De Vesci (Viscountess) v O'Connell

• Jurisdiction: Ireland
• Judge: H. L.
• Judgment Date: 22 May 1908
• Court: House of Lords (Ireland)
• Date: 22 May 1908

Evelyn, Viscountess De Vesci, and Others, Appellants; Charles O'Connell, Respondent (1).

H. L.

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.

House of Lords — Competency of Appeal — Land Judge — Land Law (Ireland) Act, 1896 (59 & 60 Vict. C. 47), Sect, 31, Sub-sect. 4; Sect. 33, Sub-sect. 4 — Land Purchase Acts — Redemption of liability for rent out of estate indemnified therefrom — Right over against indemnifying lands — Priority — Construction of statute.

Held (Lord Ashbourne dubitante), that notwithstanding sect. 31, sub-sect. 4, of the Land Law (Ireland) Act, 1896, which confers certain powers on the Land Judge, in like manner as if he were the Land Commission, the appeal lay.

Held, also, that the order of the Court of Appeal should be reversed, and that of Mr. Justice Ross ([1907] 1 I. R. 190) should be restored.

Appeal by Viscountess de Vesci and others in the same interest from the order of the Court of Appeal, reported [1907] 1 I. R. 311, reversing the order of Ross, J., ibid, 190. The respondent made a preliminary objection that no appeal lay to the House of Lords on the ground that, under sect. 31, sub-sect. 4, of the Land Law (Ireland) Act, 1896, the Land Judge in exercising the power of redemption in the present case acted under the statute in like manner as if he were the Land Commission (2).

Upon appeal to the House of Lords from the decision of the Court of Appeal ([1907] 1 I. R. 311, sub nom. In re Thomson's Estate; O'Connell, Petitioner):—

D. F. Browne, K.C., and J. H. Pigot, for the respondent in support of the objection.

Ronan, K.C., Herbert Wilson, K.C., and R. H. Macrory, for the appellants.

Lord Loreburn, C. (1):—

My Lords, in the case of this preliminary objection, I think it fails. The sole ground upon which it is said that an appeal to the House of Lords is excluded is that the Land Judge must be treated as though he were the Land Commission, by virtue of sect. 31, sub-sect. 4, of the Act of 1896; otherwise it is not questioned, and cannot be questioned, that an appeal would lie.

I think there is no ground for the objection. The section referred to is the case of a Court receiving new powers; and the measure of competence by which these powers are given is indicated by the words, that the Land Judge shall have the powers “in like manner as if the Land Judge were the Land Commission.” That does not affect the appealability of the Land Judge.

Lord Ashbourne:—

My Lords, this is a very important preliminary objection which has been discussed before your Lordships with a great deal of force in resistance to the objection made. I confess that, although I am aware that your Lordships have all arrived at the conclusion announced by my noble and learned friend the Lord Chancellor, I entertain most substantial doubts in regard to the case and to the validity of the objection. I would be disposed myself to think that it was not the idea in framing this section that this jurisdiction was left open. Although, therefore, as regards the conclusion arrived at, I am prepared to acquiesce in its soundness owing to the weight of authority of those who hold that opinion, I myself entertain as regards the matter very considerable doubt.

Lord Macnaghten:—

My Lords, I agree entirely with the opinion of my noble and learned friend on the woolsack.

Lord James of Hereford:—

My Lords, I concur.

Lord Robertson:—

My Lords, in the view which I take, the true starting-point of this question is, that we have here under appeal a decision of the Court of Appeal in Ireland. Unless it is demonstrated that the jurisdiction which the Court of Appeal was exercising was that of an arbiter and not in its ordinary functions, I should hold that an appeal lay unless there were words of definite exclusion. Accordingly, finding, as I do here, a judgment of the Court of Appeal, and not being pointed to anything that takes away the right of the subject to appeal against that tribunal to the King in Parliament, I am constrained to hold that an appeal lies. Accordingly, I absolve myself from a minute tracing of the several jurisdictions of the Land Commission and the Land Judge, and rest my judgment upon the simpler ground.

Lord Atkinson:—

My Lords, I understood that the Land Judge had, before the passing of the Act of 1896, powers somewhat kindred to those that are conferred upon him by this section, namely, to apportion incumbrances and rents and distribute purchase-moneys; and in the exercise of that jurisdiction the orders which he made would have been subject to appeal to the Irish Court of Appeal, and from that Court to this House. My Lords, I cannot come to the conclusion that the object of the section of the Act of 1896 to which your Lord ships have been referred, was to alter those powers so much as to render them no longer subject to appeal to this House. I think they are merely conferring upon him extended powers very much of the same nature that he exercised before, and to effect similar objects, and, therefore, I think there is nothing in the objection.

Lord Collins:—

My Lords, I am of the same opinion.

The arguments of the appeal on the merits were proceeded with.

Ronan, K.C., Herbert Wilson, K.C., and R. H. Macrory, for the appellants.

D. F. Browne, K.C., and J. H. Pigot, for the respondent.

Lord Ashbourne:—

My Lords, in this case the appellants insist that they have been damnified by the construction placed upon a section of the Land Law (Ireland) Act, 1896, within whose purview they did not come, and which did not purport to apply to them.

The questions involved arise in reference to a fee-farm rent of £404 5s. 2d., reserved by a fee-farm grant of 1852 (founded on an original lease of 1745), of which, so far as unredeemed, appellants are now the owners, and depend on the construction of section 33 (4) of the above Act.

By a sub-lease, dated in 1818, part of the lands, called Hall's part, were demised, with covenants for perpetual renewal, to Robert Hall, subject to £17, Irish currency, in part of the rent reserved by the then last renewal of the lease of 1745, the residue of that rent being charged on certain of the lands comprised therein, for the purpose of keeping Robert Hall, his heirs and assigns, indemnified from the said rent beyond the said sum of £17.

By an Incumbered Estates Court conveyance of 1854 certain of the lands held under the original lease were granted to certain parties, subject to certain rents, and with the obligations and rights of indemnity therein stated. These lands are called in the case “the indemnifying lands.”

By another Incumbered Estates Court conveyance of 9th May, 1855, another part of the lands held under the original lease were granted to Henry Thomson, and they are called in the case “the...