Re Turpin and Ahern's Contract

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 14 December 1904
• Court: Court of Appeal (Ireland)
• Date: 14 December 1904

In re Turpin and Ahern's Contract.

M. R.

Appeal.

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.

1905.

Vendor and purchaser — Conditions of sale — Misleading condition — Condition not to inquire into prior title — Lease of recent date taken as root of title — Defect in prior title within knowledge of vendor.

By lease, dated the 18th March, 1865, C. demised to F. a farm in the county of Cork for twenty-one years. The lease contained a covenant against alienation without the consent in writing of the landlord, except a disposition of the whole to one person by will.

By his will, dated the 21st September, 1873, F. bequeathed his farm to his executors, one of whom was his wife, on trust for his daughter, subject to payment of £500 for his wife. F. died shortly after. In February, 1875, D. A. married Miss F., when two deeds were executed, both dated the 3rd February, 1875. By the first of these the executors of F. and Miss F. assigned the farm to D. A. in consideration of £500 paid to Mrs. F., and by the other deed D. A. assigned the farm to trustees upon trust for D. A. for life, with various other trusts. The settlement was lost, and the consent of the landlord in writing had not been obtained to either assignment.

By agreement, dated the 12th January, 1894, a judicial tenancy was declared of the farm from C. to D. A., and on the 30th July, 1901, C. granted a new lease to D. A. for twenty-one years, from January, 1901. In February, 1904, D. A. put up the farm for sale by auction, and in the particulars it was described as held under lease for twenty-one years, from January, 1901. The eleventh condition of sale provided that the title was to commence with the lease of 31st July, 1901, and the purchaser was precluded from making any inquiry into or investigation of the vendor's title prior to the lease, and it was also stipulated that the purchaser should assume that the lessor had full power to grant same. T. was declared the purchaser, and on the search in the Registry of Deeds, the marriage settlement of the 3rd February, 1875, was discovered, and T. refused to complete the purchase:—

Held, by FitzGibbon and Walker, L.JJ. (diss. Holmes, L.J.), affirming the decision of the Master of the Rolls, that the eleventh condition of sale was misleading and unfair; that the title was defective; and that the purchaser should not be compelled to complete.

Held, by Holmes, L.J., that the assignment and settlement of the 3rd February, 1875, were both void, as being made in violation of the covenant against alienation; and that the trusts of such settlement did not attach to the tenancy of D. A. that came into existence after the expiration of the term of the lease of 1865.

Summons by John Turpin for a declaration that the vendor had failed to make a good title to the holding comprised in a contract for sale, dated the 18th February, 1904, in accordance with the particulars and conditions of sale, and for a return of the deposit.

By lease, dated the 18th March, 1865, Sir George Colthurst demised to Thomas Forrest the lands of Leemount in the county of Cork, containing 170 acres, for twenty-one years from the 25th March, 1864, at the rent of £340. The lease contained a covenant against assigning, subletting, or mortgaging the premises (save a disposition of the whole to one person by the will of the lessee) without the previous consent in writing of the lessor, his heirs, or assigns.

By his will, dated the 21st September, 1873, Thomas Forrest bequeathed the said holding to his executors, Honora Forrest (his wife), Michael Ahern, and Michael Forrest, upon trust for his daughter Norah Forrest, subject to the payment of £500 to his wife, Honora Forrest. Thomas Forrest died shortly afterwards, and probate of his will was granted on the 6th October, 1873, to his widow, and to Michael Ahern, and Michael Forrest.

Denis Ahern married Norah Forrest in February, 1875; and prior to the marriage two deeds were executed, both on the same day—the 3rd February, 1875. By the former of these deeds of the 3rd February, 1875, made between Honora Forrest, Michael Ahern, and Michael Forrest, executors of the will of Thomas Forrest of the first part, Norah Forrest of the second part, and Denis Ahern of the third part, in consideration of £500 paid by Denis Ahern to the executors, the said Honora Forrest, Michael Ahern, and Michael Forrest, as executors, and Norah Forrest as legatee, beneficially entitled, assigned the lands to Denis Ahem, his executors, administrators, and licensed assigns for the residue of the term of twenty-one years.

