The Attorney-General Ireland

• Jurisdiction: Ireland
• Judgment Date: 27 June 1884
• Date: 27 June 1884
• Court: Chancery Division (Ireland)

Appeal.

Before SIR E. SULLIVAN, C., PALLES, C. B., and GIBBON, L. J.

THE ATTORNEY-GENERAL

IRELAND

The Attorney-General v. Evans 11 Ir. Ch. R. 177.

Attorney-General v. EvansUNK 11 Ir. Ch. Rep. 171.

, 1847 (10 & 11 Vict. c. 32) Loan to tenant by Board of Works Unexpired term of over "forty years" Eviction for non-payment of rent Inheritance not liable to unpaid instalments of statutory rentcharge.

VOL. XV.] CHANCERY DIVISION. 145 with gales of interest received by him on foot of the mortgage, . M. R. amounting to 392 18s., leaving a balance claimed by the Respon- 1885. dent of 62 Os. 2d. In re CORNWALL. Mr. Martin Burke was about to move the petition, when Mr. C. Leech, Q. C., for the Respondent, applied that the Petitioner should give security for the costs of the petition and the balance claimed by the Respondent. He cited Ex parte Sadler (1); Reilly on Sum. Pet. pp. 17, 328 ; Anon. (2) ; In re Norman (3) ; Ir. Law Times, 20th Dec., 1884, p. 646. THE MASTER OF THE ROLLS directed the Petitioner to give security in the sum of 70, the amount being fixed by consent of the parties. Solicitor for the Petitioner : Mr. Hogan. Solicitor for the Respondent : Mr. W. C. Cornwall. THE ATTORNEY-GENERAL v. IRELAND (4). Landed Property (Ireland) Improvement Act, 1647 (10 Qr 11 Viet. c. 32)-Loan to tenant by Board of Works--Unexpired term of over "forty years" -Eviction for non-payment of rent-Inheritance not liable to unpaid inÂÂstalments of statutory rentcharge. A tenant for a term of years, of which more than forty were unexpired, applied for and obtained from the Board of Works, under the 10 Viet. c. 32, for the purpose of improving the lands comprised in his lease, a loan, repayable by an annual rentcharge as provided by the Act, in pursuance of which the loan was also duly registered. The landlord having subsequently evicted him for non-payment of rent, and there being several half-yearly instalments of the rentcharge due at the date of the execution of the habere (1) 12 Sim. 106. (4) Before Sin E. SIILLIYAN, C., (2) Ibid. 262. PALLBS, C. B., and FITZ GIBBON, L.J. (3) 11 Beay. 401. Appeal. 1884. Feb. 26-28, June 27. 146 LAW REPORTS (IRELAND). [L. R. I. Appeal. Held (reversing the decision of Chatterton, V. C.), that the rentcharge pay_ 1884. able in respect of the loan did not affect the inheritance, but only the tenant's Arm-GEE. interest. v. The Attorney-General v. Etans (11 Ir. Ch. It. 171) followed. -haulm. APPEAL by the Respondent Robert Megaw Ireland. from the Vice-Chancellor's order of the 11th July, 1883, appointing a receiver over the lands of Killoughrum for payment of the rent-charges in the petition mentioned, and costs. The facts are fully stated in the report of the hearing below (11 L. R. Ir. 401), and in the LORD CHANCELLOR'S judgment infra. Mr. Madden, Q. C., Nr. D. Lynch, Q. C., and Mr. Matheson, for the Appellant. The Attorney-General (Mr. Naish, Q. C.), and Mr. Dodd, Q. C. (with them Mr. W. R. Joynt), for the Respondent. The arguments were substantially the same as those appearing in the previous report, except that on the present hearing sect. 50 of the Act (10 Viet. c. 32) was cited and particularly relied on by the Appellant's counsel. June 27. SIR EDWARD SULLIVAN, C. :- This is an appeal from an order of the Vice-Chancellor, dated the 11th of July, 1883, in a matter in which Her Majesty's Attorney-General was the Petitioner, and Major Robert Ireland was the Respondent, and in which proceedings had been taken under the Acts for the Improvement of Landed Property in IreÂÂland. The Vice-Chancellor ordered that it should be referred to Chambers to appoint a fit and proper person to be receiver over the lands of Killoughrum, otherwise Killoughram, in the county of Wexford, for the payment of rentcharges and all arrears thereof due, and also for the recovery of the costs of the suit against the Respondent. The facts on which the case arose are very curious and remarkÂÂable, and they raise a question of considerable importance un VOL. NV.] CHANCERY DIVISION. 147 doubtedly on the statute 10 Vict. c. 32, which is one of the Acts Appeal. known as the Drainage Acts in this country, under which the 16b4. Board of Works are authorized to advance money for the purpose P`TIY.