Carrickfergus Urban District Council v Martin

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 08 November 1905
• Court: King's Bench Division (Ireland)
• Date: 08 November 1905

Carrickfergus Urban District Council

and

Martin (1).

K. B. Div.

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.

1906.

Landlord and tenant — Lease — Covenant to pay rent — Fair rent order — Yearly tenancy — Arrears of rent — Specialty debt — Appropriation — Land Law (Ireland) Act, 1881, sect. 21 — Land Law (Ireland) Act, 1887, sect. 1 — Land Law (Ireland) Act, 1896, sect. 16.

1. Where, under the provisions of sect. 1 of the Land Law (Ireland) Act, 1887, a lessee is deemed to be tenant of a present tenancy in like manner and subject to like conditions as if his lease had expired, and a fair rent is fixed in respect of such tenancy, the landlord cannot sue in covenant for arrears of rent ascertained by the fair rent order accruing after the lease is deemed to have expired.

2. The sum of two years' rent, payment or lodgment of which is prescribed by section 16 of the Land Law (Ireland) Act, 1896, in order to entitle a tenant to redeem when the rent in arrear exceeds two years' rent, refers to the two years' rent last due, and the landlord cannot appropriate such payment or lodgment towards earlier arrears of rent.

Quære, whether from such payment or lodgment a promise to pay arrears can be inferred.

Case stated by the Right Hon. Mr. Justice Kenny, on the hearing of a civil-bill appeal, at the Belfast Summer Assizes, 1905, as follows:—

The civil-bill process in this case was brought for recovery of the sum of £28 5s., being over eight years' arrears of rent alleged to be due by the defendants to the plaintiffs, up to and ending 1st May, 1901, in respect of premises in Carrickfergus.

The defendant's yearly rent was £3 10s. It was fixed at that sum by order of the Land Commission, dated the 28th October, 1892, made pursuant to sect 1 of the Land Act (Ireland), 1887.

The defendant had, up to that period, held the premises under an indenture of lease, dated the 30th of September, 1875, for a term of sixty-one years, at the yearly rent of £5, which indenture contained the usual covenant by the lessee for payment of the rent.

On the 24th January, 1902, the plaintiffs obtained a civil-bill decree against the defendant for the possession of these premises, grounded on non-payment of rent during the years from 1st May, 1891, to 1st May, 1901.

By the last-mentioned decree it was determined that the holding was one to which the 7th section of the said Act of 1887 applied, and that same was not in the occupation of a tenant within the 12th section of the Land Law (Ireland) Act, 1896, and that the defendant was not an immediate landlord of the holding within the meaning of the same section.

It was also ascertained by the said decree that the sum of £35 5s. was due to the plaintiffs for arrears of rent up to and including the gale thereof which accrued due on the 1st May, 1901, being the gale-day next before the said action.

Pursuant to the 16th section of the Land Law (Ireland) Act, 1896, the defendant subsequently paid to the plaintiffs, or lodged with the Clerk of the Peace, the sum of £7, being two years' arrears of rent of the premises, together with the costs of the ejectment, whereupon an order for a writ of restitution was made.

The sum £28 5s., the subject-matter of the present action, is claimed as being “eight years' rent, and arrears of the said judicial rent,” up to and ending the 1st May, 1901.

The plaintiffs, so far as it was competent for them to do so, appropriated the £7 so paid by the defendant to the discharge of the two years' rent which accrued due on 1st May, 1893, and sued for eight years' rent (and 5s. arrears) from 1st May, 1893, up to and ending the 1st May, 1901.

There was no evidence that the defendant assented to the aforesaid, or in fact any particular, appropriation of the said payment of the sum of £7.

The County Court Judge gave a decree for the sum claimed by the plaintiffs, the defendant not appearing at the hearing in person or by solicitor or counsel. The decree is dated the 18th October, 1904.

The defendant appealed; and the appeal was heard before me, at Belfast, for the county of Antrim, on 16th March, 1905.

The only question that arose before me was as to the application of the Statutes of Limitation. The plaintiffs contended that the lease of the 30th September, 1875, should be regarded as still subsisting, subject to modification as to the amount of the yearly rent, and that they were entitled to recover the full amount claimed as a specialty debt.

The defendant's case was that the plaintiffs were entitled to recover only four years' arrears, being six years' arrears to 1st May, 1901, less by the two years paid or lodged.

The plaintiffs also contended that if they were wrong in their submission, the payment or lodgment by the defendant of the £7 had taken the case out of the statute.

