Tuthill v Rogers

• Jurisdiction: Ireland
• Judgment Date: 24 April 1844
• Date: 18 April 1844
• Court: Court of Chancery (Ireland)

Tuthill

and

Rogers.*

Chancery.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

By letters patent of 31 Car. 2, the lands of H. were granted to Sir G. A. in tail male, and a rent of three pence per acre, the amount of quit-rent prescribed by the Act of Settlement, was reserved. In 1681 Sir G.A. conveyed the lands to S. and his heirs, saving the estate and right of the Crown.—In 1776 the estate tail determined by failure of issue male of Sir G. A. The representatives of S. remained in possession of the lands down to the filing of the bill in 1841, and dealt with the estate as an absolute estate in fee. The rent reserved by the letters patent was regularly paid to the proper officer, and the usual receipt given for it as quitrent.

Held, that the right of the Crown to the land on the determination of the estate tail, was barred by the 48 G. 3, c. 47, the case not coming within any of the exceptions in the first section of that Act.

In 1639t Sir Gerald Aylmer, in pursuance of articles executed on the marriage of his son Sir Christopher Aylmer, conveyed various estates, including the lands of Higginstown in the county of Meath, to certain uses. By virtue of that deed Sir Gerald Aylmer, the son of Sir Christopher, and grandson of the settlor, was entitled in the year 1663 to an estate tail in possession in some of the lands, and in others to an estate tail in remainder expectant on the death of his father Sir Christopher. The whole of those estates had been taken into the hands of the Crown in consequence of the rebellion of 1641; and under the Act of Settlement the Crown was seized of the entire estate in fee-simple.

In 1663 Sir Gerald Aylmer, his father Sir Christopher being still living, preferred his claim to the Commissioners and obtained a decree of innocence, by which his title as tenant in tail male to all except three denominations, Hayestown, Higginstown and Dollardstown, was declared and established; but as to the three excepted denominations he was left to his remedy at law or in equity—that is, to assert by legal proceedings against the persons in possession, the title which was thus admitted and established.

His father Sir Christopher died before 1679; and Sir Gerald in that year (31 Car. 2) applied for a grant of the estates to be made to him pursuant to the Act of Settlement; which grant, after the usual references, was accordingly made, and bore date the 5th of January 1680.

It granted to him all the estates in tail male; and it stated that Sir Gerald had commenced a suit at law, and was then in possession of Higginstown by himself or his undertenants. This grant reserved the rent of three pence by the English acre, being the amount prescribed by the thirtieth section of the King's declaration established by the Act of Settlement, as the rent of forfeited lands in the province of Leinster.

Sir Gerald Aylmer being thus seized of an estate in tail male, in the year 1681 conveyed the lands of Higginstown to George Smith. The conveyance contained an express recognition and saving of the estate and right

of the Crown; although it was not so stated in the abstract laid before the Master in support of the title.

There was a commission in the 36th year of the reign of Car. 2 (1684), called the Commission of Grace. Under this commission Sir Gerald, in 1684–5, obtained a grant of all the lands in fee, save two denominations of Higginstown and O'Brienstown; for this he paid a fine of £80 to the Crown. No grant, however, appears to have been made either of Higginstown or O'Brienstown, under the Commission of Grace: this, as to Higginstown may, perhaps, have been caused by the sale of them to Smith in 1681. There was a failure of issue male of Sir Gerald Aylmer in the year 1776. But up to the present time the quit-rent of three pence has been regularly paid to and received by the Crown, although the estate tail thus ended in the year 1776 by this failure of issue male of Sir Gerald Aylmer. This receipt of a rent which bore so small a proportion to the value of the lands, after the time at which the Crown's title to the possession accrued, led to a reference to the Crown rentals, in the earliest of which in 1692 the following entry was found:—

barony of slane.

Sir G. Aylmer.	Tenant of Higginstown.	a.	r.	p.	£	s.	d.
Patent Court of Grace.	243	1	0	4	18	5

This entry is transcribed into the rental of the year 1706, which, as well as the first, is of record in the Auditor General's office; and is copied and continued to this day in the quit-rent roll.

The quit-rent receipts were in the form universally adopted, and did not indicate or allude to the nature of the estate in respect of which the rent was received.

