§
(1.) Where an absolute order for the sale of an estate comprising holdings to which this section applies, has been made under the Landed Estates Court (Ireland) Act, 1858, and either a receiver has been appointed over the estate or the estate is so circumstanced that it would independently of this Act be sold without the consent of the owner as to price, the following provisions shall have effect:—
(2.) Any person in occupation of and paying rent for a parcel of land (including the owner of an estate in occupation of a mansion house or demesne forming part of the estate) held under a letting by the Land Judge or Receiver Judge, may agree to purchase such parcel of land, and the same shall be deemed a holding and such person a tenant, and the Land Judge or Receiver Judge, as the case may he, a landlord within the meaning of the Land Purchase Acts.
(3.) At any time after an absolute Order for the sale of an estate or part of an estate has been made in pursuance of the Landed Estates Court (Ireland) Act, 1858, the foregoing provisions of this section so far as they are applicable, may upon the application of the owner be applied to such estate, although a receiver has not been appointed over the estate, and the estate is not so circumstanced that it would, independently of this Act, be sold without the consent of the owner as to price; provided that no advance shall be made to the owner to purchase any mansion house or demesne forming part of the estate.
(4.) Rules under Part Two of this Act may be made for carrying into effect this section.
§ *THE EARL OF ERNEsaid that in this clause the interests of landlords were hardly at all involved, for it only applied to estates which had absolutely passed 74 out of the hands of the landlords. But he objected to the clause in the interest of a largo number of second mortgagees—or puisne mortgagees, as they were called—such as shopkeepers, banks, and assurance companies—who derived incomes from charges on land in connection with estates in the Landed Estates Court, and the forced sales of those estates would place them at the mercy of the first mortgagees. He also objected to the clause on the ground that it would prevent the investment of money in Ireland. The return of a large Unionist majority at the last General Election had given rise to the hope, which unfortunately had proved to be baseless, that for five or six years at all events there would be a close time for landlords, mortgagees, and others who had the misfortune of being connected with land in Ireland, and in consequence a large amount of money was lent, on the security of Irish estates, either for the purpose of redeeming old charges or creating new ones. But, if the idea was once formed that money lent on the security of Irish land could be dealt with in the manner proposed by the clause, the flow of capital, which was badly wanted in Ireland, would be stopped. The clause would also interfere with purchase. Estates in the Landed Estates Court were badly circumstanced, and were tenanted by a poor class of agriculturists, and when tenants on the neighbouring well-to-do estates saw the properties in the Court going for 12 or 15 years' purchase they would be unwilling to offer any more for their own farms. Again, the clause contained the principle of compulsion, to which the minority of tenants proposed to bedealt with compulsorily under the clause might object, and with disastrous consequences. He submitted that the disadvantages of the clause outweighed the advantages, and therefore he moved his Amendment to omit Sub-section 1.
§ LORD MACNAGHTENsaid that, although many of his Friends were alarmed at the clause, he thought it a valuable provision. It was not a good thing that an enormous number of estates should be in the hands of the Court for an almost indefinite time. Everything depended on the discretion of the Land Judge for the time being, 75 and as it was a matter of discretion with him, unless they provided for it, there would he no power of having a rehearing or appeal on any question. No doubt the Judge might be depended upon to exercise his discretion wisely. But they did not know who the Land Judge might be a few years hence. He proposed to give the right of rehearing to any person aggrieved by the order of the Land Judge to the Court of Appeal. No court in Great Britain stood higher in public estimation than the Court of Appeal in Ireland. Everyone had confidence in it, and if the right of rehearing before it were given every one would be satisfied. He proposed to insert as a new sub-section:—
Subject to the prescribed rules, any person aggrieved by any order of the Land Judge made under this section may apply to the Court of Appeal to rehear the matter, and the matter shall be reheard accordingly.There would be great advantage in this right of rehearing. It was a tremendous responsibiltiy to place on the shoulders of one individual that he should decide, without anyone being able to correct him, if wrong, whether such an enormous area of property as was at present in the Land Court should be sold and at what price. Surely the Judge would exercise his discretion with greater confidence if he knew that anyone aggrieved would have the right of rehearing.
§ *EARL SPENCERsaid he had a strong desire to see the clause, even if modified, pass. He entirely agreed as to the desirability of getting this enormous rental out of the hands of the receivers of the Landed Estates Court. He believed there was at the present moment as near as possible the same amount of rental under the receivers of the Landed Estates Court as there was in 1848 under the receivers of the Court of Chancery. The Encumbered Estates Court was introduced to get rid of that difficulty, and it seemed as great now as then. It was an exceedingly bad thing for the whole country that an enormous number of tenants of land of such great value should be under the influence of what was called "the dead hand" for it really came to that. There was the germ of compulsion in the clause, but it was different from the compulsion that would exist if compulsion were applied to the 76 purchase of estates all over Ireland. Under the clause the Judge could not proceed except in cases where the Judge had absolute power to make a sale now. There might be cases where hardship might exist, where owners were looking forward to the receipt of money to enable them to pay off their debts. But there must be few of them. Mortgagees would not suffer seriously. Their interests would come before the Judge as well as the interests of others concerned. He trusted that the Government would be able be carry this clause, for he believed it would do immense good in Ireland, and get rid of what was becoming a serious scandal—the enormous number of estates under the management of receivers.
