O'Farrell v Stephenson

• Jurisdiction: Ireland
• Judgment Date: 30 June 1879
• Date: 30 June 1879
• Court: Chancery Division (Ireland)

Ex. Div.

Before FITZGERALD and DOWSE, BB.

O'FARRELL

and

STEPHENSON.

Beadon v. PykeENR 5 M. & S. 146.

Mellor v. WatkinsELR L. R. 9 Q. B. 400.

Ex parte Stephens, In re Lavies 7 Ch. Div. 127; see Ex parte Brook, In re Reports (10 Ch. Div. 100), reported since the argument.

In re Woods, Ex parte Ditton 3 Ch. Div. 459.

Smyth v. NorthELR L. R. 7 Ex. 242.

Re WilsonELR L. R. 13 Eq. 186.

Taylor v. GillottELR L. R. 20 Eq. 682.

In re Woods, Ex parte Ditton 3 Ch. Div. 459.

Ex parte Stephens, In re Lavies 7 Ch. Div. 127.

Lumley v. Metropolitan Railway CompanyUNK 34 L. T. (N. S.) 774.

Jones v. CarterENR 15 M. & W. 718.

Grimwood v. MossELR L. R. 7 C. P. 360.

Great Western Railway Company v. Smith 2 Ch. Div. 235.

Gaskell v. SpryENR 1 B. & Ald. 617

Jolly v. ArbuthnotENR 4 De G. & J. 224.

Landlord and Tenant Condition in lease Clause against carrying on trade Forfeiture Action to recover possession Disclaimer by assignees in banksruptcy Effect upon interest of sub-tenant 35 & 36 Vict. c. 58, s. 97 8 & 9 Vict. c. 106, s. 9.

