The Estate of Garner Edmond Holmes

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 21 November 1906
• Court: Chancery Division (Ireland)
• Date: 21 November 1906

In the Matter of the Estate of Garner Edmond Holmes (1).

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.

1907.

Land Purchase Acts — Insolvent estate — Owner of estate being also owner of a charge — Percentage under Irish Land Act, 1903 (3 Edw. 7, c. 37), s. 48.

Held, that the estate was not (within the meaning of s. 48 (4) of the Land Act, 1903) an estate “so circumstanced that it would, independently of the Act of 1896, be sold without the consent of the owner as to price,” and that the percentage mentioned in sect. 48 was payable.

Allocation.

By his will, dated 13th March, 1845, Garner Joseph Holmes charged the lands of Lisduff with a charge of £2500 in favour of

Matilda Holmes, now Balston, and a charge of £1330 in favour of Garner Edmond Holmes, the present vendor, and subject to these charges devised the lands to his son William Anthony Holmes absolutely. William Anthony Holmes by his will devised the lands to his wife Sophia Holmes for life, with remainder to Garner Edmond Holmes. Sophia Holmes died in 1886, but, owing to the existence of tail incumbrancers, the charge of £1330 did not merge. On 28th July, 1885, a petition was presented in the Land Judge's Court by Garner Edmond Holmes for arrears of his charge of £1330, and a receiver was appointed and an absolute order for the sale of the lands of Lisduff was made on the petition, which order was in force at the date of the passing of the Land Act, 1903. Upon the death of Sophia Holmes the receiver was discharged, and Garner Edmond Holmes entered into possession of the lands and continued in possession of them down to the date of the present proceedings, the rents and profits being divided between Garner Edmond Holmes and Matilda Eliza Balston in proportion to their respective charges of £1330 and £2500. On 22nd March, 1904, the Land Judge dismissed the petition out of Court, and the present vendor, Garner Edmond Holmes, proceeded to sell the lands to the occupying tenants under the Land Act of 1903. By an indenture, dated 8th August, 1904, made between Garner Edmond Holmes, as owner in fee-simple, and Matilda Eliza Balston, it was agreed that, upon the sale of the lands under the Act of 1903, the net purchase-money, after deduction of superior interests, should be divided between them in proportion to their respective charges of £1330 and £2500, and that the bonus...