Kenny v Labarte

• Jurisdiction: Ireland
• Judge: Andrews, J.
• Judgment Date: 12 January 1901
• Court: King's Bench Division (Ireland)
• Date: 12 January 1901
• Docket Number: (1899. No. 17,833.)

Kenny

and

La Barte (1).

Andrews, J.

(1899. No. 17,833.)

CASES

DETERMINED BY

THE KING'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.

1902.

Landed Estates Court conveyance — Description of premises — Adequacy of — Schedule and map inconsistent — Rejection of later description — Falsa demonstratio.

Where two adequate descriptions occur in a deed, each purporting to describe what the deed conveys, and these descriptions are, in fact, at variance with each other, the earlier description must prevail.

An action was brought to recover possession of premises known as 22, 23, 24, and 25, M.-street, formerly D.-street, in the town of C. the plaintiff's title was under a Landed Estates Court conveyance, whereby “the premises situate in or near D.-street in the town of C., then in the occupation of T. L., and more particularly described in the schedule thereunder written, and delineated on the annexed map,” were, with others, conveyed in fee simple, subject to the lease referred to in the schedule. The description in the schedule was—“Tenants' names, representatives of T. L.; description, in front to D.-street 43 feet, and from front to rere 58 feet; rent, 9s. 3d.; tenure, lease for 199 years from march, 1700.” the map merely showed a plot of ground coloured red, bounded partly by D.-street, and partly by a lane.

It was proved that the premises 22, 23, 24, and 25, M.-street formed no part of the premises described in the body and schedule of the conveyance, and were held by the defendants under a different title:—

Held, that the description in the body and schedule of the conveyance was an adequate description of what was intended to be conveyed, and that the additional description on the map was an erroneous description, and should be rejected.

Bradford v. Dublin and Kingstown Railway Co. (7 Ir. C. L. R. 57), Roe v. Lidwell (9 Ir. C. L. R. 184), and Dennehy v. Corrigan (2), followed.

Trial of Action. The facts of the case and the authorities referred to are sufficiently stated in the head-note and judgment.

The Right Hon The Macdermot, Q.C., Wakely, Q.C., and H. G. Richards, for the plaintiffs.

O'Connor, W.M. Jellett, Q.C., and M'Loone, for the defendants.

Andrews, J.:—

This action, which was tried before me without a jury at the last Michaelmas Sittings, was brought to recover the possession of premises known as Numbers 22, 23, 24, and 25 Mitchell-street, and Number 8, Flanagan's-lane in the town of Clonmel.

The title relied on by the plaintiffs was a Landed Estates Court conveyance in fee to Joseph Kenny (since deceased) dated the 21st April, 1860, and a devolution of his title to the plaintiffs. By that conveyance two portions of the estate of the trustees of the Earl of Glengall, and others, owners and petitioners, were granted to Joseph Kenny. One portion, which is not in dispute, is situate in Main-street, Clonmel, and this action is not concerned with it. The other portion is what this action relates to, and it is described in the grant in the body of the conveyance (omitting the description of the Main-street portion) as follows:—“The premises situate in or near Dublin-street” (which was subsequently named Mitchell-street) “in the town of Clonmel and county of Tipperary, now in the tenancy or occupation of the

representative of Theobald Lewis, and more particularly described in the schedule hereunder written and delineated in the annexed map with the appurtenances.” The habendum is to “Joseph Kenny, his heirs, and assigns, for ever, subject to the leases referred to in the schedule,” and subject, in conjunction with other specified lands of large extent, and certain other premises in the town of Clonmel, to a jointure rentcharge of £3200 per annum for the life of Margaret Lauretta Countess of Glengall, created by Richard Earl of Glengall by the settlement executed on his marriage with the Countess, dated the 19th February, 1834, and to two other yearly rentcharges of £800, and £400 respectively, also created by Richard Earl of Glengall in 1844, but indemnified against all these rentcharges by the lands therein particularly mentioned.

