-432.

It is, perhaps, unlikely this would occur without a break in possession, which would restore the true owner's title and prevent aggregation. To determine the matter in a particular case of successive trespassers it is necessary to know whether a succeeding trespasser is in possession wrongfully as against his predecessor, in which case his predecessor will retain a higher right than the successor, or whether, on the other hand, the succeeding trespasser has entered immediately following an abandonment by his predecessor. Turning to the present case, on 6th March, 1935, Whyte acquired the rec- tangular block by conveyance, and remained in possession of it until he conveyed it for valuable consideration on 8th October, 1935, to Gilroy. During this period the triangular portion in dispute was fenced in with the rectangular portion, and, although there is no evidence that Whyte actually grew crops or ran cattle on the land, which is rugged country, he appears to have treated it in the same way, and as, in effect, part of his land, with the rectangular block with which it was fenced in. The carriage-way which has been referred to was used for access from O'Brien's Road to the house and the rectangular block, and ran across the triangular block. It is not entirely clear when the triangular block was fenced, but at all events it may be said that adverse possession against the owner of the documentary title, who at that time was Harnan (or Arnold), commenced during Whyte's period of occupation. The fact that Whyte was in occupation was known to Harnan (or Arnold), and Whyte, who gave evidence in the case, spoke of conversa- tions between himself and Harnan (or Arnold), who told him that it once belonged to his place, but had so long been out of it that he could not do anything about stopping the roadway. The conveyance on 8th October, 1935, from Whyte to Gilroy was of 33 acres 3 roods 311/4 perches, and it seems, therefore, not to have covered any interest which Whyte may have had in the triangular block. However, Gilroy appears to have been at once placed by Whyte in possession of both the rectangular block and the triangular block. He subsequently occupied and used them both, and this was clearly with the acquiescence of Whyte. Gilroy continued in possession of both blocks of land from October 1935 until he disposed of the rectangular block to Hurley by contract for sale for valuable consideration dated 28th April, 1948, and the conveyance pursuant thereto dated 20th May, 1948. I see no reason to disturb his Honour's finding that during this period of slightly in excess of twelve years Gilroy was in adverse possession of the land in dispute.

The conveyance from Gilroy to Hurley covers land having 33 acres 3 roods 311/4 perches, and seems, therefore, to relate only to the rectangular block. However, the triangular portion was still fenced in with the rectangular block, and according to his Honour's findings, as I understand them, Hurley entered into occupation of both blocks in pursuance of the transaction with Gilroy. Hurley then, according to his Honour's findings, continued in adverse possession of the triangular block up to November, 1964, when he left the area and moved to Newcastle to live and work.

When he left the area in November, 1964 Hurley had been in adverse posses- sion of the triangular block himself for slightly over sixteen years. It follows that he could not by his own possession demonstrate title by adverse posses- sion extinguishing the title of the true owner. If, however, he could rely also upon the period of adverse possession of his predecessor, Gilroy, who entered on 8th October, 1935, and was in adverse possession for upwards of twelve years, he could show that the documentary title of the true owner had been extinguished by the operation of s. 34, subject only to an argument which was put regarding the operation of s. 16, as to which the defendant (appellant) argued the onus rested upon the person claiming possessory right to in effect negative the operation of the section to extend the period of twenty years.

Leaving that argument on one side for the moment, it is necessary to determine whether it is correct to add the period of adverse possession of Gilroy to that of Hurley.

The defendant (appellant) argued that there was a lapse of time between the vacation by Gilroy and the entry into possession by Hurley. If both were to be regarded as trespassers, and Hurley was claiming, as it were, adversely to Gilroy as well as to the owner of the documentary title, any gap in time could be fatal to Hurley's possessory title, because the gap would cause title of the documentary owner to be returned to its pristine force. However, it appears to me that this is a case where Hurley entered not adversely to Gilroy but with his acquiescence. Gilroy was the vendor of the rectangular block, and appears to have given possession on completion of both the rectangular block and the triangular block to Hurley. In these circumstances I do not think the day upon which Hurley or some person representing him physically set foot upon the property is critical, as it would be if Hurley were a trespasser committing a wrong against both Gilroy and the true owner.

I think his Honour was correct in holding that it was permissible to aggregate the periods of Gilroy and Hurley so that, subject to the argument on the effect of s. 16, the title of the true owner was extinguished after the expiry of twenty years during Hurley's occupation. Turning to the argument upon s. 16, it is my view that the onus rests upon any person asserting that time should be extended by reason of the presence in some person entitled of one of the elements referred to in the section, such as infancy, lunacy, or absence beyond the seas. It does not appear to me thata person seeking to prove a possessory title carries the onus of proving the negative of each of the matters referred to in s. 16. I do not accept the argu- ment of the defendant (appellant) on this particular aspect of the matter. It is, perhaps, unnecessary to add that Harnan (or Arnold) was the owner of the documentary title during the relevant period. The evidence does not suggest he was an infant or a lunatic or overseas during that time; such evidence as there is on the point tends to negative these matters.