On the question of specialty debt the following cases were cited:—Bolton v. Barry (1); Bruce v. Steen (2); Sturges v. Ryan (3); O'Connor v. Smith (4); Mollan v. Kieran (5); In re Ruttledge's Estate (6); Irish Land Commission v. Magorian (7); Wilson v. Smyth (8); Glenny v. Bell (9); and on the question of appropriation: Eyre v. Coen (10); Baker v. Murphy (11); and Tweedy v. Ward (12).

If any amendment in the civil bill were necessary for the purpose of raising the question of a specialty claim, I would have made it.

The questions on which the opinion of the Court is asked are:—(1) Is the plaintiffs' demand to be regarded as recoverable under the lease of 1875, and therefore a specialty debt? (2) Is it a mere simple contract debt? (3) Assuming that the plaintiffs appropriated the payment of the £7 to the gales of rent due in May, 1893, was it competent to them to so appropriate it, having regard to the 16th section of the Land Law (Ireland) Act, 1896, and so take the case out of the Statute of Limitations?

If the first or third question be answered in the affirmative, the decree of the County Court Judge is to be affirmed with costs in the Court below, and £4 12s. costs of the appeal.

If the first and third questions be both answered in the negative,

the decree is to be reduced to £14, being four years' rent with costs in the Court below, and £13s. 6d. costs of the appeal.

James Andrews, for the plaintiffs:—

The twelve-year limit fixed by 37 & 38 Vict. c. 57, s. 1, does not apply to rent reserved by an indenture of demise: Donegan v. Neill (1); and if, as I contend, the plaintiffs' action is one on foot of a specialty debt, they are entitled to recover the full amount claimed. The fixing of a fair rent on the 28th October, 1892, did not, save as regards the amount of the annual rent, affect the provisions of the lease, which are in no wise inconsistent with the statutory conditions imposed on the holding by the 1st section of the Land Law (Ireland) Act, 1881, and the lease still remains an undetermined lease containing a covenant to pay the rent: Bruce v. Steen (2) and Knox v. Baxter (3). Sturges v. Ryan (4) does not rule the present case; the fair rent was there fixed in the name of an assignee in possession, and it was held that the fixing of a fair rent in a proceeding to which the original lessee was not a party destroyed all privity of contract between the lessor and such lessee. Section 21 of the Land Law (Ireland) Act, 1881, expressly enacts that where existing leases have expired, the lessees, if bona fide in occupation of their holdings, shall be deemed to be tenants of present ordinary tenancies from year to year at the rents, and subject to the conditions, of their leases; and by virtue of section 1 of the Land Law (Ireland) Act, 1887, the defendant, having applied in the prescribed manner, was deemed to be tenant of a present tenancy “in like manner, and subject to like conditions,” as if his lease had expired.

The decision in Bolton v. Barry (5) shows that the covenants in the lease there in question were not determined by the fixing of a fair rent. In Wilson v. Smyth (6) O'Brien, J., observed:— “As far as I can see there is nothing in the 1st section of the Act of 1887 determining the lease, which should therefore be treated as still subsisting at the new rent” The cases in

which the Courts have held that the fixing of a fair rent has not affected the liability of a tenant under a fee-farm grant to pay tithe rentcharge are all in my favour as showing that the old tenure remains: see judgment of Monroe, J., in Re Ruttledge's Estate (1). In Irish Land Commission v. Magorian (2) Kenny, J., says:— “Under the Act of 1887, section 1, the leaseholder who gets a fair rent fixed does not, in my opinion, thereby annul his lease for all purposes.”

[He also referred to: Glenny v. Bell (3); O'Connor v. Smith (4); Mollan v. Kieran (5); Cope v. Gabbett (6); and Irish Land Commission v. Brown (7).]

As to appropriation, I submit that section 16 of the Act of 1896 does not itself effect an appropriation of the two years' rent paid or lodged to the last two years in respect of which rent accrued due; and that as the tenant did not specifically appropriate, the landlords had power to, and did in fact, appropriate by virtue of the creditor's common law right of appropriation: Eyre v. Coen (8), Baker v. Murphy (9), and Tweedy v. Ward (10) are all reconcilable on this basis.

T. Harrison, for the defendant:—

The plaintiffs are only entitled in this action to recover four years' arrears of rent, that is, six years' arrears to 1st May, 1901, less by the two years' rent paid by the defendant under section 16 of the Land Law (Ireland) Act, 1896. In order to recover more than six years' arrears of rent, the action must be one brought under an indenture of demise or an actual specialty covenant. There must be a specific sealed agreement. Here the lease of 30th September, 1875, if not absolutely at an end for all purposes, was, as between the parties in this action, at least, in...