Ejectment
Cases
Catherine
Baggott v Joseph O’Doherty
Micheal Downey, Joseph Keane and Florence Orpen
High Court.
3 November 1944
[1945] 79 I.L.T.R 73
Haugh J.
Haugh, J., in the course of his judgment, stated that these cases came before him by way of appeal from a decree in ejectment made on an Ejectment Civil Bill brought by the plaintiff against four defendants, namely, Joseph O’Doherty, Micheal Downey, Joseph Keane and Florence Orpen. The first and second of the defendants were lessees of certain lands situate in County Limerick, held by them under a lease dated the 29th day of July, 1938. This lease, which appeared to have been intended by the parties to be a “Building Lease” within the meaning of the Landlord and Tenant Act, 1931, was for a long term, reserved an annual rent of £28, and contained a covenant on the lessees’ part to build and construct within eight months from the date thereof “four dwellinghouses in semi-detached pairs, each house to cost £750, with out-offices and out-buildings thereunto annexed,” to the satisfaction of the lessor’s surveyor, and in accordance with certain plans and specifications.
The lessees O’Doherty and Downey had defaulted in the payment of the rent reserved by this lease, and more than one year’s rent was due, and the plaintiff, as lessor, now sought to eject O’Doherty and Downey, and the other defendants, who were the sub-lessees of these houses from O’Doherty and Downey.
His Lordship went on to say that the plaintiff was bound to succeed unless the defendant could successfully raise a defence founded upon some statute, and for that purpose the defendants had relied upon the Landlord and Tenant Act, 1931, as amended by the Landlord and Tenant (Amendment) Act, 1943. Certain of the facts in the case were of importance. In the first place, the “Lease,” in the events which had happened, had never become a “Building Lease” within section 46 of the Landlord and Tenant Act, 1931, for the reason that the lessees had failed to build upon the whole of the land thereby demised. The lessees had built upon portion of these lands and there were at the moment two houses which had been sub-let to the defendants, Joseph Keane and Florence Orpen, respectively.
The question for decision, his Lordship continued, was whether these sub-lessees, each of whom would have been entitled to a “proprietary lease” within section 46 of the 1931 Act, if the lease of 29th July, 1938, had become a “Building Lease,” could be ejected from these premises by reason of the failure of the lessees O’Doherty and Downey to pay the rent and notwithstanding the provisions of section 51 of the Act of 1931.
His Lordship pointed out a flaw in the Act, in that, as he said, the lease of 29th July, 1938, never became “a Building Lease” within the meaning of the Act, and the benefits intended to be conferred by the Act never, in fact, applied in the present case, and that accordingly the Act of 1931 afforded no defence to the plaintiff’s claim, and section 51 of that Act was no answer unless the amending Act of 1943 altered the situation. It had been contended by the appellants that the Legislature had by section 2 (2) of the Landlord and Tenant (Amendment) Act, 1943, brought cases of the nature of the case being considered within the purview of the Landlord and Tenant Act, 1931, and that by reason of the provisions of that section those portions of the lands comprised in the lease of 1938 which had been built upon should be deemed to be held under a separate lease from that part of the land not yet built upon, and that this separate lease should be deemed to be a “Building Lease” within the meaning of the Landlord and Tenant Act, 1931, in accordance with paragraph (e) of sub-section 2 of section 2 of the Act of 1943. In short, what his *74 Lordship had to decide was, did section 2, sub-section 2, of the Act of 1943 apply to the circumstances of the present case?
The plaintiff argued that the Acts of 1931 and 1943 constituted a complete code in themselves and that, reading the code in its entirety, it became manifest that the Legislature had recognised that leases could expire through efflux of time on the one hand, or be terminated by ejectment for non-payment of rent or breach of covenant on the other. His Lordship considered that the question at issue was best approached by going back to first principles. Section 51 of the Act of 1931 was clearly intended to apply only to cases of tenancies terminating otherwise than by efflux of time, the section mentioning specifically termination by ejectment and termination by re-entry. Section 2, sub-section 2, of the Act of 1943 made no attempt to distinguish between those two types of termination at all, but spoke only of “the expiration of” the lease. In his Lordship’s opinion, this was intended to mean expiration by efflux of time only, that section had no application to a case such as the case before the Court where the lease had been determined for non-payment of rent, and accordingly was not a ground of defence in the present case.
His Lordship accordingly affirmed the Order of the Circuit Court.
Delaney v. Jones.
Supreme Court.
[1939] IR 623
SULLIVAN C.J.:
This is an appeal by the plaintiff from an order made by the President of the High Court, dated the 31st March, 1939, directing that an order of restitution do issue to restore the defendant to possession of the premises, No. 103A Lower George’s Street, Dun Laoghaire, as held by the defendant under indenture of lease, dated 13th June, 1923.
On the 7th December, 1937, the appellant had instituted proceedings against the respondent by originating summons, claiming to recover possession of the premises for nonpayment of rent, and the special indorsement on the summons stated that the premises were held by the respondent under a yearly contract of tenancy at the yearly rent of £104, and that the amount due by the respondent to the 16th November, 1937, was £227 10s. 0d.
On the hearing of that summons the evidence produced in support of the claim was an affidavit sworn by the appellant’s secretary, in which he stated that the respondent held the premises under a yearly tenancy from the appellant at the yearly rent of £104 from the year 1926, and had paid that rent up to the year 1934, and that the amount of rent due to the appellant was £227 10s. 0d.
Upon the application of the respondent the hearing of the action was transferred to the Circuit Court. The action was subsequently heard in the Circuit Court, and at the hearing the appellant obtained leave to amend the summons by adding a claim to recover the sum of £227 10s. 0d., arrears of rent due. The Circuit Court Judge gave a decree for possession.
An appeal against that decree was brought to the High Court and was heard by O’Byrne J., who made an order dismissing the appeal and ordering that the plaintiff (the appellant in this appeal) do recover possession of the premises. On the hearing of that appeal, O’Byrne J. was informed that in the course of the proceedings it had been ascertained that the premises in question were held under a lease, dated the 13th June, 1923, for a term of 21 years at a yearly rent of £130. No application for liberty to amend the indorsement on the summons had been made in the Circuit Court, and although O’Byrne J. gave such liberty no amendment was made. The order of O’Byrne J. is dated the 28th July, 1938.
On the 19th August, 1938, an order of possession issued from the High Court reciting that judgment for possession of the premises had been given in the High Court, commanding the Under-Sheriff to enter the premises and without delay to cause the appellant to have possession of them, and reciting that the amount of rent due to the appellant was £227 10s. 0d. up to the 15th November, 1937. That order was duly executed on the 26th August, 1938.
On the 20th January, 1939, the respondent served a Notice of Motion in the High Court for an order restoring her to possession of the premises, which are described as held by the respondent under an indenture of lease dated the 13th June, 1923. That Notice of Motion was grounded on the affidavit of the respondent which, having recited the lease in question, states:”The rent reserved thereby was £130 per annum, payable weekly, which was subsequently reduced to £104 per annum, payable weekly.” The affidavit then refers to the decree for possession dated the 28th July, 1938, and to the execution thereof on the 26th August, 1938, and proceeds:”I am lodging in Court the sum of £299 10s. 0d., made up of the said sum of £227 10s. 0d. together with £72, being the rent accrued between the said 15th November, 1937, and the said 26th August, 1938, and I respectfully ask to be restored to possession of the said premises.” On the hearing of that Motion the order now appealed from was made.
In support of this appeal three points, and three points only, have been raised by Mr. Casey.
(1) That the correct amount due for rent and arrears has not been lodged.
(2) That the application for an order for restoration should have been made to the Circuit Court and not to the High Court.
(3) That the learned President of the High Court should not, in the exercise of his discretion, have granted the order appealed from.
On the first point Mr. Casey contended that the rent due in respect of the period between the 15th November, 1937, and the 26th August, 1938, should be computed on the basis that the yearly rent was that reserved by the lease, i.e., £130, and that the amount lodged by the respondent, which was based on a yearly rent of £104, was therefore insufficient. He did not dispute that the rent in fact paid by the respondent was £104 a year, but he said that the rent legally due was that reserved by the lease in the absence of evidence to show that it had been altered by an instrument under seal. That argument seems to me to overlook the fact that the truth of the statement in the respondent’s affidavit that the rent reserved by the lease had been reduced from £130 to £104 was not challenged in the affidavit upon which the appellant relied in opposing the application.
In those circumstances I am of opinion that the Court was entitled to accept the respondent’s statement without requiring her to produce evidence in support of it, and without investigating the means by which the reduction in rent has been effected. It is remarkable that in support of this appeal no further affidavit has been filed on behalf of the appellant, and the respondent’s statement still remains uncontradicted.
I am therefore of opinion that the first objection made to the order appealed from has not been established.
The second objection is in my opinion equally unsustainable. The High Court was the Court in which the action was brought and the Court in which judgment for possession was given by O’Byrne J., on which judgment the order of possession issued to the Under-Sheriff, and it was therefore the Court to which an application for an order of restitution should be made under s. 71 of Deasy’s Act. As to the third objection it is sufficient for me to say that I can see nothing in the circumstances of this case that would disentitle the respondent to the relief that she has obtained in the order appealed from.
