1 /' ' LEADING CASES LAND PURCHASE LAW JOHN HENRY MAC CARTHY. UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LffiRARY ^xi^m^d Uiy/-. f,- Z4JUL1924 )^, ■\^vV- \ y / LEADING OASES IN LAND PUECHASE LAW. EDITED BY JOHN HENRY MAC CARTHY. It • BARRISTER-AT-LAW. DUBLIN: PUBLISHED BY JOHN FALCONER, AT THE OFFICE OF "THE IRISH LAW TIMES AND SOLICITOUS' JOURNAL," 53 UPPER SACKVILLE-STREET. 1892. r n92. DUBLIN: PRINTED BY JOHN FALCONER, 53 UPPER SACKVILLE-STREET. ^5;e73'4 PBEFACE. As Land Purchase Court practice is rapidly growing in extent and importance, it may be useful to both branches of the legal profession to have a handy and authentic collection of the principal decided cases on the subject. I am enabled to supply such a collection by the kind- ness of several eminent Judges and of the Land Purchase Commissioners in permitting me to use their manuscripts, by the courtesy of the Secretary of the Council of Law Peporting in allowing me to use the head-notes of several reported cases, and by the liberality of the Proprietor and Editor of the Irish Law Times in authorising me to include a selection from the Eeports supplied to that Journal by Mr. J. W. Brady Murray, B.L. In order to limit the cost and bulk of the volume, I omit several cases which appertain rather to the general law of Peal Property than to Land Purchase Law. I also omit some cases rendered obsolete by the Pur- chase of Land (Ireland) Act, 1891. The cases appear in the order of date. 19 Aylesbuky Road, Dublin, 2bth March, 1892. CONTENTS. Pasce 2ihI July, 1887—//* re Lord Femoys Edate— Land Purchase Act, 1885, sec. 14 — Construction — Sales for gross sum Addition to advance — Purchase and re-sale of estates — Final Schedule — Priority of owner's costs of sale ... 1 Lynch, C. 2nd Feb., 1888— /« re Estate of Jus. W. Hanrahan— Land Law (Ireland) Act, 1887, sec. 15 (2) — Impropriate Tithes held under fee-farm grant — Redemption — Jurisdiction ot Land Commission — Price fixed — Payment into Bank of Ireland of redemption money ... ... ••• ••• ••• •> Lynch, C. •2nd Mar., 1888— /« re Estate of George Qtiin and Others— Specific performance contract for sale — Land Law (Ireland) Act, 1887, sec. 22 — Advance provisionally sanctioned — Death of purchasing tenant — Informal will — Refusal of devisees in occupation of holding to carry nut contract — Non-interference of Heir-at-law ... ... ... ... .-• 1" Lynch, C. '11th Nov, 1888 — In re Estate of Edirurd O'Kell/j — Advances to tenants for purchase of their holdings — Tenant in occupation — Sub-letting — Tenants for temporary convenience pending sales in Land Judge's Court — Security for advances — Cause shown against making advances — Land Law (Ireland) Act, 1881, sees. 24, 57— Purchase of Land Act, 1885, sec. 2 (a) 13 MacCaktiiy, C. loth Nov., 1888— //J re Estate of Fentland— Land Law (Ireland) Act, 1887, sec. 16 — Apportionment and redemption of fee-farm rents — Jurisdiction of Commission — Order for redemption of entire rent where part only of lands subject thereto sold — Landed Estates Court Act, sec. 72 ... 17 Appeal. 6//i Dec, 1888 — In re Estate of F. J. Watson and Another— Redemption of impropriate tithe rentcharges — Ecclesiastical and impropriate tithe rentcharges — Power of Commission to order redemption of impropriate tithes — Price fixed — Land Law (Ireland) Act, 1887, sec. 15, sub-s. (2) ... ... 22 MacCarthy, C. vi Contents. Page 2'dth Mar., 1889— /« re Estate of the Marquis of Waterford^ Land Law (Ireland) Act, 1887, sec. 16, sub-s. (3) — Redemption of rentcliarge— Consent to pi-ice being determined by Commis- sion — Separate credit — Practice ... ... ••• 26 Lynch, C. 30th Mar., 1889 — lit re Estate of Most Rev. B. Fiimegan and Others — Trustees for Charitable Purposes— Sale of trust property to tenant purchasers where no power conferred by deed of constitution — Statutory powers — Restrictions — 30 & 31 Vic, c. 54, sec. 14 —Consent of Commissioners of Charitable Donations and Bequests — Landlord and Tenant Act, 1870, sees. 26 and 33 — Land Law (Ireland) Act, 1881, sec. 25— Land Law (Ireland) Act, 1887, sec. 34 ... ... ... ... .•• 29 O'Hagan, J. 27th April, 1889— //J re Estate of Charlotte Shortt — Married woman — Annuity charged on lands — Restraintupon anti- cipation — Sale of lands discharged from annuity — Merger — Discretion of Court — 44 & 45 Vic, c 41, sec. 39 — Jurisdic- tion of Land Commission — Land Law (Ireland) Act, 1881, sec. 48, sub-sec. (d) ... ... ... ... ••• ^7 OTIagan, J. lilh Dec, 1889 — In re Estate of James Count Considine — Purchase money — Advance between three-fourths and tlic Avhole— Payment in cash by tenant — Purchase of Land (Ireland) Act, 1885, sec. 2 (a)— Construction— Limitation of advance ... ... ••• ••• ••• ••• * -^ O'Hagan, J. 22nd April, 1890— i/t re Estate of the Earl of Egmont — Agreement for sale— Contract of tenancy — Sale of adjacent plan- tation—Occupation Land Law (Ireland) Act, 1881, sec. 57— Land Law (Ireland) Act, 1887, sec. 14, sub-s. (3)— Tenancy created Avitli the object of sale — Discretion of Com- • • 44 mission ... ... ..• ••• ••• ••• ^^ MacCarthy, C. Gth May, 1890 — la re Estate of the Duke of Abercorn— Agreements for sale by Vesting Order — Jurisdiction to enforce, rescind, or vary — Purchiise of Land Act, 1885, sec. 10 — Landed Estates Court Act, 1858, sees. 37, 47— Mistake in agreement— Specific performance— Land Law (Ireland) Act, 1887, sec. 22 — Land not held under a contract of tenancy — Land Law (Ireland) Act, 1881, sec. 57— Purchase of Land (Amendment) Act, 1889 ... ... ••• ••• '^^ Lynch, C. Contents. vii Page Ml August, 1890 — In re Estate of Lord Fennoy — Legacy duty — Rentcliarge created by will — Duty payable out of subject of bequest — Words of exemption — Keal estate charged — Intention of testator — Liability of legatee — Succes- sion duty — Priority — IG & 17 Vic, c. 51, sec. 52... ... 55 Litton, J. 2nd Dec, 1890 — In re Estate of Elizabeth Gican — Redemption of head-rents — Determination of redemption price by Land Commission on consent of parties — 50 & 51 Vic, c. 33, sec. 16, sub-s. (3) ... ... ... ... ... GO MacCarthy, C. 27id Feb., 1891 — In re Estate of Lord Leconfield — Redemption of impropriate tithe rentcharge — Question as to costs a "question of law" — Owner entitled to costs of making title thereto, and to costs of drawing out redemption price — Purchase of Land Act, 1885, sec. 17 — Land Law Act, 1887, Ot^L/a AfJ ••• ••• ••» ••• ••• ••• OO Bkwley, /. 14^A May, 1891 — The Irish Land Commission v. Maquay — Sale by Land Commission in default of payment of instalments-^ Conditions of sale — Construction — Rights of purchaser as to possession ... ... ... ... ... ... 71 Ex. Die. — Palles, C.B. 6th June, 1891 — In re Estate of Robert Maxvcell — Redemption of quit-rent — Nullum Tempos (Ireland) Acts, 48 Geo. IIL, c. 47 ; 39 k 40 Vic, c 37— Rents " put in charge," meaning:; of ... ... -.. ... ... 85 Bewley, J. o 2)rd Nov., 1891 — In re Estate of James M'-Farlane — . • Contracts for sale — Specific performance — Defence of sur'prise and hardship — Inadequacy of consideration — Decree ... 94 MacCarthy, C. 22nd Dec, 1891 — Richard Lane Warren, Lessor; Joseph Richardson, Lestee. Redemption of rent (Ireland) Act, 1891 — Under what circum- stances is a lessee entitled to redeem — Bona fide occupation — Full agricultural rent — Redemption price — Adequacy of security ... ... ... ••• ••• .•• 97 MacCarthy, C. vili Contents. Page 16//i Jan., 1892— i/j re Estate of Patrick Walsh. Aerreement for sale — Advance sanctioned — Death of vendor before completion of sale — AVill — Conversion — 44 & 45 Vic, c. 41, sec. 4, sub-sec. 1 — Personal representative — Receipt for purchase money ... ... ... ... ... 100 Bewley, J. 3rd Feb., 1892— /n re Estate of Daniel Mmres Maunsell — Land Law (Ireland) Act, 1887, sec. 15, sub-sec. 3— Tithe rent- charge payable to the Land Commission — Lease of tithes — Redemption — Consent of Treasury ... ... ... 103 Holmes, J. lOth Feb., 1892—//* ?e Estate of Catherine Waddell Boijd Sijnge— Annuity charged on lands — Consent to and order for redemption — Determination of annuity before completion of contract — Claim by executors of annuitant to redemption money — Con- tracts for sale of determinable interests ... ... ... 107 Gibson, J. 4th Feb., 1892 — Estate of William lliomas Trench and Another — Settlement — Trust funds — Sole trustee — Receipt clause — 44 & 45 Vic, c. 41, sec. 36— 45 & 40 Vic, c. 38, sees. 39, 40 ... IIG MacCarthy. C. MED .' II! 1Q9A : -) TABLE OF CASES. Page Appleby I'. Myers—L. R. 2 C. P. 651 ... ... ... ••• 78 Attorney-General v. Day — 1 Ves. 220 ... ... ... ••• 't)- Attorney-General v. Jackson — 2 Cr. & Jerv. 101 ... ... ... 57 Attorney-General v. Lord Eardley — 8 Price 39 ... ... ... 92 Attorney -General v. Maxwell — 8 Price 76 (in Notis) ... ... 92 B Behn I. Burness— 3 B. & S. 751 .. ... ... ... 80 Berkeley's (Earl of) Will_L. J. 10 Cli. 56 ... ... ... 65 Bethlem Hospital, In re—L. Rep. 19 Eq., pp. 456, 57 ... ... 65, 69 C Caballero v. Henty— L. R. 9 Ch. App. 447 ... ... ... 78 Carroll v. Keayes— Ir. R. 8 Eq. 97 ... ... ... ... 75 Casson, Jn re — 9 Ir. Jur. N. S. 92 ... ... ... ... 18 Coles' Will, In re—L. Rep. 8 Eq. 271 ... ... ... ... 59 Cox r. Cox— K. & I. 251, Lewin on Tru->-ts 460 ... ... ... 118 D Dickson, In re—\. R. 3 Eq. 344, 3 Ir. L. T. 578 . .. 117, 118 Falke r. Gray— 4 Drew 660 ... ... ... ... ... 96 Flood's Trusts, 7?i re_l 1 L. R. I. 355 ... ,.. ... ... 39 Forde v. Cotesworth_L, R. 5 Q. B. 544 ... ... ... ... 7« G Gude r. Mumford— 2 Yo. &c. Coll. Ex. 448 ... .., ... 58, .59 H Hatton f. Waddy— 2 Jones 841 ... ... ... ... ... 92 Helsham v. Langley — 1 Y. & C. C C. 175 ... ... ... 96 Hulme V. Tennent— Wh. & Tu. L. C. 520 ... ... ... 39 X Tnhle of Ca.^i'.^. J Page Jackson I'. Lever — 3 Browne C. C. (i()j ... ... ... ••• 111 Jones V. Chapman — 2 Ex. 803 ... ... ... ... ... 77 Kenney r. Wexham — 6 Mad'l. 355 ... ... ... .• Ill 9(i Kerney v. Hansard — Coop. 125 L Lake V. Dean— 28 Beav. 6ii7 ... ... ... ... ••• 75 Lamarer. Dixon— L. R. 6 H. L. 4U ... ... ... ... 96 Land Commission v. Grant — 1 I L. U. I. 431) ... ... .. 24 Leggett t', Barrett— 15 Cii. Div. 306 ... ... ... ... 76 M ^lortlmer r. Capper — ] Browne E. Cases, 156 ... ... ... Ill N Noel r. Henley— 7 Pri. 241 ... ... ... ... ... 59 O Orme & Hargreave's Contract, lu re — 25 Cli. Div. .595 ... ..; 118 P Palmer r. Jolin.ston — 13 Q. B. Div. 351 ... ... ... ... 76,77 Phelps i-.White_7 L. R. Ir. 161 ... ... ... ... 77 Q Queen v. St. Luke s Vestry— L. R. 6 Q. B. Div. 572 ... ... 65 R H^yncr, Ex parte— S Q.B.B. 4i6 ... ... ... ... 6-^ S Stanley r. Robinson— R. & M. 527 ... ... ... ... 96 Stow I'. Davenport — 5 B. & Ad. 359 ... ... ... ... 57 T Turner & Skelton, /« J-e_l 3 Ch. Div. 130 ... ... ... 77 Tutl.ill V. Rogers- J. & L. T. 36, 6 Ir. Eq Rep. 429 89,92 Table of (,'(tseii. Xi U Pane Ulster Bank r. Woolsoy_-24 Ir. L. T. Rep. 65 ... ,., ... 77 V Vesey i'. Elwood — 2 Dr. & W;irr. 74 ... ... ... ' ... ii] W Watorford's (M.irquis of) Estate, /// re-^22 Ir. L. T. Rep. 18 ... ol Weeily v. Weedy— J. & II. 424 ... ... ... ... 102 Westminster E,tati (Parish of St. Sepulchre), In ;v^4 De J. & S. 232 GJ LEADING CASES IN LAND PURCHASE LAW. In re ESTATE OF LORD FERMOY. Lynch, a (22Ir. L. T. Rep. (iG.) 1887. July 2. July 2, lS%l.—Laud Purchase Act, 1885— Const nict ion of s. 14:-Sales for — - gross sum — Addition to advance — Purchase a)id re-sale of Estates — Ffrmot's Practice — Final Schedule of Incumhrances— Priority of owners costs of Estate. sale — Landed Estates Court Act, s. 7S, The provisions of s. 14 of the Land Purchase Act, 1885, are only applicable in sales of purchase and re-sale by the Land Commission under s. 5, or in case where the Commission order a holding to be re-sold. Sales of incumbered estates are deemed to be for benefit of parties entitled to fund, and when the procedure is by vesting order the Court will direct the vendor's costs of sale to be placed in priority to incum- brances on final schedule in the absence of special circumstances. Motion, on behalf of the vendor, that out of the sum of £20,175 4s. 11(/. lo(Io;ecl in the Bank of Ireland to the credit of this matter the Land Commission should pay to the Inland Revenue the stamp duties and registration fees, amounting to £159 2s. GtZ., payable on the vesting orders to the tenants. Some of the agreements with the tenants provided that the sales should be inclusive of all expenses, but in the majority of cases these words were struck out; and this motion was made with the avowed object of a further application to have the amount of the stamp duties and registration fees added to the tenants' advances in each case under section 14 of the Purchase of Land Act, 1885. The incumbrances exceeded the amount of the proceeds of the present sales. Mr. Saunders, a puisne incnmbrancar on the fund, o})posed the application. Mr. Pah'iihaiu Law, Q.C., for the vendor. B 2 hi re Estate of Lord Fermoy. Lynch, C. COMMISSIONER LyNCII : — As the order to be made on this motion involves the construction 1887. July 2. to be put upon the 14th section of the Purchase of Land (Ireland) In re Lord Act, 1885, 1 think it well that 1 should state the construction which ^StTte.^ I am prepared to put npon that section. In my opinion it is only applicable to cases in which the Land Commission purchases estates under the 5th section of the Act for the purpose of re-sale, or to cases where the Commission may order a holding to be re-sold. The 14th section provides that "on every sale when an advance is made by the Land Commission, the Land Commission shall charo-e the purchaser with one gross sum, which shall include the advance, the stamp duty on the vesting order or conveyance, if anv, made by the Land Commission, and the stamp duty and fees payable for registering such vesting order or conveyance." * 'Jalving the section by itself, it appears to me to contemplate the case of a sale by the Land Commission, because in no other case does the Commission make a conveyance. But we must read the section in conjunction with the latter part of the preceding section. Section 13 provides that " when, for the purpose of purchasing any estate for re-sale to the tenants thereof, it appears expedient, the Land Commission may purchase any land or hereditament held in connection with such estate or any rent issuing out of it, or may purchase up any right, easement, charge, or incumbrance affecting it." Having thus made provision for what we may purchase in addition to the landlord's estate, the 1 4th section indicates the method whereby we are to provide for vestino- the holdings in the tenants "without loss to the Commis- sion," as directed by the 5th section, but without requiring any immediate cash payment from the tenant purchaser; and this is done by including in the gross sum we charge the purchaser our outlay in stamp duty and registry fees. In the cases of purchases by the Commission the 5th section provides that the Commission is to retain not less than one-fifth of the purchase money to satisfy the purposes of a guarantee deposit, as defined by section 3. We thus have in such cases a fifth of the entire purchase money to answer any default which may arise upon re-sale to any individual purchaser in repayment of the advance we make to him, whether ■vve have purchased up further interests under the I3th section or Purchase and Re-Sale. 3 otherwise. 1 hardly thhik it necessary to refer to the 3rd section Lynch, C. of the Act, which enacts that the guarantee deposit upon a sale 1887. from a landlord to a tenant is to be not less than one-fifth of the "^ advance — the advance in such case beln^ the principal sum or {!.' ^« ^^ud '7 r r Feemoy's price. In this case the guarantee deposits are one-fifth of the Estate. advance or price paid over to the owners, and if I were now to pro- ceed to add to the advances sums representing the stamp duty and fees, I would be making advances in excess of the principal sum or price, to secure the repayment of which I am bound to hold a guarantee deposit, being not less than one-fifth of the advance. There is no section analogous to the 14th section in the Act of 1881 ; but there is in the 36tli section of that Act a provision that in fixing purchase moneys and fees the estimate was not to be less than the amount required to defray expenses. The Act of 1885 ■was framed very hurriedly. Some of the provisions are taken from a Bill which was introduced in 188 1, but which provided for county guarantees instead of guarantee deposits ; hence arise some of the defects and ambiguities which are apparent in this and the other sections of the Act, but many of which have been remedied in the Act of 1887. Taking, however, the section as it stands, and reading it, as I must, in conjunction with the antecedent sections, I can put no other construction on it than the one I have already indicated. Apart from any question as to construc- tion of the Act, I can see grave complications and difficulties which would arise if this provision Avere held to be applicable to cases of sales from landlord to tenant. It might result in the Commission having to undertake, in addition to the other duties which it has to perform with a very limited staff, the task of preparing and completing all conveyances and vesting orders. There are other expenses and fees incident to convey- ancing besides stamp duty and registry fees, and, in the interest of the public and of the solicitors' profession, I do not think that this Avould be a desirable mode of procedure at present. In our Rules of December, 1887 (rule 42), we direct that in the cases of vesting orders upon sales between landlord and tenant the solicitor for the owner shall prepare the orders, and our schedule of fees provide for his remuneration, while, under the Act of 1887. section 18, the vendors have been relieved from the costs of pro- 4 Tn re JisUtte of LonJ F'ennoi/. ^y"^^^' ^- curing the execution by tlie tenants of deeds securing the advances 18S7. Avliich -we now do by charfflnfj order. On the other hand, in July 2. J )-> o ... cases of purchases of estates by the Commission it has been pointed Fkb^ioy's^ ^^^^ ^^^^^ '^^^ some of the agreements in this case (which are all in EsTATK. tlie okl form) the words " inchisive of all expenses " are struck out, while in others they are left in. But it appears to me that if these words were so struck out intentionally, and with the object of charging certain tenants Avith these expenses, while others were to be exempted from them, it is a question between the vendor and the purchaser, -with which 1 have not to deal and Avhicli cannot affect the measure of our advances in such cases. Another point has arisen in this case which does not at all relate to this section, but which I think it right to deal with on this motion — the priority in which the costs of the owner's solicitor should be ]i!aced upon the draft schedule of incumbrances. FollowiufT the analogy of the Landed Estates Court and the provisions of the 78tli section of the Landed Estates Court Act (which enacts that the costs of a petitioner are to be paid in the same priority as his demand, unless the Judge otherwise direct), the Examiner has put the costs here at the foot of the schedules. The sales in vesting order matters in this Court are made upon notice to incumbrancers ; the order that such sales be carried out is subsequently made absolute ; and the proceedings are to be deemed to be for the benefit of those entitled to the pro- ceeds of the sale. I shall therefore be prepared in this case and in similar cases to direct that the costs be placed in their proper priority as one of the first items to be paid out of the proceeds of the sale. Havinjr done so, I do not think that in this case it would be unreasonable that the solicitor should apply to me under the 51st rule, if he thinks it necessai'v, for an advance to cover his outlay in stamp duty and registry fees payable on these Testings orders. I therefore refuse this motion, and I declare the vendor entitled, as part of his costs in the matter, to the sums paid for stamp duty and registry fees, as well as the costs of and incident to the preparation of the vesting orders. If, however, the parties interested in the fund think that the vendor has any personal claim against any of the tenants in respect of their agreements, I shall Redemption of Lay TitJies. 5 make the order, without prejiulice to the vendor's rights, against the Ljnch, C. tenants personally under such agreements, the soUcitors, of course, isstT" undertakino- to give credit for any sums so recovered in their costs^ ^^h 2. I think that, having regard to the pecuh'arity of this case and In re Lord 11^ • • ^ 1 ± ±1 J. r j-i • Fermoy's the points involved, the owner is entitled to the costs ot this estate. application, with counsel, as part of his costs in the matter. Order accordingli/. SoUcitors for owner: Messrs. Fry Sf Son. Solicitors for Mr. Saunders : Messrs. S. Gordon Sf Son. la re ESTATE OF JAMES WILLIAM IIANIIAHAN. Feb. 2, 1888.— Zanc? Law (Ireland) Act, 1887, sec. 15 (2)— La;/ tithes held under fee-farm grant — Redemption — Jurisdiction of Land Commissioii — Price fixed — Payment into Bank of Ireland of Redemption Money. The Land Commission has power to order the redemption and fix the price of lay tithes issuing out of lands sold under the Land Purchase Acts, even though such tithes are held under lease or fee-farm grant. Having regard to the circumstances under which the tithes in this case were payable, the price was fixed at twenty j'ears' purchase of the tithes, less poor rate, taken on the average for the previous five years. When a lay tithe rent-charge has been ordered to be redeemed, the Court may direct the purchase money to be paid into the Bank of Ireland, and declare the claims of all persons on such tithe rentcharge shall attach to the purchase money (1). Motion on behalf of the vendor, for an order for the redemption of £13 I85. lOcZ., lay tithe rent-charge issuing out of the lands of Kilmagner, situate in the parish of Castlelyons, Co. Cork, and sold to tenants under the Purchase of Land (Ireland) Acts, 1885-1887, and for an order that the purchase money be paid into the Bank of Ireland. ISIiss Ryder, the person in receipt of this and the other lay tithes of the parish, held under fee-farm grant from Sir Guy (1) Now, by sec. 20, Purchase of Land (Ireland) Act, 1891, the Commission has the same powers in respect of the reilemptiou money as nre contained in sec. 14, sub- sec. (1), Land Law (Ireland; Act, 1S<87. See also Rule GS of the General Rules of Court of the loth Aug., 1 891. —Ed. Lynch, C. 1888. Feb. 2. H In re .xnrahan's Estate. 6 In re Eslaie of James TJ'. IJanralian. Lynch, C. Ti'uvers at the rent of £150, and was entitled as to one moiety ' jggg absolutely, and as to the other as tenant for life "with remainder ^^- ^- over, and subject to a perpetual annuity of £100 a year to the Jure Vicar of Castlelyons. Mr. Planrahan, the owner, appeared in Hanrahan'8 Estate. person. Mr. Shekleton, Q.C., for Miss Ryder. Commissioner Lynch : — This case comes before me upon a motion by the owner that a lay tithe-rentcharge of £13 Ss. \0d., payable out of lands which haye been sold to the occupying tenant?, shall be redeemed under sub-sec. 2 of sec. 15 of the Land Law (L'eland) Act, 1887, at a price to be fixed by the Land Commission. The lands which haye been sold form portion of the townland of Kilmagner, con- taining 261a. 2r. 39p., situate in the barony of Condons and Clongibbons, and in the parish of Castlelyons and County of Cork. The estate was purchased in the Landed Estates Court in 1860 for £3,000. It was subsequently bought by the predecessor of the present yendor in 1863 for £3,300, and it has now been sold by him to five occupying tenants for £2,297, the tenement valuation being £136 10a. When the application came before me on the 16th of January last it appeared from the statement of Mr. Shekleton, who represented Miss Ryder, the person now in receipt of these tithes, that in the year 1 788 Robert Travers demised the impro- priate tithes of the parish of Castlelyons to Joshua Browne for lives renewable for ever at a rent of £180, late currency, with a j)epper-corn renewal fine ; that this lease was renewed in 1812 ; and that in July, 1862, it was converted into a fee-farm grant. In this grant there is a recital of an agreement made in 1838, when the representative of the original lessee applied for an abate- ment of the rent in proportion to the reduction of the profits arising from the conversion of the tithes under Lord Stanley's Act; and under this agreement the rent was reduced from £166 3«. Id., sterling, to £150. The rent reserved under the fee-farm grant is £166 3«. 1^/. There appears to have been some doubt as to the legal right of the lessee under the original lease to claim any reduction, but tlie grant contains a covenant for the Redemption of Laij Tithes. 7 acceptance of the reduced rent of £150, which is, in fact, tlie rent lynch, a now paid. It further appeared, from the statement of counsel, 1888. that Miss Katherine Ryder is now entitled to the tithes of the Feb. 2. parish of Castleljons so granted as to one moiety absolutely, and /„ ^g as to the other moiety for her life, with remainder to Arthur H.