Gyles, Lessors; Beausang, Lessee

CourtLand Commission (Ireland)
Judgment Date03 December 1894
Date03 December 1894

Land Com.

Before BEWLEY, J.



Barton v. AtkinsonUNK 30 L. R. Ir. 396.

Berkeley v. ElderkinENR 1 E. & B. 805.

Constable v. Constable Ibid. 233.

Duke of Marlborough v. Sartoris 32 Ch. Div. 616.

Harnett v. Yeilding 2 Sch. & Lef. 549.

Hatten v. Russell 38 Ch. Div. 334.

Howel v. GeorgeUNK 1 Mad. 1.

In re Johnstone's SettlementUNK 17 L. R. Ir. 172.

In re Land Com. Earl of Aylesford's Settled Estates 32 Ch. Div. 162.

Looby v. FinchUNK 30 L. R. Ir. 568.

Mogridge v. Clapp [1892]'3 Ch. 382.

Moylan v. FinchUNK 28 L. R. Ir. 595.

Neale v. MackenzieENR 1 Keen, 474.

The Dundalk Western Railway Co. v. Tapster 1 Q. B. 667.

The Queen v. County Court Judge of EssexELR 18 Q. B. Div. 704.

Thomas v. DeringENR 1 Keen, 729.

Vallance v. FalleELR 13 Q. B. Div. 109.

— Effect of redemption under — Consent by lessors to redemption — Lease in excess of powers — Inability to make title — Specific performance — Jurisdiction of Land Commission,

VoL. IL] Q. B. & EX. DIVISIONS. 325 case, though I am satisfied it is a fit case for the superior Court. Appeal. Having regard to the injuries sustained, if the case of the plaintiff 1895. be true, I am of opinion that this boy should not be deprived of CURLEY his right to seek redress in the highest Court for the dreadful GBEGAN. injury inflicted on him by this fierce animal. Barra, L.J. This Act was passed for the purpose of suppressing frivolous and vexatious actions, such as are brought to levy blackmail, et cetera. To decide this case otherwise than as we are doing would be virtually, as Mr. Kehoe has said, to establish a rule that no poor man can bring an action in the superior Courts for any wrong, however grievous, unless he can give security for costs. I find no authority for that proposition, and I am not prepared to be a party to making a precedent. Solicitors for the plaintiff : Brown 8f JP Cann. Solicitor for the defendant : M. C. O'Meara. R. D. M. GYLES, LEssoRs ; BEAUSANG, LESSEE (1). Land Corn. 1894. Redemption of Rent (Ireland) Act, 1891 (54 4 55 Vict. c. 57)—Efect of Oct. 27. redemption under—Consent by lessors to redemption—Lease in excess of Dee. 3. powers—Inability to make title—Specific performance—Jurisdiction of Land Commission. A lessee for a term of years, applying to the Land Commission under the Redemption of Rent (Ireland) Act, 1891 (54 & 55 Vict. e. 57), is not entitled to a conveyance in fee of his holding, but to an extinguishment of all rent during the residue of his term, with the protection from all superior rents or rent-charges afforded by their redemption under the powers given by sect. 2 of the Act. By deeds, executed on the marriage of M and N, in 1863, lands were vested in trustees, on trust, at the request of M (the wife) and N (the husÂband), during their joint lives to sell, and with power to the trustees before sale at the like request, to lease for thirty-one years. The trusts of the sale moneys, and of the lands until sale, were for M during the joint lives of her-self and N, for her separate use, for the survivor for life, and then for the 1895-VoL. II. (1) Before BEWLEY, J. Z 326 THE IRISH REPORTS. [1895. Land Coin. issue of the marriage. In 1870 M and N made a lease of the lands for 200 1894. years. The tenant served an originating notice under the Redemption of Rent GYLES, (Ireland) Act, 1891, to redeem the rent, and for an advance under the Land Lessors ; Purchase Acts. M and N consented to the redemption, and an order for the BEAUSANG, same and for an advance was made accordingly. The trustees refused to assist Lessee, ssee. in effecting the redemption, and M and N thereupon informed the tenant that they could not make title or carry out the order. The tenant thereupon applied to the Land Commission for an order for the specific performance by the lessors of the agreement contained in the consent. The leave of the Chancery Division, required by the Settled Land Act, 1884 (47 & 48 Vict. c. 18), s. 7, for the exercise of the powers conferred by sect. 63 of the Settled Land Act, 1882 (45 & 46 Vict. c. 38), had not been obtained : Held, that the trustees were within their rights in declining to carry out the redemption, and that M and N had no power to compel them ; that it was impossible for M and N to carry out the redemption; and that the tenant's application should be refused. Sennble, even if M had the power of sale conferred on a tenant for life by the Settled Land Act, it would not enable the redemption of the rent to be carried out. Queer e, whether the Land Commission has any jurisdiction to make an order for specific performance in proceedings under the Redemption of Rent (Ireland) Act, 1891. APPEAL by the lessee on a question of law only from the order of Fitz Gerald, Q.C., Commissioner, dated the 23rd June, 1894, refusing the lessee's application for an order for the specific. performance by the lessors of an agreement for the redemption of the rent of the holding under the Redemption of Rent (Ireland). Act, 1891 (54 & 55 Vict. c. 57), and declaring that the lessors had caused unreasonable delay in the making of the redemption, and referring the originating notice to a Sub-Commission to fix a fair rent. The facts of the case are fully stated in the judgment. D. B. Sullivan, Q.C. (with him A. M. Sullivan), for the appellant : The lessors not only consented to the redemption, but they appeared by counsel when the order for redemption was made, and there has been no appeal from that order. The trustees cannot refuse to carry out the redemption ; there is an imperative trust to sell on the request of the tenants for life ; the redemption of the rent is only a mode of sale, and the trustees can sell any Vol,. II.] Q. B. & EX. DIVISIONS. 327 interest forming portion of the fee. Here if the lessors had not consented to the redemption, the lessee could have had a fair rent fixed. It appears to have been largely assumed on the argument before Fitz Gerald, Q.C., Commissioner, that the lessee would not have been entitled to have a fair rent fixed, chiefly on the authority of Barton v. Atkinson (1), and Moylan v. Finch (2) ; but those cases do not apply to the present, which is governed by Looby v. Finch (3). The lessee is under the circumstances entitled afortiori to enforce the agreement for redemption. Moreover, the redemption could be carried out under the Settled Land Acts. The tenants for life have consented, and the trustees are trustees of the settlement, as defined by the Settled Land Act, 1882 (45 & 46 Viet. c. 38). See In re Johnstone's Settlement (4). The lessors need only serve notice on the trustees who would be bound thereby, and whose duty it would be merely to receive the...

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