Re Mary Geoghegan

JurisdictionIreland
Judgment Date22 January 1918
Docket Number(Folio 6098. Co. Limerick.)
Date22 January 1918
CourtKing's Bench Division (Ireland)
In re Mary Geoghegan (1).

Appeal.

(Folio 6098. Co. Limerick.)

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.

1918.

Land Registry — Registered land — Local Registration of Title (Ireland) Act, 1891 (54 & 55 Vict. c. 66), sects 35, 38 — Subdivision without consent of Land Commission — Registration of title of subdivided portion.

The owner of land registered under the Local Registration of Title (Ireland) Act, 1891, subject to a purchase annuity, assigned portion thereof to a transferee without the consent of the Land Commission.

Held, reversing the decision of Ross J., [1917] 1 I. R. 361, that the transferee was entitled to have his title to the land so transferred registered under the Act, but that such registration would not affect the overriding power of sale conferred upon the Land Commission in such case.

Mary Geoghegan, the registered owner of lands subject to a land purchase annuity, assigned part of her holding on the 25th May, 1916, to her son Daniel, who applied to the Land Commission for their assent to the subdivision, which was withheld. Daniel Geoghegan having applied to the Registrar of Titles to have his title to the subdivided portion of the holding registered under the Act of 1891, the Registrar granted his application (2). From this decision the Land Commission appealed to Ross J., who reversed the decision of the Registrar, holding that the applicant was not entitled to have his title registered (3). Hence the present appeal.

Jellett K.C. and Comyn K.C., for the appellant:—

We submit that the decision of the registering authority was correct, and should be restored. In order to arrive at the true construction of sect. 54 of the Irish Land Act, 1903, it is necessary to consider the earlier sections of the Land Code dealing with alienation and sub-division. Sect. 10 of the Landlord and Tenant Act (Ireland), 1860, absolutely prohibits any assignment of lands or any part thereof comprised in an agreement which restrains or prohibits such assignment unless the consent of the landlord be obtained as prescribed. Sect. 18 of the same Act contained a

similar absolute prohibition of subletting contrary to agreement. In each of these sections the words used are— “It shall not be lawful,” &c. In section 44 of the Landlord and Tenant (Ireland) Act, 1870, the prohibition is expressed in slightly altered language, but remains absolute:— “No purchaser … of any holding to whom any advance has been made under this section shall, without the consent of the Board, alienate, assign, subdivide, or sublet his holding” while the annuity remains unpaid; and the penalty for contravention of this provision was forfeiture to the Commissioners of Public Works in Ireland of the part alienated, &c. Sect. 45 contains similar provisions. This penalty of forfeiture was modified by sect. 2 of the Landlord and Tenant (Ireland) Amendment Act, 1872, which empowered in lieu of forfeiture a sale of the holding or any part thereof. Sect. 2 of the Land Law (Ireland) Act of 1881 prohibited subdivision and sub-letting without the consent of the landlord in the case of tenancies from year to year to which the Act applies, the words being, “the tenant … shall not … subdivide,” &c. These words were held in Fogarty v. Shanahan (1) to have the same invalidating effect as the words in the earlier section, “it shall not be lawful.” The harsh and unjust results of the decisions on the earlier sections, such as Donoughmore v. Forrest (2) and Gillman v. Murphy (3), had been universally recognized; and when we come to sect. 30 of the Act of 1881, containing the conditions annexed to holdings subject to advances, we find a striking change in the language used. There the prohibition of the subdivision or subletting of a holding, for the purchase of which money has been advanced by the Land Commission, is not only confined to the period during which the holding remains subject to any charge in respect of the annuity, but is expressly limited by the introductory words “as between the Land Commission and the proprietor for the time being,” &c. The judgment of Ross J. in the present case gives no effect whatsoever to these words, which are re-introduced in sect. 54 of the Act of 1903 and sect. 32 of the Act of 1909, and overlooks the “distinct qualification” pointed out by Holmes L.J. in Farrelly v. Donnelly (4), where the learned Lord Justice said that the only meaning he could attach to these words was that the subdivision was forbidden only “in so far as it would affect in any way the Land Commission or the annuity payable thereto.” It is submitted that the change in the language containing the prohibition was introduced for two reasons—first, to obviate the unjust results which might follow from the later sections being judicially interpreted as strictly as the earlier analogous sections; and, secondly, because the Legislature was in these later sections dealing not with the case of landlord and tenant, but with the fee-simple estates acquired by the purchasing tenants; and it was felt that an absolute prohibition of alienation would be repugnant to the nature of such an estate.

If, as Ross J. appears to have considered, the question rests on public policy, the section would have been definitely framed so as to absolutely prohibit alienation, &c.; it would not have been limited by the introductory words, and the limited prohibition would not have ceased on the cesser of the annuity. The Land Commission are not affected in any way by our contention. Their over-riding power of sale remains unaffected; but if they do not elect to exercise it—and they must exercise it, if at all, within a reasonable time—the alienation or subdivision remains valid inter partes. The registration of the title of the assignee cannot affect this power.

