Re Fayle and the Irish Feather Company's Contract

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 09 November 1917
• Court: High Court
• Docket Number: (1917. No. 695.)
• Date: 09 November 1917

In re Fayle and the Irish Feather Company's Contract.

M. R.

(1917. No. 695.)

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.

1918.

Vendor and purchaser — Title — Defect in conveyance of real estate — Omission of the word “heirs” in habendum — Intention.

Premises held under a fee-farm grant were conveyed by way of mortgage to a firm of three solicitors, carrying on business under the name of M. & Co. The premises were granted to “M. and Co., their heirs, successors, and assigns, to hold unto, and to the use of M. & Co., their successors and assigns.” M. & Co., under the statutory power of sale, sold the premises to the predecessors in title of the vendor.

The purchaser objected to the title on the ground that by reason of the absence from the habendum of the words “heirs” the conveyance did not pass the fee, but at most an estate for the joint lives of the members of the firm of M. & Co. and the survivors and survivor of them.

Held, that the intention of the conveyance was to give the whole estate to the mortgagees, and that it passed in fee.

Summons under the Vendor and Purchaser Act, 1874.

This was an application by Elizabeth Fayle, the vendor, for an order that an objection, that a conveyance by way of mortgage, dated August 27th, 1887, whereby the freehold hereditaments known as 54 Poolbeg Street, in the city of Dublin (purchased from the vendor by the Irish Feather Co., Ltd.), were granted to the grantees, their heirs, and successors, and assigns to hold to the use of the grantees, their successors, and assigns, gave the grantees an estate for life only, was not maintainable.

The following statement of the facts is taken from the judgment of O'Connor M.R.:—

This is a question between vendor and purchaser, and arises out of a conveyance through which the vendor's title is derived. The lands, the subject-matter of the contract for sale, are held under a fee-farm grant to James Macken, his heirs, and assigns. He mortgaged them in fee-farm to James Goff. By a subsequent mortgage, in which the mortgagor and mortgagee joined, the lands were mortgaged to a firm of solicitors, Messrs. Meldon & Co., who, acting under the powers conferred on mortgagees by the Conveyancing Act, put up the lands for sale, and sold and conveyed them to a predecessor in title of the vendor.

The objection of the purchaser is, that the conveyance to the mortgagees who sold is defective, in that it was not in proper form, and did not give them the fee-farm estate, but at most only an estate for the joint lives of the members of the firm of Meldon & Co., and the survivors and survivor of them. The mortgage is dated the 27th August, 1887, and made between James Macken, the mortgagor, of the first part; James Goff, a mortgagee, of the second part; and John J. Meldon, James F. Meldon, and Louis S. Meldon, described as carrying on business as solicitors as Meldon & Co., of the third part. It recites the title of the mortgagor as owner in fee-farm of the lands; it recites that the mortgagor had incurred certain liabilities, including money secured to James Goff by a mortgage of the lands, and that Meldon & Co. had agreed to advance the moneys required to pay off these liabilities, other than the liability to James Goff, on being secured their advances, and certain costs, in the manner thereinafter appearing, and that Goff should join in postponing his mortgage. The...