Vot. 1V.] (.1. B., C. P., & EL DIVISIONS. 151 O'FARRELL v. STEPHENSON (1), .Px. 1879. Landlord and Tenant-Condition in lease-Clause against carrying on trade- . Forfeiture-Action to receeer possession-Disclaimer by assignees in bank- , Jan 17, . 20 ruptcy-Effect upon interest of sub-tenant-35 4 36 Vict. c. 58, s. 97ÂÂ8 4. 9 Viet. c. 106, s. 9. A. was a lessee for years under a lease containing a covenant against tarrying on the trade of a chandler on the demised premises, subject in case of breach to forfeiture, or, at the option of the landlord, to an increased yearly rent. Underleases were made by A. for a shorter term to B., and by for a still shorter term to the Defendant. The two last mentioned sub-leases each contained a covenant by the lessee not to carry on the trade in the preÂÂmises, subject either to forfeiture, or, at the option of the lessor, to the payment of an increased yearly rent, with a proviso that " the last mentioned clause shall not be enforced unless the head landlord, under whom the said [immeÂÂdiate lessor] holds said demised premises, enforce the said claim against him." B. became a bankrupt, and his assignees in bankruptcy disclaimed the interest in his lease under the provisions of the 35 & 36 Vict. c. 58 (BankÂÂruptcy, Ireland, Amendment Act), s. 97. After the disclaimer, A. received rent from the Defendant. A.'s immediate lessor, having subsequently commenced an action to recover possession, which was not, however, proceeded with, the Plaintiff, in whom A.'s interest was then vested, immediately afterwards brought an action to recover possession of them from the Defendant for an alleged breach of the condition against carrying on the prohibited trade, and it was proved at the trial of the Plaintiff's action that during the continuance of the Defendant's lease, and before the proceedings taken by the superior landlord, chandlery business was carried on, and that candles were, with other goods, exhibited for sale in a shop which formed part of the premises held by the Defendant, although it did not appear that any candles were manufactured on the premises. Held, 1. That there was evidence of a breach of the condition contained in the underlease to the Defendant against carrying on the trade of a chandler. 2. That the commencement of the action by the Plaintiff's lessor for recovery of possession was a proceeding to enforce the forfeiture clause in the lease under which the Plaintiff held, within the meaning of the proviso in the under-lease to the Defendant, and that consequently the Defendant could not rely upon the proviso as an answer to the Plaintiff's action. Held, also, that such proviso was applicable only to the enforcement of an (1) Before FITZGERALD and DO1VSE, B13,. Von. IV. 152 LAW REPORTS (IRELAND). [L. R. I. Ex. Div, increased rent, and. not to the right to recover possession upon a forfeiture of 1879. the lease. 3. That the disclaimer by B.'s assignees in bankruptcy had not the effect of O'FARRELL v. determining the sub-lease to the Defendant. STEPHENSON. 4. That the Defendant could not rely upon the commencement of the action by the Plaintiff's lessor as avoiding the lease under which the Plaintiff held. The doctrine that entry, or the bringing of an ejectment on a forfeiture for breach ,of a condition, operates as a determination of the lease, is one resting upon estoppel, of which an undertenant cannot take advantage against the will of the immediate lessee. Jones v. Carter (15 M. & W. 718) and Grimwood v. Moss (L. It. 7 C. P. 360) distinguished. Semble, there was no evidence of a permissive breach by A. of the covenant in the lease to him. ACTION to recover possession of the premises No. 2A, Lower Mount-street, Dublin, upon an alleged forfeiture of an underlease to the Defendant John Stephenson, dated the 29th of June, 1875. The premises were, with others, originally demised by the Earl of Pembroke to one Robert Maunsell, who by lease dated the 9th of March, 1859, subdemised to one John Magee for thirty-three years at the yearly rent of 30 ; Magee assigned his interest to Francis and Matthew O'Farrell, and by lease dated the 15th of November, 1864, the O'Farrells sublet the premises to Claudius Stephenson for a term of twenty-eight years at a yearly rent of 120. Each of these leases contained a covenant by the lessee therein not to carry on certain trades, including that of a chandler, on the demised preÂÂmises, with a clause of forfeiture in case of breach ; but in the lease of the 15th of November, 1864, with an alternative clause making an increased rent payable upon such breach, at the option of the landlord, and also subject in that lease to a proviso that such covenant should not be enforced against the lessee (Claudius Stephenson), his executors, administrators or assigns, unless the head landlord should take steps to enforce against the lessors in that lease (the O'Farrells), their executors, administrators and assigns, the similar covenant contained in the lease of the 9th of March, 1859, under which they themselves held. Claudius Stephenson subsequently made the underlease dated the 29th of June, 1875, to John Stephenson, for the term of fifteen years, in conÂÂsideration. of a fine of 39 10s., and subject to the yearly rent of Vor.. IV.] Q. B., C. P., & EX. DIVISIONS. 153 20. This lease contained the following condition, for breach of Ex. Div. which the present action was brought :- 1879. " Provided always, and it is hereby agreed and declared be- O'FARRELL tween the said Claudius Stephenson and John Stephenson, that in sTEplivE.NsoN. case the said John Stephenson shall carry on or permit to be carried on during the said term in the said premises the trades or business of an ale-house, tavern, chandler, baker, butcher, distiller, sugar-boiler, brewer, druggist, apothecary, skinner, lime-burner, hatter, silversmith, coppersmith, pewterer, blacksmith, or any other noisy or offensive trade, business or profession, these presents shall cease and be utterly null and void ; or, at the option of said Claudius Stephenson, the said John Stephenson, his executors, administraÂÂtors and assigns, shall be liable to an increased yearly rent of 60 per annum, to be payable and recoverable 'as the aforesaid yearly rent is payable and recoverable. But the said Claudius Stephenson hereby covenants and agrees to and with the said John Stephenson, that the last mentioned clause shall not be enforced unless the head landlord under whom Claudius Stephenson holds said demised premises enforces the said clause against him." The interest of the lessors in the lease of the 15th of November, 1864, became, in the year 1870, vested in Francis O'Farrell, who died on the 11th of September, 1877, intestate ; and the PlainÂÂtiff obtained letters of administration of his personal estate and effects. Claudius Stephenson was adjudicated a bankrupt on the 17th of November, 1876 ; and on the 20th of March, 1877, his assignees in bankruptcy, pursuant to the provisions of the 97th section of the Bankruptcy (Ireland) Amendment Act, 1872 (35 & 36 Yid. c. 58), and with the sanction of the Court of Bankruptcy, disÂÂclaimed his interest under the lease of the 15th of November, 1864 ; and on the 1st of May, 1877, the Court of Bankruptcy made an order for delivery of the premises demised by the lease of the 15th of November, 1864, to Francis O'Farrell, who was then entitled to the interest of the lessors in that lease. It being alleged that the chandlery trade was carried on in the premises, Maunsell, on the 11th of March, 1878, issued a writ to recover possession, and on "the 13th of the same month the Plaintiff commenced the preÂÂsent action, in which John Stephenson took defence. The case was N2 154 LAW REPORTS (IRELAND). [L. R. I. Ex. Div, tried before Morris, C. J., at the Trinity Sittings, 1878, when the 1879. following evidence as to the alleged carrying on of trade was given O'FARRELL on behalf of the Plaintiff : V. STEPHENSON. PATRICK MQRPHY : Knows the premises Nos. 1 and 2, Lower Mount-street ; chandlery business was carried on at 2" (the house in question), " last February, and it is still being carried on there-millinery, business had been carried on there. Cross-examined :-" It had been a boot shop; I can't say there is a manufactory of chandlery-soap, starch and blue are sold there, as well as chandlery ; the candles are exposed for sale in the shop ; there was a medium stock of them." The Defendant gave no evidence at the trial except of payments of rent in the months of June, 1877, and September, 1877, to Francis O'Farrell. The Defendant's counsel required the Chief Justice to direct a verdict for him on the following grounds, as stated in the report of the learned Judge : "That the Plaintiff's estate was void, and by the operation of the Bankruptcy Act the lease had determined-that there was no breach of the covenant as the head-landlord had not...