The Estate of The Trustees of R Owen (No. 3)

• Jurisdiction: Ireland
• Judgment Date: 22 February 1899
• Date: 22 February 1899
• Court: Court of Appeal (Ireland)

IN THE MATTER OF THE ESTATE OF THE TRUSTEES OF R. OWEN (No. 3)

Appeal.

Landlord and tenant —— Redemption of jointure — Compulsory power, or discretion —

Alexander's EstateIR [1900] 1 I. R. 20.

Nicholson's Estate I. R. 11 Eq. 177.

OF R. OWEN (No. 3) (1). Jan. 15, 16, Landlord and tenant—Land Purchase Acts—Redemption of jointure—Com- 22. Feb. 22 pulsory power, or discretion—Land Law (Ireland) Act, 1896, sect. 31. An estate was sold in the Land Judge's Court in fourteen lots, four of which, Nos. 2, 3, 7 and 14, were charged with a jointure of £200 a year. By an order dated. the 1st November, 1895, it was ordered. that the lands should be sold disÂcharged of the jointure, and that the jointress should have the same rights against the proceeds of the sale of the lands as she would have had against the lands. Lots 7 and. 14 were sold under the ordinary jurisdiction of the Land Judge, and after the passing of the Land Law Act, 1896, lots 2 and 3 were sold under the 40th section of the Land Law Act, 1896, to the tenants. By order dated the 8th December, 1899, it was ordered. that the jointure should be apportioned between lots 2 and 3 on the rental, and. lots 7 and. 14, and that the part so apportioned in respect of lots 2 and 3 should be redeemed : Held (by the Lord Chancellor, and. Walker and Holmes, L.JJ., dissentiente FitzGibbon, L.J.), that the jointure was a " superior interest" within the meaning of sect. 31 of the Land. Law Act, 1896, and. that it was compulsory to redeem so much of it as was apportioned. on the part sold to the tenants under the 40th section. Alexander's Estate ([1900] 1 I. R. 20) approved of and followed (discÂentiente Fitz Gibbon, L.J.). BY an indenture of post-nuptial settlement dated the 7th October, 1870, made in pursuance of an ante-nuptial agreement, the lands of Bawnmore, Moneymore, Aghmacart and Addergoole (portion of which were held in fee, the rest being chattels real) were conveyed to trustees upon trust for Robert Owen, the husband, for life or until bankruptcy, and after his death to pay a jointure of £200 a-year to Mrs. Susan Owen, the wife, for life, in case she survived her husband, and subject thereto for the children and grandchildren, issue of the marriage. The settlement contained a power of leasing, a power to the trustees to sell the lands discharged of the trusts, and a power of investment. (1) Before LORD AO:BOURNE, C., and FITZ GIBBON, WALKER, and HOLMES, L.JJ. 152 THE IRISH REPORTS. [1900. Appeal. Robert Owen, died in the year 1882, and an action was brought 1899. in the Chancery Division (Poe v. Short) to administer his In re 'S In pursuance of a decree made in that action a petition OWEN s ESTATE. for sale was filed in the Land Judge's Court for sale of his estate. (No. 3.) By an order in the Land Judge's Court dated the 1st November, 1895, it was ordered that the lands should be sold discharged of the annuity payable to Mrs. 0 wen, and that the annuitant should have the same rights against the proceeds of the sale of the lands on which her annuity was charged as she would have had against the lands. Mrs. Owen consented to this order. The estate was sold in fourteen lots, and Mrs. Owen's jointure affected lots 2, 3, 7, and 14. Lots 7 and 14 were sold under the ordinary jurisdiction of the Court of the Land. Judge, and after the passing of the Land Law Act, 1896, lots 2 and 3 were sold under the 40th section of that Act to the tenants. On the 8th December, 1899, an order was made by Ross, J., directing that the jointure should be apportioned between lots 2 and 3 on the rental, sold to the tenants, and lots 7 and 14, and that the part so apportioned in respect of lots 2 and 3 should be redeemed at a sum to be ascertained according to the provisions of the statutes in that behalf. There was not any formal judgment pronounced by Mr. Justice Ross, who followed a similar ruling made by him in Alexander's Estate (I). From that order Mrs. Owen appealed. O'Connor, Q. C., and IP earthy 31ahony, for the appellant :— We submit that Mrs. Owen's jointure is not a " superior interest" within the meaning of sect. 31 of the Act of 1896. It certainly is not a superior interest to the estate put in settlement ; it is simply something carved out of it. There is no term of years to secure the jointure, but the settlement contained a power of sale, and the power of sale is superior to all the estates carved out of the fee. When the order was made to sell, discharged of the jointure, the jointure was part of the estate sold. Nothing can be a "superior interest" under section 31 which the Landed Estates Court was able to sell under its ordinary jurisdiction. Under the Landed (1) [1900] 1 I. R. 20. Vet. I.] CHANCERY DIVISION. 