Dempsey v Ward

• Jurisdiction: Ireland
• Judgment Date: 21 March 1899
• Date: 21 March 1899
• Court: Court of Appeal (Ireland)

DEMPSEY

and

WARD

Appeal.

Graft — Over-holding tenant — Expiration of lease — Action to recover possession of land for non-payment of rent — Period of redemption expired — Receipt of money by evicted tenant on quitting the holding — Landlord and tenant-Judgment for possession — Non-joinder of party as plaintiff — Estoppel.

Doe v. ChaplinENR 3 Taunt. 120.

Doe v. PearsonENR 6 East, 172.

Keech v. Sandford 1 Wh. & Tud. L. C. 48.

Kelly v. Kelly I. R. 8 Eq. 403.

Leigh v. ShepherdENR 2 Brod. & Bing. 465.

M' Sheffry v. DohertyIR [1897] 2 I. R. 191.

M'Cracken v. M' Clelland L R. 11 Eq. 172.

Molony v. MolonyIR [1894] 2 I. R. 1.

O'Brien v. EganUNK 5 L. R. Ir. 633.

VoL. I.] CHANCERY DIVISION. 463 I am of opinion, therefore, that the tenant must furnish an Appeal. 899 abstract of title ; but I do not anticipate questions, glanced at 1 . during the argument, which if they arise at all can only arise CLARK V. upon or after the investigation of title. TAYLOR. As, however, we have heard so much on the subject of expense, Holmes, L.J. I may be permitted to say that some requisitions which would be usual and reasonable where the purchaser is a stranger, would be unreasonable where he is the landlord. Indeed, the view presented on behalf of the tenant of the costs of deducing title seems to me to be greatly exaggerated. Assuming that there is vested in him the tenancy free from ineumbrances, there ought to be no difficulty in his giving, at moderate cost, satisfactory evidence of this fact. Solicitor for the plaintiff : Clarke. Solicitor for the defendant : Ormsby. G. Y. D. DEMPSEY v. WARD (1). Appeal. 1899. Graft—Over-holding tenant—Expiration of lease—Action to recover posses- March 20,21. Sion of land for non-payment of rent—Period of redemption expired—Receipt of money by evicted tenant on quitting the holding—Landlord and tenant—Judgment for possession—Non-joinder of party as plaintiff—Estoppel. D., the lessee of a farm held under a lease for three lives (of which D. was the survivor) and an expired term of years, died in 1876 intestate, leaving a widow and nine children. After his death his widow remained in possesÂsion, and was accepted by the landlord as tenant from year to year of the farm, at the rent of £250. The farm was subject to a mortgage created by D. After the widow had been in possession of the farm for some years the rent was in arrear, and in April, 1886, an action to recover possession for non-payment of rent was commenced by A. as landlord, there being then two and a half years rent due. On the 3rd May, 1886, Mrs. D. gave a consent for judgment, and the writ of possession was executed on the 21st May. (1) Before LORD ASILBOURNB, C., and Fin GIBBON, and HOLMES, L.M. 2 M 2 464 THE IRISH REPORTS, [1899. .Appeal. B., a neighbouring farmer, agreed to give the landlord £400 for the farm. On 1899. the 16th December, 1886, an interview took place at the office of the landlord's DEMPSEY solicitor between Mrs. D. and B., at which it was agreed that B. should pay v. to the landlord £400, out of which Mrs. D. was to receive £230. On the WARD. 15th January, 1887, an agreement between the landlord and B. was filed pursuant to sect. 8, sub-sect. (6), of the Land Law Act, 1881, fixing the judiÂcial rent of the holding at £250. Mrs. D. remained in possession until July, 1887, when she was put out under a magistrate's order. W. H. D., one of the sons of the former tenant, who was a minor at the time of these transÂactions, brought an action against the specific legatee of B.'s interest and B.'s executors, claiming that Mrs. D.'s tenancy was a graft on the interest formerly held by her husband, and that B. having purchased her interest at (as alleged) a gross undervalue, his interest was a graft upon that of Mrs. D. :— Held (affirming the decision of the Master of the Rolls), 1, that the interest of Mrs. D. in the lands having been determined, either by the ejectment or by surrender, there could be no graft ; 2, that even if the doctrine of graft applied the action was wrongly constituted, as the mortgagee and the landÂlord should both be paid before the plaintiff could succeed ; 3, that B. bad not purchased Mrs. D.'s tenancy, but had obtained a new letting. Prior to, and at the time of, the action to recover possession, the reversion in the