Chute v Busteed

• Jurisdiction: Ireland
• Judgment Date: 29 June 1863
• Date: 29 June 1863
• Court: Exchequer (Ireland)

Exchequer.

CHUTE

and

BUSTEED.

Black v. Davis Batty, 88.

Lessee Bond v. The Trustees of Sterne's Chariies Batty, 87.

Lessee Orr v. Stevenson 5 Ir. Law Rep. 2.

Cowan v. Chambers Hayes's Rep. 546.

Pluck v. Digges 2 D. & C. 180.

Lessee Fawcett v. Hall Al. & N. 248.

Lessee Porter v. French 9 Ir. Law Rep. 541.

In re Quin 8 Ir. Chan. Rep. 579.

Moore v. DurdenENR 2 Exch. 22.

Towler v. ChattertonENR 6 Bing. 258.

Moore v. PhillipsENR 7 M. & W. 536.

Thompson v. Lack 3 Com. B. 540.

Marsh v. Higgins 19 Law Jour., C.P., 297; S. C., 9 Com. B. 551.

Cornill v. Hudson 8 Ell. & B. 429.

Williams v. SmithENRENR 2 Hurl. & Nor. 443; S. C., affirmed in Exch. Cham., 4 Hurl. & Nor. 559.

Derisley v. 4 Term Rep. 75.

Lexmore v. RobsonENR 1 B. & Ald. 584.

M'Areavy v. HannanIR 13 Ir. Com. Law Rep. 70.

