Re Settled Land Acts and Tuthill; Re Settled Land Acts and Wynne

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 26 January 1907
• Court: Chancery Division (Ireland)
• Date: 26 January 1907

In Re Settled Land Acts and Tuthill. In Re Settled land Acts and Wynne.

M. R.

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.

1907.

Settled land — Sale to tenants — Person “deemed to be tenant for life” — Bonus — Leave of Court — Principle to be adopted — Exercising discretion — Costs — Land Act, 1903 (3 Edw. 7, c. 37), s. 48 — Land Act, 1904 (4 Edw. 7, c. 34), s. 3 — Settled Land Act, 1882 (45 & 46 Vict. c, 38), s, 63 — Settled Land Act, 1884 (47 & 48 Vict. c, 18), s. 7.

A person who, by virtue of section 63 of the Settled Land Act, 1882, is “deemed to be tenant for life” of settled land is not entitled, as a matter of course, to an order, under section 7 (ii) of the Settled Land Act, 1884, giving the applicant leave to sell or proceed with a sale of the settled land.

The Land Acts of 1903 and 1904 have not altered the law in Ireland in this respect.

Under the circumstances, costs given to the applicants and trustees out of the proceeds of the sale of the settled land.

The judgment of Barton, J., in In re levers([1904] 1 I. R. 492) adopted and applied.

Under marriage settlement, dated 1st January, 1880, John Fitzgerald Tuthill was tenant for life within the meaning of sect. 63 of the Settled Land Act of 1882, of (inter alia) one undivided thirteenth share of lands in Tipperary and Limerick, portions of which said lands were comprised in three originating applications lodged with the Estates Commissioners.

John Fitzgerald Tuthill was joined as one of the vendors in the aforesaid originating applications.

The Examiner in his primâ facie rulings on title required that, inasmuch as one undivided thirteenth share of the lands, the subject of the settlement of 1st January, 1880, was under its provisions vested in trustees, subject to a trust for sale, the leave of the Court should be obtained, pursuant to the 7th section of the Settled Land Act, 1884, for the exercise of the powers conferred upon Mr. Tuthill as tenant for life as aforesaid. Captain Charles Colthurst Vesey was, in the events that happened, the sole trustee of the settlement of 1880.

There were several children issue of the marriage.

The settlement of 1880 conveyed the lands to trustees upon trust after the solemnization of the intended marriage that they should “at the request in writing of the said John Fitzgerald Tuthill and Anne Elizabeth Forster (the intended wife), during their joint lives, and of the survivor of them during his or her life, and after the death of such survivor, at the discretion of the said trustees, or of the trustees for the time being, sell the said premises.”

Conner, K.C. (with him Leet, applied on behalf of the tenant for life for leave to sell:—

There can be no question as to this sale being a proper one, and beneficial to the inheritance. The Court, therefore, being satisfied as to the propriety of the proposed sales, will grant the application. The trustees of the settlement cannot, in this case, sell unless requested to do so by the tenant for life, and the sales might be indefinitely postponed. The fact that the tenant for life will derive a benefit by receiving the bonus or percentage is no reason for preventing him from carrying out the sale, if it be a proper and advantageous one to the inheritance: In re lever's Settlements (1); In re Marquis of Aylesbury's Settled Estates (2); Re Lord Stamford's Estate (3).

The tenant for life being in receipt of the rents is in touch with the tenants, and has facilities of negotiation with them.

Besides, a sale under the Purchase Acts has the effect of wiping out arrears of rent, and it would be quite out of the question for the...