Re Kemmis's Estate

• Jurisdiction: Ireland
• Judge: Meredith, J
• Judgment Date: 28 July 1904
• Court: Court of Appeal (Ireland)
• Date: 28 July 1904

In the Matter of the Estate of Lewis George Nicholas Kemmis.

Meredith, J

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.

1904.

Land Purchase Acts — Impropriate tithe rentcharge — Redemption price — Principles on which to be assessed — Judicial Commissioner — Appeal from — Jurisdiction — Irish Land Act, 1903 (3 Edw. 7, c. 37), section 24, subsections 6 and 13.

The Court of Appeal has jurisdiction, under sect. 24, sub-sects. 6 and 13, of the Irish Land Act of 1903, to hear an appeal from a Judicial Commissioner, as to the redemption price of impropriate tithe rentcharge. In ascertaining the price at which such tithe rentcharge ought to be redeemed, the Court ought to take into account, with other circumstances, (a) the value of ecclesiastical tithe rent charges, (b) the value of money, and (c) the element of compulsory purchase.

The lands of Ballycarroll, one of the estates for sale in this matter, situated in Queen's County, were subject to a revised impropriate tithe rentcharge of £14 9s. 5d., which was payable to Lord Carew. The lands of Ballycarroll consisted of 777a. 3r. 5p. of arable land; the tithe rentcharge was amply secured, and had been regularly paid.

The owner applied to the Judicial Commissioner for an order that the tithe rentcharge be redeemed, and that the redemption price be fixed at £289 8s. 4d., being twenty years' purchase of the revised tithe. On behalf of Lord Carew, affidavits had been filed from auctioneers and valuers to prove that owing to the improvement in landed property the tithe rentcharge would, if sold in the open market, realise twenty-four or twenty-five years' purchase. The applications in this and in five other cases were disposed of together.

Chaytor, in support of the application.

Samuels, K.C., contra.

On the 15th July, Meredith, J., gave judgment, fixing the redemption price at twenty-two years' purchase.

Samuels, K.C., and Cherry, K.C., for the appellants: -

Chaytor, for the respondent:—

Meredith, J.:—

In this case the tithe rentcharge, as varied, amounts to £14 9s. 5d. per annum. It is charged on an area of 777a. 3r. 5p., the tenement valuation of which is £447 10s., and the rental of which was £438 13s. 10d. I fix the redemption price at the sum of £318 7s. 2d. In the case of Sir William H. Porter, the rentcharge is £10 12s. 5d. a year, the area is 561a. 2r. 25p., tenement valuation £312 15s., and the rental £292 6s. 6d. I fix the price at £233 13s. 2d. In Thomas G. Wills Sandford's Estate there are four tithe rentcharges, the first is £36 11s. 2d., as varied, on an area of 6098a. 3r. 4p., tenement valuation £2794, the rental is £2495 17s. 4d. I fix the price at £804 5s. 8d. There is a second charge of £3 3s. 8d. a year, charged on 439 acres, tenement valuation £243, rental £260 10s. I fix the price at £70 8s. The third charge is £15 19s. 4d., area 377a. 2r. 9p., tenement valuation £1182, rental £968 6s. 10d. I fix the redemption price at £351 5s. 4d. There is a small charge of £1 14s. a year charged on 261a. 1r. 31p., tenement valuation £110 5s., and rental £93 7s. 6d. I fix that at £37 8s.

The curious and inquiring mind will ascertain from these figures that the price has been fixed at twenty-two years purchase. I have arrived at the figures after the most careful consideration and the most careful study of the decisions of myself, my colleague, Mr. Justice Ross, and of the Court of Appeal in Bateman's Estate (1), and in the recent case of Leader's Estate (2), and I am satisfied that the prices I have fixed are just and equitable, and in accordance with the law. I should perhaps say that if Leader's Estate (2) had not been decided, I should have been obliged, in accordance with my own decision in Fitz Gerald's Estate (3), to weigh and consider the evidence produced in Kemmis's Estate and in Porter's Estate, particularly, with great care, and I should have hesitated long before I applied in all its strictness the working rule referred to in Fitz Gerald'sCase (3). I said at the close of my judgment in the last-mentioned case: “It only remains to add that in the present case no evidence was given on either side of any special circumstances.

