Fogarty v Shanahan

Judgment Date23 January 1896
Date23 January 1896
Docket Number(1895. No. 2960.)
CourtCourt of Appeal (Ireland)
Shanahan (1).

Q. B. Div.


(1895. No. 2960.)













Landlord and tenant — Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), sect. 2 — Sub-division or sub-letting without the consent of the landlord in writing.

An assignment, by a tenant from year to year of a holding to which the Land Law (Ireland) Act, 1881, applies, of portion of such holding, is absolutely and for all purposes void, unless and until the landlord has consented thereto in writing, as required by sect. 2 of that Act.

The defendant, a tenant from year to year of a holding to which the Act of 1881 applied, assigned by deed a portion of his holding to the plaintiff, and, the landlord having refused his consent, the defendant gave the plaintiff his bond (of even date) for £90, the amount of the purchase-money, conditioned in the event of the plaintiff being disturbed in his possession, or sustaining loss because of the landlord's consent not having been obtained. The plaintiff entered into possession, and, being disturbed in his possession by the defendant, sued him on the bond, and at the trial obtained a verdict for £78. The landlord had throughout refused to give his consent to the sub-division. On new trial motion to the Queen's Bench Division, and on appeal therefrom to the Court of Appeal:—

Held, that the assignment being absolutely void, and the defendant having it thus in his power to eject the plaintiff, and having in effect dispossessed him, the verdict was right.

New Trial Motion.

The action was brought on a bond for £90 given to secure the plaintiff (who had bought a portion of the defendant's farm) in case he should be disturbed in the possession of the portion assigned to him by reason of the landlord's consent not having been obtained.

The defendant, a tenant from year to year of an agricultural holding on the estate of Sir John Carden, by deed dated the 3rd January, 1894, assigned, as beneficial owner, a portion of his holding (a field containing about three and a-half acres, to the

plaintiff, subject to an an acreable proportion of the rent of the entire holding, for the sum of £90; and, the landlord having given no consent to the assignment, the defendant, on the same day, gave the plaintiff his bond for £90. This bond recited the deed of assignment, whereby the defendant had “purported to convey” to the plaintiff portion of the holding of which he was tenant to Sir John Carden; recited that, “the consent of the said Sir John Carden not having been obtained for such assignment,” it was agreed that the defendant should enter into this bond in the sum of £90, being the amount of the purchase-money; and stated the condition thereof as follows:—“Now, the condition of the above-written bond is such that if the said John Fogarty, his executors, administrators, or assigns, be not disturbed in possession of the portion of lands expressed to be so assigned, and if no loss, action, or claim, be sustained or made against him or them because of the consent of the said Sir John Carden to such assignment not having been obtained thereto, the bond shall be void, otherwise the same shall remain in full force.”

The plaintiff's evidence at the trial was to the effect that, after payment of the £90, he got possession of the field; that, subsequently, on several occasions he asked the landlord to accept him as tenant, and tendered to him his share of the rent, which was refused; and that, on several occasions, he tendered his share of the rent to the defendant, and that the defendant refused to take it. He also gave evidence of disturbance in his enjoyment of the field by acts of trespass of the defendant, interference with fences and expulsion of the plaintiff's cattle. This evidence was corroborated by Maher, a labourer in the plaintiff's employment. Sir John Carden was examined, and stated that the defendant was his tenant, under an old take of an agricultural holding; that he had never consented to, and had refused to ratify the transaction; and that the defendant Shanahan had paid him the entire rent (1).

The jury found that the defendant disturbed the plaintiff, but said that there was no sufficient evidence that the disturbance was because of the want of Sir John Carden's consent; they assessed the damages at £78, for which sum judgment was entered. The learned Judge who tried the case, Gibson, J., stated in his report, “I thought the case turned on whether the defendant was entitled by reason of the want of consent to eject the plaintiff. If he was, his action in disturbing the plaintiff must be attributed to his title, and the second finding of the jury is immaterial. On the other hand, if his action was a trespass, the verdict would be clearly wrong, the damages being calculated on complete loss of the farm, and not for a temporary trespass before action.

