Dooner v Odlum

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 14 May 1914
• Court: King's Bench Division (Ireland)
• Date: 14 May 1914

Dooner

and

Odlum (1).

K. B. Div.

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.

1914.

Landlord and tenant — Rent — Fee-farm grant — Grantees holding in severalty — Joint and several covenant by grantees to pay entire rent — Liability of assignee of one of grantees — Covenant running with the land — Privity of estate.

Held, that the defendant was liable only for such proportion of the rent as was applicable to the share of the lands which had become vested in her.

Motion for judgment or a new trial.

The plaintiffs' claim was for £38 16s., being one year's rent payable out of certain lands situated in King's County, and the action was tried before Mr. Justice Dodd, without a jury, on February 13th and 24th, 1914, when the following matters were proved or admitted:—

On the 1st May, 1706, a lease for lives renewable for ever of

part of the lands of Kilcooney was made by one Philip De Lisle to one William Low. By divers mesne assignments, the lessor's interest had become vested on the 10th October, 1835, in three persons—William Speer, Charlotte Dooner, and Jane Dooner; while the lessee's interest was split up amongst James Dunne, Edward John Odlum, Catherine Odlum, Mary Anne Augusta Pilkington, John Drought, and Mary Drought.

On September 29th, 1859, the lease was converted into a fee-farm grant, under the Renewable Leasehold Conversion Act, at a rent of £75 13s. 10d. Portions of the lands were sold to the occupying tenants under the Land Purchase Acts; and, the superior rent having been apportioned and in part redeemed, there remained payable out of the unsold lands an annual rent of £38 16s. The parties to the fee-farm grant included seven grantors and nine grantees, among the latter being one Mabella Odlum. By the fee-farm grant Mabella Odlum and the other grantees covenanted for themselves, their heirs, executors, administrators, and assigns, that they “the several covenanting parties, or some or one of them, their or some or one of their heirs, executors, administrators, or assigns, shall and will from time to time, and at all times thereafter well and truly satisfy and pay to the … parties … of the first part, their heirs and assigns, the above reserved rent and every part thereof.”

The plaintiffs, William Toke Dooner and Adelaide Dooner, were the assignees of the grantors. All the estate and interest of Mabella Odlum in the lands had become vested in the defendant, Elizabeth Odlum, and she was now sued upon the covenant as assignee of Mabella Odlum for the entire rent of £38 16s. payable out of the unsold lands.

The defendant, in her evidence, stated that she had been in exclusive possession since 1877 of all that part of the lands which had been held by Mabella Odlum, and that she and her predecessors had paid for the lands only £6 9s. 4d., their share of the rent as apportioned by the grantees amongst themselves. Mabella Odlum was her husband's mother. She died in 1872. Her husband was in possession after his mother's death, and she had been in exclusive possession since her husband's death. She had the lands sub-let, and her tenants paid the rent to her.

Mr. Justice Dodd held that the rent was divisible; that there was absolutely no evidence and no presumption upon which to found an inference that the defendant held an undivided share in the lands, jointly or as tenant in common, in the ordinary sense of the term. He found that the plaintiffs were not entitled to the full sum claimed in the writ, but were entitled to £6 9s. 4d., being the sum payable by the defendant to the plaintiffs for rentcharge for a divided share of the lands in the possession of the defendant. He apportioned the rent as between the plaintiffs and the defendants upon the same basis as the grantees among themselves had apportioned it, at £6 9s. 4d. As the defendant had tendered the sum of £6 9s. 4d. before action brought, the learned judge gave judgment for the defendant with costs. He delivered the following judgment:—

A fee-farm grant made under the Renewable Leasehold Conversion Act to several persons contained a joint and several covenant on the part of the grantees to pay the entire rent reserved by the grant. As between themselves the grantees held their respective shares of the lands in severalty, each paying an apportioned part of the rent. All the estate and interest of one of the grantees in the lands subsequently became vested in the defendant. An action having been brought against the defendant as such assignee to recover the entire rent:

Dodd, J.:—

The action is brought by the assignees of a lessor against an assignee of a lessee, and is deliberately framed in covenant. The defendant does not challenge the plaintiffs’ title. Her case is that she is in possession of a divided part of the lands. She is willing to pay her proportion of the rent; but she says she is not liable to the entire rent.