COMMON LAW REPORTS. 115 CHUTE v. BUSTEED. (Exchequer) T. T. 1862. Exchequer. June 3, 4. Nov. 5, 6, 7, 8, 18. T. T. 1863. June 29. Tun case came before the Court upon a demurrer to the summons To a summons and plaint, by and plaint, which stated that a fee-farm grant of mill premises, at an assignee of the original the rent therein mentioned, containing a covenant to keep and grantor of a fee-farm grant, deliver up the same in good repair, had been granted, in the against a de- Pendant, as as- Y 1826, by Pierce Chute to John M'Carthy, his heirs and signee of the assigns, for ever. The summons and plaint then stated, by order of original gran. tee, for a the Court, that prior to the breach, and prior to the 23 & 24 Vic., - breach of co venant, com- c. 154, the interest of the grantor had vested in the plaintiff, and mitted prior to the 1st Ja. that of M'Carthy in the defendant. The mill having been burned nuary 1861, the defendant down, the• plaintiff now sued the defendant for breach of the cove- demurred. Held, that fee- nant to keep in repair. farm grants -First n withi The defendant demurred to the summons and plaint , the come scope of the Landlord because no privity of contract was thereby shown between the and Tenant plaintiff and defendant, and because it did not thereby appear - Law Amend land) m en Act ((Ire-that the defendant was liable on the contracts or covenants entered and 24 Vic., into by John M'Carthy ; secondly, because it did not sufficiently c. 154). And (PIGOT, C.B., appear that the plaintiff was entitled to sue on the contracts or dissentience) that fee-farm covenants entered into with Pierce Chute ; and that it did not grants, exe cuted prior to appear that the defendant was liable or accountable to the plaintiff the passing of that statute, for the breach of covenant therein mentioned. are affected by its proviÂÂsions. Robert Ferguson, in support of the demurrer.* Per PICOT, C. B.-That, Fee-farm grants do not come within the scope of the Landlord without ex pressing any opinion as to whether fee-farm grants come within the scope of the statute, the latter does not contain sufficiently clear and unequivocal indications of the intentions of the LegisÂÂlature that it should have a retrospective operation. * This case was argued upon the 3rd and 4th of June 1862, coram FITZÂÂGERALD, HUGHES, and DEASY, BB. At the close of the argument, their Lordships directed that it should be re-argued before the Fall Court. 116 COMMON LAW REPORTS. M. T. 1862. and Tenant Law Amendment Act (Ireland) 1860 (a); or, admitting; Exchequer. that they do, the sections of that statute in which allusion is made CIIIITE to fee-farm grants apply only to fee-farm grants executed subseÂÂv. BUSTEED. quent to the 1st of January 1861-i. e., the Act is not retrospective. Nov. 5. The Landlord and Tenant Act 1860 repeals all preceding statutes which referred to the relation of landlord and tenant (b), save those ' which relate to fee-farm grants, viz., the statutes of Quia Emptores, 11 Anne, c. 2, s. 7 ; 12 & 13 Vic., c. 105, ss. 20 & 22, re-enacted and extended by the 14 & 15 Vic., c. 20, s. 1 (c). But the intention of the Legislature, to exclude fee-farm grants from the operation of this Act, appears also from the preamble, which states that it is expedient to consolidate and amend the laws relating to "landlord and tenant" in Ireland. Landlord and tenant are the persons named in the Act. No new meaning is to be attached to the words, unless it be expressly defined : Black v. Davis (d). It was decided that the old ejectment statutes did not apply to fee-farm grants, because the relation of landlord and tenant was not created thereby : Lessee Bond v. The Trustees of Sterne's Charities (e); Lessee Orr v. Stevenson (f); Cowan v. Chambers (g). But the Act of 1860 goes on to define, in the 3rd section, upon what the relation of landlord and tenant shall for the future be deemed to be founded-i. e., " upon the express or implied contract of the parÂÂties ; " and by abolishing the necessity of a reversi6n, and thus annulling Pluck v. Digges (h), Lessee Fawcett v. Hall (i), Lessee Porter v. French (k), points to the class of demises to which it is applicable-viz., all demises save those of the fee. The words " freehold estate," in the 4th section, and " any lease or other contract of tenancy, whether of freehold or for years," in the 45th section, do not include fee-farm grants. " Freehold" is there used in contradistinction to " leasehold," and refers, not to grants of the fee, but to " estates held for life or for some uncertain interest," &c. (a) 23 & 24 Vic., c. 154. (c) Schedule B to Act. (e) Batty, 87. (g) Hayes's Rep. 546. (1) Al. & N. 248. (b) Sec. 104. (d) Batty, 88. (f) 5 Ir. Law Rep. 2. (h) 2 D. & C. 180. (k) 9 Ir. Law Rep. 541. COMMON LAW REPORTS. 117 Watkins on Conveyancing, p. 65 (Coote's ed.); Shelford on Real Property, p. 110. Fee-farm grants cannot be included under the words " contract of tenancy," in the 9th section, which is a re-enactment of the old law ; as by it, upon the death of the tenant, they would pass to his personal representative, and not his heir. Where the Act was intended to affect fee-farm grants, they are expressly mentioned, viz., in the 25th and 52nd sections ; therefore the words " contract of tenancy" cannot be strained so as to include them. But, assuming that fee-farm grants come within the operation of the Act 1860, that statute is not retrospective, except where made so expressly-e.g., the 10th and 18th sections. A fee-farm grant cannot be included under the word " lease " in those sections ; and as regards the 10th section, which deals with covenants against alienation, it was expressly decided, in In re Quin (a), that a covenant against alienation, without license from the landlord, is repugnant to the nature of the estate created by a fee-farm grant, and therefore void. That being the state of the law prior to the 1st of January 1861, if the statute be retrospective, and the relation of landlord and tenant exist between the plaintiff and defendant, the defendant might now be liable for past breaches of a void covenant. The 3rd section must be prospective, for two reasons-first, the rule of law is that, when a statute is intended to be retrospective, it must be clearly expressed to be so ; secondly, the words " shall be " mean " in future :" Moore v. Durden (b); Towler v. Chatterton (c); Moore v. Phillips (d); Thompson v. Lack (e); Marsh v. HigÂÂgins (f); Cornill v. Hudson (g); Williams v. Smith (h). Some of the sections of the Act under discussion are prospective ; others are retrospective. The 3rd, 4th, 9th, 11th, 26th, 28th, 29th, (a) 8 Ir. Chan. Rep. 579. (b) 2 Exch. 22. (c) 6 Bing. 258. (d) 7 M. & W. 536. (e) 3 Com. B. 540. (f) 19 Law Jour., C. P., 297; S. C., 9 Com. B. 551. (g) 8 Ell. & B. 429. (h) 2 Hurl. & Nor. 443 ; S. C., affirmed in Exch. Cham., 4 Hurl. & Nor. 559. voL. 14. 16 L 118 COMMON LAW REPORTS. M. T. 1862. 31st, 32nd, 41st, 42nd, 43rd, are prospective ; the 10th, 18th, and Exchequer. 19th are retrospective. It will be contended, on the other side, CHUTE that the 12th section, which re-enacts and extends the 10 Car. 2, BUSTEED. Bess. 2, c. 4 (Irish), is retrospective ; but that section is to be read with the 3rd. The word " holden" is to be construed in it as in the 31st section ; and as that section creates a new liability, it must be prospective, by the general rule of law already referred to, since it contains no saving clause. H. P. Jellett (with whom was J. Clarke), contra. The interpretation clause of the 23 & 24 Vic., c. 154, defines a lease to 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." While the law did not conÂÂsider the feudal relation of landlord and tenant to exist between the grantor and the grantee in a fee-farm grant, it was always assumed that a contract of tenancy existed between them. The interpretation clause defines a "landlord" to be "the person for the time being " entitled in possession to the estate or interest of the original landÂÂ" lord under any lease or other contract of tenancy," &c. Fee-farm grants must be included under the second definition, the grantor therein under the first. If the word "freehold" in the 4th section, which is a re-enactment of the Irish Statute of Frauds (7 W. 3, c. 13), includes only leases for lives and years, fee-farm grants must now be created by livery of seisin. The words "act and operation of law " in the 9th section, include the case of the death of the grantor in a fee-farm grant, for his heir becomes his assignee by act of law : Derisley v. Custance (a). Fee-farm grants must be included under the words " contract of tenancy," in the 45th, 64th, 70th and 78th sections. They must also be included under the definition of a "perpetual interest" as being greater than a lease for lives renewable for ever, which appears clear from the 25th section. The words "shall be " in the second part of the 3rd section, and " shall have " in the 12th section, are retrospective. The words "should have...