The Estate of James B. Delap

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

In the Matter of the Estate of James B. Delap.

Wylie, J.

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.

Tithe rentcharge — “Person liable to pay” — Merging Order — Irish Church Act, 1869 (32 & 33 Vict c. 42), s. 32 — Undertaking landlord — Stanley's Act (2 & 3 Wm. 4, c. 119), ss. 17 and Recovery of sum equal to amount of rentcharge from tenant, as rent — Tithe Rentcharge (Inland) Act, 1838 (1 & 2 Vict. c. 109), ss. 7 and 10.

A vendor entered into an agreement with a tenant for the sale of his holding under the Land Purehase Acts. In the agreement it was stated that the tenant held at a rent of £54, payable under a fee-farm grant, dated 1837, being the sum of £49 6s. 8d., rent reserved by said grant, and £4 13s. 4d. added to said rent under the provisions of 1 & 2 Vict. c. 109, s. 10. It appeared that the sum of £54 had been paid since the time of said fee-farm grant by the tenant and his predecessors. The tithe rentcharge in respect of the vendor's whole estate, including the tithe rentcharge payable in respect of the lands comprised in said holding, had been paid by the predecessors in title of the vendor up to 1872. In that year the predecessor in title of the vendor, as the person liable to pay the tithe rentcharge, applied to the Commissioners of Church Temporalities to purchase up the tithe rentcharge payable in respect of his whole estate, and to pay the purchase-money by instalments. A merging order was duly made pursuant to s. 32 of 32 & 33 Vict. e. 42, and the instalments were declared charged on the lands. The instalments had since been paid by the vendor and his predecessors in title, and the last would have been paid off a few years hence.

Held, that the facts of the case were consistent only with the view that the predecessor in title of the vendor became an undertaking landlord within s. 17 of 2 & 3 Wm. 4, c. 119, and that, by virtue of the fee-farm grant of 1837, and s. 10 of 1 & 2 Vict. c. 109, the tenant and his predecessors became liable to pay the £4 13s. 4d. as rent in perpetuity.

Questions of law submitted by the Estates Commissioners for the opinion of the Judicial Commissioner, under section 23 (1) of the Irish Land Act, 1903.

From the memorandum of the Estates Commissioners the following facts appeared:—

The vendor entered into an agreement in Form “F,” dated the 2nd May, 1908, with Robert McKinlay, for sale of his holding at £1412, and it was, in paragraph 4 thereof, stated that the holding was then held by the tenant at a yearly rent of £54, payable under a fee-farm grant, dated the 31st October, 1837, being the sum of £49 6s. 8d. rent reserved by said grant, together with the sum of £4 13s. 4d. added to said rent under the provisions of 1 & 2 Vict. c. 109, s. 10.

The said sum of £1412, the purchase-money of said holding, was arrived at as the result of a bargain between the vendor and the purchaser, that the purchaser was to pay such a price as would represent a reduction of 3s. in the £ in his purchase annuity as compared with the annual sum which he was paying his landlord, which included the sum of £4 13s. 4d. mentioned in the said agreement, both parties to the agreement assuming that the said sum of £4 13s. 4d. was a perpetual charge.

The vendor held the estate of which said holding formed a part under a fee-farm grant dated the 25th November, 1836, and made between the Bishop of Derry of the first part, the Ecclesiastical Commissioners for Ireland of the second part, and James Bogle Delap of the third part, being a grant under 3 & 4 Wm. 4, entitled “An Act to alter and amend the laws relating to the Temporalities of the Church in Ireland,” subject to the fee-farm rent therein mentioned.

By a...