\nbahan s •' _ Estate, Kyder, but subject to a perpetual annuity of £100 a year, payable, under the will of Lucinda Kyder, to the Vicar of Castlelyons parish. When these facts were opened before me I directed that notice of the ap})lication should be served upon the representative of the grantor in the fee-farm grant under which Miss liyder claims. Notice was therefore served upon George Alexander, the agent to whom the fee-farm rent is j)aid, and by registered letter upon Sir Guy Clarke Travers, who is represented to be the owner of the rent. On Monday last the case came before mc again. No one appeared for Sir Guy Travers ; but it was con- tended by Mr. Shekleton, who represented Miss Ryder, that as the fee-farm rent was a rent issuing out of the tithes and not out of the lands being sold, it was not capable of being apportioned under the powers of apportionment conferred upon us by the 10th section of the Purchase Act of 1885, as extended by sub-section 2 of section 16 of the Act of 1887, and that, therefore, the Land Commission has no power to order the redemption of a portion of the tithes so held under the fee-farm grant, and that even if the Commis- sion were so empowered, it would not be expedient that it should exercise the powers of redemption conferred by sub-section 2 of section 15 of the Act of last session. It appears to mo that if I were to yield to this argument the admirable pro- visions of this section, so far as they related to lay tithes, would be rendered nugatory. A very large portion of the lay tithes are, in fact, held under leases or fee-farm grants ; and I am not prepared to assent to the proposition that the existence of these leases and grants can be pleaded in bar of the exercise of our Jurisdiction under this section. Apart from the difficulties which have arisen in the case of limited owners who are unable to provide, by way of indemnity, against outgoings of this character, and in the cases of insolvent estates of giving any indemnity, it appears to me that the position of the owners of these lay titlus would not be improved if upon the cases of sales to tenants they were 8 la re Estate of James W. Ilanrahan. lynch, C. compelled to have recourse to each holding for the portion of tlie TTTa tithe which would be recoverable thereout. Feb. 2. I see no difficulty in carrying out the provisions of this section. T^e By tlie 73rd of our General Rules of the 5th December, 1877, it ^EsVate!^ is provided that, "when the land Commission shall have ordered the redemption of any lay tithe rent-charge the purcliase money thereof shall, if the Commissioners think fit, be paid into the Bank of Ireland to such credit as they may direct ; and thereupon the Commissioners may, by order, declare that the claims of all persons, whether as owners of or incumbrancers on such tithe rent-charge, shall attach to such purchase money." Tills appears to me to be a case in which the purchase money should be so dealt Avith. The tithes, upon the making of our order, will cease to be a cliarge upon the lands sold ; the purchase money will be invested ; and tlie interest will be paid to the person now entitled to the tithes or, for the time being, entitled to the interest. The corpus of the fund will remain in Court to answer the demands of all parties claiming to have an interest in the purchase money which represents the lay tithes so redeemed. When that fund comes to be allocated those interests must be ascertained. I now come to deal with the question of price. Mr. Shekleton has nrfred that the price should be 2^ j^ears' purchase of the net tithes, being the rate named in the 32nd section of the Church Act of 18G9 ; while Mr. Hanrahan has contended that, having regard to the rate at which he has sold to his tenants (about IGf years upon the tenement valuation), and to the statutable right which exists for the septennial revision of tithes, according to the price of corn, &c., in the district, and to the existing prices of corn in the locality where this estate lies, the price should be fixed at 18 years. I am of opinion that the rate named in the Church Act {2i^ vears' purchase) is in excess of the selling value of lay tithes in the open market. Lay tithes, when sold in the Incumbered Estates and Landed Estates Court, did not fetch such rates. The Landed Estates Court judges, Avlien awarding compensation for mis- statements as to the liability of lands to tithe rent-charge, usually awarded 1 8 years' purchase, or sometimes the same rate as that at which the estate was sold. The re])ort of the Royal Commissioners Redemption Price of Liuj ^Mthes. 9 on the Act of 1881 and 1885 recommends a rednction in the price Zy«c^, c". of tithe rent-charges as fixed by the Church Act (1). The 15th ^^^ section of the Land Law (Irehmd) Act, 1887, points to a revision of ^^^- -• these rates, and therefore, without reference to any decision wliich In re „ . . .,1 ,1 Li.-i.irr ■ Hanrahan's the Commissioners may, with the consent ot the ireasury, come estate. to as to the price at wliicli tithe rent-cliarge payable to tlie Land Commissioners may be redeemed, 1 am prepared, liaving regard to all the circumstances of the case, to fix the redemption price of this lay tithe rent-charge at 20 years' purchase upon the tithes, after deducting the poor rate taken on the average of the last five years. As, however, I am not satisfied that adequate notice of this motion has been given to Sir Guy Clarke Travers or the person representing the grantor's interest in the fee- farm grant, and this beino; the first order which has been made under this section, I direct that a conditional order do issue for the redemp- tion of those tithes at the rate I have named, and that sucli conditional order be served upon the owner of the grantor's interest under the fee-farm grant and upon Mr. Shekleton's client. Cause in twenty days. Order accordingly/. Solicitors for owner: Messrs. Ilanrahau Sf Co. Solicitor for Miss Ryder : Mr. Francis Hodder. (l)The recommendation referred to is to be found in paragraph No. 60 of the Eeport of the Royal Commission known as "Lord Cooper's Commission." It is as follows : — '' We recommend that all quit and crown rents and titlie rent-charges shall be redeemed ; . . . and if redeemed, that the rate of purchase required for that purpose should be reduced." — Report, &c., p. 17. 10 In re Kdate of Qa'ui and Others. Lynch, a In re THE ESTATE OF GEORGE QUIN AND OTHERS. 1 QQQ March 2 March 2, 1888. — Specific performance — Land Law (Ireland) Act, 1887, . Sec. 22 — Coniraci for sale — Advance provisionally sanctioned — Death oj In re Estate purchasing tenant — Informal will — Befusal of devisees i)t, occupation of OP QuiN AND Jioldinq to carrv out contract — Non-inteyference of heirat-law. Otheks. y . J J A tenant entered into an agreement with the vendors for the purchase of his holding, and an advance was provisionally sanctioned for that purpose by the Land Commission. Before the conveyance was executed the tenant died, leaving by his will, which was informally executed, his property to his wife, with remainder on her death to two younger sons. The devisees remained in occupation of the holding, but refused to carry out the contract for sale upon the terms agreed upon. No pro- bate to the will was taken out, and the heir-at-law refused to interfere. On a motion for a decree of specific performance against the devisees and the heir-at-law, or some or one of them, the Court, under the circumstances, refused to make any rule. The facts are fully set forth in tlie jiulgment. Commissioner Lynch : — In this case Dominick Forde was a tenant from year to year under the owners in this matter. His holding consisted of 47 acres, part of the lands of Pallas. His rent was £20. On the 18th November, 1886, he signed an agreement to purchase his holding for £400, and applied to the Land Commis?ion for an advance of the entire purchase money, the vendors undertaking to provide the guarantee deposit, and it being agi'eed that the sale was to be carried out by conveyance. The advance was provisionally sanctioned by the Commissioners on the 21st December, 1886. It appears from the affidavit of Mr. Franks, one of the vendors, that the tenant tlien owed over three years' rent, which was to be released by the conveyance. The vendors appear to have had some difficulties as to title and annuities to which the estate was subject, and it was not till November, 1887, that the conveyance was executed by the vendors and two annuitants, who joined for the purpose of releas- inir the holdincr from their annuities. The conveyance was registered on the 25th November, 1887. It was then lodged with the Commission, in order that the advance might be made, and the usual charging order securing the advance issued, under the 18tli Section of the Act of 1887. Previous to the passing of this Act Sj.)€ci/ic Per for ma) ICC. 1 1 the tenant-purcliaser would have been a necessary executing parly Lynch, C. to the conveyance, and, in fact, by liis agreement l»e undertook ^^^^ to execute to the Commission tlie necessary deed to secure the March 2. repayment of the advance. In re Estate ^ . , . , 1 . 1 . 1 , , . OF Qdin and Before makuig the charging order evidence must be given Others. by affidavit that the tenant-purchaser, a party to, but not executing, the deed, is alive. It was then ascertained that Dominick Forde had died about the 27th June, 1887, five months before the execution of the conveyance by the vendors. I collect from the affidavit of Mr. Franks that about ten days previous to his death he executed, as a marksman, a will which is not dated, and which, though witnessed by two witnesses, does not contain the usual attestation clause. By this will he bequeaths "to his wife his land and property whilst she lives, and after her death to be divided with his sons Thomas and James ;" to three of his children he leaves a shilling each, one of them, Michael, being his heir-at-law. The witnesses informed the solicitor that they saw the testator affix his mark ; that they signed it in his presence ; that they did not remember if it had been read to him; and that he was " silly " when he signed it. One of the witnesses declined to say that the deceased approved of it, but said " he asked him if he was satisfied, and he shook his head in a manner which made him understand he was satisfied." A declaration of these facts was prepared, but it is stated that Anne Forde, the widow, and Thomas Forde would not allow the witness to make it. They are in occupation of the holding, but said they would not carry out the purchase on the terms agreed upon unless a considerably less price was accepted; and Anne Forde on the 12th December wrote a letter in which she says, " There is no use in my signing papers ; I will accept only the same terms as the other tenants are looking for." Application appears to have then been made to Michael Forde, the heir-at-law, who resides in Dublin, to ascertain if he had any intention of claiming the farm as heir-at-law, or if he consented to the mother and brothers taking the farm Under the informally- executed will. lie informed the solicitor that he would not inter- fere in the matter, but would leave it to his mother, as she knew more about it than he did. It was explained to him that if the 12 hi re Estate of Quin and Others. Lynch, C. "^^iU was invalid he was entitled to tlie property, but he said he " did not care." 1888. March 2. It is stated that Anne Forde and her son Thomas do not nitend /ft re Estate to prove the will. In this state of facts a notice of motion was ""^OraERr" s<-^i'V'ed by the solicitor for the vendors for a decree for specific per- formance of the Rfrreement dated 1 6th November, 1886, as against " Anne Forde, Thomas Forde, and James Forde, as devisees under the will, and also against Michael Forde as heir-at-law, or some or one of them." This application was made nnder the 22nd Section of the Act of 1887. There was no appearance for the parties served, but Anne Forde wrote a letter dated 21st February, in r.eply to the notice, making an offer to give 20 years' purchase at 20 per cent, reduction. AVhile I have no doubt that the contract was a valid and bind- ing one upon Dominick Forde, and capable of enforcement against him, and that the holding is security for the advance applied for, and while I think it is very possible tliat the persons entitled to the interest of Dominick Forde in these lands are merely endeavouring to extract more favourable terms from the vendors as to the price, by throwing obstacles in the way of the completion of the sale, I am of opinion that the vendors are not, at present at all events, in a position to ask me for a decree for specific performance. The conveyance executed after the death of the tenant is worthless. Our duty is to advance the money and pay it over to the vendors when tliey produce to us a conveyance duly executed to the pur- chaser, or the person now legally entitled to such conveyance, so that we may charge the holding so conveyed with the advance. These conditions are not fulfilled. It does not appear to me that I could on this motion and under existing circumstances make a decree in the terms of the notice. Let me assume that this was a case where the tenant left no assets — that the farm was, in fact, " damnosa hereditas "—would the vendors in such a case be in a position to ask for a decree for specific performance ao-ainst devisees who did not enter into possession of the assets and declined to undertake the burden of the contract, or against the heir-atlaw, who repudiated an estate which was valueless] In my opinion they would not. In this case there is no evidence that the tenant left anv assets other than this farm. No attempt Security for Advances. J 3 lias been made to prove the will, of the existence of Avliich the Lynch, C. vendors became aware only in November last. I offer no opinion as ^^ggg^ to the validity of the will, or as to what further steps the vendors ^^^^^^^ 2- should take to enforce their rif^hts either for a specific performance in re Estate 1 -ir +1 Ml • f OF QUIN AND or for damages for non-performance. It may be it tlie will is not otheus. proved by the parties that the vendors can proceed to obtain a limited grant to "substantiate proceedings" from the Court of Probate. Havino- recrard, however, to all the circumstances of this case and the complications which have arisen, I shall make no rule on this motion, without prejudice to any further application that the vendors may be advised to make in the matter. Solicitor for the vendors : Mr. J. II. Franks. In re ESTATE OF EDWARD O'KELLY. MacCartiuj, c. (23 If. L. T. Ken. 8G,) 1888. Nov. 27. Nov. 27, 1888 — Landlord and tenant — Advances to tenants for tlic purchase, , ' . . . ■ ni j: Jn re of their holdings — Tenant in occupation — Sub-letting — Tenants for tern- o'Kelly's porary convenience pending sales in Land Judges'' Court — Security for Estate. advances — Cause shoivn against making advances — Land Law {Ireland) Act, 1881, sees. 24 and 57, and Purchase of Land Act, 1885, sec. 2 (a). AV'here lands for sale in Land Judges' Court had been let for tem- porary convenience, and the tenants applied for advances to enable them to purchase their holdings, the Land Commission agreed to make the advances ; but the owner in the Land Judges' matter having inter- vened, and it appearing tliat the lands were sub-let in grazing or con- acre, and that the tenants had noc sufficient capital or stock to work their farms, the Court refused to make the advances as not being "satisfied with the security" within the meaning of the 24th section of the Land Law Act, 1881, and the 2nd section of the Purchase of Land Act, 1885. Tliii circumstances of the case are fully stated in the judgment. Air. Meldon, Q.C., for the tenants. Commissioner MacCarthy : — This matter comes before me on the motion of Mr. Meldon. Q.C, to advance the sums of £4,200, £4,151, and £2,831 to Messrs. James, Michael, and Thomas Browne respectively, for the purchase of their holdings on the lands of Cooloo. in the Co. 1-t In re Estate of O'Ktlly. MacCarthy, C. of Galwav. These lands, with other lands not the subject of this jggg motion, formerly belonged to a ■^vell-kno^Yn and respected Galwav ^°^' ^^- gentleman, Mr. Edward Browne, of Cooloo. He charged them In re witli a jointure of £400 a year, now payable, to his widow, and Estate. witli a mortgage for £4,000, still outstanding. In 1871 Mr. Michael O'Kelly succeeded to the ownership of Cooloo, as devisee under Mr. Browne's will. During his ownership he very consi- derably added to the incumbrances, and appears to have got into embarrassed circumstances. In 1882 he divided his demesne lands of Cooloo into three lots, and executed three leases at substantial, but apparently not excessive rents, to his brother, Mr. Edward O'Kelly. In the following year the latter gentleman assigned these leases to his wife, Mrs. Lizzie O'Kelly. Proceedings were taken in the Landed Estates Court, at suit of the mortgagees, for £4,000. Pending these proceedings Mr. Michael O'Kelly died, having by his will devised this estate to Mr. Edward O'Kelly, subject to the encumbrances and to the leases I have mentioned. Mr. Edward O'Kelly thus became, in respect to the three holdings in question, landlord of his own wife. In this state of facts Mrs. Lizzie O'Kelly applied to us for ad^^ances to enable her to pur- chase these holdings ; and it was explained that, though her liusband was technically owner, the money would really go to the encumbrancers on his estate. Nevertheless, for obvious reasons, we deemed it our duty to refuse the applications. The Act is certainly not intended to enable a gentleman to " root " his wife as peasant proprietor in the soil. Meantime a receiver had been appointed, and Mrs. Lizzie OKelly had fallen into heavy arrears of rent. Being unable to pay she was evicted, and the leases thus vested in her were determined. The three lots were advertised for letting. The three Messrs. Browne, who are relatives of the former proprietor, Mr. Edward Browne, put in proposals. These proposals were accepted, and the usual leases for one year pending a sale were made to them. I believe that they have since paitl their rents with reasonable regularity. In April, 1888, all the tenants on the estate, including the three gentlemen in question, applied to us for advances to enable them to purchase their hold- ings in the Landed Estates Court. The usual inspections were directetl. The reports as to the value of the lands Avere satisfac- Cause shown against making Advances. 15 tory. The advances were provisionally sanctioned. The rental MacCarthy, c. was settled in the Landed Estates Court. The applicants were 1888 ~~ declared purchasers of their holdings. Some delay occurred in '^^^- -'• lodffinc; the Order with us on account of difficult negotiations with In re ^ ^ . . ". , . O'Kellt's encumhrancers as to providing the guarantee deposits and satis- Estate, fying the claims of the jointress. But in August last these diffi- culties were overcome, and the necessary documents were lodged with us by Mr. Robinson, who has carriage of the matter in the Land Judges' Court. At this stage Mr. Edward O'Kelly, who, as it is stated, had not raised any objection in the Land Judges' Court, intervened, and filed in our Court an affidavit objecting to the advances beino- made on the m-ounds therein set forth. It is obvious that this was a very inconvenient course of procedure, and not fair to either of the tribunals concerned. Moreover, it appears by the evidence that Mr. Edward O'Kelly has really no beneficial interest in the lands, which are mortgaged beyond their value, and that the guarantee deposits in which he claimed to be interested are really provided out of moneys which would come to the encum- brancers. A question was raised by Mr. Meldon on behalf of the applicants as to whether, in this state of facts, Mr. O'Kelly had any right to be heard. Considering, however, that he is, technically at least, owner of the estate, he is, I think, " legitimus contradictor," and entitled to have his objections considered on their merits. Four answering affidavits have been filed, and ably argued by Mr. Meldon. The first of the specified objections is that the lands are sub-let in grazing and con-acre. This fact is admitted, but it is explained that this mode of dealing with the lands was caused by the depres- sion in the cattle trade, and that under the Land Law (Ireland) Act, 1881, a tenant is to be deemed in occupation of his holding even though he has sub-let it for grazing or in con-acre. The explanation is reasonable and the statement of the law is accurate. Nevertheless, 1 think it may be questioned whether it is a wise exercise of discretion to advance State funds to tenants who are thus only in technical occupation, who in substance are middlemen, and who must depend for repayment of the advances on the pre- carious resources of agistment and con- acre sub-lettings. Another of Mr. O'Kelly 's objections is that the apjilicants have 1^3 In re Esiate of O'Kelhj. MacCarthy, C. become tenants only for the purposes of purchase. I find nothhig jggg_ to support this objection. Even if the facts were as alleged, the ^"^•^^- applicants would still be within their rights. Nevertheless, it cannot In re be denied that there is a distinction between ordinary tenants, most Estate, of whose predecessors have been in possession of their holdings for generations, and tenants who have merely been constituted for tem- porary convenience pending a sale in the Landed Estates Court. The most important objection remains to be considered. It is that the tenants have neither stock nor capital to work their farms. It appears by the evidence that one of them at least is entitled to a property of £500 a year and to an annuity of £50 a year. But the property is heavily mortgaged, and is the subject of pro- ceedings for sale in the Landed Estates Court. It is doubtful, therefore, whether it will supply funds immediately available for purchase of stock. The three brothers will be entitled to sub- stantial property on the death of their mother, Mrs. Julia Browne. This lady in her affidavit states that she is in possession of consider- able resources in landed estates and in the Government funds. With these important qualifications, however, the statements of Mr. Edward O'lvellj^ appear to be substantially true. The applicants have no stock, and they do not allege that they have any capital to buy stock or otherwise to work the farms. I suggested that Mrs. Julia Browne, who appears to be a lady in good circum- stances, should remedy this deficiency by supplying her sons with stock or capital to work the farms. This suggestion, however, was not deemed practicable, and I was called upon by the learned counsel for the applicants to deal with the case as presented to me. Thus presented, I regret that I must refuse to advance over eleven thousand pounds of public money to three young gentlemen whose tenancies were created for temporary convenience, who have their lands sub-let for grazing and con-acre, and who, accordino- to. the evidence, have neither stock nor capital to work their farms. Order accord injli/. . Solicitors for Messrs. Browne: 3Iessrs. MeJdon^ Co. Solicitors having carriage : Messrs. A. Rohinson Sf Son. Solicitors for Mrs. H. Browne : Messrs. Carson ^ Mecredi/. Solicitors for the vendors : Messrs. ixs MacCarthy.c. contentions were well founded, lay-tithe rent-charge would be '^^ excluded from the operation of both section?, and would be the ^>^<^- 6- only charge for the redemption, of which no statutory provision 7,1 re Estate would have been made by the Land Law (Ireland) Act, 1887. If ^ another. this were so we would arrive at the extraordinary result that while all other incumbrances on lands sold under the Land Purchase Acts Avould have been cleared away, our old friend the Lay Impropriator Avould still flourish, to the detriment of the new proprietors, of the State security, and of the public interest. It is not likely that this was the intention of the legislature. It is plain that no such intention is expressed in the Act. The amount at issue is small in this case, but, as Mr. Dix properly states, he disputes it on prin- ciple. On principle, therefore, it must be decided. In other cases the amount of lay tithes charged on lands proposed to be sold to tenants is very considerable. Thus, in a recent case in the County of Cork, the lay tithe amounted to £180 a year, the burden of which it was proposed to distribute amongst the new proprietors. Of course this was not permitted; redemption was ordered, and the contracts re-settled on the basis of such redemption. Tiie clearing off of such charge is of primary importance for the judicious administration of the Land Purchase Acts. Before we obtained statutory powers enabling us to deal with them they were either assented to at the urgent request of the parties, or dealt with by way of indemnity. But it is evident that the method of indemnity is attended with grave risks and inconveniences. To obviate these disadvantages the legislature in 1887 gave the statutory powers now under consideration. These statutory powers were given to be used, not to be neglected or set aside. The usual order for redemption must therefore be made, and the price fixed at 20 years' purchase on the neit tithe after deducting the average poor rate for the last preceding five years. Order accordbujly. Solicitors for the owners : Messrs. Fottrell <^' Son. Solicitors for the impropriators : Messrs, Dix ij- Son. 26 In re Estate of the Marquis of Waterford. LyncK a In re ESTATE OF THE MARQUIS OF WATERFORD. 1889 March 29. March 29, 1889. — Land Laxo (Ireland) Act, 1887, Sec. 16, ss. 3 — Redemption of rent-charge — Consent to redemption price being determined by Commis- I'>^ ''fi sion — Separate credit — Practice. Estate of Watekfobd. '^^^ redemption price will not be fixed at such a sum as would, if invested in Government Stock, produce the same income as the rent- charge. Neither will it be fixed at the same rate as that for which the lands are sold. Each case must be decided on its own facts. The redemption money will be placed to a separate credit, and the parties entitled to it must prove their title thereto. Application to determine the redemption price of a rent-char|];e of £41 15s. M. created by deed of 3rd July, 1861, and payable out of the lands of Carrickavantry South, for a term of 500 years from 25th March, 1 759. The facts are as follows: — The townland of Carrickavantry South forms portion of the estate of the Marquis of Waterford, and was purchased in the Landed Estates Court by his pre- decessor for £2,450 in July, 1861, in the Matter of the Estate of William Scully, owner, Daniel Carrigan, petitione"!*. The townland contains 231a. Ir. 292)., ^^^® tenement valuation being £128 15s., the present gross annual rental being £149 18s. 8(7,, which at the time of the sale in 1861 was £159 17s. ^d. A rent- charge of £41 155. Sd. was paid out of the lands by the former owners, and one of the conditions of sale on the rental was that the purchaser should execute a deed of rent-charge to the parties in whom the same was then vested. On the 3rd July, 1861, the then Mar(piis of Waterford executed a deed of rent-charge to Mary ^lulcahy, Ellen Davis, Mary Bourke, Bridget Keeffe, Anastasia Heneberry, and Catherine Keeffe, members of the Presentation Convent in Clonmel, in pursuance of the conditions on the rental. The rent-charge is now vested in Margaret O'Donoghoe, Mary Stone, Honoria Carew, Margaret Bourke, Mary Cody, and Mary Keating, while the estate has become vested in the present Marquis of Waterford, who sold the entire townland to the occupying tenants under the Purchase Act for £2,684. For the purpose of redeeming this rent-charge a consent was entered into between the parties that the redemption price Redemption Price. 