Irish Land Commission v White

• Jurisdiction: Ireland
• Judgment Date: 06 May 1896
• Date: 06 May 1896
• Court: Exchequer Division (Ireland)

Irish Land Commission

and

White (1).

Ex. Div.

CASES

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.

1896.

Tithe rentcharge — First estate of inheritance — Lease for lives renewable for ever made in 1851 — Payment by owner in fee — Dispossession or discontinuance of receipt — Statute of Limitations.

An owner in fee-simple, by deed dated the 17th September, 1851, purported to demise certain lands for lives renewable for ever. Notwithstanding this deed the owner in fee paid the tithe rentcharge up to the 1st November, 1886. In an action for subsequent tithe rentcharge against the person entitled to the estate created by the deed of 1851, of which, up to 1886, the owners of the tithe rentcharge had no notice:—

Held, 1st, that the defendant was the owner of the first estate of inheritance in the lands so as to render him liable to pay the tithe rentcharge; 2ndly, that the tithe rentcharge was not barred by any Statute of Limitations. Adnam v. Earl of Sandwich (2 Q. B. D. 485) followed.

Case Stated by the Lord. Chief Justice pursuant to 27 & 28 Vict. c. 99.

The case was as follows:—

1. This was an appeal by the plaintiff, from a dismiss on the merits of the County Court Judge of county Limerick, dated 11th June, 1895.

2. The process sought to recover £2 8s., being eight years’ tithe rentcharge at 6s. a-year payable out of part of the lands of Cappanihane, in the parish of Comohide, barony of Upper Connolloe and county of Limerick.

3. The defendant Edward White holds the lands, subject to the tithe with other lands under a lease dated 17th September, 1851, made between Charles Pearson and Susan Pearson his wife, of the one part, and the defendant of the other part, whereby the lessors demised to the defendant all that and those, part of the town and lands of Cappanihane with others, containing 150 acres, for the lives of the said Edward White, Richard White, first and then only son of the said lessee, and Wm. Fry, and for the natural lives and

life of all such other person or persons as should from time to time thereafter be added thereto pursuant to a covenant therein contained subject to the rent of £100; and the said lease shall be deemed to be incorporated with this case, and contained a covenant for perpetual renewal as therein.

4. The said tithe rentcharge of 6s. a-year was never paid by the defendant, but was paid by the agents for the lessors in the said lease of 17th September, 1851, up to the 1st November, 1886. At the date of the said lease to the said defendant Edward White, the lessors were owners in fee-simple of the said lands and were liable as such to pay the said tithe rentcharge at the date of the said lease.

5. Plaintiffs’ counsel relied on 2 & 3 Wm. 4, c. 119, ss. 7 and 8, 1 & 2 Vict. c. 109, the Renewable Leasehold Conversion Act, 1849 (12 & 13 Vict. c. 105), and the Landlord and Tenant Act, 1860.

6. The defendant admitted that the said lands had been duly charged with the said tithe rentcharge, but contended that plaintiffs’ claim was barred by non-payment by the defendant or his predecessor in title or agent on his behalf of the said charge, since the creation of the estate by which the defendant holds said lands. Defendant also contended that such estate was not the first estate of inheritance in said lands.

7. Plaintiffs’ counsel admitted that the claim was liable to be barred by non-payment, but contended that payments made up to 1886 were for the use of the defendant and that he was not therefore entitled to rely on the Statute of Limitations.

QUESTIONS.

1. Has Edward White the first estate of inheritance in the said lands, so as to make him liable to pay the said tithe rentcharge?

2. If so, is the said claim barred by the Statute of Limitations, having regard to the payments made as aforesaid up to 1st November, 1886?

W. F. Kenny (with him Matheson Q.C.), for the plaintiffs:—

Edward White had the first estate of inheritance and was therefore liable for this tithe rentcharge. There was no discontinuance of payment for twelve years, so as to bring the claim within the Statute of Limitations. [Counsel referred to Irish Land Commission v. Grant (1); Verschoyle v. Perkins (2); Adnam v. Earl of...