The other indenture of the 3rd February, 1875, was lost, but a statement of its contents was taken from the memorial from the Registry of Deeds. It was made between Denis Ahern of the first part, Honora Forrest and Norah Forrest of the second part, and Michael Ahern and Michael Forrest of the third part, and by it Denis Ahern assigned the aforesaid farm to Michael Ahern and Michael Forrest, and the survivor of them, his executors, administrators, and licensed assigns from thenceforth during the term so granted thereof as aforesaid, upon trust for Denis Ahern for life, and in the event of his death in the lifetime of the said Norah Forrest to pay to her the said Norah Forrest so long as the said presents should continue, but not further or otherwise, out of the rents and profits the annual sum of £50; and upon further trust in the event of the death of Norah Forrest in the lifetime of her intended husband without leaving any issue of the said marriage her surviving, or, in the event of there being issue of the said marriage living at the time of the death of Norah Forrest in the life of Denis Ahern who should die before attaining the age of five years, in either of such cases to pay to the said Honora Forrest, her executors, administrators, or assigns, out of the rents and profits of the lands, or by sale and mortgage thereof, the sum of £300. The memorial further stated—“And it was thereby further covenanted and agreed upon as therein.”

The consent in writing by the landlord had not been obtained to either deed.

By agreement, dated the 12th January, 1894, between Sir George Colthurst and Denis Ahern, Denis Ahern was declared a present tenant of the farm, and the fair rent was fixed at £210 10s.

On the 30th July, 1901, Ahern surrendered the holding to the landlord, and by lease, dated the 31st July, 1901, Sir George Coltburst demised the farm to Denis Ahern for twenty-one years from the 1st January, 1901, at the rent of £200 a year.

On the 18th February, 1904, Ahern advertised the farm for sale by auction.

The property was described in the particulars as the interest of the vendor “in the valuable farm of Leemount, containing 175a. 3r. 25p., or thereabouts, exclusive of roads and fences, held under lease for twenty-one years from January, 1901, at the yearly rent of £200; old rent, £295; Poor Law Valuation, £220 5s.”

The eleventh condition of sale was as follows:—

“The vendor's title to the lands shall commence with the lease dated the 31st day of July, 1901, whereby Sir George St. John Colthurst, Bart., demised said lands to the vendor for the term of twenty-one years, from the 1st January, 1901, at the yearly rent of £200. The farm is therein described as containing 176a. 3r. 35p., but it is believed the farm now contains 175a. 3r. 25p., portion of the lands having been acquired for labourers' cottages. The purchaser shall be precluded from making any inquiry into, or investigation of, the vendor's title prior to said lease, which may be inspected at any time prior to the sale at the office of vendor's solicitor, No. 44, South Mall, and the purchaser shall be held to have full knowledge of the contents of same. The purchaser shall also assume that the lessor had full power to grant said lease, and shall be precluded from furnishing any requisition as to the lessor's title to make same. The said lands are sold subject to repayment of a Board of Works charge of £12 17s. 10d. per year, terminable in 1908, and a like charge of £5 12s. 8d., terminable in 1916. Vendor will discharge these annuities up to the 10th day of October, 1903. No objection shall be taken by the purchaser to the fact that said lease is not registered, nor shall the vendor be required to register same.”

Turpin was declared purchaser at a sale by auction, and paid a deposit of £276 5s. on account of the price of £1105. Title had since its date been shown to the lease of 1901, which was made to the vendor, and the question arose as to the prior title and the right of the purchaser to raise objections founded upon it.

The solicitor for the purchaser, Mr. Stanton, stated that on the morning of, but prior to, the sale, he called on Mr. Wm. Murphy, solicitor for Denis Ahern, and inquired as to the previous title of vendor, asking in particular whether any settlement had been executed on his marriage. Mr. Murphy stated that there was no settlement on Denis Ahern's marriage, and that Denis Ahern purchased the holding for £500 from the executors of Thomas Forrest, deceased, and that the title deeds were, he believed, lying in the office of Messrs. Blake. The purchaser's solicitor stated that he would not attend the auction unless he saw the deeds. Mr. Murphy went to Messrs. Blake's and obtained the lease of the 18th March, 1865, from Sir George Colthurst to Thomas Forrest, and the assignment of the 3rd February, 1875, which he produced to Mr. Stanton.

No abstract of title was delivered, but Mr. Murphy on the 19th February, the day after the sale, handed Stanton the lease of the 18th March, 1865, the assignment of the 3rd February, 1875, and the lease of the 31st July, 1901.

On the 8th March the purchaser's solicitor received the search made in the Registry of Deeds on which a settlement, dated the 3rd February, 1875, made by...