Colles and Another v Hornsby and Another

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 27 November 1912
• Court: King's Bench Division (Ireland)
• Date: 27 November 1912

Colles And Another

and

Hornsby And Another (2).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1913.

Land Purchase — Superior interest — Fee-farm rent — Redemption — Purchase money insufficient to provide for full redemption price — Right of owner of rent to sue on covenant for payment — Irish Land Act, 1903 (3 Edw. 7, c. 37), section 16, sub-s. 1 — Land Law (Ireland) Act, 1896 (59 & 60 Vict. c. 47), section 31, sub-s. 1.

Held, by Palles, C.B., and Boyd, J., Gibson, J., diss., that the plaintiff was entitled to judgment for the amount claimed.

Motion to enter judgment for the plaintiffs, or in the alternative for a new trial.

The action was brought on a covenant contained in an indenture, dated the 3rd August, 1866, made between the Rev. William Morris Colles of the one part, and Robert Higginson Borrowes of the other part, whereby the said Rev. William Morris Colles granted to the said Robert Higginson Borrowes, his heirs and assigns for ever, part of the lands of Grangemore, in the County of Kildare, containing 49a.. 2r. 28p. Irish, subject to the yearly rent of £150, payable half-yearly, and the said R. H. Borrowes, for himself, his heirs, executors, administrators, and assigns, covenanted with the said W. M. Colles, his heirs and assigns, that the said R. H. Borrowes, his heirs or assigns, should from time to time, and at all times for ever thereafter during the estate thereby granted, pay or cause to be paid to the said W. M. Colles, his heirs or assigns, the said yearly rent of £150 by two equal payments, on every first day of May and first day of November in every year. The Rev. W. M. Colles died in the year 1889, having by his will devised all his property in the County of Kildare to one of the plaintiffs, William Morris Colles. The other plaintiff, Charlotte Ellen Colles, was executrix of the will. The defendants were the personal representatives of R. H. Borrowes. The plaintiffs claimed the sum of £75, being one half-year's rent up to the 1st November, 1911, due under the said covenant.

After the making of the grant of 1866, the lands comprised therein became incorporated with the Borrowes demesne, which subsequently became vested in Sir Kildare Borrowes. On the 25th June, 1909, Sir Kildare Borrowes, who had entered into agreements under the Land Purchase (Ireland) Acts for the sale of the tenanted portion of his estate in County Kildare to the tenants thereon, applied to the Irish Land Commission, under the provisions of section 3 of the Irish Land Act, 1903, for the purchase by the Land Commission from him of his demesne, including the lands comprised in the indenture of 1866, and the re-sale to him of the same, and he undertook to re-purchase the demesne from the Land Commission at the price of £19,022, of which the Land Commission were to advance £15,218. On the 29th June the Land Commission agreed to purchase the demesne for the sum of £19,022, and by an order of the Land Commission of the 17th February; 1910, the lands were vested in the Land Commission in fee-simple. By a further order of the same date, the lands were vested in Sir Kildare Borrowes in fee-simple, charged with the repayment to the Land Commission of the advance of £15,218 and interest.

By an order of the Estates Commissioners of the 12th June, 1911, the sum of £2300 was fixed as the portion of the total purchase-money of £19,022, representing the selling value of the lands comprised in the indenture of 1866.

By an order of the Land Commission, dated the 15th June, 1911, it was ordered that the rent of £150 per annum reserved by the indenture of 1866, together with the value of all covenants therein, should be redeemed at the price of £3000.

On the 25th July, 1911, it was further ordered that the said sum of £2300 should be placed to the separate credit of the said redemption price, and on the 4th August, 1911, this sum of £2300 was transferred to such separate credit.

The plaintiffs refused to accept the sum of £2300, and the writ in the present action was issued on the 16th December, 1911. It claimed £75, being one half year's rent due under the covenant in the indenture of the 3rd August, 1866, from 1st May, 1911, to 1st November, 1911. The statement of claim set out the indenture of 1866; the devise by the will of the Rev. W. M. Colles to the plaintiff, W. M. Colles; the grant of probate of this will to the plaintiff, Charlotte Ellen Colles; it also set out the death of R. H. Borrowes, and that the defendants were his personal representatives: and concluded with the statement:— “The sum of £75 is now due to the plaintiffs by the defendants, on foot of said covenant for the half year up to and ending 1st November, 1911.”