27 should be determined by the Land Commission, in accordance with Lynch, C. sec. 16, sub s. (3), Land Law (Ireland) Act, 1887. 1889. March 29. Mr. John B. Murphy, Q. C, for the owner of the head-rent. /„ re Estate ( Marquis Watebfobd Mi\ Tioeedy, solicitor, for the vendor. Marquis of Mr. Commissioner Lynch [having stated the facts as already given] : — The motion now before me is made under the 16th section of the Land Law (L-eland) Act, 1887, which provides (sub-s. 3) that the Land Commission may, if they think it expedient, order the redemption of any annuity, rent-charge, or rent, notwithstanding that no apportionment has been made. The parties have entered into a consent, dated 9th March, that this rent-charge is to be redeemed, and by this consent it is provided, in the words of sub- sec. 3, that the price shall be determined by the Land Commission. When this motion was before me last Monday, IVIr. Murphy, Q.C., who appeared for the parties entitled to this rent-charge, contended that the price should be fixed at such a sum as would, if invested in Government Stock or preference stock, produce the same income as the rent-charge, and that this being in the nature of a com- pulsory redemption, the maximum price should be fixed. Mr. Tweedy, on the other hand, as representing the landlord, suggested that the price should be fixed at 20 years, being about two years in excess of the price at which these lands have been sold to the tenants. I cannot yield to either suggestion. In these days when the value of money is so much reduced, and the difficulty of obtaining a reasonably high rate of interest in these securities is so great, it would take a very large sum indeed to produce this income, and such a sum which, in my opinion, a rent-charge of this character would not produce if sold in the open market. Though there is no doubt that this rent-charge may be described as a well-secured rent-charge, for, however great have been the variations in the rents of land in recent years, I cannot foresee any event which would materially affect this security, yet if this property were not in the hands of Lord Waterford, the rent-charge might not be paid with such punctuality, and there is no doubt that other securities present advantages which are not measurable 28 In re Estate of the Marquis of Waterford. Lynch, C. merely by the income they return. But even if I were to consider ^^^^ only the rate at which the capital could be now invested, I must March 29. j-emember that if paid out the parties entitled are not limited to l^e Government Stocks or preference securities, but can re-invest on Estate of Marquis of mortgage. Waterford. j ^^^^^ however, of opinion that 20 years' purchase, as suggested by JNIr. Tweedy, Avould be too low a rat<; to fix for redemption. We have fixed 20 years as the price of lay tithes, which, having recrard to their liability to variation, their character and amounts, cannot be regarded as desirable an investment as a rent-charge of this amount. Lord Waterford has, it is true, sold these lands at moderate rates, but I cannot measure the redemption value of this rent- charge solely having regard to that standard. Head-rents have been redeemed in this country and the prices have ranged from 25 vears down, and I am aware of a case Avhere a higher rate was fixed upon arbitration. Having given the case my best consideration, I am of opinion that the redemption price of this rent-charge should be £lt50, and I accordingly fix it at that sum, which, when the sales are com- pleted, will be placed to a separate credit, and the solicitor for these ladies will have no difficulty in obtaining an order for pay- ment of the amount (1). They appear to claim under a conveyance of 12th May, 1886, from the survivor of the grantees in the deed of ]861, and evidence must be given to the Examiner as to the devolution, and he will direct the necessary searches. The parties are entitled to their costs of this motion with counsel to be paid by the owner ; they must bear their own costs of draw- ing the fund out of Court (2). (1) By Sec. 16, sub-sec. (3), of the Land Law (Ireland) Act, 1887, the redemption price of a rent-charge may be determined— (1) by agreement between the parties, (•2) by consent that price be referred to the Commission, (3) by arbitration. As to practice, see Kules 60 to 64 of the General Rules of Court. As to redemption price, see In re Givan's Estate {post), where Mr. Commissioner MacCarthy, on evidence that a fee-farm rent was well secured, fixed the redemption price at 25 years' purchase of the net rent, after deducting the average poor rate for five years. (2) This practice has since been altered. See decision of Mr, Justice Eewley in Lord Leconfield's Estate, post. In re Estate of Most Rev. B. Finnpgan and Others. 29 O'Uagan, J. hi re ESTATE OF THE MOST REV. BERNARD 1889 FINNEGAN AND OTHERS. March 'so. Tn Tf TESTATE March 30, X^^Si. — Trustees for charitahle pin-poses— Sale of trust pi-opertij '" qf Most Rev. tenant -purchasers ivhere no power conferred bij deed of constitution — Statutory b_ Finxegan powers— Restrictions— 30 ^' 31 Vic, c. 54, sec. 14 — Consent of Commissioners and Other3. of Charitable Donations and Bequests — Landlord and Tenant {Ireland) Act^ 1870, sees. 26 and 33— Land Law (Ireland) Act, 1881, sec. 25 — Land Laut (Ireland) Act, 1887, sec. 34. AVhere lands were conveyed to trustees upon trust to apply the rents and profits towards certain charitable purposes, but no power of sale was conferred by the deed of constitution, and the trustees entered into agreements for sale under the Land Purchase Acts : Held, that in the absence of the sanction of the Court of Chancery or the Land Judges, and not adopting the course prescribed by the Lands Clauses Consolidation Acts, the trustees could not make a valid title for the purpose of sale without the consent of the Commissioners of Charitable Donations and Bequests. Application on behalf of the vendors to have the following question of law heard and determined pursuant to the 17th section of the Purchase of Land (Ireland) Act, 1885 — "Whether trustees of lands held under a deed, uot containing any power of sale, in trust to apply the rents and profits in assisting in the education and training of priests of the Roman Catholic Church in the Diocese of Kilmore, have power to sell such lands to the tenants under the Land Law (Ireland) Acts, or any Acts expressly or impliedly incorporated therewith, or whether the trustees require the authority or permission of the Commissioners of Charitable Donations and Bequests for the purposes of such sale, and if they have power to sell are they such persons as are entitled to the purchase money, so as to provide the guarantee deposit thereout ? " A notice of motion dated the 18th of February, 1889, was served on the Attorney-General for an order on the above requisition. The matter came before Mr. Justice O Hagan sitting with Mr. Commissioner Lynch and Mr. Commis- sioner MacCarthy on the 21st day of February, 188P. On Mr. Drummond opening the case for the owners, it appeared that this notice, served on the Attorney-General, had been sent 30 In re Estate of Most Rev. B. Finnegan and Others. O'Eagan, J. ^^J liim to tlie solicitor for tlie Board of Cluirltable Donations and 1389 Bequests. The solicitor for that board appeared and asked that March 30. ^|^g matter might stand over until counsel for the Board should be In re Estate instructed. The case came on for argument on the 2nd of March, KFiTnegan 1889. It was agreed that formal notice should be served on the AND Others. j^Q^rd of Bequests 7iunc j^ro tern., and that the matter should be dealt with as if notice had been formally served upon them in the first instance. The facts are as follows : — By conveyance from the Landed Estates Court of the 22nd of July, 1876, part of the lands of Drumshinny, part of the lands of Lackan, and part of the lands of Forthill, containing together 109 acres, were granted to the Rev. Thomas O'Reilly in fee, subject to the tenancies and easements in the schedule thereto mentioned. By indenture dated the 13th of September, 1881, after reciting that the said Eev. Thomas O'Reilly, with the intention of assisting persons desirous of becoming priests in the Roman Catholic Church, to be educated and trained in the diocese of Kilmore, had agreed with the Right Rev. Nicholas Conaty, the Very Rev. John Maguire, and the Very Rev. Francis O'Reilly, who were the then trustees of the Roman Catholic College of Cullies, near Cavan, to grant and convey these lands to them, he (the Rev. Thomas O'Reilly) granted the lands unto the said Right Rev. Nicholas Conaty, Very Rev. John Maguire, and Very Francis O'Reilly, their heirs and assigns, upon trust, after making certain payments to the Rev. Thomas O'Reilly, to apply the rents and profits in assisting in the education and training of priests for the Roman Catholic Church in the diocese of Kilmore, in such manner and at such time and times as the said Riglit Rev. Nicholas Conaty, Very Rev. John Maguire, and Very Rev. Francis O'Reillv, or other the trustees for the time being of the said Roman Catholic College of Cullies should think fit. By deed dated the 19th of April, 1883, after reciting that the said Very Rev. Francis O'Reilly Avas dead, the Right Rev. Nicholas Conaty and Veiy Rev. John Maguire purported to convey to the said Right Rev. Nicholas Conaty, Very Rev. John Maguire, Very Rev. John O'Reillv, Very Rev. Bernard Finnegan, Rev. James Dolan, and Consent of Commissioners of Bequests. 31 Eev. Terence Brady, and to their heirs, amongst other lands, the o'Eagan.J. lands of Drumshinny, Lackan, and Porthill, comprised in the con- '^^ veyance from the Landed Estates Court of the 22nd July, 1876, March 30. to hold upon the trusts and for the intents and purposes, if any, h re Estate „ , , J. Ai f , OF Most Rev. upon which the same or any of them, or any part thereot weie b. Finnegan held, and subject to such trusts, if any, and so far as such trusts ^nd Others. were not legally or equitably a charge on said lands, or any of them, to the use of the said Right Rev. Nicholas Conaty, Very Rev. John Maguire, Very Rev. John O'Reilly, Very Rev. Bernard Finneean, Rev. James Dolan, and Rev. Terence Brady, their heirs and assigns for ever for their own use and benefit absolutely. The trustees entered into agreements with three of the tenants for the sale to them of their holdings under the Land Purchase Acts. On the 17th of September, 1887, these agreements were lodged with the Land Commission. On the 28th September, 1887, the advances were sanctioned subject to the title being satisfactory. Upon the abstract of title being lodged, pursuant to the rules, a question was raised by the Examiner as to the power of the trustees to make a valid sale without the sanction of the Commissioners of Charitable Donations and Bequests. On this query the above requisition was lodged. Messrs. Drummond and Smith for the owners. Mr. G. v. Hart for Commissioners of Charitable Donations and Bequests. O'Hagan, J. [having stated the facts as already given] : — The present owners are the surviving trustees of the deed dated the 19th April, 1883, and they hold the lands the subject-matter of the present application clothed with a trust, which is beyond question a charitable trust. It appears from the argument that the sanction of the Board of Charitable Donations had not been obtained, and, moreover, that it had been applied for and refused. In the instrument of trust there is no power of sale contained. I have under these circumstances to consider the title of the trustees and their power to sell. Previous to the passing of the Land Act of 1870 sales by trustees of charity property to tenants Averc governed by the same 32 In re Estate of Most Rev. B. Fiiinegan and Others. O'Hagan, J. l^^w as salcs bj sucli trustees to any other purchasers. The jggg sanction of tlie Court of Chancery might be obtained under its March 30. ordinary jurisdiction to administer charities upon information In re Estate filed, or in a more summary way by petition, under Sir Samuel OF IVTosT F? K V _ B. FiNNEGAN Romilly's Act (52 Geo. III., c. 101). AND Others. ^j-^ express power to sanction sales of charity lands was bestowed in England upon the Charity Commissioners by the Act of 16 & 17 Vic, c. 137, s. 24; and in Ireland upon the Commissioners of Charitable Donations and Bequests by the 14th section of the 30 & 31 Vic, c. 54. That section empowers the Commissioners, upon application by the trustees or persons administering a charity, to authorise a sale of charity property if on inquiry they are satisfied that such sale would be adyantageous to the charity. Upon this authority being given, the trustees of the charity would, I apprehend, be free to carry out the sale so sanctioned without any recourse to the Court of Chancery. The 4th section of the same Act proyides that before any proceeding in relation to the estate of a charity shall be commenced, notice in writing shall be served on the Commissioners of Charitable Donations and Bequests. The 32nd section of the Landlord and Tenant (Ireland) Act, 1870, enacted that the landlord and tenant of any holding might agree for the sale to the tenant of the holding at the price fixed upon between them, and they might then a]iply to the Landed Estates Court to effect the sale. Section 33 declares that no such sale shall be made unless the landlord be either absolute owner of the land or such tenant for life or other limited owner as therein mentioned. The Avords " other limited owner '' are declared to mean any body corporate, any trustees for charities, and certain other specified trustees. Section 34 directs the Court to make inquiries not only as to the circumstances of the holding, and as to the parties interested therein, but also as to the sufficiency of the price, and of the capacity of the landlord to sell, and if the Court approved of the application, it was to carry the sale into effect. This enactment would appear to clothe the Landed Estates Court with the power of sanctioning sales of charity lands to tenants. I think it clear that the proceeding to effect a sale was a proceeding within the 4th section of the 30th & 31st Vic, c 54, so that the Sales to Tenants hij Trustees for CharUahle Purpo.^es. 33 inquiries directed to be made by the Landed Estates Court were O'Eapan, J. to be made on full notice to the Commissioners of Charitable 1S89. _, - , ., •11 March 30. Donations and Bequests. Every safeguard was thus provided against improvident sales of charitable property. Estatkofths By the Landlord and Tenant (Ireland) Act, 1872, the Board of g^^J^^.^^^^'^ Works is empowered to make advances to tenants for the purchase and Others. of their holdings, though the sale may not have been made through the medium of the Landed Estates Court, if the Board be satisfied with the value of the security. I do not think it could be well con- tended that this Act had the effect of enabling charity trustees to sell to tenants free from any necessity for the sanction of the Court of Chancery, the Landed Estates Court, or the Board of Charitable Bequests. The next legislation on the subject is contained in the fifth part of the Land Law (Ireland) Act, 188L By that Act the Land Com- mission is substituted for the Board of Works as the body to make advances to tenants to purchase their holdings, but no powers are conferred upon them to inquire into and sanction sales made by limited owners, such as were given to the Landed Estates Court by the Act of 1870. A power is given by the 23rd section to the Land Commission to sanction grants of judicial leases and fixed tenancies. The provision as to sales by limited owners is of a very different character. It is contained in the 25th section : — " A landlord of a holdinrr, beinij a limited owner as defined by the 2Gth section of the Landlord and Tenant (Ireland) Act, 1870, may by agreement, subject to the provisions of the Lands Clauses Consolidation Acts (except so much of the same as relates to the purchase of lands otherwise than by agreement), sell and convey such holding to the tenant, and may exercise to the same extent as if he were an abso- lute owner the power of permitting any sum not exceeding one- fourth in amount of the price which the tenant may pay as purchase money, to remain as a charge upon such holding secured by a mortgage, and in case of any advance being made by the Land Commission under the provisions of this Act to the tenant for the purchase of such holding, any such mortgage shall be sub- ject to any charge in favour of the Land Commission for securing such advance, and any such mortgage and the principal moneys o4 111 re Estate of Most Rev. D. Finnegan and Others. 0'JTayan,J. secured tliereby shall be deemed to be part of the purchase money 1889. or compensation parable in respect of the purchase of such holding, and shall be dealt with accordingly in manner provided by the In re Lands Clauses Consolidation Acts, and in the construction of Estate of the Most Eev. the said Acts for the purposes of this section the expression 'the B. Finnegan •iAi>iiii t • a AND Othees. special Act shall be construed to mean this Act, and the expres- sion 'the promoters of the undertaking' shall be construed to mean the tenant." And by section 29 — "Any body corporate, public company, trustees for charities, commissioners or trustees for collegiate or other public purposes, or any person having a limited interest in an estate or any right or interest therein, may sell the same to the Land Commission, and for the purpose of the purchase by the Land Commission of any estate or anv right or interest therein the Lands Clauses Consolidation Acts (except so much as relates to the purchase of land otherwise than by agreement) shall be incorporated with this Act, and in construing those Acts for the purposes of this section the ' special Act ' shall be construed to mean this Act, and 'the promoters of the undertaking' shall be construed to mean the Land Commission, and ' land ' shall be construed to include any right or interest in land." The definition of limited owner adopted by the 2oth section of the Act of 1881 is not the definition contained in the 33rd section of the Act of 1870, but the definition contained in the 26th section, and this is quite intelligible, since the definition in the 26th section embraces every limited owner, while that contained in the 33rd defines limited owners " other than tenants for life." The definition in the 26th section of the Act of 1870 is. as reojards such limited owners as we are now dealing with, as follows : — " Any body corporate, any corporation sole, ecclesiastical, or lay, any trustees for charities, and any commissioners or trustees for ecclesiastical, collegiate, or other public purposes entitled at law or in equity, in the case of freehold land, to an estate in fee simple or fee farm, and in the case of leasehold land to a lease for an unexpired residue of not less tlian 31 years, or for a term of years or of lives renewable for ever or renewable for a period of not less than 31 years." Therefore, under section 25 of the Act of 1881. trustees for Sales to Tenants by Trustees for Charitable Purposes. 35 chanties not otherwise empowered to sell could only make title by O'llagan, J. adoptino- the method prescribed by the Lands Clauses Consolida- 1889. , , , .11 1 March 30. tion Acts \\\ cases of sales by agi'eement made by persons under disability— i.e., in brief, by having a valuation made by two able estate of the practical surveyors, and by paying the purchase money into Court Most Eev. ^ ./ ' ./ 1 ./ !-> i ./ g FiNNEGAN if it exceeded the sum of £200. I am not aware of any sale to and Othebs. tenants having been carried out by a limited owner under the pro- visions of this section, but the legislation is clear. With respect to the greater number of limited owners, tlie powers conferred by the Settled Land Act of 1882 supersede any necessity for having recourse to the provisions of the 25th section of the Land Act of 1881, but as regards trustees for charities the Settled Land Act of 1882 is silent. The Purchase of Land (Ireland) Act, 1885, enabled the Land Commission to advance the entire of the purchase money, retaining a guarantee deposit, and made very important provisions for carry- ing out sales by means of vesting orders, but did not iu any way enlarge or otherwise affect the powers of limited owners to sell. The Land Law (Ireland) Act, 1887, amended the previous law in several very important respects, but down to section 34 there is not anything that could be relied on as bearing on the question of the powers of trustees of charities to make sales to tenants. The 34th section is the section containing the definitions, and amongst these is the following: — "The word landlord shall for the purposes of sales to tenants under the Land Law (Ireland) Acts include any person entitled to an estate as a trustee for sale and any limited owner as defined by section 33 of the Landlord and Tenant (Ire- land) Act, 1870." It Avas strongly urged that this definition had the effect of enabling landlords being limited owners, including trustees for charities, to sell to tenants as freely as if they were absolute owners. I am unable to come to this conclusion. Un- doubtedly the definition is not confined to the Act of 1887 alone, but extends to the whole series of the Land Acts bemnnino- with the Acts of 1870. Whenever, therefore, in these Acts we find the word landlord we should, unless the context otherwise requires, read the word as including a limited owner as defined by section 33 of the Act of 1870. But how far will this carry us? Under the previous legislation a specific but restricted power to sell to tenants 36 hi re Estate of Most Bev. B. Finnegan and Others. 0'Hagan,J. -^yr^g bestowecl upon that class of landlords coming 'vvithin the defi- 1889. nition of limited owners. Trustees for charities entitled to receive March 30 L_ tlie tenants' rents are undoubtedly landlords within the definitions Esta^teo'f THE both of the Act of 1881 and the Act of 1870, and did not require Most Eev. ^|^g definition in the Act of 1887 to make them so ; but they are a B. Finnegan . i i • AND Others, class of landlords who can only make a valid sale either under their instrument of constitution or by virtue of a statutory powder. The Legislature subjected them to restrictions Avhich are certainly not expressly repealed. I find it impossible to say that the definition in the Act of 1887 amounts to an implied repeal. Therefore, as in the present case the trustees of this charity have not obtained the sanction to these sales either of the Court of Chancery or the Land Judges or of the Commissioners of Charitable Donations and Bequests, and have not pursued the courses prescribed by the Lands Clauses Consolidation Acts, I am of opinion that they cannot make a valid title. The second question, with respect to the guarantee deposit, need not be answered, having regard to my answer to the first. Solicitors for Commissioners of Cliaritable Donations and Bequests: Messrs. Maxicell ^- Co. Solicitor for vendors : Mr. Kennedy. [Note. — Sec Purchase of Land (Ireland) Act, 1891, section 14, extending the definition of persons entitled to sell under the Purchase Acts— subject, however, "to such consent (if any) as would be required in case of a sale independently of said Acts."— Ed.] Tn re Estate of Charlotte Shorlf. 37 In re ESTATE OF CHARLOTTE SHORTT, O'Harjan, J. Wife of John Shortt. 18S9. April 27. 27th April, 1889 Married tcoman — Aiimdli/ charged on hinds — Restraint upon . „ anticipation — Sale of lands discharged from annuity— ^lerger — Discretion "/of Charlottb Court 44 §• 45 Fzc, c. 41, sec. 39 — Jurisdiction of Land Commission — Shortt. Land Law (Ireland) Act, 18&1, sec. 48, sub-s. (d). Where a married woman being entitled to an annuity for her sepa- rate use without power of anticipation, subsequently became entitled to an estate in fee-simple in the lands out of which the annuity issued, and the income becoming insufhcient to meet the annuity, entered into an agreement for sale of the lands to the tenant, discharged from the annuity. Held, she was disabled from selling the lands discharged from the annuity. An annuity settled on a married woman for her separate use with restraint upon anticipation does not merge on her becoming entitled to an estate in fee-simple in the lands charged with the annuity. The 48th section, sub-s. {d), of the Land Law (Ireland) Act, 1881, does not confer upon the Land Commission the special jurisdiction given by the 44 & 45 Vic, c. 41, sec. 39, to the Chancery Division of the High Court of Justice with regard to restraint upon anticipation, but is limited to making and enforcing orders for carrying into effect the objects of the Act. ArPLiCATiON on beluilf of tlie vendor to have a question of law as to the sale to the tenant of certain lands in the coui'tj of Kdkenny deterniined by the Judicial Commissioner sitting with the Commissioners appointed under the Purchase of Land (Ireland) Act, 1885, pursuant te the 17th sec. of the said Act. The facts as stated are as follows : — John Ilely Owen, being seized in fee of part of the lands of Bawnballinlock, Co. Kilkenny, by his Avill, dated the 20th March, 1870, devised to his daughter, the vendor, Mrs. Shortt, an annuity of £40, charged thereon, for her separat(j use without power of anticipation, and devised the residue of his real and personal estate to his wife for her life with full power after his death to dispose of same amongst his children as she should by deed or will appoint. He died in November, 1870. By deed of appointment dated the 10th March, 188G, his widow, in pursuance of the power, appointed these lands to her daughter, Mrs. Shortt, and her heirs, and also assio-ned to Mrs. Shortt her own life-interest under the will. The present tenant of the lands held for a statutory term at the judi- cial rent of £31. The income became thus insufficient to meet the 38 III re Estate of Charlolte Shortt. O'Hagan, J. annuity. Mrs. Shortt contracted Avitli tlie tenant for a sale to 1889. hini of the holding for the sum of £665. "When the title came P" before the examiner it -was rejected on the ground of the restraint /« re Estate ^^jpon anticipation. A requisition "vvas then lodged on the part OF Charlotte '■ ^ ^^ ° ^ Shortt. of the vendor to determine the following question of law — namely, " Whether the bequest of the annuity under the clause against anticipation disables Charlotte Shortt from selling the fee, or whether the restraint on alienation is inconsistent with the character of a fee-simple estate ? " Mr. Shortt for the vendor. O'Hagan, J. [after stating the facts as above] : — We have in this case a married lady entitled to a rent-charge issuing out of lands. This rent-charge is held for her separate use without power of anticipation. She is also the owner of the land out of which the rent-charge issues. As oAvner of the land she might, if it possessed any value, sell it subject to the rent-charge. But this is not what is sought for here. What is sought for is that the land should be sold discharged of the rent-charge — that is, in fact, that the rent-charge itself should be sold. Such is the manifest intent of the contract with the tenant. Now, is it pos- sible upon any legal or equitable principle to do this ? It is urged that it can be done on a twofold ground. First, it is said that when Mrs. Shortt became entitled to the estate in the lands the rent-charge became merged and ceased to have a separate exist- ence. If Mrs. Shortt had been sid juris this result would, no doubt, have taken place at common law. "Whether it would do so in equity would depend upon a number of circumstances, such as the express or implied election of the party, the existence of inter- vening incumbrances, and other matters, discussed in a series of authorities, into which it is unnecessary to enter. None of these authorities can have the least application to a charge settled to the separate use of a married woman who is restrained from anticipa- tion. The very object of the restraint is to protect her against herself as well as against her husband. That she has other interests even in the same lands out of which the income subject to the restraint arises, is immaterial. If land be given to a married woman in fee- I Jurisdiction of Land Commission as to Married ]\'o7nen. .39 simple for her separate use without power of anticipation, it is O'Ha oamJ. plain she could not part with the future income during her cover- 1889.