Barton, Grantor; Fisher, Grantee

• Jurisdiction: Ireland
• Judgment Date: 23 November 1900
• Date: 23 November 1900
• Court: Court of Appeal (Ireland)

BARTON,

GRANTOR;

FISHER,

GRANTEE.

Appeal.

Landlord and tenant —— Residential holding — Fee-farm grant made before 1860 — "Though purporting to create the relation of landlord and tenant" — "Fall agricultural rent " — Demesne lands.

Bland v. ThomsonDLTR 32 Ir. L. T. R. 167.

Graydon v. Trustees of Morgan's Charity Ibid. 513.

Kelly v. Rattey 32 L R. Ir. 415.

Kelly v. Rattey 32 L R. Ir. 445.

Moonan v. ConynghamIR [1895] 2 I. R. 1.

Thompson's CaseDLTR 32 I. L. T. R. 167.

Vox,. I.] CHANCERY DIVISION. 453 the present tenant stands in the same position as the lessee would r:ppeal. have done if he had continued, after its expiration, tenant under 1901. TALBOT, the 21st section of the Act of 1881. Landlord ; A substantial portion of the improvements was made in H _ONEYFORD, Tenant. pursuance of covenants in the lease of 1829, and compensated for by a reduction of the rent in the manner provided for therein. Holmes, L.J. It is clear that under the 1st section of the Act of 1896, the tenant can get no allowance in respect of these improvements ; but if there are other tenants' improvements in the holding, they are to be dealt with in the usual way. Solicitors for the landlord : B. Meredith 6f Son. Solicitors for the tenant : Best 85 Best. R. D. M. BARTON, GRANTOR ; FISHER, GRANTEE (1). Appeal. 1900. Landlord and tenant—Land Law Acts, 1881-1896—Residential holding—Fee- Nov. 22, 23. farm grant made before 1860—" Though purporting to create the relation of landlord and tenant"—" Full agricultural rent"—Demesne lands. By a deed, executed in the year 1801, A granted, demised, set, and to farm let to his son-in-law B, his heirs and assigns for ever, the demesne, house, orchards, and garden of K, subject to a rent, which was secured by powers of entry and distress. There was a proviso that possession of the preÂmises should not be given to B during the life of A, and a covenant by B to pay the rent. The description of the premises given in the deed, and in other documentary evidence, showed that the premises were residential in character at the date of the deed, though since much dilapidated and deteriorated : Held, by the Court of Appeal (reversing the decision of the Irish Land Commission), that the premises were let to be used as a residence, and that the holding was excluded from the Land Law Acts. Query—Whether the deed of 1801 purported to create the relation of lat.-lord and tenant. (1) Before LORD ASHBOURNE, C., and FITZ GIBBON, WALKER, and HOLMES, L. JJ. 454 THE IRISH REPORTS. [1901. Appeal. APPEAL by the grantor from the judgment of the Irish Land 1900. Commission, dated 1st June, 1900, affirming the decision of the BRETON, Assistant Commissioners who fixed a fair rent upon the holding. Grantor ; FISHER, The holding consisted of 77A. 3it. 3p., situated on the seashore Grantee. in the county of Donegal, about nine and a-half miles from the town of Donegal. It was held under a deed, dated January 8, 1801, and made between Thomas Nesbitt of the one part, and John Major of the other part, whereby the premises therein described as the demesne, house, orchards, garden and lands of Kilmacreddan, and also the warehouse or storehouse, in the town of the Port, and the waste ground on south side of the warehouse known as " the oil yard," were demised, granted, set and to farm let to the said John Major, his heirs and assigns, from the 1st day of November then last past, for ever at the yearly rent of £80 5s., that is to say, £74 5s. for the said house and demesne lands of Kilmacreddan, and £6 for the warehouse—payable half yearly on every 1st May and 1st November during the continuance of the said demise. The deed contained a power of entry and distress if the said yearly rent was in arrear for twenty-one days; a proviso that the said John Major, his heirs and assigns, were not to have possession of the premises aforesaid except the warehouse, until the death of the said Thomas Nesbitt, or such other period sooner as the said Thomas Nesbitt should think fit and proper to give up the said house and demesne lands to the said John Major, his heirs or assigns; a covenant that the rent should not commence until the possession had been delivered up to the said John Major ; a coveÂnant by John Major for the payment of the yearly rent ; and a covenant for quiet enjoyment. The deed was described by an indorsement on its back as a " lease." The actual language of this deed describing the parties and the premises was much relied on in the argument, and with other portions of the deed will be found quoted verbatim in the judgÂments. John Major married a daughter of Thomas Nesbitt, who surÂvived her first husband and subsequently married William Keane. She became possessed of the grantee's interest iu the premises, but how or under what circumstances did not appear. However, her interest in the premises was sold in the Landed Estates Court, in - VOL. I.] CHANCERY DIVISION. 455 1869, on the petition of a mortgagee, to Edward Lanigan of Droma- Appeal. hair, in the county of Leitrim, a farmer, for £1000. In the map 1900. BARTON on this conveyance were shown a good deal of timber and a Grantor, ; gate-lodge. On 5th July, 1870, Edward Lanigan, who was stated FISHER, r antee. to have purchased the place for the present tenant, assigned his G interest in the premises for £1000 to the present tenant, who was in the assignment described as " of Kilmacreddan, in the county of Donegal, farmer." It appeared from the evidence adduced as to the character of the holding that at the date of the rehearing before the Land Commission, there was an old three storied house on the holding, containing ten or eleven rooms, which had been allowed to fall into a dilapidated condition. The outhouses, according to the schedule of the Assistant Commissioners, consisted of stalls, potato-house, with barn overhead, byre, calf-sheds, cart-sheds and piggery, and the walls of an oil store. The house, according to the report of the Assistant Commissioners, was in a precarious condition, the flooring and timber...