Foley v Galvin and Slattery

JurisdictionIreland
Judgment Date12 May 1932
Date12 May 1932
CourtSupreme Court (Irish Free State)
Foley v. Galvin.
JOAN FOLEY
Plaintiff
and
JULIA GALVIN and CHRISTINA SLATTERY, Defendants (1)

High Court.

Supreme Court.

Landlord and tenant - Action for recovery of possession - Notice to quit - Tenant not in occupation - Parol assignment of tenancy with change of possession - Whether assignment "by act and operation of law" - Landlord and Tenant Law Amendment Act (Ir.), 1860 (23 & 24 Vict. c. 154),sect. 9 - Increase of Rent and Mortgage Interest (Restrictions) Act, 1923(No. 19 of 1923), sects. 4, 6 - Restrictions on landlord's right to possession - Only tenants in occupation protected.

A parol assignment of a tenancy followed by a change of possession does not constitute an assignment "by act and operation of law" within sect. 9 of the Landlord and Tenant Law Amendment Act (Ir.), 1860.

The restrictions imposed by sect. 4 of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, on the right of a landlord to recover possession of a dwelling house to which the Act applies are not intended to benefit a tenant who is not in occupation of the premises.

So held by the Supreme Court, reversing the decision of the High Court, which (owing to a difference of opinion) had affirmed the decision of the Circuit Court Judge.

Per Kennedy C.J.: Although the benefits of the restrictions on eviction contained in sect. 4 of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, are conferred only on the occupying tenant, yet continuous personal residence is not always necessary to constitute the possession of an occupying tenant.

Per FitzGibbon J.: The tenant who is protected under sect. 4 is one who is in actual occupation by himself or some member of his family or a caretaker, or who, though not at the moment in actual occupation, does in fact require the dwelling-house for his own use.

Appeal from the Circuit Court.

The plaintiff, Joan Foley, of Bridge Street, Tralee, brought an ejectment Civil Bill against the defendants, Julia Galvin, The Square, Tralee, and Christina Slattery, Bridge Place, Tralee, to recover possession of "all that and those the dwelling-house and premises situate at Bridge Place, in the town and parish of Tralee," of which the plaintiff alleged the defendants wrongfully withheld the possession. The two defendants were sisters. Julia Galvin(née Slattery) had formerly been in occupation of the premises as tenant, but she had left the premises, and her sister, Christina Slattery, who had been residing with her, remained in possession. Christina Slattery alleged that her sister had transferred her interest in the premises to her (Christina Slattery). The Circuit Court Judge dismissed the Civil Bill, holding that the plaintiff had failed to prove her case. From that decision the plaintiff appealed to the High Court. The facts are set out in the judgment of O'Byrne J.

The plaintiff appealed to the Supreme Court (1) from the judgment and order of the High Court, and applied that the said judgment and order should be set aside and that, in lieu thereof, it might be ordered that the plaintiff should recover possession of the premises the subject matter of the ejectment. The appeal was stated to be taken upon the grounds that there was no evidence that the defendant, Julia Galvin, had assigned her tenancy to the defendant, Christina Slattery; that the defendant, Christina Slattery, was not a tenant and had no interest in the premises; and that the defendant, Julia Galvin, having gone out of possession and having alternative accommodation, was not entitled to the protection of the Increase of Rent and Mortgage Interest (Restrictions) Acts.

Sullivan P. :—

I am of opinion that Mr. Liston's client is entitled to succeed on the two points that have been argued on this appeal.

The evidence is not sufficient to establish a transfer by operation of law of the tenancy in question, though the occupation of the premises changed when Julia Galvin left and Christina Slattery remained in possession.

On the second point I am satisfied that the Increase of Rent and Mortgage Interest (Restrictions) Act does not protect a tenant who is not in possession of the premises.

O'Byrne J. :—

I have arrived at a different conclusion. By sect. 9 of Deasy's Act (23 & 24 Vict. c. 154) it is provided:—"The estate or interest of any tenant in any lands under any lease or other contract of tenancy shall be assigned, granted, or transmitted by deed executed, or instrument in writing signed by the party assigning or granting the same, or by his agent thereto lawfully authorised in writing, or by devise, bequest, or act and operation of law, and not otherwise; and in case the said estate or interest shall, on the death of the tenant, remain undisposed of and without any special occupant, it shall pass to the personal representative of the tenant as part of the personal estate of such tenant."

In this case there was no transfer of the tenancy by deed or instrument in writing, but it was alleged by the defendants and found by the Circuit Judge that there was an assignment by operation of law, and the question we have to consider is whether the Judge was right in so holding:

Up to 20th February, 1930, Miss Julia Slattery, now Mrs. Galvin, was admittedly tenant of these premises; and on that day she went out of possession, and her sister, Christina, who had been residing in the premises with her, remained on in possession. On the following day notice to quit was served on Mrs. Galvin, and the question arises whether or not, in the facts and circumstances of this case, that was a good notice to quit: that depends upon the question whether, before the service of the notice, there had been an assignment of the tenancy by Mrs. Galvin.

