Cope and Others v Gabbett

• Jurisdiction: Ireland
• Judgment Date: 08 February 1904
• Date: 08 February 1904
• Docket Number: (1902. No. 15,564.)
• Court: Court of Appeal (Ireland)

Cope and Others

and

Gabbett(1)

K. B. Div.

Appeal.

(1902. No. 15,564.)

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.

1904.

Landlord and tenant — Land Law (Ireland) Act, 1881 — Statutory term — Present tenancy — Lease created between passing of the Land Act, 1881, and the 1st January, 1883 — Contracting out — Ejectment on the termination of the lease — 44 & 45 Vict. c. 49, ss. 4, 5, 8, 20, 22, and 57.

The defendant was tenant from year to year to the plaintiff of certain lands at the date of the passing of the Act of 1881. Prior to 1st January, 1883, the defendant took a lease from the plaintiff of these lands for a term of twenty-one years, from 21st November, 1881. The lease contained a covenant by the lessee, contracting himself out of the provisions of the Act of 1881. In 1896 the defendant took proceedings to have a fair rent of his holding fixed; the landlord contended the lands were demesne lands, and opposed the application; the Sub-Commission fixed a fair rent; the landlord appealed, on the ground that the lands were demesne. It transpired that the aggregate of the tenant's holdings were valued at above £150, but the Land Commission refused to allow the landlord to amend the notice of appeal so as to raise the question on the contracting out clause, and fixed a fair rent. On the expiration of the lease the landlord instituted an action to recover possession of the lands:—

Held, by the Court of Appeal (affirming the decision of the King's Bench Division, Lord O'Brien, L.C.J., and Madden, J.; diss. Gibson, J.), that the order fixing a fair rent of the holding did not prevent the landlord recovering possession of the premises on the expiration of the lease.

Action of ejectment on the title to recover the lands of New Garden in the County of Limerick, containing 61a. 1r. 31p. Irish Plantation Measure. At the date of the passing of the Land Law (Ireland) Act, 1881, Richard Joseph Gabbett, deceased, was in possession of the lands as tenant from year to year, under an agreement dated the 1st January, 1868, at the yearly rent of £193, and continued in possession under this tenancy until the 30th May, 1882, when, by lease of that date, the predecessors in title of the plaintiffs demised the lands to him from the 1st November, 1881, for the term of twenty-one years, at the yearly rent of £168 19s. 6d. The lease contained a covenant by the lessee not to make a claim for any benefit to which he might be entitled under the Land Law (Ireland) Act, 1881, and to yield up the premises to the lessor at the end of the term. The aggregate valuation of the holdings held by the lessee being over £150, the lessee was under the provisions of section 22 of the Land Law (Ireland) Act, 1881, bound by the contracting out clause. The lessee having, on the 31st October, 1896, served an originating notice of an application to the Land Commission for an order fixing a fair rent of the holding, the Land Commission adjudicated thereon on the 4th May, 1900, fixing a fair rent at £125. The application was opposed by the landlord on the ground the lands were demesne, but the clause whereby the lessee contracted himself out of the benefit of the provisions of the Land Act, 1881, was not relied on by the lessor at the hearing of the fair rent application before the Sub-Commission, nor was it stated as one of the grounds of appeal in the notice of appeal which the landlord brought from the decision of the Sub-Commission to the Land Commission; and at the re-hearing before the Land Commission, liberty to appeal on this ground was refused, and a fair rent was fixed. The title of the lessors under the lease of the 13th May, 1882, became vested in the plaintiffs. Richard Joseph Gabbett died on the 3rd November, 1896, and the defendant, who was his widow, remained in possession of the lands. The lease expired on the 1st November, 1902, and thereupon the plaintiffs, as owners in fee, and as entitled to the reversion expectant on its determination, demanded possession from the defendant, who refused to give up possession. These ejectment proceedings were then instituted.

The case was tried before Mr. Justice Barton and a special jury at the Limerick Summer Assizes of 1903, whereupon the defendant, who pleaded possession, relied upon the order of the Land Commission fixing a fair rent during the currency of the lease, and upon the definition of “present tenancy” in section 57 of the Land Act, 1881, which included a tenancy created before the 1st January, 1883, in a holding in which a tenancy was subsisting at the time of the passing of the Act. It was agreed on both sides that there was no question of fact for the jury, and inasmuch as both plaintiffs' and defendant's counsel intimated that whatever direction the learned Judge might give, the case would be taken to the Divisional Court by the unsuccessful party, the learned Judge without forming or expressing any definite opinion on the questions raised directed a verdict for the defendant, as being the party in possession, with a stay of execution to enable the plaintiffs to move to have the verdict changed, if so advised.

