Earl of Meath, Tenant; Megan, Landlord

• Jurisdiction: Ireland
• Judgment Date: 04 February 1897
• Date: 04 February 1897
• Court: Court of Appeal (Ireland)

Earl of Meath

Tenant

and

Megan

Landlord (1).

Land Com.

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.

1897.

Landlord and tenant — Tenancy from year to year on expiration of lease containing agreement against alienation — Assignment by person entitled to tenant's interest but not in occupation — Validity of — Home farm of tenant — Land Law [Ireland) Act, 1881 (44 & 45 Vict. c. 49), s. 1 — Land Law (Ireland) Act, 1896 (59 & 60 Vict. c. 47), ss. 5 (1) (b), 19, 50 (1).

A lease containing an agreement against alienation expired in 1880, and the lessee continued in possession, paying the same rent. He died in 1887, and R., on the assumption that he was entitled thereto under certain deeds of family settlement, went into possession of the land, and so continued, paying the rent. In 1895 it was discovered that the deeds of settlement did not comprise the tenant's interest in the holding, but that the same had passed to H. under the will of the lessee. H. in the same year, for a nominal consideration, assigned the land to R., who then applied to have a fair rent fixed. In April, 1896, the County Court Judge fixed a fair rent. On an appeal to the Irish Land Commission, heard after the commencement of the Land Law (Ireland) Act, 1896 (59 & 60 Vict. c. 47):—

Held, that H. was not, at the time of the assignment to R., a tenant within the meaning of the Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), s. 1; that that section did not apply; that the assignment was void; and that R. was not a tenant entitled to have a fair rent fixed.

Irrespective of the provisions of sect. 19 of the Act of 1896, the sale of a tenancy under sect. 1 of the Act of 1881 is not invalidated by the omission to give the notices required by sub-sections 2 and 4 of that section, compliance with the regulations of those sub-sections not being a condition precedent to the transfer of the interest in the tenancy.

Semble, land converted by a tenant into a home farm does not come within the exclusion contained in section 5, sub-section (1) (b) (i), of the Act of 1896.

Appeals by the landlords from orders of the County Court Judge of Wicklow, dated the 22nd April, 1896, fixing the fair rents for two holdings.

By lease, dated the 7th June, 1865, one of the holdings was demised to William Earl of Meath, for eighteen years from the

25th March, 1862. The lease contained an agreement restraining assignment without the consent of the landlord.

By an agreement of the same date the other holding was let to the Earl of Meath for the same term, and subject to the same covenants, provided the interest of the lessors should so long last.

On the expiration of the lease on the 25th March, 1880, the Earl of Meath continued in possession of both holdings, paying the same rents as before.

William Earl of Meath died in 1887, and thereupon Reginald the present Earl, on the assumption that he was entitled to the tenancies under certain deeds of settlement, entered into possession of the holdings, and had been since in occupation thereof.

In 1895 it was discovered that the deeds of settlement did not comprise the tenant's interests in these holdings, and that the same passed, under the codicil to the will of the late Earl, to his widow the Dowager Countess of Meath; and by an indenture, dated the 26th October, 1895, reciting the occupation of the lands by the present Earl, under the erroneous supposition that he was entitled thereto, the Countess, for a nominal consideration, assigned the holdings to him.

No previous notice of intention to sell was given to the landlords, but notice of the assignment was, on the 30th October, 1895, served on them.

The Earl, in January, 1896, served originating notices to have fair rents fixed, and, on the hearing of those applications, the orders appealed from were made.

The principal question argued was as to the validity of the assignment. The further facts in the case, and the other questions arising are fully stated in the judgment of Bewley, J.

Matheson, Q.C., and Molony, for the tenant:—

The covenant against alienation was inconsistent with sect. 1 of the Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), and ceased to have any effect: In re Wright and Tittle's Contract (1). Smyth v. Moore (2) was a case under sect. 1 of the Act of 1887, in which the tenants, before any adjudication on their originating notice to have a fair rent fixed, proceeded to sell, and the question

was whether the mere service of the notice constituted them present tenants. If they had waited until the order had been made, they would have been admittedly within their rights. Here, since 1880, both holdings were held under present tenancies.