I am, therefore, of opinion that this appeal should be dismissed.
MURNAGHAN J.:
I agree, and have nothing to add to what has been stated by the Chief Justice.
MEREDITH J.:
In my opinion whatever power the High Court had to make an order in this case cannot be derived from ss. 70 and 71 of Deasy’s Act. I quite recognise the fact that neither in the notice of appeal nor in the Court below was this point raised, but the point is one of which this Court must itself take cognisance, otherwise this Court might be purporting to exercise authority for which it has no jurisdiction.
In order that the power to restore the tenant under the Act should be in the Court two conditions require to be satisfied, viz., first, it must be exercised by a particular designated Court; and, secondly, in order that it should have power to exercise its jurisdiction, there must have been whatever is referred to in s. 71 as “such payment or lodgment.” On the first point: the jurisdiction of our Courts, given by s. 22 of the Courts of Justice Act, 1924, and the manner in which that jurisdiction is prescribed, must be considered. I do not question that the High Court had conferred upon it whatever was the jurisdiction of the Court of the period immediately preceding it. But s. 22 gives no help as to the performance of the conditions precedent which alone give the Court power to deal with the matter. How is it dealt with in s. 70? On “paying the rent and arrears . . . or lodging the sum in the Superior Court”that means a particular designated Court: it is not used in a general sense, and I cannot see how, apart from an express adaptation, what is a Superior Court at present could be the Superior Court within the meaning of that section. Whatever may be said as to the phrase “the Superior Court in which the ejectment was brought” I certainly do not think it would be possible to contend that there was an adaptation of the clause “. . . in case of a Civil Bill ejectment, lodging the same with the Clerk of the Peace of the County . . .” If it be suggested that there was, what now corresponds to “the Clerk of the Peace of the County”?
In my opinion there was no payment or lodgment under s. 71 and I do not therefore consider that the conditions precedent were fulfilled.
It therefore seems to me that the power exercised by the High Court in this case was not conferred by the Act, and that s. 70 has no application.
It was suggested, however, by Mr. Justice Johnston in the course of the case that s. 70 did no more than define an equitable jurisdiction theretofore existing. That corresponds with my own opinionthat so long as s. 70 was in force that equitable jurisdiction was in abeyance, but that once it ceases to apply the equitable jurisdiction is revived, and that the High Court has a discretiona discretion which it has very properly exercised in this case.
I therefore find that the order of the High Court in this case was a proper exercise of its inherent equitable jurisdiction, and that it was not made under Deasy’s Act.
I agree, therefore, that this appeal should be dismissed.
GEOGHEGAN J.:
I agree with the judgment of the Chief Justice, and for the reasons he has stated. I feel that there is nothing I can usefully add.
JOHNSTON J.:
I agree with the judgment of the Chief Justice and I agree also with the grounds of that judgment.
In regard to the matter to which Mr. Justice Meredith has referred, I am aware that there was the old equitable jurisdiction existing before the passing of the Landlord and Tenant Act, 1860. Whether it remains to-day I do not know. It is scarcely likely to be availed of while ss. 70 and 71 of Deasy’s Act are in force.
In regard to the other matters referred to by Mr. Casey, I cannot add anything to what the Chief Justice has said, and I agree that the appeal should be dismissed.
The Earl of Listowel v Kelly
Common Pleas Division.
[1882] 16 I.L.T.R 4
Morris C.J.
Morris, C.J.
[You got judgment for non-payment of rent, and the mortgagee paid the money and got a writ of restitution. Is there any case in which, when the landlord accepts the money of a mortgagee redeeming, he can then evict the tenant mortgagor?]
The mortgagee never went into possession.
Morris, C.J.—We think the plaintiff should have served notice on the mortgagee of the ejectment proceedings.
Motion granted, with costs.
Representation
Associated Properties Limited v Personal Representatives of Timothy Nolan
Circuit Court.
2 February 1951
[1951] 85 I.L.T.R 86
Judge Connolly
Judge Connolly referred to the facts and said that the law was still unsettled as to the competency of an ejectment for non-payment of rent reserved in respect of an incorporeal hereditament, as distinct from the land of *87 which it was appendant or appurtenant. In Bayley v. Marquis Conyngham (supra) it was held that an action for disturbance lay in respect of such an interest. Irish Society v. Crommelin (supra) seemed to indicate that the lawyers were of opinion that, apart from the soil, such an ejectment for a fishery was not unsustainable. His Lordship had looked into the matter and felt that he had no power to “terminate the defendants’ interest” as asked by the Civil Bill. There being no authority to support such an ejectment as the present, he had to consider the difficulty which would arise from the fact that if a decree was granted a habere would have to issue. He could not see how the sheriff could seize an incorporeal hereditament; if land were included it would be a different matter. His Lordship quoted from Harrison: “The Law and Practice Relating to Ejectments in Ireland” (1903) pages 11 and 12, at page 12 of Harrison it was said: “In principle there does not seem any good reason why such an ejectment would not lie In practice, however, it would be useless, as the judgment could not be executed under a habere ….” If it appeared useless to grant a decree his Lordship would not do so without the guidance of a higher authority. He would, accordingly, refuse the relief sought and dismiss the action. He pointed out that in doing so he did not leave the plaintiffs without a remedy as they could give an indemnity to their purchasers in respect of the risk involved in taking the property with this interest outstanding.
Kelly v. Murnaghan.
[1948] IR 38
Davitt J.
By agreement in writing, dated the 5th May, 1945, the plaintiff let to the defendant, two flats in the house, No. 6, Saint James’s Terrace, Malahide, for a term of three years at the yearly rent of £96, payable monthly in instalments. Clause three of the agreement provided that if any instalment should be in arrear for fourteen days after the gale day the tenancy should be absolutely determined and the landlord might re-enter and resume possession. The clause did not contain the usual provision that the landlord might re-enter whether or not the rent had been formally demanded. The defendant having made default in payment of his rent, the plaintiff served him with a notice requiring him to give up possession on the 1st February, 1946. The defendant did not comply with this notice and, on 5th March, the plaintiff served him with a civil bill in ejectment. The defendant entered no appearance or defence and the plaintiff thereupon moved for judgment under Or. XVI, r. 9 of the Circuit Court Rules. The learned Circuit Court Judge refused the motion with costs and dismissed the ejectment. From this order the plaintiff appealed.
The defendant, not having appeared or defended, was still in the privileged position, created by r. 6 of Or. XVI, that judgment could not be entered against him by default. Accordingly the plaintiff could have no successful recourse to the procedure provided by Or. XV. It has long been settled practice in the Circuit Court, and in my opinion, settled correctly, that the proper course for the plaintiff to adopt in such circumstances is to move under the provisions of Or. XVI, rr. 1, 2, 3, 4 and 5 as modified by r. 6 and not under r. 9. (See Clare County Board of Health v. Crowe. Same v. Boyle (1), and The Irish Law Times and Solicitors’ Journal , vols, 75 and 77 at pp. 325 and 28 respectively). Rules 6 and 9 might, perhaps, with advantage, have been included in Or. XV rather than in Or. XVI, but I think their combined effect is clear enough. Rule 9 applies only to actions which have not been otherwise provided for. Actions of ejectment in which the defendant makes default in delivering a defence or entering an appearance have been otherwise provided for in r. 6, and accordingly r. 9 has no application. Rule 6 goes on to provide that in actions of ejectment where the defendant makes default in entering an appearance or delivering a defence, the rules as to summary judgment shall apply mutatis mutandis. Reading rr. 1 and 2 in the light of r. 6, and changing what has to be changed, the effect is as follows:In any ejectment where the defendant has failed duly to enter an appearance, or where having entered an appearance he has failed within the period prescribed by the rules to file a defence, the plaintiff may move as prescribed for judgment with costs on not less than four clear days’ notice. He shall file and serve with such notice an affidavit made by himself or by some other person who can swear positively as to the facts, verifying the cause of action and stating that in deponent’s belief there is not abona fide defence to the ejectment. The provisions of rr. 3 (i), 4, and 5 apply without modification. Where the defendant fails to enter an appearance, the ten days limit prescribed by r. 2 can have no application. Where the defendant does enter an appearance, but fails to file a defence in time, that is, within ten days of appearance as prescribed by Or. VII, r. 3, it also follows that the ten days limit prescribed by r. 2 of Or. XVI can have no application since, until the ten days have elapsed, the defendant cannot be in default. In the result, the position is as follows. In any ejectment within the provisions of r. 1 (iv) of Or. XVI, where an appearance has been entered, the plaintiff may apply for summary judgment within ten days of appearance. In any ejectment where no appearance is entered, or an appearance having been entered, no defence is filed, the plaintiff may apply for judgment without regard to the time limit prescribed by r. 2 of Or. XVI.