The plaintiffs now moved that the verdict and judgment entered for the defendant be set aside, and that judgment for possession of the lands be entered for them, or in the alternative for a new trial.

Conner, K.C. (with him Wakely, K.C., and W. G. Jefferson), for the plaintiffs:—

The plaintiffs, as owners in fee, are entitled to possession on the expiration of the lease. There is nothing in any of the Land Acts giving any greater degree of permanence than the term granted by it to such a lease as the present: Peyton v. Gilmartin (1); Allen v. Derby (2); and particularly the judgment of Holmes, J., in Peyton v. Gilmartin (1). Sections 4 and 8 of the Land Act, 1881, clearly recognise that the fair rent is only to last so long as the tenancy, whatever it may be, shall continue to subsist. What tenancy can be said to be subsisting here? The defendant is not assisted by section 20 of the Land Act of 1881 relating to the determination of present tenancies, because that section clearly affords no defence where the plaintiff in the ejectment is entitled to possession: Haren v. Archdale (3). In any event,

the defendant in this case, having full power to do so, contracted himself out of any right to occupy the lands after the termination of the subsisting lease. It cannot be contended that the alteration of the rent in any way affected the expiration of the term, and there is no objection to a tenant contracting himself out of some of the provisions of the Land Acts, and not of others: Ronaldson v. La Touche (1), and Ferguson v. Bradstreet (2). No estoppel by reason of the fair rent order has been pleaded; such an estoppel could not be pleaded. [He also referred to Conroy v. The Marquis of Drogheda (3), Torrens v. Cooke (4), and The Irish Land Commission v. Magorian (5).]

Redmond Barry, K.C., and A. M. Sullivan (with them R. F. Holmes), for the defendant:—

The words “present tenancy” in section 8 (3) of the Land Act, 1881, must mean judicial tenancy, which is protected by the absolute prohibition against disturbance in the opening words of section 5. “If it so long continue” means unless determined under sections 5 or 20. All present tenancies are levelled to the same interest by the definition of present tenancy in section 57. At the time of the passing of the Land Act, 1881, there were current thousands of notices to quit, expiring in September or November, 1881. It was to protect tenants under notice to quit from the acceptance of unfair new lettings, that by section 57 all new agreements between landlord and tenant from the passing of the Act to 1883 were practically prohibited. There is no express prohibition against serving notice to quit on judicial tenants, and if the statutory term is dependent on the continuance of the old present tenancy, it might still be determined by notice to quit. With regard to leasehold tenancies created between 1881 and 1883, the whole policy of the 57th section would be defeated by leases for two years made in that interval, for the tenant could be immediately ejected unless the fixing of the fair rent changed the character of the tenancy. Section 13 shows that by fixing a fair

rent proceedings by notice to quit are impliedly inapplicable to the new tenancy.

[They also referred to Magner v. Hawkes (1); Sturges v. Ryan (2); Kearns v. Oliver (3); M'Evoy v. M'Evoy (4); Reg. v. The Justices of Cork (5); Boyd v. Phelan (6); Hodges v. Clarke (7); Townshend v. Cotter (8).]

Wakely, K. C., in reply.

Cur. adv. vult.

Redmond Barry, K.C., and A. M. Sullivan (with them R. F. Holmes), for the appellant.

Conner, K.C., and Wakely, K.C. (with them Jefferson), for the respondent.

Madden, J.:—

At the time of the passing of the Land Law Act of 1881, the defendant's predecessor in title was in possession of the lands with which the present action of ejectment is conversant as tenant from year to year, and as such was possessed of all the rights of a present tenant under that statute. On the 30th of May, 1882, he accepted a lease of the same lands for the term of twenty-one years from the 1st of November, 1881, which operated to effect a surrender by operation of law of the then existing yearly tenancy. If the case were governed by the common law, and not by the provisions of the Act of 1881, the plaintiff would have been clearly entitled to recover possession on the expiration of the substituted lease on the 1st of November, 1902, and the question for our decision is, whether the defendant's predecessor by virtue of his position as a present tenant, and of the fair rent order, to which I shall presently refer, acquired a more extended term in his holding.

The answer to this question depends on the effect which is to be...