BISHOP BRINDLE & OTHERS v. FATHER HAYS

New Zealand Tablet, Volume XXXIII, Issue 38, 21 September 1905, Page 3

BISHOP BRINDLE & OTHERS v. FATHER HAYS

IMPORTANT DECISION ON CHURCH PROPERTY

English Catholic and secular papers to hand by last week's mails contain a final report on the mostt 'important case in the various lawsuits in which the 'Rev. Father Hays I—well1 — well known in these countries as a temperance lecturer— was engaged as a principal shortly be-fore-his departure from England for Australia. In the present instance the Rev. Father was defendant, and, as in the other cases (in which he was plaintiff), the decision! was against him. The case now under consideration involved very important issues in regard to property* heldi upon trust for church purposes, and was watched with close interest by Catholic ecclesiastics and laity all over Great Britain. An opinion elicited by us from an eminent lawyer, and printed, as to its substance, at the close ol the following report, shows that the case, and the decision thereupon, have a practical bearing upon ecclesiastical trusteeships in flNTew Zealand. The following report of the case of Bishop Brindle and others v. Father Hays appeared in identical terms in the London • Tablet ' of August 5, the 1 Catholic Times ' of August 4, and in several secular papers :— The Case. The adjourned trial of this action was heard on the '28th July at Marßet Rasen lOounty Court. It will he remembered that the first hearing took place at the same court on August 19, 1904, and that his Honor, Judge Sir G. Sberston Baker, found a verdict for thte defendant, Father Hays, on the ground that he (the judge) had no jurisdiction to try the action. The action was brought toy Bishop Brindle and the other Trustees of the Catholic Trust Property at Market Rasen, whereby they sought : (1) A declaration that they were the legal owners of this property as such trustees ; (2) a claim for mesne profits, and (3) an injunction to restrain the defendant from exercisinig acts of ownership over the property, such as the collection of rente from the tenants, etc. The necessity Bor the action arose out of the fact that Father Hays set up a claim to collect the rents and deal with the property as if ne were the absolute owner, and in defiance of the wishes of the trustees, in whom the property was vested, he having gone to the length of suing one of the tenants lor rent which she had been requested to pay to' the trustees as owners, and the disbursements of which they deemed they were entitled to control. The refusal of Judge Sir Sherston Baker to try the case on the first occasion came as ja complete surprise to the plaintiffs, 'their legal advisers, and Counsel, and it was felt that l in view of the extreme importance of the case, the matter could not be allowed ito rest there, as it was a question immediately anjd miost materially affecting Catholic Trust Properties, and the relationship of trustees* and priests in charge of missions all over the country. The plaintiffs thereupon decided to appeal against the judgment of Sir Shersfton Baker, as they were advised his decision was incorrect, and ultimately the Divisional Court, consisting of Lord Chief Justice and Justices Kennedy and Ridley, made an order on the 17th January, setting aside the 'judgment given on August Hhe 19th, and directing that a new trial should be had. This restored the parties to their originlal- position, and the case was again entered for trial on March 17 last, but, unfortunately, had to be adjourned by reason of the defendant's absence in Australia. The plaintiffs offered no objection to the adjournment, although it was a matter of considerable inconvenience to all the witnesses in attendance, because they did not wish that the slightest advantage should 'be taken of the defendant in any way, or that an absolutely fair and impartial trial of the matters at issue should not he had. It should be mentioned, in order that there may be a proper appreciation of the seriousness of these issues, that the defendant's solicitors had on the 10th of March filed a notice that the defendant intended to rely on the following grounds of defence, namely, that the claim for which he was summoned was barred by the Statute of Limitations. This claim requires 'a little explanation, The effect of It, if successfully pleaded, would mean that, assuming that Father Hays was not able to establish a title in himself *to the property, he might still show that there was no title in the trustees ; in other words, that some person or persons had acquired a possessing title, such as would in law oust the trustees'ownership. It requires only a moment's reflection to> show how

