Re Wade's Estate

• Jurisdiction: Ireland
• Judgment Date: 24 November 1884
• Date: 24 November 1884
• Court: Chancery Division (Ireland)

Appeal.

IN RE WADE'S ESTATE

Ball's Trust 11 Ch. Div. 270.

Wilson v. AtkinsonENR 4 De G. J. & S. 465.

Upton v.Brown 12 Ch. Div. 872.

Emmins v. Bradford 13 Ch. Div. 493.

Colclough's Estate 8 Ir. Ch. R. 330.

White v. JamesENR 26 Beav. 191.

Cupit v. JacksonENR 13 Price, 721.

Nixon's Estate Ir. B. 9 Eq. 7.

Nixon's Estate I. R. 9 Eq. 7.

Archdall's Estate 5 L. R. I. 312.

Brown v. Brown 2 Ir. Eq. R. 409.

Joyce v. Joyce 10 Ir. Eq. R. 128.

Rolleston v. Morton 1 Dr. & War. 193 ; 4 Ir. Eq. R.,149.

Browne v. Cavendish 7 Ir. Eq. R. 369 ; 1 J. & La T.606.

Tipping's Estate 2 Ir. Jur. (O. S.) 172

Barnewall's Estate Ir. R. 1 Eq. 304.

Nixon's Estate I. R. 9 Eq. 7

Matthew's Estate 7 L. R. I. 269.

Nixon's Estate I. R. 9 Eq. 7.

Colcough's Estate 8 Ir.ch.R.330.

Nixon's Estate Ir.R. Eq. 7.

In re Robbins 4 Ir.Jur.145.

Lally v.Concannon 3 Ir.C. L.R 557.

Tithe rentcharge — Asolute order for sale — Appointment of receiver — Incumbrance —G. O. VIII., R. I (20th June, 1878)