By section 57 of the Act of 1881, “tenant” means a person occupying land under a contract of tenancy, and includes “the successors in title to a tenant.” Once, therefore, a person has been in occupation under a contract of tenancy, his successors in title are “tenants” under the Act, though not themselves in occupation. Here the late Lord Meath was, at the passing of the Act, in occupation under a tenancy from year to year. On his death the Dowager Countess of Meath became legally entitled to the tenancy, she transferred her estate and interest to the present Earl, and he was in occupation at the date of the service of the originating notice, and is entitled to have a fair rent fixed.

Further, the Countess was in contemplation of law in occupation for the entire period from her husband's death to the date of the assignment by her. She had the legal interest, Lord Meath was not in possession adversely to her, but under a misapprehension, and he subsequently acknowledged her title: he would have been liable to account to her for the profits, but she waived her right by the assignment, and he must be treated as having been in possession as her bailiff, and his occupation was in law hers. She was therefore a tenant within section 1 when she assigned.

The omission to give the notice of intention to sell under sect. 1 of the Act of 1881, does not render the sale void: the service of the notice is not a condition precedent, and the estate passes by a conveyance. The object of the notice is to prevent the landlord's rights from being affected, and sub-sect. 5 protects him.

Further, the conveyance to Lord Meath was an alienation otherwise than for consideration in money or money's worth within sect. 19 of the Land Law (Ireland) Act, 1896 (59 & 60 Vict. c. 47), and no notice of intention to sell was necessary. That section makes certain rules of law, while section 50 (1), which makes Part I. of the Act apply to proceedings pending at its commencement, deals with procedure, and the effect of the latter provision is that the Court in administering the law in a pending proceeding must do so according to the rules laid down in section 19.

It has been already decided that the holdings are not demesne.

Healy and Wakely, for the landlords:—

The first section of the Act of 1881 does not destroy a covenant against alienation in a lease until an order has been made fixing a fair rent, and that section has no application to the present case. In In re Wright and Tittle's Contract (1) a fair rent had been fixed, and the Court only decided that there the covenant against alienation was inconsistent with the provisions of sect. 1, and that the latter should prevail. Here on the expiration of the lease in 1880, the late Earl held on, and became tenant from year to year: see the Landlord and Tenant Law Amendment Act (Ireland) 1860 (23 & 24 Vict. c. 154) section 5. A covenant against alienation is not inconsistent with a tenancy from year to year, and the agreement in the lease formed one of the terms of the new tenancy.

Moreover, the Countess of Meath when she made the assignment was not in occupation; and although a tenant for the purposes of the Act of 1860, and bound by the covenant in the lease, she was not a tenant within the Act of 1881 (see section 57); and for this reason also section 1 of that Act does not apply. There is a marked contrast between the two statutes. The title of the Act of 1860 is “An Act to consolidate and amend the Law of Landlord and Tenant in Ireland,” and by sect. 1 thereof the word “Tenant” is defined to mean “the person entitled to any lands under any lease or other contract of tenancy …” The Act of 1881 is “An Act to further amend the Law relating to the Occupation and Ownership of Land …” and by section 57 “Tenant” means “a person occupying land under a contract of tenancy.…” Sect. 21 of the same Act requires bona fide occupation, as does also the first section of the Land Law (Ireland) Act, 1887 (50 & 51 Vict. c. 33). Although by section 57 of the Act of 1881 every tenancy to which the Act applies is to be deemed to be a present tenancy until the contrary is proved, still, that applies only to a “tenancy” and not to a “tenant,” and there is no presumption as to a person being a present tenant. See

The Queen (Lord Rossmore) v. The Irish Land Commission (1). The first section therefore of the Act of 1881 does not help Lord Meath.

Further even if that section applied, its provisions have not been complied with. No notice of intention to sell was given to the landlords, and they had no opportunity of exercising their right of pre-emption. As they denied that the Countess of Meath was a tenant within section 1, they did not apply under sub-section 5 of that section to have the sale declared void. Section 19 of the Act of 1896, abolishing the necessity of notice to the landlord in certain cases is not retrospective and does not apply to the deed of the 26th October, 1895. Section 50 (1), relates only to matters of procedure and does not make sect. 19 applicable to an assignment completed before the Act.

Moreover the holdings here...