Cusack v Hudson

• Jurisdiction: Ireland
• Judgment Date: 12 February 1880
• Date: 12 February 1880
• Court: Chancery Division (Ireland)

Appeal.

Before MAY, C. J., and DEASY and FITZ GIBBON, L. JJ.

CUSACK

and

HUDSON

Llewellyn v. Earl of JerseyENR 11 M. & W. 184.

Nightingall v. SmithENR 1 Exch. 879.

Wrotesley v. Adams 1 Plowd. 191.

Throckmerton v. Tracy Ibid. 152.

Partridge v. Strange and CrokerENR 1 Plowden , 80.

Roe v. LidwellUNK 11 Ir. C. L. R. 320.

Crowly v. SwindlesENR Vaughan, 175.

Beakey v. Murphy 8 Ir. Jur. (N. S.) 161.

De Vesci v. O'KellyUNKIR I. R. 4 C. L. 269.

Landed Estates Court conveyance Schedule Misdescription of tenancy Incorporation of document by reference Report of Master in Chancery, recommending lease to be granted from a particular date.

VOL. VI.] Q. B., C. P., & EX. DIVISIONS. 309 The widow of the testator being dead, and having by deed and Q. B. Div. will disposed of this property in favour of her surviving daughter, 1880. it is unnecessary to determine the nature of her interest under TALBOT the will. It is sufficient to decide that the deed of the 17th of O'Sum Tax. January, 1845, under which the Defendant claims, was invalid as against the Plaintiffs, and that therefore they are entitled to a decree. O'BRIEN, J., concurred. Solicitor for the Plaintiffs : J. P. Broderick. Solicitor for the Defendant : Richard Haggard. C1JSACIC v. HUDSON (1). Appeal. 1880. Landed Estates Court conveyance-Schedule-Misdescription of tenancy- Feb. 2, 12. Incorporation of document by reference-Report of Master in Chancery, recommending lease to be granted from a particular date. The schedule to a Landed Estates Court conveyance described the tenant a part of the premises granted as entitled to a lease for twenty-one years from the 1st of May, 1858, pursuant to the Master's Report in a certain Chancery Matter. In an action of ejectment on the title by the purchaser, who contended that the tenant's interest expired by efflux of time on the 1st of May, 1879, the tenant pleaded that, under the terms of the Report, mentioned in the schedule to the conveyance, he was entitled to a lease of the premises for twenty-one years from the 1st of November, 1858, a term which would not have expired before the commencement of the action. By the Report referred to, the Master reported that it would be for the benefit of the creditors and other parties in the Matter that one H. should be empowered to grant leases of the estates, as menÂÂtioned in the schedule to such Report ; and with respect to the lands the subÂÂject of the present action, a term of twenty-one years from the 1st of November, 1858, was mentioned as the term for which H. should be empowered to grant a lease. On demurrer to the statement of defence, Held (reversing the decision of the Common Pleas Division), that, even assuming that the Report was incorpoÂÂrated in the schedule to the Landed Estates Court conveyance, the date of the (1) Before MAY, C. J., and DEASY and Frrz Grimm, L. J.T. 310 LAW REPORTS (IRELAND). [L. R. commencement of the tenancy, as set forth in the schedule to the conveyance, was not controlled by the Report, and was conclusive as between the purchaser and the tenant, and that the defence was therefore bad. De Vesci v. 0' Kelly (I. R. 4 C. L. 269) distinguished. APPEAL from an order of the Common Pleas Division overÂÂruling the Plaintiff's demurrer to the statement of defence. The pleadings and the documents referred to are stated in the report of the case in the Court below (1), and in the judgments of the COURT OF APPEAL. Macdonogh, Q.C., and Madden, for the Plaintiff, the Appellant. S. Walker, Q. C., and Gerrard, for the Defendant, the ReÂÂspondent. The following authorities, in addition to those cited. in the Court below, were referred to : As to the effect of misdescription or misrecital in -a deed: Llewellyn v. Earl of Jersey (2); Nightingall v. Smith (3); Wrotesley v. Adams (4); Throckmerton v. Tracy (5) ; Partridge v. Strange and Croker (6); Roe v. Lidwell (7). As to the effect of repugnant words in a deed : Crowly v. Swindles (8). As to the effect and nature of the schedule in the Landed Estates Court conveyance stating the tenants' names, &c. : ]Jeakey v. Murphy (9). Broom's Maxims, 627. • Cur. adv. vult. Feb. 12. MAY, C. J. :- In this ease the action was commenced on the 9th of May, 1879, and was brought to recover possession of a certain parcel of land at Balbriggan, held by Defendant. The statement of claim set forth that by a deed poll executed under the seal of the Landed Estates Court, of the 27th July, 1877, certain lands of Balbriggan were conveyed to the Plaintiff in fee, (1) 4 L. R. Ir. 694. (2) 11 M. & W. 184. (3) 1 Exch. 879. (4) 1 Plowd. 191. (5) Ibid. 152. (6) 1 Plowden, 80. (7) 11 Ir. C. L. R. 320. (8) Vaughan, 175. (9) 8 Ir. Jur. (N. S.) 161. VoL. VI.] Q. B., C. P., & EX. DIVISIONS. subject to the leases and tenancies referred to in the schedule thereto, and as to a certain parcel of 6A. 3R. 25p. (being the lands in question), the same were granted to the Plaintiff, subject to the Defendant's tenancy thereof, at a yearly rent of 40, and it was thereby stated that the Defendant was entitled to a lease thereof, for the term of twenty-one years from the 1st May, 1858. The expiration of this term was then stated on the 1st May, 1879. The Defendant by his defence averred that the conveyance in the statement of claim mentioned stated that the Defendant was entitled to the lease therein mentioned, pursuant to a Report of the Master in Chancery, made in the Matter of Pepper v. Hamilton, of the 16th February, 1859, and that under the terms of the said Report the Defendant was entitled to a lease of the lands in the statement of claim mentioned, for the term of twenty-one years from the 1st day of November, 1858, and not from the 1st day of May, 1858; and that the lands were conveyed to the Plaintiff subject to the right of the Defendant to a lease therein, for the term of twenty-one years from the 1st day of November, 1858. The Plaintiff demurred to this defence. The demurrer was overruled by the Common Pleas Division, and from the judgment of that Court this appeal was brought. Upon the argument of the demurrer the conveyance of the Landed Estates Court was proÂÂduced; and in the schedule of tenancies, with respect to these particular lands, in the column of tenure, the entry was "the tenant is entitled to a lease for twenty-one years from 1st May, 1858, pursuant to the Report of the Master in Chancery, dated 16th February, 1859, and subject to the usual covenants between landÂÂlord and tenant." The said Report in Chancery was also produced, and by it the Master reported that it would be for the benefit of the creditors and other parties, in the causes therein mentioned, that the late George Alexander Hamilton should be empowered to grant leases of various parcels of the estates, as therein respectively mentioned in the schedule thereto ; and, with respect to the parcel in question, a term of twenty-one years from the 1st November, 1858, was mentioned as the term for which he was empowered to grant a lease. In the Common Pleas Division it was argued that, by force of the reference to this Report in the conveyance of the Landed Estates Court, the Report itself must be deemed to be incorporated...