The Estate of Sir Kildare Borrowes, Bart

JurisdictionIreland
JudgeWylie, J.
Judgment Date25 April 1911
CourtKing's Bench Division (Ireland)
Date25 April 1911
In the Matter of the Estate of Sir Kildare Borrowes, Bart.

Wylie, J.

Appeal.

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.

Land Purchase — Estates Commissioners — Jurisdiction — Superior interests — Price — Demesne land — Irish Land Act, 1903, sections 3(1), 5, 17.

Where a vendor has given prima facie evidence of title under section 17 of the Irish Land Act, 1903, the Estates Commissioners have jurisdiction to deal with him as owner for the purpose of effecting a sale, without inquiry as to the amount of redemption prices of superior interests, and as to the sufficiency of the purchase-money to satisfy and redeem such superior interests in full. There is no distinction in this respect between the jurisdiction of the Commissioners in the purchase of demesne land under section 3 (1) of the Irish Land Act, 1903, and of any other land which, under that statute, they have power to acquire.

The Commissioners in exercising this jurisdiction are the sole judges of what price represents the selling value of such demesne land, and of whether, having regard to all the circumstances of the case, the agreed price is equitable.

Upon these questions the owner of a superior interest may properly be heard before the Commissioners, and if the superior interest affects only part of the demesne land sold, it may be proper to determine separately the selling value of that part. But the Commissioners have jurisdiction to proceed with the sale although the purchase-money may eventually prove insufficient to redeem a superior interest at the price fixed by the Judicial Commissioner. In such last-mentioned contingency, semble, per Cherry, L.J., any collateral security such as a covenant to pay a head-rent would not be affected.

A memorandum was submitted by the Estates Commissioners to Mr. Justice Wylie as Judicial Commissioner, setting out the facts, which are sufficiently stated in his Lordship's judgment, infra, p. 219, and referred for his decision the following questions:—

(1) Whether the Commissioners had power under section 3 of the Irish Land Act, 1903, to purchase from the vendor for the purpose of re-sale to him the lands of Grangemore in his occupation as tenant under a lease, dated 3rd august, 1866, from Rev. William Morris Colles to Robert Higginson Borrowes, predecessor in title of the vendor?

(2) Whether it was the duty of the Commissioners to deter-mine the price representing the selling value of the Grangemore leasehold?

(3A) Whether if (2) is answered in the affirmative the Commissioners are bound to form an opinion as to whether the purchase-price will be sufficient to redeem the head-rent?

(3B) In forming this opinion, are the Commissioners bound to inquire whether the lessor has any security for the rent beside the lands?

(4) If the Commissioners are of opinion that the purchasemoney will not be sufficient to redeem the head-rent, are they bound to refuse to make any advance in respect thereof?

Conner, and Jefferson, K.C., for Mr. William Morris Colles.

The Solicitor-General, A. C. Meredith, K.C., and R. Grove-White, for the owner.

Wylie, J.:—

By an indenture of the 3rd August, 1866, the Rev. William Morris Colles granted and demised part of the lands of Grange-more, containing about 80 acres, to Robert Higginson Burrowes, in fee, subject to the yearly rent of £150, and said deed contained a personal covenant by the grantee for payment of said rent. In 1893, on an application by the grantee for the redemption of this rent, under the Redemption of Rent (Ireland) Act, 1891, it was decided that the demised lands had become incorporated in the grantee's demesne of Gilltown, and were, therefore, excluded as demesne lands, both from the Redemption of Rent Act and the fair rent provisions of the Land Law Acts.

On the 29th June, 1905, the vendor, a successor in title to said grantee, lodged an originating application for the sale to his tenants of the tenanted portion of his estate, and for the sale to the Land Commission and re-purchase of the demesne lands in his occupation, including the lands comprised in said fee-farm grant. The vendor subsequently gave prima facie evidence that he was a person having power to sell the said demesne lands under the Land Purchase Acts, and satisfied the Land Commission that, for not less than six years immediately preceding, he, or his predecessors in title, had been in receipt of the rents and profits thereof; and, accordingly, on the 26th February, 1009, the Land Commission published the prescribed notices of their intention to acquire said demesne lands, and served same upon William Morris Colles, who was then entitled to the interest of the grantor under said fee-farm grant.

