Clark v Taylor

• Jurisdiction: Ireland
• Judge: V.-C.
• Judgment Date: 18 April 1899
• Court: Court of Appeal (Ireland)
• Docket Number: (1899. No. 15.)
• Date: 18 April 1899

CLARK

and

TAYLOR

(1899. No. 15.)

Chancery Division

Appeal.

Landlord and tenant —— Notice by tenant of intention to sell tenancy — Election by landlord to purchase — Abstract of title of tenant —

Clark, Tenant; Taylor, LandlordIR [1898] 2 I. R. 586.

Davidson's Contract 31 L. R. I. 122.

Farrelly v. Waller 28 L. R. I. 122.

Fisher v. CoanIR [1894] 1 I. R. 179.

In Re Priestley and Davidson's Contract 31 L. R. I. 122.

Mullan v. TraillIR [1898] 2 I. R. 378.

Sweeny v. SweenyUNKIR I. R. 10 C. L. 375.

VOL. I.] CHANCERY DIVISION. 449 CLARK v. TAYLOR. (1899. No. 15.) V.- C. 1899. Feb. 4, 15. March 21. Landlord and tenant—Land Law Acts, 1881-1896—Notice by tenant of 4111!1V18. intention to sell tenancy—Election by landlord to purchase—Abstract of title of tenant—Land Law (Ireland) Act, 1881 (44 4 45 Viet. c. 49), s. 1. Where, under section 1 of the Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), a tenant gives notice to his landlord of his intention to sell his tenancy, and the landlord elects to purchase the same : Held, by the Court of Appeal, reversing the decision of the Vice-Chancellor, that the landlord is entitled to call upon the tenant to furnish an abstract and to deduce title to the holding. SUMMONS under the Vendor and Purchaser Act, 1874 (37 cC 38 Vict. c. 78). The plaintiffs, John Clark and Rev. Hugh Farrelly, were executors and trustees of Jane E. Fulham, deceased, and in the month of April, 1897, they served an originating notice of an application to the Land Commission to fix a fair rent for certain lands known as Trubly and Bective, held by them as tenants under the defendant Captain Taylor. In the said notice the tenants were described as executors and trustees of Jane E. Fulham. The defendant was represented on the hearing of the application, and by order made in the month of October, 1897, the fair rent was fixed at £260 5s. In December, 1897, the plaintiffs served notice of their inten tion to sell their tenancy, and the defendant thereupon served notice (Form No. 2, Land Commission Rules, January 2, 1897) of application to the Land Commission to ascertain the true value thereof : see Clark, Tenant ; Taylor, Landlord (1). On the 7th October, 1898, a Sub-Commission fixed the true value of the tenancy at the sum of £2072. (1) [1898] 2 I. R. 586. 450 THE IRISH REPORTS. [1899. V.-C. Clark subsequently furnished the defendant's solicitor with a t,99. copy of the will of Jane E. Fulham, and asked for draft assign- CLAIM ment for approval. The defendant's solicitor thereupon called for v. Tel LOR, an abstract of the tenants' title ; Clark refused to furnish such abstract. This was an application by the plaintiffs for a declaration that the defendant was not entitled to require the plaintiffs to show title or deliver an abstract of title. .71Tiles Kehoe, Q. C., for the plaintiffs : A landlord exercising his right of pre-emption under the 1st section of the Act of 1881 acquires the entire interest in the tenancy, though the tenant may not be the absolute owner thereof. Even, if he does not, he is not entitled to obtain more than the tenant has to give. A tenant selling in the ordinary way could protect himself by conditions with respect to any defect of title; but in such a case as the present, the sale is a compulsory sale, and he would have no way of doing so. The landlord knows from his own books who his tenant is. The results would be most serious if a landlord exercising his right of pre-emption under the statute were to be entitled to require a 40-years' tide including searches : the expense of making such title would in most cases be out of all proportion to the purchase-money. But the tenant need not be absolute owner to give the landlord a good title to the tenancy. As the entire reversion is bound by an order fixing a fair rent made on a tenant's originating notice served only on the then landlord, so a landlord exercising his right of pre-emption need not have a conveyance from all the persons interested in the tenancy ; he need only deal with the person at the time occupying the position of tenant. Section 1 of the Act provides that " the tenant for the time being " may sell " his tenancy " : sub-section 2 directs that the tenant shall give notice of his intention to sell " his tenancy " : sub-section 3 enables the landlord to purchase " the tenancy." See further, section 57, as to the meaning of the words " tenant " and " landlord " in the Act. Accordingly the exercise by the landlord for the time being of the right of pre-emption from the tenant for the time being binds the TOL. I.] CHANCERY DIVISION. 451 tenancy and all persons interested in it. See Farrelly v. Waller (1) V.-C. wand the judgments iu that case of Palles, C.B., and Fitz Gib- 1809. bon, L.J. How far is the right contended for by the landlord to CLARK r. be extended ? Is it to apply to the analogous case dealt with by TAYLOR. the second proviso in section 21—the Court may authorise the landlord to resume the holding in the manner and on the terms provided by the fifth section with respect to resumption—or to the case provided for by the latter section which gives power to the Court in certain cases to authorise resumption during the tenancy. If the landlord's contention be right the existence of charges which the tenant could not clear off would effectually prevent the landlord acquiring the tenancy ; such charges might be frauduÂlently created to prevent his doing so, and the right of pre-emption would be defeated. The entire scheme of the Act is that the landÂlord and the tenant for the time being may deal with one another as if they were absolute owners of the reversion and tenancy respectively ; see ex. yr. sections 10, 11, 22. If a limited owner of a tenancy served au originating notice to have a fair rent fixed, and his application was dismissed, could a subsequent owner afterÂwards succeed in a similar application ? Here the fair rent was fixed in a proceeding between the present parties as tenant and landlord respectively. Herbert Wilson, for the defendant :— The landlord is entitled to get a good title like any other purÂchaser. A tenant selling to a purchaser other than his landlord is bound to deliver an abstract and show title in the ordinary way : In re Priestley and Davidson' s Contract (2). There is no difference in principle between that case and the present, where the purchaser is the landlord. The entire argument on the other side is based on Farrelly v. Waller (1), but the question there—so far as it affects the present case—was whether the existence of equitable interests created by the tenant precluded the landlord from dealing with him as vendor, and compelled the landlord to deal with the owners -of the equitable interests. The Court of...