The Estate of Arthur E. L. Maunsell

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 26 April 1911
• Court: Chancery Division (Ireland)
• Date: 26 April 1911

In the Matter of the Estate of Arthur E. L. Maunsell.

Ross, 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.

1911.

Statute of Limitations (3 & 4 Wm. 4, c. 27), s. 2 — Renewable Leasehold Conversion Act, 1849 (12 & 13 Vict. c. 105) — Fee — farm rent — Non — payment — Extinction.

A fee-farm rent created by and payable under a fee-farm grant made in pursuance of the Renewable Leasehold Conversion Act, 1849, is a rentcharge and not a rent service.

Where such a rent had remained unpaid for more than twelve years, and no acknowledgment had been given in respect thereof, the same was held to be barred by the Statutes of Limitations (3 & 4 Wm. 4, c. 27, and 37 & 38 Vict. c. 57).

Objection to Final Schedule of Incumbrances.

By a lease for lives renewable for ever, dated 25th November, 1738, and made between Margaret King of the one part, and William Lloyd of the other part, the town and lands of Gortnescarry sold in this matter, and other lands were demised to the said William Lloyd for the lives of Thomas Lloyd, junior, Robert Bradshaw, and John Bradshaw, First and second sons of John Bradshaw, at the yearly rent Of £20, late Irish currency, payable on the 1st May and 1st November, and the said lease contained a proviso for perpetual renewal on payment of £10 of the said late Irish currency on the fall of each life.

The said lease was several times renewed, the last renewal being dated the 13th January, 1847, made between Edward Cripps Villiers of the first part, Richard White of the second part, and Mary Ryan of the third part.

By deed, dated the 25th January, 1868, made between Samuel Frederick Adair of the first part, Thomas Lloyd of the second part, and John Troup of the third part, reciting the said indenture of lease, dated 25th November, 1738, and the renewals thereof, and that Samuel F. Adair had purchased in the Incumbered Estates Court the estate and interest of the lessor in the said indenture of lease, and obtained a conveyance of the said interest from the Commissioners of said Court, dated the 17th August, 1850, in trust for Thomas Lloyd, his heirs and assigns for ever, subject to the said recited indenture of the 25th November, 1738, and the renewal thereof of the 13th January, 1847, and reciting that, under the provisions of 12 & 13 Vict. c. 105 (intituled An Act for converting the Renewable Leasehold Tenure of Land in Ireland into a Tenure in Fee), the estate and interest of the said Margaret King, the lessor in the said original indenture of lease, and of Edward Cripps Villiers and Richard White, lessors in the last renewal thereof, were then vested in the said Samuel F. Adair, in trust for the said Thomas Lloyd, and all the estate and interest of the said William Lloyd, the lessee in the said original indenture of lease, and of the said Mary Ryan in the said last renewal thereof, had come to and was then legally vested in the said John Troup, and that the said John Troup had paid to the said Samuel Frederick Adair as trustee of the said Thomas Lloyd the sum of £26 16s. 2d., being the renewal fines and interests payable upon the deaths of two of the lives in the last renewal, and it had been agreed that 11s. 6d. should be added to the yearly rent of £20 Irish currency in lieu of the renewal fines and fees payable on the fall of each life, making together the perpetual rent of £19 1s. present currency. It was witnessed that in pursuance of the provisions of the said Act of Parliament, and in consideration of the said yearly fee-farm rent of £19 1s. the said Samuel Frederick Adair, by direction and with the privity of the said Thomas Lloyd, testified by his execution of the said indenture, granted and conveyed unto the said John Troup and to his heirs and assigns, all that and those the said lands and premises, that is to say, the lands of Gortnescarry and other lands, to hold the same lands unto and to the use of the said John Troup, his heirs and assigns for ever, at the yearly rent of £19 1s.

Since 1873 no payment on foot of the said rent had been made by anyone, and no acknowledgment in respect of the said rent had been given to anyone.

The rent of £19 1s. was set out at No. 11 on the final schedule of incumbrances. The objection of Alexander James Troup, son of the said John Troup, objected to the said rent on the ground that the right to recover the said rent had long since become barred by the Real Property Limitation Acts (1).

Pim, K.C. (with him Frank Fitz Gibbon), for the objector:—

The question whether section 2 of the Act 3 & 4 Wm. 4 applied to leases for years first arose in Paget v. Foley (2), where it was held that the section only applied to rents which are hereditaments, rents for which an assize or real action would lie. In Grant v. Ellis (3), Rolfe, B., held that a rent reserved under a lease was not barred, as the section applied only to rent-charges, and not to rents reserved under leases for years. There must be an interest in the person receiving the rent: Prescott v. Boucher (4). There is no reversion to a fee-farm rent. There-fore section 2 applies to a fee-farm rent. In Dean of Ely v. Bliss (5) it was held that tithes are not within section 2. In Archbold v. Scully (6) it was held that the landlord's right to a rent was not

barred by non-payment, but in that case Lord Cran worth was only thinking of the case of a landlord and tenant under a lease: Irish Land Commission v. Grant (1...