Re Samuel Murray Hussey's Estate

• Jurisdiction: Ireland
• Judgment Date: 16 May 1912
• Date: 16 May 1912
• Court: Court of Appeal (Ireland)

In re Samuel Murray Hussey's Estate (1).

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 — Amendment of fiated agreement or vesting order — Inclusion of stranger's land in holding vested in tenant-purchaser — Local Registration of Title Act, 1891, section 34, sub-section (2) — Land Law (Ireland) Act, 1896, section 32, sub-section (3).

The decisions of this Court in In re Wilson's Estate (42 Ir. L. T. R. 122), and In re Leonard's Estate (ante, p. 215), are applicable to a case where land, claimed by a stranger to the proceedings as his property, has been, by accident, neglect, or oversight, included in the premises vested as the holding in the tenant-purchaser; and therefore, if there be a bona fide dispute as to whether the premises so claimed did in truth form part of the holding, the Land Commission have no jurisdiction through the Judicial Commissioner to entertain a motion under section 32, sub-section (3), of the Land Law (Ireland) Act, 1896, to amend the fiated agreement.

Appeal by the vendor from an order of Wylie, J., dated 16th April, 1912, refusing an application on his behalf that the vesting orders (2) made in the cases of five tenants, Norah Murphy, James Seares, Thomas Kennedy, John Kevans, and Patrick Lynch, should be amended by excluding from the lands so respectively vested in these tenants (who had purchased their holdings under the Land Acts) the mill-stream and 7 feet on either side of the said stream, and that the areas of the holdings as set out in the fiated agreements be reduced accordingly. The stream and 7 feet of land on either side thereof were claimed by Messrs. Latchford and Sons, Millers, under a fee-farm grant, dated 13th December, 1865, from Edward Hussey, predecessor in title of the vendor, to John Latchford, and such claim was admitted by the vendor. The omission to exclude them from the fiated agreements was attributed to mistake, misunderstanding, and oversight. Several affidavits were filed, some on behalf of the vendor in

support of the motion, including one made by a member of the firm of Latchford and Sons, and others by the tenants; but, having regard to the view taken by both Wylie, J., and the Court of Appeal, it is unnecessary for the purpose of this report to set them out in full. They showed, in the opinion of the Court of Appeal, a bona fide controversy between the parties on a question of title. The conveyance, which expressly granted the stream and 7 feet on either side to John Latchford and his heirs for ever, was produced in Court. Wylie, J., on the authority of the decision of this Court in Leonard's Estate (1), was of opinion that he had no jurisdiction to entertain the application, and accordingly refused it by the order under appeal.

Ronan, K.C. (with him Macrory and The Hon. Cecil T. Atkinson), for the appellant:—

The learned Judge in the Court below was in error in holding that he had no jurisdiction. He was misled in supposing that Leonard's Estate (1), in which this Court reversed his own decision, had any application to the case before him; and, in his natural loyalty to this Court, overlooked the great distinction between conveyances under the Landed Estates Court Act and a vesting order or fiated agreement under the Land Purchase Acts. Under section 61 of...