Re Patrick Leonard's Estate

JurisdictionIreland
JudgeWylie, J.
Judgment Date13 February 1912
CourtKing's Bench Division (Ireland)
Date13 February 1912
In re Patrick Leonard's Estate.

Wylie, J.

Appeal.

CASES

DETERMINITD 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.

1912.

Land Commission — Jurisdiction — Rectification of fiated and registered purchase agreement — Injury to third party — Easement — Appeal — Local Registration of Title Act, 1891, section 34, sub-sections (1) and (2) — Land Law (Ireland) Act, 1896, section 32, sub-section (3), section 50, sub-section (4) — Purchase of Land (Ireland) Act, 1885, section 22.

An appeal to the Court of Appeal lies under section 22 of the Purchase of Land (Ireland) Act, 1885, upon any question of law from an order of the Land Commission made under section 32, sub-section (3), of the Land Law (Ireland) Act, 1896.

Where a purchase-agreement, duly fiated and registered, reserved a right of way over the land comprised therein in favour of a purchaser from the Land Commission of an adjacent holding.

Held, reversing the decision of Wylie, J., that there was no jurisdiction in the Land Commission to make an order under section 32, sub-section (3), of the Land Law (Ireland) Act, 1896, to amend the agreement and rectify the register by omitting the reservation, inasmuch as same could not be done without injury to the person in whose favour the right of way was reserved, within the meaning of section 34, sub-section (2), of the Local Registration of Title (Ireland) Act, 1891.

Motion by Irwin Thomas Chambers and John George Chambers that their purchase-agreement, dated the 9th November, 1909, and the flat thereon, be amended by striking out clause 9 in the agreement. The Estates Commissioners had purchased certain untenanted lands in the county of Dublin, called Grange, from one Patrick Leonard, and after certain negotiations carried on by their inspectors, sold one portion thereof to John Beatty and another portion, being that comprised in the purchase-agreement in question, to Irwin Thomas Chambers and John George Chambers. The 9th clause of the agreement was as follows:—“The purchaser hereby agrees that the said parcel of land is subject to, and may be vested in him subject to, a right of way for the owners and occupiers for the time being of holdings in the townland of Grange, and their heirs and assigns, on foot and with horses and carts, between the points E. and F. as shown on the estate map produced to him by the inspector of the Irish Land Commission, as pointed out to him on the lands by the said inspector.” This document was signed by the purchasers. Their case now was, that it had not been explained to them, and that they did not understand that such right of way was to be reserved, and that its reservation in clause 9 of the agreement was a mistake. They made a joint affidavit in support of the motion in which they stated that during the preliminary negotiations nothing was said by the inspector about the right of way, that the agreement was not read to them, and that they signed it without reading it, and in ignorance of the reservation of the right of way.

To oppose the motion John Beatty made an affidavit stating that Mr. McCoun, inspector of the Land Commission, informed him before the sale that his farm would have to be worked in connexion with the county road through the adjoining portion of the estate which was being sold to the Chamberses. He was given possession on the 30th March, 1909, when Mr. McCoun pointed out to him the way which he was to have over the adjoining lands. Mr. McCoun made an affidavit in which lie stated that he was present when the Chamberses signed the agreement, undertaking to purchase, which was read out to them, their attention being particularly called to the intended reservation of the right of way. The assistant of Mr. Dickie, solicitor for the Chamberses, who was present at the signing of the agreement, denied that it was read to them, and did not recollect any mention of a right of way. Mr. R. W. Pinkerton, the inspector in special charge of the purchase and re-sale of the estate, said that during the negotiations with the Chamberses no mention was made to them about reserving a right of way over the land they were about to purchase. In a further affidavit Mr. McCoun said the only right of way he intended to give Beatty was one on foot.

Beatty brought an action in the Chancery Division for an injunction to restrain the Chamberses from obstructing the right of way over their lands which he claimed as a right of way on foot, and with horses and carts. On the 14th February, 1911, the Master of the Rolls stayed further proceedings in the action, the defendants undertaking to make the present application, and in the meantime to desist from any obstruction.

Matheson, K.C., M'Cann, K.C., and Alfred Dickie, for Irwin Thomas Chambers and John George Chambers.

Cecil Forde, for Mr. Beatty.