-GEN' v. of improving lands. The facts sufficiently appear in the report of IRELAND. the hearing before the learned Vice-Chancellor (1), and are as follows :- In December, 1858, the late Richard Stanley Ireland demised to William Stanley Purdon and Edward Purdon the lands of Killoughram in the county of Wexford, for one hundred years, from the 29th September in that year. In 1859 the lessees applied to the Commissioners of Public Works for a loan of 800 for the improvement of the lands comprised in the lease. The Commissioners, by their order under the Act of Parliament, dated the 30th May, 1859, in which are stated the name of the lands and the name of the barony, advanced to the Messrs. Purdon, by way of loan under the Act 10 Vict. c. 32, a sum of 800 ; and the order was registered, in accordance with the provisions of the Act, in the office of the Registrar of Deeds on the 3rd of June in that year. In October, 1862, a new lease of these same lands of Killoughram was given by the late Dr. Richard Stanley Ireland to the lessees, the Messrs. Purdon, for two hundred years, at a rent of 160. In 1863 the lessees applied to the Commissioners of Public Works for a further loan of 1500, in reference to which a similar order was made to the one I have mentioned, and it was registered on the 25th March, 1863. These loans were sanctioned by the Treasury, and the sums of 800 and 1500 were paid over by the Commissioners of Public Works to the Messrs. Purdon, the lessees. One of the lessees, William Purdon, died in the year 1870. The lessor died on the 13th March, 1875, and by his will devised his interest in the lands of Killoughram to Robert Megaw Ireland, the Respondent in the present proceedings. In 1879 the rent reserved under the lease fell into arrear, and the Respondent brought an action for non-payment of rent against the surviving lessee, got judgment against him for the recovery of possession of the lands, and issued a habere, which was executed on the 31st of May, 1880, and Major Ireland, the Respondent, then got into (1) 11 L. R. Ir. 401. Appeal. possession of the lands, and has since remained in possession 1884. of them. On the 5th of April, 1883, it appears that 517 4s., ATTY.-GEN. being the statutable instalments for the 800 constituting the first IRELAND. loan to the Messrs. Purdon was due, and constituting the instalÂÂments for twenty-one half years ; and there was 1018 Os. 8d., being twenty-one half-yearly instalments in respect of the second loan, unpaid also. At the date of the eviction there was 1100 odd due for arrears of the two rentcharges. Some time after the eviction Mr. Purdon, the surviving lessee, claimed, under the Land Act of 1870, before the County Court Judge, compensaÂÂtion for permanent improvements on the lands demised by the lease I have mentioned ; and Dr. Darley, the County Court Judge, before whom the case was tried, assessed the sum due to Mr. Pardon for the permanent improvements, but took from it an amount equal to the sum due to the Board of Works, which, under his order he, as it were, put aside as money due to the Crown, and that Mr. Purdon had no right to ; and he also made a calculation of what was due for arrears of rent, and struck a balance. In that state of things the Attorney-General presented this petition for a receiver under the Act against the Respondent. The Vice-Chancellor has given the Attorney-General the relief he sought, by appointing the receiver over the property. Apart from anything that was done by the County Court Judge, as to, which I shall have a word to say presently, the curious and remarkable state of facts I have mentioned obviously raises this point under the 10 Viet. c. 32, namely, whether, in the case of a term of years sufficient under the statute to warrant the ComÂÂmissioners of Public Works in advancing money to the lessees of the land upon the security of the term itself, when the rentcharges which are to repay the loan come into arrear, the Crown can, as against the landlord's rent service, get priority in the assertion of a claim against the lands. The question is the same undoubtedly as if it were taken apart from the extraordinary amount of arrears that exist in this case, and that were allowed, for some reason, to remain uncollected during a considerable period of years, and. that are now sought to be recovered by the receiver as against the owner of the inheritance, it being asserted by the Crown that, on the true construction of this Act, the corpus of the lands them CHANCERY DIVISION. VOL. XV.) 149 selves is charged, in respect of a particular estate in them, and Appeal. that, whether the lands are held under a rent service or held in fee, 1885. the consequence is precisely the same, and the Crown's right goes ATTY.-GEN. against every owner of the land from beginning to end-a most T _RELA ND. important question, and one seriously affecting the property of this country. Now, before I advert to the provisions of the statute, I wish to mention that it is a curious circumstance that this point came incidentally before the late Master of the Rolls (Mr. Smith) so far back as 1860-twenty-four years ago, and twenty-three before the Vice-Chancellor decided this case. He had before him the quesÂÂtion whether a rentcharge granted to secure a loan to an owner in fee, subject to a rent (by a grant prior to the 14 & 15 Vict. c. 20) took priority, under the 10 Vict. c. .32, over the rent, and he held that it did, and that the renteharge was an incumbrance prior to all others. He had occasion to consider the identical question which is before us at this moment ; and though it was not necessary for him to decide it, he pronounced on it the most decided and...