§ *THE MARQUESS OF LANSDOWNEsaid the clause had been objected to mainly on the ground that its result would be to bring about forced sales at unduly low prices, and this was de-scribed as detrimental to the interests of incumbrancers, and particularly those of puisne mortgagees. He did not know on what ground the apprehension that the Land Judge would sanction sales of that description rested. He had been reading an interesting memorandum published by the Executive Committee of the Irish Landowners' Convention on the subject of the Land Judge's Court in Ireland, and he found in it the following expressions:—
It has been sometimes demanded that the Land Judges' Court should depart from the practice which has been followed for many years, and when petitions are filed for the sale the estate should in clue course be sold for whatever might be offered for it, whether the price offered seemed fair or not. Recent inquiries have satisfied us that no such practice or policy was ever adopted in the Incumbered Estates Court. On the contrary, the Commissioners appear to have always shown scrupulous regard to the wishes of the incumbrancers. Some estates were certainly sold at low prices, but this was at the instance of incumbrancers and not in pursuance of any such policy on the part of the Court.They mentioned the case of—the able and distinguished Judge who presided over the Court, and recognised that in most case the mortgagees abstained from pressing their sales at low prices, and the Judge sometimes exercised his authority to prevent an estate being sacrificed when the individual incumbrancer appeared inclined to force a sale regardless of the interest of the chargers77 Why should it be supposed that the action of the Court would be so entirely different from what it had been in past years? The Judge had up to the present time exercised his authority in order to prevent estates being sacrificed. Why should they suppose that in future he would avail himself of that authority in order to promote the sacrifice of estates? He found nothing in this clause to suggest that anything of the kind was intended. On the contrary, in every line of it there appeared Jain indications that it was the intention of the framers of the clause to guard against sales at ruinously low prices. The Land Judge was expressly directed to give ail parties an opportunity of being heard. He had to consider the Report made to him by the Land Commission and any other offers that might be made by persons contemplating the purchase of the property; and he had also to consider any other matters brought before him, together with the general circumstances of the, estate. It seemed to him highly improbable, under these circumstances, that the Judge would exercise his discretion in a manner unfair to the persons interested in these estates. The danger seemed to him, if there was one, to be not a great danger. ["Hear, hear!"] Upon the other hand, it was highly desirable on public grounds that these estates should not be allowed to remain for an indefinite time in the hands of the Landed Estates Court. Estates representing a rental of about £600,000 were at the present time in the management of that Court, and he thought the time had come when they should attempt to put an end to the state of things by facilitating sales on fair and reasonable terms to the tenants in occupation of these properties. ["Hear, hear!"] The Government desired to take every possible precaution in order to guard against sales which could be possibly regarded as unfair. Lord Macnaghten had put into his hands an Amendment in the form of a new sub-section providing that any person aggrieved by any Order of the Land Judge made under this section might apply to the Court of Appeal to re-hear the matter, which should be re-heard accordingly. That seemed to the Government a serious matter, and although he should have been disposed to agree to a suggestion 78 that there might be an appeal to the Land Judge himself to re-hear the matter, who might, if he thought fit, so re-hear it, he was not able to consent to the proposal that in all these cases there should be an unrestricted appeal to the Court of Appeal.
*THE EARL OF BELMOREmentioned that there had been some sales by a Land Judge which had given rise to a considerable amount of alarm, and that was why he should support Lord Macnaghten's Amendment.
§ THE EARL OF ERNEwithdrew his Amendment in order that that of Lord Macnaughten might be submitted.
§ LORD MACNAGHTENintimated that he should press his Amendment to a Division. He thought it was a most important thing for a Judge who was exercising this discretion to know that he was not himself the ultimate Court. He accordingly moved to insert the following new sub-section:—
(e.) Subject to the prescribed rules, any person aggrieved by any Order of the Land Judge made under this section, may apply to the Court of Appeal to re-hear the matter, and the matter shall be re-heard accordingly.
THE LORD CHANCELLOR OF IRELANDdid not think the proposal of his noble and learned Friend would be a practicable proposal. If their Lordships would read the entire section they would see that it dealt with a question largely of administration and discretion. To have an appeal on such matters would break down the clause and render it unworkable. There would be appeals in cases where parties might desire to tie up the administration of the section, and this would lead to inconvenience and delay, which they were anxious to avoid. ["Hear, hear!"] They were not legal questions or difficulties which would come into dispute, but topics of administration and discretion which were entirely foreign to the questions that came before the Court of Appeal. The appeals that came before that Court concerned questions of law, but the matters that would come before the Land Judge were not questions of law. They were questions of intelligence, of good sense, and of administrative capacity. He hoped, under these circumstances, the Amendment would not be pressed.
§ LORD MACNAGHTENsaid he certainly pressed the Amendment, which, he considered, would make the clause more workable, remove a blot from it, and enable the Judge to act with much greater freedom. What the Land Judge would have to decide on the papers and the report before him was whether, having regard to the interests of all parties, the sale ought to be made upon the terms imposed, and that was a question of law.
