Cummins, Lessee; St. Leger and Others, Lessors

• Jurisdiction: Ireland
• Judgment Date: 11 March 1895
• Date: 11 March 1895
• Court: Court of Appeal (Ireland)

Cummins

Lessee

and

St. Leger and Others

Lessors (1).

Appeal.

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1896.

Tenant of an undivided share of lands — “Parcel of land” — “Holding” — Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), s. 57 — Redemption of Rent Act (54 & 55 Vict. c. 57), s. 1.

The lessee of an undivided share of land is not the occupier of a “holding” within the meaning of the Redemption of Rent (Ireland) Act, 1891. Diss. Walker, C.

Decision of the Irish Land Commission reversed.

Case Stated by the Irish Land Commission.

By lease dated the 15th May, 1710, Thomas Broderick, Alan Broderick, and St. John Broderick demised to Richard Bettesworth the lands of Ballydulea, in the county of Cork, containing 145a. 1r. 38p. for the term of 999 years, at a yearly rent of £40.

The lessee's interest became vested, as to eight undivided ninth shares thereof, in Thomas Mannix Cummins, and as to the remaining one undivided ninth in the Rev. Wm. Henry Flemyng, as tenants in common.

By lease dated the 2nd April, 1878, the Rev. Wm. Henry Flemyng demised his one undivided ninth share to Thomas Mannix Cummins for the term of 830 years, at the yearly rent of £40.

The interest of the Rev. Wm. Henry Flemyng in the reversion became vested in Richard F. St. Leger, W. H. Maunsell, H. M. Maunsell, and H. H. F. Maunsell.

Since 1878 Thomas Mannix Cummins was in bona fide occupation of the whole of the premises demised by the lease of the 15th May, 1710.

On the 24th February, 1892, T. M. Cummins served an originating notice on Richard F. St. Leger, W. H. Maunsell, H. M. Maunsell, and H. H. F. Maunsell, as lessors, under the Redemption of Rent Act, 1891, to redeem the rent, or, in the

alternative, to have a fair rent fixed, describing the lands as one undivided ninth of 145a. 1r. 38p. of the lands of Ballydulea, in the county of Cork, which were held under a lease dated the 2nd April, 1878, from the Rev. W. H. Flemyng to the said T. M. Cummins for the term of 830 years, at the rent of £40.

The lessors not having given the prescribed consent to the redemption of the said rent, the application to fix a fair rent came on to be heard before a Sub-Commission, and an order was made on the 25th July, 1893, fixing the fair rent at £22 2s. 6d. On appeal to the Land Commission this ruling was affirmed by order dated the 9th June, 1894.

F. Pollock Hamilton, for the lessors:—

The question turns on the meaning of “holding” in sect. 57 of the Land Law (Ireland) Act, 1881, where the definition “parcel of land” is introduced for the first time. That definition is different from the definition of “holding” in sect. 71 of the Act of 1870, and must signify a specified and defined portion or part, of which the area and boundary can be ascertained. Again, it must be exclusively occupied to bring it within the scope of the Land Act, otherwise numerous inconsistencies would arise. How could a tenant in such a case exercise his right of sale under sect. 1, or the landlord his right of pre-emption? Or how could the latter apply to have the specified value of the holding fixed? The jurisdiction of the Land Commission under the Act of 1881 being entirely new, must be exercised in strict conformity with the statutes which created it: Hudson v. Tooth (1). The Land Commission cannot supply a casus omissus, or apply the doctrine of cy près: Re Vahy (2). Moreover, from the report of the Sub-Commissioners, it appears that they treated the whole nine-ninths as the holding, fixed a fair rent on that area, and divided the result by nine. This they had no jurisdiction to do. This point has been already mooted in Jackson v. M'Master (3), but was not decided.

Ronan, Q.C., for Cummins:—

This is a tenancy in a holding, and the tenant is entitled to have

a fair rent fixed. A tenant in common can serve a notice to quit: Morony v. Morony (1); he can bring an ejectment, and where a tenant in common makes a lease to another tenant in common he can bring an action of waste. Under sect. 12 of 3 & 4 Wm. 4, c. 27, the possession of one tenant in common is not the possession of the others for the purposes of the Statute of Limitations. The interest of the lessee in this share is therefore perfectly distinct from the others. Moreover, in conveyancing, “the parcels” is the technical term employed to describe the land which passes, whether it is an undivided interest or not. If the landlord is right in his contention the tenant cannot sell his interest — a right given to him by sect. 1. If this be so, it must follow that his right to compensation for improvements under the Act of 1870 would be swept away; but there is nothing in the Act of 1870 to exclude the tenant of an undivided moiety from compensation. The definition section of the Act of 1881 provides that words which are not defined in the Act of 1881, and which are defined in the Act of 1870, shall have the same meaning as in the latter, unless there is something repugnant, and the two Acts shall be construed together. Putting the definitions together, the tenancy of a tenant from year to year is an interest in a holding, and any person who is a tenant under the Act of 1870 must be a tenant under the Act of 1881. Section 17 of the Act of 1881 provides for rights of common, which the tenant may exercise along with others, such as pasture and turbary.

F. Pollock Hamilton, for the lessors:—

Ronan, Q.C., for Cummins:—

Walker, C.:—

By lease, dated the 15th May, 1710, the lands of Ballydulea, in the county of Cork, containing 145a. 1r. 38p. were demised for a term of 999 years to a lessee therein named. The interest in this lease became vested, as to eight-ninths, in Thomas Mannix Cummins, and as to one-ninth in the Rev. Wm. Henry Flemyng, as tenants in common.

By a lease dated the 2nd April, 1878, the Rev. Wm. Henry Flemyng demised to the said Thomas Mannix Cummins, the owner of the said eight-ninths, the one undivided ninth of the said lands

of Ballydulea, to hold for a term of 830 years at the yearly rent of £40, and thus, till the year 2700 or so, he became lessee of the one-ninth, and in fact is in occupation of the whole nine-ninths, as to the eight-ninths under the lease of 1710, and as to the one-ninth under the lease of the 2nd April, 1878; and he has served an originating notice under the Redemption of Rent Act to redeem his rent of £40, or, in the alternative, to have a fair rent fixed.

The case stated raises the question whether the Land Law Acts apply, so far, at all events, as regards the fair rent fixing provisions, to the tenancy of an undivided share in lands, not in their character excepted from the Acts. Inasmuch as my three colleagues are of opinion that the Act of 1881 does not apply to such a case, my opinion that the case is within the Act is of no practical importance, and is probably erroneous; but I shall shortly state the grounds on which that opinion rests.

For the purpose of the question, I think the case may be treated as if there had been a lease of this one-ninth, which had expired within the meaning of sect. 21 of the Act of 1881, or as if Mr. Flemyng had made a letting from year to year to a third person.

The difficulty in the case arises on the definition of the word “holding” in the Act of 1881, and the practical difficulty of applying the fair rent provisions to an undivided interest.

The first consideration I think is whether the case was within the benefits conferred on the tenant by the Act of 1870. I do not think the Act of 1860 helps. “Lands” in it include incorporeal hereditaments. The word “holding” runs through the sections of the Act of 1870. Coming to sect. 3, the term is used in that section, which awards compensation to tenants in the absence of custom. If there was a tenant from year to year of an undivided interest in lands, and he was disturbed by a notice to quit and subsequent ejectment, could he claim compensation for disturbance? As to its...