The Estate of Sir Kildare Borrowes, Bart. (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 05 December 1911
• Date: 05 December 1911
• Court: King's Bench Division (Ireland)

In the Matter of the Estate of Sir Kildare Borrowes, Bart. (No. 2) (1).

Appeal.

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 purchase — Sale of demesne land with a view to repurchase — Costs of owner of superior interest — Liability of vendor where purchase-money is insufficient to discharge such costs.

The owner of an estate comprising demesne lands sold the estate to the Estates Commissioners under the provisions of the Irish Land Act, 1903, the vendor proposing to repurchase the demesne, part of which was subject to a perpetual rent which had an enhanced value by reason of the covenant for its payment by the predecessor in title of the vendor, who died leaving assets ample to satisfy the covenant. The purchase-money of this portion of the demesne being insufficient to pay in full the redemption price of the rent:—

Held, that the vendor should be ordered personally to pay to the owner of the rent his costs of and incident to the redemption, and of proving his title.

Appeal by William Morris Colles from so much of the order of Wylie, J., dated loth June, 1911, for the redemption of appellant's perpetual rent of £150 yearly as declared him entitled to his costs of and incident to said order with his demand, and from the order of Wylie, J., made on 25th July, 1911, dismissing with costs appellant's objection to the Final Schedule of Incumbrances.

The circumstances under which the rent now vested in the appellant became subject to redemption are fully stated in the report of In re Borrowes's Estate (1).

In compliance with the views expressed in the Court of Appeal, the Estates Commissioners heard counsel for Mr. Colles and the vendor as to the price of the portion of the demesne subject to the rent of £150 as stated at [1911] 1 I. R., p. 236, note 1, and by order dated 12th June, 1911, they fixed the price at £2300. By order of Wylie, J., dated 15th June, 1911, the rent of £150 was ordered to be redeemed, and the redemption-price was fixed at £3000, the owner of the rent, the present appellant, being given his costs with his demand. The schedule of incumbrances was divided into two parts, Part I. being the part of the demesne subject to the rent of £150, to cover which £2300 out of the entire purchase-money of the estate was appropriated. The claims in Part I. were—(1) Mr. Colles for redemption-price of rent: (a) arrears; (b) costs of and incident to the redemption; (2) Trustees for the vendor: the residue (if any). As the fund only reached to pay No. 1 in part, the only ruling of the Judge on this part of the schedule was as to No. 1, “Retain £2300 on deposit receipt to separate credit.” In Part II. a substantial residue was shown, amounting to over £8000, which was ordered to be transferred to the vendor's trustees, the vendor being tenant for life of the lands sold.

By his objection the appellant objected to his costs being placed in the schedule in respect of Part I. only, and claimed that they should be paid in the same priority as the vendor's costs.

Conner, K.C., and Jefferson, K.C., for the appellant.

The appellant is entitled to have his costs of redemption, and of making title to the rent, provided for out of the estate generally, or paid by the vendor. This is a compulsory sale. The appellant objected to selling as far as he could. But when this Court held that the Estates Commissioners were justified in proceeding with the purchase of this estate if they saw fit, it was surely intended that the transaction of purchase and sale should be carried out in accordance with the regular and established practice of the Court, existing ever since the decision of Sir Edmund Bewley in In re Lord Leconfield's Estate (1), where he applied the principle of In re Bethlem Hospital (2) to...