Re M'Naul's Estate; ex parte Traill

• Jurisdiction: Ireland
• Judgment Date: 05 February 1902
• Docket Number: (RECORD NO., 2356.)
• Date: 05 February 1902
• Court: Court of Appeal (Ireland)

IN RE M'NAUL'S ESTATE; EX PARTE TRAILL

Appeal

— Fee-farm grant — Covenant against alienation — Covenant to pay increased rent on assigning or demising to any person outside a limited class —— Redemption of superior interest.

Attwater v. AttwaterENR 18 Beav. 330.

Batteste v. Maunsell I. R. 10 Eq. p. 337.

Billing v. WelchUNKIR I. R. 6 C. L. 88.

Doe v. PearsonENR 6 East, 173.

Ex parte Raymond I. R. 8 Eq. 231.

Ex parte VoiseyELR 21 Ch. D. p. 445.

French v. Macale 2 Dr. & War. 269.

Gerrard v. O'Reilly 3 Dr. & War. 414.

Gore v. O'Grady I. R. 1 Eq. 1.

In re Jackson 11 Ir. Ch. R. 145.

in re Lunham I. R. 5 Eq. 170.

In re MacleayELR L. R. 20 Eq. 186.

In re Quin 8 Ir. Ch. R. 578.

Jackson's Estate 11 Ir. Ch. R. 145.

Legh v. Lillie 6 H. &. N. 165.

London and South-Western Railway Company v. GommELR 20 Ch. D. 562.

Lunham's Estate I. R. 5 Eq. 170.

Mahony v. Tynte 1 Ir. Ch. R. 577.

Martin v. MartinUNK 19 L. R. Ir. 72.

Morris v. MorrisUNKIR I. R. 7 C. L. 295.

Ponsonby v. AdamsENR 2 Bro. P. C. 431.

Re KaneIR [1901] 1 I. R. 520.

Re Quinn 8 Ir. Ch. R. 578.

Re WilleyELR 23 Ch. D. p. 127.

Riordan v. M'NamaraUNK 30 L. R. Ir. 495.

Rosher v. RosherELR 26 Ch. D. 801.

The SaraELR 14 App. Cas. 209.

