Errington v Rorke

• Jurisdiction: Ireland
• Judgment Date: 07 April 1856
• Date: 07 April 1856
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

ERRINGTON

and

RORKE.

Rutledge v. Hood 3 Com. Law Rep. 447.

M'Carthy v. Bayly 7 Br. P. C. 218.

O'Donnell v. Rya 4 Com. Law Rep. 44.

Annesley v. Dixon Holt R. 372; S. C., 7 B. P. C. 171.

Ellis v. Segrave 7 B. P. C. 331.

Crisp v. BunburyENR 8 Bing. 394.

v. DixonENR Holt's Rep. 372; S. C., 1 Bro. P. C. 171.

Rutledge v. HoodIR 3 Ir. Com. Law Rep. 467.

O'Donnell v. RyanIR 4 Ir. Com. Law Rep. 44.

Re LoxdaleENR 1 Burr. 447.

Re Justices of LeicesterENR 7 B. & C. 12.

O'Donnell v. RyanIR 4 Ir. Com. Law Rep. 66.

Annesley v. Dixon Holt's Rep. 372.

COMMON LAW REPORT& 279 E. T. 1857. Exch. Chant. Jan. 26. April 6, 7. EJECTMENT on the title, to recover possession of that part of the In an eject ment on the Bog of Allen and Clunagh, running in a stripe or belt along the title, the plain tiff relied on a adjoining lands of Muckland, in the possession of William Metcalf; conveyance made to him and which stripe or belt was part of the bog conveyed to the by the Com- missioners of plaintiff by the Commissioners for Sale of Incumbered Estates in Incumbered Estates, of Ireland, by deed, dated the 29th of July 1853 ; and which stripe certain lands, or belt began at the new road leading from Timahoe to Enfield, amongst them the lands where it crossed said bog, and ended at the north-eastern boundary sought to be recovered, of that part of the said bog conveyed to the plaintiff as aforesaid, which lands were described by the Commissioners, situate in the barony of Carbery and county in the convey ance and a map of Kildare. annexed thereÂÂto. The de To this ejectment the defendant took defence for all that part fendant rested his defence on a lease (still subsisting) of the lands sought to be recovered, and made prior to the conveyance, but not referred to therein, the particulars of which lease had been set out by him pursuant to notice from the Commissioners, and were inserted in the rental of the lands sought to be sold, but were not comprised or set out in the rental of the lot purchased by the plaintiff; and also proved that subsequent to the sale to the plaintiff, and prior to the conveyance, a portion of the lands sold was taken from the plaintiff, and other lands were given to him in lieu thereof, which were taken out of lands remaining unsold, and the map attached to the conveyance differed accord. ingly from that of the rental of the lot purchased.-Held (reversing the judgment of the Queen's Bench), that such evidence was improperly admitted.-(Dissentiente, LEFROY, C. J.) In his charge to the jury, the learned Judge told them that, although the premises sought to be recovered were within the ambit of the map traced upon the conveyÂÂance, and the defendant's lease was not mentioned or referred to in the conveyance, yet, if the premises sought to be recovered were demised by that lease, and that plaintiff purchased subject to that lease, it would virtually be only a purchase of the reversion expectant upon the lease, and then upon the evidence of the Commissioners' conveyance would only operate to pass the reversion in fee expectant upon the lease, but would not entitle the plaintiff to recover possession during the lease. Held, a misdirection, and that the conveyance by the Commissioners operated to pass the fee-simple in the lands discharged of the lease, and conferred an inÂÂdefeasible title upon the purchaser.-(LErnov, C. J., dissentiente.) PENNEFATEEE, B., MOORE and KEOGH, JJ., absentibus. 280 COMMON LAW REPORTS. E. T. 1857. of the Bog of Muckland, containing, by estimation, 20a. 3r. 26p., Exch. Chant. as formerly in the possession of John Lucas Wilton, and now in ERRINGTON the possession of the defendant ; and which was by the summons v. RORKE. and plaint sought to be recovered as part of the Bog of Allen and Clunagh. On these pleadings the following issues were sent for trial :- Whether the plaintiff was entitled to the possession of said lands, or any portion of them, on the said day, or at any time subsequent to such day, and before the commencement of the action ? Secondly, whether the plaintiff was entitled to any, and what, damages, for the loss of mesne rates and profits ? The case was tried before LEFROY, C. J., at the Summer Assizes of 1855, for the county of Kildare. In support of his case, the plaintiff gave in evidence a deed of conveyance, with a map in the margin thereof, which map was referred to by the conveyance. This conveyance bore date the 29th of July 1853, and was executed by two of the Commissioners for the Sale of Incumbered Estates in Ireland, and was sealed with the seal of said Commissioners. By this conveyance the said Commissioners, under the authority of the Act of Parliament, in consideration of the sum of 510 paid by the plaintiff, granted unto the plaintiff that part of the said Bog of Allen and Clunagh, situate in the barony of Carbery and county of Kildare, containing 777a. 3r. 24p. ; and