Apart from any question of the plaintiff having failed to adopt the correct procedure, he is faced with other serious difficulties. The claim indorsed upon the civil bill clearly invokes the jurisdiction conferred upon the Civil Bill Court by s. 72 of Deasy’s Act and transferred to the Circuit Court by s. 51 of the Courts of Justice Act, 1924, since there is no averment as to the Poor Law Valuation of the premises. Counsel for the plaintiff, moreover, in his argument upon another aspect of the case (the point with which I am at the moment concerned not having been adverted to in argument), vigorously contended that this ejectment was an ejectment for overholding, brought under the provisions of s. 72 of Deasy’s Act.
It was decided in M’Carthy v. Beamish (1), that an ejectment of this kind, based upon a forfeiture for breach of condition in the lease or contract of tenancy, could not be successfully brought under the provisions of s. 72. It is, I think, worth while endeavouring to make clear the basis of that decision.
The Civil Bill Courts (Ir.) Act, 1851 (14 & 15 Vict. c. 57) in ss. 71, 72, 73, 79, 80 and 82, conferred upon the Civil Bill Court jurisdiction to hear and determine ejectments in respect of deserted premises, against overholding tenants, for non-payment of rent, in certain cases on the title, on acknowledgements, and against permissive occupants. Sect. 96 provided that in no other case should the title to any lands tenements or hereditaments be drawn into question in any proceeding by civil bill under the Act. The terms of ss. 71, 72, 73, 80 and 82 clearly did not confer jurisdiction to entertain an ejectment based upon a forfeiture; but s. 79 in words very similar to s. 2 of 6 & 7 Will. 4, c. 75, did not so clearly exclude such an ejectment. This section conferred jurisdiction to hear and determine all disputes and differences respecting the possession of any lands, tenements, or hereditaments held under any grant, lease, or other instrument for any term or interest not exceeding the limits specified. The words of the section confined the jurisdiction to a determination of the issue as to who was entitled to possession under the instrument in question. In an ejectment under the section, each party had to claim possession by virtue of the same title. In the case of an ejectment based upon a forfeiture, this could not be so; since the tenant could claim only by virtue of the instrument creating his tenancy while the landlord would claim by title paramount. (See Ahern v. Heffernan (2), decided upon the construction of s. 2 of 6 & 7 Will. 4, c. 75; Furlong’s
Landlord and Tenant, 2nd edn., vol. 2, p. 1141; Carleton’s County Courts, 1st edn., pp. 148 and 149.)
This appears to have been the position when Deasy’s Act became law. That Act conferred no jurisdiction upon the Civil Bill Court to entertain any ejectment other than: for non-payment of rent (s. 52), against overholding tenants (s. 72), in respect of deserted premises (s. 78), on acknowledgements (s. 80), and in respect of cottier tenants and permissive occupants (ss. 84, 85 and 86). Sect. 101 provided that the title to any lands or premises should not be drawn into question in any proceeding by way of civil bill under the Act. As an ejectment based upon a forfeiture was considered to involve a question of title, it was held by Judge Keogh that such an ejectment did not lie under the provisions of s. 72. The basis of the decision was, not that such an ejectment was excluded by the term sof the section, but that, as it involved a question of title, it was excluded by s. 101 from the jurisdiction in ejectment conferred by the Act. General jurisdiction to try ejectments on the title within certain limits as to valuation was not conferred upon the Civil Bill Court until the passing of 37 and 38 Vict. c. 66. When the real basis of the decision in M’Carthy v. Beamish (1)is appreciated, it becomes clear that there is no conflict between it and Lord Talbot de Malahide v. Odlum and Best (2),as Morris J. points out in his judgment. The purport of his remarks in that case is simply that the terms of s. 237 of the Common Law Procedure Act, 1853, did not exclude from the class of cases to be tried in the Consolidated Nisi Prius Court, an ejectment based upon a forfeiture for breach of condition; and that such an ejectment could be considered as being one against an overholding tenant within the meaning of that section.
The note in Cherry’s Land Law and Land Purchase Acts (2nd edn., p. 116) to s. 72 of Deasy’s Act is possibly misleading. It seems to indicate that an ejectment based upon a forfeiture can be brought under the provisions of that section; though it gives the reference to Lord Talbot de Malahide v. Odlum and Best (2), wherein, in turn, M’Carthyv. Beamish (1) is referred to. It should be noted also that paragraph 4 of chapter iii of Book VI of Furlong’s treatise on Landlord and Tenant, vol. 2, at p. 1037, which might appear by implication to suggest that such an ejectment could be brought under Deasy’s Act, was apparently written before the decision in M’Carthy v. Beamish (1) (decided in 1869, the year in which Furlong’s treatise was published),
was reported. There is no reference to that case, and it is not included in the table of cases at the beginning of vol. 1. However that may be, it seems to me that this passage, referred to in argument by Mr. Burne, does not really contain the implication upon which he sought to rely.
It is hardly necessary to point out that the jurisdiction of the Circuit Court to entertain ejectments for overholding is not confined to that created by s. 72 of Deasy’s Act and transferred by s. 51 of the Courts of Justice Act, 1924. Sect. 48 (iii) of that Act confers upon the Court jurisdiction in all classes of ejectment where the Poor Law Valuation of the premises does not exceed £60. This is a case, however, where the jurisdiction created by s. 72 of Deasy’s Act has been expressly invoked. The Civil Bill contains no averment as to valuation or as to the making of any formal demand of the rent in arrear, and counsel for the plaintiff, for the purpose of obtaining the benefit of s. 53 which dispenses with the necessity of making any demand, strongly argued that the case was properly brought under the provisions of s. 72. I am of opinion, for the reasons stated, that that section does not confer jurisdiction to entertain this case, and that the learned Circuit Judge was correct in dismissing it.
It is, perhaps, worthy of note, that this decision is not, in any way, in conflict with my judgment in Harris v.O’Toole ; Archer v. Bowles (1), where the opinions I have expressed in this case are adumbrated. In those cases it was not necessary to invoke s. 72 as the valuation of the premises in each case was under £60.
The point upon which I have decided the case was not, however, adverted to in argument. As I have mentioned, clause 3 of the letting agreement did not dispense with the necessity imposed upon the landlord by the common law of formally demanding the rent in arrear before proceeding to exercise his right of re-entry. The civil bill contained no averment that any such demand had been made. Counsel for the plaintiff sought to overcome this difficulty by contending that this was an ejectment for overholding brought under s. 72 of Deasy’s Act, and that accordingly by virtue of s. 53 of that statute it was unnecessary to prove the making of any demand. It was in support of this contention that he quoted the passage, from Furlong’s Landlord and Tenant to which I have already made reference.
As I have decided that this ejectment cannot be brought under the provisions of s. 72 of Deasy’s Act, I must hold that s. 53 has no application. The common law requirement that the landlord should make formal demand of the rent before proceeding to exercise his right of re-entry therefore remains. If, instead of relying upon Deasy’s Act, the plaintiff had invoked the jurisdiction conferred upon the Circuit Court by s. 48 (iii) of the Courts of Justice Act, 1924, he would still have failed to succeed since, according to the claim endorsed upon the civil bill, no such demand had been made.
In my opinion the decision of the learned Circuit Judge was correct and should be affirmed, and this appeal should be dismissed with costs.
The Attorney-General v McCutcheon
Circuit Court.
14 July 1936
[1936] 70 I.L.T.R 161
Judge Shannon
14th July, 1936
Appeal from the District Court.
On the 6th day of March, 1936, in pursuance of an Order of the High Court, the Sheriff of County Dublin evicted the defendant and appellant, George McCutcheon, from the farm and premises known as Kishogue and handed over possession to the solicitor for the Ulster Bank. On the night of the eviction the defendant re-entered the premises. He was summoned to appear before the District Court at Lucan to answer a complaint that he, within one month of being lawfully ejected, did re-take possession of the said premises contrary to Sec. 25 of the Enforcement of Court Orders Act, 1926.
The evidence showed that the defendant had re-entered by breaking a window. The operative part of the above section reads: “Whenever an under-sheriff … shall have delivered possession of the said lands and premises to the owner pursuant to such execution order, every person who, within one month after such delivery of possession, peaceably and without force, but without consent of the owner, enters on the said lands and premises and takes possession thereof, or of any part thereof, shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for any term not exceeding six months, or, at the discretion of the Court, to a fine not exceeding £50, or to both such imprisonment and such fine.”
The defendant was convicted by the District Justice and sentenced to three months’ imprisonment, not to be enforced if he vacated the premises.
The defendant appealed.
The order convicting the defendant must be reversed and the summons dismissed. The prosecution is brought under Sec. 25 of the Enforcement of Court Orders Act, 1926, which applies only to cases where, after an eviction, any person peaceably and without force re-enters the lands. The section makes peaceable entry a summary offence. It is clear from the evidence that force was used to effect an entry, and that is an indictable offence.
A v B
Judgment reserved.
