The Estate of John Scully

• Jurisdiction: Ireland
• Judge: Wylie, J.
• Judgment Date: 27 February 1912
• Docket Number: (E. C. 3272.)
• Court: Court of Appeal (Irish Free State)
• Date: 27 February 1912

In the Mattes of the Estate of John Scully.

Wylie, J.

Appeal.

(E. C. 3272.)

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.

Land Commission — Judicial Commissioner — Decision, whether subject to appeal — Irish Land Act, 1903 (3 Edw. 7, c. 37), s. 15 (1), (2) — Middleman — Rescission of purchase agreement — Estates Commissioners — Declaration of “an estate.”

An appeal to the Court of Appeal lies from a decision of the Judicial Commissioner on appeal from an order or declaration of the Estates Commissioners under section 15, sub-sections (1), (2), of the Irish Land Act, 1903.

A document in the following form: “Declare an estate and sanction subject to marginal notes on Inspector's and Surveyor's reports being complied with,” initialled at different times by two Estates Commissioners, is not a declaration that any particular lands are fit to be regarded as a separate estate for the purposes of the Act within the meaning of section 98, sub-section (1).

Where a landlord and his immediate tenant of a holding (partly sublet with the landlord's consent) agree for a sale through the Land Commission, they may, at any time before a declaration is made by the Estates Commissioners under sect. 15, sub-sect. (1), of the Act of 1903, mutually rescind the agreement, and thereupon all jurisdiction of the Land Commission under section 15, sub-sections (1), (2), with respect to that holding ceases.

Motion on behalf of James O'Neill, one of the tenants on the estate for sale in this matter, by way of appeal against two orders or declarations of the Estates Commissioners under section 15 of the Irish Land Act, 1903, dated respectively 10th April, 1911, and 27th June, 1911, in respect of his intervening interest.

In 1905 an originating application by the vendor for the sale of his estate in the county of Tipperary was lodged with the Land Commission, accompanied by agreements for purchase of their holdings entered into between the vendor and his tenants. One of these was with James O'Neill, who held a farm at Emly, containing 10a. 3r. 30p., statute measure, at a rent of £24. Part of the holding, consisting of 3a. 3r. 5p., was subject to nine yearly sub-tenancies, £40 12s. 6d. being the aggregate yearly rent payable by the sub-tenants. The sub-lettings had all been made with the consent of the landlord. The price of O'Neill's holding was agreed on at £528, re-payable by an annuity of £17 3s. 3d., payable as provided by the Irish Land Act, 1903.

On the 27th May, 1910, a report was received by the Estates Commissioners from their inspector, advising them that the portion of James O'Neill's holding in his own occupation was only security for £254, and that in the occupation of the sub-tenants, for £140.

The following document, which was relied on by the sub-tenants as a declaration of an estate, was afterwards drawn up:—

“Irish Land Commission,

Estates Commissioners,

Direct sales between landlord and tenant.

Record No. E.C. 3272.

Estate of JOHN SCULLY.

Co. Tipperary, S. R.

Declare an estate and sanction subject to marginal notes on inspector's and surveyor's reports being complied with,

M. F.

15th July, 1910.

W. F. B.

2 xi. 10.”

Communications between the Estates Commissioners and the solicitors for O'Neill and his sub-tenants followed, the effect and result of which will be found stated in detail in the judgment of Mr. Justice Wylie. In effect, the Commissioners declined to advance more than £254 for the part in O'Neill's occupation. They proposed, with the consent of O'Neill, to apply section 15, sub-section (1), of the Irish Land Act of 1903; they proposed to advance £140 for the rest of the holding, the sub-tenants paying in cash sums amounting in the aggregate to £586. All the sub-tenants but one, Patrick Ryan (whose advance was £5, and proposed cash payment was £35), signed agreements. James O'Neill refused to consent to this proposed arrangement.

A long correspondence ensued between the solicitors for O'Neill and Scully, the vendor, the effect of which, in the judgments both of Wylie, J., and the Court of Appeal, was a mutual rescission of the agreement to sell through the Land Commission Court, and a new agreement for Scully to sell, and for O'Neill to purchase, out of Court, O'Neill's holding for £591. This was communicated in writing by Scully's solicitor to the Estates Commissioners on the 16th March, 1911, with a request to exclude O'Neill's holding from the estate. A like notice and request were given to the Commissioners on behalf of O'Neill.

