Gyles, Lessors; Beausang, Lessee

• Jurisdiction: Ireland
• Judgment Date: 03 December 1894
• Date: 03 December 1894
• Court: Land Commission (Ireland)

Gyles,

Lessors

and

Beausang,

Lessee (1).

Land Com.

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1895.

Redemption of Rent (Ireland) Act, 1891 (54 & 55 Vict c. 57) — Effect of redemption under — Consent by lessors to redemption — Lease in excess of 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. c. 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 husband), 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 herself and N, for her separate use, for the survivor for life, and then for the

issue of the marriage. In 1870 M and N made a lease of the lands for 200 years. The tenant served an originating notice under the Redemption of Rent (Ireland] Act, 1891, to redeem the rent, and for an advance under the Land Purchase Acts. M and N consented to the redemption, and an order for the same and for an advance was made accordingly. The trustees refused to assist 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.

Semble, 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.

Quære, 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 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 a fortiori 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 Vict. 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 purchase-money: Duke of Marlborough v. Sartoris (5); Hatten v. Russell (6); and the lessee need make no inquiries; Mogridge v. Clapp (7).

The lessors cannot rely on the point that the lease is defeasible; they are bound to carry out their contract. Moreover, the lease was made in lieu of the old tenancy, and if it is invalid, that tenancy is still subsisting.

Samuels, Q.C., and Cherry, for the lessors:—

The only contract here is for the redemption of the rent, not for sale of the fee, and the fee is not bound by the consent to the redemption given by the tenants for life. Moreover, the words in the first paragraph of section 1 of the Redemption of Rent (Ireland) Act, 1891, “subject as hereinafter mentioned,” and the words “except as herein otherwise provided,” in the second paragraph refer to the proviso in the third paragraph of the section, and this proviso gives to the lessee a particular right in case the lessor does not consent, or causes unreasonable delay, viz. a right to have a fair rent fixed. The lessee, therefore, has no other right

or remedy, and specific performance of the agreement for redemption cannot be ordered: Berkeley v. Elderkin (1); The Dundalk Western Railway Co. v. Tapster (2); Vallance v. Falle (3); Maxwell on Statutes (2nd edition), p. 495; The Queen v. County Court Judge of Essex (4). The present is an a fortiori case, for here not only is there a remedy provided, and by the same section which confers the right, but the words “subject as hereinafter mentioned,” and “except as herein otherwise provided,” practically in terms preclude any other remedy. Further, the Land Commission have but a limited statutory jurisdiction to order specific performance, which is not extended by the Act of 1891 to the present case. The case is one merely of unreasonable delay, for which the Act provides a remedy, or it is not within the Act at all. The lessors do not object to the portion of the order which sends the case to the Sub-Commission.

Further, the lease is...