25 / 114
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