Assuming the title of the true owner was extinguished at some time during Hurley's possession prior to 1964 by the expiry of an aggregate period of twenty years' adverse possession, the question arises whether Hurley then had a title good against all the world or a title which was subject to superior titles in Gilroy and Whyte. Since Whyte and Gilroy in turn sold the rec- tangular portion for valuable consideration, and on completion passed over to his successor in each case possession not only of the rectangular block but also of the triangular block which was fenced in with it, I do not think that Whyte or Gilroy was ever in a position to eject Hurley. Perhaps another way of stating the matter is to say that each in turn deliberately abandoned his own possession of the triangular block in favour of his successor when he sold his rectangular block of land.

I turn to his Honour's finding that Hurley ceased to continue in possession after 1964. In reaching this finding his Honour appears to have been influenced mainly by his conclusion that there was an absence of actual use of the land by Hurley, or by persons claiming through him, either for crops or grazing or any other use, by the fact that Hurley no longer personally resided on the property and there were gaps in the residence of persons claiming through him, and finally that, when there was a bushfire on 28th October, 1968, which burnt down the house on the rectangular block and damaged the fencing, Hurley did not take steps to restore the position.

While each of these elements of use, of residence, of the maintenance of improvements and fencing, where they are present, furnish useful evidence of possession, as I have already pointed out their absence does not prove lack of possession. Much depends upon the nature of the land and the circum- stances. A person with a title based on adverse possession may be expected to act like a real owner would act. He may or may not use the land, may or may not be continuously in residence, and may or may not maintain im- provements and fencing. There are various ways of demonstrating possession and ownership. There does not appear to be evidence as to the payment of rates and taxes on the triangular block in the present case. Extracts from the Valuation Roll were tendered, but these relate only to the rectangular block. It is clear that Hurley visited both the rectangular block and the triangular block from time to time between 1964 and 1968; that he granted various leases of parts of the land. It appears that none of these were leases of the triangular portion, except that one of them covered pig pens which extended slightly onto the triangular portion. He allowed the fences to sink into a state of some disrepair. However, the evidence suggests they would have been observable, if not completely effective, at least until the bushfire occurred on 28th October, 1968. After that there was still a trace of charred posts even along the O'Brien's Road boundary of the triangular block. However, Hurley did not re-establish his fences even following the bushfire, although he visited the place from time to time.I do not consider the evidence is in such a state that the Court would be justified in differing from the conclusion of the learned trial judge that Hurley did not act in such a way as to continue his adverse possession after he left the property and went to Newcastle in 1964. As counsel for the defendant (appellant) pointed out, his Honour's emphasis on lack of posses- sion and lack of residence may be attributed to the fact that these were matters which the parties mainly contested at the hearing, and reflected the way in which the parties fought the issue, rather than any absence of con sideration by his Honour of other elements which might have gone to show possession by Hurley.

A question which arises from this finding is whether, when Hurley sold to the plaintiff by contract for sale dated 22nd April, 1970, not having been in possession for some years, s. 50 (2) of the Conveyancing Act, 1919, invali- dated the transaction. I will discuss the operation of s. 50 (2) later. Before doing so it is convenient to deal with two additional matters advanced on behalf of the defendant (appellant) relating to the contract and conveyance between Hurley and the plaintiff. First, it was argued that the rights under the contract had merged in the conveyance, and, therefore, since the convey- ance related only to the rectangular block, the plaintiff had shown no title to the triangular block. However, it appears to me that only those rights under the contract which related to the rectangular block merged in the conveyance. The equitable doctrine of merger which now applies in the Supreme Court is based upon the intention of the parties. It seems clear enough in the present case that there was no merger so far as concerns those rights referred to in the contract relating to the triangular block. The learned trial judge held there was no merger, and I am in agreement with him.

Secondly, it was argued that the contract was too uncertain in its descrip- tion of the land in dispute to be enforced. However, the terms of the contract read in the light of the circumstances to which it applied do not appear to me to be too uncertain to be enforced. Nor does it appear that the parties to the contract ever had any doubts about its application to that land. The learned trial judge rejected this particular argument, and again I am in agreement with him.

