THE  HIGH COURT			1982 No. 800

IN T IN THE MATTER OF THE REGISTRATION OF TITLE ACT 1964 AND IN THE MATTER OF THE LANDS AT GORTNALAGHT COMPRISED IN FOLIO 106910690, CO. WATERFORD

AGRICULTURAL CREDIT CORPORATION 

V 

EDWARD MURPHY 

JUDGEMENT 
DELIVERED BY THE HONOURABLE MR JUSTICE FRANCIS MURPHY
ON 19TH MAY 1987 

 					APPERANCES 

	PAUL BUTLER, BL: 			For the Plaintiffs 	
	Instructed by: 				D. F. Jones & Co., Upper Hatch Street 
						Dublin 2

	BILL SHIPSEY, BL : 			For the Defendant 

Instructed by: 	 	Messrs Quirke & Co. Main Street Midleton, Co. Cork

This matter comes before me in an unusual way in a complicated matter. Originally it was a claim by the Agricultural Credit Corporation for possession of the lands comprised in Folio 10690 of the Register of Freeholders, County Waterford, of which the Defendant Edward Murphy was the registered owner.

The lands comprised in Folio 10690 contained approximately 235 acres and they had been charged in one form or another with a variety of sums of money in favour of the Plaintiffs. That such a charge existed was not in dispute.

The proceedings were brought claiming possession under section 62 of the Registration of Title Act 1964.  By coincidence the matter came before me and an order was made, the parties having shown good sense in the case of the Defendant and a certain amount of compassion on the part of the Plaintiffs.

Then an arrangement was made based upon the fact that the Defendant1-, holding could be divided conveniently into two parts, approximately 154 acres to the north of the old Dungarvan-Carrick-on-Suir road and 56 acres to the south of that road.    The part of the holding to the north of the road was coloured blue on the map annexed to an affidavit sworn by the Defendant, and the part to the south was coloured yellow or green,  depending upon one's view of these colours. 
 
The proposal put by the Defendant to the Plaintiffs was that instead of an order being made giving the Plaintiffs possession of the entire of the lands, they would take possession of the 56 acres and sell that portion, as it was the Defendant's belief that the proceeds of sale of that portion would be sufficient to discharge his indebtedness.    Arising from that an order was made on 20th June 1983 for possession, but the Plaintiffs undertook not to enter possession of the larger division coloured blue on the map.
 
At that stage, however, it was not suggested that the ACC would necessarily accept the proceeds of sale of the smaller portion which they were being given possession of in satisfaction of their claim.   That came later.

There was a meeting between the Defendant and Mr Sheehy,  Regional Manager of the Plaintiffs, of which Mr Sheehy gave evidence, and it was agreed between the parties that the 56 acres would be sold with the co-operation of the Defendant;  that in return for that co-operation the Plaintiffs would accept the proceeds of sale in full settlement of their claim.     The additional factor was the Defendant's co-operation, and it was agreed by the parties that that was the agreement between them and it was confirmed in evidence by Mr Sheehy and accepted at all times by the Plaintiffs.

The lands have not, in fact, been sold, but it is the contention on behalf of the Plaintiffs that Mr Murphy's co-operation was not forthcoming at the time and that the agreement which they accept existed is no longer binding on them. That is the issue here.

In support of the contention that co-operation was not forthcoming from the Defendant,  the Plaintiffs say that when the auctioneer who was instructed to sell the 56 acres did,  in fact, have the prospect of selling the land,  apparently in two subdivisions,  part to the Forestry and part to a private purchaser,  the sale was frustrated by the intervention of the Defendant and in particular by his refusal to allow the private purchaser a right of access over the roadway to which I. have already referred,  the old Dungarvan-Carrick-on-Suir roadway.

I confess that I had been puzzled by this because I thought the roadway was still in use.    It is clear from the evidence of Mr Spratt that I was completely mistaken and that the road is effectively a cul-de-sac and is blocked by the River Tay at one end and that 150 yards in at the other end there is a locked gateway.  Not only that,  the appearance of the laneway from the photograph shown to me is of a completely overgrown and virtually inaccessible route with the added factor,  as Mr Spratt expressly stated in evidence,  that it was more of a boundary between the two divisions - the blue and yellow or green divisions - and seemed to form part of the blue division in parts.
On the basis of that evidence it is not surprising that the Defendant would form the view that it is not part of the blue area. Consistent with that, Mr Spratt was purporting to sell an area which excluded the old  Dungarvan-Carrick-on-Suir roadway. The plans prepared by Mr Spratt show that laneway as excluded.

The evidence of the situation between the two divisions would seem to indicate that it is not an area over which the public have a right of way and that,  if anything,  it falls within the blue division rather than within the yellow or green division. 

In the circumstances it seems to me that when Mr Murphy indicated to the auctioneer,  as he undoubtedly did, that there was no right of way being granted over this laneway or former roadway to the intended purchaser,  he was not acting unfairly or withdrawing his co-operation in any way but was excluding what seemed to be part of the property which he was  retaining.

The misconception in the minds of the Plaintiffs arose in the same way as my own in believing that there was a roadway there at all and that the division was north and south of it. The evidence suggests that the laneway is a notional division and that the laneway,  such as it is, forms part of one or other of the divisions, probably the blue one.

On the face of it,  I do not think it could be said that by refusing a right of way over that laneway the Defendant had withdrawn his co-operation so as to amount to a breach of the contract which he had entered into in the Plaintiffs' offices in Cork    as to how the problem would be resolved.     By adopting that stance the Defendant had not repudiated the agreement under which the lands would be sold and the proceeds accepted by the Plaintiffs in full satisfaction of their claim.

I think Mr Spratt misunderstood his position to some extent. He was no doubt correct that instructions had been given to him by the Defendant and to that extent the Defendant seems to have been co-operating fully. It seems to me that it is Mr Spratt's misunderstanding,  or perhaps the Irish farming community is still misunderstanding the best interests of their fellow farmers when they take an attitude with regard to the best method of assisting colleagues in financial trouble. No doubt the best support they could give the Defendant would be to see that such land as he has to sell should be sold at the best possible price.    Declining co-operation and these nineteenth century views seem to me to do nothing but harm to the farming community.   However,  that is a personal  view borne out by experience in these matters.
 
The issue before me is whether the Defendant withdrew his co-operation and there is no such evidence before me. Even if the Defendant had been wrong in his view,  it seems to me on the facts that he was perfectly entitled to express the view that the laneway in question did not form part of the lands which he had agreed to give up possession of to the ACC.

In the circumstances it seems to me that the Plaintiffs' claim cannot succeed on the basis outlined by Counsel.