Gilmore v The O'Connor Don and Another

• Jurisdiction: Ireland
• Judgment Date: 01 January 1948
• Date: 01 January 1948
• Court: Supreme Court

(H.C., S.C.),

Gilmore

and

The O'Connor Don and Another

- Contracts by tenant for life for the sale of growing timber to be cut and removed by the purchaser - Tenant for life dealing with the purchaser as full owner - No notice of his title given to purchaser - Constructive notice - Timber not cut during lifetime of tenant for life - Death of tenant for life - Contracts repudiated by his successor in title - Liability of successor in title on contracts - Settled Land Act, 1882 (45 46 Vict., c. 38), s. 2, sub-s. 9; s. 3 (i); s. 4, sub-s. 1; s. 20, sub-s. 2; s. 31; s. 45, sub-s. 3; s. 54.

A., a tenant for life of settled lands, unimpeachable for waste, entered into three contracts with G. for the sale to him of certain growing timber, to be cut and removed by G. G. paid the full contract price on the first and second contracts to A., and on the third he paid him part on account. A. did not disclose to G. that he was only a tenant for life, and G., in fact, made no inquiries as to A.'s title. A. described himself, in one of the contracts, as "landed proprietor." G. pleaded that he had always regarded A. as absolute owner of the lands. G. did not cut the trees for some time and before he had started to cut them A. died and B. became tenant for life in succession. B. immediately repudiated the contracts made by his predecessor and forbade G. to cut or remove the trees. B., in fact, sold the trees to another firm of timber merchants, who cut and carried away a very large number of the trees already sold to G. G. sued B. to enforce his rights under the three contracts, joining C. as defendant as personal representative of A. At an early stage of the case the action was discontinued against C. on her undertaking to return to G. all money paid by him for which he had not received trees. Held by Gavan Duffy J. that the three agreements must be referred to the vendor's powers under the Settled Land Act, 1882, because a vendor's contracts must, in equity, be attributed to that power which will make them effective. A Court of Equity must take the vendor to have engaged with his purchaser to make his contracts as effective as he has power to make them. The plaintiff was therefore entitled to damages against the first-named defendant for breach of contract. On appeal: Held by the Supreme Court (reversing Gavan Duffy J.):—1. That the tenant for life in selling the trees to the...