The Estate of Henry Bruen, Junior

• Jurisdiction: Ireland
• Judge: Wylie, J.
• Judgment Date: 06 December 1910
• Court: Chancery Division (Ireland)
• Date: 06 December 1910

In The Matter of the Estate of Henry Bruen, Junior.

Wylie, 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.

Settled land — Assignment of life estate by first tenant for life to second tenant for life — Merger — Power of sale — Settled Land Act, 1882 (45 & 46 Vict. c. 38), ss. 2, sub-s. 5, 3, 50, 51.

Where the first tenant for life of settled lands has assigned his life estate to the second tenant for life under the settlement, so that the life estate of the former has become merged in that of the latter, the power of sale conferred on a tenant for life by the Settled Land Acts can be exercised by the second tenant for life, notwithstanding the provisions of sect. 50 of the Settled Land Act, 1882.

Observations of Chitty, L.J., in In re Mundy and Roper's Contract, ([1899] 1 Ch., at p. 296), and of Swinfen Eady, J., in In re Barlow's Contract ([1903] 1 Ch., at p. 384), considered.

Question arising on allocation affecting the right of the vendor to receive the bonus payable in respect of the purchase-money advanced under the land Purchase Acts. The facts on which The question arose, as stated in the judgment of Wylie, J., were as follows:—

By a settlement of the 15th November, 1886, the lands sold in this matter were limited to the Right Hon. Henry Bruen, father of the vendor, for life, with remainder to the vendor for life, with remainder to the first and other sons of vendor in tail male, with remainders over. By a voluntary conveyance of the 30th November, 1897, the Right Hon. Henry Bruen conveyed his life estate to the vendor. On the 23rd November, 1907, the vendor having entered into agreements with the tenants for sale of the settled lands under the Land Purchase Acts, lodged an originating application with the Land Commission to carry out said sale; and on the 4th August, 1910, the “estate” was declared by the Estates Commissioners, and the purchase-money lodged in bank. The Right Hon. Henry Bruen was still alive.

The question was now raised as to whether the vendor had power to sell the settled lands?

Gerald Fitz Gibbon, K.C., and C. Murphy, for the vendor:—

The vendor was entitled to sell as tenant for life for the time being beneficially entitled in possession, whether under the settlement of the 15th November, 1886, or under a compound settlement consisting of that settlement and the conveyance of the 30th November, 1897. The effect of the conveyance of 1897 was to merge the first life estate under the settlement in the life estate of the vendor: Mayhew's Law of Merger (1); Preston's Abstract of Title (2). The vendor accordingly came into possession by virtue of an accelerated life estate, and not as assignee of his father's life estate.

But even assuming that there was no merger, under sect. 58, sub-sect. 1 (v), of the Settled Land Act, 1882, the vendor was entitled to sell as tenant for the life of his father, not holding merely under a lease at a rent. The policy of the Act was to facilitate the striking off from the land the fetters imposed by the settlement: Chitty, L. J., in In re Mundy and Roper's Contract (3). Prior to the Settled Land Act, 1884, the power of sale could be vested in different persons at the same time. This was the case under section 63 of the Settled Land Act, 1882.

Herbert Wilson, K.C., and Frank Fitz Gibbon, for the Right Hon. Henry Bruen and the trustees of the settlement:—

The power of sale under the Settled Land Acts cannot now exist in two persons at the same time. It is impossible for a person who has become tenant for life within the meaning of section 2, sub-section 5, of the Settled Land Act, 1882, to divest himself, during his life, of the powers conferred on a tenant for life by the Act. Whether or not the life estate of the vendor was accelerated, section 50 of the Settled Land Act, 1882, is a complete answer to his claim to be a competent vendor: In re Cramer Roberts' Estate (4); In re Power's Estate (5); In re Ker's Estate (6).

Gerald Fitz Gibbon, K. C., and C. Murphy, for the vendor:—

Herbert Wilson, K.C., and Frank Fitz Gibbon, for the Bight Hon...