Vox. XI/I.] CHANCERY DIVISION. was entitled to the fund, because if the mother had never been married she could never have had a child capable of taking." Having so decided in Ball's Trust (1), Mr. Justice Fry considered that he was bound to follow Wilson v. Atkinson (2), in Upton v. Brown (3). Sir George Jessel in Emmins v. Bradford (4) expressed a strong and clear opinion that Wilson v. Atkinson (2) did not lay down any general rule of construction, but was decided on the context of the particular document before the Court of Appeal. It appears to me, for the reasons I have given, that the meaning of the words " without having been married" is clear, and is the same as that of " without ever having been married." It does seem hard that this lady's child should be deprived of this fund ; but the truth is that the facts which have arisen were not contemÂplated or provided for by the settlement. My decision, therefore, is against the Plaintiff, and in favour of the next-of-kin. Solicitor for the Plaintiff : ilk. T. W. Hardman. Solicitor for the next-of-kin : Hr. John Maunsell. IN RE WADE'S ESTATE. Tithe rentcharge-Absolute order for sale-Appointment of receiver-IncumÂbrance-Landed Estates Court Act, ss. 1, 61, 62-G. 0. VIII., R. 1 (20th June, 1878). The principle of Coklough's Estate (8 Ir. Ch. R. 330) and Nixon's Estate (I. R. 9 Eq. '7) is, that an absolute order for sale in the Landed Estates Court is to be considered as having been made on behalf of every person who has an interest in the proceeds of the sale. A tithe rentcharge owner is not interested in the proceeds of the sale within this principle ; tithe rentcharge being, by section 62 of the Landed Estates Court Act, expressly preserved from being affected by the conveyance of the Court. Nor is a tithe rentcharge owner one of the persons for whose benefit a receiver is appointed in the matter of'a petiÂtion for sale. (1) 11 Ch. Div. 270. (3) 12 Ch. Div. 872. (2) 4 De G. J. & EL 465. (4) 13 Ch. Div. 493. Vox 2 T Land Judges. G. 0. TM., R. 1, of the General Orders as to receivers, dated the 20th 1684. June, 1878, is merely a direction of the Court to its officer, and does not in any In re way affect the rights of the owner of the property, or of persons having claims WADE's against it. ESTATE. Neither an absolute order for sale nor the appointment of a receiver in the matter of a petition in the Court of the Land Judges prevents the Statute of Limitations from running as against the owner of tithe rentcharge issuing out of the lands ordered to be sold, or over which the receiver has been appointed. MOTION, on behalf of Edward Rotheram and Henry William Rotheram, for an order that it might be referred to the examiner to take the necessary accounts of the sums due to the applicants as executors of Edward Rotheram, Sen., deceased, and to the applicant Edward Rotheram, in his own right respectively, on foot of the arrears of tithe rentcharge due to them respectively, and that the receiver might be ordered, out of the rents then in his hands and thereafter to come to his hands of the lands of Firs Park and Martinstown, being part of the lands ordered to be sold in this matter, to pay the applicants the sums which should be found due in taking the accounts, in priority to all other charges and in-cumbrances affecting the lands, and that the receiver might be ordered to pay to the said Edward Rotheram in future the tithe rentcharge as the same should accrue due ; and that if necessary the receiver might be extended to the demands of the applicants on foot of such portion of the arrears as should be found to have been due on the 14th January, 1882, the date of the conditional order for sale in the matter. The late Edward Rotheram was the owner of a rentcharge in lieu of tithes, of which he had been lay improprietor, of the amount of £24 14s. 2d. a-year, payable out of the lands of Firs Park and Martinstown, in the parish of Diamor and county of Meath, which were part of the lands ordered to be sold in the present matÂter. For many years, and down to the year 1863, the rentcharge was punctually paid by the owner in the present matter and his predecessors in title ; but after that year, was irregularly paid and let fall into arrear, and there were due nineteen and a-half years of the rentcharge, up to and ending the 1st of May, 1884, less certain credits, the total amount due up to that date being £360 9s. ld., part of which was due to both the applicants as VOL. XIII.] CHANCERY DIVISION. 517 executors of Edward Rotheram, Sen., and part to the applicant Land Judges. Edward Rotheram in his own right. In January, 1871, a sum of 1884. £45 was paid by the owner's land agent on account of the rent- re In ADS'S charge, and no payment had been made since January, 1871, on v -STATE. account thereof. On the 6th of January, 1882, the petition in the present matter was presented for the sale of, among other lands, the said lands of Firs Park and Martinstown, and on the 14th of January, 1882, the conditional order for sale was made. On the 24th of February, 1882, the absolute order for sale was made, and on the 16th June, 1882, a receiver was appointed over the lands so ordered to be sold in this matter, including the lands of Firs Park and Martinstown. On the 16th of July, 1884, notice of the present motion was served. Mr. Twigg, Q. C., and Mr. B. S. Longworth Dames, in support of the motion. Mr. J. G. Gibson, Q. C., and Mr. H. Brougham Leech, for the owner having carriage of the proceedings, resisted the applicaÂtion. The arguments were in substance the same as those in the Court of Appeal, which will be found reported infra, p. 519. FLANAGAN, J. :- In my opinion the decision in Colclough's Estate (1) is not to be extended, and in principle has no application to this case. The 64th section of the Landed Estates Court Act (21 & 22 Viet. c 72) directs the application of the purchase-money of the lands in payÂment of the incumbrances and charges affecting the lands, and the question appears to me to resolve itself into this, " What are the incumbrances and charges " referred to in this section, and which must be paid ? It is argued that under the definition clause of the Act, the arÂrears of the tithe rentoharge are an " incumbrance," in respect of (1) 8 Ir. Ch. 8.:530. 2 T 2 518 LAW REPORTS (IRELAND). [L. R. 1. • Land Judges. which a sale could be had-because a Court of Equity could dir t 884. charge the same by the appointment of a receiver ; that the prin. in re ciple of Colclough's Estate (1) therefore applies, and that the question AD'S 1,TATE. is whether or not at the date of the absolute order for sale the apÂplicant's demand was barred by the operation of the Statute of Limitations ? This is an ingenious argument, but with which I do not agree. As I have said, I do not think that the doctrine in Col-dough's Estate (1) is to be extended ; and in my opinion the true limit of its application is to such a charge or incumbrance as must be paid out of the purchase-money of the lands, e. such a charge as, if not paid, would, by the operation of the 61st section of the Act, be extinguished against the lands-in the hands of a purÂchaser. The 61st section, declaring...