Deasy, B. (after stating the facts):—I have come to a conclusion on this question from reading the terms of section 72 (23 & 24 Vic., c. 154). It first enacts that, “If any tenant of any lands holden at a rent not exceeding the rate of one hundred pounds per annum shall neglect or refuse to give up possession of the same after the determination of his interest, either by notice to quit or otherwise, it shall be lawful for such landlord to proceed by civil bill ejectment against such tenant.” Now, no doubt a tenant cannot “refuse” to give up possession until it has been first demanded, but he may, on the other hand, “neglect” to give it up, without its having been demanded. The two alternatives are specified, in either of which the landlord may proceed. Then the section provides that the “civil bill may be according to the form No. 3 in the schedule (A) to this Act annexed;” and section 103 enacts that the forms in the schedules “or any other forms to the like effect may be used in the respective cases to which they are applicable.” In form No. 3 a demand of possession is averred, but that occurred through a mistake when copying the old forms. And by section 72 it is lastly enacted, when prescribing the proofs that are to be necessary, that “it shall be lawful for the chairman, upon such civil bill, and proof of the service or affixing of such process in manner aforesaid, and that the premises had been holden of the said landlord by the tenant, or the person under whom the party in possession derives, at a rent not exceeding the rate of one hundred pounds per annum, and that the interest of such tenants has ended or determined by efflux of time, notice to quit, or otherwise, to decree the said landlord to be put into the possession of the said premises.” Now, as Mr. Gibson pointed out, that section does not require that a demand of possession should be proved; and I cannot add to the proofs to be required because of an averment in the Form of another matter not mentioned in the section itself. The 103rd section to which I have referred does not push the matter further, for it does not enforce an exact compliance with the forms, but only renders it necessary to use them so far as they are applicable. In my opinion, the averment of a demand of possession applies to the case of a tenant “refusing” to give up possession, not to the case of a tenant who has merely “neglected” to give it up after the expiration of the notice to quit. I have been referred to a case in which Fitzgerald, J., took that view. It was said that a similar decision was made by Palles, C.B.; but he informs me that he has no recollection of it, but that, having looked into the Act and considered the question, he is of opinion that proof of a demand of possession is not necessary. I have, therefore, no hesitation in reversing the dismiss.
Nolan v Dowd
1 June 1875
[1875] 9 I.L.T.R 182
Fitzgerald J.
The facts of this case were as follow:—
John and Patrick Nolan served a civil bill ejectment for the Strokestown Quarter Sessions, held in January, 1875, against Francis Dowd, as an over-holding tenant of part of the lands of Emlagh, in the county of Roscommon. A defence was entered, and at the hearing it appeared that, in the year 1847, a person named Mary Blake held a house and 5 acres and 1 rood, portion of the lands of Emlagh, under a lease from the Ecclesiastical Commissioners. The lease was for the term of 21 years from 1837, reserving the rent of £7 14s. 8½d., and contained a covenant for perpetual renewal. By a deed bearing date the 14th January, 1847, Mary Blake assigned her interest in the premises for £30 to John Nolan (the father of the plaintiffs) and to James Dowd (the father of the defendant) from the November of the previous year. The assignees at once went into possession of the house and lands, and each paid to the agent of the Ecclesiastical Commissioners half the reserved rent. In 1854 John Nolan succeeded in obtaining a renewal for 21 years to himself of the entire holding, without the knowledge of Dowd. In January, 1858, the term of 11 years which Mary Blake had assigned to Nolan and Dowd determined, and Nolan at once demanded possession from Dowd of the portion of the house and land occupied by him, claiming it under the renewal of 1854. Dowd refused to acknowledge the validity of this renewal, retained possession of the premises, and up to his death, which took place early in the same year, was determined to assert his rights to his portion of the premises. A short time previous to his death his wife and his son, Francis Dowd, the present defendant, accepted from Nolan a lease for 17 years of a smaller portion of the holding than that which old Dowd had previously held, their share of the rent being proportionably abated. In this lease there was no covenant for renewal, but on the back of it John Nolan gave a receipt to Francis Dowd for “£ , being his (Francis Dowd’s) share of the renewal fine paid to the Ecclesiastical Commissioners” by Nolan in 1854. It, also, appeared in evidence that it was agreed that, when taking the lease for 17 years, Nolan promised to give Dowd a similar lease whenever the former took out a renewal. After the passing of the Church Act (Ir.) in 1869, John Nolan acquired the lands in perpetuity. In 1873 he died, devising his interest to his sons, the present plaintiffs. The sub-lease, Nolan to Dowd, expired in September, 1874, and the ejectment was brought at the following Quarter Sessions in Strokestown. Stritch, on behalf of the defendant, asked for a dismiss at the Sessions, resting his case on the 59th section of 23 & 24 Vict., c. 154.
The Chairman (Mr. Hamill, Q.C.) did not consider that the case came within the scope of the Act, but adjourned the matter to the next Sessions, to enable the defendant, if so advised, to take proceedings in equity.
The defendant, relying upon the 59th section, permitted a decree for possession to be made, and then appealed.
The case having been heard, judgment was reserved until the following day, when
Fitzgerald, J. (having stated the facts), said:—The appellant has made out clearly an equity, and the plaintiffs and their father must be viewed as having obtained the renewal and grant in perpetuity for the benefit of the defendant. So far as relates to his portion of the lands, they are to be considered so far as trustees for the defendant. In my opinion, the Landlord and Tenant Act of 1860 uses words sufficiently wide to enable me to hold the facts proved for the defence a good equitable defence to that action within the meaning of the Act, and I am bound to give effect to that defence. The language of the 59th section is so large that I do not feel bound to apply here the decisions on the restricted words of the 85th section of the Common Law Procedure Amendment Act. The Chairma’s decision must therefore be reversed.
Thompson v O’Neill
24 October 1955
[1956] 90 I.L.T.R 73
Judge MacCarthy
.
Judge MacCarthy
This case is an ejectment in overholding. There is no doubt about the covenant, or that the assignment was executed by the defendant without having obtained the necessary consent. I am satis *73 fied that there was an assignment in law, and therefore a breach of covenant. The landlord was entitled to demand possession on a specified day and from that day there was an overholding, and the proper remedy has been sought in an ejectment civil bill for oveholding. The plaintiff is entitled to succeed with costs.
A stay of execution was granted pending an appeal.
Lennon v Meegan and Others
King’s Bench Division.
18 June 1903
[1903] 37 I.L.T.R 239
Palles C.B. Andrews, Barton Wright JJ.
J
His Honor.—This is an ejectment on the title brought under an instrument dated 26th Jan., 1892, whereby one Hugh Kennedy assigned a certain farm to the plaintiff in consideration of the plaintiff’s releasing certain debts then due to him by the assignor. The circumstances which have led to the present litigation are as follows:—The farm originally belonged to one Patrick Kennedy, who died intestate some thirty years ago. As is usual in this county no one took out letters of administration to his estate. He left behind him a numerous family, of whom some were portioned off, some are barred by the statute of limitations, and two, namely, Hugh Kennedy and Susan Kennedy, remained in exclusive possession of the farm down to the time of the death of Hugh. According to the evidence of Susan they worked the farm in common, had a common purse, and, to use her words, whatever the one had the other had as well. In the month of Jan., 1892, the common owners of the farm would appear to have been heavily in debt to the plaintiff, John Bradden, who was their brother-in-law, and at the same time the farm was heavily in arrears for rent. Under these circumstances—by an instrument dated 26th of Jan., 1892—Hugh Kennedy, describing himself as the owner of the whole farm, assigned it to John Bradden, and Bradden, in consideration of the assignment, as therein expressed, annulled all debts due to him. On the 7th of May, 1892, Hugh Kennedy died, and shortly afterwards John took out letters of administration to his estate. On the 10th of Oct., 1892, the landlord obtained an ejectment decree for nonpayment of rent against Bradden and John Kennedy, in consequence of which Bradden was compelled to pay no less than £134 11s. 6d. for the redemption of the farm. Notwithstanding all this expenditure John Kennedy thought fit to dispute the assignment of Jan., 1892, and to deny that Bradden had any claim whatever to the farm which he had saved. To enforce his rights Bradden instituted a suit on the equity side of this Court, praying, among other things, for the specific performance of what he supposed to be the agreement of the 26th Jan., 1892. In the course of the suit I decided, on the authority of Manning v. Saul (26 L. R. Ir. 640), that the instrument in question, though entitled articles of agreement was in reality an actual assignment of what purported to be the whole interest in the farm to Bradden. From this decision there was no appeal, and accordingly, as against John Kennedy, Bradden’s right in this ejectment is conclusive. But unfortunately for Bradden, Susan Kennedy was no party to the suit, and she takes up the opposition abandoned in despair by John, and accordingly Bradden is compelled to bring this ejectment on the title against John and her. Now it is clear on the authorities that Hugh’s administrator could not have maintained an ejectment on the title for the whole farm against Susan, and the question to be determined is whether Hugh’s assignee in the present instance is able to maintain it. It is contended on behalf of Susan that she was no party to the assignment. But, in answer to me, she admitted that she was aware of the existence of the debts due to Bradden—that she was aware of the assignment to him of the farm in consideration of the annulling of those debts, and finally, that she stood by, acquiesced in the transaction, and permitted her brother to complete it