Lyons and Carroll's Contract, and The Vendor and Purchaser Act, 1874

• Jurisdiction: Ireland
• Judgment Date: 20 December 1895
• Date: 20 December 1895
• Court: Court of Appeal (Ireland)

In the Matter of Lyons and Carroll's Contract, and in the Matter of The Vendor and Purchaser Act, 1874.

V.-C.

Appeal.

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1896.

Vendor and purchaser — Conditions of sale — Title — Will — Gift by implication — Release of testamentary power — Derogating from grant — Vendor and Purchaser Act, 1874 (37 38 Vict. c. 78), s. 9 — Return of deposit.

By his will, dated May 25, 1875, a testator devised premises, to which he was entitled in remainder in fee simple expectant on the determination of a life estate, subject to that life estate, to his four sisters (one of whom was the vendor) as their sole and separate property, and provided that in the event of any of his sisters dying, her share should be divided among the survivors; and by a codicil to his said will he directed that each of his said four sisters should have power to leave by will amongst any child or children they might have, any property they might derive under his said will or codicil, and that in default of issue or such will same should revert to the survivors.

One of the four sisters predeceased the tenant for life, leaving issue, but without having made any will.

After the death of the tenant for life, by an indenture dated September 25, 1883, two of the surviving sisters and their respective husbands conveyed to the third sister (the vendor) all the estate, right, title, and demand of each of them respectively, to hold in fee simple.

The vendor set the premises up for sale by auction, describing them in the particulars as being held in fee simple, and stating the facts above mentioned in the conditions of sale. One of the conditions bound the purchaser to admit that after the deaths of the tenant for life and the deceased sister the entire interest in the premises became vested in the surviving sisters, and that the conveyance of September 25, 1883, vested in the vendor a good title to the premises for an estate in fee simple. The condition did not state, though the fact was so, that one of the surviving sisters who had conveyed to the vendor had children living, nor did it state that it was the contention of the vendor that the conveyance by the sisters operated as a release of the testamentary power of appointment given them by the will and codicil. The purchaser objected that a good title was not shown by the vendor, that under the will and codicil the sisters only took life estates with a power of appointment amongst their children, and that the condition binding the purchaser to admit that the vendor had vested in her an estate in fee simple was bad and misleading, and issued a summons, asking for a declaration that title had not been shown by the vendor, and for the return of the deposit paid to the vendor:—

Held, by the Vice-Chancellor, that the condition was good and binding, and that a good title within the condition was shown, and that the summons should be dismissed with costs.

Held, by the Court of Appeal, that there was no implied gift to the children of the sisters of the testator; that on the death intestate of the deceased sister the gift over to the survivors took effect; that the testamentary power of appointment given by the codicil to the survivors was capable of being released, and that it was released or extinguished by the conveyance, and that therefore a good title was shown by the vendor.

Per Lord Ashbourne, C.: The condition was not misleading.

Per FitzGibbon, Barry, and Walker, L.JJ.: The condition was not binding.

Per Lord Ashbourne, C., and Barry, L.J.: Where, as the natural consequence of the order of the Court on a summons made under the Vendor and Purchaser Act, 1874, it would be just to order the return of the deposit to the purchaser, the Court has jurisdiction so to order.

The vendor, though held to have shown good title to the premises, having in the Court below relied solely on the conditions, and refused to argue the question of title:—

Held, by the Court of Appeal, that he should be awarded no costs, either in the Court below or of the appeal.

Summons on behalf of the purchaser asking for—1, a declaration that the vendor had not deduced good title to the fee-simple of the premises contracted to be sold by the contract dated the 12th July, 1895; 2, an order that the vendor be directed to return the deposit of £60 paid by the purchaser to the auctioneer at the sale with interest thereon; 3, that in default of payment of the said £60 and interest by the vendor, the same should be declared well charged on the vendor's interest in the premises; 4, the costs of the proceedings.

The vendor Mrs. Lyons, on July 12, 1895, set up for sale by public auction the house and premises known as 34, Wellington-street, Dublin describing them in the particulars as “held in fee-simple under Landed Estates Court Conveyance.” William Carroll attended at the auction, and having bid £200 for the premises was declared the purchaser and paid a deposit of £60 in respect of his purchase-money and commission.

