Irish Land Commission v Brown

• Jurisdiction: Ireland
• Judgment Date: 24 November 1902
• Date: 24 November 1902
• Court: Court of Appeal (Ireland)

IRISH LAND COMMISSION

and

BROWN

Appeal

Landlord and tenant ——— Tithe rentcharge — Liability of tenant after fair rent fixeâ.

Connolly v. TyrrellUNK 32 L. R. Ir. 97.

Ex parte Walton; In re LevyELR 17 Ch. D. 746.

Glenny v. BellIR [1898] 2 I. R. 233.

Glenny v. BellIR [1898] 2 I. R. 245.

Gray v. Gray [1894] 1 J. R. 65.

Hill v. East and West Indian Dock Company 9 A. C. at p. 456.

In re Gray; Gray v. GrayIR [1894] 1 I. R. 65.

In re Parke, Munster Bank v. Parke 1 Ir. Weekly R. 168.

In re Ruttledge's EstateIR [1895] 1 I. R. 328.

India Dock Co. 9 A. C. 448.

Irish Land Commission v. MagorianIR [1901] 2 I. R. 445.

Mairs v. LeckyIR [1895] 2 I. R. 475.

Morony AmbroseUNK 32 L. R. Ir. 63.

M'Evoy v. M'EvoyIR [1897] 1 I. R. 295.

Smyth v. MooreUNK 32 L. R. Ir. 129.

Sturges v. RyanUNK 24 L. R. Ir. 305.

The Irish Land Commission v. MagorianIR [1901] 2 I. R. 445.

Wilson v. SmithDLTR 23 I. L. T. R. 7.

