Patrick Farrell v Ellen Donnelly, John Donnelly, Patrick Donnelly, and Ellen Donnelly

• Jurisdiction: Ireland
• Judgment Date: 04 November 1912
• Date: 04 November 1912
• Court: Court of Appeal (Ireland)

PATRICK FARRELL

and

ELLEN DONNELLY, JOHN DONNELLY, PATRICK DONNELLY, AND ELLEN DONNELLY.

Appeal.

— Jurisdiction of Chancery Division and County Court — Tenant purchasers —— Annuity to Land Commission in existence — Tenancy in common in purchased holding —— Equity civil bill seeking sale in lieu of partition ———

Ex parte Domville; In re Fowler 14 Ir. Ch. R. 19.

Eyre v. McDowellENR 9 H. L. C. 619.

Hilton v. Tipper 16 W. R. 888.

In re Flood's Estate 7 L. R. I. 545.

In re RoulstonIR [1909] 1 I. R. 306.

Kennelly v. EnrightUNK 8 L. R. Ir. 33.

National Bank v. DiffelyIR [1910] 1 I. R. 271.

O'Kane v. BurnsIR [1897] 2 I. R. 591.

Pryor v. PryorELR L. R. 19 Eq. 595, per Bacon, V.-C., p. 598.

Roper v. RoperDLTR 41 Ir. L. T. R. 231.

Sinclair v. JamesELR [1894] 3 Ch. 554.

Tench v. GlennonDLTR 34 Ir. L. T. R. 157.

50 THE 1 LUSH REPORTS. [1913. J. F. Moriarty, in reply :— The defendant fraudulently suppressed the will, and allowed CREED v. the plaintiff to take out administration, and bring the action OR CREED. that basis. A Court of Equity should not listen to a suitor who, as here, is in effect setting up his own fraud. Fraud is a good answer to a plea of the Statute of Limitations. BARTON, J . :— I am of opinion that this summons should be dismissed with costs, as the plaintiff's letters of administration were void ab initio ; and she had no title to sue when the action was brought. I shall, however, look more carefully into the papers, and the cases which were cited, before the order is made up. [His Lordship afterwards (Nov. 12th) intimated that he remained of the same opinion.] Solicitor for the plaintiff : C. W. A8he. Solicitor for the defendant : T. P. Grainger. E. C. F. PATRICK FARRELL v. ELLEN DONNELLY, JOHN DONNELLY, PATRICK DONNELLY, AND ELLEN DONNELLY (1). Partition Acts, 1868 (31 4- 32 Vict. c. 40), s. 3; 1876 (39 4 40 Vict. c. 17), 8. 7—Jurisdiction of Chancery Division and County Court—Tenant purchasers—Vesting order registered subject to equities—Annuity to Land Commission in existence—Tenancy in common in purchased holding , Judgment registered as mortgage against interest of one of several coÂowners—Equity civil bill seeking sale in lieu of partition—Consent of Land Commission to partition whether a condition to a decree for sale—Land Law (Ireland) Act, 1881 (44 4- 45 Vict. c. 49), s. 30, (1) a—Irish Land Act, 1903 (3 .Edw. 7, c. 37), s. 54, (1) (a). A judgment mortgagee of the share of one of several co-owners of a holding, purchased under the Land Purchase Acts subject to an existing annuity payable to the Land Commission, may obtain, under the Partition Acts, an order for sale of the whole without the consent of the Commission to a partition. (1) Before THE LORD CHANCELLOR, and LORDS JUSTICES HOLMES and CHERRY. CASE STATED by Wright, J., at the Longford Summer Appeal. Assizes, 1912, on a civil-bill appeal by the plaintiff against an 1912. RELL FAR order of the County Court Judge, dated 21st June, 1912. v. The plaintiff obtained judgment on the 17th July, 1911, DONNELLY. against the defendant, John Donnelly, and registered the same as a mortgage against the interest of the said defendant in the lands of Cloonfore, in the county of Longford, for the sum of £85 16s. These lands were formerly the property of James Donnelly, late husband of the first-named defendant, Ellen Donnelly, and father of the three other defendants, as tenant to the Earl of Granard. He died more than twenty years ago intestate, and his widow and children, as his next-of-kin, continued in possession of the lauds. In 1892 the widow, Ellen Donnelly, purchased the lands of Cloonfore through the Irish Land ComÂmission subject to an annuity of £7 19s. 6d. payable to the Commission, and she was registered as owner thereof subject to equities. The plaintiff issued a civil bill stating that the said sum of £85 16s. was due to him on foot of the said judgment mortgage, that the Donnellys were in possession of these lands and were entitled to the same undivided shares as tenants in common, the defendant John being entitled to two undivided ninths of the said lands, and that a sale would be more beneficial to the parties interested than a division ; and the civil bill accordingly sought for a sale of the lands. No consent of the Land Commission to a partition or sale had been obtained. On the hearing of the civil bill the County Court Judge made:an order adjourning the case to the following sessions, with liberty to the plaintiff to amend by seeking a partition. From this order the plaintiff appealed to the Judge of Assize, Wright, J., who, being of opinion that an order for sale should be made, ordered a sale accordingly, but, at the request of the defendants, stated the present case. In the case his Lordship stated that he was of opinion that the jurisdiction of the Court to order a sale was alternative or supplementary to the jurisdiction to decree partition, that the jurisdiction to sell was independent of the jurisdiction to partition, and could be exercised without the consent of the Land Commission. THE IRISH REPORTS. [1913. The question reserved for the Court was : " Whether, under the circumstances of this case there was jurisdiction to order a sale of the lands, no consent by the Land Commission to the partition of the lands having been obtained ?" Wylie, for the appellants : The question arising in the present appeal is : Whether, where a person has purchased his holding under the Land Purchase Acts, subject to an annuity still existing and payable to the Land Commission, and the land becomes vested in several co-owners, any one of them or his incumbrancer can have a sale under the Partition Acts in lieu of a partition, without the consent of the Land Commission ? This power of sale is given by the Partition Act, 1868 (31 & 32 Viet. c. 40), section 3 : " In a suit for partiÂtion, where, if this Act had not been passed, a decree for partition might have been made, then, if it appears to the Court that ... a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may...