O'Connor v Foley

JudgeM. R.
Judgment Date07 December 1905
CourtCourt of Appeal (Ireland)
Docket Number(1902. No. 1137.)
Date07 December 1905

M. R.

(1902. No. 1137.)











Landlord and tenant — Assignment without consent of landlord — 7 Geo. 4, c. 29, s. 3 — Statute of Limitations, effect of — 3 & 4 Wm. 4, c, 27, s. 34 — Covenant for further assurance — Unfair transaction — Undue influence — Setting aside mortgage.

The effect of the Statute of Limitations upon the position of a person in possession of leaseholds (not an assignee) is not to transfer to him the interest of the lessee, and make him bound by the covenants in the lease, but merely to give him the right of possession during the remainder of the lease against the lessee or those claiming under him.

Tichborne v. Weir (67 L. T. (N. S.) 735) followed. Rankin v. M'Murtry (24 L. R. Ir. 290) considered.

A covenant for further assurance by a settlor in a marriage settlement, by which a lease is assigned without the consent of the lessor (contrary to the statute 7 Geo. 4, c. 29, s. 3), is not void, although the assignment of the lease is void, and can be enforced against the settlor if he becomes a “present tenant” of the lands, and so gets rid of the restraint upon alienation imposed by the statute; and an agreement by him to assign the lands to another person, though for value, will not prevail against the beneficiaries under the settlement.

Doody v. Nolan (2 L. R. Ir. 199) distinguished.

Beneficiaries under a settlement were induced by relatives, by whom they had been brought up, to sign promissory notes given by the relatives to a creditor, and under pressure of legal proceedings to assign their interest in the settled lands, which were in the possession of the relatives, to enable them to mortgage the lands to the creditor.

The beneficiaries were only just of age, ignorant of their rights, and without any effective legal advice:—

Held, that the transaction was procured by undue influence, and was unfair, and that the assignment and mortgage should be set aside.

Trial of Action.

The following statement of facts is taken from the judgment of the Master of the Rolls:—

The lands of Ardmonick and Knockea, in the county of the city of Limerick, which are the subject of the present action, were demised by lease of October 5th, 1827, by Edward Villiers, to John Synan, his heirs and assigns, to hold to him, his heirs, executors, and administrators, from the 30th April, 1827, for the lives of Edward Croker, eldest son of John Croker, then aged fifteen years, and John Synan, third son of the lessee, then aged about thirteen years, and George Gough, eldest son of George Gough, of Woodstown, then aged about sixteen years, and during the life of the longest liver and survivor of them, and for the term of thirty-one years, to be computed from May 1st, 1827, subject to the yearly rent of £250.

The date of this lease brings it within the statute 7 Geo. 4, c. 29, s. 3, which provided that where lands are held by virtue of a lease executed after June 1st, 1826, not containing a clause expressly authorizing the lessee to assign and sublet, it shall not be lawful for such lessee, his executors, administrators, or assigns, to assign or sublet, without the express consent of the lessor, testified, where the assignment or subletting is by deed or written instrument, by his written indorsement on such deed or instrument … and every deed or instrument whereby such assignment or subletting shall be made without such consent … shall be and be deemed wholly void and invalid to all intents and purposes whatsoever.

On January 25th, 1855, by endorsement on this lease, Edward John Synan, the assignee of the estate and interest of John Synan, the lessee, assigned it without the consent of the lessor to Hugh O'Connor, in consideration of the sum of £300.

By a settlement of September 30th, 1876, executed on the occasion of the marriage of Hugh Henry O'Connor (son of Hugh O'Connor) and Mary Fennelly, after reciting the said lease, and that the premises became subsequently legally vested in Edward John Synan, son of the said John Synan (the lessee), and the assignment from Edward John Synan to Hugh O'Connor, Hugh O'Connor conveyed to Robert Frewen and Daniel Quilty the said lands of Ardmonick and Knockea (amongst other lands and premises), to hold upon trust for himself for life, then for Hugh Henry O'Connor for life, then for Mary Fennelly for life, and after the death of the survivor, in trust for the children of the marriage, in such shares as the survivor of them (Hugh Henry O'Connor and Mary Fennelly) should by deed or will appoint, and in default of appointment, in trust for all the children in equal shares, if sons on attaining twenty-one years of age, if daughters on attaining that age, or marrying under it, with consent of their guardian. By this settlement Hugh O'Connor covenanted for title and for further assurance. The power of appointment was not exercised.

