Irish Land Commission v Patrick Magorian, Robert James Watson, Hugh Alexander, and Robert Eakins

• Jurisdiction: Ireland
• Judgment Date: 01 December 1900
• Date: 01 December 1900
• Court: Queen's Bench Division (Ireland)

Irish Land Commission

and

Patrick Magorian, Robert James Watson, John Stewart, Hugh Alexander, and Robert Eakins (1).

Q. B. Div.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1901.

Fee-farm grant — Redemption of Rent Act, 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, 1891, fixing a fair rent upon his holding, still remains liable to tithe rentcharge.

In re Ruttledge's Estate ([1895] I. R. 328) followed.

Case Stated by Mr. Justice Barton at the Spring Assizes for the county Down, 1900. The case stated was as follows:—

1. The civil bill in this case was brought to recover the sum of £13 11s. 4d., for four and a-half gales of tithe rentcharge up to and ending the 1st day of November, 1899, in respect of certain titheable lands situate at Ballyginney, parish of Maghera, and county of Down.

2. The County Court Judge granted a decree against the defendants, Patrick Magorian, Robert James Watson, John Stewart, and Hugh Alexander, for the full amount sued for, and dismissed the case on the merits against the defendant Robert Eakins. The plaintiffs appealed from the said dismiss. The real name of the defendant sued as Robert James Watson is Robert James Watterson.

3. The said lands of Ballyginney are held under a fee-farm grant dated the 30th day of October, 1875, made between William Nevin Wallace of the one part and P. M'Ilroy and Patrick Magorian of the other part. By a sub-grant dated the 16th day of March, 1877, and made between P. M'Ilroy of the first part,—Casement of the second part, and Daniel Casement of the third part, the said P. M'Ilroy granted portion of the said lands to the said Daniel Casement subject as therein. The interest

of the grantor in the said sub-grant is now vested in Robert James Watterson, sued herein as Robert James Watson, and the defendant Robert Eakins, was in the year 1897 entitled to the grantee's interest under said sub-grant.

4. The defendant, Robert Eakins, on the 12th day of February, 1897, duly served an originating notice under the Redemption of Rent (Ireland) Act, 1891, to redeem his rent under said sub-grant or to be deemed a tenant of a present tenancy in said holding held by him under sub-grant and to have a fair rent fixed for said holding; and the said Robert James Watterson, who was then entitled to the grantor's interest under said sub-grant, not consenting to such redemption, by an order of the Court of the Irish Land Commission dated the 27th day of January, 1898, made on the hearing of said originating notice, the said Robert Eakins was deemed a tenant of a present tenancy in said holding, and the fair rent of said holding was fixed at the sum of £19 2s., payable half-yearly on each 1st day of May and 1st day of November.

5. The defendant, Robert James Watterson, paid the plaintiffs the proportion of said tithe rentcharge issuing out of the lands of Ballyginney, held under said sub-grant up to the 1st day of November, 1897, and thereupon in the month of January, 1899, issued a civil bill against the defendant, Robert Eakins, for one a year's tithe rentcharge to November, 1897, paid by him as aforesaid in respect of the Robert Eakins' said holding. On the hearing of said civil bill the said Robert James Watterson obtained a decree against the said Robert Eakins for the half of said tithe rentcharge due up to the 1st day of May, 1897.

6. By an apportionment order dated the 1st day of December, 1891, and filed on the 10th day of February, 1897, the plaintiffs apportioned the tithe rentcharge sued for in this case as mentioned in said order. And it was proved by the plaintiffs that there was no separate applotment of any portion of the tithe rentcharge sued for in this action on any separate portion of the lands held under said fee-farm grant of 30th October, 1875. The defendant, Robert Eakins, prior to the fixing of said fair rent, paid to the grantor in said sub-grant £1 2s. 6d. per annum as his proportion of the tithe rentcharge sued for in this case in respect of the lands held by said Robert Eakins under said sub-grant.

7. The defendant, Robert Eakins, contends that, by reason of said originating notice and order made thereon, he is not liable for any part of the tithe rentcharge sued for in this case, and the question for the decision of this Honourable Court is whether the said defendant is liable for any, and if so, for what part of said tithe rentcharge.

In the Pink Schedule which, amongst other documents, was incorporated with the case stated, “Tithe Rentcharge £1 12s 6d.” was specified in the proper column as a “deduction necessitated by special incidents of taxation.”