Ross, Q.C., (M.B. Cooper, with him) for the defendants, contended, 1, that there had been no expulsion or disturbance within the condition of the bond, that condition applying only to disturbance by the landlord; and, 2, that the second section of the Land Law Act of 1881 — this being an agricultural holding and within the Act, though no fair rent had been actually fixed — did not make the assignment void, but voidable merely at the option of the landlord (thus distinguishing Ormsby v. Crean (1)); that, as between assignor and assignee the assignment was valid, and that the assignee was in lawful possession, and could not be ejected by the defendant — relying on Ryan v. Byrne (2); Glenn v. Brennan (3); and Waller v. Farrelly (4).

[Holmes, J., referred to Johnson v. Egan (5)].

Counsel also relied on the different language of the Landlord and Tenant Act, 1860, ss. 10 and 18, and the Subletting Acts, 7 Geo. 4 and 2 Wm. 4, as distinguishing the decisions under those Acts.

George Wright, Q. C., and Ignatius J. O'Brien, for the defendant, contended, 1, that there was an ouster by the defendant, within the condition of the bond; and 2, that section 2 of the Land Act of 1881 made the assignment absolutely void, the prohibition

being absolute, and so intended, not merely in the interest of the landlord, but as a matter of public policy. They relied on the language of and the decisions under the Subletting Acts (7 Geo. 4 and 2 Wm. 4) and the Landlord and Tenant Act, 1860

(23 & 24 Vict. c. 154, ss. 10 and 18), citing Gillman v. Murphy (1) and Jagoe v. Harrington (2); and on sections 2 and 5 of the Act of 1881, citing Ormsby v. Crean (3) and Murtagh v. Allen (4). Glenn v. Brennan (5) was a decision on the Franchise Acts, and did not support the contrary view.

Ross, Q. C., in reply.

Cur. adv. vult.

Ross, Q. C., in reply.

O'Brien, J.:—

This was a motion for a new trial, made in a case tried before Mr. Justice Gibson, in which one person sued another upon a bond for the sum of £90, which was given by the assignor of a small portion of land to his assignee on the occasion of the assignment, or in immediate connexion with that transaction; and the object of the bond was to secure the assignee — who was buying the land, a small plot, forming part of a tenancy from year to year, and containing not more than about three acres — against eviction from the land, as the landlord had given no consent to the assignment.

Upon the facts and the substantial effect of the evidence, and upon the result of the trial before the jury of those facts, there can be no doubt whatever. The jury found that the condition of the bond had been broken, that the assignee had been disturbed; and they added another finding, which, apart from the consideration whether they had any evidence before them for determining the question, was treated, in one view of the case, as immaterial, and seems to me to be immaterial, that there was no sufficient evidence that the disturbance was caused by reason of the want of consent of the landlord, Sir J. Carden.

One argument addressed to us on behalf of the defendant was

that the breaking off of the arrangement, supposed to involve the violation of the bond, was not owing to the defendant, the assignor, at all, but was in reality owing to the plaintiff himself, who found that his title was defective, in the absence of Sir John Carden's consent, and, becoming anxious, himself created the difficulties which led to the supposed disturbance, without there being in fact any disturbance by his own assignor. That might not be an unlikely thing to happen. It might well be that the assignee paid his money in the first instance, and, afterwards, finding that he could get no declaration of consent from the landlord, became apprehensive, and was desirous of getting out of his bargain. That, in itself, is not an unlikely thing, and Mr. Ross pressed this view upon us strongly; but, in my opinion, it is entirely opposed to the facts of the case, because afterwards, even on no less than two occasions after the plaintiff had ascertained that Sir John Carden would not consent, the plaintiff went to him and offered him the rent, when it was not received; and, notwithstanding this, the plaintiff did not break off, but went to his assignor and tendered the amount of the rent, which he too would not receive, a thing most unusual on the part of a tenant; and the statement of Maher, one of the witnesses examined, most undoubtedly shows a design on the defendant's part to break through the agreement, for he says, among other statements of his own, that the defendant had said to him, “It was only the breaking of a man's word,” considering, not unnaturally, that it was but a slight thing for a tenant, under the education he has been of late receiving, to break his word. This was the view he took, and I have no doubt that the defendant discovered that in some...

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