Fitzpatrick v Warren

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 07 December 1916
• Court: Chancery Division (Ireland)
• Docket Number: (1916. No. 645.)
• Date: 07 December 1916

Fitzpatrick

and

Warren.

M. R.

(1916. No. 645.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1917.

Renewable Leasehold Conversion Act, 1849 (12 & 13 Vict. c. 105) — Renewal Fines — Lease for Lives Renewable for Ever — Landed Estates Court Conveyance — Indemnity against “Rent” — Liability of Indemnified Lands to Contribute — Renewal Fines — Fee Farm Rent.

The lands of D. and K., held under a lease for lives renewable for ever, dated the 10th October, 1694, subject to the yearly rent of £15, late Irish currency, with a covenant by the lessor for perpetual renewal on payment by the lessee of one half year's rent as a renewal line on the fall of each life, were sold by the order of the Incumbered Estates Court, Ireland, in two lots, in the year 1858.

By Incumbered Estates Court conveyance, dated the 17th July, 1858, reciting the lease, and the last renewal thereof, dated the 1st April, 1844, the lands of D. were conveyed, subject to the rent reserved by the lease, and bound to indemnify all other lands charged with the said rent from the same.

The other lands, viz., the lands of K., were conveyed by a similar conveyance, made by the Landed Estates Court, dated the 16th July, 1859, subject to the rent reserved by the lease, but indemnified against the payment of the said rent, and the costs and expenses occasioned by nonpayment thereof, by the lands of D., which had been sold subject and liable thereto, in full exoneration of all other lands charged therewith. There was no renewal of the lease since 1844, though all the lives had dropped.

The owner of the reversion expectant on the lease having called upon the owners of the lease to take out a fee-farm grant pursuant to the Renewable Leasehold Conversion Act, the plaintiff, as owner of the lands of D., claimed a contribution from the defendant, as owner of the lands of K. proportionate to their value towards payment of the septennial fines and the addition to the fee-farm rent representing the annual value of the renewal fines. The defendant contended that he was indemnified against all liability by the terms of the conveyance of the 16th July, 1859, made to his predecessor in title.

Held, that the lands of D. were bound to indemnify the lands of K. from payment of a proportionate part of the half year's rent, payable as a renewal fine on the fall of each life in the lease and the renewals thereof, and against payment of a proportionate part of the increase of the yearly rent reserved by the lease occasioned by the conversion into a fee-farm grant pursuant to the Renewable Leasehold Conversion Act.

Originating Summons.

This was a summons taken out by agreement between the parties to determine as to the liability, if any, of the defendant to contribute towards payment of the septennial fines and the increase of rent payable on the taking out of a fee-farm grant of the lands comprised in a lease for lives renewable for ever.

The following statement of the facts is taken from the judgment of O'Connor M.R.:—

“Certain lands called Drumbartagh and Killagh, otherwise Keelagh, situate in the county of Cavan, were held under a lease for lives renewable for ever, dated the 10th October, 1694, subject to the yearly rent of £15, late Irish currency. The lease contained a covenant by the lessor for perpetual renewal by substituting another life or lives for any life or lives falling in on payment by the lessee of one half year's rent as a renewal fine on the fall of each life.

The lands comprised in the lease were sold by order of the Incumbered Estates Court in two lots, Drumbartagh forming one lot and Killagh the other lot.

By Incumbered Estates Court conveyance, dated 17th July, 1858, reciting the lease, and that the last renewal thereof was made by indenture, dated the 1st April, 1844, for the lives of Her late Majesty Queen Victoria, Prince George (Duke of Cumberland), and His late Majesty King Edward, then Prince of Wales, it was witnessed that the Commissioners for Sale of Incumbered Estates in Ireland granted to Patrick Fitzpatrick and Mathew Kearns the lands of Drumbartagh (portion of the lands comprised in the lease), to hold to them, their heirs, and assigns as...