Canavan v Burton

• Jurisdiction: Ireland
• Judgment Date: 01 January 1900
• Date: 01 January 1900
• Court: King's Bench Division (Ireland)

Canavan

and

Burton

vol. n.j QUEEN'S BENCH DIVISION. 359 C ANA VAN v. BURTON (1). (1898. No.. 17,713.) Nov. 8, 9, 14. Q. B. Div. 1899. Landlord and tenantLandlord and Tenant [Ireland) Act, 1860 (23 8c 24 Vict. c. 154) sects. 1, 41 LeaseImplied covenant for title and quiet enjoymentLand Law (Ireland) Act, 1881 (44 45 Vict, c. 49), sects. 2, 5 "Judicial tenancy "Subletting without consent. Upon a subletting inoperative by reason of the absence of the landlord's consent, no covenant for title or quiet enjoyment can be implied under section 41 of the Landlord and Tenant (Ireland) Act, 1860. New Trial Motion, in an action brought by a tenant against his immediate landlord for damages for alleged breach of the covenant for title and quiet enjoyment, implied under section 41 of Deasy's Act, 186.0. The action was tried before Kenny, J., and a common jury of the city of Dublin in June, 1899. The defendant was a " judicial tenant" of certain lands in county Wicklow, who by an agreement in writing, dated the 2nd November, 1897, had made a subletting of portion of these lands to the plaintiff for a term of five years. Upon discovering this the head landlord, who had.not consented.to the subletting, served a notice to quit upon the defendant; and thereupon the defendant obtained (on appeal) a civil bill decree in ejectment against the plaintiff, and caused the same to be executed through the sheriff. The defendant counter-claimed for waste and dilapidations. The jury assessed £20 damages in the plaintiff's favour, by reason of the-eviction, and on the counterclaim, £10, in favour of the defendant, for destruction of fences, ploughing up of lands, and injury to the house and offices. The learned Judge, being of opinion that there was no " lease " within sect. 41 of Deasy's Act, 1860, directed a verdict for the defendant in the original action, and gave judgment for the defendant (Burton) on the counterclaim for £10, staying execution. (1) Before Palles, C.B., and Mukphy, Gibson, and Madden, JJ. 360 THE IRISH REPORTS. [1900_ Q. B. Div. The plaintiff moved to change the verdict and judgment, on the- 1899,_ground, substantially, of misdirection. Can a van Burton. Moloney, Q.C., and Rosenthal, for the plaintiff. Wakeley, Q.C., and II. Hunt, for the defendant. Cur. adv. mlL Koy-14- Palles, 0. B. : The only question in this case is whether, upon a subletting by a document in writing, which subletting is inoperative by reason of the absence of consent on the landlord's part, there is implied,, under section 41 of the Landlord and Tenant Act, 1860, a covenant for title and quiet enjoyment. The question must turn upon the construction of that forty-first section, taken of course in connexion with the other sections of the Act. The forty-first section enacts: " Every lease of lands or tenements, made after the commencement of this Act, shall (unless otherwise expressly provided by such lease) imply an agreement on the part of the landlord making such lease, his heirs, executors, administrators, and assigns, with the-tenant thereof for the time being, that the said landlord has good title to make such lease, and that the tenant shall have the quiet and peaceable enjoyment of the said lands or tenements without the-interruption of the landlord or any person whomsoever during the term contracted for, so long as the tenant shall pay the rent and perform the agreements contained in the lease to be observed on the part of the tenant." Now it is plain that, if the word lease in this section bore the signification that it had before the Act of 1860, then, in the case-I have put, there could be no such implied covenant, because then the implication would have arisen from the fact of the estate having passed. At the common law, the covenant arose from the use of the word " demise " and there could be no covenant where nothing-passed under that word. Further, I need not say that the long line of authorities (which we cannot question) from Donoughmore v. Forrest (1) to O'Kane v. Burns (2), beyond all doubt establishes. (1) Ir. R. 5 C. L. 443. (2) [1897] 2 Ir. R. 591. Vol. II.] QUEEN'S BENCH DIVISION. 361 that the lease or letting in the present case is inoperative and Q. B. Div. null. 1899- It is, however, argued that the present case may be distin- CAS"ATAIf guished from that which I have put by reason of the definition of Buhton. lease in sect. 1 of the Act of 1860 : Palles, c. B. "The word 'lease' shall mean any instrument in writing, whether under seal or not, containing a contract of tenancy in respect of any lands in consideration of a rent or return." It is said that, if you read into sect. 41 the definition of the word lease, it will read, " every instrument in writing containing a contract of tenancy, &c, shall imply the covenant in question " ; and that in the present case there is such an " instrument in writing," and that there exists in fact the contract required, although that contract is inoperative to pass an estate. But the words of the definition must be read in connexion with the third section of the Act: "The relation of landlord and tenant shall be deemed to be founded on the express or implied contract of the parties, and not upon tenure or service, and a reversion shall not be necessary to such relation, which shall be deemed to subsist in all cases in which there shall be an agreement by one party to hold land from or under another in consideration of any rent." Thus read, and if the words of the definition are taken strictly, it...