“Mr. Jellett says he finds it difficult to determine what might or might not be considered a special circumstance. I can only say that I was willing in this as in every similar case to hear any evidence the parties on either side desired to adduce; and, for example, if it had been proved in this case that lay tithe rentcharges, similarly situated, had, since the Act of 1900, been sold in the market at a higher rate than twenty years' purchase, I should certainly have regarded such a sale, if bond fide, as a special circumstance to be weighed and considered.” It is perhaps a curious and singular circumstance that notwithstanding that language, which I think to be reasonably clear, no attempt was made to give that special evidence until the present cases came before me. It now appears by the affidavit of Mr. Jones that tithe rentcharges have been sold since the Act of 1900, practically similarly situated, in this respect, that in the county of Cork the variation made under the Act of 1900 in tithe rentcharges was 25 per cent., while the variation made in Kemmis'sCase in the Queen s County, according to Mr. Chaytor's book, was 23.7—very little difference between them. Six tithe rentcharges, the property of the Earl

of Donoughmore, were set up for sale by public auction, the particulars specified the provision of the Tithe Rentcharge Act of 1900, and the result was that three of the tithes sold for twenty-one years' purchase, one sold for twenty-three years' purchase, and, one, which was a very large one, £73 10s. 2d., was not sold at all. It is said that the sale referred to may be an isolated transaction; perhaps it may, but it furnishes the best, in fact it is the only actual, evidence of the market value or price in the market that has been adduced before me on the present occasion. I cannot disregard it, I cannot ignore it, and more especially can I not do so when, as I understand, Mr. Justice Ross, within the course of the last few days, in a case in which Lord Donoughmore himself was interested, on evidence with reference to these particular sales, fixed the price at twenty-two years' purchase. I don't depart from my decision with regard to the working rule; I don't retreat from anything that I have said: but upon a careful consideration of all the circumstances of this case and of the evidence, I hold that the price I have fixed is the correct one. In Sir W. H. Porter'sCase, in addition to the fact that all these cases were discussed as a whole before me, the evidence as to the redemption of other tithes from time to time outside the Court by consent at twenty-two years' purchase was extremely strong, and I, perhaps, am not sorry to arrive at the conclusion at which I have arrived, having regard to the fact that in more than one case recently it has come before me, on ruling the final schedule or allocating the purchase-money, that there have been several lay tithe rentcharges payable out of an estate, some of which have been redeemed at twenty-two years' or twenty-two and a half years' purchase, by consent; while the working rule was employed with effect to fix the price of the others at twenty years' purchase. The Wilk SandfordCases I really cannot distinguish from the other two.

w. c. s.

Lord Carew appealed (1).

Samuels, K.C., and Cherry, K.C., for the appellants:—

A “superior interest,” such as tithe rentcharge, cannot be of less value than the interest on which it is charged. Here the landlord has sold his estate at a larger number of years' purchase than the number allowed for the redemption of the tithe rentcharge. He is thus making an actual profit on the sale of the tithe rentcharge.

The universal practice of the Land Commission is to redeem ecclesiastical tithe rent charge at twenty-two and a half years' purchase. This is in pursuance of a Treasury rule, and the consent of the Treasury is still necessary in the case of all ecclesiastical tithe rentcharges varied under the Act of 1900 (63 & 64 Vict. c. 58, s. 9). In such cases the extended power conferred on the Land Commission by section 37 of the Land Law Act, 1896, does not apply.

The Land Commission has not made sufficient allowance in respect of the compulsory nature of the redemption. It is very inconvenient for owners of tithe rentcharge to be paid off in small and uneven amounts. It is true there is no disturbance of possession, but there is another inconvenience equally great, viz.—the necessity to look out for a new investment of small sums from time to time.

An appeal lies from every order made by a Judicial Commissioner of the Land Commission as to the distribution of purchasemoney under the Land Act of 1903, sect. 24, sub-sect. 13, even on a question of value: Re Leader's Estate (2).

Chaytor, for the respondent:—

No appeal lies. Under section 48 (3) of the Act of 1881, no appeal lay in matters arising under the Land Purchase Acts. Under section 22 of the Act of 1885, an appeal was given to any person aggrieved by a decision of any question of law. Section 41

of the Act of 1896 gave an appeal from one Commissioner to all three or to the legal Commissioner. It is conceded there was no appeal on a question of value prior to the Act...