In the Mattbe of The Estate of Robert William Goodwin Hillas

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 08 November 1910
• Court: Chancery Division (Ireland)
• Date: 08 November 1910

In the Matter of the Estate of Robert William Goodwin Hillas.

Ross, J.

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.

1911.

Land Purchase Acts — Irish Land Acts, 1903 (3 Edw. 7, c. 37), s. 48; 1904 (4 Edw. 7, c. 34), s. 3 — Solvent estate — Insolvent as to part — Percentage payable to vendor — Mortgagor and mortgagee.

An estate, declared to be a separate estate for the purposes of the Land Act, 1903, and sold to the tenants under the provisions of that Act, was solvent as a whole, but, in respect of one townland, was insolvent.

Held, having regard to the provisions of section 3 of the Land Act, 1904, that the vendor was entitled to retain for his own use and benefit the whole of the percentage or bonus payable under section 48 of the Land Act, 1903, to the exclusion of the mortgagee of the insolvent townland.

In re Ely's Estate, [1904] 1 I. R. 66, explained.

Question arising on allocation as to whether the bonus payable under section 48 of the Irish Land Act, 1903, and arising in respect of a portion only of the estate, should be paid to the vendor of the estate or to the mortgagee of the aforesaid portion.

The estate for sale in this matter consisted, inter alia, of the lands of Rathurlisk. The said lands were held by the vendor in fee-simple. The estate as a whole was solvent. The lands of Rathurlisk were, in the year 1864, by the vendor's father, the then owner in fee-simple, mortgaged to secure the sum of £1362 17s. 6d. A sum of £1407 16s. 2d. was now due on the said mortgage. The certificate of the Irish Land Commission certified that the portion of the purchase-money applicable to Rathurlisk amounted to £1414. Prior charges amounted to £745 4s. 5d., leaving £668 15s. 7d., the amount coming to the mortgagees on foot of the aforesaid mortgage, being the net residue of the purchase-money of Rathurlisk. The percentage or bonus payable in respect of the whole estate amounted to £4016 5s. 7d., out of which a sum of £170 10s. 5d., being the apportioned part of the bonus in respect of Rathurlisk, was retained in Court pending the settlement of the question as to whether the vendor or the mortgagees were entitled to the same.

G. A. McGusty, for the mortgagees:—

The Land Act, 1903, s. 48 (1), provides that if the mortgagee is not paid in full the bonus must be added to the purchase-money (1). If the contention of the vendor is correct, there is nothing to prevent the owner of an insolvent estate who has another solvent estate lumping the two together, and so preventing the bonus from being added to the purchase-money. In In re Ely's Estate (2), it was decided that the bonus is part of the estate. If the bonus is a by-product, or part of the estate, it is clear that the mortgagor cannot take a part of the estate and leave his mortgagee unpaid. In In re Power's Estate (3), Wylie, J., held, following Ely's Estate (2), that the bonus is an interest in the settled land. It is clear that the mortgagor cannot retain any interest in the mortgaged estate without seeing his...