The Estates Commissioners, however, on the 10th April, 1911, made in the case of each of O'Neill's sub-tenants (except P. Ryan) a declaration that each such tenant was in exclusive occupation of the parcel of land sub-let to him, was thereby deemed the tenant of that parcel, and the said parcel was deemed a holding. This was followed by a further declaration made by the Commissioners in each case, on 27th June, 1911, reciting the previous declaration of 10th April, 1911, and that James O'Neill had not agreed as to the value of the interest intervening between the vendor and the sub-tenant; the Estates Commissioners declared that same be redeemed at the sum therein mentioned.

From these declarations O'Neill appealed to the Judicial Commissioner.

Chaytor, K.C., and Sealy, in support of the appeal.

Jellett, K.C., Pigot, K.C., and Mooney, for the sub-tenants on part of O'Neill's holdings.

The arguments are fully referred to in the judgment of Mr. Justice Wylie.

Chaytor, K.C., and Sealy, in support of the appeal.

Jellett, K.C., Pigot, K.C., and Mooney, for the sub-tenants on part of O'Neill's holdings.

Wylie, J.:—

This is an appeal against two orders or declarations of the Estates Commissioners under section 15 of the Act of 1903, and raises most difficult questions as to the effect and operation of that section.

In 1905 the vendor lodged an originating application for the sale of his estate in Tipperary, and agreements for the purchase by his tenants of the entire estate were entered into and lodged. One of the holdings on the estate was in the occupation of a tenant named James O'Neill, and by his agreement, dated the 15th November, 1905, he agreed to purchase his holding for £528, and to apply to the Land Commission for an advance of the whole purchase-money. This agreement set out his holding as containing 10a. 3r. 30p., and in the second schedule thereto it set forth the names of nine sub-tenants, and the rent payable by each, but not the acreage of their holdings. It appears that all these sub-lettings were made with the consent of the landlord, and, therefore, though not in actual occupation of the portion of his holding comprised in the sub-tenancies, O'Neill was, by section 57 of the Act of 1881, deemed for the purposes of the Land Purchase Acts to be in occupation of the whole. He was in a position, therefore, to enter into a valid agreement under the Acts for the purchase of the whole.

This not being a zone case, the inspector, according to the general printed instructions, had to report both as to security of the holding for the advance applied for and as to the existence of sub-tenancies, with full particulars as to each. The inspector reported that the holding was not security for £528, the whole purchase-money applied for; that the portion in the tenant's own occupation, containing about 7a., was only security for £254, and the portion in the possession of ten sub-tenants, containing in all about 3a. 3r. 5p., was security only for £140, making for the entire holding £394. He also reported that the sub-tenants were willing and anxious to buy their holdings at sixteen years' purchase of their rents, and to lodge in cash so much of the price as the Land Commission declined to advance, and he recommended that they should be allowed to purchase.

That report was received by the Estates Commissioners on 27th May, 1910, and on the 15th July and 2nd November, 1910, a minute was initialled by two of the Commissioners to the following effect:—

“Declare an estate and sanction subject to marginal notes on inspector's and surveyor's reports being complied with.”

On the 5th September, 1910, the Estates Commissioners issued queries to the vendor's solicitor with a view to having these marginal notes complied with. That query sheet contains this statement, that “the Estates Commissioners are not prepared to advance more than the sums set out in column A for the purchase of these holdings, which sums do not include the price of the sub-tenancies in the case of No. 14,” which was James O'Neill's holding. And opposite his name was “advance applied for, £528; amount in column A, £254.” And further on, opposite James O'Neill's name and advance applied for, £528, is this statement—“Agreements for the purchase of sub-tenancies should be lodged as follows.” Then follow the names of the ten sub-tenants; the area of each sub-tenancy; the price each tenant was prepared to give for his parcel in column 1, amounting in all to £726; the amount the Commissioners were prepared to advance in each case in column 2, amounting in all to £140; and the cash to be paid by each in column 3, amounting in all to £586. Then follows this statement—“The Commissioners are prepared to advance the amounts set out in column 2, and the amounts set out in column 3, being the value of James O'Neill's intervening interest, should be paid in cash by the sub-tenants, with James O'Neill's consent endorsed as shown”; and the endorsement was in these terms — “I consent to [blank for sub-tenant's name] being treated as tenant of the lands mentioned in within agreement, and that the price of his holding should be [blank for price in column 1], and in consideration of an advance of £254 being made to me for the purchase of the residue of my holding, and a sum of [blank pounds in column...