Turning now to s. 50 (2) of the Conveyancing Act, this is in the following terms: "50. (2) Any conveyance of a present right of entry in any land, other than a conveyance to the person in possession thereof, and any covenant or agreement for, or promise of a conveyance (other than as aforesaid) of the same shall be void as against the person in possession or those claiming under him unless the person conveying or covenanting, agreeing, or promising to convey, or the person through whom he claims has been in possession of the land within twelve months from the date of the conveyance, covenant, agreement or promise."

It will be noted that this section operates to avoid not only conveyances but also agreements for conveyance, in circumstances where the person con- veyancing or agreeing to convey has not been in possession of the land within twelve months. Where this is the position, the conveyance or agreement to convey is void only to a limited extent, that is, "as against the person in possession or those claiming under him."

Applying these provisions to the conveyance by the executors of Harnan or Arnold) dated 10th April, 1968, it would seem that that conveyance would be void as against Hurley if he was in possession and as against Mulcahy claiming under him, but not if, as his Honour has found, Hurley was not in possession.

Turning to the contract dated 22nd April, 1970, because Hurley had not been in possession during the previous twelve months, it would seem that this would be void as against the defendant had it been in possession at that time. However, it seems that the defendant only entered into possession after the contract of 22nd April, 1970, and before the date of the conveyance of the rectangular block on 10th May, 1971. In other words, s. 50 (2) would not appear to invalidate the contract between Hurley and Mulcahy, but would, it seems, have prevented Hurley from giving a valid conveyance of his right, title and interest to the triangular portion to Mulcahy on 10th May, 1971, or at all events a conveyance which would be valid against the defendant. This raises the question whether, if a declaration is made in these proceed- ings that Hurley is entitled to an equitable estate in fee simple in the triangular portion, he will be in a position to enforce it against the defendant, who is now in possession of the triangular portion, notwithstanding the documentary title has been extinguished.

It appears to me that, the contract being good between Hurley and Mulcahy, Mulcahy could compel Hurley to bring proceedings or to permit his name to be used in the bringing of proceedings to eject the defendant from the land in dispute. However, Hurley is not a party to these proceedings, and will not be bound by the judgment in the matter. The question is whether in these circumstances a declaration ought to have been made such as his Honour has made in favour of the plaintiff: see Neeta (Epping) Pty. Ltd. v. Phillips ^[F35] .

I note that his Honour did make an order restraining the appellant from proceeding with its primary application to bring the land under the Real Property Act, 1900. This order was consequential upon the declaration he made. In my opinion, the non-joinder of Hurley is not in itself sufficient ground for setting aside the declaration and order made.

However, the respondent, at the heel of the hunt in this appeal, did apply for leave to join Hurley as a defendant and to amend the relief sought by adding a claim for a further declaration as follows: "3A. That it may be declared that the second defendant holds all his right title and interest (if any) in the land referred to in paragraph 1 hereof on trust for the plaintiff."

I agree with the conclusions expressed in the judgment of Moffitt P. that this Court has the power to make these orders and, in the exercise of its discretion, should do so and with the reasons which he gives. I concur in the proposed orders, including the orders for costs.

Leave granted to respondent (plaintiff) to add as defendant Raymond John Hurley and to amend originating summons in terms of document tendered by respondent and initialled by Moffitt P. Subject to filing of such amended summons and an appearance on behalf of second defendant, order of Helsham J. is supplemented by a declaration that second defendant holds all his right title and interest in land described in first schedule on trust for plaintiff. Respondent to pay appellant's costs of and occasioned by addition of second defendant and consequential amendments. Otherwise, appeal dismissed with costs, including costs of first hearing of appeal. In aid of discretion existing under s. 6A (1) (a) of Suitors' Fund Act, 1951, recommend that costs of each party of and relating to rehearing of appeal (other than those relating to addition of second defendant and consequential amendments) be met from fund as measure of costs occa- sioned by death of Hardie J.A.

Solicitors for the appellant (defendant, claiming the disputed land by documentary title): Matthew McFadden, Somerfield & Co.

Solicitors for the respondent (plaintiff, claiming as the equitable owner of the disputed land by possessory title): Peter S. Utz & Co.

Solicitors for R.J. Hurley (the legal owner of the possessory title to the disputed land): L. Rundle & Co.

M. H. McLelland, for the appellant (defendant, claiming the disputed land by documentary title).

F. S. McAlary Q.C. and R. D. Giles, for the respondent (plaintiff, claiming as the equitable owner of the disputed land by possessory title).

P. G. Suttor (solicitor), for R.J. Hurley (the legal owner of the possessory title to the disputed land).

Cur. adv. vult.

O.M.L. DAVIES, Barrister.