The Estate of Alfred O'Brien and Others

• Jurisdiction: Ireland
• Judgment Date: 04 December 1911
• Date: 04 December 1911
• Court: Court of Appeal (Ireland)

In the Matter of the Estate of Alfred O'Brien and Others (1).

Appeal.

CASES

DETERMINITD 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.

1912.

Land Purchase Acts — Apportionment and redemption — Lands sold, subject to larger superior head-rent than immediate head-rent — “Equitable” apportionment — Land Law (Ireland) Act, 1896 (59 & 60 Vict. c. 47), s. 31 (3) — Irish Land Act, 1903 (3 Edw. 7, c. 37), s. 62(3).

The lands of Gr., held by the vendors under a sub-fee-farm grant at a rent of £12 18s., were sold to the occupying tenants under the Land Purchase Acts for £878. The said lands, together with the lands of B., were subject to a superior fee-farm rent of £47 16s. 6d. The lands of G. comprised 167 acres, the Poor Law Valuation being £57 3s., and the judicial rents formerly paid by the occupying tenants, £57 3s. The lands of B., which were in hands, comprised 222 acres, the Poor Law Valuation being £57 15s., and the “fair valuation,” according to the evidence of a valuer, £68 18s. 6d.

The immediate rent of £12 18s. was redeemed out of the purchase-money at £335, and in dealing with the superior rent Wylie, J., made an order, pursuant to section 62 (3) of the Irish Land Act, 1903 (2), that the sum of £12 18s., portion of the superior rent of £47 16s. 6d., be exclusively charged in respect of the said sum of £335, and be redeemed at that amount, and that the sum of £34 18s. 6d., balance of the superior rent, be exclusively charged on the lands of B.

On appeal from said order by the owner of the superior rent, claiming that, on the facts disclosed, section 62 (3) was inapplicable, and that his superior rent should be apportioned according to the value of the lands of G. and B. respectively, and that the proper proportion thereof, when so apportioned on the lands of G., should be redeemed out of the purchase-money thereof:—

Held, by the Court of Appeal, that the order of Wylie, J., should be affirmed.

Per Holmes and Cherry, L.JJ., on the ground that the order was, in effect, an ordinary apportionment and redemption order, and that the apportionment of the superior rent, as carried out by the order, was “equitable” within the meaning of section 31 (3) of the Land Law (Ireland) Act, 1896.

Per Cherry, L.J.: Section 62 (3) of the Irish Land Act, 1903, is primarily, if not exclusively, intended for cases where a complete indemnity, by covenant or otherwise, exists against the whole of a rent or rentcharge payable out of the lands.

Appeal by Guillamore O'Grady from an order of the Judicial Commissioner, dated the 28th June, 1911, seeking that said order be reversed, and in lieu thereof for an order declaring that the appellant was entitled to have his head-rent of £47 16s. 6d., in said order mentioned, apportioned as between the lands sold in this matter and the other lands liable thereto, according to the value of the said lands, respectively, and to have the proper proportion of his said head-rent when so apportioned on the lands sold in this matter redeemed out of the purchase-money thereof.

By lease, dated the 9th May, 1723, the lands of Gaurus (being the lands sold in this matter), containing 167 acres, and part of Bunnow and Gortataggart, containing 222 acres, situate in the barony of Bunratty and county of Clare, were demised by a predecessor in title of the appellant for the lives therein named, with a covenant for perpetual renewal, at the yearly rent of £24, together with heavy renewal fines on the fall of each life.

By sub-lease, dated the 13th April, 1763, the said lands of Gaurus were sub-demised by the lessee in the last-mentioned lease, for the lives therein named with a covenant for perpetual renewal, on payment of a peppercorn on the fall of each life, at the yearly rent equivalent to £12 18s. sterling. The sub-lease was renewed in 1811. In 1854, the lessee's interest in the sub-lease was sold in the Incumbered Estates Court, and on the 21st June, 1854, was conveyed to J. S. O'Brien, a predecessor in title of the vendors in this matter, Alfred O'Brien and others. No mention was made in the Incumbered Estates Court conveyance of the superior rent. The sub-lease and renewal were not forthcoming, and there was no evidence of their contents beyond the recitals in the Incumbered Estates Court conveyance of the 21st June, 1854. On the 29th June, 1854. the sub-lease was converted into a fee-farm grant, at the same rent, i e., £12 8s. Subsequently, in 1854, the interest of the lessee under the original lease of the 9th May, 1723, was put up for sale in the Incumbered Estates Court, and by order of the Commissioners for the sale of Incumbered Estates, dated the 24th October, 1854, it was directed that the said lease should be converted into a fee-farm grant, upon the terms that the fee-farm rent should be the sum equivalent to £47 16s. 6d. (as now adjusted) in lieu of the rent, renewal fines, and reservations, reserved by the said original lease, and that the following covenants therein contained should be deemed to be still subsisting, viz., covenants on the part of the owner of the said lands for payment of rent, and to keep the premises in repair, and a covenant on the part of the owner of rent for quiet enjoyment. By Incumbered Estates Court conveyance, dated the 22nd February, 1861, the grantee's interest thereunder, in said conveyance described as the said fee-farm rent of £12 18s., created by said indenture of the 29th June, 1854, and the said lands of Bunnow and Gortataggart, were conveyed to the predecessors in title of Catherine Clune and others, subject to the said fee-farm rent of £47 16s. 6d., and to the covenants on the part of the owner of the lands in the said order mentioned, and with the benefit of the covenant on the part of the owner of the said fee-farm rent of £47 16s. 6d.

The said rent of £47 16s. 6d. had since been regularly paid by Catherine Clune and her co-owners, and their predecessors in title, to the appellant and his predecessors.

In 1905, the vendors, Alfred O'Brien and others, proceeded to sell the lands of Gaurus to the occupying tenants under the Land Purchase Acts, and in 1910 the purchase-money, amounting to £878, was advanced.

On the 13th June, 1911, upon the application of the vendors, Wylie, J., made an order redeeming the sub-fee-farm rent of £12 18s., and fixing the redemption-price thereof at £335 8s. on consent entered into between the vendors and Catherine Clune, and the other co-owners of said rent.

On the 28th June, 1911, Catherine Clune, and her co-owners, applied to Wylie, J., for an order that the said redemption-price of £335 8s. be paid out to them without regard to the appellant's head-rent of £47 16s. or, in the alternative, that the appellant's head-rent of £47 6s. 6d. be apportioned by placing £12 18s. on the lands of Gaurus, sold in this matter, and £34 18s. 6d. on the lands of Bunnow and Gortataggart, and that the £12 18s., when so apportioned, be redeemed at the sum of £335 8s.

From the affidavit of Richard A. MacNamara, the vendors' solicitor, it appeared that the Poor Law Valuation of the lands of Gaurus, which contained 167 acres, was £57 3s., of which sum £3 12s. was on buildings, and that the judicial rents payable by the occupying tenants to the vendors out of said lands prior to the sale amounted to £57 3s.; and, further, that the poor law valuation of the lands of Bunnow and Gortataggart, which contained 222 acres, was £57 15s., of which sum £6 18s. was on buildings, and that the said lands of Bunnow and Gortataggart were in the occupation of Catherine Clune and her co-owners. An affidavit was sworn by Patrick O'Donnell, a valuer, on behalf of Catherine Clune and her co-owners to the effect that £68 18s. 6d. was “a fair valuation” of the lands of Bunnow and Gortataggart. In the affidavit of Catherine Clune and her co-owners it was submitted that the intention of the Incumbered Estates Court...