lands had been conveyed to two persons, A. and B., on trust to collect the rents and manage the lands, one of whom only was plaintiff in that action : Held that, no objection having been taken to the non joinder of the second reversioner in the action to recover possession, the judgment in that action was not void ; and that at all events such an objection could not be relied on by the plaintiff to sustain the present action. James Dempsey was prior to his death entitled to the lands of Killegland, in the county of Meath, comprising 192 acres, held under lease for lives and for a term of years. The term of years had expired long prior to 1876, and the last surviving life was that of James Dempsey the lessee. He died in 1876 intestate, leaving a widow, Mary Anne Dempsey, and nine children, all of whom were minors, and of whom William Henry Dempsey, the plaintiff was then seven years old. After the death of James Dempsey, his widow continued in possession, and was accepted as tenant of the lands at the rent of £250 per annum by the landÂlord Mark Aungier ; but she did not obtain any grant of adminÂistration to her husband. There was a mortgage on the lands executed by James Dempsey to Baron J. Cohen for £400. In 1882 Mark Aungier went to America, intending to remain some time ; and before leaving Ireland he executed a deed dated VoL. I.] CHANCERY DIVISION. 465 the 13th April, 1882, whereby he conveyed the estate to his Appeal. brother Charles P. Aungier and John Aspinall upon trust to 1899. collect the rents, and to pay the interest on the mortgages and DEMPSEY other outgoings, and the balance of the rents to himself. WARD. After being in possession of the farm for some years Mrs. Dempsey fell into arrear with the rent ; and in April, 1886, a writ of ejectment for non-payment of rent was issued by Charles P. Aungier as landlord against Mrs. Dempsey. On the 3rd May, 1886, Mrs. Dempsey gave a consent for judgment, and the landÂlord executed the kabere on the 21st May, there being due at the time two and a-half years' rent (amounting to the sum of £625). On the 16th December, 1886, an interview took place at the office of Mr. Davoren, the solicitor for Charles P. Aungier, the landlord, at which it was agreed that one William Bobbett was to be accepted as tenant by the landlord, to whom he was to pay £400 for the tenancy, and the landlord agreed to give Mrs. Dempsey £230 out of that amount. At that time Mrs. Dempsey owed another half-year's rent, making altogether £750. Mrs. Dempsey remained in possession for seven mouths after this arrangement ; and in the month of July, 1887, she was put out, and possession was taken by Bobbett under a magistrate's order. The plaintiff averred in the statement of claim that this transaction amounted to a sale for £400 by Mrs. Dempsey to Bobbett ; and he stated that Mrs. Dempsey had not any indepenÂdent advice on the occasion of the sale, and that the same solicitor acted for both Mrs. Dempsey and Bobbett ; also that such sale was at a gross under-value. On the 15th January, 1887, an agreement between Mark Aungier and William Bobbett was made and filed pursuant to sect. 8, sub-sect. 6, of the Land Law Act, 1881, fixing the judiÂcial rent of the holding at £250. At that time a letter was written by the secretary of the Land Commission to Davoren as solicitor for the landlord, asking what the rent of the holding had been, and in answer a letter was written by Davoren dated the 27th January, 1887, as follows:— " In reply to your inquiry, the amount of Mr. Bobbett's rent is that paid by the former tenant, Mrs. Dempsey, whose goodwill the former purchased." 466 THE IRISH REPORTS. [1899. Appeal. In January, 1888, William Bobbett died, having made his 18(39. will and three codicils, of which probate was granted to the executors, DEMPSEY Hubert C. West and William Bobbett, jun. By the third codicil v. WARD. he bequeathed the farm in question to his daughter Margaret Mary Ward, who had since been in possession of the farm. The plaintiff, who was one of the sons of James Dempsey, left Ireland in 1887 and went to America, where he remained until November, 1896, when he returned to Ireland, but did not become aware of the nature of these transactions until the month of April, 1897. He obtained letters of administration to his father on the 23rd August, 1897, and brought the present action against Mrs. Ward and H. C. West and William Bobbett, jun., as...