The schedule to the conveyance of 1860 describes the Dublin-street -premises in appropriate columns as follows:—“Denomination, premises in the town of Clonmel; Tenants' names, representatives of Theobald Lewis; Description, in front to Dublin-street 43 feet, and from front to rere 58 feet; Yearly rent, 9s. 3d.; Gale days, 25th March and 29th September; Tenure by which tenant holds, lease for 199 years from March, 1700.” Neither this lease nor any copy of it is forthcoming, nor is any fuller statement of its contents in evidence.

It was not suggested that the Main-street premises were not correctly delineated on the annexed map. What purports to be a delineation thereon of the Dublin-street premises is a rectangular plot coloured red, having apparently defined boundaries

daries on all sides, not showing the outline of any building or division, save a straight perpendicular line, running through the plot from front to rere, and bounded on the west and north by what appears on the map to be a lane, with parallel sides, not shown to be in any part built over. The scale of the map is 88 feet to one inch, which is not large enough to make a perfectly correct scale measurement otherwise than difficult; but the evidence satisfied me that this plot on the map scales as nearly as possible 58 feet from the front to the rere, which, as nearly as possible, corresponds with the measurement on the ground from the front to the rere of the premises in dispute. This did not appear to be controverted at the trial. The evidence also satisfied me, and it did not appear to be controverted, that the same plot scales on the map as nearly as possible, 50 feet in front to Dublin-street, and that either 43 feet or 50 feet in front, measured from west to east on the ground, would go into an existing house, and that a line drawn on the ground from the end of either the 43 or the 50 feet to the rere would have nothing in the nature of an existing division to represent it on the ground. I was, however, also satisfied upon the evidence, including some scale measurements on the map and on the ground which agreed, that, although the sides of Flanagan's-lane on the ground are not parallel, and although it is partially built over at its Dublin-street end, the lines on the map, which appear to indicate a lane along the west and north sides of the plot in question, were intended to indicate Flanagan's-lane, which in fact hounds the premises in dispute on the west and north. The object of indicating this lane on the map was obviously, in my opinion to show the locality of the plot in question. The east and south sides of Flanagan's-lane on the ground are straight, as shown on the map, and it was not necessary to show thereon the irregularities on the west and north sides of the lane as they exist. The devolution of title from Joseph Kenny to the plaintiffs was not disputed, and, although the evidence for the plaintiffs, to which I shall afterwards refer, failed to satisfy me that the rent of 9s. 3d. British, corresponding with 10s. Irish, issued, or was payable, out of the premises in dispute, I am of opinion that by the aid of the map on the conveyance of 1860 the evidence of the plaintiffs made out a prima facie case, which, taken by itself, would entitle them to a verdict for the possession of a plot of ground measuring in front to Dublin-street (now Mitchell-street) 43 feet from the east side of Flanagan's-lane, and bounded on the wst and north by the east and south sides of that lane, with the exception of a small rectangular plot in the rere, bounded on the west and north by Flanagan's-lane, and comprised within the red plot shown on the map of 1860. This small plot, which represents Number 8, Flanagan's-lane, was admittedly conveyed (inter alia) to the grantees in a later Landed Estates Court conveyance, dated the 7th May, 1895, to which I shall again refer, and this action was, therefore, discontinued as regards 8, Flanagan's-lane, but continued as regards Numbers 22, 23, 24, and 25, Mitchell-street, which were the premises in dispute at the trial.

The defence was a denial of the identity of the premises in dispute with the Dublin-street premises granted by the conveyance of 1860, and the case made in support of the defence was that the premises in dispute were not portion of what had been the Glengall estate, of which the Dublin-street premises in the conveyance of 1860 had been a part, but were portion of what had been the Ormonde Estate, and were held under a different title, commencing with a patent grant, dated the 14th November, in the 18th year of the reign of Charles the Second, to James, Duke of Ormonde, his heirs and assigns, of (inter alia) “part of the west of Clonmell Burgarey, containing 53 acres, and 1 rood plantation

measure.” The Landed Estates Court conveyance of May 7, 1895, admittedly conveyed to John Harley and others (inter alia), the plot constituting number 8, Flanagan's-lane (which was comprised in the map to the conveyance of 1860), and...