without one word of warning to the man who was not only foregoing his debt, but undertaking the responsibilities of a bankrupt farm. She must be taken to have been aware that the rent for which she was jointly responsible was in arrear, and that ejectment proceedings were pending which would have evicted her interest as well as her brother’s. But this is not all. Without one word of warning, without one word in assertion of her so-called rights, she permitted Bradden to spend a sum of £134 odd in redeeming the premises—his right to which she now thinks proper to dispute. The utter injustice of this conduct is patent to the eyes of common honesty and common sense. That, however, is not the question now before me—the question is, what is Bradden’s position in the eyes of law? The title of Hugh and Susan, having regard to their exclusive possession and to the lapse of thirty years since the death of their father, Patrick, cannot be disputed. The whole legal interest in their father’s farm was in them, by the operation of the statute, on the 26th of Jan., 1892, the date of the assignment under which Bradden claims. By that assignment Bradden took the legal interest in Hugh’s moiety of the farm, but as Susan was no party to the deed Bradden’s interest in her moiety can be equitable only. The principle of equity which rules the case is laid down by Story (Eq. Jur. s. 385): “If a man having a title to an estate which is offered for sale, and, knowing his title, stands by and encourages the sale, or does not forbid it, and thereby another person is induced to purchase the estate, under the supposition that the title is good, the former, so standing by, and being silent, will be bound by the sale, and neither he nor his privies will be at liberty to dispute the validity of the purchase.” The question then arises, can Bradden, having an interest partly legal and partly equitable maintain an ejectment on the title for the whole? Under the old law it is admitted that ejectment on the title could only be maintained by the owner of the legal estate. But, as it is said by Jessel, M.R., in the General Finance Co. v. The Liberator Society (10 Ch. D. at p. 24), “considering that the jurisdiction in equity and at common law is now vested *110 in every Court of Justice, no action for ejectment, or, as it is now called, an action for the recovery of land, can be defeated for the want of the legal estate, where the plaintiff has the title to the possession.” It is true such an ejectment cannot be maintained unless the legal estate be represented in the suit, Hodgens v. O’Donoghoe (28 Ir. L. T. R. 48); but that difficulty does not arise in the present case. The real question is, does the dictum of Jessel, M.R., with regard to every Court of Justice apply to a Civil Bill Court? Law and equity, as is well known, are fused in the superior Courts, but in the inferior Courts they are still distinct. Acting on this view I was originally of opinion that in these Courts the old rigorous common law was still in force; and, accordingly, in a recent case I dismissed a bill which was brought on a merely equitable title. In that case, however, my decision was reversed on appeal by Holmes, J., as one of the going judges of Assize. For this is how the matter stands. By s. 5 of the County Court Act of 1889 it is enacted that “the Judge of Assize, on the hearing of any appeal from the decision of a County Court Judge in the case of an ordinary civil bill, may amend such civil bill into an equity civil bill, and may make such other amendments consequential thereon in the statement of the plaintiff’s claim as the judge shall think fit.” But strange to say, although this power is conferred upon the Court above, it is not conferred upon the Court below, so that the Court below would seem compellable to pronounce a decree which it knew would be reversed by the Court above. The decision of Holmes, J., however, extricates the Court from this absurd position. By that decision it is in effect established that even in this Court an equitable title is sufficient to sustain an ejectment on the title, if the legal estate is represented. Accordingly, in the present case, I intend to make such a decree as I think the Judge of Assize would make if he converted this civil bill into an equity civil bill such as was contemplated by Palles, C.B., in Hodgens v. O’Donoghoe. In my opinion the plaintiff is entitled to succeed in this ejectment, and accordingly I give him a decree.1
Mary Drury v Patrick Drury
Circuit Case.
9 July 1912
[1912] 46 I.L.T.R 163
Madden J.
Sligo, July 9, 1912
Michael Drury died intestate in 1883, possessed of a leasehold interest in the lands the subject of the ejectment, held under a lease for lives, of which one was His Majesty the King. He left a widow and several children, of whom plaintiff and defendant were two, and defendant was his eldest son. All the family lived together on the holding, the widow being given receipts as tenant. The defendant some years ago went to England to work as a labourer. The widow died, and the plaintiff, as occupying tenant, signed an agreement for purchase in 1904, and the lands were vested in her and she was registered in 1905 as full owner subject to equities. The defendant returned, and, claiming the lands, went into possession, and plaintiff brought the present ejectment. Before the County Court Judge the lease was not proved, as it could not then be found, and the County Court Judge proceeded on the assumption that defendant was only entitled to a small distributive share of the land, and gave a decree for possession. Defendant appealed, and before the Assizes had found the lease.
Macdermot, for plaintiff, produced the certificate of registration, and claimed a decree.
Fetherstonhaugh, K.C., and Leonard, for defendant, stated the facts, and contended that plaintiff was merely a trustee for defendant, and could not eject her cestui que trust.
Madden, J.
[The registration makes plaintiff owner. Any rights defendant has must be asserted before a Court of competent jurisdiction. I decline to hear the facts proved. The certificate is conclusive.]
We are entitled in any view to stay of execution if your Lordship holds that the legal title must prevail, but we contend this is a Court of Equity for defendant, and the ejectment should be dismissed.
Madden, J.—In the face of the certificate *163 of plaintiff’s ownership the facts that are alleged to give defendant the title in equity are irrelevant in this proceeding. He must assert his title otherwise. I give a decree for possession with costs, and will give no stay.
Hughes v Higgins
Exchequer Division.
24 January 1895
[1895] 29 I.L.T.R 82
Palles, C.B., Murphy J.
Jan. 24, 1895
Tenancy from year to year—Clause against alienation—Right to sell—Land Law (Ir.) Act, 1881, s. 1—Landlord and Tenant Law Amendment Act (Ir.), 1860, s. 10.
Lands were held from year to year under an agreement which contained a clause against assignment. After the passing of the Land Law (Ir.) Act, 1881, the tenant assigned, but the consent of the landlord was not obtained, nor was any notice of the intention to sell served on him: Held, that the assignment was not void, and that the assignee was entitled to succeed in an action to recover possession of the lands against the assignor.
Motion on behalf of the defendant that the verdict entered for the plaintiff in the above action be set aside, and a verdict entered for the defendant, or for a new trial.
The action, which was brought to recover possession (inter alia) of a house and lands, was tried before Andrews, J., at the Galway Summer Assizes, 1894, and on the finding of the jury a verdict was entered for the plaintiff. The defendant, Patrick Higgins, in the year 1879, became tenant of certain lands, situate at Funchenagh, in the County of Mayo, containing 14 acres 1 rood 3 perches, under an accepted proposal from Sir Edward Waller, as tenant from year to year, at the yearly rent of £7. This proposal contained amongst other clauses an agreement on the part of the tenant not to assign. By an indenture made in 1882, Higgins assigned the land to the plaintiff Hughes in consideration of £30, and of the marriage of Hughes with Higgins’ daughter. No notice of the intention to make this assignment was ever served on the landlord, nor was his consent thereto asked or obtained. The parties lived together on the lands for several years, when the plaintiff’s wife died. The plaintiff having married a second time, disputes arose, and the plaintiff was put out of possession of the lands, and thereupon brought the present action to recover possession.
Taylor, Q.C., in support of the motion, relied upon the clause against assignment, and the provisions of s. 10 of the Landlord and Tenant (Ir.) Act, 1860.
Henry Richards, for the plaintiff.—S. 10 of the Landlord and Tenant (Ir.) Act, 1860, is repealed by s. 1 of the Land Law (Ir.) Act, 1881, as regards the sale of holdings coming within that section. The sale is merely voidable at the election of the landlord. S. 10 of the Act of 1860 and the decisions thereon do not apply: Wright and Tittle’s Contract (29 L. R. Ir. 111).
The Court held that the effect of s. 1 of the Land Law (Ir.) Act, 1881, was so to modify s. 10 of the *82 Landlord and Tenant (Ir.) Act, 1860, as to make any sale under s. 1 of the Act of 1881 merely voidable at the option of the landlord. And that notwithstanding that the landlord had not consented to the assignment, or been served with notice of the intention to sell, the assignment was not void, and that the plaintiff was entitled to recover.
The Court refused to decide the validity or invalidity of a sale by a tenant, under s. 1 of the Act of 1881, to more persons than one.
Nugent v. McGuinness and McCann.
[1948] IR 420
Supreme Court.
MAGUIRE C.J. :
31 March
This is an appeal from an order of Mr. Justice Haugh for the recovery by the plaintiff of possession of the house, out-offices, yard and garden in the townland of Kilcurley, barony of Dundalk Upper in the County of Louth, in the possession of the defendant.
The plaintiff, in her statement of claim, avers that on or before the 20th January, 1935, Patrick Hardy, deceased, was entitled to possession of these premises which were held by him as a yearly tenant on the estate of Lady Edith Anne Windham and that he was entitled to the benefit of the purchase provisions of the Land Acts, 1923 to 1931, and that the lands were subject to a yearly payment in lieu of rent to the Land Commission.
Patrick Hardy died intestate on the 20th January, 1935, and on the 8th day of July, 1935, letters of administration of the personal estate and effects of the said Patrick Hardy, deceased, were granted to Isabella Hardy, a lawful sister of the said Patrick Hardy, deceased. The said Isabella Hardy died on the 1st April, 1943, leaving the estate of the said Patrick Hardy unadministered. On the 25th November, 1943, letters of administration of the personal estate and effects so left unadministered were granted to the plaintiff.
