Mary Prendergast v Bridget Mongan and Others

• Jurisdiction: Ireland
• Judge: Dodd, J.
• Judgment Date: 11 March 1913
• Court: Chancery Division (Ireland)
• Date: 11 March 1913

Mary Prendergast

and

Bridget Mongan and Others.

Dodd, J.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1913.

Statutory tenancy — Owner of undivided share — Jurisdiction to order sale in lieu of partition — Consent of landlord to a partition not a condition precedent to the institution of a suit for partition — Consent to a sale — Partition Acts, 1868 (31 & 32 Vict. c. 40), section 3; 1876 (39 & 40 Vict. c. 17), section 7 — Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), section 5.

In an equity suit by an owner of an undivided share in a holding held for a statutory term, brought against the owner of the other shares, seeking for a sale in lieu of partition, the Court has jurisdiction to order such sale, notwithstanding that the landlord has not given his consent to a partition.

This was an appeal, heard by Dodd, J., at the Mayo Spring Assizes, 1913, from an order of the County Court Judge, made on the hearing of an Equity civil bill. The facts and the nature of the arguments sufficiently appear from the judgment.

Leonard, for the plaintiff.

Price and Devitt, for the defendants.

Dodd, J.:—

The plaintiff and the defendants are entitled among them to a holding for a statutory term in Clooncondra, of 56a. 1r. 39p. at a rent of £15 15s. per annum.

Their rights are declared by an order of Mr. Justice Barton, dated 24th January, 1912. He declares that the plaintiff holds the land as trustee for herself and the defendants in proportion to the share of the purchase-money contributed by each of them as follows:—Mary Prendergast, £80 19s.; Bridget Mongan,£105 17s.; Kate Mongan, £37 17s.; and Julia Mongan, £26 12s. (1).

There was a further declaration that the parties liable on foot of bills of exchange or promissory notes in respect of loans made for the purchase of the said lands are entitled to be indemnified against liability for the principal of such loans by the said lands, and to be recouped such principal sums. The lands are declared also to be subject to a charge of £120 raised from the National Bank, Castlebar.

In such a state of title, the plaintiff brings a suit in the County Court for a sale in lieu of partition. The County Court Judge on the 2nd of November, 1912, appointed Mr. Kelly to make a valuation. He valued the lands at £375. I have no materials before me as to what was included in that valuation. If the value of the holding at the time of the sale was adequate, the lands would seem to have increased in value by £123 15s., i.e. from £251 5s. If in the value of £375 the charge of £120 to the bank was not deducted, this would explain the figures.

At the adjourned hearing the defendants stated they were prepared to pay the plaintiff her proportion of the said sum of £375, and to take over the lands, freeing her from all claims affecting the same, and to abide by any order as to costs which the Judge might make. The appointment of the valuer was made under the Partition Act at the instance of the defendants. The plaintiff refused to accept the offer. No effort apparently was made by either party to ascertain whether the landlord would or would not consent to a sale or a partition. The lady declined the offer. The County Court Judge was then asked by the defendants to decide that he had no jurisdiction to make an order for sale in lieu of partition on the ground that the landlord had declined to consent to such partition or sale. He did so decide. In so doing he was supposed to be acting in accordance with the view of the Lord Chief Baron as expressed in Trench v. Glennon (1).

Before dealing with that authority I may point out that the proposed offer, made the basis of his decision, was also one that

required the landlord's sanction; and if he had no jurisdiction in the one case, he had none in the other.

But let us see how far the supposed decision justified his action.

I am quite accustomed to have decisions of the...