Re Carrige and M'Donnell's Contract

• Jurisdiction: Ireland
• Judgment Date: 17 January 1895
• Date: 17 January 1895
• Docket Number: 1984. No. 1015.
• Court: Court of Appeal (Ireland)

In Re Carrige and M'Donnell's Contract.

V.-C.

Appeal.

(1894. No. 1015.)

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.

1895.

Local Registration of Title (Ireland] Act, 1891 (54 & 55 Vict c. 66), s. 18 — Land recorded under the Record of Title Act (Ireland), 1865 (28 & 29 Vict, c. 88) — Dealing after 1st January, 1892 — Rules, 21st December, 1891, Rule 20 — Vesting order — Closing of record — Vendor and purchaser — Duty of vendor — Objection going to root of title — Time condition.

An order, under the Trustee Act, 1850 (13 & 14 Vict. c. 60), appointing new trustees, and vesting lands in them, is a dealing with the land by conveyance, mortgage, or otherwise, within the meaning of Rule 20 (Rules of the 21st December, 1891), under the Local Registration of Title (Ireland) Act, 1891 (54 & 55 Vict. c. 66).

Where, after the 1st January, 1892, there has been such a dealing with land recorded under the Record of Title Act (Ireland), 1865 (28 & 29 Vict. c. 88), although the record under that Act has not been closed, or a new folio opened under the Local Registration of Title (Ireland) Act, 1891, and the Rules thereunder, the recorded owner is precluded from dealing with the land under the old record, and from recording acts thereunder.

Accordingly, where the persons recorded as owners under such a dealing, without having the old record closed or a new folio opened, agreed to sell the land:—

Held, that they, and not the purchaser, were the proper persons to procure the old record to be closed and a new folio opened; that until this was done they had no title to give; and that an objection on this ground went to the root of the title, and was not too late, though not made within the time stipulated for objections.

Summons under the Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78).

By his will dated the 27th May, 1884, and a codicil thereto, Sir John Bradstreet devised to trustees, amongst others, his lands in the county of Galway, with a direction to sell. The testator died on the 21st November 1889. One of the trustees being dead, and the other declining to act, by an order of the Vice-Chancellor dated the 14th February, 1893, under the Trustee Acts, 1850 and 1852 (13 & 14 Vict. c. 60; 15 & 16 Vict. c. 55), John Carrige and Anna Matilda Bradstreet were appointed trustees of the will and codicil, and the lands were vested in them upon the trusts thereof.

On the 5th October, 1894, John Carrige and Anna Matilda Bradstreet caused the Galway property to be put up for sale by auction in six lots. The rental and particulars stated that the lands were held in fee-simple and that the title had been recorded. The seventh condition of sale provided that all objections and requisitions in respect of the title or the abstract or particulars, or the conditions or anything appearing therein respectively, should be stated in writing and sent to the vendors' solicitors within seven days from the delivery of the abstract, and that all objections and requisitions not sent within that time should be considered to be waived.

Martin M'Donnell became the purchaser of lot 3 for £400.

An abstract of title was furnished by the vendors, the only entry on the record of title after the 1st January, 1892, being the following:—

Recorded 7th June, 1894.—Folio 489.

Pursuant to an order of the Court, dated the 7th day of June, 1894, and the documents therein referred to, John Carrige, of 10, Synnott Place, in the city of Dublin, Esquire, and Anna Matilda Bradstreet, of Castilla, Clontarf, in the county of Dublin, spinster, are recorded as owners as trustees for sale of the estate recorded on Folio 489, subject as above stated.

The purchaser twelve days after the delivery of the abstract furnished objections and requisitions as follows:—

The title to the lands purchased is under the Record of Title (Ireland) Act, 1865, and the record has not been closed in pursuance of Rule 20, made in pursuance of the Local Registration of Title (Ireland) Act, 1891, notwithstanding that there has been a dealing with the recorded land since 1st January, 1892.

The purchaser requires that the record shall be closed, and that the title shall be registered under the Local Registration of Title Act, 1891.

The vendors must further produce to the purchaser a land certificate, showing their title, and procure the...