Adams, Tenant; Alexander, Landlord

• Jurisdiction: Ireland
• Judgment Date: 27 June 1894
• Date: 27 June 1894
• Court: Court of Appeal (Ireland)

Adams,

Tenant

and

Alexander,

Landlord (1).

Appeal.

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1895.

Redemption of Rent (Ireland) Act, 1891 — Fee-farm grant made in 1837 — Church Temporalities Acts — Relation of landlord and tenant.

A lessee of certain lands under a lease containing a toties quoties covenant for renewal also held from his lessor in that lease certain other lands under a tenancy from year to year. The lessee became entitled under the Church Temporalities Acts to a grant in perpetuity of the leasehold lands, and he thereupon under the said Acts obtained from his lessor a grant in perpetuity of the lands comprised in the lease. This grant was made in the year 1837, and included beside the leasehold lands other lands of which the grantee had previously been tenant from year to year, reserving a bulk rent in respect of the entire of the lands, secured by a covenant for payment and a proviso for distress applicable to the whole:—

Held (diss. Fitz Gibbon, L. J.), that the owner of the grantee's interest was not entitled to the benefit of the Redemption of Rent (Ireland) Act, 1891, as no relation of landlord and tenant was created by the grant of 1837.

Semble, fee-farm grants made under the Church Temporalities Acts, or under the Renewable Leasehold Conversion Act, being fee-farm grants to which there is attached as a statutory incident the right to bring ejectment for non-payment of rent, and also fee-farm grants made since the Landlord and Tenant Act, 1860, create the relation of landlord and tenant for the purpose of enabling the grantee to claim the benefit of the Redemption of Rent (Ireland) Act, 1891

Appeal from an order of the Irish Land Commission Court, dated February 27, 1894, dismissing the tenant's application to have a fair rent fixed under the provisions of the Redemption of Rent (Ireland) Act, 1891.

By indenture dated October 1, 1825, and made between Nathaniel, Lord Bishop of Meath of the one part, and John Hunter of the other part, the Bishop of Meath demised to John Hunter a piece of land situate in the townland of Aghadoey, containing 24 acres (Irish), with 3 acres of bog in the townland of Ballynakelly, then in the possession of John Hunter, to hold for

a term of twenty years, subject to the rent of £48 (Irish). This lease contained a toties quoties covenant, by which the lessor bound himself to renew the same to the lessee, as often as he would obtain a renewal from the Bishop of Derry of a lease of lands of which this demise to John Hunter formed a part.

By indenture dated April 14, 1835, and made between the Lord Bishop of Derry of the first part, the Ecclesiastical Commissioners for Ireland of the second part, and the said Nathaniel, Lord Bishop of Meath, of the third part, the lands comprised in the said lease, along with other lands (including the two farms subsequently mentioned) were, by virtue of the 3 & 4 Wm. 4, c. 37, conveyed to the said Nathaniel, Lord Bishop of Meath, his heirs and assigns for ever, subject to the rent reserved by the said indenture. The purchase-money for this perpetuity, £537 15s. 6d., was duly paid by the Bishop of Meath to the Ecclesiastical Commissioners.

On this grant in perpetuity having been made to the said Nathaniel, Lord Bishop of Meath, the said John Hunter, as his lessee, with the benefit of the said toties quoties covenant for renewal, applied, as he was entitled to do, under the 6 & 7 Wm. 4, c. 99, to the said Nathaniel, Lord Bishop of Meath, for a conveyance of the perpetual estate in the said portions of the lands of Aghadoey and Ballynakelly, which he held under the said lease of October 1, 1825. Besides the portion of Aghadoey included in this lease, John Hunter also held from the said Lord Bishop of Meath apparently as tenant from year to year, but certainly without the benefit of any toties quoties covenant for renewal, two other farms in Aghadoey, containing respectively 9 acres and 3 acres, Irish, and it was agreed between the parties that these two farms should be included in the proposed conveyance, and a bulk rent reserved in respect of the entire lands, so much of the said rent as was reserved out of the leasehold lands being ascertained in the mode prescribed by the statute.

