Colles and Another v Hornsby and Another

JurisdictionIreland
CourtKing's Bench Division (Ireland)
Judgment Date27 November 1912
Date27 November 1912

K. B. Div.

Before PALLES, C.B, and GIBSON and BOYD, JJ.

COLLES AND ANOTHER
and

HORNSBY AND ANOTHER

Boot v. WilsonENR 4 Dougl. 54.

Boot v. WilsonENR 8 East, 311.

Burchall v. CoyleDLTR 37 I. L. T. R. 176.

Close's EstateIR [1905] 1 I. R. 371, at p. 382.

Close's EstateIR [1905] I R.371.

Dashwood v. MagniacELR [1891] 3 Ch. 306.

De Vesci v. O'CornellELR [1908] A. C. 298.

In re Borrowed Estate, No. 2IR [1912] 1 I. R. 97.

In re Borrowed EstateENR [1911] 1 I. K. 218. At p. 219 "80" was erroneously printed for " 50" as the acreage.

In re Borrowes' EstateIR [1911] 1 I. R. 218.

In re Close's EstateIR [1905] I. R. 371.

In re Crosbie's EstateIR [1907] 1 I. R. 116, at pp. 121, 122.

In re Irvine's EstateIR [1903] 1 I. R. 41.

In re Ryan's EstateIR [1908] 1 I. R. 467.

In re Stronge's EstateIR [1906] 1 I. R. 550.

M'Farlane v. BoothIR [1910] 2 I. R. 12.

Mill v. AuriolENRENR 1 H. Bl. 433 and 4 T. R. 94.

Mills v. AuriolENR 1 H. Bl. 433.

Rawson v. GroganUNKIR I. R. 3 C. L. 631, at p. 636.

Rawson v. GroganUNKIR I. R. 3 C. L. 631.

The Queen v. County Court Judge of EssexELR 18 Q. B. D. 704, at p. 708.

Wadham v. MarloweENRENR 1 H Bl. .437; 8 East, 347.

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 ——

210 TH.F.' IRISH REPORTS. [1913. K. B. Div. the principal would be bound to make the requisite entries, and 1913. would be responsible for their recording and accuracy. This DUNNE, would be an ordinary business procedure, analogous to the case of Appellant ; LEE, a canvasser for orders, who takes a note of the person ordering Respondent. and the date of the order for his principal. Here the agent would have to take note of the day and hour of the purchase in his noteÂbook, and the principal must enter these particulars in his proper books under the Act. I cannot see any provision in the Act which confines dealings through an agent to dealings on the premises of the dealer. If the Solicitor-General could show us that a general dealer could not deal outside his licensed premises, we might be driven to such conclusion; but this proposition is negatived by the case of Hall v. O'Brien (1). I am of opinion that there is no such restriction as has been contended for, upon the employment of an agent by a licensed general dealer. WRIGHT, J., concurred. Solicitor for the appellant : Malachy Kelly. Solicitor for the respondent : William A. Lamphier. O. N. K. B. Div. COLLES AND ANOTHER V. HORNSBY AND ANOTHER (2). 1912. Oct. 29, 30, Land Purchase—Superior interest—Fee-farm rent—Redemption—Purchase 31. money insufficient to provide for full redemption price—Right of owner of NOV. 27. 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 4 60 Viet. c. 47), section 31, sub-s. 1. 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 (1) [1906] 2 1. R. 6. (2) Before PA LLES, C.B., and GIBBON and Bon), JJ. under a fee-farm grant reserving a rent, which grant contains a covenant for B. Div. 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 Commission it was ordered that the rent of £150 reserved by the grant, together with the value of the covenants therein, should be redeemed at the price of £3000, and by a further order of the Land Commission the sum of L2300 was placed to the separate credit of the redemption price. The plaintiff, who was the devisee of the grantor in the fee-farm grant, refused to accept this sum, and brought the present action against the personal representatives of the grantee, claiming as due under the covenant in the grant a half year's rent which had accrued due subsequently Ito the date of the vesting order. The action was tried by Dodd, J., without a jury, and he gave judgment for the defendants. On a motion by the plaintiff to have this judgment set aside, and judgment entered for him; 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 11 2 212 THE IRISH REPORTS. [1913_ K. B. _Div. Morris Colles granted to the said Robert Higginson Borrowes, 1912. his heirs and assigns for ever, part of the lands of Grangemore, in COLLES the County of Kildare, containing 49A. 2u. 28r. Irish, subject t& 11°BnEY• 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, VOL. II.] KING'S BENCH DIVISION. 213 ,charged with the repayment to the Land Commission of the K. B. Div. advance of £15,218 and interest. 1912. By an order of the Estates Commissioners of the 12th June, COLLES V. 1911, the sum of £2300 was fixed as the portion of the total _ORNSBY. 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...

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2 cases
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