^ ture. The law is thus concisely stated in Messrs. White and "^^ "" ^ Tudor's "Leading Cases" in the notes to i7»6»e v. T mnent {\) -. ^'^ ^^^^l^]^^^ "It" (the restraint upon anticipation) "is valid when annexed to Shortt. a gift to a woman for her separate use, whether the subject of the gift be real or personal, or whetlier it be in fee or for life only." It is the same where portion only of the income is so settled. As to that portion her disposition is absolutely fettered — that is to say, apart from the judicial discretion conferred by modern legislation. This brings me to the second point which has been urged. By the 44 & 45 Vic, c. 41, sec. 39, it is enacted tl-at, notwithstand- in/ — Advance between three-fourths and the tchole — Payment in cash.bij tenant — Purchase of Land (^Tr.) Act, 1885, sec. /ft re Estate o (f,) — Construction — Limitation of adrance. OF Count COXSIDINE. The Land Commission has power to advance to a tenant to enable him to purchase his holding any sum between three-fourths and the whole purchase money, the tenant paying the difference between the amo'ant of the advance and the amount of such purchase money, subject to such advance not exceeding £3,000 (sec. 2 Land Law (Ireland) Amend- ment Act, 1888), and subject to the provisions of the Purchase of Lnnd (Ireland) Act, 1885, as to guarantee deposit. Application on behalf of the vendor and of the tenant to have the following question of law, as stated on a requisition lodged the 21st day of November, 1889, detennined by the Judicial Commissioner sitting with the Commissioners appointed under the Purchase of Land (Ireland) Act, 1885, pursuant to the 17th section of the said Act — namely, " Whether, imder the Land Law (Ireland) Acts, the Commissioners have power to advance to a tenant to enable him to purchase his holding any sum between three-fourths and the whole of the purchase money, the tenant himself paying the difference between the amount of the advance and the amount of the purchase money in cash, such advance not exceeding £3,000." O'Hagax, J. :— The question argued before us is a very important one, and is clearly stated in tlic rec^uisition. It arises under sec. 2, sub- sec. («) of the Purchase of Land (Ireland) Act, 1885. Before dealing \\'\\\\ the precise terms of that section it is desirable to traco the eoursj of previous legislation on the sub- Adcance between T] tree- fourths and the Whole. 41 ject. By sec. 44 of tlie Laudlonl aud Tcuaut (Irelaud) Act, 0'Uarjan,J. 1870, the Board of Works were empowered to advance to any 1889. tenant for the puipose of purcliasing Lis holding in pursuance of tlie Act any sum not exceeding two-thirds of the price of the ^'^ « Estate liolding, and thereupon the holding was to be deemed charged Considisk. Avith an annuity of 5 per cent, on the advance for 35 years. By sec. 45 of the same Act when the tenant is desirous to purchase his holding he may apply to the Board to advance any sum not exceeding two-thirds of the amoimt lie may pay for the pur- chase, and when tlie tenant has been declared the piirchaser of a holding, and has paid one-third, or any greater part of the purchase money, the Board may pay the balance of such pur- chase money instead of such tenant, the advance to be repaid by a like annuity of 5 per cent. By sec. 24 of tlie Land LaAv (Ireland) Act, 1881, the Land Commission may, if satisfied with the security, advance sums to tenants to pui-chase their holdings as follows — that is to say, when a sale is about to be made by a landlord to a tenant in consideration of the payment of a principal sum, the Land Commission may advance to the tenant for the purposes of such purchase any sum not exceeding three- fourths of said principal sum, and where the sale is in con- sideration of a fine and fee-farm rent, the Land Commission was authorised to advance any sum not exceeding half the fine : and, again, under sec. 26, deahng with estates purchased by the Land Commission and re-sold to the tenant, the Land Com- mission is empowered to advance to the tenant any sum not exceeding 75 per cent. {i.e. three-fourths) of the price, and to a tenant purchasing subject to a fee-fann rent, a sum not ex- ceeding one-half the fine. The 34th section of that Act, sub- sec. 3, limits the amoimt of any advance made by the Land Ct)mmission to a tenant, except under special circumstances, to £3,000. This section was repealed by sec. 18 of the Land Law (Ireland) Act, 1887, which by sec. 17 provided that no advances should be made by the Land Commission to any one purchaser of land under the Land Law (Ireland) Acts exceeding the sinn of £5,000 in all. The limit of £3,000 has, however, becji restored by the 2iid section of the Purchase of Laud (Ireland) Amendment Act, 1«88, which provides that no advance should 42 la re Estate of James, Count Considlne. O'ffagan, J. be sanctioued to any one purchaser exceeding £3,000 unless, in 1889. the opinion of the Land Commission, the advance of such larger ^°" ' amount is expedient for the purpose of carrying out sales on the Jn re Estate estate of the same landlord. OF Count CoNsiDiNE. Now, throughout the whole course of tliis legislation on the subject of advances by the State to tenants, the statutes care- fully mention the proportion permitted to be advanced as the extreme limit. Any lesser amount might be advanced, and this is obviously reasonable, for the lesser the sum the greater is the securitv. We come to the clause which we have to intei-pret. By sec. 2, sub-sec. (a), of the Land Law (Ireland) Act, 1885, the Land Commission may, if repayment of the advance is secured by a deposit under the Act, and if the Land Commission is satisfied with the security in other reepectg, make an advance to a tenant who is purchasing his holding of tlie whole principal sum or price payable by the tenant instead of the three-fourths thereof mentioned in Part 5 of the Land Law (Ireland) Act, 1881. The question that has been raised is whether the Land Commis- sion has power to advance a sum greater than three-fourths, but less than the entire, purchase money. There does not seem any ground in point of reason for this departure from the whole course of previous legislation, but it is said to be made obliga- tory by the absence of any expression to indicate that once the three-fourths are overpassed the Commission can advance less than the entire. But counsel for landlord and tenant con- tended that the words " instead of the three-fourths " amount to a substitution of the entire for the tliree-fourths, provided there is the security of a guarantee deposit, and that as the three- fourths do not constitute an unalterable proportion, but are merely a limitation of the sum which might be advanced, the amount substituted should be considered in like manner as a limitation merely. It appears to me that this view derives a striking confirmation from another section of the statute of 1885. The seventh section of this Act provides that where the Land Commission has purchased an estate it may sell any parcels which it cannot sell to the tenants in such manner as it mav think fit. and that the Land Commission may advance Advance hdiceen Three-fourths and the Whole. 43 to any purchaser of a parcel under this section, on tlie security O'Hagan, J. of such parcel, " one-half of the principal sum paid as the price." 1889. It then goes on to declare that, " subject to this limitation on !!; — '__ the amount of the advance, the provisions respecting sales to ^"^^'(^^^J/" tenants should apply." The power in this case to advance one- Considimb. half is enacted in terms quite as stringent as the power to advance the entire to tenants under section 2, and yet the Legislature itself treats it as a Hmitation only. 1 am of opinion that the Land Commission has power under the Act of 1885, and subject to its provisions, to make an advance to a tenant of a sum between three-fourths and the whole of the purchase money, not, however, exceeding the amount permitted by the statutes I have referred to, and that the question in the requisition should be answered in the affir- mative. Solicitors for the vendor: Messrs. D'Alton tj' D' Alton. [Note. — See Purchase of Land (Ireland) Act, 1891, sec. 23, sub-s. 2, authorising the retention of guarantee deposit in every case of an advance exceeding three- fourths. —Ed.] 44 In re Estate of the Earl of Eginont. MacCarthy,c. hi ve ESTATE OF THE EARL OF EGMONT. ■^^!|*^; April 22, 1890 Agreement for sale — Contract of tenancy — Sale of adjacent plan- '^ tation — Occupation — Laml Law (Ireland) Act, 1881, sec. 57 — Land Law In »-e Estate (Ireland) Act, 1887, sec. 14, sub-sec. 3 — Tenancy created icitk the object of OF THE Earl ^.(t/e — Discretion of Commission. OF Egmont. A tenant entered into an agreement for the purchase of his holdinfj, part of which he held under a lease, and jjart, consisting of a plantation, under a written contract of yearly tenancy, of even date with the agree- ment for sale. Delay occurred in lodging the agreement with the Land Commission, and the tenant applied for and obtained a decree for speciHc performance of the contract, in the Court of Chancery, against the vendor. Before the advance was sanctioned by the Land Commission an objection was raised (m behalf of the vendor— viz., that the tenant, although holding under a contract of tenancy, was not in actual occupa- tion of the plantation at the time of entering into the agreement for sale, and that the acreage of the plantation exceeded the statutory limi- tation in respect of purchases of additional lands under the Purchase of Land (Ireland) Amendment Act, 1889. Held, in sanctioning the advance, that it was not a question of physical occupation of the plantation. It was sufficient for the purposes of sale that the tenant was entitled to such occupation, holding under a written contract of tenancy, the validity of which was not disputed. A tenancy created with the object of sale is within the rights of the contracting parties, but the Commission will exercise the discretionary power conferred by sec. (2) (a). Land Purchase Act, 1885, and other sections, in deciding on the application for an advance. The provisions of the Purchase of Land (Ireland) Amendment Act, 1889, apply where no contract of tenancy exists, and are not retro- spective. Mr. Trench, Q.C., for tlie vendor. Mr. D. MacCarthy Mahony for the tenant. Application on bolmlf of ]\Ir. M. J. Purcell, tenant purchaser, tliat certain queries in respect of the purchase of his hokling be discharo-ed, and that the agreement for sale be sanctioned. Commissioner IMacCarthy : By an agreement for sale bearing date the 2nd of January, 1889, Lord Egmont agreed to sell, and Mr. IMatliew J. Purcell, the tenant, a^rreed to buy, two lots of land near Churchtown, in the county of Cork. One of these lots, containing 117a. Or. 31p., is held under a lease dated 10th -Tune, 1810, made to the ancestor of the present tenant. It is a residential liokling locally known Sale of AJjactnl Plantation. 45 as Burton Park. The other lot, containing 31a. 3\i. ona /t?« purchaser without notice?" Mr. SheMeton, Q.C., for Mr. Saunders. Mr. T. Pahenham Lcnv, Q-C, for Mr. Fry, a trustee. Mr. Matheson for the vendor. The Solicitor- General and Mr. Thomas Wall for the Crown. The facts of the case are set forth in the judgment. Litton, J. : — The question ^^^tll wliich i will first deal is this— Whether the leo-acy duty claimed by the Inland Revenue on foot uf the rent- Puymcht of Legacy and Succession Duties. 57 charge of £500 Irish (equivalent to £4G1 10.s. 9(/.), to which the Lliton, J Dowager Lady Fermoy is entitled, is a charge upon and payable out of the lands for sale in this matter. 1890. August 4. The late Edward Roche by his will dated 27th August, 1824, ^"^ '« ^^rd . o ' ' Febmot's when settling his estates in the county of Cork, conferred a power Estate. on his nephew and devisee, Edward Roche, whom he constituted first tenant for life, and also on the several other persons entitled in remainder, during their lives, if in receipt of the rents and profits of the estate, by deed to gi-ant, limit, or appoint to the use of any woman he miglit marry, for her jointure and in lieu of dower, " any annual sum or yearly rent-charge not exceeding £500 Irish to be payable tax free and without any deduction," to be issuing out of and chargeable upon all or any part of his said real estate, with such powers and remedies for the recovery tliereof, and such term of years of the better securing thereof, as the person exercising the power might deem fit. The testator died in 1828. He was succeeded by his nephew, Edward Roche, the first tenant for life. The latter died in 1855, whereupon Edmund Burke Roche, first Lord Fermoy, became tenant for life in possession ; and by deed, dated 12tli September, 1855, he exercised the power of jointuring con- ferred by the will of August, 1824, in favour of his wife, the present Dowager Lady Fermoy. He by this deed gi-anted to her for her life an annual sum of £461 10s. 9(/. charged upon all tlie devised estates, Avhich include the lands for sale in this matter, to be paid tax free and without any deduction, with powers of distress and entry, and also limited a term of 200 years for tlie further and better securing the rent-charge. There is no doubt that the rent-charge so created is a legacy {Attorney -Gen. v. Jackson (1) and Stoic v. Davenport (2)), and that the Inland Revenue is entitled to duty in respect of it. This is not disputed, but it has been argued by Mr. Shekleton on behalf of Mr. Saunders, an incumbrancer, that the Crown can only look to the legacy itself and not to the lands subject to the rent-charge, and that while the unpaid duty constitutes a Crown debt from the legatee and the persons Avhose duty it is to pay (1) 2 Cr. & Jci-v. 101. (2) 5 B. & Ad. 359. 58 la re Etsate of Lord Fermoy. Litton, J. 1890. August 4. In re Lord Fekmot's Estate. the legacy, yet the Crown has no right to insist on the duty being paid out of the proceeds of sale of the estate, but should be left to their remedy against the persons liable. It is clear that legacy duty is only payable out of the subject of tlie bequest, unless the will contains words of exemption, showing that tlie personal estate in the case of a pecimiary legacy, or the real estate where the legacy issues out of and is cliarged on land, is to bear the duty. It cannot be questioned tliat a testator may impose on his real estate the obligation ot discharging legacy duty, and create a charge in favour of the Crown for tlie duty. In Gude v. Mumford (1) Alderson, B., says : " It is clear that the principles upon which questions as fb the payment of legacy duty proceed are those which govern the construction of wills. In order to arrive at the decision that a legacy is to be paid free of duty the Coiu-t must be satis- fied that the intention of the testator in that respect has been clearly made out. Prima facie the law must take its ordinaiy couree, and the legacy must be left in the circumstances in which the laAv places it. Nevertheless it is competent for the testator by words to direct otherwise." Directions in a testator s will do not interfere Tvith the per- sonal liability imposed by statute on the parties liable, but the fact that the personal obligation remains does not relieve the real estate if it be in fact charged. In the present case I am of opinion that the lands in question are charged with the duty by force of the testator s will and the deed of September, 1855, exercising the power, as well as with the legacy, that the duty is a charge on the estate, and that the Inland Revenue is entitled to be paid out of the proceeds of sale of the lands charged. With respect to the question whether the legacy duty claimed by the Inland Revenue on foot of the £500 per annum, which Lord Fermoy became entitled to during the life of his father from 1855 to 1874, the matter is not in my mind so clear. This legacy was given by a codicil to the testator's will, dated 22nd .Tulv. 1828. The testator directed that during the (1) 2 Yo. & Coll. Ex. 448. Payment of Legacy and Succession Duties. 59 contiuuauce of every life estate in posscBsion, the person for tlie Lition, J. time being entitled in remainder in tail or for life should be iggo. entitled to an annuity or clear yearly rent-charge of £500 ster- "^"^^ '*' line: duiins: his continuina: so entitled, to be charo-ed and -^"^-eLoRD cjiargeable on all his real estate, with power to distrain for the Estate, same and all costs, as landlords are by law entitled on non- payment of rent in common leases. Having regard, however, to the cases cited in the argnnnent, and particularly to Noel v. Henley (1), Gude v. Mum ford (2), Re Coles Will (3), I have come to the conclusion that in this case also the estate is charged not alone with the annuity, but also with the duty. I do not see how, in principle, this case can be distinguished from those where the general personal estate has been onerated with the duty — where similar words have been held to indicate the testator's intention to give the legacy free. I therefore hold that the contention of the Inland Revenue in this instance must also prevail. III. With regard to the third question put by the requisition, I am of opinion that if Mr. Thomas Saunders be a bond fide pnrchaser without notice, the certificate of the Commissioners of Inland Revenue given pursuant to the 52nd section of 16 & 17 Vic, c. 51, operates to give his mortgage priority over the claim for succession duty in respect of the deduction of £500 a year in Lord Fermoy's succession duty account. I think it perfectly plain that Lord Fermoy — if he now claims exemptions from legacy duty in respect of the £500 a year, on the ground that he never received it — is boimd to pay succes- sion duty in respect of the credit erroneously claimed and allowed in the succession account. Solicitors for Mr. Saunders : Messrs. Gordon cj- Son. Solicitors for Lord Fermoy : Messrs. Keily ^- Lloyd. Solicitor for the Crown : Mr. B. O'B. Furlong. (1)7 Pri. 241. (2) 2 Yo. and Coll. Ex. 448. (3) L. R. 8 E. 271. 60 In re Estate of Elizabeth Glvait. Ma,Carihj,c. In re ESTATE OF ELIZABETH GIVAN. 1890. Dec. 2. CIr. L. T. Rep.). /ft ?-e Estate Doc. 2, 1890 Redemption of rents — Deterimnation of redemption price hij Laud OF Elizabeth Commission on consent of parties— 50 ^ 51 Vic, c. 33, s. 16, sub-s. (3). GlVAN. Where a fee-farm rent of <£26 6s. 9c/., issuing out of lands sold in the matter, was directed to be redeemed, and the parties consented that the Land Commission should determine the redemption price, pursuant to the 16th section of the Land Law (Ireland) Act, 1887, the Court, on evidence that the rent was amply secured, fixed the redemption prine at twenty-five years' purchase of the net rent, after deducting the average poor rate for the previous five years. Application, on behalf of tlie vendor, for an order that the yearly rent of £26 5s. 9t/., created by fee-fann grant of 13th May, 1875, and issuing out of part of the lands of Lower Ruskey, and Upper Ruskey and Tralee, containing together 61a. and 20p., statute measure, situate in the barony of Loughinsholin, and County of Londonderry, sold in the matter, bo redeemed at a piice to be determined by the Land Commission. The rent sought to be redeemed issued out of a holding pro- ducing £100 a year, which the vendor in the matter had agreed to sell to the tenant for £1,396 freed from the rent. The rent Avas payable to the Rev. R. W. Browne, who formerly held the same ^vith other hereditaments, subject to a superior rent of £43 12s. 8c/., but who had purchased the superior rent in 1881 from the Commissioners of Church Temporalities under the Irish Church Act, at tAventy-five years' purchase, three- fourths of the purchase money being secured by mortgage. Mr. Henri/ appeared for the vendor. AJr, Bell appeared for the Rev. R. W. Browne. COMMISSIOXER MacCARTHY : — In this matter I am applied to by the vendor and by the Rev. Robert Wilson Browne, who is entitled to a fee-farm rent of £26 5s. dd., payable out of the lands sold to the occupying tenant, to fix tlie redemption price of the rent, pursuant to the 16th sec- tion of the Act of 1887, and a consent is filed by the parties that Redemption Price of Head-rents 61 such redemptiou piice sliould be determined by the Land Com- MacCarthy, C. mission. The hokhug consists of about 61 acres in the County 1890. Londonderry. Tlie rent heretofore payable by the tenant was £100, and the purchase money is £1,396. The vendor is bound ^'^'^^^^^^^^ by her contract to s^ll discharged of the fee-farm rent. An order Givan, for the redemption has been made. The question now is what redenii^tion price shoukl be fixed ? On behalf of the owner of the rent it is contended that the price should be such an amount as if invested in an authorised investment would yield an income equal to the rent. This is a contention which cannot be sus- tained. Head landlords are entitled to tlie full benefit of the priority of their claims, but to nothing more. On behalf of the vendor in the matter it is contended that, as she sold for 14 years' purchase, this rate or something like it should be the measure of the value of the fee-farm rent. This contention also must be negatived. The head landlord is not bound by a contract with which he had no privity. A fee-farm rent is obviously more valuable than an occupation rent. Considerable debate arose as to whether I sliould receive in evidence the fact that Mr. Browne had redeemed, under the Irish Church Act, at 25 years' purchase, a superior rent payable by him to the Com- missioners of Church Temporalities out of this very parcel of land and other lands, and as to Avhat weight I should give to such evidence. I received the evidence, but I do not think it is entitled to much weight. The Church Acts were passed for different purposes, and purchasers under these Acts were diffe- rently situated. Dismissing from my mind these more or less irrelevant considerations I return to the question : what is the value of a rent of £26 5s. 9(7., issuing out of 61a. in the county of Londonderry, of which the occupation rent is £100 a year? Until a few years since there could be no question that such a rent was worth 25 years' purchase, the lands being situate in a prosperous district, and the occupation rent providing a margin of nearly 75 per cent. It is unhappily the fact that many causes have operated since to reduce the value of agricultural land in Ireland, and I by no means underrate the efi^ects thus produced on agricultural values. l)ut has tliis reduction proceeded so far as to effect the value of a rent payable under the circumstances 62 lit re Estate of Elizabeth Givan. MacCarthy, C. mentioned? I do not tliink so. In this case, moreover, 1 have ^, the concrete fact that this parcel of land has brought in cash a P^<^- -• sum sufficient to purchase the head rent at more than 50 yeare' In re Estate purchase. ^^ Givan!"^ Under these circumstances I must arrive at the conclusion that the rent is worth 25 years' purchase of the net amount after deducting the average poor rate for five years last past, and I accordingly determine the redemption price at that amount. I allow the Rev. R. W. Browne the costs incident to the order for redemption and to this motion witli counsel, hwi he must be at the cost of proving his title to the redemption price according to the practice of this Court (1). The vendors costs to be costs in the matter. Order accordingly. SoKcitors for the owner: Messrs. Glover S,- M'GucUn. SoHcitor for the Rev. R. ^\. BroAvne : Mr. J. C. Bell. (1) It is now the practice, pursuant to the decision in Lord Leconfield's Estate (p. 63, fOiV), to provide for the costs of the ow-ner of a head-rent in making title to and drawing out the redemption price. In cises in which title has not already been shown the title to the head rent should be made on affidavit setting forth concisely the title to the rent and all incumbrances affecting the claimant's interest and whether it is subject to any superior rent.