Wylie, J.:—

The application in this case is one, in effect, to strike out clause 9 in the fiated agreement to purchase by Irwin Thomas Chambers and John George Chambers. The clause in question is a printed form contained in all such agreements, with blanks left to be filled up or not, as circumstances might require, and in this case are filled up, and purports to reserve a right of way on foot and with horses and carts to the owners and occupiers for the time being of the holdings on the townland of Grange, over the Chamberses' holding, and marked from points E to F on the maps attached to the fiat.

I have been particularly impressed by the evidence produced to me of Mr. Pinkerton, the Land Commission inspector, who arranged the terms of purchase with the Chamberses. I have no doubt that the Chamberses afterwards came to the Land Commission to sign an agreement to carry out the terms of purchase so arranged. Mr. McCoun, another Laud Commission Inspector, and Mr. Pinkerton were present. After a full consideration of all the evidence in the case I am satisfied that neither the Chamberses nor their solicitor's assistant, Mr. Hayes, who was present, either knew or understood at the time of the signing of the agreement that any right of way was being thereby reserved to anyone. It does appear no doubt from the last affidavit of Mr. McCoun that he promised a right of way on foot only to Beatty over the lands. Whether that had the effect of conferring a right of way on foot on Beatty I am not called upon, nor have I the materials to enable me, to decide. If it had that effect, the right so conferred would be preserved by section 34 of the Act of 1898 without any reservation thereof in the vesting order or fiat. The promise was made long after Beatty had signed his agreement. There was no reference to any such right of way in Beatty's agreement. The difficulty is whether the verbal promise by Mr. McCoun to Beatty, after he had signed his agreement, had the effect of conferring a right of way over Chamberses' holding then in possession of the Land Commission? If it has that effect, the right would, as I have said, be still preserved as against the Chamberses, even if I strike out clause 9. This clause, as it now stands, was, I think, beyond doubt inserted without the knowledge or consent of the Chamberses or of their solicitor, and was not included in the terms of purchase as arranged by Mr. Pinkerton. I hold that it should now be struck out, on the ground that it was inserted by mistake and contrary to the intention of both parties to the agreement, i.e., the Land Commission and the Chamberses.

I accordingly grant the motion, and order clause 9 to be struck out. That will leave the ground open for the parties to fight out their rights, if so advised, in the action pending in the Chancery Division. I regret that my efforts to effect a compromise have not succeeded.

J. E. W.

John Beatty appealed (1).

S. L. Brown, K.C., and A. M. Sullivan, K.C. (with them Cecil Forde), for the appellant.

Serjeant Matheson, K.C., for the respondents (the Chamberses), raised the preliminary objection that no appeal lay.

[The Court intimated that they would hear the appeal subject to the respondents' right to rely upon the point thus raised.]

S. L. Brown, K.C.:—

Under section 34, sub-sect. 1, of the Local Registration of Title Act, 1891, where a title is registered as this necessarily and automatically was (section 22), the register is made conclusive evidence of the title of the owner as appearing therein. On two grounds and by two different methods of procedure only can the register be rectified, (a) on the ground of actual fraud, and mistake when an order may be made by any Court of competent jurisdiction, such as the Chancery Division in the pending action; (6) under sub-section (2) of section 34, where error occurs in the registration, whether of mis-statement, misdescription, omission, or otherwise, whether in the register or any map attached thereto; in such cases “the Court” upon such application and in such manner as may be prescribed may order rectification; but this is expressly limited to cases in which, in the opinion of “the Court,” the error can be corrected without injury to any person. If the register cannot be rectified without causing such injury, there is no jurisdiction to interfere. Under section 13, “the Court” in this case means “the High Court,” sub-sect. (1); and the jurisdiction under section 34 (2) is assigned to the Land Judge: section 13, sub-sect. 3; Consolidated Rules, R. 39. The Judicial Commissioner derives his jurisdiction under these sections as invested with the Land Judge's jurisdiction. Land Law (Ireland) Acts, 1896, section 23 (2), Rules 26th October, 1896. An appeal from the Registering Authority to “the Court,” i.e. the “Land Judge,” is given by section 14 (1). Registering Authority means, in Dublin, the Registrar of titles, and in other places, the Clerks of the Crown and Peace. Apparently under the expression “Land Judge” Ross, Wylie, and Madden, JJ. (Land Law (Ireland)...

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