The Gazette 1983

GAZETTE

JANUARY/FEBRUARY 1983

than the fact that the Act established a body to be

called the Representative Church Body (RCB) the

actual method by which this was done need not

concern us here.

In addition, the Act set up a body called the

Commissioners for Church Temporalities in Ireland

and vested all Church of Ireland property in that

body from the 1st January 1871. The Act provided

that until the 31st December 1874, this body could

exercise the powers of the Ecclesiastical Commis-

sioners under the Act of 1833, a point to which we

shall return later.

The brief of the Commissioners for Church

Temporalities was to realise the assets of the Church

of Ireland which had been vested in them under the

Irish Church Act. In doing this, they had tp deal,

broadly speaking, with three types of property:—

1. property which the Church of Ireland wished

and was empowered to reacquire under Sections

25 to 28 of the 1869 Act;

2. tenanted land;

3. rent charges —

(a) rents under the Ecclesiastical Commissioners'

fee farm grants created under the 1833 Act;

(b) tithe rent charges under the 1838 Act.

The Act provided a system whereby both tenanted

land and rent charges could be purchased, either by

payment of the entire purchase price, or by the

payment of not less than 25% of the price, with the

balance being secured by way of mortgage in favour

of the Commissioners. The Act contained no pro-

visions requiring registration in the Land Registry,

the entire concept of which was at the time in its

infancy/ Both the purchase deeds and the mortgages

were registered in the Registry of Deeds. None of the

orders vesting property in the RCB under Sections

25 to 28 of the Act were registered in the Registry of

Deeds.

The Commissioners for Church Temporalities

replaced the Ecclesiastical Commissioners and took

over both their functions and their premises, 24

Upper Merrion Street. In due course, when they

were in turn replaced by the Land Commission,

under the Irish Church (Amendment) Act of 1881,

that august body took up residence in Upper

Merrion Street.

The Registration of Title Acts

So far, we have used the word land quite loosely,

but what was "land" for the purposes of the 1891 Act

and what was the situation where rents and rent

charges were concerned? Lawyers being the same

then as they are now, it was not long before it fell to

the Court to decide whether the title to a property on

which a rent was charged was or was not

compulsorily/Tegisterable. The case concerned was

Keogh Grantor: Kettle Grantee

and the issue

revolved, not around the Irish Church Act, but

around the Redemption of Rents (Ireland) Act of

1891. The question to be determined was whether or

not a fee farm rent was "land" within the meaning of

the 1891 Local Registration of Title Act.

Madden J, .who had been Attorney General for

Ireland and had piloted the Registration of Title Act

through Westminster, held that the rent was land

within the meaning of the Act and that, as such, the

title to the freehold land was compulsorily register-

able. Having decided the point, he commented that:

"Public money to a large and increasing extent has

been advanced on the security of holdings and it

became a matter of public and financial importance

that the title to those holdings should be kept clear

from doubt or complication."

By Section 51 of the Land Act of 1927, the

categories of freehold land which were compulsorily

registerable were extended to cover cases in which:—

1. the purchase annuity has been redeemed;

2. the land had been vested by the Land

Commission for cash.

In 1946, the issues discussed in

Keogh Grantor

came before Martin Maguire, J. in the case of

In re

Reeves Estates

Here, the issue related to a rent

purchased under the Irish Church Act. The facts were

that, in 1835, the Bishop of Kildare and the Ecclesias-

tical Commissioners granted land toTuthill and

Reeves and their heirs and assigns for ever, subject to

a perpetual yearly rent which might be increased or

diminished under the 1833 Act. In 1894, the rent was

purchased from the Land Commission for

£ 153.13s.4d. with £790.5s.0d. being secured by way

of an instalment mortgage, which was duly paid off.

Maguire, J., relying on

In re Keogh

, held that the rent

was land within the meaning of the Registration of

Title Act and that, as such, the title to the lands

granted by the 1835 Fee Farm Grant was

compulsorily registerable.

In his book, "Registration of Title", Mr.

McAllister points out that land registered under

Section 51 of the Land Act 1927, while it was in force,

was not subject to the provisions of Section 23 and

Section 25 of the 1891 Act. The point was not argued

at all before Maguire, J. in the

Reeves Case

and there

is no reference to it in his judgment. The logic of the

practice to which Mr. McAllister refers appears to be

that Section 51 of the 1927 Act did not amend Section

22 of the 1891 Act. Rather it says that certain land was

compulsorily registerable and then went on to

provide that, after registration, the 1891 Act would

apply to such land.

And so the topic rested until 1964, when Mr. C. J.

Haughey, then Minister for Justice, secured

the passing by the Oireachtas of the Registration of

Title Act. This Act came into operation on the 1st

January 1967 and, for convenience, this date is

referred to as the Operative Date. A comparison of

Section 23 of the 1964 Act with Section 22 of the 1891

Act is interesting, for the 1964 provisions are con-

siderably wider than the 1891 provisions. Following

Section 51 of the 1927 Act, no reference is made in

the 1964 Act to the land being subject to a charge for

the security of an advance. The 1964 Act continued to

define the Irish Church Act as a land purchase act.

However, the definition of "land" was widened to

include incorporeal hereditaments. The loophole

referred to by Mr. McAllister has been closed since

1st January 1967 by bringing the provisions of

Section 25 of the 1891 Act. The point was not argued

Act into the one Act.