— See Kule 69 of General Eules of loth August, 1S91.-ED. hi re Eatate of Lord Lecon field. ''3 In re ESTATE OF LORD LECONFIELD. Beidey,J. (XXV. I. L. T. Rep. 28.) 1891. Feb. 2. Feb. 2, 1891 Redemption of impropriate tithe rent-cMrge— Question as to costs a '^ Question of laio"— Owner enlillcd to costs of making title thereto, and to lecJ'nfield-s costs of drawing out redemption price— Purchase of Land Act, 1885, s. 17— j^state. Land Laic Act, 1887, s. 15. When, in proceedings under the Purchase of Land Acts and the Rules made thereunder, a question arises as to costs, although under these Rules such costs are in the "discretion" of the Land Commis- sioners, yet by discretion is meant a judicial discretion, and if it is alleged that such costs were granted or withheld contrary to law, a "question of law" arises, which any person interested can require the Judicial Commissioners to hear under section 17 of the Purchase of Land Act, 1885 (1). When an impropriate tithe rent-charge is ordered to be redeemed under section 15 of the Land Law (Ireland) Act, 1887, for the purpose of selling the land on which it is charged, the owner of such tithe rent- charge is entitled to the costs and expenses of making title to such tithe rent-charge, and to the costs of making applicatit)n for the payment to him of the redemption price of such tithe rent-charge. ArPLiCATiON on behalf of the owner of an impropriate tithe rent- chariie issuing out of part of the lands for sale in this matter to have the foUowincr question of law, as stated on a requisition lod^red the 23rd of December, 1890, determined by the Judicial Commissioners, sitting with the Commissioners appointed under the Purchase of Laud (Ireland) Act, 1885, pursuant to the 17th sec. of the said Act— namely, " Whether the applicants, Thomas Fitzgerald and George Mostyn, the trustees of Lord Southwell, are not entitled to be indemnified against the costs and expenses of making title to an impropriate tithe rent-charge of £10 15s. Gd., ordered to be redeemed in this matter, and of drawing the redemp- tion price thereof out of the Bank of Ireland, the same as in other cases of compulsory purchase." The circumstances under which the requisition was lodged are as follows : — The trustees of Lord Southwell were owners of an impropriate (1) An appeal from the decision of any Commissioner acting alone, if on a question of law only, is now to the Judicial Commissioner ; in any other case the appeal will be to three Commissioners, one of whom must be the Judicial Commissioner, one a Commissioner appointed under the Purchase of Land (Ireland) Act, 1885, and the third a Commissioner appointed under the Land Law (Ireland) Act, 1881.— T ide sec. 29 (1), rurchase of Land (Ireland) Act, 1891. 64 In re Estate of Lord Leconjield. Bewley, J. titlic reut-cliargc of £10 15s. GcZ., cliarr^ed on part of the estates of 1891. Lord Leconfiekl, which had been agreed to be sold nnder the ^^^- ^' above Act to the tenants thereon. An application was made in In re Lord ^|^g (jourt of the Irish Land Commission on behalf of the vendor, Estate. under section 15 of the Land Law (Ireland) Act, 1887, to order the redemption of this tithe rent-charge, and fix the redemption price. The owners of the tithe rent-charge applied for the costs of making title to such tithe rent-charge and of applying to have the redemp- tion price thereof paid to them. By an order dated the 2nd July, 1 890, :Mr. Connnissioner Lynch ordered that the tithe rent-charge should be redeemed at the price or sum of £199 Is. 8(/., to be paid into the Bank of Ireland to a separate credit, and gave Lord Southwell's trustees the costs incident to this order, but refused their apphcation for the costs of making title to such tithe rent- charfre, and of applying to have such redemption price paid out of the Bank of Ireland to them. The trustees of Lord Southwell appealed to the Court of Appeal from so much of Mr. Commissioner Lynch's order as refused them the costs of making title to the tithe rent-charge, and of drawing the redemption price of such tithe rent-charge out of Court. The Court of Appeal made the following order, dated August 5th, 1890 : — " Upon motion of counsel, on behalf of Thomas Fitzgerald and George Mostyn, trustees of the estate of Arthur Robert Pyers Viscount Southwell, a minor, in the order appealed from mentioned, made unto the Court on the 1st day of August, inst., and this day by way of appeal from the order herein of the Irish Land Commission, dated the 2nd day of January, 1890, so far as the same refuses the application of the said trustees for costs in respect of making title to the impropriate tithe rent-charge therein mentioned, and drawing out the redemption price in the said order also mentioned. And on reading the notice of appeal, dated the 22nd July, 1890, the said order of the Irish Land Commission, the affidavit of John H. O'Donnell, filed on the 22nd day of July, 1890, and on hearing what was alleged by the said counsel and by counsel for the vendor ; and it appearing that the appellants had required that the questions of law arising in this appeal should be heax'd and determined by the Judicial Commissioner sitting with the additional Commissioners, and that the said questions have not Costs of Redemption of Impropriate Tithe Bentcharge. 65 been so heard and determined— It is ordered that so much of the Bexdey,!. said order of the Irish Land Commission as is appealed against do 1891. stand discharged, and that this case be remitted to the said Land Commission, to proceed therein as to justice sliall appertain, and it ^^^^l^^H^,^ is further ordered that the parties, appellants and respondent, do Estate. respectively abide their own costs of the appeal." A requisition was then lodged stating the above question of law. Mr. D. Fitzgerald, Q.C., and Mr. J. W. Richards, for the owners of the tithe rentcharge, referred to the Land Purchase clauses of the Land Act, 1870, the Land Law Act, 1881, and the Purchase of Land Act, 1885, and the Land Law Act, 1887, and argued that until the last Act there was no statute under which tithe rent- charges could be compulsorily redeemed, and that under these statutes and the rules thereunder incumbrancers were entitled to be paid off, free of costs. They also cited Lloyd on Compensation (1), Re Westminster Estate, Parish of St. Sepulchre (2), Ec p)arte Rai/ner (3), The Queen V. St. Lukes Vestry (4), Earl of Berkeley's Will (5), Re Bethlem Hospital (6), and the cases therein referred to. Mr. Graves Cathreic, for the vendor, Relied on Rule 107 of the Land Purchase Rules, 1887, that such costs were in the discretion of the Commissioners, which had been exercised, so that no appeal lay therefrom ; and also on the settled practice of the Commissioners, which had never allowed such costs, although similar cases had been frequently before them. Bewley, J. : — The question submitted for my decision in this case is : Whether the trustees of the estates of Arthur Robert Pyers Viscount Southwell are not entitled to be iudenmified against the costs and CD expenses of making title to the impropriate tithe rentcharge ordered to be redeemed in this matter and of drawing the redemp- tion price thereof out of the Bank of Ireland, as in otlicr cases of compulsorj'^ purchase ? A preliminary question was raised as to (1) 1877 eel, pp. 63 and 64. (2) 4 De G. J. & S. 232. (3) 3 Q. B. D. 446. (4) L. R. G Q. B. D. 572. (.-.) L. J. 10 Ch. 56. (C) L. 1?. 19 Eq, pp. 456, 457. C)t> la re Lord LeconjiekC s Estate. Beidey,.!. ^vlietlier this was " .1 f|uestion of Law" \Yitliin the meaning of the 1891. J 7th section of tlie Purchase of Lantl (Ireland) Act, 1885, and ' ' altliougli this point was not seriously pressed, I think it right to In re Lokd express my views upon it. In the first pLace, the order of tlie Leconfield s -^ -^ ^ '- Estate. Court of Appeal of the 5th August, 1890, discliarging so much of the order of the Irish Land Commission dated the 2iul July, 1890, as was appealed against, so that the question of law arising on the appeal should, in the first instance, be heard and determined by the Judicial Conmiissioner, seems to imply that this question was svich as might properly be dealt with by the Judicial Commis- sioner ; but independently of the eifect of the order of the Court of Appeal, the question mentioned in the requisition appears to me to be " a question of law " within the meaning of the section referred to. The riahts as to costs in matters under the Purchase of Land Acts are regulated by the 107th of the Rules of the 5th Decem- ber, 1887, made under the powers conferred by the 50th section of the Land Law (Ireland) Act, 1881; and by this rule it is, anion fst other thino;s. provided that— '• The Commissioners shall have full power and discretion as to the giving or withholding of costs and expenses, and as to the persons by whom, and the funds out of which, the same shall, in the first instance, or ultimately, be paid, repaid, or borne ; and may apportion the same amongst such parties, and in respect of interest, rents, or income, and principal or corpus as they shall see fit;" and a prior portion of the same rule contains a provision that " every incumbrancer shall have with his demand his costs properly incurred unless the Commis- sioner shall otherwise direct."' The "discretion" given to the Commissioners by this rule in the awardino- or withholding of costs is a judicial discretion, and is certainly not larger than the discretion exercised by the High Court of Justice in Ireland, under the 53rd section of the Supreme Court of Judicature (Ireland) Act, 1877, and by the High Court of Justice in England under the original English Order LV., r. 1. But if a judge exercises his discretion contrary to well- established principles or settled and defined rules of practice, " a (luestion of law" h, in my opinion, involved, and the decision may be the subject of an appeal. Under the 22nd section of the Pur- JJUcretluH as to Costs. 67 cluisc of Lund Act, 1885, an appeal lies to the Court of Appeal f^"rle!f,J. only on a question of law, and the decision of the Court of Appeal ^1891. in Re Pentland's Estate (1)— a case relating to the redemption of !__ — . ^ , . , . In re Lord a fee-farm rent— shows that the exercise of a discretionary po^^er lj-co^fjeld's might properly be made the subject of an appeal, and is therefore Estate. to be considered a question of law. I think, therefore, that if it is alleged that the costs were with- held contrary to established principles, a question of law arise* which any person interested in can require the Judicial Com- ntlssioner to hear and determine. The facts in the present case are simple and free from contro- versy. The lands of Kllderry, Powerfield, and Kilanily, portion of the estate of Lord Leconfield, the vendor in this matter, were subject to an impropriate tithe rentcharge of £10 15s. Gt7. payable to the trustees of Lord Southwell, and Avith the object of carrying out a sale of the fee in these lands to the occupying tenants, free- from all outgoings, an application was made on behalf of the vendor under the 15th section of the Land Law (Ireland) Act, 1887, to ledeeni the tithe rentcharge. Before any order was made upon this application the trustees of Lord Southwell's estate applied that they should be declared entitled to the costs of investigating and making title to the tithe rentcharge proposed to be redeemed, and drawing out of Court the redemption price thereof. These applications having come on before Mr. Commissioner Lynch, the price or sum at ■which the tithe rentcharge should be redeemed was fixed, in accordance Avith the usual practice of the Commissioners, at 20 years' purchase after deducting the average poor rate payable during the preceding five years ; and by an order dated the 2nd July, 18'JO, it was ordered that as soon as any of the advances in respect of the sales of the lands thereinafter men- tioned had been made, the impropriate tithe rentcharge in question should be redeemed at the price or sum of £199 \s. Sd. (being the price ascertained as before meniioned), and that thereupon the said sum should be paid into the Bank of Ireland, to the account of the Irish Land Commission, to the credit of this matter, and the separate credit of "redemption price of impropriate tit'ae rent- charge, £10 lbs. Gd., payable out of the lands of Kllderry, Power- (!) '22 L. E. (fr.) 010, fiud «;!?(. 11. ir. 68 Tn re Lord LecovJichV.^ Estate. Beidey,J. field, and Kilanily, in the barony of Small, county and city of 189L Limerick, heretofore paid to Lord Southwell's trustees;" and ^^^- "■ after declarino- the trustees entitled to the costs of and incident to In re Lord .| j q^^q^, it was ordered that the application of the trustees for LeCONFIKLD 3 ' 1 • J. 1 Estate. costs in respect of makinp; title to the said mipropriate rentcharge and drawing out the redemption price should be refused. From the latter portion of this order an appeal was taken to the Court of Appeal, when the order of the 5th August, 1890, already referred to, was made. • In pursuance of the order of the 2nd July, 1890, the sum of £199 \s. 8(7. (being, as before mentioned, 20 years' purchase of the net annual amount of the tithe rentcharge) was, in accordance Avith the 73rd Rule lodged in the Bank of L'eland to the separate credit directed by the order, and no steps have yet been taken to obtain payment of the moneys so lodged. From the affidavits made on behalf of the trustees of Lord Southwell's estate in support of their application to ISIr. Commissioner Lynch, it appeared that the title to the tithe rentcharge in question had not recently been investigated, and that the deduction of title would probably be troublesome 'and expensive. In the argument before me it was contended on behalf of the trustees that they were entitled to be indemnified against the costs and expenses referred to in the requisition, both on the general principles applicable to cases of compulsory purchase and also on the special principles to be deduced from the i)rovisions of the Irish Land Acts, dealing with sales to tenants, and the Settled Land Act, 1882 ; and one of the counsel wont so far as to maintain that the sections of the Lands Clauses Consolidation Acts relating to costs were, by implication, incorporated with the Purchase of Land (Ireland) Act, 1885. I cannot see any foundation, however, for this last contention, nor do I think the incorporation of certain provisions of the Lands Clauses Consolidation Acts in the 25th section of the Land Law (Ireland) Act, 1881, has any bearing on the subject now before me. Tiie cases cited by Mr. Richards were, however, extremely valuable as showing that in cases of compulsory purchase, wdien the ri, payable half-yearl}-, on every 1st day of May and 1st day of November. The lands will be sold subject to the future payment of this annuity. This description tells us that this was not a portion of land Avliich had with others been bought by the Land Commission mider the ample povrers to which Mr. Overend referred us yester- day, but that it was land which they had acquired under the provisions of the Ashbourne Acts by advancing a sum of money to the tenant and taking an annuity, as required by those Acts, for a certain number of years, of which 47 were unexpired at the time of the sale. The next statement which is contained in the first page of the document are the words upon Avhich the question in this case turns — " immediate possession will be given to the purchaser." That tells us, what Ave would have implied from the previous statement, that what is sold is not only a fee sim])le but a fee simple in possession. But I quite' agree that it goes beyond that. I agree that it amounts to a statement — its nature I shall after- wards consider — but it amounts to a statement that immediate possession will be given to the purchaser. In my opinion, the whole question in this case is whether that statement is to be deemed a contract or a representation ? We all know that in deal- ing with a contract in writing it is the province of the Court to determine whether any particular statement in it is matter of contract or representation, and that the rights of the parties are 80 TJiC rt-Uh Land Commission v. Maquay. Palles, C.B. different accordiiio; to the statements beino; of one class or the 1891. other. We also know this (and if there were any doubt upon it ^^ ' I might refer to the case of Behn v. Burness (I), which was a deci- Irish Land gj^^-j ^f ^^^ Court of Error in Eno-land), that that which under Commission v. _ , Maquay. one set of circumstances dehors the contract might amount to a contract, may under another set of circumstances amount to a representation only, so that the question must be decided, not alone upon the terms of the written document, but upon such circumstances dehors the contract known to both parties at the time it Avas entered into as according to the general rules of con- struction are fit to be referred to on the question of interpretation. I shall first read the words of the contract itself. "I, General J. P. Maquay, hereby acknowledge that on the sale by auction this 28th day of May, 1889, of the property mentioned in the foregoing particulars, I was the highest bidder, and was declared the purchaser thereof, subject to the foregoing conditions, at the price of £105, and that I have paid the sum of £2^i 5s. by way of deposit in part payment of the purchase money, and I hereby ao-ree with the Irish Land Commission, the vendors, to pay to them the remainder of the said purchase money and complete the said purchase according to the aforesaid conditions." I think it material to observe that that document divides the preceding printed matter into two different divisions, and deals with them differently — first we have what is called in the contract •* the foregoing particulars," and as page 1 of the print is headed ♦'Particulars and Conditions of Sale," and pages 2 and 3, *' Condi- tions of Sale," 1 infer that these foregoing particulars consists of everything upon page 1. The second division is the " Conditions of Sale." It will be observed that the " Particulars " are referred to in this contract for the purpose only of describing the subject matter of the sale, and that the " Conditions of Sale " are referred to as those u[)on which the sale is to be made, or, in other words, as the terms of the contract. I do not wish to be understood as saying that there may' not be statements in the " Particulars " aa distinguished from the *' Conditions of Sale," which may not be such as the Court may construe as amounting to a contract. But 0) 3 B, & S, 751. Injunction to put Purchaser into Possessmi. 81 prima facie the contract is — '' We refer to the particulars for tlie PaUe», C.B. purpose of making certain tlie thing sold, and that thino" so sold isoi. one of us sells and tlic other ])urchases npon the terms and ^ ^^ ' conditions contained in the Conditions of Sale." The reason I J'^^^^ Land Commission' v. make this distinction Ijetween these different portions of the Maquay. printed matter is, that if we find, as possibly we may, somethino- not exactly similar in the conditions of sale and in the particulars, some variance between them, it appears to me that in determining this question of contract the conditions must })revail. and that that consideration will assist us in arriving at a conclusion whether tlu' words in question amount to a contract or constitute a representa- tion only. Havino- said so mu(di, let me refer again to the words that are in controversy — ''• immediate possession will be given to the purchaser." Now even in a contract between party and i)arty these words would leave something to be implied — it at least implies that there should be a demand. I apprehend that on an agreement out of Court between ])arty and jjarty upon particulars such as these, the obligation u[)on the vendor to give ])ossession to the purchaser would not arise until he demanded possession. There must, therefore, be some im})lication in order fully to understand the meaning of the words. Now is the reasonable implication to be drawn, •• immediate possession will be given to the purchaser vpon demaiicf,'" or is it, " immediate possession \\ill be given to the pnrcdiaser accordiinj to tlie course of tlie Land Comniifthion." It must be remembered that the pro\ision in the 21st section of tlu' Act of 1887, authorising the Land Commission to issue an injunction to put the purchaser into possession, is one. knowledge of which nuist be imputed to the purchaser. Under the provisions of the Act of Parliament tlu' purchaser is not entitled to possessi(»n at once, as in an ordinary case: he must demand it ; but the distinction betwei'U an ordinary case and a case under this Act appears to me to be this, that in an ordinary case the requisite demand would be a demand on the lands, or a demand from the vendor who contracted to <^i\e possession; but where the sale is under the Act of 1887 the demand (•ontemi)lated nuist be one of some other character, as, from facts within the knowledge of both parties, n demand on the lands, as upon an G 82 The Irish Land Commission v. Maquaij. Palks, C.B. ordinary sale, would probaMy be futile, and the mode of making a 18'Ji- demand upon the vendors is remdated by statute. The sale is by May 14 r- • '. — the Land Commission of lands which both parties know are in the CoMins^iorr. l^ossession of another person : the only effective demand woidd be Maquav. .^ demand that could be followed by enforcement. That enforce- ment could be effected oidy by a writ directed to the slier iif under the 21st section of the Act, and that writ could bo (»btained only upon the election and application of the purchaser. Mr. Justice Murphy asked Mr. Walker, during the argument, whether this counterclaim could have l)een sustained if General Maquav had not applied to the Land Commission for an injunction, and the necessity of Mr. Walker's ariiument involved the result — which, with his usual lucidity and candour, he at once admitted — that he was driven to argue that e\en in that case the claim could have ])een sustained. Look then at the position in which the Land Commission would have been. It could not have acted under the 21st section, save upon the application of the purchaser; but the purchaser e.i* Injpothesi not being nnder any obligation to apply, the Land Commission might have remained year after year out of possession of the lands, and liable to damages, although the omission to give possession would have been caused by General INLaqnay not applying, and not being bound to apply nnder section 21. In my opinion that involves npon its face an absurdity, and I, therefore, have arrived at the conclusion, that having regard to the sale being one not by an ordinary vendor, but by a commission incorporated by statute for a special purpose, and having statutable powers in relation to the very subject matter of this clause — i.e., giving possession to a purchaser — these words, " immediate possession will be given to the purchaser," mean, upon the true construction of the contract, that such posses- sion will be given, not upon request or demand, but " hy means of an injunction to he granted under the 'iXst section upon the apjyli- cation of the purchaser."' Eeading the words that way am I to treat them as words of contract, or words of representation. Had the words been "Immediately after the execution of the convey- ance, the purchaser will be entitled to apply to the Land Commission for an injunction to put him in jiossession of the land," it would be out of tlic question to i-onstrue them as words W'brih of liepresentatioti. dity (dear implication only, and the rule of law as to the meaning of words is the sanu' MJietlier tliev are expressed or Implied. A confirmation of this view is afforded hy the distiuction wliich I have already alluded to. wlilidi is drawn hy the contract between the particulars on tiie one side and the conditions of sale on the other. There is a condition of sale applicable to this matter of possession — '-The purchaser shall |>ay the remainder of his purchase moiiey on the 11th day of June, 18(S9, to the said solicitor at his office, 24 Fppci' Merrion-strcet, Dublin, at which time and place the ])urchase is to be completed, and the ])nrchaser paying his |)urchase money, is as from that day to be let Into possession.*' It Is not --Is ?/y>(/n" l)ut '■'• as froui that day." The latter are words of relation usually employed in reference to I'lghts as to rents and sncli matters, and do not necessarily invohe an actual ])hysical \d. and Ms. 10|(/., mentioned at Ko. 2 in the schedule of incumbrances in this matter, and claimed as being .(1)8 Price 39.. . . . (•?) 1 J, & L. 3ii KSTATE. 86 III ye Estate of Robert Majm-elL £ewle>/,J. payable to Her Miijc>ty arc not rendored legally irreeox erablc by 189L the provisions of the Acts 48 Geo. 3, e. 47, and 39 & 40 Vict.. March Id, oy ^j j,| j.pj^|^ j^^jj. ],.^yi„fv been in receipt within the last June 6. f^ ^ixty years. Maxwell's The Case is one of considerable importance, because it involves not only the qnestion as to the riglit of the Crown to recover upwards of 170 years' arrears of quit rent in the present case, but also the general question as to whetlier quit rents come within the provisions of the Xullnm Tempus Acts. 48 Geo. 3, c. Al, and 39 & 40 A'iet., c. 37. Before the argument was entered on I suggested that this question would be most pro})erly decided in tlie Exchequer Divi- sion, and that the proceedings in this matter might stand OAer until the decision had been obtained, but the parties were unwil- ling to adopt this course, which would occasion delay Hud expense, and, as they were entitled to do, required me to give my opinion on the question submitted to me. The rent of £1 1.*. 3|f/., referretl to in the requisition, was created by letters patent dated the 18th July, 1069 (22 Car., II.), bv which the Crown oranted to one Elra Palmer, a purchaser from certain adventurers therein mentioned, certain lands for- feited in the rebellion of 164I, including, inter alia, "in the town and lands of Ballyglasse, with the appurtenances, 76 acres profit- able land lying and being in the Barony of Clanwilliam, in the County of Tij)perary," to hold unto and to the use of the said Elra Palmer, his heirs and assigns for ever, in free and connnon socage, yielding and paying thereout the yearly rent of £1 3.'