The Attorney-General v Cummins and Others

• Jurisdiction: Ireland
• Judgment Date: 28 November 1895
• Date: 28 November 1895
• Court: King's Bench Division (Ireland)

The Attorney-General

and

Cummins and Others.

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.

1906.

(Before Palles, C.B., and Andrews and Murphy, JJ.—28 Nov. 1895.)

Palles, C.B.:—

The first question for decision is the legal effect of the Letters Patent of 5th July, 31 Charles II. By those Letters Patent King Charles II. granted to Thomas Lord Audley, Earl of Castlehaven, his heirs and assigns, certain quit rents particularly mentioned in the Patent and therein stated to amount in the whole to the yearly rent or sum of £499 19s. 11 ¹/₄d., “to hold the same to the earl, his heirs and assigns, “till he or they should receive and be paid the sum of £5,000 sterling at one entire payment, and without any manner of account, or any other thing to be rendered or paid unto His Majesty, his heirs and successors, of or for the same or any part thereof.”

By the present information, filed upwards of 200 years after this grant, the Attorney-General asks that Her Majesty shall be at liberty to redeem the quit rents by paying the sum of £5,000; that she may be at liberty to pay that sum into Court; that if necessary a release of the quit rents may be decreed to be executed by all necessary parties; that new trustees of certain instruments may be appointed (such trustees being, as I presume, in the view of the Crown necessary parties to the release); and that the quit rents may be ordered to be put in charge in the Crown rental for collection in future by the proper officer on behalf of Her Majesty.

There has been some argument as to the nature of the estate granted by the Letters Patent. In my opinion, that estate was that which is sometimes called a base or qualified fee (1), and sometimes a fee determinable (2). The grant passed the quit rents

in fee subject to a condition determining that fee upon the payment by the Crown at any time of the sum of £5,000. Under such a grant the grantee, until the happening of the determining event, has the whole estate in him, and the old Common Law doctrine was undoubtedly that a possibility of reverter, a possibility coupled with an interest, remained in the grantor, and that the fee of the rents would, upon the performance of the condition, revert to the Crown. “If,” says Plowden (p. 557), “land is given to a man and to his heirs so long as he shall pay 20s. annually to A, or as long as the Church of St. Paul shall stand, his estate is a fee-simple determinable, in which case he has the whole estate in him, and such perpetuity of an estate which may continue for ever, though, at the same time, there is a contingency which when it happens will determine the estate”. The case for the Crown is, that this Common Law doctrine still prevails notwithstanding the modern rule against perpetuities. The defendants, on the other hand, insist that the rule as to perpetuities applies, and defeats the estate in the Crown. Whether it does or not, is the principal question.

It is, however, further contended by the defendants that, as in the case of the Attorney-General, the Crown would on payment of the money have the legal estate, the release sought, or any intervention of this Court as a Court of Equity, would be unnecessary, and that therefore the information should be dismissed. I agree that the Patent is not in the nature of a mortgage; and that as a suit for the redemption of a mortgage, this information cannot be maintained. Nevertheless, as the acts of those claiming through the Patentee have so complicated the title to the quit rents as to render it difficult, if not impossible, for the Crown to ascertain without the aid of this Court the parties entitled to receive the money in question, which, at law, they are entitled to pay, and for which they are entitled to obtain a legal discharge, I cannot entertain any doubt that the Attorney-General is entitled to come into this Court by an information against all the parties having estates in the rents, and have discovery as to the parties entitled to the money, on payment of which the fee will vest in the Crown, to have the rights of those parties determined inter se, as in an interpleader suit, and to have the money in question brought in to the credit of the suit, and, pending the ascertainment of the parties entitled to it, to have the sum so lodged treated as having been actually paid to such of the parties in the suit as the Court may ultimately decide to be entitled to it. This relief I conceive the Crown to be entitled to, even upon an information framed as is the present.

Thus, the only real question is whether the estate of the Crown is defeated by the rule against perpetuities.

The grant in question operated at Common Law. It did not take effect under the Statute of Uses, and the modern rule against perpetuities never applied to CommonLaw conveyances. It is impossible that it could have applied, as it had its origin in the Statute of Uses, as is matter of elementary knowledge; and the subject-matter of that statute did not include conveyances other than...