Robert Todd (with him Ronan, Q.C.), for the Irish Land Commission:—

The point in this case is concluded, so far as this Court is concerned, by the decision of Monroe, J., in Ruttledge's Estate (1). The use of authorities or decided cases is thus dealt with by Jessel, M.R., in Re Hallett's Estate (2): “There is, perhaps, nothing more important in our law than that great respect for the authority of decided cases which is shown by our tribunals. Were it not for that, our law would be in a most distressing state of uncertainty; and so strong has that been my view, that where a case has decided a principle, although I myself do not agree with it, and although it has been only the decision of a tribunal of co-ordinate jurisdiction, I have felt bound to follow it where it is of respectable age and has been used by lawyers as settling the law, leaving to the Appellate Court to say that the case is wrongly decided, if the Appellate Court should think so.” M'Evoy v. M'Evoy (3), in which the status of a lessee becoming a present tenant by the operation of Land Law (Ireland) Acts, 1881 (section 21) and 1887 (section 1) is discussed, is not a decision at variance with the principle laid down in Re Ruttledge (1). The facts were different, the question of tithe rentcharge did not arise, and in Re Ruttledge's Estate (1), though cited in the argument, was not referred to in the judgment. Since the decision in Ruttledge's Estate (1) the practice of the Land Commission in fixing

the rents of holdings formerly the subject of fee-farm grants has been based upon the assumption that the grantee, after the change of his status into a tenant from year to year, is to continue to pay the tithe rentcharge. Dealing with an analogous state of facts in Palmer v. Johnson (1), Brett, M.R., says: “All the sales by auction which have occurred since these decisions must have taken place on the law which has been so published, and therefore it would be very wrong now for this Court to overrule those decisions. It is true that there are two cases in which Malins, V.C., took a different view of the law. A court of law is not justified, according to the comity of our courts, in overruling a decision of another Court of co-ordinate jurisdiction, and therefore the Vice-Chancellor ought not to have differed from those former decisions.”

Section 57 of the Land Act of 1881 defines “Present tenancy.” The definition, which is not restricted to any quantum of interest, is wide enough to include any estate in the lands. By section 7 of the 1 & 2 Vict. c. 109, the liability to tithe rentcharge is cast upon the party having the first estate of inheritance. There is no estate of inheritance remaining in the grantor of a fee-farm grant after a fair rent has been fixed: Irish Land Commission v. Holmes (2). The obligation of the grantee to pay tithe rentcharge is not affected by the fixing of the fair rent, and stands upon the same footing as other obligations which have been held to continue notwithstanding the determination of the lease upon which they depend: Wilson v. Smyth (3).

D. M. Wilson for the defendant, Robert Eakins:—

In view of the decree against Watterson for this very tithe rentcharge, from which he did not appeal, this is an attempt on the part of the Land Commission to make the tenant Eakins liable for it also. This is impossible, as they cannot both be in possession of the first estate of inheritance in the same lands. In any event Eakins is only liable for a proportionate part of this tithe rentcharge: 63 & 64 Vict. c. 58, sect. 7. By the fixing of the fair rent Eakins' estate of inheritance in the lands under the

fee-farm grant determined. It is important to note that the words of the Redemption of Rent Act, 1891, sect. 1, are: “Be held to be a tenant of a present tenancy,” and not “deemed to be” as in the Acts of 1881 and 1887. This was a grant under the Church Temporalities Act, and the relation of landlord and tenant always existed between the grantor and grantee, and the grant was merely a lease for ever at a rent. These Acts contemplated the determination of such grantee's interest, and there is nothing impossible in such determination. For the position of a grantee who has had a fair rent fixed, see Mairs v. Lecky (1), and especially the observations of Palles, C.B., at page 485, and of Fitz Gibbon, L.J., at page 488. To hold that the estate of inheritance under the grant continued for any purpose would effect what Walker, L.C., condemned at page 483, viz., “To remit him (the tenant) to his original status as grantee, and to deprive him of the imputed one, on which all his conferred rights rest.”

It was also considered in Glenny v. Bell (2), where Ashbourne, L.C., says a fee-farm grantee who elects to apply to have a fair rent fixed, by his own act claims to have his fair rent fixed as if his grant had expired. Fitz Gibbon, L.J., says his position is the same as that of a lessee coming in after the expiration of a term. Walker, L.J., expresses some doubts, but quotes with approval the passage above referred to from the Chief Baron's judgment in Mairs v. Lecky (1)...