. 0^-(/. of the late currency of Ii-eland. The title to the other rent of 1 1 s. IOA'7. has not been stated, but I assume that it had its oriirin in a similar grant. That these reiils are rents service cannot of course be ques- tioned. The Crown did not come within the o[)cration of the statute Quia Finptores (18 Ed. I., c. 1), and such rents do not cease to have the character and incidents of rents service, because they are small in amount. A >jHil rent is not necessariK- a rent payable to the Crown, and, btrictly speaking, niean.^ a rent payable to the lord, when the tenant goe.- imt r.ud free of all other services, but m Ireland this Ihc English Nullum Tempus Act. 87 term is usually applied to those acreable rents which were reserved Bcwley,J. in Crown grants in fee-simple of lands forfeited in the rebellion of 1391. au^t. ^..^ V1..X.-XW..O ^ i... -^- -i, 1'^^^ 'jeen ^ju„e6. ■ unpaid for a very considerable time, and the following return has —^ been made in respect of them by the Quit Rent Office :—" The Maxwell's lands of 13allyglass Upper are charged with the following (jult- rents, &c. :— 6s. \d., late Irish currency, £1 Is. o^d., British cur- rency; lis. 10|(/., British currency. The rent of ^s. \d. was dis- charged by order of the Exchequer and the remaining two rents api)ear in the insolvent arrears, but which consist of rents now more than 170 years in arrear." No payment having been made on foot of these two rents for uiiwards of 60 years, it has been contended on the part of Mr. Robert James Maxwell, the owner of the lands of Ballyglass, that the right of the Crown is now barred by the 48 Geo. III., c. 47. It becomes necessary, therefore, to consider some of the material provisions of that statute, Avhich according to its title is an Act for quieting possessions and confirming defective titles in Ireland. Section 1 enacts as follows :— " The King's Majesty, his heirs or successors, shall not at any time hereafter sue, impeach, question, or im}»lead an\- person or persons, bodies politick or corporate, in Ireland for or in anywise concerning any manors, lands, tenements^ rents, tytlies, or hereditaments whatsoever (other than liberties or franchises), or for or in anywise concerning the revenues, issues, or profits thereof, or make any title, claim, challenge, or demand of. in, or to the same or any of them by reason of any right or title which hath not first accrued or grown, or which shall not hereafter first accrue or grow within the space of sixty years next before the filing, issuing, or commencing of every such action, bill, plaint, information, commission, or other suit or jiroceeding as shall at any time or times hereafter be filed, issued, or commenced for recovering the same, or in res])ect thereof, unless his Majesty, or some of his ]»rogenitors. predecessors, heirs, or successors, or some other person or persons, bodies politick or corporate, under whom his Majesty, his heirs, or successors, anything hath or law- fullv claime'th. or shall have or lawfully claim, have or shall have been in the actual seism thereof, or liave or shall have been answered b-.- force, and Mrtue of any right or title to the same, 88 hi re Enlale of liohert Maxwell. Bcwley.J. the rents, revenues, issues, or profits thereof, or the rents, issues, 1891. or i)r()fits of any lionors. UKinors, or other hereditaments whereof June (3. ^^'^ premises in question sliall l)e ]»art or i)arcel within the said ' S])ace of sixty vears, or that tlie same liave oj- sliall haveleen dulv In re ^ *' ' ' Maxwell's in charoe to his Majesty, or some of his protrenitors, predecessors, or ancestors, heirs, or successors, within the said space of sixty years, and tluit all and every person or persons, bodies politick and corporate, their heirs and assigns, and all claiming by, from, or luuler them, or any of them for and according to their and every of tlieir several estates and interests whicli they have or claim to have, or shall or may have, or claim to have in the same respec- tivfly, shall at all times hereafter quietly and freely luue, liold, and enjoy against his Majesty, his heirs, and successors claiming by any title which hath not first accrued or grown, or which shall not hereafter first accrue or grow within the said space of sixty * years, all and singular manors, lands, tenemeuts, rents, tytlies, and hereditaments whatsoever (except liberties and franchises) which he or they, or his or their, or any of their ancestors or predecessors, or those from, by, or under whom they do or shall claim, or shall ]ia\e held, or enjoyed, or taken the rents, revenues, issues, or profits thereof by the space of sixty years next before the filing, issuing, or commencing of every such action, bill, plaint, information, commission, or other suit or proceeding as shall at any time or times hereafter be filed, issued, or connnenced for recovering the same, or in respect thereof, unless his Majesty, or some of his progenitors, predecessors, or ancestors, heirs, or successors, or some other ])erson or persons, bodies politick or corporate, by. from, or under wdiom his Majesty, his heirs, or successors, anything hath or lawf uUv chumeth, or shall have or lawf ullv claim in the said manors, lands, tenements, rents, tythes, or hereditaments, by force of any right or title liavc, or shall have been in the actual seisin thereof, or have been, or shall have been answered by virtue of any such right or title, the rents, revenues, issues, or other profits thereof within the said space of sixty years, or that the same have, or shall have been duly in cluu'ge, as aforesaid, within the said space of sixty years." This section has two distinct objects— ///•■>;/, to hx a limitation of the right of the Crown to sue in resp ct of the property The icnii '' Renls'' inclxdes Qnlt Renh. ^9 lUL'UtiuiiLHl, and, second^ to set-ure to tlic subject for ever the pro- Bmhrj, J. pertv, the rights of tlie Crown to wliich have been barred. The first 1891. elause of tlie section prescribes a period ot bniitatioii ot sixty years, juj,g q^ and bars tlie remedy of the Crown ; but this o-eneral enactment is J^^ quahfied by three exceptions or savings, wjiicdi it will be necessary ^^^^'^^^^'' for me to refer to more particularly afterwards. On behalf of the Crown it is submitted that (piit rents are not '• rents" within the meaning of the section of the statute, and it is argued that this is the effect of the decision in 2\ithlll v. Ro(jers ( 1 ), a case of the very highest authority, decided by Sir Edward Sutnlen as Lord Chancellor of Ireland, and Mr. Blackburne as Master of the llolls. It will be found, however, tliat this case did not decide the general proposition contended for. The facts were shortly these : —By letters patent, bearing date the 5tli January, in the thirty-first year of the reign of King Charles II.. the lands of Hifo'instown, in the countv of ]Meath, were granted to Sir Gerald Aylnier and the heirs male of his l)ody, reserving to the Crown the yearly rent of £4 18^-. 5|(/., which Avas equal in amount to the ht of In re ^ f^ Maxwell's the Crown to sue for the recovery of manors, lands, tenements, Estate. . . ' , rents, tithes, or hereditaments, where the title of the Crown has not accrued within sixty years before the commencement of the suit, and the decision merely amounts to this — that in the second saving, Avliere the Crown shall ha^e been answered by force and virtue of any right or title to the same, "the rents, revenues, issues, or profits " of the lands within sixty years, the words refer to the general profits of the estate, and " rents " must be construed to mean such rents as are equivalent for issues and profits. I cannot, therefore, find anything in Tuthill y. Iiogers{l) that would Avarrant me in holding that the "rents" referred to in the earlier clause would not include quit rents; nor, having regard to the language of the clause wdiicli deals with proceedings taken for or concerning any manors, lands, tenements, rents, tithes, or heredi- taments, or for or in anywise concerning the revenues, issues, or profits thereof, do 1 think that the section, so far as rents are con- cerned, can be confined to the recovery of rent as an inheritance— I.e., an estate in rent and not applied to the recovery of rent as a chattel. But the important question now arises whether, e\en though quit rents woidd be included in the general enactments in the betnuninii' of sec. 11, the rio;hts of the Crown may not be preserved by one or other of the three exceptions wdiich follow. The first exception arises where the Crown has been in the actual seisin within the sixty vears. This clause does not exist in the 9 Geo. o, c. 1(3, the English N'nllum Tempns Act, corresponding Avith the 48 Geo. i\, c. 47, and as two such eminent judges as Lord St. Leonards and Lord Chancellor Blackburne could not agree as to its meaning and effect, I do not feel called on at present to exi)ress any definite opinion on the subject. Li Tuthill v. Rogers (1) Lord Chancellor Blackburne, then Master of the Rolls, Jtold that '• actual sei-in " in this clause meant actual [>ossession, and Lord (1) 1 J. A- La X. 1;G ; G Ir. Ej. Rep. i'liK " The Great Roll of the Piper iH St. Leoiiartls, without laying down aftirmatively what was actual Bexdeij^J. seisin, contented In'mself with declaring that the case before him 1891. was not one in which the Crown could be deemed to be in the juue c. ' actual seisin of the land within the meaning of these words. I y^ ■ may observe that there would aiipear to be great ditHculty in Maxwell's . . . " Estate. holdinu" that the Crown had ceased to l)e in "the actual seisin" of a (juit or Crown rent because it had fallen int(» arrear. The second saving has no application to the present case, as there is no pretence that the Crown has been answered by force of its title, the rents, revenues, issues, or profits within a period of sixty years. The third saving, however, is api)llcable if the rents in question have been duly in charge to her Majesty, her progenitors, prede- cessors, or ancestors, within the space of sixty years. Rents payable to the Crown were formerly put in charge in one or other of two waytj — viz., either by the Auditor-General, e.v- ofjicio from the King's grant, or by the Court of Exchequer upon a scire facias on behalf of the Crown. When, as in the present case, a grant of lands was made b}' the Crown to a subject the jiat of the Attorney- or Solicitor-General for the patent or grant was lodged in the Rolls Office, and when the grant was sealed and enrolled, it was not given directly to the l)arty concerned, Init was brou'dit by one of the clerks in the Rolls Office to the Auditor-General to be entered by him. The Auditor-General having ascertained the rent, inserted it in the rolls of the King's rents, and the grant was then deUvered to the party (1). The great Roll of the Pijx- was the principal record in the Kxche Inst., 181), in his Conmientary on the first Nullum. Tempns Act. i\ ,Tas. I., e. ■>, says: — '^Dnly in charge in judgment of law is tlie ]{oll of the Pipe: tor, although a note before the auditor oi- any other niay be a mean to bi-ing it i?i qnestion, anei'ifi<- manors, lands, tenements, rents, tithes, or hereditaments, origin- ally the pro])erty of the Crown, have been held oi' enjoyed by a subject for a })eriod of fiO yeai's — /.f., in the case of a (piit or Crown rent, where that rent has been wrongfully received by a sul)ject for the statutory ])t'iMo(l. The language of tlu- seetiini, differing in that respect from that of the first section of the -4S Ceo. 3, c. 47, deals A\ith })r()eeedings for or in anywise concern- ing any manors, lands, tenements, rents, tithes, or liereditaments (other than liberties or franchises), without adding- the words ''or for or in anywise concerning- the revenues, issues, or jirofits thereof," and a})pears, so far as rent is conceiiied, to contemplate "c* ( 111 i-e Estate of Robert Maxwell. Bewlei/yJ. procccdinjo's toi- tlic vcr-ovcrv of n'lit mk an iiilieritaiK-o, and Dot 1891. the arrears of" a rent. June 9. Uiuler tliese circumstances, T have come to tlie conclusion, 'j reluctantly I confess, that the recovery of tlie arrears of (luit rent In re • ' • • M.wwEu.'s is not affected bv this statute; that the (init rent beino' in charoe, J'.ST VTF ' or*' (lie tliird savino- jn the 1st sectiou ot" the 48 Geo. o, c. 47. is applical)]e. and that therefore I must accede to the application of the Commissionei's of fler ISFajesty's Woods, Forests, and Land Revenues, and declare that these yearly quit rents of £l !.[-FARLAXE. 1891. Nov. 3. f'imtracta fur sale — Sperifw performnnce — Itpffnrf of ^nirprliie and linrilahip Timdenuai-ij of rni)xie foj- the specific ]ierformance of certain agreements Decree for Specific Performance. 05 for sale entered into by tlie vendor in 1888 and 18S9, and subse- McuCarth,/, c. (juently sanctioned by the Land Commission. Tlie a])plication is i,s9i. resisted l>v Mr. Ross on belialf of the vendor. Tlie m-onnds of ' "^' ^' opposition are twofokl — surprise and liardship. Tlie surprise aroso /« ?tEstatk ^ ^ ^ ^ 0¥ James in tliis Avav. At the time tliat the vendor entered into tlie agree- M'Fari.ank. ments in quest ioii lie was engaged as agent of tlie Duke of Abercorn in carrvino- out extensive sales of his Grace's estates in tlii^ Coiiit. It was only at a later period that he was able to give siitticiciit attention to the sale of his own estate, and then he was surprised to discover that his agreements, if carried out, would result in hard- ship to himself. The hardship complained of is stated to have arisen as follows:— The small property in rpiestion is liable to a rela- tively considerable head rent and to a substantial tithe-rentcharge. The vendor is bound by his contracts to redeem both these out- o-oino-s so far as may be necessary to carrv out the sales to his tenants. The head landlord asks 25 years' purchase while the sales to the tenants are at 17 years' purchase. Moreover, a part of the property remains unsold, and it would be a hardship if the entire head rent had to be redeemed out of the proceeds of the sales of part of the property. Fortunately, however, the vendor is not subject to all the disadvantages he supposes. A head-rent is, of course, more valuable than an ordinary agricultural rent, but the head landlord is not able to secure any price he demands. The redemption price may, at the option of the parties, be tixed by arbitration or by the Court. Neither is it necessary for the vendor to redeem the whole head-rent out of the proceeds of the sale of part of the property. The head-rent can be apportioned, and only the apportioned part need be redeemed. The tithe rent-charge can also be apportioned, and redemption is neces- sary only in respect of the lands actually sold. These are matters of daily practice in this Court. It is strange that they appear to have been unknown to the vendor and his solicitor, as would appear by the affidavit filed in resistance to the present motion. NcAertheless, I have no reason to doubt the vendor's statement that he entered into these contracts when his mind was pre-occupied, and that ho would now like to get out of them or to induce the purchasers to increase their offers. But is this sufticieiit reason fiu' refusing a decree for specific performance .' 90 In re Eatate of Jamet^ JlPFarlane. MacCarthj, C. Mr. Ross referred me to tlie case of Lamare \. DLvon (1). in which 1881, admittedly valid contracts were set aside on acconnt of circnm- ^°^' ^' stances outside the contracts themselves and not resulting from In re Estate fheir terms. But I find nothing similar in the case hefore me. M'Faklane. There is nothing in it which all concerned did not know hefore the contracts were entered into, or which »loes not directly result from these contracts in their plain and ordinary signification. Mr. lloss also referred me to the case of Falcke v. Gray (2), in which an opinion was expressed by Kinderley, V.C, that a contract might be set aside for mere inadequacy of price. But this was rather an obiter d'lctnm than a decision ; and Mr. Justice Fry, in his well- known treatise, says that it is opposed to recent current autho- rities (3). Decrees for specific performance have been refused on the ground of surprise : Stanley v. Rohlmon (4). But in the present case I fail to discover what was the surprise. The originating statement, verified by the vendor himself previous to his entering into tiiese contracts, specified this very head rent and this very tithe rentcharo-e, and stated that it was pro])osed to redeem them out of the purchase moneys. Decrees have also been refused in cases in which there was evidence of distress in the party against whom performance was sought : Kcrra^ys v. Hanxard (5); or in which he was an illiterate person acting without advice : Ilclshaii v. Laugley (0). But in the present case the vendor is a gentleman of affluence, of high intelligence, and of exceptionally extensive experience in neo-otiatino- sales under the Purchase Acts, and he was assisted in this transaction by (Mic of the most eminent solicitors in the North of Ireland, who prepared all the contracts and conducted all the proceedings. On the whole, I see no snflScient reason for refusing to Mr. Henry the relief which he asks. I. therefore, by virtue of the jurisdiction vested in me under the 22nd section of the Land Law (Ireland) Act. 1887, hereby decree the specific performance of the agreements in (pu'stion, and I give the i)urchasers their costs of this motion. Solicitor for the vendor : M^r. WilUaui Wilson. Solicitor for the purchasers : ^^r. Patrick Gallagher. (1) L. 11. 0, H. L. 414. (4) 1 n.& M., 527. (2) 4 Drew, 6G0. (•'5) Coop, 125. (3) Fry on Specific Performance, Ed. 1S81, p. 194. (d) 1 Y. & C, cc. 17;-. Richard L. Warren, Lessor; JoseiJi Richanhon. Lessee. 07 RICHARD LANE WARREN, Lessor. MacCanhy c JOSEPH RICHARDSON, Lessee. ^^^T^"^ 22 Dec 22 Dec, 1891 Redemption of Rent (Ireland) Act, 1891 — Under what circum- ____^ . stances is a lessee entitled to redeem — Bona fide occupation — Full agricultural Warren, rent — Redemption price — Adequacy of security. Lessor; To be entitled to redeem under the Redemption of Rent (Ireland) Act, 1891, a lessee must be in hona fide occupation of an agricultural holding, under a lease to which sees. 1 and 3 of the Land Law (Ireland) Act, 1887, do not apply, and must hold at a rent which the Land Com- mission, having regard to the circumstances of the case, holding, and district, considers to be a " full agricultural rent." Where a lessor, on the application of the lessee, consents to the redemption of such rent, but no agreement is arrived at as to the redemption price, the Court has power, on the application of either i:)art3', to determine such redemption price. In so determining the Court must have regard to the adequacy of the security for the nacessary advance. Applicatiqn on behalf of Joseph Richardson, of Ashgrove, Cork, for an order for the redemption of a rent of £150 created by a lease, dated the 3rd day of June, 1871, from Richard Lane Warren to Thomas Browning and Edwin Browning, of parts of the lands of Gortagoulane, otherwise Ashgrove and Dongiiclojne, containing together 96a. 2r. 32p., situate in the Barony of Cork and County of Cork, for the several terms of 991 years and 1 GO years from the 2oth day of March, 1871. Mr. II. D. Connor, for the lessor. Mr. Daniel Mahomj, for the lessee. The facts of the case are stated in the iudsmenti Commissioner MacCarthy : As this is the first case which has been tried under the Redemp- tion of Rent (Ireland) Act, 1891, and the questions which arise are res nova, I think it fair to both parties to give judgment formally. The holding is about three miles south of Cork, the area 96a. 2r. 32p., the rent £150, and the Poor Law valuation £103. For several years previous to 1871 it was in the occu- pancy of Mr. Warren, the present lessor, who expended £1,500 on buildings and other improvements. In 1871 JNlr. Warren demised it to two gentlemen named Browning, for long terms of years, at a rent of £180. The lease contained .reservations of ir Richardson, Lessee. 1)8 liichanl L. Warn'u, Lessor; Joseph Richardson, Lessee. MacCarthy, C. timber and game, a clause against alienation, and a covenant to 182L keep the buildings insured for £1,600. In 1876 the Brownings, -^ ^^''- by a further payment of £600, reduced the rent to £150, and got Warrkn, i\^Q reservation of timber waived and the covenant against aliena- Richardson, tion released. In 1883 the present applicant paid £750 for an ^^^^^^' assif^nment of the lessee's interest. In 1886 the dwelling-house was burned down, and about £1,000 was paid by an Insurance Companv. This sum was not applied towards rebuilding, as pro- vided bv the lease. It was appropriated between lessor and lessee, by mutual consent, in nearly equal shares, to the detriment of the holdino-. The lessee was amongst the first to take advantage of the Redemption of Rent Act, having filed his originating notice within a few weeks after the Act had passed. The lessor filed his consent to the redemption in due course. This consent, in the prescribed form, is conditional on the lessee being entitled to redeem nnder the provisions of the Redemption of Rent Act. The first of these provisions is that the tenant must be in bond fide occu- pation of an agricultural holding. This was admitted. The second provision is that the holding should be one to which section 1 and section 3 of the Land Law (Ireland) Act, 1887, do not apply. This was proved. The third provision is that the tenant should hold his land at a rent which the Land Commission considers to be a full ao-ricultural rent. The lessor disputed this, and his valuer testified that a full agricultural rent would amount to £177. The Chief Inspeetor, however, estimates the full letting value of the holding, as it stands, at £125. Relying on his report I decide that the rent is a full agricultural rent. The crucial question of redemption price remains to be decided. On this question we have the usual conflict of valuations. Mr. Aitchison, for the lessee, swears it to be £2,000. Mr. Joyce, for the lessor, denies this, but does not specifv his estimate. The landlord claims £3,000. In exer- cising an absolutely novel jurisdiction in unprecedented legis- lation I am bound to stick closely to the statute. The statute seems to me to point to the obvious difference between a '^ head- rent" redeemable under the provisions of the Land Law (Ireland) Act, 1887, ami a "full agricultural rent" redeemable under this Act. The methods of redemption are similar, but the things and their values are-different. A • head-ient "' is scarcely touched by Redemjjt'wn uf Rent. 99 the recent depreciation in land valnes in these ishinds. A " full -^facCarthy, C. aimcultural rent " is unfortunately subject to the risks attendant 1891. r^ .22 Dec on such depreciation. The redemption price that Avould be right — 1 '. — in respect to a well-secured "head-rent" redeemed under the ^^'^^^^^l Land Law (Ireland) Act, 1887, would be excessive in respect to PaciiAEDsox, a " full agricultural rent," which is the subject matter of this statute. Moreover, the statute directs that in determining the payment to be made for redemption under the Act the Land Commission is to have " regard to the adequacy of the security." This is a peremptory limitation which cannot be disregarded. In the present case part of the suggested security consists of buihl- ings. The principal building has been burned down, and the landlord has received £500 in respect to it. The remaining buildings are reported to me as unsuitable and in process of dete- rioration. Li these circumstances the inspector reports that no advance in excess of £2,200 would be adequately secured. I do not see any reason to differ from this opinion. Having regard, then, to all the circumstances of the case, the holding, and the district, I order that the rent in question be redeemed by the payment of a capital sum of £2,200 ; and I sanction the advance of this sum for the purpose of such redemption subject to compliance with the Kules of the Land Commission under the Piu'cdiase of Land Acts. Solicitors for the lessor: Messrs. Exham cj- Son and Justin MacCarthy. SoHcitor for the lessee : Mr, John Stanton. 100 la re Estate of Patrick Walsh. ^'"''^"^- Jn re ESTATE OF PATRICK WALSH. 1892. 16 Jan. Agreement for sale — Advance sanctioned — Death of vendor lefore completion of j^ ^g sale — Will — Conversion—AA: ^- 45 T7c., c. 41, sec. 4, sub-sec. 1 — Personal Estate OF representative — Receipt for purchase money. P. Walsh. Patrick Walsh being entitled, under a settlement, to the lands of Jossestown as tenant for life, and in the events which happened with remainder in fee-simple to himself, subject to a jointure of £30 a year or £400 in lieu thereof to Mary Walsh, his wife, in case she survived him, entered into an agreement for sale to the tenant of the said lands. The advance applied for in the agreement was sanctioned by the Land Commission, but the vendor died before the sale was completed. By his will, executed previous to the contract for sale, he devised the said lands to Mary Walsh, his wife, for life, with remainder to Thomas Walsh, his brother, or his children, nominating two executors, and appointing his wife residuary legatee. One of the executors having renounced and the other failing to appear, letters of administration of the personal estate, with the will annexed, were granted to IMary Walsh. On a question as to the power of Mary Walsh, as personal represen- tative of Patrick Walsh, to complete the said contract for sale — Held, that in her capacity of administratrix of Patrick Walsh, and in her own right as entitled under said settlement to annuity or principal sum in lieu, Mary Walsh could convey the fee simple of the lands, dis- charged from all estates and interests under the said settlement, and give a valid receipt for the purchase money, and that she was entitled to £400 in priority to any claims under the will of the testator against the proceeds of the sale. Application on behalf of Mary Walsh, personal representative of Patrick Walsh, deceased, to have the follo\ving questions of law, as stated on a requisition filed the 19th of November, 1891, deter- mined bj the Judicial Commissioner: — Whether, having regard to the provisions of the marriage settlement of the 15th of Feb- ruary, 1854, the will of Patrick Walsh, dated the 10th of May, 188G, and the facts as stated on the abstract of title — (1) Can Mary Anne Walsh, as personal representative of Patrick Walsh, com- plete the contract for sale mider the provisions of sec. 4, sub-s. 1, of the Conveyancing and Law of Property Act, and has she power to give a receipt for the purchase money t (2) Ought the contract be carried out under the provisions of sec. 31, sub-s. 2, of the Settled Land Act, 1882, and to whom ought the purchase money be paid ? {^) Is Mary Anne Walsh entitled to the sum of £400 Death vf VenJor pending Completion of Sale. 101 tneiitioned in the said settlement of the 15tli of February, 185-J, Bewlcy,J. under the provisions thereof? 