Sect. 38 of the Local Registration of Title (Ireland) Act, 1891, merely preserves the effect, whatever it may be, of the prohibitory sections of the Land Code; it does not add to them in any way. If, however, we are right in our contention that the alienation in the present case was valid inter partes, non-registration under this Act will not destroy the appellants' title, as under sect. 25, sub-s. 1, and sect. 35, sub-s. 2, no title would be acquired by the transferee until the registration of the transfer, and this in the face of sect. 35, sub-s. 1, which expressly empowers a registered owner to “transfer the land or any part thereof”; and it enacts that “the transferee shall be registered as owner of the land transferred.” It is impossible to reconcile the decision of Ross J. with these provisions. [They also referred to In re Pennefather's Estate (1) and Hughes v. Higgins (2).]

Wylie K.C. and Babington, for the Land Commission:—

The real question for decision is not whether this transaction was valid inter partes, but whether the transferee is entitled to obtain for his transfer the hall-mark of registration under the Act of 1891. We rely upon the judgment of Ross J., and the reasons adduced by him; but we are not driven to contend that the deed was invalid inter partes. There is a restriction against alienation in sect. 54 of the Act of 1903; and sect. 38 of the Act of 1891 provides that “nothing in this Act shall affect the provisions of any Act of Parliament by which the alienation, assignment, subdivision or subletting of any land is prohibited or in any way restricted.” This section was put into the Act for the express purpose of preventing sub-division during the currency of the annuity, and the draftsman obviously had in his mind the provisions of sect. 30 of the Land Law (Ireland) Act of 1881, which would conflict with sect. 35 of the Local Registration of Title Act, 1891, but for sect. 38 of that Act. Sect. 35 of the Act of 1891 has been relied on by the appellant as authorizing the transfer of the registered land, or any part thereof, but there is ample subject-matter for this section in land which was never subject to a purchase annuity, or land in respect of which the purchase annuity has come to an end. This section does not repeal the prohibitory words in the Land Code. On the death of a registered owner only one person can be registered as owner, and why should more than one be registered during his lifetime? Sect. 38, sub-s. 2, of the Act of 1891 requires the registering authority to express upon the register the prohibitive or restrictive provisions of any Act of Parliament, and accordingly the folio of Mary Greoghegan contains a note that the lands are subject to the restrictions as to subdivision, &c., contained in sect. 54 of the Irish Land Act, 1903.” This, however, points to future subdivisions, &c., not to past, and then there will be nothing to show any intending purchaser from Mary Geoghegan, or indeed from the appellant, that the restrictive provisions have been contravened, and that the power of sale by the Land Commission has arisen. This shows the importance of the present question to the public; but it is also of vital importance to the Land Commission as affecting the security for the advance. To whom are they to look for the payment of the annuity? If there are a number of subdivisions, are they to recover the annuity in apportioned parts from all the transferees? If they exercise their power of sale, are they to recognize the rights of all the transferees, and how are they to proceed to ascertain them? The introductory words “as between the Land Commission and the proprietor,” &c., only mean that the conditions apply so long only as the purchase annuity is payable. While it is payable, the prohibition applies. Subdivision is a physical fact, and it is difficult to conceive how a subdivision which is void as between the Land Commission and the proprietor can be valid as between the proprietor and his assignee. The result of reversing the decision of Ross J. will...

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4 cases
  • Re, Smith
    • Ireland
    • High Court
    • 21 March 1939
    ...to oust the claim of the proprietor of the smaller portion to a possessory title in respect of such smaller portion. In re GeogheganIR, [1918] 1 I. R. 188, applied. Application on Notice. Bernard Smith, Peter Smith and Rose Smith applied to the Judicial Commissioner for an order under s. 52......
  • Re Cleary
    • Ireland
    • Land Commission (Irish Free State)
    • 25 July 1922
    ...The result of this is that I must reverse the decision of the Registrar, and declare the applicants entitled to be registered. (1) [1918] 1 I. R. 188. (1) [1918] 1 I. R. 188. In re Cleary Right of transferees to be registered as owners - Local Registration of Title (Ireland) Act, 1891 (54 5......
  • Re Smith
    • Ireland
    • High Court
    • 1 January 1939
    ...to oust the claim of the proprietor of the smaller portion to a possessory title in respect of such smaller portion. In re Geoghegan, [1918] 1 I. R. 188, applied. (H.C.),In re Smith - Conflicting claims to portion of a holding - Sub-division of holding without consent of Land Commission - R......
  • Re Hegan
    • Ireland
    • Land Registry (Ireland)
    • 27 May 1921
    ...third. The answer to the question in the notice of motion will accordingly be in the negative. (1) [1921] 2 K. B. 182, at p. 185. (2) [1918] 1 I. R. 188. ...

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