Allman & Company v M'Cabe

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judgment Date: 18 May 1911
• Date: 18 May 1911

Allman & Co.

and

M'Cabe (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1911.

Landlord and tenant — Overholding — Lease for lives and term of years to commence from the death of the last surviving cestui que vie — 7 Wm. 3, c. 8 (Ir.), ss. 1, 3 — “Elsewhere absent themselves in this realm by the space of seven years” — Evidence — Burden of proof.

By lease dated in 1822 premises in the town of Bandon were demised to C. of Bandon for the lives of D., her son, aged eleven, A., and R., son of F. of Bandon, aged nine, and twenty-one years from the death of the survivor. C.'s interest in the lease vested in the defendant, an auctioneer, who sold the reversion to the plaintiffs under particulars stating that A. was the last life in the lease, and died on 5th February, 1888, and a civil bill ejectment for overholding was brought after February, 1909. On an appeal from a dismiss by the County Court Judge a case was stated by the Judge of Assize. It appeared that A. died on the date stated, but the only other evidence of the expiration of the lease was the evidence of the plaintiffs' foreman, who was born in 1852, and had resided for over forty years in Bandon, and knew the town thoroughly. He merely proved that he never heard of either D. or R. (the two other cestuis que vie), “though he had made every inquiry he could.”

After the 5th February, 1909, the plaintiff's served notice on the subtenants to pay their rents to the plaintiff's, and the defendant served a claim for compensation under the Town Tenants Act.

Held, by Lord O'Brien, L.C.J., in the King's Bench Division, and by the Lord Chancellor and Holmes, L.J. (Palles, C.B., dissenting), in the Court of Appeal, that the statute 7 Wm. 3, c. 8 (Ir.), s. 1, applied to such a lease.

Held, by Palles, C.B., that the impossibility of applying the remedy provided by section 3 to all cases of wrongful evictions of such a lease under the Act showed that section 1 was inapplicable.

Held, also, by the Lord Chancellor, Lord O'Brien, L.C.J., and Holmes, L.J., that the evidence on behalf of the plaintiffs was sufficient to entitle them, under the statute, to a decree for possession, in the absence of evidence on the part of defendant that D. and R., or either of them, survived A. (Gibson, J., dissenting in the King's Bench Division).

Held, by Lord O'Brien, L.C.J., and Boyd, J., that, independently of the statute, the evidence was sufficient to raise the common law presumption that D. and R. died more than twenty-one years before the action was brought.

Case Stated by Cherry, L.J., at the County Cork Summer Assizes, 1910, upon the hearing of an appeal from the dismiss of plaintiffs' civil bill by the County Court Judge of the West Riding. The case was as follows:—

“This was an ejectment to recover possession of premises, 31 Shannon Street, Bandon, held under lease dated 1st March, 1822, from Lord Shannon to Johanna Canniffe of Bandon, for the lives of Daniel Canniffe, son of the lessee, then eleven years of age, Benjamin Thomas, aged fifteen years, Robert Falvey, son of Catherine Falvey of Bandon, aged nine years, and for the term of twenty-one years from the death of the survivor. The lessor's interest became vested in one Swanston, who in 1892 sold the estate he was owner of in Bandon, including these premises, which were described as held under the lease above-mentioned, with a statement that the said Benjamin Thomas was the last life in the lease, and had died on the 5th February, 1888, and that the reversionary term of years was running from that date.

“The defendant at the date of the said sale was tenant under the said lease, and was also the auctioneer who put up the property, including this lot, for sale.

“This lot was not sold at the auction which took place on the 16th August, 1892; but on the 3rd October, 1892, it was sold to the plaintiffs by private sale under the same conditions of sale. The conditions provided that ‘the statements in the particulars with respect to the lives in the leases to which these lots are stated to be subject are believed to be correct, but the vendor does not in any way guarantee the correctness of such statements, and purchasers are not to be entitled to any evidence of the existence or non-existence of any of said lives or the dates of the deaths of any of them, or any further information whatsoever with respect to the date of the expiration of any of the said leases, other than that contained in the particulars, and no objection or requisition whatsoever is to be made with respect to the said lives or the terms of the said leases, nor will purchasers be entitled to any compensation in relation to the statements with respect to the tenants' tenure should same be found incorrect.’

