The Estate of William Winter and Another

• Jurisdiction: Ireland
• Judge: Wylie, J.
• Judgment Date: 26 June 1908
• Court: Court of Appeal (Ireland)
• Date: 26 June 1908

In the Matter of the Estate of William Winter and Another.

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.

Statute of Limitations — Tithe rentcharge — Discontinuance of receipt — Subsequent receipt from person not liable — 3 & 4 Wm. 4, c. 27, s. 3 — 37 & 38 Vict. c. 57, s. 1.

Held, by the Court of Appeal (reversing the decision of Wylie, J.), that there had not been a discontinuance of receipt within the meaning of section 3 of 3 & 4 Wm. 4, c. 27.

Question arising on allocation as to whether the purchase-money of the lands sold in this matter was liable to redeem a tithe rentcharge. The facts on which the question arose as stated in the judgment of Wylie, J., were as follows:—

The lands formerly belonged to Thomas John Kearney, Deputy-Assistant Quartermaster-General, who, by his will, which was proved in September, 1857, devised them to trustees for his infant daughter Bertha Kearney. By a conveyance of the 4th August, 1876, said trustees conveyed the lands to Bertha Kearney after she attained age; and by her marriage settlement of the 3rd January, 1877, she conveyed the lands to trustees upon trust to sell. The vendors are the present trustees of that settlement. In a schedule to each of said deeds this tithe rentcharge was set out as a charge upon the lands, and was duly paid up to 1886 on behalf of the owners, first by an agent named Delahunt, and afterwards by an agent named Howard, town clerk of Waterford. For three and a half years after 1886 the receivable order for each half-yearly payment was sent in due course to Howard, but no notice was taken of any of them, and no payment was made. The Church Property Department thereupon, according to what was stated to have been their usual course, sent a number of queries to the Clerk of the Union, asking amongst others (1) the name of the owner of the interest which Captain Kearney had in these lands, described as Dunhill, parish of Dundalk, in the county of Kilkenny, and also (2) the name of the person to whom the tenants paid their rents? The clerk answered the first question by giving the name of Charles Tottenham, Esq., 1, Grosvenor Place, London, and the second question by giving the name of Lewis J. Watters, Esq., 27, Patrick Street, Kilkenny. Accordingly, in December, 1890, a receivable order for three and a half years' arrears of this tithe rentcharge, payable by Charles Tottenham out of the lands of Dunhill, was sent to Mr.Watters, his agent. Now it so happened that Charles Tottenham had succeeded another man named Kearney as owner of lands called Annfield, adjoining the lands sold in this matter, which were also known as part of the lands of Dunhill; and Mr. Watters, who had then recently become agent, and had no reason to doubt the accuracy of the receivable order, paid the three and a half years' arrears on behalf of Charles Tottenham out of the rents and profits of Annfield, and continued to pay the tithe rentcharge up to 1907, when the question of liability was raised in this matter.

Leech, for the Irish Land Commission:—

In order to set up the statute, it must be shown that we had knowledge that the wrong person was paying the tithe rentcharge, or that we would have had knowledge but for laches or negligence on our part. We adopted what was the recognized practice of applying for the necessary information to the Clerk of the Union, who was bound to have it before him for the purpose of rating. There was no laches or negligence on our part, and there has been no “discontinuance of receipt” within the meaning of sect. 3 of the Act of 1833: Adnam v. Earl of Sandwich(1); Irish Land Commission v. White

(1); Irish Land Commission v. Farrelly(2). Here the receipts for the tithe rentcharge and arrears were given by us in respect of and in discharge of the lands liable. There is nothing in the section to say by whom the rent must be paid.

Carrigan, for the vendor:—

Discontinuance of payment within the meaning of sect. 3 took place in 1886, and, so far as the vendor is concerned, continued ever since. In the cases cited the persons entitled to the rent- charge continued to receive it from the former owners of the lands liable after they had parted with their interest in the lands; and accordingly it was held there was no discontinuance of receipt within the meaning of sect. 3. In The Irish Land Commission v. Farrelly(1), Wright, J., found as a fact that the deed between the parties was not known to the Land Commission, and accordingly that there was no default. Here there was a total discontinuance of payment for three and a half years. The Land Commission neglected to enforce payment during that...