In 1709, Robert Rigmaiden, the heir-at-law of George Smith (to whom the lands of Higginstown had been conveyed in 1681), on his marriage covenanted to settle the lands on himself for life, with remainder to his first and other sons in tail, with a reversion in fee to himself. By this deed he reserved to himself power to charge the estate with £500, for his younger children; and in 1732, he executed this power by mortgaging in fee to Rose. In 1746, this Robert Rigmaiden conveyed his estate, that is his estate for life and reversion in fee, to his only son Robert, to whom the mortgagee Rose re-conveyed the mortgage in 1747. In 1769, Robert Rigmaiden the younger, and his wife, levied a fine to the use of himself in fee. In 1783, he devised to trustees and their heirs, in trust to sell the fee. In 1785, his executors filed a bill in the Exchequer, to have the trusts of the will carried into execution. In 1780, in pursuance of a decree in the cause, and in consideration of £2350, the trustees of the will conveyed to Robert Murphy and his heirs, in trust as to part for William Rogers. In 1770, William Rogers, on the marriage of his son William Henry, conveyed to trustees and their heirs, in trust for his eldest son William Henry in fee. In 1817, William the son of William Henry, reciting his seizin in fee, granted an annuity to Christopher Tuthill, and conveyed the fee to J. D. Jackson, to secure the payment of the annuity.

Tuthill having filed a bill and obtained a decree for a sale, the lands of Higginstown were set up for sale, and Francis Kearney became the purchaser.

The purchaser objected to the title, on the ground that by the grant from the Crown, bearing date the 5th of January 1680, an estate in tail male only in the lands of Higginstown passed to Sir Gerald Aylmer, and that the reversion in fee expectant upon the determination of such estate in tail male was and continued to be vested in the Crown, and such estate in tail male having determined in 1776, by the failure of issue male out of Sir Gerald Aylmer, the Crown became entitled in possession to the lands of Higginstown; and the said William Rogers and the persons under whom he claimed, or some of them, having continued regularly to pay to the Crown the annual rent of £4. 18s. 5d. reserved by the grant of Charles the Second, the right of the Crown to the said lands of Higginstown, by virtue of the said reversion, had been preserved unbarred; and therefore that there was not vested in the said William Rogers, or in any other party to the cause, any title, at law or in equity, to an estate of inheritance, the fee-simple and inheritance of the said lands being vested in the Crown.

The objections having been argued before Master Townsend, he overruled them and reported the title good. Exceptions were taken to his report, and the Master of the Rolls confirmed it; but in consequence of his suggestion, the question being of great importance, the cause was brought before the Lord Chancellor.

Mr. Moore, Q. C., for the purchaser.—The letters patent granted the lands of Higginstown to Sir Gerald Aylmer in tail male, the reversion in fee remaining in the Crown. There was a failure of issue male of Sir Gerald in 1776, and the Crown then acquired an estate in fee in possession, which has continued down to the present time, and is not barred by the 48 G. 3, c. 47;* for the case comes within some one of the exceptions in the first section. The first exception to the right of the Crown being barred, is where the Crown has been in actual seizin of the lands within sixty years. The Crown became seized of the lands in 1776, on failure of issue male of Sir Gerald Aylmer. That seizin still continues, for it is established law that the Crown cannot be disseized. There is no act of record by which Rogers could derive a title against the Crown. There was no tenancy created since 1776. It was merely possession by license and permission of the Crown; and a person who occupies Crown land under a license is not an intruder: Harper v. Charlesworth (a).

The second exception is where the Crown has been in possession of the rents, revenues, issues and profits, within sixty years. The title of the Crown does not depend on the quantum of rent paid. The payment of any rent is sufficient to preserve it. The Crown has been in receipt of the rent ever since 1776, and therefore the right is saved by this exception. The third exception is, where the land shall have been in charge within the space of sixty years. The meaning of being in charge, is explained by the second section to be, where the rent has been received by the proper officer. So that the case comes within that exception also. For these reasons, the Master's report should be overruled.

Mr. Serjeant Warren, and Mr. Reeves, in support of the Master's report.

This case is within the mischief which the statute was passed to remedy, and it is not within any of the exceptions. By the letters patent the estate was granted to Sir Gerald Aylmer, and the heirs male of his body. That estate determined in 1776, and since that the subject has been in possession and enjoyment of the estate. The case therefore falls within the mischief which the statute was passed to remedy. It...