“It was proved that the auctioneer read out the conditions of sale at the abortive auction and the tenure of the lots.

“The only other evidence of the expiration of the lease was that of James O'Donoghue, the plaintiffs' foreman, who stated he had been born in 1852, and had resided for over forty years in Bandon, and knew the town thoroughly. He merely proved that he had never heard of either Daniel Canniffe, son of the lessee, or any Daniel Canniffe, though he had made every inquiry he could. He gave similar evidence in respect of Robert Falvey, son of Catherine Falvey. He knew Benjamin Thomas, and produced a certificate of his death on the 5th February, 1888, at Shannon Street, Bandon.

“If Benjamin Thomas was the last life in the lease, the lease expired on the 5th February, 1909. Subsequent to that date the plaintiffs served notice on the defendant's sub-tenants to pay their rents to the plaintiffs; and the defendant on the 4th March, 1909, served notice claiming compensation under the Town Tenants Act, but withdrew the claim before the hearing.

“I was not satisfied upon the evidence that the three cestuis que vie had been proved to be dead; and even if I were bound to presume them dead, I could not see that there was any reason to presume that they had died more than twenty-one years ago. I did not think that the mere fact that the defendant had acted as auctioneer at the abortive sale by auction estopped him from denying that the lease had expired.

“The plaintiffs contended:—First, that the statute 7 Wm. 3 (Ireland), c. 8, applied to the case and that the plaintiffs were entitled to possession; secondly, that, apart from the statute, Daniel Canniffe and Robert Falvey ought to be presumed to have died before Benjamin Thomas; thirdly, that the statement in the rental with reference to his own holding was an admission by the defendant that Benjamin Thomas was the last life in the lease.

“The question for the Court is, whether upon these grounds I was bound to presume that the three cestuis quo vie named in the lease died more than twenty-one years ago? If the answer to this question be in the affirmative, the dismiss of the County Court Judge should be reversed, and a decree for possession granted to the plaintiffs.

“Richard R. Cherry.”

All the documents mentioned in the case were enumerated in the schedule, and were to be deemed incorporated with the case.

The title, preamble, and 1st section of 7 Wm. 3 (Ir), C. 8, are as follows:—

An Act for Redress of Inconveniences for want of proof of the deceases of Persons beyond the Seas, or absenting themselves, upon whose lives estates do depend.

“Whereas divers lords of manors and others have used to grant estates by lease for one or more life or lives, or else for years determinable upon one or more life or lives; and it hath often happened that such person or persons, for whose life or lives such estates have been granted, have gone beyond the seas and absented themselves for many years, that the lessors or reversioners cannot find out whether such person or persons be alive or dead, by reason whereof such lessors and reversioners have been held out of possession of their tenements for many years after all the lives upon which such estates depend are dead, in regard that the lessors and the reversioners, when they have brought actions for the recovery of their tenements, have been put upon it to prove the death of their tenants (sic) when it is impossible for them to discover the same; for remedy of which mischief so frequently happening to such lessors or reversioners, be it enacted, &c. That if such person or persons, for whose life or lives such estates have been or shall be granted as aforesaid, shall remain beyond the seas, or elsewhere absent themselves in this realm, by the space of seven years together, and no sufficient and evident proof be made of the lives of such person or persons respectively, in any action commenced for the recovery of such tenements by the lessors or reversioners, their heirs or assigns; the Judges, before whom such action shall be brought, shall direct the jury to give their verdict, as if the person so remaining beyond the seas, or otherwise absenting himself, were dead.”

Section 3 is given in extenso in the Lord Chief Baron's judgment, infra, p. 428.

Norwood (with him, Conner, K.C.), for the plaintiffs.

A. M. Sullivan, K.C., and M'Sweeny, for the defendant.

Conner, K.C., in reply.

The arguments were substantially the same as at the hearing of the appeal, reported infra, pp. 419–422.

Norwood (with him, Conner, K.C.), for the plaintiffs.

A. M. Sullivan, K.C., and M'Sweeny, for the defendant.

Boyd, J.:—

There cannot be any doubt in this case that the three persons mentioned in the lease of 1st March, 1822, and for whose lives the lease was primarily granted, are now dead, or are not forthcoming, and the only question arising in the case is at what date or dates the law presumes they did die, or absent themselves, so that the lessors or reversioners in the said lease cannot find out whether such person or...