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

JurisdictionIreland
CourtCourt of Appeal (Ireland)
Judgment Date20 Dec 1895

Chancery Division

Appeal.

V.- C.; Lord Ashbourne, C., Fitz Gibbon, Barry and Walker LJJ

IN THE MATTER OF LYONS AND CARROLL'S CONTRACT, AND IN THE MATTER OF THE VENDOR AND PURCHASER ACT, 1874.

Alexander v. MillsELR L. R. 6 Ch. App. 124, at p. 133.

Best v. HamandELR 12 Ch. D. 1.

Blenkhorn v. Penrose 29 W. R. 237.

Brewer v. BroadwoodELR 22 Ch. D. 105.

Coffee v. CooperENR 2 Dr. & Sm. 365.

Cooper, v. SlightELR 27 Ch. D. 565, at p. 569.

Dane and Carey's ContractELR 40 Ch. D. 601.

Dykes v. BlakeENR 4 Bing. N. C. 474.

Eyre v. EyreUNK 49 L. T. (N. S.) 258.

Hargreaves and Thompson's ContractELR 32 Ch. D. 454.

In re Marsh and Earl GranvilleELR 24 Ch. D. 11.

In re Marsh and Earl GranvilleELR 24 Ch. D. 11; see p. 17, 24.

In re Mc Vicker's ContractUNK 25 L. R. Ir. 307.

In re National Provincial Bank of England and MarshELR [1895] 1 Ch. 190.

In re Sandbach and Edmondson's ContractELR [1891] 1 Ch. 99.

Isaac v. HughesELR L. R. 9 Eq. 191.

Johnson v. WebsterENR 4 De G. M. & G. 488.

Johnston v. SmileyENR 17 Beav. 233.

Kinsella v. Caffrey 11 Ir. Ch. R. 154.

Marquis of LondonderryELR 4 Ch. D. 693.

Miley v. CapeUNK 43 L. T. (N. S.) 237.

Nunn v. HancockELR L. R. 6 Ch. App. 850.

Palmer v. LockeELR 15 Ch. D. 299.

Priestley and Davidson's ContractUNK 31 L. R. Ir. 122.

Rawlins' TrustsELR 45 Ch. D. 299.

Re BanisterELR 12 Ch. D. 131.

Re Chambers 11 Ir. Eq. R. 518.

Re Gloag and Miller's ContractELR 23 Ch. D. 320.

Reid v. Shergold 10 Ves. 370.

Richardson v. HarrisonELR 16 Q. B. Div. 85.

Rosenberg v. CookELR 8 Q. B. D. 162.

Scale v. Rawlins [1892] App. Cas. 342.

Scott and Alvarez's ContractENRELR Ibid. 596, and [1895] 2 Ch. D. 603.

Shirley v. FisherUNK 47 L. T. (N. S.) 109.

Smith v. DeathENR 5 Madd. 371.

Stuart v. Kennedy 3 Irish Jurist, 305.

West v. BurneyENR 1 Russ. & M. 431.

Vendor and purchaser — Conditions of sale — Title — Will — Gift by implication — Release of testamentary power — Derogating from grant —— Return of deposit

Von. I.] CHANCERY DIVISION. 383 IN THE MATTER OF LYONS AND CARROLL'S CONTRACT, V.-c. AND IN THE MATTER OF THE VENDOR AND PUR- 1895. CHASER ACT, 1874. Nov. 6, 18. Appeal. Vendor and purchaser—Conditions of sale—Title—Will—Gift by implication Dec. 8, 9, 20. —Release of testamentary power—Derogating from grant—Vendor and Purchaser Act, 1874 (37 38 Viet. 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 misÂleading, 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 ; 1.896—VoL. I. 2 I 384 THE IRISH REPORTS. [1896. V.-C. Held, by the Vice-Chancellor, that the condition was good and binding, 1895. and that a good title within the condition was shown, and that the summons In re should be dismissed with costs. LYONS AND Held, by the Court of Appeal, that there was no implied gift to the children CONTLAC's of the sisters of the testator ; that on the death intestate of the deceased sister CONTRACT• 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 conseÂquence 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 declaÂration 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 Von. I.] CHANCERY DIVISION. 385 created therein by an indenture dated 29th August, 1874), to his V.-C. four sisters, Ellen Oates, Rosanna Mulvany, Elizabeth Goff, and . '895. Mary Lyons ` (the vendor), as their sole and separate property, and LI'a re YONS AND provided that in the event of any of his sisters dying, her share CAxxoLL's should be divided among the survivors, and by a codicil to his said CONTACT. 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...

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2 cases
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