1892. ^ 16 Jan. Mr. II. ^\iUon, for IMary Walsh. ^ I^ re Estate of Mr. Moloney, for Thomas W alslu p. w.vlsh. Bewley, J. 1 In this case a question has been raised as to the power of Mary Anne AValsh, as personal representative of the late Patrick Walsh (the vendor in this matter) or otherwise, to complete the contract for sale entered into by Patrick Walsh with James M'Carthy on the 22nd January, 18i)0. Under the settlement dated the 5th February, 1854, executed on the marriage of Patrick Walsh with Mary Anne Walsh (then Mary Anne O'Donnell), Patrick Walsh, in the events which happened of there being no issue of the marriage, was tenant for life of part of the lands of Jossestown, in the Barony of Middle- third, and County of Tipperary, with an immediate remainder in fee-simple to himself in the same lands^ subject to a contingent jointure rent-charge of £30 per annum to his wife during her life, in the event of her surviving him, or at her election to a principal sum of £400 in satisfaction thereof. Being so entitled, Patrick Walsh, on the Ifith July, 1889, filed an orlclnatinff statement in the Land Commission, under the Land Purchase Acts, with the object of selling the lands of Jossestown, comprised in the settlement, to the occupying tenants. On the 22nd January, 1890, an agreement was entered into between Patrick Walsh and James M'Carthy, a tenant (as I assume, of portion of the lands I have already referred to), for the sale to him of his holding at the price of £440, provided the Land Commission should advance that sum. The agreement, which was in the ordinary form then in use, provided that in case the Land Commission should advance the sum of £440 to the tenant for the purchase of his holding the landlord would sell and the tenant would purchase the same. On the 30th April, 1890, an order was made by Mr. Commis- sioner MacCarthy that, subject to the requirements of tlu< statutes and general rules applicable to the case being compli(Ml 102 Jn re Estate of Patrick Walsli. Bacley,J. -with, and lo a guarantee deposit of £88 being provided, £440 1892. should l>e advanced to tlie tenant for the purchase of his holdinor. ^"' Upon this order having been made, the tenant, under the 22nd /nrp section of the Land Law (Ireland) Act, 1887, was in a position J'.STATE OF \ I ■> 1 I r. Walsh, to enforce specific performance of tlie ao-reement for sale in case the landlord failed to carry it out. On tlie 7th June, 181)0, Patrick Walsh died, having made his Avill, dated the 10th May, 188(>, whereby he nominated James O'Donnell and James AValsli his executors, and appointed his wife, Mary Anne Walsh, his residuary legatee. James O'Donnell renounced probate of the will, and James Walsh having been duly cited and not having appeared, letters of administration of the personal estate and effects of the deceased, with the said will annexed, were dulv o;ranted bv the Probate and Matrimonial Division of the High Court of Justice to IMarv Anne Walsh, the residuary legatee, on the 14th November, 1890. By this will, which was made long prior to the proceedings taken by the testator under the Land Purchase Acts, the testator had devised his fee-simple property at Jossestown to his wife for life, with remainder to his brother Thomas or his children ; but as there was a binding contract for sale of the lands in question at the date of the testator's death capable of being specifically enforced, the interest of the testator in the property as between his real and personal representatives would, when the advance was made by the Land Commission, form part of his personal estate (see Attorney- General v. Day, (1), Weedy v. Weedy (2). Under these circumstances the personal representative of Patrick Walsh, pursuant to section 4, sub-sec. 1, of the Conveyancing and Law of Property Act; 1881, is empowered to convey the lands to the ]>urchaser for all the estate and interest vested in Patrick AValsh at his death, and consequently Mary Anne Walsh, in her capacity of administratrix of the deceased, and in her own right as entitled under the settlement to the rent-charge of £30 per annum or to a sum of £400 as its equivalent, can convey the fee-simi)le of the lands discharged from all estates and interests arisino; under the settlement, and can sive a valid discharge for the purchase money. (1) 1 Yes., '220. (2)1 J. & IL, 421. Completion of Sale Inj Adiiilni.'dralrl.c. 103 In answer to the (lucstions .suljinittod to lue I shall declare— Bewley,J. 1 . That Marv Anne Walsh, as administratrix of Patriek Walsh, i892. ** 1 ^ T deceased, and in her own right as entitled nnder the settlement L_ to the rent-charge of £30 per annum durino- her life or to £400 j;st\t"^op in satisfaction thereof, can complete the contract for sale in this !*■ Walsh. case and give a valid receipt for the purchase money. 2. That Mary Anne Walsh, under the settlement of the 5th February, 1851, is entitled to a sum of £400 in priorit}^ to any claims under the will of the testator against the proceeds of the sale of the lands. Solicitors for ai)i)licant : Messrs. George J). Futlrell 4' '5y». In re ESTATE OF DANIEL MEARES MAUNSELL. iMmes, i. 1 89'^ Land Law (^[relaiid) Act, 1887, sec. 15, snh-sec. 3 — TitJte rent-cJiair/e payahJe to o pgi^' the Land Commission — Lease of tithes — Redemption — Consent of Trcanunj. In re Eviaik Bv lease made in 1833 certain rectorial tithes and f^lebes were demised ^^ Daniel M. for a term of 104 years and 6 months, subject to a rent of £300. This rent, and also the reversion in the tithes on the determination of the lease, became vesied in the Irish Land Commission. Portion of the tithes became represented by a tithe rent-charge paid to John Christopher Delmege (in whom the interest of the lessee vested) in respect of the lands for sale in this matter : Held, that the tithe rent-charge was " payable to the Irish Land Com- mission " within the meaning of sec. 15, sub-sec. 3, Land Law (Ireland) Act, 1887. ArPLlCATlON on behalf of the vendor to have the following ques- tion of law, as stated on a requisition filed 21st January, 1892, determined hy the Judicial Commission : — " Whether the annual rectorial tithe rent-charge of £10 18,s. 4(1., payable by the vendor to the receiver appointed over the life estate of John Christopher Delmeo-e, out of the lands of Gortnacreha I,ower, in the Parish of Cloncagh, Barony of Connello Upper, and County of Limerick, Avhich have been sold in this matter, is a ' tithe rent-charge payable to the Land Commission' within the meaning of sub- sections 2 and 3 of section 15 of the Land Law (Ireland) Act, 1887/' 'I'he facts as stated on the recpiisition are as follows : — P)V an indenture of lease, dated the 13th dav of December, 104 Tn re Eslate of Daniel Meares Maunsell. Bolme", J. 1833, made between the Vicars Clioral of St. Mary's, Limerick, 1892. of the one part, and Christoplier Dehnege of the other part, the rectorial tithes, great and small, and glebes in the Parish of 7ft re Estate Cloncaffh, Barony of Connello Upper, and County of Limerick, OF Daniel M. . ^ . -^ . , . , . Maunsell. in the Diocese of Limerick, were (inter alia) demised by the said Vicars Choral to Christopher Delmege for a term of 104 years and 6 months, from the 29th day of September, 1833, at the yearly rent of £300, payable half-yearly by the said Chris- topher Delmege to the said Vicars Choral. The rent of £300 became payable to the Irish Land Com- mission, and also the reversion in tithes expectant on the determination of said indenture of lease became vested in the Irish Land Commission. The estate and interest of Christopher Delmege, under the said indenture of lease, became vested in John Christopher Delmege, of Castle Park, Limerick (as tenant for life). A petition for sale of the life estate of the said John Chris- topher Dehnege in (amongst others) the said rectorial tithe rent- charges, demised by said indenture of lease, was presented to the Land Judge, Chancery Division of the High Court of Justice in Ireland, by the Scottish L'nion and National Assurance Company, and an absolute order for sale was made in that matter on the 23rd day of June, 1885. By an order of the Land Judge m.ide in said matter on the 15th February, 1880, a receiver was appointed over the said life estate of the said John Christopher Delmege in the said tithes. The rectorial tithe rent-charge of £10 18^. 4(1. (being a portion of the tithes demised by said lease) was paid by the vendor in respect of the said lands of Gortnacreha Lowei*, in the said Parish of Cloncagh, Barony of Connello Upper, and County of Limerick, which were sold to the tenants under the Land Purchase Acts. Bv an order of the Land .Tudo-e made in the said matter of the estate of John Christopher Delmege, owner, the Scottish L^niun and National Assurance Company, petitioners, dated 20th Nov., 1891, liberty was given to the vendor to apply to this Court to redeem the said rectorial tithe rent-charge of £16 18s. 4d., and to fix the redemption price thereof. Pu'cforlitl Tithes. 105 The qtiesti'on of law came before Mr. Justice Holmes, sitting; ft"lmes, J. as additional Judicial Commissioner, on the 1st of February, 1892. is92. 3 Feb. Mr. Robertson ai)peared for the vei^dor. j^^ ^^ Estate OF Uaxiel I\r, Holmes, J. ;— Maunsell. Bv lease dated 13th December, 1833, the Vicars Choral of St. Mary's, Limerick, devised to Christopher Delmege the rectorial tithes and glebes in the Parish of Cloncagh, and Diocese of Limerick, for the term of 104 rears and G months, at the yearly rent of £300. Portion of the rectorial tithes so demised is now represented by a tithe rent-charge of £16 18s. ^d., payable out of the lands of Gortnacreha Lower, in County Limerick; and the question for my decision is whether tliis tithe rent-charge is payable to the Land Commission within the meaning of the Land Law (Ireland) Act, 1887, section 15, sub-section 3. The preceding sub-section enacts that the Land Commission may, if they think it expedient, order the redemption of any tithe rent-cbarge at a price to be fixed by them ; and sub-section 3 adds the proviso that no such redemption of tithe rent-charge payable to the Land Commission shall be made without the previous consent of the (Commissioners of the Treasury. Up to the time when the Irish Church Act, 1869, came into force, tithes and the rent-charge that took their place were of two l^inds— tithes belonging to or appropriated to the use of some ecclesiastical corporation, sole or aggregate, and tithes which liaving been originally dedicated to ecclesiastical purposes had been alienated therefrom, and which were held and enjoyed by their owners like other private property. • All the first-mentioned class of tithes, or rather the tithe rent- charges that had taken their place, were by the Irish Church Act vested in the Commissioners of Church Temporalities, subject to existing tenancies and leases ; and upon that body ceasing to exist they passed to the Land Commission. When we found that the 15th section of the Act of 1887, after empowering the Land Com- mission, at their own discretion, to order the redemption and fix the price of all tithe rent-charges not payable to themselves, pro- vides that where the tithe rent-charges are so payable the consent 106 /// re Estate of Daniel Meaves Maunsell. Holmes, J. of tlie Commissioners of the Treasury is necessary before the 1892, redemption can be effected, the natural and only intelligible ^ reason for the distinction is that a public department ought not to In re Estate \^q allowed to deal with property in ^vhich it has itself an important OF Daniel M. . . AJauxsell. interest without some external authority to guide and control it. This reason would be as applicable where the Land Commission are owners of the tithe rent-charge subject to a terminable lease as to where they are entitled to it free from any tenancy — other- wise there would be the absurd consequence that the Land Com- mission would have uncontrolled power to order the redemption of a tithe rent-charge that had been demised for a term of years of which only six months remained to run, Avhile at the terminati(tn of the six months it could only do so with the consent of the Treasury. Mr. Eobertson, however, argues that this consequence, absurd as it seems to be, is the effect of the language of the pro- vision. He contends that it is impossible to hold that, as the tithe rent-charge in this matter is uoav payable to Mr. Delmege, it can come within the description of being payable to the Land Com- mission. I am of opinion that the word '• payable " in this section cannot be limited in the way in which it would be necessary to limit it if Mr. Eobertson's argument is to prevail. It cannot mean payable as to particular gales. It applies to the rent-charge generally as it becomes due from time to time. What is redeemed is a tithe rent-charge payable to Mr. Delmege during the term, and to the Land Commission when the term expires. I am of opinion that a natural, and indeed the only possible, construction is to read "payable to" as equivalent to "belonging to" or " owned by," and there can be no doubt that the Land Commis- sion are the owners subject to the lease. I therefore hold that the tithe rent-charge in question is payable to the Land Commission within the meaning: of section 15, sub-section 3, of the Act of ]8b7, and I declare accordingly. Haying come to this conclusion, it is unnecessary for me to direct any notice to be served on the Treasury, which I should have done before decidino- the matter if I had been disposed to take a different view. Solicitors for the A'endors: Messrs. Maunsell anrl Son. Solicitor for J. C. Delmene: Afr. 11. B. Burton. In re Estate of Catlieriue Waddcll Bond St/iuyc. 107 In re ESTATE OF CATHERINE WADDELL BOYD Chson, j. SIlNGE. 1892. 10 Feb. Annuity charged on lands — Consent to and order for redemption — Determination of annuitij before completion of contract — Claim Jnj executors of annuitant -'" ''^ state to redemption money — Contracts for sale of determinable interests. w. B. Synge. A, tlie vendor, being tenant for life of certain lands subject to an annuity of £-24 to B for his life, entered into agreement.*, under the Purchase of Land Acts, for sale to the tenants thereof. By a consent between the vendor and the annuitant it was agreed that, "as soon as advances to a suflicient amount in respect of the sales of the lands shall have been made in the matter, the annuity of £24 . . . charged and payable out of the lands, parts of which have been sold in this matter, be redeemed, and the redemption price ... be and the same is hereby fixed at the sum of £225 T.'*." On the I-3th of January, 1891, this consent was made a rule of Co\irt, and it was ordered that the annuity be redeemed accordingly. The final schedule of incumbrances was lodged, returning the redemption money as an incumbrance. The schedule was ruled on the 26th of May, 1891, and this claim was allowed. Two days after the ruling of the schedule, but before the making of any of the advances the annuitant died. His will was proved in England by his executors, and was resealed in Ireland on the 21st of Aucust, 1S9I. The advances were made on the 27th of June, 1891. Upon the above facts the executors of the annuitant claimed to be entitled to the redemp- tion price. Held — Upon its true construction the consent order was not conditional upon the annuity continuing up to the time of completion, but contem- plated an absolute redemption of the annuity, to be carried out by payment when sufficient funds were in Court for that purpose, and that the executors of the annuitant were entitled to be paid the redemption price. The principle of equity in ordinary contracts applies to contracts for the sale of terminable interests — viz., that a binding contract to be completed immediately or at a future period transfers in equity the ownership. Up to the time of completion the vendor receives the profits, but the substantial property rests in the j)urchaser. If the property is destroyed or ceases to exist the loss falls on the purchaser. Upon tlie allocation of the scla-diile of incuniln-ances in tlii> matter, on tlie claim of Robert Follett 8vno;e and William Make- peace Thackeray Synge, executors of the will of William Webh Follett Synge, deceased, to a sum of £225 7s., being the redemp- tion price of an annuity of £24 formerly payable in respect of the lands sold therein, the following case stating a question of law was submitted l)V the Connnissioner for the determination of 108 Jn pe Estate of Catherine Waddell Boyd Sj/nrfe. Gihson, J. the Judiciiil Commissioner, pursuant to sec. 28, sub-sec. (8j of 1892. the Purchase of Land (Ireland) Act, 1891 : — ^^ ^'''' 1. Under tlie will, dated the 20th day of July, 1858, of Robert o^Fcl5E™BFollettSynge, deceased, the vendor in this matter became, and W. B. Sykge. j^|. ^j^g (jg^tg q£ the consent hereinafter mentioned was, entitled, as tenant for her own life, to the lands described in the first schedule to the originating statement lodged in this matter on the 20th day of November, 1890, subject, inter alia, to an annuity of £24 a year charged thereon by the will dated 31st January, 1854, of Francis H. Synge, deceased, payable thereout to William Webb Follett Synge during his life. Francis Julian Synge, Ledley Browne, and Henry Robert Tweedy are trustees, for the purpose of the Settled Land Acts, of the will of the said Robert Follett Svnge. 2. It was proposed by the said originating statement, and pro- vided by the agreements for sale entered into between the vendor and the tenants upon the said lands, that the sales should be carried out by means of vesting orders. • 3. The said vendor and William Follett Synge signed a con- sent for the redemption of the said annuity, dated the 9th December, 1890, in the words following: — "It is hereby con- sented by and between the above-named owner, on the one hand, and William Webb Follett Synge, on the other hand, testified by their respective signatures hereto, that as soon as advances to a sufficient amount in respect of the sales of the lands hereinafter mentioned, or any of them, shall have been made in this matter, the annuity or yearly rent-charge of £24 (created by the will, dated the 31st day of January, 1854, of Francis Hutchinson Synge, who died on the 24th da}' of August, 1854), in favour of the said William Webb Follett Synge, in the said will called William Webb Synge, for his life, and thereby charged upon and payable out of the lands of Cloonmore, Derryad, Sharvogue, and Ballyclare, situate in the Barony of Moydow and County of Lono-ford, parts of which have been sold in this matter) be redeemed, and that the redemption price of the said annuity or vearlv rent-charge be and the same is hereby fixed at the sum of £225 75., and that this consent be received and made a rule OT order of the Court of the Irish Land Commission." Redemption Price of Annuily. 109 4. By order dated the 13th January, 181)1, the said consent Oi^^on, J- was made a rule of Court as between the parties thereto, and i892. 10 Feb. accordingly it was ordered by the Court that as soon as any of the advances in respect of sales thereinafter mentioned should /p^c1t?e'r\7e have been made, the annuity or yearly rent-charge of £24, by W. B. Synge. the said will charged upon and payable out of the lands of Cloonmore, JSharvogue, Derryad, and Ballyclare, situate in the Barony of Moydow and County of Longford, parts of which had been sold in this matter, be redeemed at the price or sum of £225 Is. 5. The final schedule of incumbrances in Has matter was lodged on the 7th day of April, 1891, and the sum of £225 7s. as the redemption price for the said annuity or rent-charge, was thereon returned as Incumbrance No. 6. 6. On the 26th May, 1891, before the making of any of the advances, the matter came before me for the ruling of the schedule of incumbrances : and the claim of the said annuitant for the said sum of £225 7.?., being the redemption price of the said annuity fixed by the said consent and order, was allowed by me as against the fund to be provided by the said advances. On the 30th day of May, 1891, the demand was vouched by the Examiner on the affidavit of the said William AYebb FoUett Synge, filed the 23rd day of May, 1891. 7. On the 28th May, 1891, however, the said annuitant died. This will was proved in London on the 20th of July, 1891, by his executors, and resealed in Ireland on the 21st of August, 1891. 8. The advances in respect of the sales in this matter were made on the 27th of June, 1891, and a fund thereupon became available for distribution ; and the said schedule came on before me for allocation on the 2nd day of July, 1891 ; and being informed thut the said AVilliam Webb Follett Synge had died, I made an order directing that the sum of £320 19s., being the amount of the redemption money, arrears of annuity, and costs of ])roof, should be retained in Court to the credit of the matter. The question of law which I desire to sulimit for the hearing and determination of the Judicial Commissioner is — Are Robert Follett Synge, Francis Julian Synge, and William Makepeace Thackerav Svngc. the executors of the will of the Uiv William 110 In re Estate of Catherine Waddell Boi/d Sijnge. Gibson, J. Weljl) Follott Sjnge, upuu the facts above stated, entitled to the 1892. saitl sum of £225 Is., the redemption price of the said annuity? 10 Feb. (Signed) Joirx George MacCarthy. In re Estate OF Catherine 2lst January, 1892. W. B. Syngb. ^ The case came before Mr. Justice Gibson, sitting as a Iditional Judicial Commissioner, on the lOtli of February, 1802. Mr. Overeiid, for the vendor. Mr. Decereux Barton, for the executors of the annuitant. Gibson, J. : The point for decision in this case i.s whether a consent order for the redemption of an annuity, at a price agreed upon, is upon its true construction conditional upon the annuity continuing up to the time of completion, and whether the death of the annuitant before completion makes the redemption order inoperative. The facts are set out concisely in the case submitted for the opinion of the Court. The vendor is tenant for life of the lands for sale in this matter, subject to an annuity of £24 to ^V. W. F. Synge for his life. There are trustees for sale of the settled estate for the purpose of the Settled Land Acts. By consent, dated i)th December, 1890, and made between the vendor, described as owner, and the said annuitant, it was agreed that, '• as soon as advances to a sufficient amount in respect of the sales of the lands or any of them (therein described) shall have been made in this matter, the annuity or yearly rent-charge of £24 created by the will (therein mentioned), and thereby charged upon and payable out of the lands (therein described), parts of which have been sold in this matter, be redeemed, and that the redemption price of the said annuity or yearly rent-charge be and the same is hereby fixed at the sum of £225 Is.'' The consent was duly made a rule of Court on the 13th January, 1891. The final schedule was lodged, returning the said redemption money as Incumbrance Ko. G, and tlie same was duly ruled and the claim of the annuitant in respect thereof allowed on May 2Cth, 1891. The advances in respect of Deternnnaiion of An unit j before coi/qjldion of Contract. Ill tlie sales in the matter were made on June 27tli, 18'Jl, and a fund Gibson, J. thereupon became available for distribution. Tlie annuitant died 1892. on the 28t]i Mav, 1891. ^,211^ On these facts it is arcrued on behalf of the owner that the ^'»je Estate ^ _ OF Catherine annuity having determined before the 27th June, the redemption W. B. Synge. contemplated by the consent order cannot take place, while on behalf of the executors of the annuitant it is contended that tlie property in the annuity passed by the contract, and that the loss falls on the estate. The construction of this particular contract and order may be a matter of some difficulty, but tlie general law relating to the sale of determinable interests, whether in or out of Court, is clear enough. The ordinary doctrine of equity aj)plics, and the contract vests the ownership in the ])urchaser, who, no matter how unfavourably the chance bought may turn out, has to submit to the loss. The principle is the same, whether a life annuity is the price or the subject of the sale. Thus, where there was a contract to sell an estate in consideration of a life annuity to the vendor, the contract was held enforceable though the vendor died Avithin two days after the contract: Morthner v. Capper (1). So, in Veseyy. Ehvood (2), the purchaser of an estate, pur autre vie, sold under decree, was held to his bargain though the cestui que vie died before the Master's report could have been confirmed. The circumstance that the contract is not to be completed till a future time makes no difference in the application of the rule. AA^here the plaintiff bought certain premises in consideration of a life annuity to the vendor, to commence in future and to be secured by good and sufficient landed security to the satisfaction of vendor's counsel, the purchaser was held entitled to specific performance, notwith- standing the death of the annuitant vendor before the completion : Jackson v. Lever (3). A case more nearly touching the present is Kenney v. Wexham (4). The purchase was there made by the owner, son, J. delav was caused liy unavoidable circumstances, such as illness or 1892. accident befalling the Land Commissioners or the officers of their ^^ ^^- staff From the point of view of the Court I think it would be In re Estate ,. . 