The defendant, Henry McCann, did not enter an appearance. The defendant, Peter McGuinness, in his defence pleaded that he was in possession pursuant to Or. 21, r. 23.
At the trial evidence was given in support of the averments in the statement of claim.
Objection was taken to the admission in evidence of the list of the lands forming the estate of Lady Edith Anne Windham which became vested in the Land Commission on the first day of May, 1931, the appointed day fixed by the Land Commission in respect thereof, in which list was included the holding of which possession is sought and of which the said Patrick Hardy, deceased, is described as the tenant. This objection was overruled. The defendant, who was allowed into possession of that part of the premises which he occupies by Isabella Hardy, deceased, admits that he cannot succeed on the strength of his own title.
Mr. Justice Haugh made an order for possession.
The ground of this appeal is, that there was no evidence that the plaintiff, as personal representative of Patrick Hardy, deceased, was the owner of the tenant interest in the lands sought to be recovered.
The list referred to was published in accordance with the provisions of s. 40, sub-s. 4 of the Land Act, 1923. By this sub-section this list is conclusive evidence that the lands comprised therein became vested on the appointed day. By sub-s. 9 it is provided that the list to be published under the section shall be published in the Iris Oifigiuil in such manner as the Land Commission consider best adapted for securing publicity. In my opinion the extract from the Iris Oifigiuil was clearly admissible in evidence.
Accordingly, Patrick Hardy, as tenant of the holding so vested in the Land Commission by virtue of s. 28, sub-s. 1 of the Land Act, 1923, is deemed, on the appointed day, to have entered into a subsequent purchase agreement for the purchase of the holding at the standard price. Accordingly, he had an equitable title to the fee simple of the lands.
Although after the appointed day the payment to be made to the Land Commission is no longer describable as rent, and although certain other conditions of the former tenancy may no longer apply, it would appear that, pending the vesting of the holding in fee simple, the relationship between him and the Land Commission remains otherwise that of a tenant.
It would appear that the position with relation to the tenancy before vesting of the estate in the Land Commission was somewhat obscure, but whatever may have been the earlier position, there is no doubt the inclusion of Patrick Hardy as tenant of the holding in the list published by the Land Commission under s. 40 of the Land Act, 1923, made it clear and had the effect of recognising him as tenant of the holding included in the list. Consequently, against the defendant who only pleads possession of the lands, the plaintiff is entitled to recover possession of the holding or of any part thereof.
In my opinion therefore this appeal should be dismissed.
MURNAGHAN J. :
I agree, but as the matter involved is somewhat novel I wish to add a few observations.
It was stated at the bar that the defendant claimed to have some ground of right for remaining in possession, but nothing has been pleaded save that the defendant is in possession. Under the Rules of the Supreme Court (Ireland), 1905, Or. XXI, r. 23, this plea puts the plaintiff on proof of his title, but the defendant is not entitled to rely upon an equitable ground unless the facts upon which the equity is based are specially pleaded.
The history of the tenancy has been traced back over a long period. A present tenancy within the meaning of the Land Act, 1881, was determined by the landlord but an occupation by Patrick Hardy and his sister was continued, rent being paid for many years. It seems to me that if the Land Commission had not intervened, the present plaintiff, as personal representative of Patrick Hardy, could not establish a full title to the lands in question.
Under the Land Act of 1923 the fee simple of the landlord became vested in the Land Commission by the vesting order, dated 1st May, 1931. In this vesting order Patrick Hardy was named as tenant in occupation. Under the Land Act, 1923, the Land Commission had very wide powers as to naming a purchasing tenant and it seems to me the insertion in the vesting order of the name of Patrick Hardy had the same legal effect as formerly had an entry in the landlord’s book. Patrick Hardy thenceforward became the legal tenant of a tenancy under the Land Commission and he was also equitable owner of the fee simple under the “subsequent purchase agreement” contemplated by the Land Act of 1923. No vesting of a fee simple in the purchasing tenant has yet taken place but the legal title in the tenancy was in Patrick Hardy and is now in the plaintiff as his personal representative. The defendant has no answer to this legal title, he being a mere stranger who puts the plaintiff on proof of his title.
It is not necessary in this action to examine how far, when a vesting does take place, the purchasing tenant will be deemed to hold under the doctrine of graft on behalf of persons other than the estate of Patrick Hardy.
Beatty v Leacy
Exchequer Division.
5 November 1884
[1884] 18 I.L.T.R 89
Palles C.B., Dowse B., Andrews J.
Palles, C.B.
[We have often decided the contrary.]
A plaintiff in ejectment must now set out his title fully: Selchon v. Cawley, 12 I. L. T. R. 45; Molloy v. Lewers, 12 L. R. I. 39.
Dowse, B.
[That is in ejectments on the title. If it were not for the 24th section of Deasy’s Act there would be a good deal in your argument.]
Gibbon, for the plaintiff, contra.—This point has been already decided by the Common Pleas Division in our favour: Musgrave v. Walsh, 6 L. R. I. 335.
Palles, C.B.
The 24th section of the Landlord and Tenant Act, 1860, renders payment of rent prima facie evidence of a tenancy, and of the devolution of title, in all cases within it. In order to avail himself of this section it is necessary for the plaintiff to state the fact generally of which the payment of rent is rendered evidence— i.e., the devolution of title. The only way he can get the benefit of the section is by pleading generally. If he were to set out his title in detail he would be bound to prove it at the trial, and he would thus actually deprive himself of the benefit of the section. There is no Act in England corresponding to the Landlord and Tenant Act (Ireland), 1860, and consequently the rule of pleading is different. We have frequently decided here that the rules of pleading are the same in ejectments as in all other actions, and this is true with the qualifications which Deasy’s Act introduces in all cases within it. This motion must be refused with costs.
Dowse, B.
I am of the same opinion. Before the Common Law Procedure Act, where a plaintiff was assignee of the reversion, the rule required the steps of the devolution of the plaintiff’s title to be set out. After the C. L. P. Act that was no longer necessary. Under the Judicature Act it is necessary for the party to plead all the material facts upon which he relies. I am very far from saying that there would not be a great deal in Mr. White’s argument but for Deasy’s Act. But how is the plaintiff to get the benefit of the 24th section of that Act unless he pleads in this way? This motion should be refused, and refused with costs.
Andrews, J., concurred.
Corballis v Caldwell
16 November 1906
[1906] 40 I.L.T.R 239
Andrews Kenny JJ.
Andrews, J.
We have had an opportunity of considering this case, and we agree that the service effected is sufficient, though Kenny, J., feels that if the matter was destitute of authority and practice he would not concur. Therefore, although we agree in our decision, what follows is a statement of my own views. The rules in question in this case begin at rule 10 and go on to rule 13. These rules apply to two classes of ejectments. Rule 10 applies to cases where the ejectment is for one of two things—namely, non-payment of rent or overholding—and this rule 10 is absolutely expressed, and if it stood alone would be free from difficulty, for it provides that in these cases it is only necessary to serve the persons in actual possession, and that is so under this rule no matter whom you name as defendant. Now it became necessary in the next rule to provide for the other class of ejectment—namely, ejectment on title, which is styled “other action for the recovery of land.”Rule 11 provides that in this class of ejectment it is necessary to do something more, and the rule expressly lays down what it is necessary to do in addition—namely, you must serve every person in receipt of the rents and profits as well as every person in actual possession. Rule 13 produces the real difficulty. This rule dealt with the two classes of ejectment, both those under rule 10 and those under rule 11, and it provides that service may, in case of vacant possession, when it cannot otherwise be effected, be made by posting a copy of the writ on some conspicuous portion of the property. The words creating the difficulty are “when it cannot otherwise be effected.” As to these words, in case of vacant possession in ejectment for non-payment of rent or overholding no other service is provided for by rule 10, but if the case is one of ejectment on the title it can, and ought, under rule 11, to be otherwise effected—namely, by serving those in receipt of the rents and profits. Rule 13 then continues to deal with both classes of ejectments, providing that in cases of vacant possession, before judgment by default is given, the Judge shall be satisfied that there was no person—first, in actual possession, or secondly, in receipt of the rents and profits—on whom other service might have been effected. The first clause, “in actual possession,” applies to cases of ejectment for non-payment of rent or for overholding; the second clause, “in receipt of the rents and profits,” applies to ejectments on the title even though the premises are vacant. We will make the usual form of order deeming the service already had sufficient, and judgment can then be marked in the office.
Kenny, J.
I concur, but would have had a great difficulty on the point if it had come before me for the first time. I would have thought that the provision in rule 13 as to persons in receipt of the rents and profits would apply to ejectments for non-payment of rent as well as to those on title. But the two cases referred to and the continuous practice in the office lead me to concur. Palles, L.C.B., in Trinity College v. Lyons, draws the distinction between real and nominal defendants, and points out that the ejectment is served not on the defendant but upon the person in possession. In addition, we have the case of Shaw v. Warmington, Ir. R. 3 C. L. 99. There the form of the order is most significant, for it deems the posting of the copy good service on the defendant. The inference is that there was no other service effected on the defendant named in the writ. That is a decision that posting on the premises is to be deemed sufficient service. Also we have the continuous practice in the office. On these grounds, therefore, I concur.