200 K. B. Div. 1903. THE KING (BYRNE) v. JUSTICES OF DUBLIN. THE IRISH REPORTS. [1904. ANDREWS, J. :— Mr. Justice Boyd authorises us to say that he also concurs. Solicitor for the prosecutor : Sir Patrick Coll. Solicitor for John Loughrey : Matthew J. Brady. J. G. T. Appeal. IRISH LAND COMMISSION v. BROWN (1). 1902. July 1. Landlord and tenant—Land Law (Ireland) Acts—Redemption of Rent Act,. Nov. 24. 1891—Tithe rentcharge—Liability of tenant after fair rent fixed. The grantee or tenant under a fee-farm grant, after an order under the Redemption of Rent Act, 3891, fixing a fair rent upon his holding, still remains liable to tithe rentcharge. The Irish Land Commission v. Magorian ([1901] 2 I. R. 445) approved. APPEAL from an order of the King's Bench Division, dated the 30th day of April, 1902, whereby the question raised by a special case stated by Lord Justice Fitz Gibbon on the hearing of civil bill appeal at the Fermanagh Assizes (Spring), 1902, was answered in the affirmative. The special case was as follows : 1. The civil bill in this action was brought to recover £1 lls. 6d. claimed to be due by the defendants to the plaintiffs, as successors in title of the Church Temporalities Commissioners in Ireland, for three years' tithe rentcharge up to November 1, 1901, payable out of the lands of Drumhariff, in the parish of Cleenish, in the county of Fermanagh. 2. It was heard by the County Court Judge at Enniskillen on January 24, 1902, and he gave a decree for the sum claimed with costs. The civil bill is annexed and incorporated herewith. 3. The defendant appealed, and the appeal came on for hearing before me as Judge of Assize at Enniskillen on March 10,. 1902. Mr. Horner, counsel for plaintiffs, and Mr. Bird, counsel (1) Before FITZ GIBBON, WALKER, and Homas, L.JJ. VOL. II.] KING'S BENCH DIVISION. 201 for the defendant, applied to me to state a ease for the King's Appeal. Bench Division, stating that the facts were not disputed : that the 1902. husrr LAND liability of the defendant was a question of law, and it depended COMMISSION upon the effect of the decision of the King's Bench Division in V. `BROWN. the Irish Land Commission v. Magorian (1), and the decisions of Monroe, J., the Master of the Rolls, and the Court of Appeal referred to therein, which the defendant's counsel alleged to be in conflict with the decision of the King's Bench Division. Counsel having given me a dominical signed by them setting out these facts, I directed a special case to be stated accordingly, as the question was, in my judgment, proper to be decided by the King's Bench Division, and if necessary by the Court of Appeal. At the request of the parties, I did not consider the question. It was agreed that the costs of the civil bill appeal and of the special case should abide the result, save as to any costs which might be incurred in the Court of Appeal, which should abide the order of that Court, and that there should be no expenses of witnesses. 4. The lands of Drumhariff were held under a grant or lease for ever, dated January 23, 1787, from James Hall to David Gamble, a copy whereof is annexed and incorporated herewith. 5. The interest of James Hall was in 1899, and still is, vested in S. R. Bowles and James Macraith, and the interest of David Gamble then was, and still is, vested in William James Brown the defendant, who is in occupation of the lands. 6. On March 3, 1899, the defendant duly served an originating notice under the Redemption of Rent (Ireland) Act, 1891, to redeem his rent, or to fix a fair rent upon his holding, and the said S. R. Bowles and James Macraith did not consent to such redemption, whereupon proceedings were duly taken, which resulted in an order of the Land Commission made by a Sub-Commission, dated February 25, 1901, whereby the defendant was declared to be deemed to be a tenant of a present tenancy in the said holding, and the fair rent thereof was fixed and determined to be £32 per annum. The particulars of the said holding as required by the provisions of section 1 of the Land Law (Ireland) Act, 1896, were ascertained and recorded in a schedule of even date (1) [1901] 2 I. R. 445.. Appeal. referred to in the said order, and the grantors required that 1902. the right of sporting as mentioned in the Land Law (Ireland) IRISH LAND omssioN Act, 1881, should belong exclusively to them. The said order c v. and schedule are annexed and incorporated herewith. jiaoww. 7. No mention of any tithe rentcharge was made in the said order or schedule : the existence of, or liability to, tithe rentcharge was not taken into consideration in fixing or determining the fair rent of £32 per annum : no deduction was made in fixing the said fair rent on account of any tithe rentcharge payable to the Land Commission or otherwise. 8. All the tithe rentcharge claimed or recoverable in this action is to be taken to have accrued after the said order fixing the fair rent at £32 came into operation, the question of law which I was asked to state being exclusively conversant with the effect upon the defendant's liability of the said order, and the proceedings relating thereto. 9. The defendant is to be taken to be liable to pay the amount claimed, and the lands are to be taken to be chargeable therewith, unless the said order, and the proceedings relating thereto, had and have the effect of relieving him from such liability, or of showing that in law he is not so liable, or that the lands are not chargeable therewith. The question for the opinion of the Court is :—Whether, having regard to the order of the Land Commission, and the schedule therein referred to, and the other facts and evidence, the defendant is liable to pay the Land Commission the tithe rentcharge claimed in this action accruing after the said order came into operation ? If the above question be answered in the affirmative, the decree of the County Court will be affirmed with costs. If it be answered in the negative, the action will be dismissed on the merits with costs ; the costs in the High Court and the costs (if any) in the Court of Appeal will be awarded in accordance with the terms agreed upon by the parties as stated in paragraph 3 of the foreÂgoing case, upon the decision of the question being communicated to the Judge of Assize. Dated, etc. Vat.. II.] KING'S BENCH DIVISION. Henry, S. C., and J. W. Bird, for the appellant : The tithe rentcharge is payable by the person having the first estate in inheritance in the lands charged therewith (1 & 2 Viet. c. 109, s. 7). The appellant had such an estate in inheritance until his fair rent was fixed. But since the fair rent was fixed he has only a chattel interest, and not an estate of inheritance in the lands : Morony v. Ambrose (1); In re Gray ; Gray v. Gray (2). [WALKER, L.J. : That was a case of an estate pur autre vie, which had been mortgaged by a deed which contained a covenant to reconvey to the tenant, " his executors, administrators, and asÂsigns." Would not this covenant alter the character of the estate quite apart from the Land Law Acts ?] In In re Parke, Munster Bank v. Parke (3), In re Ruttledye's Estate (4) was cited ; but the decision of Monroe, J., therein was not followed by the Vice-Chancellor. This case was cited to the Master of the Rolls in M'Evoy v. M'Evoy (5), but notwithstanding it the learned Judge held that the owner of a freehold lease by fixing a fair rent for his holding converted his interest into a chattel, so that on his death intestate his interest therein passed not to his heir, but to his administrator. Connolly v. Tyrrell (6) is an authority to show that if the tenant of any lease within the Act of 1887 fixes a fair rent he converts...