On the 28th May, 1909, the said William Morris Colles lodged an objection in these terms:—“I object to the said vendor being dealt with as the owner of the lands of Grangemore in said county, forming part of the demesne and lands herein, or the vesting of said demesne and lands in the Land Commission, or otherwise, inasmuch as portion of the said lands for sale is held by the said vendor under a lease for ever, bearing date the 3rd August, 1866, at the yearly rent of £150, and that such lands are in the actual occupation of the said vendor, and form part of the demesne of Gilltown, part of same being ornamental plantations, and that, as such, the said rent, being an occupation, and not a head-rent, cannot be redeemed.”

The Estates Commissioners, either treating this objection as being invalid, or overlooking it, proceeded to value the demesne lands, and estimated the selling value of the entire lands at £19,022, no separate valuation being made of the lands comprised in said fee-farm grant, and the vendor having agreed to this price, the Estates Commissioners on the 10th August, 1909, gave a fresh notice that, unless cause was shown to the contrary within two months, the Land Commission intended to make an order vesting said lands in the Land Commission for the purpose of re-sale to the vendor.

On the 9th October, 1909, Mr. Colles gave fresh notice of his objection in the same form as the above objection of the 28th May, 1909.

Now, there are only three grounds of objection stated in that notice—First, that portion of the lands are held by the vendor under a lease for ever at a rent of £150. That is obviously an invalid objection. No one had ever suggested, or contended in Court, that a fee-farm grantee holding at a rent cannot sell, and be dealt with as an owner, under the Land Purchase Acts.

The second ground of objection is that such lands are in the actual occupation of the vendor, and form part of his demesne, including ornamental plantation. Why, that is the very ground on which he is empowered to sell and re-purchase under section 3 of the Act of 1903.

The third ground of objection is that the said rent, being an occupation and not a head-rent, cannot be redeemed. I presume that means that the head-rent is not a “superior interest.” Now the meaning of “superior interest” within the Land Purchase Acts has been so fully dealt with and discussed in the judgments in Owen's Estate (1) (No. 3), that I do not think it necessary to discuss it further. It is enough to say that this rent “is payable or to be rendered in respect of the land sold,” and is, therefore, expressly within the definition of “superior interest” in section 31 of the Act of 1896.

Consequently, every ground of objection stated on the face of the notice is bad.

But on the hearing of the objection before the Estates Commissioners, and also before me, the grounds of objection stated in the notice were practically abandoned, and two new grounds of objection were relied upon. In the first place, it was contended that, inasmuch as it was practically immaterial to the vendor whether the purchase price fixed for these demesne lands was the full true selling value or not, Mr. Colles, as the only person interested in the amount of the purchase price of that portion of the demesne lands comprised in the fee-farm grant, by reason of the redemption value of the reserved rent of £150, secured as it is by personal covenant, being much more, as is alleged, than the value of the said lands, was entitled to know how much of the total purchase-money represented the selling value of the portion of the lands comprised in the fee-farm grant.

This claim to have a separate value put on said portion of

the lands was based on two grounds. First, that Mr. Colles, as the only interested party, might be able to see, and, if necessary, be heard on the question, whether the price fixed was the full selling value. Now this claim, on the ground mentioned, is I think one that no tribunal would refuse to entertain; and I am quite certain, if Mr. Colles had made any such claim at the proper time, that the Estates Commissioners would at once have complied with it; and I have no doubt they will do so still, because ultimately, for the purpose of distribution, the value of these lands must be separately fixed. The second ground on which Mr. Colles claims to have the purchase price of these particular lands separately fixed is, that he is entitled to see whether the purchase-money applicable to these lands will be sufficient to satisfy or discharge the redemption price of the rent of £150—because, if not sufficient, he then contends that the vendor cannot sell, and the Land Commission cannot buy, this portion of the demesne under the Land Purchase Acts.

This brings me to the only question that I have really to decide in this case, because upon the proper answer to this question depend...

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