The Irish Land Commission v Maquay, by Original Action: and Maquay v The Irish Land Commission, by Counterclaim

• Jurisdiction: Ireland
• Judgment Date: 14 May 1891
• Docket Number: (1890 — J. No. 62.)
• Date: 14 May 1891
• Court: Exchequer Division (Ireland)

Ex. Div.

(1890 — J. No. 62.)

THE IRISH LAND COMMISSION

and

MAQUAY, BY ORIGINAL ACTION: AND MAQUAY

and

THE IRISH LAND COMMISSION, BY COUNTERCLAIM.

Lake v. DeanENR 28 Beav. 607.

Carroll v. Keayes Ir. R. S Eq. 97.

Leggott v. Barrett 15 Ch. Div. 306.

Palmer v. JohnsonELR 13 Q. B. Div. 351, 357.

Ulster Bank v. WoolseyDLTR 24 Ir. L. T. R. 65.

Jones v. ChapmanENR 2 Exch. 803.

Phelps v. WhkteUNK 7 L. R. Ir. 161.

In re Turner and Skelton 13 Ch. Div. 130.

Palmer v. JohnsonELR 13 Q. B. Div. 351.

Caballero v. Henty L. R. 9Ch. App. 447.

Ford v. CotesworthUNK L. R. 5Q. B. 544.

Appleby v. Myers L. R. 2C. P. 651.

Behn v. BurnessENR 3 B. & S. 751.

— Sale by Land Commission in default of payment of instalments — Conditions of sale — Conditions of sale — Construction — Rights of purchaser as to possession.

342 LAW REPORTS (IRELAND). [L. R. I. be from June till November, or to go home and return with their witnesses when the Judges shall have returned from circuit. I can well understand a trader in Sligo having an honest demand for £70 electing in many cases to abandon £20 and sue in the Civil-bill Court rather than attend with his books and witnesses in Dublin at great inconvenience and at an expense which, even if he be successful, he may never be able to realize. We had before us in this Court, some time since, a bill of costs where, out of a total of about £90, about £30 was occasioned wholly by reason of the trial being had in Dublin. The construction of the 33rd section is clear beyond doubt ; the only question is the mode of administration, and I think the true mode of administering it is to follow the rule adopted by the committee of the English Judges under the Rule of 1853 and bold in general that in cases where under the common law (as modified by the Rule of 1853), the defendant was entitled to change the venue to the place where the cause of action arose he should still be entitled to do so, unless it should be shown to the Court or Judge, by the plaintiff, that it is more reasonably consistent with the convenient and speedy discharge of the business that the case should be tried elsewhere than in the place where the cause of action shall have arisen. This onus of proof the plaintiff in the present case has wholly failed to sustain. His LORDSHIP then proceeded to refer to the leading facts, and concluded by concurring in the decision for the defendant. Ex. Div. THE IRISH LAND COMMISSION v. MAQUAY, BY ORI-• 1891. GINAL ACTION ; AND MAQUAY v. THE IRISH LAND May 13, 14. COMMISSION, BY COUNTERCLAIM. (1890-J. No. 62.) Land Purchase Acts-Sale by Land Commission in default of payment of instalments-Conditions of sale-Construction-Rights of purchaser as to possession. The tenant purchaser of a holding under the Land Purchase Acts having allowed the instalments to fall into arrear, the Irish Land Commission set up the farm for sale by auction subject to conditions of sale in which the vendors were described as being " The Irish Land Commission," and under which the lands were to be sold subject to the annuity, and immediate posÂsession was to be given to the purchaser, upon completion of the purchase upon the prescribed day ; the purchaser paying his purchase-money, was as from that date to be let into possession. Voi. XX v in.] Q. B. & EX. DIVISIONS. The conditions further provided that as the vendors were selling under their power of sale, the purchaser should not require the concurrence of any other person. The farm was sold and a conveyance executed to the purchaser, but the tenant, who was confined to bed from illness in a house on the farm, refused to give up possession or to attorn to the purchaser. The purchaser thereupon obtained from the Land Commission a writ of injunction to put him into possession, and the sheriff having regard to the condition of the tenant's health refused to put her out of the house, but offered to give possession of the remainder of the holding to the purchaser. This offer was declined and the sheriff made a special return. The purchaser accordingly never obtained posÂsession, and in an action by the Land Commission for instalments he counterÂclaimed for breach of the condition entitling him to immediate possession :- Held, that upon the true construction of the conditions the clauses as to giving possession did not constitute a contract on the part of the Land ComÂmission, ",but amounted only to a true representation of what would be the legal rights of the purchaser enforcible under the Land Purchase Acts, and that therefore the counterclaim could not be sustained. CAUSE SHOWN by the plaintiffs in the' original action against entering the verdict for the defendant. The action was brought to recover £62 16s. Od., being two half yearly instalments of an annuity payable by the defendant under a deed of conveyance, dated 15th July, 1889, and made between the plaintiffs and the defendant. The defendant by his defence admitted the plaintiffs' right to the sum sued for; but counterclaimed damages for not having been put into possession of the premises by the plaintiffs. The case was tried before Mr. Justice Gibson, and a jury of the city of Dublin, in the Hilary Sittings, 1891. It was the common case of both parties at the trial that the defendant had, in 1886, sold to one Catherine Brien, under the provisions of the Land Purchase (Ireland) Act, 1885, a farm of lands in the county of Waterford, held from him by the said Catherine Brien as tenant, the entire of the purchase money, amounting to £1570, being advanced by the Irish Land ComÂmission, and that by indenture dated 27th October, 1886; the farm was conveyed to the said Catherine Brien, who covenanted therein to repay the said Commission the amount of the said advance by an annuity of £62 16s. Od., for forty-nine years, from 1st May, 1886, payable in two equal half-yearly instalments on the 1st May and the 1st November in each year. Catherine 344 LAW REPORTS (IRELAND). [L. R. I. Ex. Div. Brien having allowed two half yearly instalments of this annuity 1891. to remain unpaid, the plaintiffs in exercise of the power of sale IRISH LAND conferred upon them as mortgagees, put up the farm for sale by COMMISSION v. public auction on the 28th May, 1889, subject to printed particulars MAGMA-Y. and conditions of sale, which, after giving the usual descriptive particulars of the premises, and a short statement of the tenure as already given, stated as follows :-" The lands will be sold subject to the future payment of this annuity (X62 16s.). Immediate possession will be given to the purchaser." The vendors were described as "The Irish Land Commission." Condition No. 4 was as follows :-" The purchaser shall pay the remainder of his purchase money on the 11th day of June, 1889, to the said Solicitor (1) at his office, 24, Upper MerrionÂstreet, Dublin, at which time and place the purchase is to be comÂpleted, and the purchaser paying his purchase money is, as from that day, to be let into possession " . . . And condition 9 stated :- " The vendors are selling under their powers of sale, and the purchaser shall not require the concurrence of any other person. The form of acknowledgment to be signed by the purchaser at the auction appears in the judgment infra, p. 351. The defendant purchased the farm at the auction for £105, and immediately after the auction paid a deposit of 25 per cent. ; and on the 15th July, 1889, he paid the balance of the purchase money, and executed the deed of conveyance of that date. On the 24th July, 1889, the defendant's land-agent attended at the lands and demanded...