Hugh Henry O'Connor died on August 6th, 1881, leaving his wife and four children surviving. One child (Joseph) died under age on April 16th, 1895. Mary Fennelly, otherwise O'Connor, died on April 6th, 1882. Three children survived her, namely, William B. O'Connor, who was born on July 2nd, 1877; Henry O'Connor, born September 14th, 1878, and John O'Connor, born January 7th, 1880. William attained age on July 2nd, 1898; Henry on September 14th, 1899, and John on January 7th, 1901. Hugh O'Connor, the father of Henry Hugh O'Connor, survived his son, and died in 1896. In 1889 Lucy O'Connor, daughter of Hugh O'Connor, married Patrick Foley, and they resided thenceforth at Knockea with her father, Hugh O'Connor, and her three nephews, the plaintiffs, to whom she and her husband stood inloco parentis after the death of their grandfather, Hugh O'Connor. He purported to make a settlement upon her marriage with Patrick Foley. He had, in 1873, mortgaged the lands to Mary Bradshaw. In 1881 (15th August) the mortgage was transferred to Henrietta O'Connor; and in 1886 (15th August) Henrietta O'Connor, then a nun, transferred the mortgage to Lucy O'Connor, who was her sister.

The arrangement in 1888 (by agreement of September 19th) was that, in consideration of the marriage, and a sum of £300, the fortune of Patrick Foley (which was needed to clear the rent of Knockea, then under eviction), the farm, &c., was to be assigned to Patrick and Lucy Foley, subject to the landlord's assent, which was obtained in January, 1889. No actual assignment to Patrick and Lucy Foley was executed; but there was a good equitable contract for a transfer, so far as Hugh O'Connor was in a position to make one.

Meanwhile, on the 7th December, 1888, Hugh O'Connor obtained an order under the Land Law (Ireland) Acts, 1881 and 1887, fixing a fair rent of £171 15s., instead of £250, and making the holding a present tenancy.

In addition to the above, it is only necessary to state the following facts, which are referred to in the judgment:—

Patrick Foley became indebted to the defendant Fitt, an auctioneer, for advances on promissory notes, renewed from time to time, which were signed by his wife, Lucy Foley, his mother, Bridget Foley, and his brother, Daniel Foley, as sureties. The plaintiffs, who were informed of their rights under the settlement, were induced by Patrick Foley to sign the notes. Two of them were just of age; the third was a minor. In July, 1901, the liability upon the notes amounted to £942 4s. 5d., for which the defendant Fitt issued a writ against all the parties to the notes. On July 26th, 1901, an agreement was made between the Foleys, the plaintiffs, and Fitt, that the interest in the lands of Knockea and Ardmonick, occupied by Patrick Foley, should be conveyed by all parties interested, namely, Patrick Foley, and the plaintiffs, to Lucy Foley, she to give a mortgage of the lands to Fitt, in consideration of the debt due to him by the Foleys and the plaintiffs. In pursuance of this agreement, by deed of August 1st, 1901, made between Patrick Foley of the first part, the plaintiffs of the second part, and Lucy Foley of the third part, Patrick Foley assigned as beneficial owner, and the plaintiffs confirmed to Lucy Foley the said lands, and by deed of the same date, made between Lucy Foley and Fitt, Lucy Foley covenanted to pay the sum of £957 due on foot of her promissory notes, and the sum of £91 14s. 5d., due by Patrick Foley, and charged the said lands with payment of the said amounts, and covenanted to execute a legal mortgage to Fitt when required.

The plaintiffs having become aware of their rights, instituted this action on December 13, 1902, against Lucy Foley, Patrick Foley, Bridget Foley, Daniel Foley, Robert Frewen, William B. Fitt, and the Munster and Leinster Bank, and claimed—(1) To have the trusts of the settlement of September 30th, 1876, carried into execution, and an account taken of the property subject to the trusts of the said settlement. (2) That the defendants, Lucy Foley and Patrick Foley, might be declared bailiffs of the lands and stock on the said lands comprised in the said settlement, from May 29th, 1896 (the date of the death of Hugh O'Connor), for the plaintiffs, and ordered to account for the profits thereof. (3) That the agreement of June 26, 1901, and the deed of August 2nd, 1901, should be set aside and declared void, and the promissory notes held by William B. Fitt delivered up to be cancelled.

Robert Frewen was made a defendant as surviving trustee of the settlement of 1876. The Munster and Leinster Bank were made defendants in respect of a deed of charge, dated February 10, 1894, from Patrick and Lucy Foley. The Bank put in a defence, alleging, amongst other things, that an order had been made on June 23, 1902, by the Vice-Chancellor, in a suit in which the Bank were plaintiffs, and Patrick Foley and Lucy Foley defendants, declaring the said deed of...

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