The Commissioners of Church Temporalities in Ireland, Continued in the Name of The Irish Land Commission, Plaintiffs; Patrick Grant and Others, Defendants

• Jurisdiction: Ireland
• Judgment Date: 28 June 1883
• Date: 28 June 1883
• Court: Court of Appeal (Ireland)

M. R.

Appeal.

THE COMMISSIONERS OF CHURCH TEMPORALITIES IN IRELAND, CONTINUED IN THE NAME OF

THE IRISH LAND COMMISSION,

PLAINTIFFS;

PATRICK GRANT AND OTHERS,

DEFENDANTS.

Netterville v. Power 6 Ir. Jur. (N. S.) 123.

Sheil v. The Incorporated Society 10 Ir. Eq. R. 411.

The Dean of Ely v. BlissENR 5 Beav. 581.

The Dean of Ely v. Bliss 2 D. M. & G. 459.

Eyre v. M'DowellENR 9 H. L. C. 619.

Gore v. O'Grady Ir. R. 1 Eq. 1.

Owen v. De BeauvoirENR 16 M. & W. 566.

James v. SalterENR 3 Bing. N. C. 544.

Ecclesiastical Commissioners v. RoweELR 4 Q. B. D. 63.

In Attorney-General v. Earl of DurhamUNK 46 L. T. (N. S.) 16.

in non decimando: Andrews v. Drever 3 C1. & Fin. 327.

Salkeld v. Johnson 1 Mac. & Gor. 242.

Dean of Ely v. CashENR 15 M. & W. 617.

Shannon v. HodderUNK 2 Ir. L. R. 223.

Shannon v. StoughtonUNK 3 Ir. L. R. 521.

Eyre v. M'Dowell 9 H. L. Cas. 619.

Sweeny v. Fleming 14 Ir. Ch. R. 23.

The Incorporated Society 10 Ir. Eq. R. 144.

Dean of Ely v. Bliss 2 D. M. & G. 459.

Grant v. EllisENR 69 M. & W. 113.

Paget v. Foley 2 Bing N. C. 679.,688.

Doe d. Angell v. Angell 9 Q. B. 328.

De Beauvoir v. OwenENRENR 16 M. & W. 567; 5 Exch. 166.

The Ecclesiastical Commissioners v. Lord Sligo 5 Ir. Ch. R. 49.

The Dean of Ely v. BlissENR 2 De G. M. & G. 459.

Ecclesiastical Commissioners of England v. RoweELR 5 App. Cas. 736.

The Dean of Ely v. Bliss 2 De G. M'N. & G. 459.

The Ecclesiastical Commissioners v. RoweELRELR 4 Q. B. D. 63; 5 App. Cas. 736.

RoweELRELR 4 Q. B. D. 63; 5 App. Cas. 736

Tithe rentcharge 1 & 2 Vict. c. 109 Statute of Limitations, 3 & 4 Wm. 4 c. 27, ss. 1, 2.