114 THE IRISH REPORTS. [1902. Appeal. IN RE WNAIM'S ESTATE; Ex 'PARTE TRAILL (1). 1901. (ItEconD No., 2356.) Dec. 17, 18. 1902. . 5 . Renewable Leasehold Conversion Act (12 4.13 Viet. c.105)—Fee-farm grant— Feb. against alienation—Covenant to pay increased rent on assigning or demising to any person outside a limited class—Land Purchase Acts Redemption of superior interest. By a lease for lives renewable for ever, made in the year 1763, the lessee covenanted to pay an additional rent if the lessee, his heirs or assigns, assigned or demised the lands, without the lessor's consent, to a person or persons other than the child or grandchild of the person so aliening or demising same. In a fee-farm grant made, in lieu of the said renewable lease, in the year 1852, a precisely similar covenant was inserted : Held (by the Court of Appeal), that the covenant was valid, and that regard must be had to it in fixing the redemption price of the rent payable under the fee-farm grant on a sale by the fee-farm grantee to an occupying tenant, under the Land Purchase Acts, through the Irish Land Commission. Billing v. Welch (I. R. 6 C. L. 88) overruled. APPEAL byDr. Anthony Traill from the decision of Meredith, J., pronounced on June 3, 1901, confirming the order of Mr. ComÂmissioner Lynch, dated April 2, 1901, whereby it was ordered that the perpetual yearly rent of £6 8s., reserved by an indenture of fee-farm grant dated June 7, 1852, and made between William Traill of the one part and Jane Hamilton of the other, and issuing out of the lands, the subject of the proceedings for sale in this matter, and all other superior interests (except the right of fishing reserved to the grantor in the said grant) be redeemed ; and the Commissioner being of opinion that the covenant by the grantee, her heirs and assigns, in the said grant for the payment of additional rent of £5 10s. 9d. sterling, in the event of alienation or demise of all or any part of the said premises to any person or persons other than a child or grandchild of the person so aliening or demising without the consent of the grantor, his heirs and (1) Before FITZ GIBBON, WAITER, and HOLMES, L.JJ VOL. I.] CHANCERY DIVISION . 115 assigns, is void, did order that no value be placed thereon in fixing Appeal. the redemption price of the said rent and superior interests. 1 901. In re By the above-mentioned fee-farm grant William Traill m‘NAUL's granted to Jane Hamilton, her heirs and assigns, for ever, part EsTATE . of the lands of Drunacrottagh, excepting and reserving to William Traill, his heirs and assigns, all quarries, etc., and also liberty to William Traill, his heirs and assigns, and his and their servants and attendants, to hunt, hawk, fish, and fowl upon the premises : the said Jane Hamilton, her heirs and assigns, yielding and paying unto the said William Traill, his heirs and assigns, the yearly rent of £6 8s., by equal half-yearly payments. The fee-farm grant contained a covenant by the said Jane Hamilton to pay the said rent of £6 8d., and all taxes and the usual powers of distress and entry for securing the same. Then followed a covenant in the words following :—" And the said Jane Hamilton for herself, her heirs, and assigns, doth hereby covenant, grant, and agree to and with the said William Traill, his heirs and assigns, that if she, the said Jane Hamilton, her heirs and assigns, shall at any time hereafter alien or demise all or any part of the premises to any person or persons whatsoever, other than a child or grandÂchild of the person or some or one of the persons so aliening or demising without the consent of the said William Traill, his heirs or assigns, in writing under his or her hand and seal first had and obtained, then and in such case the said Jane Hamilton, her heirs and assigns, from and after the time of such alienation or demise, shall pay unto the said William Traill, his heirs and assigns, for the said hereby demised and granted premises, over and above the said yearly rent, the further yearly rent of £5 108. 9d. sterling, for and during the continuance of this demise and grant, the same to be paid by equal half-yearly payments upon every 1st day of May and 1st day of November, the first payment thereof to be made on such of the said days as shall first happen next after the time of such alienation or demise, and that the said William Traill, his heirs and assigns, shall have the like remedy by distress and otherwise for recovery of the said yearly rent of £5 10s. 9d. as he or they can or may have by virtue of these presents for recovery of the said yearly rent first above-mentioned -and reserved." 116 THE IRISH REPORTS. [1902. Appeal. The fee-farm grant also contained a covenant by the grantee 1901. to keep all buildings on the premises in repair, and a covenant by In re the grantor for quiet enjoyment. MqnLtues ESTATE. The fee-farm grant was made in accordance with the provisions. of the Renewable Leasehold Conversion Act (to which it expressly referred) in lieu of a lease for lives renewable for ever, dated 13th October, 1763. This lease, and the last renewal thereof,. dated 20th February, 1851 (made by William Trail to Jane Hamilton), were recited in the fee-farm grant. The rent reserved by the original lease was £6 13s. 3d. (Irish), with a renewal fine of £3 6s. 7-id. (Irish). The value of the renewal fine was estimated in pursuance of the Act at 5s. per annum, which, being added to £6 3s. sterling, the equivalent for £6 13s. 3d. (Irish), made up the fee-farm rent £6 8s., reserved by the fee-farm grant. Both the original lease and the renewal contained a covenant by the lessee in the same terms as the fee-farm grant respecting the payment of the additional rent in the event of alienation to a person other than a child or grandchild of the person so aliening. From the date of the fee-farm grant down to the date of the agreement for purchase hereinafter mentioned, no claim had been made by the grantor for the increased rent. Mrs. Elizabeth Cecilia M‘Naul was at the date of the instituÂtion of these proceedings owner of the said lands under the said fee-farm grant. She filed her originating statement on 22nd June, 1899, in the Irish Land Commission, for the purpose of selling the said lands under the Land Purchase Acts. On the 22nd day of May, 1899, John M'Fall agreed to purchase the said lands under the Land Purchase Acts through the Land Commission, Elizabeth Cecilia M'Naul having made a sub-letting thereof to him under a tenancy from year to year at a rent of £27 15s. The vendor, Elizabeth Cecilia M'Naul, applied to the Land Commission that the fee-farm rent of £6 8s., created by the said. fee-farm grant, and issuing out of the lands sold in this matter, should be redeemed, together with all other superior interests (save the rights of fishing), created, reserved, or excepted by the said fee-farm grant. On this application Mr. Commissioner Lynch made the order dated April 2, 1901, which was affirmed by Tim. I.] CHANCERY DIVISION. 117 Meredith, J., on June 3, 1901, from whose order this appeal was Appeal. taken. 1901. No evidence was given in the Land Commission as to whether In re M4NAm,'s the sub-letting to John M'Fall was an event upon which the ESTATE. additional rent mentioned in the fee-farm grant would, if validly reserved or created, become payable. Dr. Traill made an affidavit stating the facts relating to this point for the Court of Appeal, but the affidavit was not allowed to be read. The abstract of title lodged by the vendor showed no disposiÂtion of the property on which the additional rent would have become payable. Ronan, Ka, and Dixon, for the appellant : The judgment of the Irish Land Commission that the covenant to pay an increased rent on alienation to anyperson outside the class specified is void rests on Billing v. Welch (I). That decision cannot be sanctioned. It is based on the theory that the object of the Renewable Leasehold Conversion Act was to convert estates held under leases for lives renewable for ever into absolute fee-simple estates. But this is contradicted by the express words of the statute. The preamble recites the evils that had arisen from such tenures, and says that " it is expedient that such tenures should be converted in manner hereinafter provided into tenures in fee," and the first section enacts that when duly required the owner of the reversion of any such lease is to grant to the owner of the lease "an estate of inheritance in fee-simple in such lands, subject to a perpetual yearly fee-farm rent . . . and subject to the like covenants for securing the payment of such fee-farm rent as are contained in such lease with respect to the rent...