Conolly v Gorman and Others

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 01 March 1897
• Court: Court of Appeal (Ireland)
• Docket Number: (1894. No. 690.)
• Date: 01 March 1897

Conolly

and

Gorman and Others.

M. R.

Appeal.

(1894. No. 690.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1898.

Tithe rentcharge — 2 & 3 Wm. 4, c. 119 — 1 & 2 Vict. c. 109 — Lands subject to tithe rentcharge sold to different purchasers in severalty — Extent of liability — Arrears recoverable — Infancy — Statute of Limitations — Common Law Procedure Act, 1853, s. 20 — Vesting order — Mis-statement — Indemnity — Irish Land Commission — 44 & 45 Vict. c. 71, s. 2.

On the 24th of November, 1823, a statutable composition for all tithes payable out of certain titheable lands was fixed; and this composition was afterwards assessed and applotted on each parcel of the titheable lands. One third of the amount assessed and applotted on the glebe lands of the parish of D. (portion of the titheable lands) was payable by the vicar of the parish to the predecessors in title of the father of the plaintiff.

Under the Tithe Rentcharge Act the glebe lands of the parish of D. became liable to and chargeable with the annual payment of a tithe rentcharge of £8 13s. 1d., which represented the vicarial tithe, the right to which became vested in the father of the plaintiff, and was duly paid to him by the vicar of the parish up to 1869, and afterwards by the Commissioners of Church Temporalities (in whom the glebe lands were then vested) until 1876. On his father's death in 1876 the vicarial tithe vested in the trustees of his will in trust for the plaintiff, who was a minor.

The tithe rentcharge was paid to the trustees of the will up to and ending the 1st of November, 1877, since which date no further payment was made. In 1878 each of the defendants became entitled to an estate or interest in the glebe lands equivalent to a perpetual estate or interest as defined by 1 & 2 Vict. c. 109, and each of them held a portion of the lands in severalty. The plaintiff attained age in 1891, and in 1894 instituted an action against the defendants, claiming sixteen years' arrears of tithe rentcharge, and a declaration that the entire rentcharge and the arrears thereof were well charged on the glebe lands of the parish of D. and upon all the estate and interest of the defendants in the lands:—

Held (by the Court of Appeal, affirming the decision of the Master of the Rolls), that the plaintiff was entitled to one tithe rentcharge out of the lands, and that he was not bound to look to each separate holder of a part of the lands to ascertain the amount payable out of each portion, or to proceed against the separate holders for several rentcharges, but that only six years' arrears of the tithe rentcharge was recoverable by the plaintiff.

By vesting order, dated 1878, the Commissioners of Church Temporalities vested a portion of the glebe lands in the defendants the Representative Church Body. The vesting order stated that the part of the glebe lands conveyed was liable to six shillings tithe rentcharge. In 1885 some correspondence took place between the Representative Body and the Irish Land Commission (as representing the Church Temporalities Commissioners) as regards the fact that the lands were charged with tithe rentcharge exceeding the amount mentioned in the vesting order, but no further steps were taken in reference to the matter until 1894, when, in the action brought by the plaintiff, a third party notice was served by the Representative Church Body on the Land Commission claiming indemnity from them against payment of any sum in excess of the six shillings mentioned in the vesting order.

Held, by the Court of Appeal, reversing the decision of the Master of the Rolls, that the Irish Land Commission were bound to indemnify the Representative Church Body against payment of any tithe rentcharge in excess of six shillings per annum.

Trial of Action.

The plaintiff claimed a declaration that the annual tithe rentcharge, and the arrears thereof mentioned in the statement of claim were well charged upon the glebe lands of the parish of Drumholm, in the diocese of Raphoe, and county of Donegal, containing 690 acres or thereabouts, and comprising the townlands of Drumchory Glebe, Murragh Upper Glebe, Drumbriston Glebe, Rathtinny and Drummanus Glebe, and upon all the estate and interest of the defendants in said lands.

The defendants were proved to be owners of lands charged with the tithe rentcharge.

The statement of claim also asked for the payment of £138 9s. 4d., the arrears of the tithe rentcharge claimed, and that in case of non-payment a receiver might be appointed over the said lands.