IN IRELAND, CONTINUED IN THE NAME OF THE IRISH March 2, 3, LAND COMMISSION, PLAINTIFFS ; PATRICK GRANT 29. AND OTHERS, DEFENDANTS. Appeal. 1882. Tithe rentcharge-1 4- 2 Vict. c. 109-Statute of Limitations, 3 (5- 4 Wm. 4 June 16, 19. c. 27, ss. 1, 2. 1883. April 24-26. Tithe rentcharge is " rent " within s. 2 of the Statute of Limitations of June 28. 1833 (3 & 4 Wm. 4 c. 27), and the right to recover it is accordingly barred by non-payment and non-acknowledgment for twenty years, in cases coming within that Act (1). The Commissioners of Church Temporalities in Ireland having filed a bill in 1877 for the recovery of tithe rentcharge, in respect of which there had been no payment or acknowledgment in writing for the then previous twenty years, and the Defendants having pleaded the Statute of Limitations, to which defenc) the Plaintiffs demurred : Held, by THE MASTER OF THE ROLLS (SIR EDWARD SuLLITIN), following Shell v. The Incorporated Society (10 Ir. Eq. R. 411) and Netterville T. Power (6 Ir. Jur., N. S., 123), that the Statute of Limitations, 3 & 4 Wm. 4 c. 27, sect. 2, had no application as between the owner and the payer of tithe rentcharge, but only applied as between adverse claimants of estates in tithe rentcharge, and that, therefore, the demurrer should be allowed. On appeal, Held by LAW, C., and FITZ GIBBON, L. J., reversing the deciÂÂsion of the Court below, that tithe rentcharge is neither " tithes " nor " land," but " rent," within ss. 1, 2 of the Statute of Limitations (3 & 4 Wm. 4 c. 27). Held further, by LAW, C., and Fin GIBBON, L. J. (diss. Plum, C. B.), that the tithe rentcharge so being " rent " was barred by non-payment and non-acknowledgment in writing for twenty years ; and that, even if it were " composition " within section 1 of the same Act, still the present Plaintiffs, not being transferees of the immunity from the Act which, as to composiÂÂtion rentcharges, was enjoyed by spiritual corporations sole, could not recover, and the demurrer must be overruled. Held, by PALLES, C. B.: (1), That tithe rentcharge, so belonging to a spiritual corporation sole, is not within the Statute of Limitations. VOL. XI.] CHANCERY DIVISION. 431 (2), That the period of limitation applicable to tithe rentcharge, transferred M. B. (by' the Irish Church Act, 1869) from such a corporation, cannot be computed 1882. from a time antecedent to such transfer. COMMISSION- statement of defence, and to so much of the 11th paragraph as claimed the benefit of the Statute of Limitations (3 & 4 Wm. 4 c. 27), on the ground (among others) that the Act does not apply as between parties entitled ",to receive and those liable to pay tithe rentcharge. The bill was filed by the Commissioners of Church TemporaliÂÂties in Ireland on the 4th of December, 1877, and stated in subÂÂstance as follows : On the 11th October, 1827, a statutable composition for all tithes payable within the parish of Faughart in the diocese of Armagh and county of Louth was made ; and its entire annual amount was fixed by a certificate of that date at the sum of 250, payable to the then Rector of the parish. This composition was afterÂÂwards duly assessed and applotted on each and every parcel of the titheable lands within the parish. Accordingly, under the Tithe Rentcharge Act (1 & 2 Vict. c. 109), such parcels became liable to be charged with the payment of an annual rentcharge equal to three-fourths of the former composition, and amounting to the yearly sum of 187 10s., which tithe rentcharge by virtue of the Irish Church Act, 1869, became vested in and payable to the Plaintiffs. The bill then stated five several indentures of lease, all made in the year 1781, of portions of the lands of Lurgankeel in the parish of Faughart, for respective terms of 999 years ; and that the Defendants (who were twenty-nine in number) were now in posÂÂsession under those leases, which conferred such estates in the land as rendered the Defendants liable to payment of tithe rentcharge. The different parcels held by each group of Defendants were set out in an annexed schedule ; but the Plaintiffs stated that they were unable to ascertain the liabilities of such Defendants inter se. The bill stated in conclusion that the Defendants had refused to pay the tithe rentcharge to which they were so respectively liable ; and it prayed that they might be ordered to pay the arrears 432 LAW REPORTS (IRELAND). [L. R. I. M. R. thereof, of which six years' were claimed in each case, and for the 1882. appointment of a Receiver, and the usual ancillary relief. COMMISSION- The Defendants delivered their statement of defence on the MEECHURCM TEMPORAII- 28th of November, 1881, and after thereby denying all the allega- TIES tions in the bill, except the execution of the five several leases, they GRANT. stated as follows :- " Par. 11. The said Defendants further say that the several lands, in which it is alleged that they have respectively such an interest as renders them respecÂÂtively liable to payment of tithe rentcharge, were actually held and enjoyed exempt from and discharged of tithes, compositions for tithes, tithe rentcharge, and money or other matters in lieu of tithes, for and during the whole time that two persons, Rectors of the said parish of Faughart in succession, held the said benefice in respect whereof such tithes, compositions for tithes, tithe rent-charge, and money or other matters in lieu of tithes, might have been claimed if the same were payable thereout, and for three years after the appointment and institution of a third Rector thereto. And they further say that such exÂÂemption or discharge was actually enjoyed for the full period of sixty years, and the further period of three years after the appointment and institution of the said last mentioned Rector. And they further say that the said respecÂÂtive periods of time elapsed long befora the commencement of this suit ; all -which matters and things they aver to be true, and claim the benefit of the statutes for the limitation of actions and suits ; and plead the several matters aforesaid in bar to the whole of the relief prayed by the said bill, and humbly demand the judgment of this Honourable Court in respect thereof, and pray to be dismissed in respect thereof, with their costs and charges in this behalf sustained." " Par. 12. The said Defendants severally claim the benefit of the provisions made in and by the statute passed in the session holden in the 3rd & 4th years of the reign of King William 4, for the limitation of actions and suits relatÂÂing to real property, and for simplifying the remedies for trying the rights thereto, and of all other Statutes of Limitation in bar to the relief sought by the Plaintiffs in this suit (1). The Plaintiffs having joined issue on the statement of defence, and demurred as above-mentioned (1) The property of the CommisÂÂsioners of Church Temporalities in Ireland having become vested in " The Irish Land Commission," under section 2 of " The Irish Church Act Amendment Act, 1881 " (44 & 45 Viet.c. 71), the Plaintiffs obtained leave,' by order of the Master of the Rolls, of the 17th December, 1881, to carry on the proceedings in the name of the Irish Land Commission as PlainÂÂtiffs. Va. XI.] CHANCERY DIVISION. 433 Mr. H. Brougham Leech (with in support of the'demurrer. Mr. Edward Cuming and Mr. behalf of the Defendants. Mr. Madden, Q.C., in reply (1). him Mr. D. H. Madden, Q.C.), M. R. 1883. COMMISSIO N W . Bennett Campion, Q. C , on Ens CK"C" • TEMPORALIÂÂTIES TIES V. GIUNT. SIR EDWARD SULLIVAN, M. R. :- In this case a very serious question arises as to several clauses March 29. in the Statute of Limitations, 3 & 4 Wm. 4 c. 27. It is whether that statute applies to rectorial tithe rentcharge, as created by the 1 & 2 Viet. c. 109 ; in other words, whether twenty years bar the recovery of rectorial tithes as between tithe-owner and tithe-payer, under the 3 & 4 Wm. 4 c. 27, s. 2. The question has arisen on a demurrer to the statement of defence delivered by the Defendants, who are the occupiers of the lands liable to the tithe rentcharge. When the case was opened before me, I certainly had a strong opinion, from recollection, that it had been ruled in this Court by the late Master of the Rolls, Mr. Smith, that the statute had no application whatever to tithe rentcharge as it...