It appears from the transcript of the evidence that Christina Slattery swore that, before her sister left the premises, she gave her (Christina Slattery) the goodwill of the house. Christina Slattery thereupon remained in possession, and the obvious inference is that on 20th February, Julia Galvin went out of possession and Christina Slattery went in. It is obvious from the evidence on behalf of the landlord that some change of possession occurred. The trouble arises from the nature of the evidence given to prove that a parol assignment took place. No such evidence was given in the course of the case, and when the matter was commented upon, Mr. Browne asked leave to recall Miss Slattery. He was given leave to recall her, and she went into the witness box, and he asked her the following question:— "Before your sister left the premises what did she do with the tenancy, did she give it to you?"The answer was: "She gave me the goodwill of the house."Now, I think the weight to be attached to that answer is affected to some extent, firstly, by the fact that it was given after the close of the case, and secondly by the tact that it was given in answer to an extremely leading question; but it seems to me that that is entirely a matter for the Circuit Judge. It was entirely for him in the circumstances to say whether or not he would attach any weight to the answer given by the witness.

It is clear that the Circuit Judge did accept the evidence of Christina Slattery on this point. The Circuit Judge having accepted that answer as true, and having acted upon it, I am not prepared to take a different view. I feel I am bound to accept the answer as proving a transfer of the tenancy and to accept the finding of the Circuit Judge: that before Mrs. Galvin left the premises she gave over her interest to her sister, Miss Slattery.

Accepting that evidence and finding, what are the facts? We find that on the 20th February, Julia Slattery (Mrs. Galvin), who was the original tenant, transferred her interest in the tenancy by parol to her sister, and that forthwith she went out of possession and that Miss Christina Slattery went into possession. In my opinion that was a parol assignment, followed by a change in possession, which amounted to a transfer by operation of law within the meaning of the section.

In these circumstances I think the point as to the notice to quit having been served when Mrs. Galvin went out of possession and the effect of the Increase of Rent and Mortgage Interest (Restrictions) Act does not arise.

Cur. adv. vult.

Kennedy C.J. :—

This is an appeal from the Circuit Court sitting at Tralee (Circuit Judge E. J. McElligott), carried to this Court by reason of the difference of opinion of the two Judges (Sullivan P. and O'Byrne J.), who heard the appeal in the High Court.

The proceedings were brought by way of Civil Bill ejectment on the title to recover possession of a dwelling-house at Bridge Place in the town of Tralee, possession whereof was alleged to be wrongfully withheld by the defendants. The learned Circuit Judge dismissed the Civil Bill, and the"Dismiss" was automatically affirmed by the difference of opinion in the High Court, subject to appeal to this Court.

The facts, so far as they can be ascertained from the meagre evidence before us, are shortly as follows:—

The house in question was formerly (for many years) held under tenancy by the father of the two defendants, a well-to-do business man named Slattery. Mr. Slattery died in the year 1921 (his wife had predeceased him), leaving four daughters and one son, all living together in the house at Bridge Place. He made a will which has been proved, and thereby, amongst various beneficial provisions for his children, he made a disposition of this house in favour of his daughter Julia Slattery—now the defendant Julia Galvin. The family, however, lived on in the house

which had been and continued to be the family home. Subsequently one of the daughters died and another came up to Dublin, where she holds a position in the Ministry of Finance, and the brother obtained a position in a bank and went to live there. Finally, Julia married one, Galvin, Secretary of a Company, who had the use...

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9 cases
  • Jordan and Another v O'Brien
    • Ireland
    • Supreme Court
    • 1 January 1961
    ...her right to retain possession of that portion was no longer protected by s. 37 of the Rent Restrictions Act.1946. Foley v. GalvinIR [1932] I.R. 339 followed; Crowhurst v. MaidmentELR [1953] 1 Q.B. 23 approved. (S.C.) Jordan and Another and O'Brien Statutory tenant - Death of tenant - Tenan......
  • Walsh v Coyne
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    • 1 January 1958
    ...of the premises whose right to retain possession thereof was protected by s. 37 of the Rent Restrictions Act, 1946. Foley v. Galvin, [1932] I. R. 339 followed. Appeal from the Circuit Court. The defendant's mother, Mrs. Annie Coyne, had, since 1928, been yearly tenant to the plaintiff of a ......
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  • Caulfield v Kenny
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    • Supreme Court (Irish Free State)
    • 4 April 1935
    ...J.J.) affirmed his decision, holding that the case was governed by the principles laid down by the Supreme Court in Foley v. GalvinIR [1932] I. R. 339. On appeal to the Supreme Court (Kennedy, C.J., FitzGibbon and Murnaghan, J.J.) the decision of the High Court was affirmed. Per Kennedy, C.......
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