The Estate of Edward More O'Ferrall

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 06 November 1912
• Court: Chancery Division (Ireland)
• Date: 06 November 1912

In the Matter of the Estate of Edward More O'Ferrall.

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.

1913.

Land Purchase Acts — Irish Land Act, 1903 (3 Edw 7, c. 37), s. 24, sub-s, 8 — Insolvent estate — Sum for arrears of rent, to whom payable.

Where upon the sale of a settled estate through the Irish Land Commission arrears of rent are due to the vendor (tenant for life) at the date of the purchase agreements, the sum payable in respect of those arrears under section 24, subsect. 8, of the Irish Land Act, 1903, is a sum earmarked and distinct from the rest of the purchase-money, and is payable to the vendor, notwithstanding that the rest of the purchase-money is insufficient to meet the claims of incumbrancers thereon.

Objection to the allocation schedule.

The sum of £234 3s. 6d. appeared at item A on part 3 of the allocation schedule. The said sum represented the amount of arrears of rent (not exceeding one year) due in respect of the holdings in part 3 of the schedule at the date of the agreements for purchase, 1st November, 1909. At this item the examiner put the following note:— “Allow, but, as item No. 5 on this part of the schedule will not be met in full, it is reserved for the Judge as to whether this sum should be paid to the vendor or to the claimants at No. 5.”

At No. 5 on part 3 of the schedule was set out the mortgage for £5000, dated 5th March, 1870, and now vested in the objectors. The purchase-money of the estate was insufficient to discharge the said mortgage, if paid in the priority in which it now stood in the schedule. The objectors submitted that their mortgage of 5th March, 1870, was entitled to be paid in priority to the said item A on the schedule, and that the schedule should be amended accordingly.

Since the year 1881 the vendor had been in receipt of the rents and profits of the lands, subject to the said mortgage as tenant for life under a settlement of 2nd July, 1870, and had paid all interest on the said mortgage, and all outgoings in full up to 14th December, 1911, the date when the purchase-money was paid into the Bank of Ireland.

Jellett, K.C., for the objectors, the mortgagees:—

The question is, whether the vendor is entitled to take out of the purchase-money this sum of £234 3s. 6d. in priority to the mortgagees, notwithstanding that the estate is insolvent. Section 24 (8) of the Act of...