The Executors of John M’Ilherron, Deceased v Daniel M’Ilherron
1 March 1892
[1893] 27 I.L.T.R 62
His Honor Judge Colquhoun
His Honor.—This is an ejectment on the title, brought by the plaintiffs as executors of John M’Ilherron, deceased, to recover from the defendant possession of a farm of land described in the process. The facts of the case are few and simple, but a somewhat important question of law arises. John M’Ilherron, deceased, and the defendant are brothers. Their father, Daniel M’Ilherron, senior, was in his lifetime the owner of the farm in question as tenant from year to year. He died intestate in or before the year 1864, leaving his two sons, John M’Ilherron, deceased, and the defendant, Daniel, surviving him. At the time of his death his two sons were living with him on the farm. The defendant was then a married man, and had a family, but John was then unmarried, and so continued till his death, which took place a short time ago. After the death of their father, his said two sons, John and Daniel, together with the wife and family of the latter, continued to live upon the farm and work it for their joint benefit. No administration was ever extracted to Daniel M’Ilherron, senior. Shortly after his death the landlord inserted the name of John M’Ilherron in his rent-book as tenant of the farm, and from the year 1864 till his death the rent receipts were given in his name. The defendant knew that John had got his name inserted in the landlord’s book as tenant, and that the rent receipts were given in his name, and he did not interfere but acquiesced in such a state of things. It was also alleged by the plaintiffs that John had got the fair rent of the holding fixed in his own name, but of this I had no legal proof, and the defendant denied that he was a party to, or knew anything of that transaction. John made a will disposing of the farm, and appointed the plaintiffs as his executors, who have brought the present ejectment to recover possession from Daniel and his family. It is not contended on the part of the plaintiffs that the Statute of Limitations ran in favour of John M’Ilherron as against the defendant, because the occupation of John was not conclusive, and the defendant never was out of possession. The plaintiffs, however, insist that Daniel, by his conduct in permitting John’s name to be inserted and remain as tenant in the landlord’s book, and to have the rent receipts made out in his name for so many years, is now estopped from denying that John was the tenant at the time of his death. This is the question which I am called on to decide. In Bourke v. Bourke, Ir. R. 8 C. L. 221, it was decided that a change in the landlord’s book of the name of the tenant does not, unless shown to have been assented to by all parties interested, afford any evidence from which can be inferred either a change of the tenancy or transfer of the legal rights. Mr. Justice Lawson in the course of his judgment says—“Mere alteration in the form of a receipt of a landlord, unless assented to by all the parties interested, does not found evidence from which we can infer a change of the tenancy or a transfer of legal rights.” This case does not decide what will amount to the requisite assent so as to bind parties, but I gather from it that whether such assent is or is not given in a particular case must be gathered from facts outside of and in addition to the naked change of name in the rent books and receipts, and is a question for the jury. I assume, in the present case, that one of the next-of-kin of an intestate can, in the absence of a personal representative, give such an assent as to bind his equitable rights in a chattel rent. Did the defendant assent to the acceptance of his brother John as tenant in place of their deceased father, so as to bind his rights as one of the next-of-kin? Unless acquiescence in John’s conduct in getting his name inserted in the books and receipts, and his non-interference with such a state of things is to be so construed, there was no evidence of assent. In my opinion, an assent of this kind must in reality amount to a contract. If the defendant had gone to the landlord, and with a knowledge of his rights and the effect of what he was doing had consented to John’s name being substituted for that of their father, then there would have been such acts on the part of the defendant as would have been clear evidence of a contract on his part to forego his rights in consideration of John *62 being accepted as tenant. In this case there is no such assent. The defendant merely allowed John to pursue his own course in silence, thinking, no doubt, that it practically made no difference as between them whose name was in the book as tenant, and that he who filled that position would hold as trustee for the other as regards his beneficial interest. I am clearly of opinion, on the facts, that the defendant never assented to John being accepted as tenant so as to bring the case within the requirements laid down in Bourke v. Bourke, even assuming that according to that case an assent by the defendant would have bound his rights. What I have already said practically disposes of the question of estoppel. I fail to see how mere abstinence from interference with John in getting his name inserted and continued in the rent books and receipts can estop the defendant from alleging the truth and asserting his legal rights. This would be pushing the doctrine of estoppel in pais beyond anything which has yet been attempted. In Pickard v. Sears, 6 A. & E. 475, this rule of law is thus stated by Lord Denman:—“Where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” Later cases introduced estoppel by negligence into this branch of the law, and Mr. Baron Wilde, in the case of Swan v. N. B. Australasian Co., 7 H. &. N. 603, states that this doctrine of estoppel by negligence will apply where the party against whom the estoppel is claimed “has led others into the belief of a certain state of facts by conduct or culpable neglect calculated to have that result, and they had acted in that belief to their prejudice. He shall not be heard afterwards as against such persons to show that such state of facts did not exist.” Mr. Justice Blackburn thought, in the same case in the Exchequer Chamber, that the estoppel by negligence, as defined by Baron Wilde, should be limited to neglect in the transaction itself, and be the proximate cause of leading the party into the mistake. In the recent case of Ex parte Adamson, in re Collie, 8 Ch. D. 807, the late Lord Justice James says:—“Nobody ought to be estopped from averring the truth or asserting a just demand, unless by his acts or words or neglect his now averring the truth or asserting his demand would work some wrong to some other person who has been induced to do something or abstain from doing something by reason of what he had said or done or omitted to say or do. ” I am clearly of opinion that the defendant does not come within any of the foregoing definitions. He did not by his conduct or neglect, or by saying or omitting to say anything, induce his brother John to do or abstain from doing anything, nor was John influenced in any way by the defendant’s conduct or silence. He acted quite independently of the defendant, and got his name inserted in the rent books and receipts without apparently consulting the defendant at all, who simply let things remain as he found them. No estoppel, in my opinion, exists as against the defendant. The plaintiffs fail in their contention, and I dismiss the process.
Rev. W. J. Hughes and Thomas Hughes v Kate O’Gorman
Circuit Court.
1 December 1943
[1944] 78 I.L.T.R 16
(Section 86 of the Landlord and Tenant Act (Ireland), 1860, reads:—“In case the term or interest of any tenant in any such cottier tenement shall have ended, or shall have been duly determined by a notice to quit, and such tenant or any person by whom the premises or any part of them shall be then actually occupied shall neglect or refuse to deliver up the possession of the same, or in case any person shall have been put or shall be put into possession of any lands or premises by permission of the owner, or servant, herdsman, or caretaker, and shall refuse or omit to quit and deliver up the possession of the premises, on demand made by the owner thereof, or his known agent or receiver, it shall be lawful for the landlord or owner of the said premises, or his heirs, executors, or administrators, or his known agent or receiver, to cause the person so neglecting or refusing to quit or deliver up the possession to be served with a summons in writing, signed by a Justice or Justices, … to show cause why possession of the said premises should not be delivered up to such landlord or owner, or his agent or receiver as aforesaid; and if the said tenant or occupier shall not appear at the time and place appointed, or if such tenant or occupier shall appear and shall not show to the satisfaction of such Justices reasonable cause why possession should not be given, and shall still neglect or refuse to deliver up possession of the said premises, or such part of them as was in his actual occupation at the time of the service of such summons, to the said landlord or owner, or his agent or receiver, it shall be lawful for such Justices or any two or more of them, … on proof being made before them of the holding or permissive possessions, as the case may be, and of its end or determination, and the time and manner thereof, and where the title of the landlord shall have accrued since the letting of the premises, the right by which he claims the possession, to issue a warrant, under their hands and seals, to any person as a special bailiff in that behalf, on the part of the landlord or owner, requiring and authorising him, within a period to be therein named, and not less than seven or more than fourteen clear days from the date of such warrant, to give the possession of the said premises to the said landlord, or his agent or receiver, and such warrant shall be a sufficient authority to the said bailiff to enter upon the said premises, and with such assistants as he shall deem to be necessary, and to give possession accordingly …. Provided also that nothing herein contained shall prejudice or affect the right of any owner of property entrusted to the care of any servant or caretaker peaceably to resume the possession thereof without process of law, if he shall so think fit.”)
Crofter Properties Ltd. v. Genport Ltd.
[2001] IEHC 111 (24th July, 2001)
APPLICATION FOR JUDGMENT
2. This is a most unusual application in that a substantial part of this case has been heard as long ago as April, 1996. The Plaintiff is the Lessor and the Defendant is the Lessee of certain premises in Morehampton Road, in the City of Dublin known as Sachs Hotel, and the original claim in these proceedings was for possession of those premises and for arrears of rent payable under the lease. This claim was met by a counterclaim on the part of the Defendant for damages including exemplary or aggrivated or punitive damages for injurious falsehood, negligent misstatement, defamation and wrongful interference with the economic interests of the Defendant. The counterclaim is made on the basis of allegations that a series of telephone calls were made by or on behalf of the Plaintiff to certain police authorities in the United Kingdom and that these calls were malicious and defamatory to the Defendant. It was originally claimed that the calls were made between January, 1993 and November, 1994.
