The Gazette 1913-14

JUNE, 1913.]

The Gazette of the Incorporated Law Society of Ireland.

21

this is what is called an open contract, and the vendor cannot determine what title he will furnish, but must deduce and vouch at least a forty years' title if called on by the purchaser to do so. As to this, Messrs. Greer and Hamilton's letter is as follows : " Ballymoney, 1st March, 1911. Dear Sir, Ballymoney Labourers' Scheme H. We understand that you are acting for the persons undernamed, and shall thank you to let us have a statement of their titles to the plots taken in above scheme as soon as convenient. Wm. McMillan, E. C. Mitchell. Yours faithfully, GREEK & HAMILTON. Thos. Taggart, Esq., Solicitor, Ballymoney." Not a word here about title to an occupa– tion interest; on the contrary, what is required is the title to the plot, i.e., the title to the yearly tenancy by virtue of which the plot is held. Of course, Messrs. Greer and Hamilton might have been content with a title under Sec. 11 of the Act of 1906, as the purchase money and compensation for con– sequential damage amount together to the sum of £60 only ; but, in my opinion, they acted most wisely, both in the interests of the Council and of themselves, in not doing so. No one who is familiar with the way in which yearly tenants, in Ulster at all events, have been dealing with their holdings since the Irish Land Act of 1870, and of the complications and tangles which arise, the suits in the equity side of the County Court, through the doctrine of draft and otherwise, would for one moment assume that a tenant in occupation was absolute owner of a yearly tenancy merely because he was in occupation. If the Council accept a title under Sec. 11, they run the risk of having to pay the money over again ; and in this case it now appears that if the whole money had been paid to Edmund Mitchell, one half would have had to be paid over again to Edward. From this disagreeable result the precautions of Messrs. Greer and Hamilton have saved the Council. The vendor, however, had nothing to do with these considerations ; he was called upon to

furnish his title to the plot taken from him, and he did so, commencing in 1870, and now it is said he is only to get 10/6 for his costs. I do not know all that passed between Messrs. Greer and Hamilton and Dr. Taggart, but I should imagine that Messrs. Greer and Hamilton would, at all events, require (a) an extract from the landlord's books of the tenancy in 1870, verified by a statutory declaration : (b) that the title of Elizabeth Mitchell should be proved, and proof given that all Crown duties payable on her death had been paid; (c) an extract from the Registry of Births, Deaths and Marriages showing that Edward Mitchell had attained 21, with a statutory declaration identifying him with the person mentioned in the certificate. When all this had been done I wonder what change Dr. Taggart would have out of his 10/6, to say nothing of the expense of abstracting the different documents and correspondence. Why, the cost of proving the Will alone would much more than eat up the whole 10/6. Such being the facts of the case, I am of opinion that whatever a " title to an occupation interest " may mean, the title which the plaintiff, Mitchell, was called upon to furnish, and did furnish, was not such a title, but was the title to the yearly tenancy in the farm, and that the 10/6 rule does not apply. To hold otherwise would be to disregard the judgment of Fitzgibbon, L.J., in Lady Mowbray's case, in which he says that " the owner must be indemnified against the necessary costs of being expropriated." Even assuming that as between party and party the Local Government Board can make rules as to costs, they cannot interfere between Solicitor and client, or compel a Solicitor to undertake work by which he would be out of pocket; and the result would be either that the vendor would be deprived of legal assistance altogether, 'or he would have himself to pay the greater portion of the " costs of being expropriated," which is exactly what Fitzgibbon, L.J., says must not happen. I may add that if the contention of the Local Government Board were to prevail instead of effecting their object of economy, the costs of every sale, in this district at all events, would be largely increased. As is well known, the Ballymoney Solicitors, and I believe the Coleraine Solicitors also, have agreed that they will not