The sale was subject to conditions, of which the ninth—the only one material for this report—was as follows:—

“By his will, dated 25th May, 1875, William Murphy bequeathed the premises (subject to Rosanna Murphy's life interest created therein by an indenture dated 29th August, 1874), to his four sisters, Ellen Oates, Rosanna Mulvany, Elizabeth Goff, and Mary Lyons (the vendor), as their sole and separate property, and provided that in the event of any of his sisters dying, her share should be divided among the survivors, and by a codicil to his said will, dated the 29th May, 1875, he directed that each of his said four sisters should have power to leave by will amongst any child or children they might have, any property they might derive under his said will or codicil, and that in default of issue or such will, same should revert to the survivors. Rosanna Murphy, the tenant for life, died 1st September, 1883. Rosanna Mulvany died 9th August, 1883, having issue, but without having made any will. The purchaser will admit that after the deaths of Rosanna Murphy and Rosanna Mulvany the entire interest in the premises became vested in Ellen Oates, Elizabeth Goff, and the vendor, Mary Lyons; and that the conveyance dated the 25th September, 1883, and made between Thomas Oates and Ellen Oates of the first part, John Goff, and Elizabeth Goff, of the second part, the vendor, Mary Lyons, of the third part, vested in the said Mary Lyons a good title to the premises for an estate in fee-simple. The said conveyance will be produced at the sale, and may be inspected for seven days previously at the office of the vendor's solicitor.”

An abstract of title and the various documents necessary for vouching the same was duly delivered to the purchaser s solicitor who after investigating the title wrote to the solicitor of the vendor raising the following objections—1, that on the true interpretation of William Murphy's will the gift over on the death of any of his sisters to the survivors would not take effect if the deceased sister left children, there being an implied gift to the children, even if their mother made no will; 2, that Mrs. Mulvany, the sister who was dead, had left children, and consequently the conveyance of September 25, 1883, did not vest a good title in the vendor for an estate in fee-simple, and that therefore the title mentioned in the particulars could not be given by her to the purchaser; 3, that Mrs. Oates and Mrs. Goff might have children, to whom they might leave their shares, and until the death of these ladies good title could not be shown. While raising these objections he stated that his client was a willing purchaser and asked to be informed of the names of all the children of the four sisters of—William Murphy, and inquired if their execution of the conveyance to the purchaser could be obtained.

The solicitor for the vendor replied that the conditions had been prepared by counsel to meet the objections raised, and declined to comply with the requisitions so made on behalf of the purchaser.

The purchaser's solicitor then issued this summons.

The words of the material part of the codicil to William Murphy's will were:—“I further direct that each of my said four sisters shall have power to leave by will amongst any child or children they may have any property they may derive under my said will or this codicil, and that in default of issue or such will the same shall revert to the survivors as already mentioned in my said will.”

The conveyance of September 25, 1883, recited William Murphy's title to the premises, his will and codicil, and probate thereof on his death; the death of Rosanna Mulvany on August 9, 1883, “without having in any way dealt with her interest in the premises”; the death of Rosanna Murphy on September 1, 1883, “whereupon the said Ellen Oates, Mary Lyons, and Elizabeth Groff became equally entitled to the said premises”: that a valuation of the premises had ascertained the value at £210, and that Mary Lyons being entitled to one-third of the interest of said premises had “agreed to purchase the shares or interest in the said premises of the said Ellen Oates and Elizabeth Goff, and to pay each of them therefor the sum of £70.” Then in pursuance of this agreement and in consideration of the said two sums of £70, Ellen Oates and Elizabeth Goff, as beneficial owners, conveyed and assigned, and their respective husbands conveyed, assigned, and confirmed unto Mary Lyons the premises “and all the estate, right, title, interest, and claim, and demand of them the said Thomas Oates, Ellen Oates, John Goff, and Elizabeth Goff, in, to, out of, or upon the said hereditaments and premises,” to have and to hold the same unto Mary Lyons, her heirs, and assigns for ever for her own separate estate.

It was admitted during the...