Carson v Jameson

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 14 December 1907
• Court: King's Bench Division (Ireland)
• Docket Number: (1907. No. 13,510.)
• Date: 14 December 1907

Carson

and

Jameson (1).

K. B. Div.

(1907. No. 13,510.)

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.

1908.

Ecclesiastical lease — Perpetuity — Variation of rent — Irish Land Act, 1903 (3 Edw. 7, c. 37), s. 90.

Held, that the rent was not variable under the provisions of the 6 & 7 Wm. 4, c. 99, s. 2, and that the grant of 1866 could not be construed as containing a contract for variation; and, also, that B's representatives, being trustees, could not have entered into a valid contract for variation of the rent in the perpetuity grant to them of 1866 (Poirez v. Collum, [1907] 1 I. R. 7), and that B's representatives were liable for the full amount of the rent reserved in the sub-perpetuity.

Motion for final judgment.

The action was to recover £7 14s. 6d. rent alleged to be due to the plaintiff by the defendant under the provisions of a fee farm grant, dated the 22nd August, 1866, under which the defendant held certain premises at Harold's Cross, in the county of Dublin. The question at issue between the parties was the right of the defendant to vary the amount of the rent. By an indenture of lease, dated previous to 1789, the Archbishop of Dublin demised to the predecessors of William Hales Carroll the premises at Harold's Cross for a term, subject to renewal as therein

mentioned. The lease was renewed from time to time, the last renewal being made to William Hales Carroll on the 14th June, 1858, and on the 10th August, 1859, William Hales Carroll obtained a grant in perpetuity of the premises subject to the rents, covenants, and reservations mentioned in the grant. By indenture of under-lease, executed prior to 1789, portion of the premises were demised to Richard Longford for a term of years, with a covenant for perpetual renewal; and after various renewals, by a grant dated the 4th of April, 1860, made between William Hales Carroll and John Rossiter, who had acquired Richard Longford's interest, William Hales Carroll granted to John Rossiter the said portion of the premises in perpetuity, subject to the rent and covenants therein mentioned. By another and inferior sub-lease, dated the 25th January, 1789, being a renewal of a previous lease, Richard Longford demised to Alexander Smyth portion of the premises for the term, and subject to the covenants for a renewal, therein mentioned; and after various renewals, John Rossiter, in whom the lessor's interest had become vested by a grant, dated the 8th January, 1861, granted to John Henry Parker, in whom the lessee's interest had become vested, the said portion of the said premises in perpetuity, subject to the rent and covenants therein. By an indenture of lease, dated the 14th September, 1789, Alexander Smyth demised to Patrick Foley portion of the premises leased to Alexander Smyth, namely, that piece of ground in the writ mentioned, to hold to him the said Patrick Foley for a term of fourteen years from the 29th September then instant at the yearly rent of £5, and this lease contained a covenant on the part of Alexander Smyth, that “the said Alexander Smyth, his executors, administrators, and assigns, shall and will at the end of every fourteen years, to be computed from the said 29th September, inst., use his best endeavours to obtain a renewal of his present lease, term, or interest, in the premises with other holdings; and if his subsequent leases, terms, and interests in the same from time to time shall be renewed, he shall and will from time to time and at all times after obtaining such renewal and renewals execute and perfect unto the said Patrick Foley, his executors, administrators, and assigns, a new lease of the said hereby demised premises for the term of fourteen years, to commence on the 29th September and 25th March, whichever of the said days shall next precede or happen before the date of such new leases, with the like covenants for renewal as herein contained; provided the said Patrick Foley, his executors, administrators, and assigns, shall in three months next after notice in writing of the said Alexander Smyth, his executors, administrators, and assigns, having obtained a renewal, pay to him or them the sum of £1 2s. 9d. as a renewal fine, and do and shall also tender and execute a lease of the premises with, at, and under the like rents, clauses, covenants, and agreements as are herein contained, and also at and under the said proportion of such further additional yearly rents as the said Alexander Smyth, his executors, administrators, and assigns, shall be obliged to pay by such renewal or renewals, regard being had to the premises hereby demised, and to the other concerns held herewith by the said Alexander Smyth.”

It appeared from the recitals in a grant, dated the 22nd August, 1866, and made between John Henry Parker of the one part, and Henry Knox Courtney and Mary Anne Duggan of...