Re Gage's Estate

JurisdictionIreland
Judgment Date21 February 1886
Date21 February 1886
CourtChancery Division (Ireland)

CHANCERY DIVISION.

Monroe, J.

In RE GAGE'S ESTATE

Devereux's Estate 4 Ir. Jur. (O. S.) 16.

In re Grier Ir. R. 6 Eq. I.

In re KeoghUNK 4 Ir. Ch. Rep. 288.

In re Tottenham Ir. R. 3 Eq. 528.

Devereux's Estate 4 Ir. Jur. (O. S) 16.

Tithe rentcharge purchased by owner Unpaid instalments of purchase money Sale in Land Judges' Court Rental providing for payment of instalments out of proceeds of sale Conveyance purchase by owner Absolute credit Liability of owner and solicitor having carriage of sale.

VOL. XVII.] CHANCERY DIVISION. 111 IN RE GAGE'S ESTATE. Monroe, T. 1886. Tithe rentcharge purchased by owner-Unpaid instalments of purchase-money -Sale in Land Judges' Court-Rental providing for payment of instal ments out of proceeds of sale-Conveyance-Purchase by owner-Absolute credit-Liability of owner and solicitor having carriage of sale. Prior to a sale in the Land Judges' Court, the tithe rentcharge issuing out of the lands was purchased by the owner, and a merging order made under the 7th section of 35 & 36 Yid. c. 90, and certain instalments of the purchase-money paid. The rental which stated these facts provided that the remaining instalments were to be redeemed out of the purchase-money of the estate. Part of the lands was purchased by the owner, and the residue by other perÂÂsons. Conveyances were executed which did not refer to the unpaid instalÂÂments. The owner obtained absolute credit for his purchase-money, and the proceeds of the sale of the other portions of the estate were allocated without providing for the unpaid instalments. On the application of the Irish Land Commission : Held, that the owner, and, in case of his default, the solicitor having carÂÂriage of the sale, were liable to bring into Court a sum sufficient to answer these instalments ; Held, also, that by the effect of the conveyances, the lands themselves were no longer chargeable with the instalments. MOTION on behalf of the Irish Land Commission for an order that Thomas Stott, the solicitor having carriage of the sale, should be directed to take the necessary steps for the purpose of having lodged in Court a sum sufficient to redeem the remaining instalÂÂments unpaid of the purchase-money of tithe rentcharge payable out of the lands sold in this matter, and that, in default of lodgÂÂment of the said sum by the person to whom it has been paid, that the said Thomas Stott, as the solicitor having carriage of the sale, should be ordered to lodge the same. The lands in this matter were charged with an annual sum of 15 7s. 10d., payable for a period of fifty-two years, from the 1st day of November, 1871, being instalments of purchase-money of rentcharge in lieu of tithes payable out of the said lands by virtue VOL. XVII. LAW REPORTS (IRELAND). [L. R. I. of the provisions of the Irish Church Act Amendment Act, 1872. Under the Irish Church Act Amendment Act, 1881, and the Order of Council of the 12th day of September, 1881, these annual instalÂÂments became payable to the Irish Land Commission as successor to the Commissioners of Church Temporalities in Ireland. Bight only of those annual instalments were paid to the Irish Land ComÂÂmissioners ; and on the 17th day of August, 1880, the lands were sold in the Land Judges' Division, the rental stating that " The lands are not subject to any quit-rent. The ecclesiastical tithe rentcharge has been purchased by the owner, who has paid eight instalments of the purchase-money. The remaining instalÂÂments will be redeemed out of the purchase-money of this estate, and the several lots conveyed to the purchasers discharged of same." The estate was sold, one portion to Gage, the owner, and the remainder to the trustees of the Vane Tempest Estate. No money was lodged in Court to redeem the instalments; no notice was served on the Irish Land Commission or their predecessors, the Commissioners of Church Temporalities in Ireland, and no money was paid to either in respect of the unpaid instalments. Jan. 27. The ease came on for hearing on this day. Mr. Dodd, Q. C., on behalf of Mr. Stott, argued that the lands were still liable in the purchaser's hands ; and at the Judge's sugÂÂgestion the case stood for the purpose of serving notice of the appliÂÂcation on Gage, the owner, and the trustees of the Vane Tempest estate. Feb. 16. Mr. Madden, Q. C., and Mr. Cecil B. Roche, for the Land ComÂÂmission : If the instalments are not redeemed out of the purchase-money the Land Commission will lose the amount of the unpaid instalÂÂments. It is not possible to earmark the money, but the owner purÂÂchased his present estate out of the purchase-money, and either he or the solicitor, whose negligence caused the loss, should. refund the amount. The Court has full jurisdiction : Devereux's Estate (1), (1) 4 Ir. Jur. (0. S.) 16. -Vol.. XVII.] CHANCERY DIVISION. where a sum of 500 was lodged to the credit of the cause, and a sum of 33 thereout had been directed to be paid to a third party, and the solicitor for the owner irregularly drew out the whole of the said 500, and handed it to the owner, without paying the 33 ; the Court directed the owner to pay the 33, and in default that the solicitor should make good the same. With the decision of Judge Hargreave in that case both Baron Richards and Judge Longfield concurred ; and he there stated that " it is to the soliciÂÂtors having carriage of the proceedings that the Court always looks in the first instance, and we hold them primarily liable for any irregularity that may occur." In that case, however, the facts were somewhat peculiar ; therefore the usual order was varied. [See also In re Grier (1) ; In re Keogh (2) ; and the 31st General Rule as to the duties of solicitors in discharging arrears of tithe rent-charge : Madden, L. E. C. Prac., 27, 225, L. E. C. Act, 1858, s. 62 (21 & 22 Vict. c. 72).] Mr. Canting, for Mr. Gage, the owner : The lands are still liable to the instalments. They are declared by the Act of 1872 (35 & 36 Vict. c. 90), to be recoverable in the same way as tithe renteharge, and have practically all the inciÂÂdents and nature of tithe renteharge. The Land Commissioners have allowed the matter to lie over so long that it would be inequitÂÂable now to reopen it when Mr. Gage has invested money in portion of the estate. The Commissioners allowed all these dealings to take place, and now seek immediate payment of this large sum. 11b . Bates, for the Marquis of Londonderry...

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