It appears that a lease for lives renewable was made by one Philip De Lisle to one William Low of part of the lands of Kilcooney, in King's County, on the 1st May, 1706, at a rent therein reserved. By divers mesne assignments the lessor's interest got vested, on the 10th October, 1835, in three persons—William Speer, Charlotte Dooner, and Jane Dooner—the lessee's interest being split up among James Dunne, Edward John Odlum, Catherine Odlum, Mary Ann Augusta Pilkington (devisees of Mary Pilkington, deceased), John Drought, and Mary Drought. A renewal of the lease was then granted, and in that lease there was a covenant by the lessees, each covenanting for himself or herself, their heirs and assigns, to pay the entire rent.

On the 29th September, 1859, the lease was converted into a fee-farm grant under the Act, the rent being £75 13s. 10d. There were seven grantors, among the grantees being Mabella Odlum. There was a covenant in that grant by each of the nine grantees, Mabella Odlum being one. She covenanted for herself, her heirs and assigns, to pay the entire rent.

The grantors’ interest in that grant is now vested in the plaintiffs, and it is admitted that the entire of the interest of Mabella Odlum in the lands is now vested in the defendant.

By an order of the Irish Land Commission portion of the lands comprised in the lease and fee-farm grant have been segregated, being portion vested in Terence J. B. Dunne and others. The rent has been apportioned at £37 16s. 11d., leaving £38 16s. payable in respect of the rest of the lands; and the £37 16s. 11d. has been redeemed. It would seem that the fee-farm grant was a sub-grant, and the higher interest was also redeemed.

Under these circumstances the plaintiffs sue the defendant for the entire of the rent of £38 16s. They sue, not on the personal covenant made by Mabella Odlum; they sue deliberately on the ground that “the estate and interest of Mabella Odlum is now vested in the defendant as assignee thereof, and she is now in possession or receipt of the rents and profits thereof.”

The question for decision is, Can the assignee of the grantor sue the assignee of the grantee under the circumstances set forth?

Nothing turns upon the rent being a fee-farm rent. It has been assumed that a covenant to pay the rent-charge runs with the land, and binds an assignee, and is enforceable by an assignee of the grantor. Mr. White seems to think it is in his favour that the lease is now converted into a fee-farm grant. So far as I am concerned, it would seem to be rather against him: see the judgment of my brother Gibson in Bell v. Belfast Corporation (1). But, as I have said, nothing turns upon that. The simple question is, Can the assignee of the reversion, under the circumstances, sue the defendant for the entire rent, it being assumed that the covenant runs with the land?

Before deciding the one question of fact which calls for adjudication, I think it better to state my view of the question whether the facts in this case bring it within one set of authorities or another.

The law, I think, is clear enough. Some misapprehension is caused by a misapplication of a statement by Mr. Foa, in his

book, at p. 417:— “Whether an assignment by the lessee of his whole interest in part of the demised premises (an act by which he is said to ‘sever’ the term) creates a privity of estate between the lessor and assignee in respect of the whole seems doubtful.” I do not agree with the learned author. I think upon the authorities it is not doubtful. But the doubt suggested is, not as relied upon in argument before me, but as to whether the assignee can, under such circumstances, be sued at all, even for a part of the rent.

The authorities, I think, make it clear, 1, that he cannot be sued for the whole rent; and, 2, that he can be sued for part. The decisions, in later times, have got involved in technical matters of pleading, which can, however, by a little care be disentangled, leaving the propositions I have mentioned clearly decided.

The first two authorities are not encumbered with any such entanglement. All the others are.

In Congham v. King (1) it is decided that covenant will lie against the assignee of part of the land for not repairing his part, for it is divisible, and follows the land, with which the defendant, as assignee, is chargeable by the common law, or by the statute 32 Hen. 8, c. 37.

In Gamon v. Vernon (2) the lessor had assigned the moiety of the land for the whole term. The lessor brought debt against the assignee for the moiety of the rent. The argument for the defendant was that he was not liable for any portion of the rent; that both the privity of estate and privity of contract remained entirely in the lessee; and, by consequence, the moiety of the assignee was not chargeable. But the Court held that the assignee, having the entire estate in one moiety of the land, had privity of estate sufficient to be charged by the lessor for the moiety of...