1 OF Catherine better to adhere to the established form of contract n\ judicial w. B. Sysge. sales, and eliminate contincrencies, particularly contingencies de- pending on the action of the Court, its celerity or delay. From another standpoint also it may be convenient to adopt absolute contracts. Were the redemption of an annuity to depend on its being in existence at some future time, it would be quite possible, if after the contract the annuitant fell into l)a(l health, that the owner might interpose obstacles and delay which might have the effect of making the contract abortive. It may be said that this is a remote speculation, but it might occur. In life it is the unforeseen that happens. In the case of a large annuity redeemed for a considerable sum, it is easy to see what an unpleasant and envenomed controversy might arise if the annuitant became ill and died before completion. It is inconvenient that the right of one of the parties should depend on a future event over which he has no control, but which may be largely affected bv the other party, the owner having carriage. Where, however, the contract is absolute, though completion is deferred, it is always the interest of the party redeeming to press forward proceedings in order to stop the annuity running and to get the benefit of the purchase. In my opinion, the transaction contemj)lated by the consent and order following it was an absolute redemption of the annuity to be carried out bv payment in cash when sufficient funds were in Court, and the risk of the chance turning ont unfavourable was thrown on the estate. As the contract is said to be in a form commonly used in Land Commission proceedings, I have gone into the question at some length. The executors of the annuitant are entitled to be paid the price agreed upon, and the question in the case must be answered in the affirmative. The executors should have their costs of and incident to the discussion and decision of the point raised. Order accordingly. 116 Estate of William Thomas Trench and Another. MacCarthy, c. ESTATE OF WILLIAM THOMAS TRENCH AND ^^ ANOTHER. Feb. 4. Setthmenl — Trust funds — Sole Trustee — Receipt clause — 44 Sc 45 Vic ^ c. 41, Trench and Anotheb. Where trust funds comprised in a settlement executed previous to the Settled Land Act, 1882, were vested expressly in a sole trustee. and the settlement contained a power of sale and exchange by the trustee, but no receipt clause, the Court refused payment of part of the capital trust funds to the sole trustee. Application on behalf of Captain O'Connor Hencliy and Charles Granby Burke for an order that the sum of £3,337 12s. 9d., Government £2| per cent. Consolidated Stock, standing to the credit of this matter (being the redemption price of a certain fee-farm rent of £138 9s. 3f/., payable out of the lands sold in this matter), be transferred to Charles Granby Burke as sole trustee of an Indenture of Settlement dated the 9th July, 1873. 31r. Richards, for Captain Hugh O'Connor Henchy and Charles Granby Burke. The facts are set forth in the judgment. C03IMISSI0NER MacCaKTHY : — In this case Mr. Richards, of counsel for Huirh O'Connor Henchy and Charles Granby Burke, raises a question of practice the decision of which involves the allocation of a substantial sum of money, and, if such decision should become a precedent, the dealings with the very considerable amount of trust funds which stand in the name of single trustees, under settlements executed before the Settled Land Act, 1882. The facts, so far as they affect the question at issue, are as follows : — By settlement dated 9th July, 1873, a fee-farm rent of £138 9s. 3d. was conveyed {iiiter alia) to Charles Granby Burke, as sole trustee, to hold (after a life estate therein now deter- mined) to the use of Hugh O'Connor Hencliy for life, with remainders over, and witli power to Hugh O'Connor Henchy to charfTc all tlie property in settlement with a jointure of £000 for Payment to a Sole Trustee. 117 liis wife on liis marriage and with fortunes for younger children. MacCarthy, C. The settlement gives the trustee a power of sale and exchange, ^g^^ with the consent of the tenant, for life ; but it does not contain Feb. 4. any express clause authorising him to give receipts for the capital jn re Estate , , j^ r -i^ OF Wm. Thos. trust money or any part or it. Trench and Ky a sub-settlement dated 30th August, 1887, and made on ANOTHSfi. liis marriage, Captain Hugh O'Connor Hencliy appointed a join- ture of £600 a year for his intended wife, charged the land with portions for younger children, and appointed Messrs. George ^, Morris and Llewelyn Blake trustees to secure the jointure and portions. On the 23rd June, 1891, I oixlered tlie fee-farm rent of £138 9.?. M. to be redeemed for £3,200. This sum, as repre- sented by £3,337 12s. 9f/. Consols, is the subject-matter of the present motion. Mr. Richards applies to me on behalf of the sole trustee of the settlement of 9th July, 1873, and also on behalf of the tenant for life as a consenting party, to pay out the redemption price to the trustee. I directed that the trustees of the sub-settlement of 30th August, 1887, should get notice of this application. They appeared by Mr. Stapleton, who at first objected to payment to one trustee, but subsequently attended to state that he was instructed neither to oppose nor to consent to tiie proposed pay- ment. No question arises as to the personal respectability and trustworthiness of the existing trustee. The settled practice of the Court of Chancery, of the Landed Estates Court, and of this Court, has been to refuse payment of trust funds to a single trustee, however trustworthy and respect- able. The leading case in support of this practice is In re Dickson (1), where Judge Flanagan refused to pay a fund out of Court to a sole trustee, although but one trustee was originally appointed by the settlement. Mr. Richards distinguishes the present case from In re Dickson and claims that his client is entitled to payment on two grounds — (1) that the settlement under which Mr. Burke claims contains a power of sale and investment, while there was no such power ' (1) I. R. 3 Eq. 344 ; 3 Tr. L. T. 578. 118 Estate of William Thomas Trench and Another. MacCarthy, V. !•! the Settlement 1)1 re Dickson ; and (2) that since Judge " jgg2 Flanagan's decision was pronounced the law on the subject has Feb. 4. been altered by the 3<)th section of the Conveyancing Act, 1881, In re Estate and the 39th, 40th, and 45th sections of the Settled Land Act, OF Wm. ThOS. 1 oqo Trench and i-ooZ. Another. 'pjjg ^,,g^ distinction does not seem to me important. The question I have to consider is not as to the power of a single trustee to vary investments, but as to the exercise of my discretion by departing from the usual practices of Courts and directing pay- ment of a substantial sum of capital trust money to a sole trustee. The authority chiefly relied upon by Mr. Richards is In re Orme and Haryi^aoe's Contract (1). It is stated in Wolstenholme and Turner s text-book that the correctness of this decision has been questioned by a Judge in Cliamber (2). At best the case deals only inferentially with the question now at issue, but its pertinency as an authority in this case is impaired by the fact that Vice- Chancellor Bacon, in deciding it, mentioned as his ratio decidendi that the settlement gave express power to one trustee to give receipts for capital moneys received by him under the settlement. In the settlement now under consideration there is no such power ; and in Cox- v. Coay (3) it was decided that such a power could not be inferred from a power of sale and exchange. In his second contention Mr. Eichards is on more solid ground. The 36th section of the Conveyancing Act, 1881, vests in trustees a statutory power to give receipts for trust funds payable to them, and this power extends to a single trustee and to trusts created before the commencement of that Act. The 40tli section of the Settled Land Act, 1882, enacts that where one trustee is empowered to act the receipt of such one is suflficient. Tlie 45th section, sub-section 2, of the same Act, dispenses witli notice to two trustees when a contrary intention is expressed in the settle- ment. The 39th section, which directs that capital moneys arising under that Act shall not be paid to fewer than two trustees unless tlie settlement authorises the receipt of capital trust money by one trustee, is not retrospective. If, therefore, this were a (1) 25 Ch. Div. .'595. (2) Conveyancing and Settled Land Acts, 5 Ed. 272. (iJ) 1 K. and I. 251 ; Lewin on Trusts 460. Practice of Courts to require Two Trustees. 119 question of wliether a purchaser could object to pay the trustee I MacCarthy, C. would see no sufficient reason for such an objection. But I have ^ggg, to consider a much wider question— namely, whether on grounds 'P^^- 4. of pubhc poHcy it would be a wise exercise of judicial discretion in re Estate „, ».,,,, ,• 1 ofWm. Tho.s. to direct payment of a large sum ot capital trust money to a single rY^^^ca and trustee, however respectable and trustworthy. This question I Another. feel bound to answer in the negative. It is evident from the 39th section of the Settled Land Act, 1882, to which I have just referred, that the Legislature intended to discourage payment of capital trust funds to fewer than two persons, unless by express authority in the settlement — an authority which does not exist in this case. The Settled Land Act of 1890 similarly contemplates payment to not less than two trustees. This has continued to be the general practice of the Courts, notwithstanding the discretion conferred by the enact- ments to which Mr. Richards has called attention. It is a prac- tice founded on grave reasons of public policy and justified by experience. Even as between individuals it is doubtful whether a prudent man should consent to act as sole trustee, or wliether trust funds should be left at the disposal of any individual. I have to deal with the matter, however, not as an individual, but as a Court, and I must decline to depart from the safe and reasonable practice sanctioned by the authority of tribunals so much greater and so much older than mine. I must therefore refuse the present motion, while fully recog- nising the ability and learning by which it has been supported and the unimpeachable personal character of the trustee in question. No serious inconvenience can arise from this decision, as I have power to appoint a second trustee on proper application, and by a very simple and inexpensive process. Solicitors for Captain O'Connor Ilenchy and Charles G. Burke: Messrs. S. S. cj- E. Beeves cj* Sons. Solicitors for George Morris and Llewelyn Blake, trustees of settlement of 30tli August, 1887 : Messrs. E. cj- G. Stapleton. ^4-vJUL iy24 X-f^^ INDEX. Abercorn, The Duke of: In re estate of . . . Advances : addition of stump duty and registration fees to between three-fourths and the whole cause shown against limitation of • • . , security for . Agreement for Sale : by vesting order, jurisdiction in case of exceptions in .... mistake in . of same date as contract of tenancy of additional lands .... Agricultural Rent : lessee redeeming must hold at valua of . Alienation : restraint on, during coverture Annuity : determination of, before comph-tion of contract restraint upon anticipation of redemption of ... ^ Appeal : on question of jurisdiction light of, from exercise of discretionary powers Apportionment : and redemption of head rents of fee-farm rents . , , • _ Arrears of : annuity, action for recovery of quit rent, recovery of . , , Ashbourne, Lord : judgment of. .... rage 48 3 40 15 41 16-99 51 50 50 45 44, 5.3 98 98 38 111 38 109 17 6G 95 19 72 85 19 K 122 Index. Bank of Ireland : payment into, of redemption money Barry, Lord Justice : judgment of . • . Bewley, Mr. Justice, judgment of: Jn re Lord Leconfield In re Kobert Maxwell In re Patrick AValsh Board of Works : advances by . Bona fide occupation : lessee redeeming must be in Page 5,8 21 63 85 100 33 98 Cause : shown against making advances Certificate : of Inland Revenue Commissioners . Charitable purposes : trustees for ..... Claim : by executors of annuitant to redemption money Conditions: of sale, by Land Commission Consent : of Commissioners of Charitable Bequests to sales by trustees for charities .... of Treasury to redemption of tithes to redemption price of rent-charge being fixed by Land Commission ..... to redeem under Redemption of Rent Act . Confidine, James Count : In re estate of .... • Consideration : inadequacy of, effect of . Construction of: 14th Section of Purchase of Land (Ireland) Act, 1885 15th „ Land Law (Ireland) Act, 1887 - 34th ,, ,, ,, „ conditions of sale . . . • • 15 59 29 111 29 105 27 98 40 96 2 24 35 81 Index. 123 Contract : existing at death of vendor, effect of for sale, specific performance of for sale of terminable interests of tenancy, executed witb the object of sale Conversion . . .... Costs : discretion as to . of making title to impropriate tithes of redemption of impropriate tithes priority of owner's costs of sale where property is taken co/npulsorily Page 102 . 10,94 111 47 . 102 66 70 70 4 69 Death: of tenant-purchaser before execution of conveyance . 1 1 of vendor pending completion of sale . . .101 D|gcree ; for specific performance . . . • ,96 Defence: to action for specific perfoi'mance . . . .95 Devisees: in occupation of holding refusing to carry out contract . 1 1 Discretion: of Land Commission as to costs . . . .66 as to advances . . .47 as to married woman's property settled to her separate use . . .39 EccU'siastical Titlies: consent of Treasury necessary for redemption of di,stinction between, and impropriate tithrs how originally created subject to terminable lease . Estates : purchase and re-sale of . Executors of Annuitant: claim by, to redemption price of annuity Exemption from Legacy Duty 10 j 24 23 106 107 58 124 Index. Fee-Farm Rent: apportionment of . redemption of . redemption price of, fixed . Fermoy's Estate : In re Lord . . . . • Final Schedule : see schedule Finnegan : The Most Rev. B., and others, In re estate of FitzGibbon, Lord Justice: judgment of . . . • Gibson, Mr. Justice : judgment In re C. W. B. Synge Givan, Elizabeth : In re estate of . . • Gross Sum : sales for . . . - • Page 17 19, 60 62 1, 35 29 20 107 60 Hanrahan, James "William : In re estate of . • • • • Head Rent : apportionment and redemption of . jurisdiction as to redemption of, without apportionment redemption price fixed payment of . - . referred to Land Commission value of • llolrats, Mr. Justice: judgment, In re D. ISI. Maunsell . Impropriate Tithes : see Tithes. Injunction : to put purchaser into possession Intention of Testator : as to payment of legacy duty does not interfere with personal liability to legacy duty 95 20 . 28, 62 28 • 27 61 . 27 61 103 81 58 5S Index. 125 Irish Land Commission v. Maquay Instalments : sale in default of payment of Page 71 72 Jurisdiction of Land Commission : as to married women's proi^erty settled to separate use to apportion and redeem fee-farm rents to decree specific performance to enforce, rescind, or vary contracts to order redemption of impropriate tithes to fix price of impropriate tithes 39 19 52 51 22 7 Lease : of tithes ■ • • • • Legacy Duty: exemption from liability of legatee to .... payment of . real estate charged with .... Lessee : redeeming must hold at full agricultural rent when entitled to redeem .... Lessor : consent to redemption by Limited Owners; sales by Leconfield, Lord : ■ judgment, //; re , Limitation of advances • • • • Litton, Mr. Justice : judgment. In re Lord Fermoy Lynch, Mr. Commissioner : judgment. In re Lord Fermoy's Estate In re, Estate of J. W. Ilanrahan -^" '"^ 1) George Quinn and others ■^" ''e „ . The iMartjuis of Waterford ^" '■'^ ii TheDuko of Abercorn . 105 58 58 56 58 98 97 98 3.3 63 41 55 1 5 10 20 48 126 Jiuh'd'. Landed Estates Court : tenants pending sale in Act, sections 37-47 . Act, sections 68-72 . Land Clauses Consolidation Acts Land Law (Ireland) Act, 188! : Section 24 . 9n . h-87 Page 5) ^t^ . 11 .57 . 1) 48 300 Land Law (Ii eland) Act, 1 Section 14(3) 11 1.5 . 11 1.5 (2) 11 15 (:)) 11 16 . 11 16(3) 11 22 . ^^ 34 . Land Law (Ireland) Act, 1 section 14. Landlord and Tenant Act, section 26 33 . 891 1870 14 52 18 33, 34 13 35 13 46 39 46 7 ,G4 7 ,22 105 17 27 10 ,53 35 36 34 32 MacCarthy, Mr. Commissioner : judgment, In re Estate of Edward O'Kelly P. J. Watson 11 11 11 11 11 11 11 11 11 Earl of Egraont . Elizabeth Giva;i . James M'Farlane W. Thomas Trench and another 13 22 44 60 94 116 AVarren, Lessor ; Richardson, Lessee 97 71 Maquay v. Irish Land Commission ..... Married Women : property settled to separate use of, jurisdiction of Land Commission as to . • • • .39 property settled to separate use of, jurisdiction of Chancery Division as to . . . . - .39 restraint upon anticipation by . • • .37 Index, l^Iiixwell, Robert : //( re estate of LlaunsLll, U. M. : In re estate of M'Farlane, James : In re estate of Merger Mistake in agreement for sale Naisb, Lord Justice, judgment of : In re Pentland's estate Nullum Tempus (Ir.) Acts Occupation : W for purposes of sale . lessee redeeming must be in bona fide O'llagan, Mr. Justice, judgment : In re Most Rev. B. Finnegan and others In re Count Considine In re Charlotte Short t 127 Page 85 103 94 38 50 ajment in cash by tenant of portion of his purchase money P Pcntland: In re estate of Personal Representative: completion of eale by 21 86 45 98 29 40 37 O'Kelly: ^^ In re estate of Edward . • . • • ■ Order of Redemption : ^ ^^ effect of • • • ■without apportionment . • • • * 1.9 Palles, Chief Baron : , r i iudoment in Iri.h Land Commission v. M-.-quay, and •''',. . . 71 counter-claim 40 17 103 128 Index Plantation : sale of adjacent ..... Possession : rights of purchaser to, on sale statements in conditions of sale as to Power of trustees for charitable purposes to sell . Practice as to redemption of rent-charges . Price : redemption, of impropriate tithes . of rent-charge .... of fee-farm rent . . . ' Priority of owner's costs of sale .... Purchase of Land (Ireland) Act, 1885: construction of section 14 . 1) 5} ■^A .... ,7 5? '" . • . • Purchase and re-sale of estates .... Purchase money : advances between three-fourth and whole . receipt for, where vendor dies before completion of sale 45 81 79 31 28 8,25 28 62 4 2 16 51 2 40 103 Quin : estate of George, and others . . . .10 Quit rents : " in charge," effect of . . . . .91 arrears of, not affected by the Nullum Tempus (Ireland) Act, 1878 ...... 94 arrears of, recovery of . . . . .85 report of Royal Commission as to price of ... 9 when " in charge " . . . . . .92 Real Estate : may be charged with legacy duty . . . .58 Receipt for purchase money where vendor dies before completion of sale . . . . . . .103 Receipt-clause in setilements . . . . .118 Rectorial tithes . . . . . . .105 Jnde.v. 129 Redemption : of annuity, order fur .... rent reserved by lease .... fee-farm rents ..... impropriate tithes .... impropriate tithes, costs of . impropriate lithes held under fee-farm grant rent-charge ..... tithe rent-charge held under lease for years with reversion to Land Commission effect of order for ..... Repemption-prlce, costs of showing titie to Redemption-price of leasehold rent, jurisdiction to determine Redemption of Rent (I'-eland) Act, 1891 . Rent-charge created by Will, duty payable on Representation : distinguished from contract Restraint : upon anticipation of annuity on lands for sale Restrictioris in respect of sales by trustees for charitable purposes Page 109 98 19, 60 22 63 5 27 103 113 70 98 97 57 83 38 36 81 45 37 72 29 47 Sale: construction of conditions of .... of plantation, as adjunct to holding of lands, where annuity charged thereon without power of anticipation ...... in default of payment of instalments of trust property by trustees for charitable purposes tenancy created with the object of . Schedule, final, priority of costs of sale on ... 4 Security : adequacy of, for advances . . . . .16,99 Separate Credit : redemption price of tithe rent-charge i)laced to . .8 rent- charge „ . .28 Shortt, Charlotte: In re estate of . . . . . .37 Single Trustee : practice of Court of Chancery in reference to payments to 117 130 Index. Sole Trustee : payment of trust funds to . Specific Performance : of contracts for sale „ ,, of terminable interests Stamp Duty and Registration Foes: payment of . Statutes: 48 Geo. III., c. 47 . 52 Geo. IIL, c. 101 . 16 & 17 Vic, c. ol, sec. •52 . 30«fe 31 Vic, c. 54, sec 14 . 39 & 40 Vic, c 37 . 44 & 45 Vic, c 41, sec 4 (!) 44 & 45 A^ic, c 41, sec 36 . 44 & 45 Vic, c. 41, sec. 39 . 45 & 46 Vic, c 38, sees. 39, 40, 45 Statutory Powers : sale by trustees for charitable purposes Subletting : of holdings in grazing and con-acre Succession Duty : payment of . . . . liability to . Synge, Catherine Vv'addell Boyd, In re estate of Page 119 10,94 112 87 32 59 32 93 102 118 30 118 32-34 15 55 59 107 Tenancy : created with the object of sale . . . . 20, 47 Tenants : for temporary convenience pending sale in Land Judges' Court . . , . . ■ . 14 payment in cash by ..... 40 Testator : intention of as to payment of legacy duty . . .58 Three-fourths of Purchase-AIoney and whole: advances between . . . . . .41 Judex lol Page Tithes: conditional order for redemption of ... 9 costs of redemption of, and showing title to . . 63 held under lease for years with reversion to Land Commis- 105 6 sion impropriate, \\A<\ under fee-farm grant imprcipriate and ecclesiastical power of Land Commission to order redemption of report of Royal Commission as to redemption price of Treasury : consent of, to redemption of tithes Trench, W. T., and another : //) re estate of . • • • • Trustees for charitable purposes, sales by . Trusts Funds: application to pay, to sole trustee . "Validity of Deeds : questions as to . Vendor : death of, before completion of sale . Vesting Order : jurisdiction of Land Commission where sale by Walsh, Patrick : la re estate of Warren, Lessor : Richardson, Lessee Waterford, Estate of the Marquis of Watson, Estate of P. J. . Will, informal executed by vendor prior to contracts for sale 23, 105 9 105 116 29 116 102 51 100 97 2G 22 11 102 Printed by Jons Falcoser, 53 Upper Sackville-sticct, Dublin. [ESTABLISHHD 1S67.] THE IRISH LAW TIMES AND SOLICITORS' JOURNAL, The only exclusivehj Legal Newspaper Published in Ireland, under the Sanction of the Council of the Incorporated Law Society. CONTAINS: Editobial comments on kgal topics, and Original Articles on comparative juris- prudence, and all subjects of interest to both branches of the profession — Papers read before Legal and Literary Societies — News of special legal interest — Selected Extracts from the English, Scottish, Colonial, and American legal serials — Notes of Cases, decided by the Irish Courts, from week to week — Abstracts of recent English decisions — Full Reports, or abstracts of important foreign decisions, not elsewhere accessible in this country — Critical Reviews of legal publications — Correspondence on matters of profes- sional interest — Notices of Appointments and Promotions — Obituary Notices, &c., &c. The Irish Law Times Reports, specially prepared by members of the Bar, of the decisions of all the Superior Courts, besides Circuit, County Court, and Land Sessions' cases ; an Annual Digest of all Irish decisions recorded in those Reports, and in all contemporary legal publications ; and the Statutes of the year, relating to Ireland ; — are published uniform with the Journal, and presented Gratuitously to its Subscribers. To LAW STUDENTS the Journal affords essentially useful information ; the '< Law Students Journal" containing: — Early Notices of Examinations — Examination Papers — Lists of Successful Candidates — Calls to the Bar — Admission of Solicitors, &c. To the LEGAL PRACTITIONER the "Court Papers"will be found of special utility, supplying him with lists of Court and Office business for each ensuing week, combined with a record of business previously transacted. These divisions of the paper supply an amount and kind of information which no other publication affords. To ADVERTISERS there are peculiar advantages offered by the Irish Law Times. Issued under the sanction of the Council of the Incorporated Law Society ; supported by the Dignitaries and most influential members of the Legal Profession ; and adopted, as an advertising medium, by the Equity Courts, the Court of the Land Judges, and the Court of Bankruptcy ; it commands an important and continually increasing circulation amon:'Xst the most moneyed classes in the community. It is transmitted to all parts of Ireland, received and filed in different official establishments. Chamber of Commerce, and public institutions, and the Law Libraries of England, Scotland, America, and the Colonies, and preserved by its subscribers for ultimate binding in permanent volumes. Indexes, and a Directory to Legal Postings, are included in eacli year's publication. YEARLY SUBSCRIPTION, £1 10s.; SINGLE COPY, 9d, Delivered free in Town or Country. Office: -53 UPPER SACKVILLE-STREET, DUBLIN. i\'(3iy ready, J fed. Svo, (330 pp., Price 21s. in cloth ; or in full laio calf, 25s. THE JUEISDICTION AND PEACTICE OP COUNTY COURTS IN IRELAND IN EQUITY, LUNACY. AND PROBATE CASES, BKINO A COLLECTION OF STATUTES, RULES, AND FORMS RELATING TO THIS BRANCH OF COUNTY COURT JURISDICTION AND PRACTICE ; WITH KOTES UNDER EACH SECTION AND RULE, AND MANY ADDITIONAL FORMS. BY E. E. OSBOENE, M.A., UAERISTER-AT-LAW. DUBLIN: JOHN FALCONER, 5:3 UPPER SACKVILLE-STREET. /// the I'ress. A SECOND EDITION OF CHERRY AND WAKELY'S I E I 8 H LAND LAW AND LAND PURCHASE ACTS, WHICH WILL CONTAIN ALL THE STATUTES PASSED IN REFERENCE TO THE RELATION OF LANDLORD AND TENANT IN IRELAND SINCE THE PUBLICATION^ OF THE FIRST EDITION DOWN TO AND INCLUDING THE LAND PUECHASE ACT, LS91 ; IT WILL ALSO CONTAIN THE EARLIER STATUTES ON THE SAME SUBJECT, COMMENCING WITH THE LANDLOED AND TENANT ACT, 1860, WITH NOTES OF ALL CASES DECIDED UNDER EACH SECTION DUBLIN: JOHN FALCONER, o.'i UPPER SACKVILLE STREET, [JL192. Li the Pressi THE FISHERIES (IRELAND) ACTS. COMPKISIXG THE STATUTES IX FORCE IN IRELAND RELATING TO SALMON, TROUT, POLLEN, EEL, AND OYSTER FISHERIES. BY H. D. CONNEK, M.A., BARRISTEK-AT-LA\V. DUBLIN: JOHN FALCONER, .53 UPPER SACKVILLE-STREET. (i. ,t;^V.?OKMEO Uli^ ( ^ I i \ '^4JUL1924 ) A A 000 684 105