Re Reilly and Brady's Contract

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 09 March 1909
• Court: Chancery Division (Ireland)
• Docket Number: (1909. No. 180.)
• Date: 09 March 1909

In re Reilly and Bready's Contract.

M. R.

(1909. No. 180.)

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.

1910.

Vendor and purchaser — Will — Execution of power of revocation — Bequest inconsistent with appointment by deed with power of revocation — Doubtful title — Point of construction — Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), s. 9.

E. R. was entitled for life to a house and lands at Lower Fennor, with power to appoint them to his children. In 1887 he conveyed the premises to a trustee for his eldest son, E., charged with sums for his sons, M. and J., and his daughter, N., payable at twenty-one or marriage. The deed contained a power of revocation.

The deed was not acted on; E. emigrated to Australia; M. died under age; N. lived in England; J. alone resided with his father on the premises.

In 1902 E. R. made a will in favour of his son J., in the following terms:—“I. E. R., of Lower Fennor, bequeath my house and lands and all my property to my son J.” He had no other house save that in which he resided at Lower Fennor. J. succeeded to the premises on his father's death in the same year, and remained in possession until his death in 1906, when his widow succeeded to the premises under his will. In 1909 she sold the premises to B.

B. objected to complete the purchase, on the ground that the deed of 1887 was not revoked by the will of 1902, and that a good title was not shown.

Held, that the will operated as a revocation of the appointment made by the deed and a new appointment of the premises, and that a good title was shown.

Observations as to the duty of the Court in deciding questions of title as between vendor and purchaser.

Summons.

This was an application under the Vendor and Purchaser Act, 1874. The facts of the case were as follows:—

On December 7th, 1908, Margaret Reilly, the vendor, put up for sale by auction, subject to conditions of sale, her farm at Fennor Lower and Fennor Upper, in the barony of Fore and county of Meath, consisting of two holdings, the largest of which contained 82 acres, 2 roods, or thereabouts, statute measure, situate in the townland of Fennor Lower, and held as a present tenancy under Gustavus Tuite Dalton, at the yearly rent of £58 2s. 9d., but in respect of which a purchase-agreement had been entered into under the provisions of the Land Purchase Acts, and a smaller holding containing 20 acres, or thereabouts, statute measure, situate partly in the townland of Fennor Lower, and partly in the townland of Fennor Upper, held as a present tenancy under J. L. Adlercron, at the yearly rent of £15.

Peter Brady purchased the entire farm for the sum of £2000, and paid a deposit of £500. The title to the larger holding, which alone was in question, as stated in the abstract of title, was as follows:—

By lease dated January 30th, 1836, Gustavus Dalton demised to Edward Reilly that part of the lands of Lower Fennor, containing 82a., 2r., 3p., statute measure, or thereabouts, situate in the barony of Fore and county of Meath, for the term of three lives, therein mentioned, or for the term of thirty-one years, subject to the yearly rent of £85 0s. 6d.

Edward Reilly, the lessee, by his will, dated August 25th, 1855, bequeathed the residue of his property, real and personal, to his son, Edward, for life, and after his death to be disposed of to and amongst his children (if any) as he should think fit. The testator died on 23rd December, 1857, and thereupon his son, Edward, entered into possession and receipt of the rents and profits of the lands, which formed part of the testator's residuary estate, and remained in such possession and receipt until his death. On 1st May, 1858, this will was proved by George O'Neill, one of the executors therein named. On 3rd May, 1889, an order was made by the Irish Land Commission, declaring that Edward Reilly (son of Edward Reilly the lessee) was to be deemed a tenant of a present tenancy in the lands pursuant to the Land Law (Ireland) Act, 1887, and it was thereby determined that the fair rent of the said holding was £67. By indenture of 10th May, 1894, the said Edward Reilly mortgaged the lands to Thomas Carberry to secure repayment of the sum of £200, with interest at 5 per cent.

On 3rd May, 1902, the said Edward Reilly (afterwards called Edward Reilly, junior) made his will in the following terms:—“I, Edward Reilly, of Lower Fennor, in the name of God do declare this to be my last will and testament. I will and bequeath my house and lands, and all my property, to my son John; and my wife Maria is to have the use of the house, and to be allowed to live in it in peace and comfort during her lifetime, and in case she should leave she is to receive some money which will maintain and support her comfortably. I also desire that my lawful debts be paid, especially the money due Thomas Carberry, Clonard, about £260; and I hereby appoint Patrick O'Reilly, of Oldcastle, my sole executor.”

On 25th May, 1902, the said Edward Reilly died, and his will was proved on 8th August, 1902, by the said Patrick O'Reilly. In November, 1902, Thomas Carberry reconveyed the lands to John Reilly, who mortgaged them to the Northern Bank. In 1903, the landlord of the lands agreed to sell them to John Reilly under the Land Purchase Acts. John Reilly, by his will, dated 10th May, 1906, bequeathed his farm in Fennor Lower and Fennor Upper to his wife, Margaret Reilly (the vendor), subject to certain provisions in favour of his mother, Maria Reilly. John Reilly died on 8th June, 1906, and on 10th August, 1906, his will was proved by John Carolan and Thomas Reilly, the executors therein named.

The conditions of sale provided that the purchaser should admit that the bequest contained in the will of Edward Reilly, junior, of “my house and lands and all my property to my son John,” was a good execution of the power of appointment over the larger holding vested in Edward Reilly, junior, by the will of his father, Edward Reilly, senior, and should not require the concurrence of any person who could claim in default of appointment. The executors of John Reilly, Maria Reilly, and the Northern Bank agreed to join in the conveyance. The investigation of the title proceeded, and was nearly completed, when on 19th January, 1909, it came to the knowledge of the vendor's solicitor that Edward Reilly, junior, had executed a deed of trust dated 5th April, 1887. The parties to this deed were Edward Reilly, described in the deed as Edward O'Reilly, senior, of the first part, William Tuite of the second part, and Edward Reilly, eldest son of the said Edward Reilly, described therein as Edward O'Reilly, junior, of the third part. By this deed, after reciting the lease of 1836, and that two of the lives therein mentioned were still living, Edward O'Reilly, senior, in consideration of his natural affection for his son Edward O'Reilly, and for his children, Marcella O'Reilly, Michael O'Reilly, and John O'Reilly, demised to William Tuite the lands comprised in the said lease to hold for a term of 999 years upon the trusts thereinafter expressed, that is to say, upon trust for his son Edward, subject to a charge of £80 each for his children, Marcella, Michael, and John, payable on attaining twenty-one, or marriage, and subject to the use of 8 acres of the lands and a room in the house by Edward Reilly, senior, and his...