Re Holmes' Estate

• Jurisdiction: Ireland
• Judgment Date: 28 January 1907
• Date: 28 January 1907
• Court: Court of Appeal (Ireland)

In re Holmes' Estate (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.

1907.

Land Purchase Acts — Insolvent estate — Owner of estate also owner of a charge — Percentage under Irish Land Act, 1903 (3 Edw. 7, c. 37), s. 48.

Held (by Sir Samuel Walker, C., and FitzGibbon, L.J.; dissentiente Holmes, L.J.), affirming the decision of Ross, J., that, having regard to the position of H. as owner of the charge, the vendor was entitled to the percentage under sect. 48 of the Land Act, 1903.

Appeal from the decision of Ross, J., dated the 21st November, 1906, reported, ante, p. 1.

The Right Hon. The Attorney-General, The Solicitor-General, and Dudley White, for the Treasury.

Charles A. O'Connor, K.C., and Redmond Caroll, for the vendor.

H. was the owner of a fee-simple estate, subject to two charges created by the will of a former owner, one of £1330 in favour of H., and the other of £2500 in favour of his sister. An absolute order for sale had been made by the Land Judge, and was in force at the date of the passing of the Land Act, 1903. After the passing of the Act of 1903 the petition for sale was dismissed, and the estate was sold to the tenants under the Land Act of 1903. The purchase-money was insufficient to pay off the two charges:—

Sir Samuel Walker, C.:—

In this case of Holmes' Estate a question arises whether the bonus is payable on the sum of £3084 purchase-money advanced by the Land Commission.

The facts are few and simple.

Garner Joseph Holmes devised his estate to Sophia Letitia Holmes, subject to a charge of £1330 in favour of Garner E. Holmes, the respondent, and £2500 in favour of Matilda E. Holmes, the sister of the respondent. On the 29th October, 1885, an absolute order for sale was made on the petition of Garner E. Holmes in the matter of Sophia Letitia Holmes' estate. Sophia Letitia Holmes died, and on the 8th November, 1886, the proceedings were continued in the name of Garner E. Holmes, to whom the estate was limited in fee on the death of Sophia. The absolute order for sale was in force at the date of the passing of the Act of 1903. On the 22nd March, 1904, the estate was taken out of Court, and the petition dismissed, and Garner E. Holmes sold the estate to the tenants for a sum of £3084. He and his sister, to whom together £3830 is due, irrespective of a considerable sum for interest, by deed dated 8th August, 1904, agreed that the purchase-money should be distributed between them in the proportion of the sums respectively due to them, and that the bonus, if payable, should be divided between them in equal moieties. Garner E. Holmes is therefore the owner, and he is also interested in the price of the estate to the extent of his charge.

The question depends on the true construction of section 48 of the Act of 1903, as applied to the special facts existing in the present case. [His Lordship read sub-sect. 1.] Prima facie, the case comes within that clause, and therefore the bonus is payable unless it can be shown not to be payable by reason of the excepting provisions contained in sub-sect. 4. [His Lordship read the sub-section.] Is then the estate so circumstanced that it would, independently of the Act of 1896, be sold without the consent of the owner as to price? The word “would” refers to a practice as distinct from power, and further I do not think the word “consent” there refers to jurisdiction. I think it refers to a practice of that Court in conducting its sales, which had been introduced by Judge Flanagan, and is shown by Domvile's Estate (1) and Grogan's Estate (2), and this is fortified by the use of the word “price,” which assumes a sale can be had as a matter of jurisdiction, but will not be enforced against the interested person if he can show the price named is one which he can reasonably object to. Ross, J., who has been now some eleven years on the Bench, tells us what the practice is and, anterior to 1896, was. As regards the construction of the section, the decisions of Meredith, J., in Minhear's Estate (3), and Ross, J., in Howlin's Estate (4) show that the exception created by sub-sect. 4 must be strictly complied with, in order to exclude the operation of the general enactment.

In the latter of these cases, if a general policy that a bonus should not be paid in the case of the owner of the estate being insolvent prevails, the decision should have been different from what it was—one undivided moiety to which the vendor was absolutely entitled was insolvent, and the life estate of the vendor in the other moiety was insolvent, but the estate in remainder in this latter moiety expectant on the life estate was solvent—it was held the terms of the...