Knox v Mayo

• Jurisdiction: Ireland
• Judgment Date: 02 December 1858
• Date: 02 December 1858
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

KNOX

and

MAYO.

Agar v. Fairfax 17 Ves. 533.

The Archbishop of Dublin v. TrimblestonUNK 12 Ir. Eq. Rep. 267.

The King v. Daly 2 How. Rev. Ex. 115.

Hill v. GrangeENR Plowd. 170; S. C., 3 Dy. 130 a.

Miller v. Warmington 1 J. & W. 493.

Cartwright v. PultneyENR 2 Atk. 380.

Jope v. MorsheadENR 6 Beav. 213.

Agar v. Fairfax 17 Ves. 533.

Boyle v. OlphertsUNK 4 Ir. Eq. Rep. 241.

Jack v. M'IntyreENR 12 Cl. & Fin. 151.

King v. Daly 2 How. Rev. Exch. 115.

Archbishop of Dublin v. TrimblestonUNK 12 Ir. Eq. Rep. 267.

17 & 18 Car. 2, c. 2.

17 & 18 Car. 2.

Weld v. HornbyENR 7 East, 199.

Rex v. OsborneENR 4 East, 327.

Stammers v. DixonENR 7 East, 200.

Agar v. Fairfax 17 Ves. 533.

Cole v. SewellENR 15 Sim. 284.

Jope v. MorsheadENR 6 Beav. 218.

The Archbishop of Dublin v. Lord TrimlestonUNK 12 Ir. Eq. Rep. 267.

192 CHANCERY REPORTS. 1858. Ch. Appeal. Court of tipped in ebancirg.* Dec. 2. KNOX v. MAYO. J. obtained a Tins case came before the Court on appeal from g decree made by grant by pa tent, of Ill LORD CHANCELLOR NAPIER, reported supra, vol. 7, p. 563, where acres, profit able land in the facts are fully stated. M., with all pasture, tur- bary, bogs 'to to Mr. Francis Fitzgerald, for the petitioner. the said pre- Even without the evidence of the Book of Distributions, it is mises belong- ing, or in clear that the petitioner is tenant in common with the respondents. anywise ap pertaining. K. The immemorial occupation of the bog of Clonkehane, has been, in and F. also ob tained similar accordance with the terms of the grant to Lord Mayo's ancestor, grants of lands in M. B. ob- " in common to the lands of Moneycrower." tamed a subse quent grant of It is objected to the petition that the shares are not ascertained ; " one quarter of land in M., but that is immaterial, as a reference to ascertain the shares may be containing 134 acres, profit_ made, and that was what was done in the leading case of Agar able land, and v. Fairfax (a). also a parcel of bog, in com- If the immemorial usage and the terms of the grants left any mon unto the above lands, doubt, that would be removed by the Book of Distributions, which is called C., con taining 236 clearly admissible in evidence, as being a public record made under acres." statutory authority, and which has been, by the uniform practice The lands of C. were imnie- of the Profession, treated as evidence. morially used for pasture and turbary, by the tenants of Mr. Lawson, for the respondent, Lord Mayo, contra. all portions of M. The Book of Distributions is not evidence, and it was so Held, on pe- decided by the Lord Chancellor Brady, in The Archbishop of tition for par tition, that the Dublin v. Trimbleston (b), following the authority of The King v. representatives of J., of K., of F. and of M., were tenants in common of C. Quare, whether the Book of Distributions is admissible in evidence ? Decree for partition, with reference to the Master to settle shares. (a) 17 Ves. 533. (b) 12 Ir. Eq. Rep. 267. * Ceram The LORD CHANCELLOR, LORD JUSTICE OF APPEAL & BARON GREENE. CHANCERY REPORTS. 193 Daly (a). Without the Book of Distributions there is no evidence 1858. to show a tenancy in common in Clonkehane. The evidence of user Ch. Appeal. by the petitioner's tenants is only evidence of a right of common of KNOX pasture, and of common of turbary in the lands, which would be in ,Itaxo. ' accordance with the terms of all the grants ; and while there is Argument. nothing in the earlier grants to pass any right in the soil, &c., of Clonkehane, the only words which can be contended to have that effect are the general words passing appurtenances ; but it is quite clear that land cannot pass as appurtenant to land : Co. Litt.,122 a; Hill v. Grange (b). Burke's is the only patent competent to convey the land and it does that subject to the right of common, which has since been exercised by the owners of the other shares. Then there are no materials for ascertaining the shares of the alleged tenants in common, at the time of the respective grants. When Cuffe's, the earliest of the grants, was executed, there was, in point of fact, no one to be tenant in common with him. The Crown granted him certain lands and their appurtenances, but therein were no words at all sufficient to create him a tenant in common with the Crown, of these other lands which were not, by express words, granted to him. The cases of Miller v. WarÂÂrnington (c), Cartwright v. Pultney (d), Jope v. Morshead (e), are clear authorities against the petitioner, who does not show title, but merely possession in himself. Thus the indeterminable nature of the share claimed prevents the petitioner from succeeding. It is not like Agar v. Fairfax (f), where the shares were expressly defined in the deed, by reference to the value of other lands, but there is nothing here so to define the shares. Mr. Brewster (with him Mr. F. Fitzgerald, for the respondent Martin, in the same interest with the petitioner), referred to Boyle v. Olpherts (g), and Jack v. M'Intyre (h), as showing that the word (a) 2 How. Rev. Ex. 115. (b) Plowd. 170; S. C., 3 Dy. 130 a. (a) 1 & W. 493. (d) 2 A& 380. (e) 6 Be,ay. 213. 0) 17 Vies. 633. CO 4 Ir. Eq. Rep. 241. (h)12 CL & Fin. 151. vol.. 9. 25 194 CHANCERY REPORTS. 1858. " bog," in a conveyance, meant not the right of turbary, but -Ch. Appeal. the soil. KNox V. MAYO. Mr. H. H. Hamilton, for the petitioner, was stopped by the _Argument. Court. Mr. Todd (with Mr. Lawson), for Lord Mayo. There are two important questions :-first, whether the Book of Distributions is admissible in evidence ? secondly, the construction of the several patents. First.-As to the admissibility in evidence of the Book of DistriÂÂbutions. It...