§ LORD JAMES OF HEREFORDcould not help asking his noble and learned Friend to consider whether he knew of any instance where a learned Judge had confided to him discretionary powers under which he had to administer estates, as in the Court of Chancery, in which there ever was any appeal. Surely it was not a matter of law, and it was contrary to precedent that where a Judge had discretionary powers to do the best he could for all parties there should be an appeal to review his action.
LORD MACNACHTENI know of no case where such a tremendous responsibility and such tremendous discretion is vested in one individual. I think it is an exceptional case, and it requires an exceptional provision to meet it. ["Hear, hear!"]
§ The House divided on the question that the sub-section be here inserted:—
| CONTENTS | 61 |
| NOT-CONTENTS | 46 |
| DIVISION LIST.—CONTENTS. | |
| Abercorn, M. (D. Abercorn.) | Annaly, L. |
| Ardilaun, L. | |
| Annesley, E. | Brodrick, L. (V Midleton.) |
| Bandon, E. | |
| Belmore, E. | Carew, L. |
| Caledon, E. | Carysfort, L. (E. Carysfort.) |
| Camperdown, E. | |
| de Montalt, E. | Castletown, L. [TELLER.] |
| Ferrers, E. | |
| Huntingdon, E. | Chaworth, L. (E. Meath.) |
| Kilmorey, E. | |
| Lanesborough, E. | Clarina, L. |
| Mayo, E. [TELLER.] | Clonbrock, L. |
| Portarlington, E. | Cloncurry, L. |
| Rosse, E. | Colchester, L. |
| Vane, E. (M. Londonderry.) | Crofton, L. |
| De Freyne, L. | |
| Verulam, E. | de Ros, L. |
| Winchilsea and | de Vesci, L. (V. de Vesci.) |
| Nottingham, E. | |
| Deramore, L. | |
| Templetown, V. | Dunalley, L |
| Dunleath, L. | Raglan, L. |
| Fermanagh, L. (E. Erne.) | Rathdonnell, L. |
| Rathmore, L. | |
| Fingall, L. (E. Fingall.) | Rossmore, L. |
| Hare, L. (E. Listowel.) | Saltersford, L. (E. Courtown.) |
| Inchiquin, L. | |
| Kilmaine, L. | Sherborne, L. |
| Leconfield, L. | Silchester, L. (E. Longford.) |
| Macnaghten, L. | |
| Massy, L. | Stanley of Alderley, L. |
| Minster, L. (M. Conynyham.) | Sudley, L. (E. Arran.) |
| Talbot de Malahide, L. | |
| Monck, L. (V. Monck) | Tollemache, L. |
| Muskerry, L. | Ventry, L. |
| Ormonde, E. (M. Ormonde.) | Wemyss, L. (E. Wemyss.) |
| NOT-CONTENTS. | |
| Halsbury, L. (S Chancellor.) | Ampthill L., |
| Ashbourne, L | |
| Devonshire, D. (L. President.) | Balfour, E. |
| Belper, E. | |
| Cross, V. (L. Privy Seal.) | Churchill, L [TELLER.] |
| Crawshaw, L. | |
| Norfolk, D. (E. Marshal.) | Emly, L. |
| Glenesk, L. | |
| Harris, L. | |
| Ailesbury, M. | Iveagh, L. |
| Lansdowne, M. | James, L. |
| Salisbury, M. | Kenry, E. (E. Dunraven ami Mount Earl) |
| Pembroke and Montgomery, E. | Kensington, L. |
| Lathom, E. (L. Chamberlain.) | Kinnaird, L. |
| Kintore, L. (E. Kintore.) | |
| Carnwath, E. | Lawrence, L. |
| Clarendon, E. | Manners of Haddon, L. (M. Granby.) |
| Crewe, E. | |
| Dudley, E. | Monteagle of Brandon, L. |
| Hardwicke, E. | |
| Onslow, E. | Ranfurly, L. (E. Ranfurly.) |
| Romney, E. | |
| Selborne, E. | Rowton, L. |
| Spencer, E. | Stanmore, L. |
| Stamford, E. | Teynham, L. |
| Waldegrave, E. [TELLER.] | Tweedmouth, L. |
| Windsor, L. | |
| Zouche of Harynworth, L. | |
| Oxenbridge, V. |
LORD MONTEAGLEasked the noble Marquess whether Paragraph (b) of Subsection (1) was intended to exclude the villages on the property sold in this way? It appeared to him rather hard that, where they were forcing a man to sell his property, they should exclude the villages altogether. He did not know whose property they would be. They might be in the hands, perhaps, of some bankrupt owner, or a receiver of a court 100 miles away, and there would be no one to look after them. He thought a very deplorable state of things might arise, and he would ask the Government whether some means might not be devised for dealing with these villages?
§ *THE MARQUESS OF LANSDOWNEsaid he was afraid he must confine the operation of the clause to lands coming within the description of Paragraph (b). If they were to extend it to towns they would be introducing altogether a new element.
§ Clause, as amended, ordered to stand part of the Bill.
§ Clause 40,—