The Estates of Rev. C. M. Ottley and Patrick Leonard. (Whitney's Rent.) Whitney's Rent

• Jurisdiction: Ireland
• Judge: Wylie, J.
• Judgment Date: 01 November 1909
• Court: Chancery Division (Ireland)
• Date: 01 November 1909

In the Matter of the Estates of Rev. C. M. Ottley and Patrick Leonard. (Whitney's Rent.)

Wylie, J.

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.

1910.

Disentailing deed — Habendum — Rectification — Jurisdiction — Fines and Re — coveries (Ireland) Act (4 & 5 Wm. 4, c. 92), s. 45 — 3 4 Wm. 4, c. 74, s. 47 — Construction — Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 51.

By a disentailing deed, reciting the creation of a renteharge to the use of H. G. and the heirs male of his body, and that he was then entitled to, and in possession and receipt of, said rentcharge, it was witnessed that the said H. G. did, by that deed, intended to be enrolled in the High Court, pursuant to the statute, convey unto J. L. all that the said renteharge so limited to him the said H. G. and the heirs male of his body, and all other the premises of which he was seised or entitled as tenant in tail, to hold the same freed and discharged from the estate tail of the said H. G., and all remainders, estates, and powers to take effect after the determination or in defeasance of said estate tail, unto the said J. L., in fee to the use of the said H. G. in fee simple. The said deed was duly enrolled:—

Held, that section 45 of the Fines and Recoveries (Ireland) Act (4 & 5 Wm. 4, c. 92)—section 47 of 3 & 4 Wm. 4, c. 74—while prohibiting any Court from transforming, by the application of any equitable doctrine, a deed which, according to its legal construction, is ineffective to bar an entail, into a valid disentailing assurance, does not take away the general jurisdiction of a Court of Equity to rectify a disentailing deed, so as to bring its provisions into conformity with the actual intention of the parties; that, having regard to the terms of the deed in question, the words “in fee” were capable of being, and should be, construed as meaning “in fee simple”; and, accordingly, that, under section 51 of the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), the deed was effectual to pass an estate in fee simple.

Hall-Dare v. Hall-Dare (31 Ch. D. 251) and Bankes v. Small (36 Ch. D. 716) considered. In re Ethel and Mitchell's and Butler's Contract ([1901] 1 Ch. 945) distinguished.

Question of law submitted by the Examiner for the decision of the Judicial Commissioner.

By a settlement dated the 10th July, 1869, John Godley, by virtue of a power vested in him, appointed certain lands, including the lands sold herein, to the use that Harry Orowe Godley and the heirs male of his body should, from the decease of the said John Godley, receive out of said lands a rentcharge of £300 per annum. The said John Godley died in 1877. The said Harry Crowe Godley, having attained age, by a disentailing deed, dated the 14th November, 1883, and made between the said Harry Crowe Godley of the one part, and James Lane of the other part, reciting (inter alia) the creation of the said rentcharge to the use of the said Harry Crowe Godley, and the heirs male of his body, and that he was then entitled to, and in possession and receipt of, said rentcharge, it was witnessed that he the said Harry Crowe Godley did by that deed, intended to be enrolled in the High Court, pursuant to the statute, convey unto the said James Lane all that the said rentcharge so limited to him the said Harry Crowe Godley, and the heirs male of his body, and all other the premises of which he was seised or entitled as tenant in tail, to hold the same, freed and discharged from the estate tail of the said Harry Crowe Godley, and all remainders, estates, and powers to take effect after determination or in defeasance of said estate tail, unto the said James Lane in fee to the use of the said Harry Crowe Godley in fee simple. The said deed was duly enrolled. By settlement executed on the marriage of the said Harry Crowe Godley, in 1892, reciting that the said Harry Crowe Godley was absolutely entitled to said rentcharge, the said Harry Crowe Godley conveyed the same to the trustees therein named upon certain trusts, after his death, for the benefit of his wife and children. The said Harry Crowe Godley died in February, 1907, leaving his widow, an eldest son, Francis Godley, and other children, him surviving. The portion of said rentcharge apportioned on the lands sold had been redeemed, and the trustees of the settlement of 1892 claimed the redemption price thereof, as being subject to the trusts of said settlement. The Examiner submitted the question as to whether the disentailing deed of 1883 was effectual to bar the entail in said rentcharge.

Garrett Walker, K.C., for the trustees of the settlement of 1892:—

The question turns entirely upon the effect of the limitations in the disentailing deed of 1883. The Court should read in the word “simple” in the habendum either by construction, or, if necessary, by rectification of the deed. The intention is clearly expressed on the face of the deed. The Court will rectify the deed by supplying the word “simple” unless it is precluded by section 45 of the Irish Fines and Recoveries Act (4 & 5 Wm. 4, c. 92). The provisions of the section are undoubtedly strong, but, notwithstanding this fact, the Court has the same power to rectify a disentailing deed, so as to make it conform to the intention of the parties, as in the case of any other deed: Hall-Dare v. Hall-Dare (1), which was a decision on the corresponding section—section 47—of the English Act (3 & 4 Wm. 4, c. 74). Another decision to the same effect is Bankes v. Small (2). Bonehole v. Henderson (3) shows that the jurisdiction of the Court to rectify is not confined to settlements for value. Even if the Court cannot rectify this deed, it can be treated as amended without any suit: Mills v. Fox (4).

E. G. Swifte, for Francis Godley, the heir in tail:—

The habendum in the deed of 1883, being “unto James Lane in fee,” a life estate only in the rentcharge was conveyed, and to that extent only did the deed operate as a disentailing assurance: Holiday v. Overton (1). In the case of a disentailing deed, the Court is precluded from applying the doctrine of rectification by the provisions of section 45 of the Irish Fines and Recoveries Act (4 & 5 Wm. 4, c. 92). Although the intention to convey the fee simple and effectually bar the entail is clearly shown on the face of this deed outside the words of limitation, the Court cannot supply the word “simple” either by the application of the equitable doctrine of rectification (Meyler v. Meyler (2)) or by construction. Hall-Dare v. Hall-Dare (3) was the case of a re-settlement. There it was sought merely to remedy an accidental omission. In the present case the Court is asked to alter the effect of the deed. In Mills v. Fox (4)...