Accordingly, by an indenture, dated July 25, 1837, and made between the said Bishop of Meath of the one part, and the said John Hunter of the other part, reciting the lease of October 1, 1825, the grant in perpetuity of April 14, 1835, that John Hunter was liable under the Church Temporalities Acts to contribute to the Bishop of Meath a portion of the purchase-money paid by him for the said grant in perpetuity, and that he had agreed to pay to the said Bishop the sum of £54 as such contribution, and further reciting the said agreement for a conveyance of the said leasehold lands and the said two farms in perpetuity, the said Nathaniel, Lord Bishop of Meath, in consideration of the said sum of £54, and the rents thereinafter reserved, granted to the said John Hunter, his heirs and assigns, “All that and those that farm of land hereinbefore mentioned, situate in the townland of Aghadoey, containing 24 acres Irish plantation measure, be the same more or less, together with 3 acres of bog in the townland of Ballynakelly, as demised by the said recited toties quoties lease of the 1st October, 1825, and also all that lot or farm of land containing 9 acres formerly in the possession of the Reeds, and also the lot containing 3 acres, and the house and garden belonging thereto, formerly called M'Kendry's holding, both situate in the townland of Aghadoey, and containing in the whole 39 acres, or thereabouts, Irish plantation measure, all which lands and premises are situate in the parish of Aghadoey, half barony of Coleraine, and county of Londonderry aforesaid, being part of the before-mentioned lands and premises granted and conveyed to the said Nathaniel, Lord Bishop of Meath, by the said Richard, Lord Bishop of Derry, and the said Ecclesiastical Commissioners for Ireland,” to hold the same “unto the said John Hunter, his heirs and assigns, to the only use and behoof of him the said John Hunter, his heirs and assigns, from the 1st of November last past for ever, in as full and ample a manner as the said lands are demised by the said Lord Bishop of Derry, and the Ecclesiastical Commissioners, to the said Lord Bishop of Meath,” subject to an annual rent of £67 13s. 8d. This conveyance to John Hunter contained a covenant for payment of the bulk rent out of the entire lands, and also a proviso for distress on non-payment relating to the entire lands.

All the interest of John Hunter in the said lands subsequently became vested in the tenant, John Adams, and the estate of the said Bishop of Meath in the said perpetual rent became vested in the landlord, Nathaniel S. Alexander.

The tenant served an originating notice of application to redeem his rent, and for an advance under the Land Purchase Acts, to carry out such redemption, or, in case the grantor did not signify his consent thereto in the prescribed manner, and within the prescribed time, to have a fair rent fixed.

The grantor did not consent to have the rent redeemed, and the case accordingly came before a Sub-Commission as an application to have the fair rent of the holding fixed. The Sub-Commission dismissed this application on the ground that as regards the portion of the lands which originally were not held under any toties quoties covenant, the relation of landlord and tenant did not exist. On the application of the tenant the application was reheard by the Land Commission Court, who affirmed the decision of the Sub-Commission, and from whose judgment the present appeal was brought.

Andrew Todd and W. H. Brown, for the appellant:—

All the lands in the originating notice were held before 1837 by John Hunter as tenant, whether of the portion of 24 acres or of the portion of 12 acres. In these circumstances the fee-farm grant was made, not to a stranger to the lands as in Kelly v. Rattey (1), but by a landlord to a tenant. This relationship (in the sense of the Land Law Ireland Acts) was not destroyed by the grant, but continued in and through it, and now subsists for the purposes of the Redemption of Rent Act, 1891. Or, if the portion of 12 acres, held originally from year to year, be not within the Redemption of Rent Act, as not having been held under a toties quoties covenant for renewal, then such portion should be excluded from the area in the originating notice, and a rent fixed on the remainder which, by the decision in Hamilton v. Casey (2), is clearly within the Redemption of Rent Act. The smaller portion is severable, as it never formed, on this assumption, portion of the “holding.” Besides the bulk rent now issuing out of all the lands is merely the sum of two distinct rents as set out in the grant itself and in it appropriated to the separate portions of 24 acres and 12 acres respectively. Moreover, the “holding,” in this alternative being merely the lands held originally under

the renewable lease cannot now be excluded from the Land Acts by reason that the 12 acres may not be within the Act; for no part of the rent of the “holding” (i. e. the 24 acres) was payable in respect of the smaller and other portion also contained in the grant. In this event the originating notice should be amended by striking out the smaller holding, and the notice thus amended referred back to the Sub-Commission to fix a rent, if otherwise such holding were not excluded from the operation of the Act.

Matheson, Q.C., and W. Moore, for the respondent:—

This Court has decided in Kelly v. Rattey (1), that a fee-farm grant where no tenure is created, if executed before 1860, is not within the Redemption of Rent (Ireland) Act, 1891...