3. The hearing of the case commenced in April, 1996 and after it had been at hearing for about 4 days an application was made on the part of the Plaintiff for the issue of letters of request to the Courts of the United Kingdom to enable the Defendant to adduce evidence from police officers in that jurisdiction. I agreed to this request and adjourned the further hearing of the matter on certain conditions which at the time I considered were fair to both parties. These were that the Defendant should pay all gales of rent in full as they fell due pending the determination of the action, and further should pay the sum of £100,000 within 28 days in part payment of the arrears of rent and would pay the sum of £3,900 per month by way of interest on the balance. The Defendant, in fact appealed to the Supreme Court against these conditions but they were upheld by the Supreme Court.
4. It was realised at the time that there would be some considerable delay, but it was never envisaged either by the Court or the parties that the case would still be probably twelve months from a final hearing in the middle of the year 2001. There were serious delays in relation to the letters of request, which were not the fault of any of the parties, and ultimately the Defendant rather ingeniously brought proceedings in the United Kingdom under the Norwich Pharmaceuticals principal for discovery of documents against the relevant police officers. This resulted in an agreement on the part of the United Kingdom authorities that certain police officers would give evidence on commission, and that evidence has been duly taken. It emerged from that evidence that the relevant telephone calls were made in the year 1992 and not within the dates as pleaded by the Defendant in the counterclaim.
5. The Defendant than applied to me to amend the counterclaim to include events which occurred in 1992 and I refused to allow such amendment. However, on appeal, the Supreme Court has allowed the amendments and those amendments have given rise to the motion for Further and Better Discovery which I will refer to later.
6. There is one other very relevant factor, namely that the lease of the premises expires on 31st July of this year. The Defendant contends that it will be entitled to a new lease on the basis of the business use of the premises, while the Plaintiff contends that, because of the arrears of rent and behaviour of the Defendant, no Court would grant a new lease. I do not intend to embark on this interesting point, but of course the fact that the lease is about to expire does change the nature of these proceedings and indeed of the terms upon which I adjourn the case.
7. Having decided originally that it would be unjust to grant a decree on foot of the Plaintiff’s claim while the counterclaim was outstanding, and taking into account the fact that the delays which have occurred were quite unforeseen and were not the fault of either of the parties, I would be extremely reluctant to alter the position at this stage of the proceedings. While the Plaintiff may be without its money, it is recovering a high rate of interest, well above what would be commercially available to it. The Plaintiff has made the case that the Defendant is insolvent, and would be unable to meet any decree which I might grant. While the Defendant has not conceded this point, it is probably correct if no new leave of the premises is granted to the Defendant. It seems to me that the Plaintiff’s prospects of recovery on any decree will be no better in 12 or 18 months time it is now, and in the meantime the Plaintiff is recovering substantial interest on a capital sum which it may never receive. This being so, I do not think the Plaintiff has made out a case that it would be greatly prejudiced if the present terms are continued.
8. I say this in the realisation that the premises in Morehampton Road are extremely valuable, and that the issue of whether the Defendant is entitled to a new lease may well determine who benefits from the value of the premises. However, I think the reality must be that it is unlikely that any Court would determine the right to a new lease while the present proceedings are pending.
9. On balance, therefore, in view of the history of these proceedings, the extent to which the case has already been heard and the lack of real prejudice to the Plaintiff, I will refuse this motion for Judgment on terms that the Defendant continues to pay all gales of rent in full as they fall due and continues to pay the sum of £3,900 per month as interest on the arrears. As the lease is about to expire, I will direct that the rent which is to be payable is the rent which is payable during the current year of the lease and that it should be payable on the same gale days as in the present year.
FURTHER AND BETTER DISCOVERY
10. The amendment of the pleadings allowed by the Supreme Court has undoubtedly widened the scope of this action by extending it to cover the matters which took place in 1992. There is clearly going to be an issue as to whether the Plaintiff’s claim for damages for slander in relation to the 1992 events is statute barred. In this regard, the question of the date of the Defendant’s first knowledge of the matters complained of may become relevant and to that extent I think the Plaintiff is entitled to revisit the question of discovery. On this basis, I think the Plaintiff is entitled to an order that the Defendant make further and better discovery in relation to the classes of documents at paragraph D(1)(ii) of the Notice of Motion herein. I should say, however, that of course this will not affect the Defendant’s right to plead privilege in relation to any such documents.
11. The third class of documents sought are those in relation to the sale of Mr. Philip Smyth’s interest in the Defendant. While there is no doubt that Mr. Smyth was the controlling influence in the Defendant during the relevant times, the fact remains that this is not an action taken by Mr. Smyth, but by the Defendant Company. The Plaintiff has sought to put forward an inference that Mr. Smyth has some champertous interest in these proceedings but there is no evidence whatever before me in that regard. In my view Mr. Smyth’s sale of his shares in the Defendant Company is not relevant to these proceedings and I will refuse an Order for Further and Better Discovery in relation to the item at paragraph D(iii) of the Notice of Motion.
GEOGHEGAN J. :
I agree.
MAGUIRE C.J. :
Mr. Justice Black has authorised me to say that he concurs with the view of the other members of the Court on this appeal.
Keogh v Power and Carew.
High Court.
13 October 1937
[1937] 71 I.L.T.R 237
Johnston, Gavan Duffy JJ.
Johnston, J.:
I am of opinion that the decree of the learned Circuit Court Judge should be upheld and the appeal dismissed with costs. The action is one for ejectment in respect of residential premises on what must be admitted to be parochial ground. There are only two questions to be considered, both of which should be decided in favour of the plaintiff. First: had Father Keogh any authority to sue? The evidence is that he had control and management of all the parochial buildings, and in view of the evidence of the Archdeacon and of the judgment of Palles, C.B., in Nugent v. Nugent (31 Ir. L. T. R. 142), I must find that Father Keogh was the only and proper plaintiff. In Nugent v. Nugent (supra), Palles, C.B., made it clear that parochial property is vested in the Parish Priest. Secondly: Is there sufficient evidence on which to base the title of the plaintiff? There is a very old wall surrounding all the property—church, school and dwelling-house. When Latchford died, James Power, senior, succeeded him as teacher and took possession of the house, and we are entitled to infer that he obtained possession by reason of his position as principal male teacher. On his death his successor did not require the house for himself as he owned a farm in the neighbourhood, and I infer that some new arrangement was made between the Parish Priest and Mrs. Power, who remained on as a teacher at the school. I do not think that she had any interest whatsoever in the premises which would have given her the right or the title to devise them to her son, who consequently can have no title to the premises. The premises were held by the Powers successively as part of their remuneration as teachers, and on Mrs. Power’s death, and the marriage of her daughters, all right to them ceased. I do not think that the payment of the rent of £1 a year to the head landlord affects the case. That payment probably was made as part of the arrangement entered into when James Power, senior, first became the principal male teacher, and the payment ceased years ago. I am clearly of opinion that James Power got possession of these premises in his capacity as the teacher in this parochial school under an agreement made at the time between him and the parish priest of the day (there was probably a subsequent arrangement made when James Power died) and it is impossible to think that the Powers have now any claim to this parochial property.
Gavan Duffy, J.:
This is not an ordinary action for ejectment, nor is it an ejectment in respect of an ordinary holding. The evidence is that the house has always been part of the parochial “take,” and this being so, the house like the church is impressed with a trust for the parish, and it is exceedingly unlikely that the Parish Priest at any time intended to put an end to this trust, even if he had any power to do so. It is reasonably clear that the house was intended to be used as a “teacher’s house,” and if the house was parochial property the obvious inference is that some arrangement was made in the nature of a licence to occupy it, Power agreeing to pay the rent direct to the landlord. I must find that the house remained and is parochial property.
The remaining question is, can the Parish Priest sue? There is little doubt that he is a trustee, even though he is unable to show that he is the sole trustee. If the Parish Priest had sued on behalf of his parishioners that would have given him the right to sue. The Parish Priest in this case is suing in his own name, but the real plaintiffs are the Catholic parishioners of his parish. It would be a refinement of technicality to dismiss the claim because he had not sued in that form.
Appeal dismissed with costs.
Hamilton v M’Geehan
King’s Bench Division.
6 June 1904
[1904] 38 I.L.T.R 176
Palles L.C.B., Johnson, Madden JJ.
Palles, L.C.B.
It is unnecessary for us to decide in this case the important question as to who are the persons necessary to be served in the Civil Bill Court. The contention here is that it is necessary to serve all of them, and that when all are served except one, it is not a sufficient service. But we have not to decide that. Here it is plain that the persons who were served were executors de son tort. Now, it is decided that an executor de son tort in possession of lands is a party liable for rent, as if he were the legal personal representative. And then we have the strong case of Nugent, d.; Keane v. Earl of Bantry. It is also admitted that if regular representation had been taken out it would be unnecessary to serve any person other than that representative. I think that it follows from those two propositions that service can be made on one of the next-of-kin; though another of them is not served. Therefore the decree ought to be affirmed.
Johnson and Madden, JJ., concurred.