The title of the plaintiff as set out in the statement of claim was proved by the documents put in evidence in the action. It stated as follows:—By letters patent dated 9th April, in the twentieth year of the reign of James I., King James I. granted and confirmed unto Henry Folliott Knight, Lord Folliott of Ballyshannon, his heirs and assigns for ever, amongst other hereditaments “the Rectory of Drumhynne, otherwise Drumhoaine, otherwise Tirehugh, that is to say, one-third part of all the tithes as well great and small, oblations, obventions, and two parts of all mortuaries yearly growing, renewing, or issuing of, in, or from, all lands, tenements, and hereditaments of and in the territory of Tirehugh in the said parish of Drumhynne, otherwise Drumhoaine, otherwise Tirehugh, with the appurtenances, in the county of Donegal.” These hereditaments, that is, one-third of the tithe, afterwards became vested in Thomas Conolly (the elder), his heirs and assigns; and by indenture of lease, dated 13th August, 1760, the said Thomas Conolly demised to the Rev. William Major all the said hereditaments therein described as “all that and those the vicarial tithes arising, and that may arise out of the parishes of Drumholm and Donegal, aforesaid, being one-third part of all the great and small tithes of all ecclesiastical fees or dues of what nature or kind soever, which shall or may become due out of the said parishes,” for the lives and term of years therein mentioned, at the yearly rent of £120 of the then Irish currency; and by indenture dated 12th May, 1790, three lives therein mentioned were substituted for the lives mentioned in the said first-mentioned indenture of lease. Thomas Conolly (the elder) died in 1803, and by his last will and testament, dated 27th May, 1799, he devised all his estates (which included the reversion expectant on the determination of the leases previously mentioned) to trustees therein named for payment of his debts, and subject to that trust, to the use of his widow, Lady Louisa Augusta Conolly, for life, with remainder to his grand-nephew Edward Michael Pakenham, for life, he taking the surname of Conolly, with remainder to the first and other sons of the said Edward Michael Pakenham in tail male. The said Louisa A. Conolly entered into possession of said hereditaments and premises under the trusts of said will, and so continued until the date of her death in the year 1821, and the said Edward Michael Pakenham (otherwise Conolly) then entered into possession thereof, and by indenture dated 30th October, 1830, the then surviving trustees of the will of the said Thomas Conolly (the elder), viz. the Earl of Clancarty, and the Hon. Sir Thomas Pakenham, conveyed the trust estates to the said Edward Michael Pakenham, otherwise Conolly, who was then tenant for life in possession thereof.

On the 24th November, 1823, a statutable composition for all tithes within the parishes of Drumholm and Donegal was made, and its entire amount was fixed at the sum of £796 8s. 10d. (late Irish currency) by a certificate of that date. This composition was afterwards assessed and applotted on each parcel of the titheable lands within said parishes; the total amount so assessed and applotted on the glebe lands of the parish of Drumholm was £37 9s. 11d. (late Irish currency), one-third of which was payable by the vicar of the parish to John Hamilton and John Miller, in whom the interest of the lessees in said lease of 13th August, 1760, was then vested.

The statement of claim then alleged that by virtue of the Tithe Rentcharge Act the said glebe lands of the parish of Drumholm, in the diocese of Raphoe, and county of Donegal, became liable to and charged with the annual payment of one entire sum or rentcharge of £8 13s. 1d. (present currency), payable to the lessees under said lease of 13th August, 1760, in two equal instalments, on the 1st May and 1st November in each year, being three-fourths of one-third of the amount of the tithe composition.

Edward Michael Pakenham, otherwise Conolly, died in the year 1849, and upon his death his eldest son, Thomas Conolly (the younger), entered into receipt of the rent reserved by the lease of 13th August, 1760, as tenant in tail under the will of Thomas Conolly (the elder). By disentailing assurance dated the 26th December, 1850, duly enrolled in Chancery, Thomas Conolly (the younger) duly barred the entail in all said hereditaments, and thereupon became entitled to an estate in fee-simple in same. The lease of 13 th August, 1760, as extended by the indenture of 1790, expired in or about the year 1860, and thereupon Thomas Conolly (the younger) entered into receipt of the tithe rentcharge of £8 13s. 1d. per annum, which was duly paid to him by the vicar of the parish of Drumholm up to 1869, and afterwards by the Commissioners of Church Temporalities in Ireland until the date of his death.

Thomas Conolly (the younger), died on the 10th August, 1876, and by his last will and testament, dated the 8th of June, 1876, devised all the manors, messuages, lands, hereditaments, and premises, over which he should, at his death, have any power of disposition, unto the trustees named in his will, their heirs, executors, and administrators, to the use of the plaintiff, his eldest son, in tail male, with remainders over. The annual tithe...