Re Walsh

• Jurisdiction: Ireland
• Judge: Madden J.
• Judgment Date: 15 November 1915
• Court: King's Bench Division (Ireland)
• Date: 15 November 1915

In re Michael Walsh.

Madden J.

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.

1916.

Land Registry — Local Registration of Title (Ireland) Act, 1891, (54 & 55 Vict. c. 66), sect. 34 (2) — Rectification of Register — Powers of Land Judge.

The Court has power under the 34th section of the Local Registration of Title (Ireland) Act, 1891 (1), to decide, as between the parties to any instrument or transaction registered, any question which may arise as to its construction or effect, and to rectify any error which may have occurred in the course of registration, if such error can be corrected without injuriously affecting any person who is not a party to the instrument or transaction.

Statement of the protections provided by the Act for persons whose interests may be affected under a system of land registry with conclusive title.

Motion by Peter Keogh that folio No. 3155 of the Register, County of Wicklow, and the map lodged therewith, be amended by omitting therefrom the holding of Peter Keogh.

Michael Walsh, the registered owner, on the 25th March, 1906, signed an agreement with his landlord, the Earl of

Carysfort, for the purchase of a holding consisting of 3r. 10p. of the lands of Ballinvally Upper, County Wicklow. The second schedule to the agreement contained a statement that there was not any person in occupation of the said holding as under-tenant or otherwise. The sale was carried out, and the holding was vested in Michael Walsh by fiat of the Irish Land Commission, dated the 22nd May, 1913. On the 15th December, 1913, Michael Walsh was registered on Folio No. 3155 of the Register, County Wicklow, as owner of the said lands in fee simple, the only burden mentioned on the register being the purchase-annuity payable to the Irish Land Commission. It appeared, however, that there was on the holding of Michael Walsh a second cottage and a yard, which had been for many years in the possession of Peter Keogh and his predecessors as weekly tenants to the Earl of Carysfort. The applicant's father had lived in this cottage, as also had his mother until her death in 1905, after which it was sub-let by the applicant to a tenant. Two letting agreements of this cottage and yard were produced, one, dated the 30th April, 1908, between Peter Keogh and the Earl of Carysfort, the other, dated the 24th April, 1911, between Peter Keogh and Colonel Proby (the successor in title of the Earl of Carysfort). It had not been intended to include this plot in Walsh's holding on the occasion of the sale, but by mistake it was not excluded from the map. The mistake was not discovered until after the vesting of the holding in Michael Walsh, and in the meantime Keogh had been paying rent to the Earl of Carysfort and, after his death, to Colonel Proby, but on the 4th May, 1914, Colonel Proby's agent wrote to Walsh enclosing a cheque for £3 1s. 2d.,” being rent paid by Keogh for the period between the signing of your purchase agreement and the vesting order.” On the 9th May, 1914, Michael Walsh served on Keogh a notice to quit “the cottage, yard and garden held by you as tenant from week to week under an agreement dated the 24th April, 1911, and made between Colonel Douglas James Proby of the one part and Peter Keogh of the other part.” The notice stated that “The interest of the said Colonel Douglas James Proby in the aforesaid cottage, yard and garden, and in the aforesaid agreement, is now vested in me, Michael Walsh.” The notice to quit not being complied with, Walsh, on the 6th June, 1914, issued a civil-bill ejectment for overholding against Keogh, which came on for hearing on the 2nd October, 1914, and was adjourned in order that the present proceedings, to have the register and map amended, might be instituted.

Swayne, for the applicant, Peter Keogh:—

The case comes within the provisions of sect. 34, sub-sect. 2, of the Local Registration of Title (Ireland) Act, 1891. for the register can be amended “without injury” to Walsh. “Injury” in that section means depriving a man of some right of which, but for the section, he would not be deprived. Here, apart from the section, Walsh could be deprived of this plot. Further, it is submitted, that “without injury to any person” in sect. 34, sub-sect. 2, means “without injury to any third person.” In Leonard's Estate (1) the register could not have been amended without injury to a person who was not a party to the agreement between Chambers and the Estates Commissioners. Wilson's Estate (2) is distinguishable, for there the vendor had purported to sell the land in dispute, while, in the present case, so far from selling Keogh's plot, he got him to sign a new agreement and received rent from him subsequent to the signing of Walsh's purchase-agreement.

Lupton, for Michael Walsh:—

Even if Walsh only intended to purchase the land of which he was himself in occupation, the landlord has recognized him as owner of the whole, and refunded to him the rent received from Keogh since the signing of the purchase-agreement. In any event Keogh will not be injured, as he will be a weekly tenant either to Walsh or to Colonel Proby. [He referred to Leonard's Estate (1); Wilson's Estate (2); Hussey's Estate (3).]

Cur. adv. vult.

Swayne, for the applicant, Peter Keogh:—

Lupton, for Michael Walsh:—

Madden J.:—

Prior to the year 1906, Michael Walsh was tenant of certain lands the property of the Earl of Carysfort, at the weekly rent

of one shilling. On the 25th March, 1906, Walsh entered into an agreement with his landland for the purchase of his holding, described as containing 3r. 10p. and in the occupation of the tenant. The agreement contained...