Re Conlon and Faulkener's Contract

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 13 April 1916
• Court: Chancery Division (Ireland)
• Date: 13 April 1916

In re Conlon and Faulkener's Contract.

M. R.

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.

1916.

Vendor and Purchaser — Abstract of Title — Costs of Verification — Proof that Vendor is heir-at-law of deceased Owner in Fee-simple — Proof of Payment of Succession and Estate Duty — Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 3, sub-s. 6 — Finance Act, 1894 (57 & 58 Vict. c. 30), s. 11.

Where the vendor's title depends on the fact of his being heir-at-law of a deceased owner of the property, and the fact of his heirship is stated on the abstract, the abstract is complete, and proof of his heirship, by statutory declaration or otherwise, is merely verification of a fact stated on the face of the abstract. Accordingly, by sect. 3, sub-s. 6, of the Conveyancing and Law of Property Act, 1881, the expense of procuring such proof must be borne by the purchaser.

In re Moody and Yates's Contract, 30 Ch. D. 344, distinguished.

An abstract of title which does not show that succession and estate duty, to which the property became liable on the death of a previous owner from whom title is traced, have been paid, or that no duties were payable, is defective; and proof that such duties have been paid, or are not payable, must be furnished by the vendor free of expense to the purchaser.

Summons under the Vendor and Purchaser Act, 1874.

On the 21st January, 1916, Thomas Conlon agreed to purchase from Arthur Faulkener a profit rent of £45 15s. 5d. issuing out of hereditaments in Belfast held under fee-farm grant. The abstract disclosed that the vendor was selling as heir-at-law of his mother, Mrs. Sarah Little (otherwise Faulkener), who died on the 1st March, 1909. Requisitions on title were furnished by the purchaser's solicitor on the 29th January, 1916, including requisitions requiring evidence of the right of the vendor as heir-at-law, and proof of the payment of succession and estate duty in respect of the premises. The vendors solicitor in his reply to the first of these requisitions referred the purchaser to sect. 3, sub-s. 6, of the Conveyancing and Law of Property Act, 1881; and replied to the other by stating that all duties payable on the death of Sarah Faulkener had been discharged. Some correspondence ensued between the vendors solicitor and the purchasers solicitor, and the latter finally stated that his client would be satisfied if the vendor provided, at his own expense, (a) a statutory declaration by a competently informed person, showing that the vendor was heir-at-law of Mrs. Sarah Faulkener; (b) the Inland Revenue receipt for succession duty payable on the vendor's succession; and (c) a certificate of the payment of estate duty under sect. 11 of the Finance Act, 1894. To this the vendor's solicitor replied that he was willing to procure the evidence required, but would only do so at the purchaser's expense.

The present summons was taken out by the purchaser for a declaration that his requisitions in respect of the title to the premises had not been sufficiently answered in reference to these matters.

Carrigan K.C., for the purchaser:—

The summons raises a serious question as to conveyancing practice in Ireland. The vendor contends that, selling as heir-at-law of Sarah Faulkener, he can refuse to prove the essential fact of heirship, save at the purchaser's expense. There is no case which decides that sect. 3, sub-s. 6, of the Conveyancing Act, 1881, entitles him to take up this attitude. The proof of his heirship is part of his title, and not merely evidence in verification of it: In re Moody and Yates's Contract (1). Sect. 3, sub-s. 6, of the Conveyancing Act, 1881, only applies to the production of documents not in the vendor's possession, or to proof of collateral matters, not to essential matters forming part...