The statement of defence, in addition to a plea of plene administravit with which the present report is not concerned (see note, p. 221), as a further defence referred to the vesting orders of the 17th February, 1910, and alleged that upon their execution all the estate and interest of the plaintiffs in the said lands, and all leases, tenancies, estates, and interests dependent thereon, including the estate granted by the indenture of 1866, and all covenants therein contained, absolutely ceased and determined, and the said lands became vested in Sir Kildare Borrowes, his heirs and assigns for ever, and the plaintiffs had no interest or estate in the said lands during the period of the alleged accruing of the rent sued for, and were not at the commencement of the action, and are not, the heirs or assigns of the Rev. W. M. Colles in respect of the said lands. The statement of defence further set out the order of the 15th June, 1911, ordering the redemption of the rent, and fixing the redemption price at £3000; the order of the 25th July, 1911, ordering the sum of £2300 to be placed to the separate credit of the redemption price; and the transfer on the 4th August, 1911, of the said sum to such credit. It alleged that before the rent sued for became due, the rent of £150 and the covenant to pay the same were redeemed as aforesaid; that the plaintiffs' claim was satisfied before the commencement of the action by the said transfer of the said sum of £2300, and by the interest upon the said sum.

The action was tried before Dodd, J., without a jury. As the statement of claim contained no reference to the proceedings in the Land Commission Court, he adjourned the hearing to enable the full facts to be stated, and permitted the plaintiffs, if so advised, to put forward a claim that, in the events that had happened, they were entitled to have the sum of £700 raised out of the personal estate of the original lessee. The pleadings were amended, but no such claim was argued. Dodd, J., in his report, stated that it was disclaimed, counsel for the plaintiffs contending that neither Mr. Justice Wylie nor himself bad any jurisdiction to grant any such relief, and the case was presented as a Common-law action upon a covenant.

In the statement of claim as amended paragraphs were added setting out the proceedings in the Land Commission, which the plaintiffs alleged were taken without the consent and against the will of the plaintiffs, and were instituted and carried on by Sir Kildare Borrowes solely for his own benefit. They alleged that if the defendants were right in contending that the rent had ceased to be further payable out of the lands, “the said result has been caused wholly by the action of the assignee of the covenantor, and that a breach of the covenant to pay the said rent has occurred, and that the defendants, as such personal representatives of Robert Higginson Borrowes, are liable for such breach, and that the damages for such breach can be now ascertained once and for all.” The plaintiffs claimed the sum of £75 in respect of the matter stated in the original statement of claim, and in the alternative, the sum of £700 damages, being the difference between the said two sums of £2300 and £3000, in respect of the causes of action alleged in the paragraphs added by the amended statement of claim.

Dodd, J., gave judgment for the defendants with costs. He delivered the following judgment:—

Where before the making of a vesting order under section 16 of the Irish Land Act, 1903, the lands thereby vested in the Land Commission are held

under a fee-farm grant reserving a rent, which grant contains a covenant for its payment and constitutes a “superior interest,” such rent, until redeemed by full payment of the redemption price fixed, is, as regards all persons other than the Land Commission and those claiming through it, to be deemed to continue as a rent, and the covenant continues to subsist as if the rent had not ceased against the land.

So held, by Palles, C.B., and Boyd, J., Gibson, J., diss.

A fee-farm grant made in the year 1866, granting certain lands to the grantee and his heirs at the yearly rent of £150, contained a covenant by the grantee for himself, his heirs, executors, administrators, and assigns, that the grantee, his heirs or assigns, would at all times during the estate thereby granted pay the said rent to the grantor, his heirs, or assigns, by half-yearly payments. The lands comprised in the grant subsequently became vested in B., and formed part of his demesne. An agreement was entered into between B. and the Irish Land Commission, under the provisions of section 3 of the Irish Land Act, 1903, by which the Land Commission agreed to purchase the demesne from B. and re-sell it to him. An order of the Land Commission was made vesting the lands in the Land Commission, and on the same day a further order was made vesting them in B. in fee-simple. By an order of the Estates Commissioners the sum of £2300 was fixed as the selling value of the part of the demesne consisting of the lands comprised in the fee-farm grant. By a subsequent order of the Land...