Re Hazlette

• Jurisdiction: Ireland
• Judgment Date: 12 May 1915
• Date: 12 May 1915
• Court: Court of Appeal (Ireland)

In re Hazlette (1).

Appeal.

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.

1915.

Local Registration of Title — Registration subject to Equities — Jurisdiction of Registering Authority to cancel Note as to Equities where no Burdens to be entered — Statute of Limitations — Legacy charged on Land — Express Trust — Real Property Limitation Act, 1874(37 & 38 Vict. c. 57), ss. 8,10 — Trustee Act, 1888 (51 & 52 Vict. c. 59), s. Judicature (Ireland) Act, 1877 (40 & 41 Vict. c. 57), s. 28, sub-s. 2 — Local Registration of Title (Ireland) Act, 1891 (54 & 55 Vict. c. 66), s. 29.

Sect. 29, sub-s. 2, of the Local Registration of Title (Ireland) Act, 1891, provides for dispensing, on first registration of a person as owner of lands purchased under the Land Purchase Acts, with the ascertainment of burdens arising from the interest vested in the purchaser being deemed a graft upon his previous interest, in which case (sub-s. 3) the registering authority is to note on the register that the registration is made subject to equities arising from the interest vested in the purchaser being deemed such graft. By sub-s. 4, the registered owner may apply to the registering authority to ascertain and enter on the register any burdens the ascertainment of which may have been so dispensed with, and the registering authority “shall thereupon ascertain and enter such burdens on the register, and shall cancel such note as aforesaid.”

Held, that the registering authority has jurisdiction to cancel the note as to equities, not merely where burdens are ascertained and entered, but also where it appears that there are no burdens.

A testator left a farm to A, adding, “I direct that he shall pay the following legacies which I hereby charge upon my said farm,” the legacies being set out. He appointed A sole executor. The testator died in 1891, and A proved the will, and went into possession of the farm. He subsequently purchased it under the Land Purchase Acts, and, in 1905, was registered in the Land Registry as owner, subject to equities. A died, having devised the lands to B, and appointed B executor. No payment had ever been made on account of the legacies, or any acknowledgment given in respect of them. There were no other charges on the lands. B applied to the registering authority to have the note as to equities cancelled.

Held, that the legacies were not secured by an express trust; that, even if they had been so secured, the claims of the legatees were barred as against the lands by sect. 10 of the Real Property Limitation Act, 1874, and that B was entitled to have the note as to equities cancelled.

Appeal from a decision of Madden J., sitting as Land Judge for the purposes of the Local Registration of Title (Ireland) Act, 1891.

Alexander Hazlette was at the time of his death yearly tenant of a farm of land in the townland of Brownknowe, county Donegal. By his will, dated the 9th December, 1891, he directed that his brother, John Hazlette, should “have the option of retaining my farm of land at Brownknowe and in the event of his electing to retain the same I direct that he shall pay the following legacies which I hereby charge upon my said farm viz.:—To Martha Hazlette, Melbourne, Australia, £20; to Catherine Neely, Australia, £20; to Margaret Crann, New Zealand, £20; to Margery Starrell, Philadelphia, £20; to Kezia Hazlette, Philadelphia, £20; to Mary Anne Hazlette, my sister-in-law, £10; to Samuel Hazlette, of Ramelton, my nephew, £10; to Mary Anne Hazlette, my sister, of Melbourne, the sum of £87; to Jane Hazlette, of Melbourne, the sum of £87; and in the event of my brother John Hazlette declining to retain said farm I then direct the same to be put up for sale by public auction together with all my stock crops and chattels of every kind and out of the proceeds thereof to pay the above-mentioned legacies, and also to pay the further legacy of £100 to my said brother John Hazlette and should my said farm crop stock and chattels not realize a sufficient sum to pay such legacies I then direct that all said legacies save that bequeathed to my brother John Hazlette shall abate rateably.” The testator appointed his brother, John Hazlette, executor and residuary legatee of his will.

The testator died on the 10th December, 1891, and probate of his will was granted to John Hazlette on the 13th May, 1893.

On the death of Alexander Hazlette, John Hazlette entered into possession of the farm, and remained in possession up to his death. Some years after going into possession he purchased the holding under the provisions of the Land Purchase Acts. On the 27th of October, 1904, the lands were vested in him by fiat of the Land Commission, and on the 20th April, 1905, he was registered in the Land Registry as owner in fee-simple of the lands, subject to rights or equities, if any, arising from the interest vested in him by fiat of the Land Commission, dated the 27th October, 1904, being deemed to be a graft on his previous interest in the land, or arising in any other manner from the existence of such interest.

John Hazlette died on the 23rd April, 1912, having by his will, dated the 3rd March, 1908, devised and bequeathed all his real and personal property to his wife, Sarah Anne Hazlette, and appointed her executrix thereof. Probate of this will was granted to Sarah Anne Hazlette on the 10th June, 1912.

No payment had ever been made on account of any of the legacies bequeathed by the will of Alexander Hazlette, or any acknowledgment given in respect of them.

An application was lodged by Sarah Anne Hazlette in the Local Registration of Title Office, Donegal, on the 11th January, 1913, requesting the registrar to investigate the title to the tenancy; to ascertain and enter on the register the burdens, if any, appearing on such investigation to affect the lands; and to cancel the note as to equities entered on the folio. The registering...