153 Estates Court Act, sections 44, 54, and 68, the Judge might sell sub- Appeal. ject to an annuity if he thought fit. Sect. 5 sub-sect. 9 of the Act 1899. of 1885, was the first section that made it compulsory to redeem A re OWEN'S head interests, but that applied only to proceedings carried out by ESTATE. vesting order. The powers of the Land Judge were extended (No. 3.) by sect. 20 of the Land Law Act of 1891. But there is no section of any statute which makes it compulsory to redeem the annuity. Ronan, Q. C., Jellett, Q. C. and C. Brady, for the respondents : The jointure is a " superior interest" within the meaning of sect. 31. Section 31 was the natural outcome of section 40. The Landed Estates Court Act, by sect. 54, gave the Court power to sell either subject to or discharged of an annuity or rentcharge. The powers of the Land Judge have been gradually extended by subsequent Acts. By sect. 16 of the Aet of 1887, a discretionary power to redeem and apportion was given to the Land Commission. Then came sect. 20 of the Act of 1891, which gave them power over superior rents affecting the tithe rentcharge, or rent. The Land Judge had the same power as the Land Commission. But when the Act of 1896 was passed, the scope and object of the sales by the Court was greatly enlarged. Now the Court sells to the tenant the fee-simple free and unineumbered. Once the Court had to sell the fee to the tenants, then it was necessary to get rid of everything that binds the fee. The words of the section are " redeem or satisfy." Sub-sect. 8 defines superior interest, and the terms cf it would include a jointure. We submit that it was compulsory to redeem the annuity, Alexander's Estate (1) ; if not, it was within the discretion of the Land Judge, and, having exerÂcised his judicial discretion, this Court will not interfere. LORD ASHBOURNE, C. :— Feb. 22. This is an appeal from an order of Mr. Justice Ross, who ordered that the part of the jointure of Mrs. Susan A. Owen apportioned on certain lands sold under section 40 of the Act of 1896 should be redeemed out of the purchase-money. (1) [1900] 1 I. R. 20. 154 THE IRISH REPORTS. [1900. Appeal. Mrs. Owen has appealed on the ground that her jointure is not 1899. a "superior interest" within the meaning of section 31 of the Act In re of 1896, and that, therefore, the Land Judge had no jurisdiction OWEN'S ESTATE. to make the order appealed from. (No. 3.) The jointure was created under a marriage settlement dated Lord C. the 8th October, 1870. The lands charged with the jointure were Ashbourne, sold in four lots, two by ordinary sales under the general jurisdicÂtion of the Court, and two under section 40 already referred to. The question arises in reference to the two last mentioned lots. Some reliance was attempted to be placed on an order dated the 1st November, 1895, by which the Land Judge directed that the /ands should be sold discharged from the jointure, and that Mrs. Owen should have the same rights against the proceeds of the sale as she would have had against the lands themselves. But I do not think that this can at all relieve us from, or assist us in, determining the jurisdiction of the Land Judge under section 31 of the Act of 1896. The first sub-section of section 31 is in the following terms :—" Where any land has been sold under the Land Purchase Acts, as amended by this Act, or where land is sold by the Land Judge to the tenant thereof, and an advance under the Land Purchase Acts is made for the purpose of such sale, or where a lessor or grantor has signified his consent to the redemption of a rent under the Redemption of Rent (Ireland) Act, 1891, the sale of such land, or the redemption consequent on the lodgment of such consent, as the case may be, shall be made discharged from all superior interests as defined by this section or any of them, and in every such case the land shall be vested accordingly in the purchaser in fee simple, and such superior interests, or the value thereof, shall become a lien upon, and be redeemed or satisfied out of, the purchase-money of such land." It is essential in the first place to note that this section applies to all operations under the Land Purchase Acts, as amended by the Act of 1896, whether by the Land Commission or by the Land Judge, and therefore it is desirable to bear in mind what were the powers of the Land Commission in the way of apportionment and redemption before the passing of the Act of 1896. They were extremely large and wide, and had been steadily increased. ConÂsiderable jurisdiction in reference to the subject was conferred by Tot I.] CHANCERY DIVISION. 15.& the Purchase Act of 1885, commonly called "the Ashbourne Act," Appeal. but the Act of 1887 made substantial developments. The 16th 1899. I section of the Act of 1887 gave new and increased powers of Ow re EN's apportioning annuities and rentcharges, and of transferring the ESTATE. charges to the purchase-money, the Land Commission being given (No. 3.) full power to act " if they thought fit." The 3rd sub-section pro- Ashbourne, C. vides :—" The Land Commission shall, on the application of the person entitled to a part of an annuity, rentcharge, or rent, which part shall...