which said lands were in said conveyance mentioned to be described in the map annexed thereto, with the appurtenances :-Habendum, unto the plaintiff, his heirs and assigns for ever, subject to the rights of turbary of the lessees therein named, of the lands of Dunforth, Mylerstown, Clunagh and part of Muckland, as set out in the schedule annexed to said conveyance. The plaintiff then produced as a witness George Taylor, who deposed that he had traced the map upon the margin of the conveyance ; that he had seen and gone carefully through the lands in the conveyance referred to ; and that he sketched the said map from the map attached to the rental under which the estate was sold ; that he saw the lands sought to be recovered in this ejectment, and described in the summons and plaint ; that v. out upon the map the lands sought to be recovered by the plaintiff RORKE. in the ejectment, and described their boundaries, situation and locality ; and deposed that every portion of them was within the boundary line of the map. On cross-examination, he proved that a rental and map (produced by defendant's Counsel) were the rental and map referred to by him on his direct examination ; that the map on the margin of the conveyance was not exactly the same map as the map of the lot purchased by plaintiff; and set out in the rental ; but that a portion of the bog included in the latter map had, after the purchase, been taken from plaintiff by Commissioner Longfield, and had been by the Commissioners \granted to one Richard Bolton, for 10 ; and that in lieu thereof a different portion of bog had been granted to plaintiff by the Commissioners, which witness described as next adjoining the words " Muckland Bog," at foot of the map on the margin of the conveyance, and as now part of the lands sought to be recovered. The plaintiff, with this evidence, closed his case. The defendant, in support of his case, produced a lease, bearing date the 9th of March 1822, from Frederick Hamilton to John Lucas Wilton, demising that part of the Bog of Muckland, then in the possession of Wilton, containing 20a. 3r. 26p., together' with the appurtenances, for a term of three lives, or thirty-one years, subject to the rent therein mentioned, and an assignment of this lease to the defendant. This lease was offered in evidence as a lease of the premises sought to be recovered in the ejectment ; and Counsel for the plaintiff objected to the reception of such evidence, inasmuch as no such lease was mentioned in the conveyance by the CommisÂÂ'sioners of the Incumbered Estates Court-the lands having been thereby conveyed without mentioning that they were subject to any such lease and assignment. The learned Judge, however, admitted the evidence, and plaintiff thereupon excepted. voL. 6. 36 L 282 COMMON LAW REPORTS. E. T. 1856. The defendant was then produced as a witness, to prove that Exch. Chaco. the lands sought to be recovered in the ejectment were the pre E RRINGT ON mises demised by the lease and assigned to him. Counsel for the v. RORKE. plaintiff objected to the reception of this evidence, and insisted that the defendant should not be allowed to go into evidence of title to the premises anterior to the conveyance of the Incumbered Estates Court ; but the learned Judge admitted the evidence. Defendant then deposed that the premises sought to be recovered were the lands demised by the lease of the 9th of March 1822 ; that two of the lives named in the lease were still in existence ; that Wilton was in possession of said lands under this lease when he assigned them to witness ; and that he (witness) had been in possession of them under said assignment ever since ; that before the sale by the Incumbered Estates Court, and while the case of Hobhouse v. Hamilton was pending, Abraham Collis was apÂÂpointed receiver of the Court of Chancery over said lands ; that -witness had been in possession of seventy-six acres of the lands of Muckland, being fifty-six acres more than he was entitled to ; that Collis, under the direction of the Master in Chancery, required possession of those fifty-six acres, and that witness freely relinÂÂquished the possession of them ; that the bailiff and surveyor of the estate then lockspitted off the twenty-one acres which the defendant held under the lease and assignment, from the fifty-six acres which the defendant then gave up possession of; and that these twenty-one acres were the lands sought to be recovered in this ejectment ; that these lands were always known as " Muck-land," and not as " Allen and Clunagh." Counsel for the defendant then offered in evidence the printed rental* under which the plaintiff purchased in the Incumbered EsÂÂtates Court ; this was objected to, on the ground that it was anterior in date to the conveyance. The learned Judge admitted this eviÂÂdence; and the 'admission of this, and the parol testimony, formed the ground of the second exception. Counsel for the defendant then gave in evidence the following iotice, served upon the defendant by order of...