Nicholl Estate v. Nugent, (1977) 12 Nfld. & P.E.I.R. 377 (NFCA)

JudgeFurlong, C.J.N., Morgan and Gushue, JJ.A.
CourtNewfoundland Court of Appeal
Case DateMay 19, 1977
JurisdictionNewfoundland and Labrador
Citations(1977), 12 Nfld. & P.E.I.R. 377 (NFCA)

Nicholl Estate v. Nugent (1977), 12 Nfld. & P.E.I.R. 377 (NFCA);

    25 A.P.R. 377

MLB headnote and full text

Nicholl's Estate v. Nugent

Indexed As: Nicholl Estate v. Nugent

Newfoundland Court of Appeal

Furlong, C.J.N., Morgan and Gushue, JJ.A.

May 19, 1977.

Summary:

This action arose out of the plaintiff's claim against the defendant for the possession of land. The plaintiff was the executor of the estate of the deceased owner of the land. The defendant was allowed by the estate to live on the land since 1949 provided that the defendant supported the deceased's infant daughter. This arrangement continued until the daughter left the property in 1954. Afterwards the defendant continued in possession of the land. In 1973 the plaintiff brought an action for a declaration that the estate was the owner of the land and for an injunction enjoining the defendant from trespass on the land. The Supreme Court allowed the action in a judgment reported 8 Nfld. & P.E.I.R. 536; 8 A.P.R. 536. The defendant appealed.

The Newfoundland Court of Appeal dismissed the appeal. The Court of Appeal held that the defendant at no time had possession of the property under a tenancy at will, which was required to extinguish the estate's title.

Landlord and Tenant - Topic 1076

Tenancy at will defined - The defendant took possession of land in 1949 from a deceased's estate on the condition that the defendant support the deceased's infant daughter - The daughter lived on the land with the defendant and was supported by the defendant until 1954, when she left - The defendant continued in possession until 1973, when the estate brought an action for possession - The defendant claimed that he had possession of the property as a tenant at will within the meaning of the Limitation of Actions (Realty) Act, R.S.N. 1970, c. 207, s. 8, for over 20 years, barring the title of the estate - The Newfoundland Court of Appeal held that the defendant was not in possession of the property under a tenancy at will either before or after the daughter left and that the estate was entitled to possession.

Real Property - Topic 5993

Extinguishment of title - Limitation of actions - Creation of a tenancy at will - Limitation of Actions (Realty) Act, R.S.N. 1970, c. 207, s. 8 - Whether the defendant had exclusive possession of land in order to create a tenancy at will - The defendant took possession of land in 1949 from a deceased's estate on the condition that the defendant support the deceased's infant daughter - The daughter lived on the land with the defendant and was supported by the defendant until 1954, when she left - The defendant continued in possession until 1969, when the property burned - The estate brought an action for possession of the property in 1973 - The Newfoundland Court of Appeal held that the estate was entitled to possession and that the defendant at no time had possession of the property under a tenancy at will, which was required in order to extinguish the estate's title.

Cases Noticed:

Ocean Harvesters Ltd. v. Quinlan Brothers Limited, [1975] 1 S.C.R. 684; 1 N.R. 527; 5 Nfld. & P.E.I.R. 541, appld. [para. 12].

Day v. Day (1971), L.R. 3 P.C. 751, refd to. [para. 20].

Radaich v. Smith (1959), 101 C.L.R. 209, appld. [para. 22].

Statutes Noticed:

Limitation of Actions (Realty) Act, R.S.N. 1970, c. 207, sect. 8 [paras. 11, 28].

Counsel:

Donald A. Mercer, Q.C., for the plaintiff-respondent;

Claude A. Sheppard, for the defendant-appellant.

This case was heard on January 16, 1977, at St. John's, Newfoundland, before FURLONG, C.J.N., MORGAN and GUSHUE, JJ.A., of the Newfoundland Court of Appeal.

On May 19, 1977, the judgment of the Court of Appeal was delivered and the following opinions were filed:

FURLONG, C.J.N. - see paragraphs 1 - 4,

MORGAN, J.A. - see paragraphs 5 - 15,

GUSHUE, J.A. - see paragraphs 16 - 32.

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