The Estate of The Earl of Bandon (No. 2)

• Jurisdiction: Ireland
• Judge: Wylie, J.
• Judgment Date: 16 December 1907
• Court: Court of Appeal (Ireland)
• Date: 16 December 1907

In the Matter of the Estate of the Earl of Bandon (No. 2).

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.

1908.

Land Purchase Acts — Irish Land Act, 1903 (3 Edw. 7, c. 37), s. 24, sub-s. 8 — “Arrears of rent … due” — Meaning of.

The words “arrears of rent … due” in section 24, sub-section 8, of the Irish Land Act, 1903, mean rent which accrued due up to the gale-day immediately preceding the date of the agreements for sale, and do not include the apportioned part of the gale of rent which accrued between the said gale-day and the date of the said agreements.

Question of Law referred by the Examiner to the Judicial Commissioner for his decision on the settling of the final schedule of incumbrances.

Among the items appearing on the final schedule, was the sum payable to the vendor under the provisions of sect. 24, sub-sect. 8, of the Irish Land Act, 1903. The question that now arose was, whether the arrears should be ascertained as of the gale day prior to the date of the agreements, or as of the date of the signing of the agreements, by apportioning the accruing gale. It appeared that in the former case the sum payable to the vendor would be £656 6s. 9d., and in the latter £827 5s. 10d. The lands comprised in the originating application in respect of which the question arose were not settled lands; but, inasmuch as a similar question would arise on the settling of the final schedule in respect of certain other estates of which the vendor was tenant for life, involving a much larger sum, the trustees of the settled estates now appeared to argue the question.

H. D. Conner, K.C., and A. M. Sullivan, for the vendor.

W. M. Jellett, K.C., and C. H. Darley, for the trustees of Lord Bandon's settled estates.

Wylie, J.:—

In this case a question of some difficulty and of great importance, affecting the distribution of the purchase-money of estates sold, has been referred to me for decision by the Examiner.

Though the Act has now been in operation for four years, and the question must have been decided by the Examiners in very many cases, and the purchase-money distributed accordingly, no one has thought fit, up to the present, to take exception to the Examiners' rulings.

In this case, however, the title to a considerable sum of money depends on the answer to the question; and, as in these cases practically only one side is represented before the Examiner, he has raised the question himself on his rulings. The question shortly is, what is the meaning of the words “arrears of rent” in sub-sect. 8 of sect. 24 of the Land Act of 1903? That sub-section provides as follows:— “In the case of the sale of an estate, where at the date hereinafter mentioned arrears of rent were due in respect of any holding on the estate, a sum equivalent in amount to those arrears, but not exceeding in any case one year's rent, shall be paid out of the purchase-money to the person who would have been entitled to receive those arrears for his own use. The aforesaid date shall be, in the case of an estate purchased by the Land Commission, the date of the agreement for that purchase, and, in the case of an estate purchased by other persons, the date of the agreement for the purchase of the holding.”

Now, as I have already stated, the question I have to decide is, what is the meaning of the words “arrears of rent were due” in the above sub-section? Do they mean rent due up to the gale-day next preceding the dates of the agreements mentioned in the sub-section, and at said dates remaining unpaid? or do they include an apportioned part of the current gale up to said dates? Now what I have to construe is, not the words “where rent was due or had accrued due,” but the words “where arrears of rent were due.” Are the expressions “rent due,” or “rent accrued due,” and “arrears of rent due,” synonymous? Do they convey the same meaning? Probably, prior to the Apportionment Acts, they would have expressed the same idea, as rent then was never considered due until it was payable. But I must now take it as well settled by Glass v. Patterson(1) and other cases binding on me, that, since the Apportionment Act of 1870, rent must be considered not only accruing from day to day, as provided by sect. 2 of that Act, but as accruing due from day to day, so that, at any particular period in the currency of a gale, a proportionate part of that gale is due or has accrued due, and, therefore, it would now be correct to speak of that part as so much “rent due.” But then sect. 3 of the same Act provides that such apportioned part shall only be payable and recoverable in the case of a continuing rent when the entire portion, of which such apportioned part shall form part, shall become due and payable, and, in the case of rent determined by re-entry, death, or otherwise, when the next entire portion of the same would have been payable if the same had not been determined, and not before. Therefore, under the Apportionment Act, though an apportioned part of a gale of rent is due, or has accrued due, at a particular date, it is not payable or recoverable at that date.

How can rent be properly said to be in arrear until it is payable? I have been referred to no authority that covers this question, nor have I been able to find any; so, in the absence of any authority, I must answer the question for myself as best I can, and, in my opinion, “arrears of rent” means rent behind in payment. Therefore, construing sub-sect. 8 by itself, I would hold, notwithstanding the Apportionment Act, that the arrears of rent that were due at the date of the agreements for purchase in this case did not include the apportioned part of the gale of rent commencing at the gale-day next preceding the date of the agreements.

But the words “arrears of rent” occur in other sections of the Act of 1903, and also in prior Land Purchase Acts, with which the Act of 1903 is to be construed. By sect. 35 of the Act of 1896 it is provided that where an agreement for the purchase of a holding is lodged with the Land Commission, the purchaser shall, in the event of the sale being carried out, be discharged from all liability to the vendor in respect of any liabilities affecting the holding at the date of the agreement, including “all rent and arrears existing at such a date.”

Now, what is the meaning of “all rent and arrears”? To what do the words “rent” and “arrears” respectively apply? Can “rent” apply to anything else except the portion of the current gale up to the date of the agreement, and “arrears” to so much of the preceding or earlier gales as remained unpaid? The only case which I have been able to find in which the words “rent and arrears of rent” received a construction by the Court is the case of Sealy v. Stawell(1), where a tenant for life of a certain estate devised it to the remainderman “with all rent and arrears of rent due on said property at his death”; and the question was raised whether the apportioned part of the accruing gale passed under the bequest. The Master of the Rolls, in construing the clause, decided that the accruing rent was included in the gift, and said, “It is difficult to give a meaning to the word ‘rent’ as distinguished from ‘arrears of rent,’ except by holding that it applies directly to the apportioned share of the accruing rents.” Now this sect. 35 of the Act, 1896, as well as sub-sect. 8 of sect. 24 of the Act of 1903...