grave the issue was, and, therefore, it is not a matter of surprise that the case had excited an amouat of interest considerably more than local. The plaintiffs were represented by Mr. H. Maddocks, borrister-at-law (instructed by Messrs. Walmsley and Reid, solicitors, of Derby) and the defendant was represented by Mr. G. L. Haslehurst, of Messrs. Toymibee, Larken and Co., solicitors, of Lincoln. Mr. Haddocks, in opening the case for the plaintiffs, explained very lully the position of matters in relation to the Trust Property, the claim of the trustees, and why it had been necessary to bring it into Court, and, lurther, that the plaintiffs in 'doing so were animated only by a desire to establish their right to the property, a right which had been disputed, and which, as trustees, they were bound to enforce. 'It was also explained that there was no intention to divert any of the revenues of the trust estate to any other purpose, and that necessity alone ha/d compelled them to take proceedings which were amply justified by; the plea which defendant had put on record. Monsignor McKenna gave evidence, proving that he and Monsignor Tasker, the survivors of the original trustees, had held part of the property since the year 1860, and the remainder since 1864, and that tfie same hud devolved on the present trustees, the plaintiffs, by conveyance in 1903, and he further gave evidence as to the management of the trust property in the past. Evidence; was also called in support of the plaintiffs' caise that they had never, in any way, relinquished the ownership of the property. Father Hays, the defendant, did not appear, being still abroad, but Mr. Haslehurst argued on his behalf that during t)he late Canon Dwyer's charge of the mission from 187t5 to 1900, the trustees- had so acted as in fact to deprive themselves of the ownership of the property, and that, although such ownership might not be in Father Hays, yet it was not in the plaintiffs and evidence was called in support of this contention. Mr. Maddocks replied to the legal argument, on behalf of 'the pontiffs, and his Honor, Sir G. Sherston Baker, in giving judgment, enlarged upon the importance of the case,, and after reciting the facts as to the devolution of the trust property from 1860, said it was argued that Oa'non Dwyer had received the renes as tenant at will, and that the, plaintiffs were barred by reason of the Statute of Limitations. He proceeded 'to consider, in the light of the evidence that had been Riven, Canon Dwyer's position, and concluded by stating that he found distinctly and emphatically that both Canon. Dwyer and the defendant, Father Hays, were agents merely of the trustees, and that, thereby, no titky adverse to them had been acquired by any person, and that, therefore, the legal ownership of the property was In the trustees. Under these circumstances he would grant the declaration of title asked for, and make an order that the defendant should account for mesne profits. The plaintiffs' counsel having intimated earlier in. the case that, if the declaration were granted, the injunction would not be pressed for, he would make no order in respect to that, but there would be judgment for the plaintiffs, with costs against the defendant. This (says the London ' Tablet ') concluded a case which has excited a considerable amount of interest and as to which there has, in certain- quarters, been great misapprehension of the action of the trustees. We think the foregoing facts, and Ithe result of the case, amply justify such action in the view of all fair-minded people. How it Affects New ZealandAn eminent lawyer, to whom we submitted the report that appears above, writes us as follows :— ' I have perused the article headed " Bishop Brindle and Others v. Hays," in the " Tablet." The report is rather meagre— that is, wanting in detail. The object of thfl defence was to ipsove that the trustees (the plaintiffs) had lost their right to the property at Market Rasen by reason of Oanon Dwyer having- been in adverse possession thereof for 20 years. Under the Act 8 and 4 William IV.. C. 27, such possession gives the claimant a title to land as against the original owner. I would infer that the trustees had not for many years actively; interfered in the management of the property but left everything in the way of management (including the collection and disbursement of rents) to the local clergyman. ' Counsel for Father Hays seized upon this point to show that the possession by the local clergytman was {vdvorso to the trustees. If the judge had agreed with this contention, the trustees (judging from the "Tablet" renort) would have last their right to the property The- Judp-e, however, held that Canon Dwyer and FatherHays had been, in relation to the property, merely the atremfs of the trustees, and therefore the 'statute did not apply.

* This Statute of William IV. applies to land in this Colony which has not been brought under " The Land Transfer Act, 1855," the 57th section of that. Act being as follows': " After land has become suhject to this Act, no title thereto, or to any right, privilege, ot easements in, upon, or over the same, shall be acquired fey possession or use adversely to, ox in derogation of, the title of the registered proprietor ",' . . The wntei then (haws a distinction between property directly used for church purposes (such a3 sites for churches, convents, and schools), and church property which is not so used, and from which a revenue is or may be derived. According to telegraphic reports in last week's daily papers. Father Hays has announced his intention of remaining in New Zealand till next year.